AFFH Proposed Rule Published 2/9/23

HUD’s long-awaited Proposed Rule for Affirmatively Furthering Fair Housing (AFFH) was posted in the Federal Register February 9, 2023. This starts the clock ticking for the official 60-day Public Comment period that ends April 10, 2023.

To view the Proposed Rule, click here.

What is AFFH and what does the Proposed Rule mean? The AFFH provision was part of the original Fair Housing Act (FHA) of 1968, and its obligations extend to federal agencies administering housing and urban development programs. AFFH requires funding recipients to “take meaningful actions—in addition to combating discrimination—that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected classes.

Bipartisan Policy Center Deep Dive into the AFFH Proposed Rule

However, the federal government has long been criticized for failing to enforce FHA requirements or provide participants with meaningful guidance. This has allowed discriminatory practices and harm resulting from segregation, discrimination, and disinvestment based on protected class to persist in housing transactions, zoning laws and patterns of funding.

The broad, generational impacts of persistent and pervasive housing discrimination are clearly described in the short film ‘Segregated by Design.’ It contrasts de facto segregation—separation arising accidentally or through private discrimination—from de jure segregation, racially-explicit laws that keep people apart. AFFH represents our collective obligation to remedy or reverse the consequences of the resulting ‘unconstitutional residential landscape’ that has disadvantaged generations of people in protected classes.

The seven protected classes include:

Race
Color
National origin
Religion
Sex (including gender identity and sexual orientation per the Worden Memo)
Familial status (families with children under 18)
Disability

How AFFH relates to the FHA:

The FHA focuses on what is prohibited: discrimination in any housing transaction or “to make unavailable or deny” housing by any means.
AFFH is prescriptive; it requires federal funding recipients to take proactive and “meaningful actions” to address segregation and related barriers.

The AFFH Rule proposed in 2015 was meant to give teeth to the Fair Housing Act and address criticisms. To assist program participants, HUD created the AFFH-T, where the T refers to a customized Mapping Tool to streamline the data gathering and analysis process. The rule was subsequently rescinded in 2018, re-instated in 2021, and has undergone revisions in response to public comments. The updated AFFH provision introduces a modified version of the Assessment of Fair Housing (AFH) now referred to as an Equity Plan.

The Equity Plan—similar to the AFH or Analysis of Impediments (AI)—will be required every five years. Funding recipients with a current AI will have up to three years to begin work on their Equity Plan. With some variation based on the jurisdiction, the plan seeks to define and describe the following:

Demographics
Segregation and integration
Racially or ethnically concentrated areas of poverty (R/ECAPs)
Access to community assets
Access to affordable housing opportunities
Access to homeownership and economic opportunity
Policies and practices impacting fair housing

The planning process requires significant community engagement and an Equity Plan will be evaluated based on its ability to advance equity in housing, community development programs, and residents’ access to well-resourced areas, opportunity, and community assets. Participants must identify and analyze fair housing data and issues, prioritize those issues, and commit to meaningful and measurable action to undertake fair housing goals.

Failure to take AFFH seriously to create or improve access to opportunities can result in additional HUD review, remediation, and in extreme cases, loss of federal funding. This ultimately harms local taxpayers, constituents and economies, and results in the loss of federal support for housing and community development (think rental assistance or housing development and support from Idaho Commerce) that benefits Idaho families, employers, businesses and communities.

Industry observations

In response to the previous administration’s move to rescind the AFFH, the CEO of the Local Initiatives Support Corporation (LISC) expressed concern in a July 27, 2020 statement: “At a moment in our country’s history where the need to dismantle structural racism and segregation is so clear and present, HUD’s decision to terminate the Affirmatively Furthering Fair Housing (AFFH) rule represents a giant and shocking step backwards. Eliminating the AFFH rule will hurt not just renters by limiting where they can afford to live, but all of our communities and Americans who benefit from a fairer, more inclusive society.”

In a January 23rd statement from National Low-Income Housing Coalition (NLIHC) President and CEO Diane Yentel, she makes clear that “…the 2015 AFFH regulation was an important step toward rectifying decades of racist housing policies that created today’s segregated neighborhoods and resulted in associated harm to children, families, and the country… More than ever, large-scale, sustained investments and anti-racist reforms are necessary to ensure that people with the lowest incomes have quality homes that are accessible and affordable in communities of their choice.”

The National Council of State Housing Agencies (NCSHA) is also supportive of the new rule. On behalf of its members, the organization states that “…central to our overriding vision of an affordably housed nation is the goal of removing fair housing obstacles that impede anyone from accessing the affordable housing of their choice.

