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Affirmatively Furthering Fair Housing

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Fair Housing Act •  Title VIII of the Civil Rights Act of 1968

–  Race –  Color –  Religion –  National Origin –  Sex –  Disability –  Familial Status (children under age 18 in household)

•  Fair Housing Act has two goals: –  Eliminating housing discrimination –  Promoting residential integration

•  “Truly integrated and balanced living patterns”

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Fair Housing Act •  Requires all executive departments and agencies to

administer their programs and activities relating to housing and urban development in a manner “affirmatively to further the purposes of the Fair Housing Act”

•  Called “affirmatively furthering fair housing,” or AFFH •  Significant action to overcome historic patterns of

segregation, promote fair housing choice, and foster inclusive communities

•  HUD issued a regulation on AFFH on July 16, 2015

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Promoting Residential Integration

•  Kerner Report: “two societies, one black, one white—separate and unequal”

•  United States remains a segregated society •  Where you live matters

–  Schools –  Job opportunities –  Access to reliable transportation –  Air quality –  Access to healthy food

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Prior Framework •  Fair Housing Act has always required meaningful actions

to be taken by recipients of federal funds to overcome the legacy of segregation, unequal treatment, and historic lack of access to opportunity in housing

•  Prior to the AFFH rule, HUD directed program participants to affirmatively further fair housing by undertaking an Analysis of Impediments (AI) to fair housing choice that was not required to be submitted to or reviewed by HUD

•  Required program participants to identify impediments to

fair housing choice within their jurisdiction, to develop a plan of action, and to maintain records of such efforts

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Prior Framework

•  In 2013, HUD initiated the rulemaking process to propose a new and more effective approach for program participants to use to AFFH

•  The new approach strengthens the process –  Assessment of Fair Housing (AFH) replaces Analysis

of Impediments (AI) –  Creates Assessment Tools –  HUD provision of data and geospatial mapping –  HUD review for acceptance or non acceptance

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Statutory Authority •  Section 808(d) of the Fair Housing Act •  Section 104(b)(2) of the Housing and Community Development Act (HCD Act) •  Section 106(d)(7)(B) of the HCD Act •  Cranston-Gonzalez National Affordable Housing Act (NAHA)

•  Quality Housing and Work Responsibility Act of 1998 (QHWRA)

•  Executive Order 12892, entitled “Leadership and Coordination of Fair Housing in Federal Programs: Affirmatively Furthering Fair Housing,” issued January 17, 1994

•  Executive Order 12898, entitled “Executive Actions to Address Environmental Justice

in Minority Populations and Low-Income Populations,” issued on February 11, 1994

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What is AFFH? •  The Fair Housing Act leaves it to HUD to define the

scope of the AFFH obligation

•  Courts have provided guidance –  Anti-Discrimination Center v. Westchester County, 495 F.Supp.

2d 375 (S.D.N.Y. 2007) –  N.A.A.C.P v. Secretary of Housing and Urban Development, 17

F.2d 149 (1st Cir. 1987)

•  Every court has held the Fair Housing Act an obligation to do more than just refrain from discrimination –  Assist in ending segregation and increasing the supply of open

housing

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What is AFFH? •  Taking meaningful actions that…address significant

disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws”

•  AFFH duty extends to all of a program participant’s activities and programs relating to housing and urban development

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Who is a Program Participant? •  Any jurisdictions that are required to submit consolidated

plans under: –  The Community Development Block Grant program (CDBG) –  The Emergency Solutions Grants program (ESG) –  The HOME Investment Partnerships Program (HOME) –  The Housing Opportunities for Persons with AIDS program

(HOPWA)

•  Public housing agencies (PHAs) receiving assistance under section 8 or 9 of the United States Housing Act of 1937

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Key Features of AFFH Rule •  Replaces the AI with “Assessment of Fair Housing” (AFH) through

which program participants identify and evaluate fair housing issues and factors contributing to fair housing issues

•  Improves fair housing assessment, planning, and decision-making

through HUD’s provision of housing and demographic data that program participants must examine in completing their AFH

•  Incorporates fair housing planning to existing HUD community

development planning processes, the Consolidated Plan (“con plan”) and the Public Housing Agency Plan (“PHA Plan)”

•  Encourages and facilitates regional approaches to address fair

housing issues

•  Requires Community Participation

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Advantages of New Regulation

•  Improved planning process and better use of government funds

•  Increased compliance with fair housing

and civil rights laws •  Locally-driven goals and priorities for

advancing fair housing choice

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Assessment of Fair Housing •  AFH must include:

–  Analysis of fair housing data –  Assessment of fair housing issues and contributing factors –  Identification of fair housing priorities and goals

•  Conducted and submitted to HUD using the Assessment Tool, a set of forms, templates, and instructions provided by HUD

•  “Contributing Factor” is a factor that creates, contributes to, perpetuates, or increases the severity of one or more fair housing issues

•  “Fair housing issue” is a condition that restricts fair housing choice or access to opportunity, including ongoing local or regional segregation or lack of integration, racially or ethnically concentrated areas of poverty, significant disparities in access to opportunity, disproportionate housing needs, and evidence of discrimination or violations of civil rights law or regulations related to housing.

