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)