The undersigned fair housing, affordable housing and civil rights organizations write to you in response to the proposed Interim Final Rule entitled “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications.” We are heartened to see HUD moving toward restoring a meaningful Affirmatively Furthering Fair Housing (AFFH) rule to better implement the letter and spirit of the Fair Housing Act (“the Act”). This provision of the Fair Housing Act has largely gone unenforced, continuing the harms that have resulted from this nation’s legacy of government-sponsored residential segregation and discrimination. With the exception of the short time during which HUD’s 2015 AFFH Rule was in operation, there has been little meaningful implementation of the AFFH mandate of the Act. We appreciate that HUD has taken this important step to reinstate portions of the 2015 rule and offer the following comments to encourage HUD to improve upon the proposed Interim Final Rule and move swiftly to adopt and fully implement a complete, robust AFFH regulation.
Where you live matters because it determines access to suitable, affordable housing, high-performing schools, clean air, green space, employment, transportation, health care and other community assets that affect life outcomes. It is for this simple, basic truth that the AFFH mandate is essential to ensuring an equitable society in which people have real choices about where to live and all communities can provide their residents with access to the resources, amenities, and opportunities they need to thrive. However, the absence of a coherent or meaningful AFFH implementation and enforcement regime since the passage of the Act has allowed for deeper patterns of segregation, increased racially or ethnically concentrated poverty, disparate health outcomes for people of color, and the continued separation of people with disabilities – all with the continuing support of HUD funding through federal housing and community development programs. These disparities have been both revealed and amplified by the current COVID19 pandemic, underscoring the urgency with which HUD must act to reinstate a meaningful AFFH framework.
Our comments below provide our analysis of the proposed Interim Final Rule, our recommendations for ways to improve it, and our initial suggestions about issues HUD should consider as it moves on to full restoration of a regulatory framework to implement the AFFH provisions of the Fair Housing Act. Our main points include the following:
- HUD’s repeal of the 2020 Preserving Community and Neighborhood Choice Rule is appropriate because that rule lacked a legal foundation (both substantively and procedurally), and because in the absence of an effective AFFH rule, HUD and its recipients will predictably fail to fulfill their AFFH obligations.
- We support HUD’s restoration of the AFFH definitions, and underscore that the Fair Housing Act’s Congressional record, decades of federal court holdings, and an accumulating body of social science evidence undergird the principle that remedying residential racial segregation is central to the Act’s purpose, and that measures to expand geographic choice, bring resources to disinvested neighborhoods, and promote housing stability and quality are all needed.
- With regard to the “regulatory purpose” of the AFFH rule, HUD should place greater emphasis on the need for grantees to take meaningful actions to further fair housing as well as to engage in analysis, and more explicitly set forth the expectation that they will do so. HUD should also restore its 2015 language pointing to the strategies that may be needed to AFFH (including expanding geographic options, preservation, infrastructure investments, and others).
- We also support the measure of restoring the AFFH certification requirements, but point to a key omission HUD should correct– that all grantees must also certify that they will not take actions “materially inconsistent” with their AFFH obligation. We also emphasize that HUD should require that grantees certify that they have in place a current, publicly-available plan for specific meaningful action steps (based on analysis and public input) to further fair housing.
- Extensive experience and documentation has shown that HUD’s grantees are unlikely to fulfill their substantive AFFH obligations without a consistent and mandatory planning and oversight process. We urge HUD to restore such a process.
- HUD should expeditiously restore a planning and oversight mechanism that retains the strengths of the 2015 rule and uses the lessons of implementation to improve upon the process. It should include, for example, a complaint process, a standard of review that provides more momentum for results, streamlined data analysis, a better-tailored assessment of policies and practices, and robust public input. Public housing authorities play a critical role in advancing or impeding fair housing for the residents they serve and communities at large, and any new process must effectively promote PHA reforms. HUD should also examine how to better advance regional coordination and coordination among PHAs and other entities.