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Assessment of Fair Housing •  HUD will provide national uniform data to

examine: –  Patterns of segregation –  Racially and ethnically concentrated areas of poverty –  Disparities in access to opportunities –  Disproportionate Housing needs –  Access to opporuntity

•  Where many fair housing issues cross jurisdictional boundaries, it makes sense to conduct the AFH on a regional level –  New rule provides a streamlined process with detailed

guidance about collaboration

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AFH Requirements

•  A summary of fair housing issues and capacity •  Analysis of data •  Assessment of fair housing issues •  Identifying and prioritizing contributing factors •  Establishing fair housing priorities and goals •  Specific and measurable strategies and actions •  Summary of community participation •  Review of progress achieved since submission

of prior AFH (for each AFH submitted after the first AFH submission)

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Analysis of Data •  HUD will provide data, analytical tools, and mapping

capacity through a geo-spatial tool •  Program participants should identify:

–  Integration and segregation patterns and trends based on race, color, religion, sex, familial status, national origin, and disability within the jurisdiction and region

–  Racially or ethnically concentrated areas of poverty within the jurisdiction and region

–  Significant disparities in access to opportunity for any protected class within the jurisdiction and region.

–  Disproportionate housing needs for any protected class within the jurisdiction and region

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Assessment of Fair Housing Issues •  Siting decisions by local zoning boards that perpetuate racial and ethnic

segregation

•  A lack of public investment in high-minority areas

•  Zoning ordinances or laws limiting housing development

•  Spacing, parking and other construction restrictions which limit access for affordable housing

•  Local residency preferences or other preferences which have the effect of limiting housing choice based on race, national origin, familial status, disability, and other protected classes

•  Separate waiting lists for public housing based on a protected class

•  Poor Limited English Proficiency compliance by a public housing agency

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Identification of Priorities and Goals

•  Identify and discuss the fair housing issues arising from the assessment

•  Identify significant contributing factors, prioritize such factors, and justify the prioritization of the factors that will be addressed in the program participant’s fair housing goals –  Give highest priority to those factors which limit or deny fair

housing choice or access to opportunity, or which negatively impact fair housing or civil rights compliance

•  Set goals for overcoming the contributing factors as prioritized

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Strategies and Actions A Balanced Approach

•  Enhancing mobility strategies •  Encouraging development of new affordable

housing in areas of opportunity •  Place-based strategies to encourage community

revitalization •  Preservation of existing affordable housing •  Highest priority should be given to those factors

that limit or deny fair housing choice or access to opportunity or that negatively impact fair housing or civil rights compliance

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Community Participation •  Program participants should engage in special outreach to local

residents, particularly residents who historically have been marginalized, to encourage them to participate

•  Speak with the agencies and organizations that serve the community’s housing needs

•  The participation must be meaningful –  “A solicitation of views and recommendations from members of the

community and other interested parties, a consideration of the views and recommendations received, and a process for incorporating such views and recommendations into decisions and outcomes”

•  AFH must include a summary of the community participation process

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HUD Review of AFH •  HUD will review each AFH to determine whether the program

participant has met the requirements

•  Program participants will submit the AFH to HUD, which will have 60 days to accept

•  Acceptance by HUD means that HUD has determined that the program participant has met the required elements of the rule

•  Acceptance does NOT mean that the program participant has complied with its obligation to AFFH under the Fair Housing Act or has complied with other provisions of the Fair Housing Act or other applicable civil rights laws

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Nonacceptance of AFH •  Two criteria for nonacceptance:

–  AFH is inconsistent with fair housing and civil rights laws –  AFH is substantially incomplete

•  Written notice of the nonacceptance –  The program participant can revise and resubmit the AFH within

45 calendar days –  HUD will then have 30 days to accept the AFH after

resubmission

•  If a program participant does not have an accepted AFH, HUD will not approve its’ ConPlan or PHA plan, which could affect the program participant’s federal funding

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Timeframe for Submission of AFH

•  The due date for each program participant’s Assessment of Fair Housing is based on the program participant’s ConPlan cycle or PHA Plan cycle

•  The AFH will be due every Three to Five years, the planning cycle, in advance of the ConPlan or PHA plan

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Additional information

•  The entire Final AFFH Rule and other AFFH information and resources may be found at:

hud.gov/AFFH