The Restoration of the Affirmatively Furthering Fair Housing (AFFH) Rule
On June 10, 2021, HUD published an Interim File Rule to restore the AFFH (Affirmatively Furthering Fair Housing) rule that the previous administration gutted in 2020.
What is AFFH?
While the Fair Housing Act (Title VII CRA 1968) applies to all multi-family housing regardless of funding, additional requirements apply to HUD, thereby, HUD’s grantees. These additional requirements are necessary to further ensure HUD funding recipients are engaged in decision-making that considers preexisting racial and socioeconomic housing segregation and actively working to dismantle existing segregation.
Essentially, agencies that are recipients of HUD Funding must take meaningful actions to go above and beyond simply complying with the Fair Housing Act by; such recipients must make decisions and create a policy to foster inclusive housing communities and proactively overcome historic patterns of segregation. The rule stated that funding recipient’s obligations include,
“taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with racially balanced living patterns, transforming racially or ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”
To meet the AFFH requirements, HUD requires funding recipients to provide a certification that the grantee will affirmatively further fair housing.
AFFH Certifications and Assessments
Beginning in 1996, program participants were required to provide an assessment to support their AHHF certification. This analysis is referred to as the “Analysis of Impediments to Fair Housing Choice “(AI).
In 2015, HUD issued its 2015 Final AFFH rule to codify HUD’s well-established interpretation of the AFFH requirement. This 2015 Final Rule provided a definition of the term “Affirmatively Further Fair Housing,” as well as clarifying definitions for the related terms of “meaningful actions” and “fair housing choice.”
Affirmatively Furthering Fair Housing
- Is Defined as “taking meaningful actions that, taken together, address significant disparities in housing needs and access to opportunity, replacing segregated living patterns with racially balanced living patterns, transforming racially or ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”
- Is defined as ‘‘significant actions that are designed and can be reasonably expected to achieve a material positive change that affirmatively furthers fair housing by, for example, increasing fair housing choice or decreasing disparities in access to opportunity.”
Fair housing choice
- Is defined as ‘‘individuals and families have the information, opportunity, and options to live where they choose without unlawful discrimination and other barriers related to race, color, religion, sex, familial status, national origin, or disability.’’
HUD began producing an assessment tool for program participants. Still, the full implementation of AFH hit a roadblock in 2018 when HUD published a notice in the Federal Register withdrawing the only available assessment tool for program participants to use in completing the AFH. In the 2018 notice, HUD directed program participants who had not completed an AFH to continue to conduct AI instead.
Then in 2020, HUD stunned the industry by publishing a final rule without following standard notice-and-comment procedures and changing the definitions of AFFH to the extent that it rendered it useless.
This 2020 final rule replaced the following 2015 rule’s definitions, with the following:
- “Affirmatively further” means to take any action rationally related to promoting any attribute or attributes of fair housing as defined in the preceding subsection.
- “Fair housing” means housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination, and accessible as required under civil rights laws.
Based on the change in the above definitions, it could be ascertained that a program participant has met their AFFH obligation by taking any action to promote safe and decent housing without taking any action to actively prohibit discrimination or decreasing disparities in access to housing. Clearly, the changes made to these crucial definitions were a clear departure from HUD’s longstanding interpretations of the purpose of the AFFH requirement.
2021 Interim Final Rule
On January 26, 2021, the Biden Administration released a Memorandum on restoring and bolstering fair housing efforts. The statement included a direct direction to HUD,
“The Secretary shall take any necessary steps, as appropriate and consistent with applicable law, to implement the Fair Housing Act’s requirements that HUD administers its programs in a manner that affirmatively furthers fair housing and HUD’s overall duty to administer the Act … including by preventing practices with an unjustified discriminatory effect.”
HUD immediately began to work to restore the principle and purpose of AFFH by publishing an Interim Final rule on June 11, 2021.
Reinstatement of Certain 2015 AFFH Rule Provisions
While not all components of the 2015 Final Rule were restored, the Interim Final Rule did reinstate the definitions of “AFFH,” “Meaningful Action,” and “Fair Housing Choice” originally promulgated in the 2015 rule.
Additionally, the Interim Rule reinstates the certification requirements, but only to the extent that the certifications correspond to the above-mentioned definitions.
Assessment of Fair Housing (AFH) Requirements
While the 2021 AFFH Interim rule does reinstate the certification requirements related to the change in definitions noted above, this interim rule does not require that program participants use the Assessment of Fair Housing (AFH), the Analysis of Impediments (AI), or any other type of specific fair housing assessment to support their AFFH certifications. That said, HUD made it clear that they will once again offer technical support and assistance to program participants who would like to use these tools when conducting fair housing planning.