Additional reference materials

HUD AFFH Overview Page
The National Low-Income Housing Coalition put together a nice summary of the Key Provisions of the 2023 Proposed AFFH Rule
HUD Fact Sheet and FAQ Overview
AFFH-T (Mapping Tool)
AFFH-T (User Guide)
AFFH-T (Video Training Series)

Neighbor-on-neighbor hate crimes violate Fair Housing Act

Indiana Man Pleads Guilty to Hate Crime for Making Racially Motivated Threats Toward Black Neighbor and to Unlawful Possession of Firearms

Many people assume the Fair Housing Act only applies to situations involving landlord/tenant interactions or the sale, purchase or advertising of housing. But the Act also applies in cases of tenant-on-tenant or neighbor-on-neighbor harassment.

Shepherd Hoehn, 51, plead guilty to “criminal interference with housing rights and a weapons charge” (firearms possession while a habitual user of marijuana is illegal under Indiana and federal law). Hoehn made threats based on race to intimidate his neighbor and to intimidate someone exercising his right to fair housing in violation of 42 U.S.C. § 3631. The guilty plea is the latest action in the case since the FBI exercised a federal search warrant on Hoehn’s property on July 1, 2020.

“Hoehn’ s hateful and threatening conduct, motivated by racial intolerance, is an egregious crime that will not be tolerated by the Justice Department,” said Principal Deputy Assistant Attorney General Pam Karlan of the Civil Rights Division. “Every person has a right to occupy, enjoy and feel safe in their homes, regardless of race, color or national origin. We will continue to protect the civil rights of all individuals and vigorously prosecute hate crime cases.”

Hoehn was found guilty of displays intended to intimidate and threaten his neighbor, including a cross burning; placing Nazi symbolism and threatening racial slurs on his fence, blasting racially charged music toward the neighbor’s home, and pelting the neighbor’s home with eggs.

“Hoehn’s sentencing date has not been set at this time. Hoehn faces a maximum statutory penalty of 10 years in prison and a fine of up to $250,000 for each of the charged offenses.”

National Housing Law Project: Tenant Resources During a Pandemic

The National Housing Law Project (NHLP) has assembled a list of tools and resources for homeowners, tenants, and advocates seeking to preserve housing stability and protect civil rights during the COVID-19 Pandemic and economic crisis.

Visit NHLP’s current campaign information here

Protecting Renter and Homeowner Rights During Our National Health Crisis

CAMPAIGN / JUNE 25, 2020

Tags: COVID-19, Fair housing, Federal Policy, Foreclosure

The National Housing Law Project has put together the following resources for attorneys, advocates, policymakers, and others for assistance during the COVID-19 national public health crisis. We will continue to update this with NHLP resources and other resources as they become available. Please email us with any additional resources to post.

Why Economic Developers Hope That “Fair Housing Still Has a Chance Under Trump”

The most recent State of Idaho Assessment of Fair Housing takes an ‘Economic Opportunity Approach’ to what is traditionally perceived as a civil rights issue affecting minority populations and other protected classes. An excerpt follows:

“This study approaches the analysis of fair housing issues through an “opportunity lens.” This was done to:

Incorporate recent research that links long‐term economic gains of cities and states to advancing economic growth of residents,
Incorporate the latest legal developments around fair housing, and
Most importantly, identify where the Grantees can best intervene to improve the economic opportunities of residents and, ultimately the fiscal health, of non‐entitlement communities.”

In other words, the report shows that the overall economic health and stability of a city or state depend on the economic opportunities of all residents. When everyone can access safe, quality housing within their household budget and close to employment or other services, they have more time, energy and income to invest in neighborhoods and communities. At the same time, they are less dependent on public assistance or other social services.

Housing choice (the right to determine where we live and can afford) and stability are essential components in the development of social capital, sometimes defined as “the networks of relationships among people who live and work in a particular society, enabling that society to function effectively.”

When individuals and families feel part of a neighborhood or community, they are better able to form trusting relationships and cultivate connections that can lead to opportunities—whether in employment, education, health care or personal growth and development. From the perspective of those who stress personal responsibility and self-reliance, housing choice (aka, ‘Fair Housing’) should be seen as the best investment, hands down.

For an informative and riveting history of the origin and reason for the Fair Housing Act, this 2015 podcast from This American Life and ProPublica is one of the best introductions around. For those short on time, Act Two is particularly fascinating.

The Slate article linked below contemplates the 2015 Affirmatively Furthering Fair Housing (AFFH) rule and how it may fare moving forward under a new administration. The AFFH rule is intended to implement the core mission of the Fair Housing Act—to increase access to economic and social opportunities through something called housing choice. Where we live determines access to essential services and resources: clean air and water, healthy food, education, employment, police and fire protection, banking and lending, health care—even things like culture and recreation.

“An important rule, enacted late in the Obama administration, is just starting to knock down barriers in some of America’s most segregated places.”

The Affirmatively Furthering Fair Housing (or AFFH) rule, promulgated by President Barack Obama’s Department of Housing and Urban Development in 2015, marked the first forward momentum for the Fair Housing Act in decades. The rule required jurisdictions that receive federal housing funding to not only document barriers to integration and opportunity, but to detail—and prioritize—policies to eradicate them.

Read more here: Fair Housing Still Has a Chance Under Trump