In the wake of the Supreme Court decision upholding disparate impact theory as a legal tool to combat discrimination, the Department of Housing and Urban Development last week released its final rule on Affirmatively Furthering Fair Housing (AFFH). The AFFH rule requires jurisdictions receiving HUD program funding to proactively combat discrimination and segregation. The jurisdictions are to periodically develop and update Assessment of Fair Housing (AFH) strategies that describe barriers to fair housing choice, establish goals for removing those barriers, and develop performance measures to assess progress in meeting the goals.
HUD promises to provide a comprehensive amount of data, maps, and charts that will enable jurisdictions to perform fair housing analyses. The analyses are to address the following:
- Identification of integration and segregation patterns by race, gender, religion, and disability.
- Identification of racially or ethnically concentrated areas of poverty.
- Identification of significant disparities in access to opportunity by protected class (that is, minorities, women, disability).
- Identification of disproportionate housing needs for any protected class.
After identifying these barriers and disparities, the jurisdictions are required to identify contributing factors causing these barriers and disparities and to prioritize which factors they will combat. Jurisdictions are to develop goals for attacking the factors and how they will measure their progress against these goals.
When developing an AFH, a jurisdiction will need to strike a balance between promoting housing opportunities in integrated neighborhoods and revitalizing struggling neighborhoods. As stated in previous blogs, