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Affirmatively Furthering Fair Housing

Photo © by Bernard Kleina

January 20, 2023

A Public Statement from FHJC Policy Coordinator Britny McKenzie

(The full footnoted version of this statement can be viewed and downloaded here.)

The United States’ history of discrimination and residential segregation is long and painful. The Fair Housing Act (FHA) was signed into law during the summer of the 1968 race riots and seven days after Martin Luther King Jr. was assassinated. The Kerner Commission, assembled by President Johnson to assess the state of the nation, declared, “Our nation is moving toward two societies, one black, one white—separate and unequal.”

The FHA prohibits discrimination in selling, renting, insuring, and financing housing and presently bans discrimination based on race, color, national origin, religion, sex (including sexual orientation and gender identity), familial status, and disability. Knowing that the FHA alone could not end this pervasive, overarching, and profoundly embedded discriminatory behavior, Congress included a provision to Affirmatively Further Fair Housing (AFFH). It requires the Department of Housing and Urban Development (HUD), a federal agency responsible for addressing and improving housing needs and enforcing fair housing laws, and its grantees to combat discrimination, reduce segregation, and increase accessible and inclusive communities in its housing, development, policies, and programs.

Federal Government AFFH Responsibilities

It has been 54 years since the passage of the FHA. Since its implementation, it has yet to be vigorously enforced. Cities and states across the nation that received federal funds could choose to submit an Analysis of Impediments report assessing impediments to housing choice in the public and private sector. As the FHA did not contain a requirement to assess compliance, cities across the country were not held responsible for tackling housing inequalities. As a result, state and local governments largely ignored the AFFH provision of the FHA until HUD, under the Obama administration, promulgated the AFFH rule and Assessment of Fair Housing (AFH) rule in 2015. In conformance with the FHA, this rule required all jurisdictions to create a detailed planning process to help their communities overcome disparities in opportunity, fair housing choice, and racially concentrated poverty. The 2015 rule clarified that jurisdictions must not take any actions inconsistent with their AFFH obligations.

The Trump administration took significant actions to repeal prior agency and judicial interpretations of the AFFH commitment, undermining HUD’s and program participants’ ability to comply with their AFFH obligation. The administration continued to strike at fair housing by proposing to revise a crucial standard of proof known as the disparate impact rule, which has been vital in challenging neutral policies and practices that have a discriminatory effect on protected classes. According to the National Fair Housing Alliance, these changes exacerbated housing discrimination and resulted in an eight percent increase in housing discrimination complaints.

Shortly after taking office in 2021, President Biden disseminated a public memorandum to the HUD Secretary entitled “Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies.” In the memo, the President emphasizes that it is the United States’ duty to “provide redress to those who have experienced housing discrimination, to eliminate racial bias and other forms of discrimination in all stages of home-buying and renting, to lift barriers that restrict housing and neighborhood choice, to promote diverse and inclusive communities, to ensure sufficient physically accessible housing, and to secure equal access to housing opportunity for all.”

Importantly, HUD released its proposed new Affirmatively Furthering Fair Housing (AFFH) rule yesterday, January 19, 2023. The proposed rule, which builds on and refines HUD’s 2015 rule, will require program participants to identify fair housing issues facing their communities, using both data provided by HUD and local knowledge, and then commit to taking responsive actions. The proposed rule is intended to empower and require program participants to meaningfully engage with their communities. It provides ample transparency for the public, an opportunity for public engagement, and it includes accountability mechanisms that ensure that program participants live up to their commitments. Once the proposal is published in the federal register, a 60-day public comment period will commence.

New York State’s AFFH

Before the passage of the AFFH bill, a three-year investigation by Newsday of widespread housing discrimination was published in the landmark 2019 report “Long Island Divided.” The investigation, planned in consultation with the Fair Housing Justice Center (FHJC), consisted of a regional testing initiative to measure how real estate agents treated minority home seekers compared to white home seekers. The report found “evidence of widespread separate and unequal treatment of minority potential homebuyers and minority communities on Long Island.” Black testers experienced disparate treatment 49 percent of the time, compared with 39 percent for Hispanic and 19 percent for Asian testers. In the aftermath of the report, advocates and policymakers collaborated to structure a variety of bills and press for their passage, resulting in a package of new fair housing laws, including a statewide AFFH bill passed in December 2021. 

New York State’s AFFH law directs the Division of Human Rights Commissioner and the heads of all housing agencies that receive state funding to establish and administer housing programs that affirmatively further fair housing and to produce draft reports made available to the public on or before each October 30 and open for thirty days of public comment. The report must include any significant initiatives, policies, or programs undertaken to further fair housing and any recommendations for improving the state of fair housing in New York. On December 1 of each year, the Commissioner must submit the final version of the report and all presented comments to the Governor, Assembly speaker, and the president of the Senate.

The Affirmatively Furthering Fair Housing rule was established because simply ‘not discriminating’ is not enough. Federal, State, and local government agencies all participated in creating an inequitable housing market, which has adversely impacted people of color and our entire society. New York State has taken a step forward towards housing equity for all by implementing the AFFH vital mandate. However, we must bear in mind the many ways fair housing was neglected after the FHA’s passage and seek to prevent repetition of inadequate enforcement.

Don’t let history repeat itself. Urge your local and state officials to commit to uplifting fair housing policy and eradicating housing discrimination. Visit fairhousingjustice.org to learn more.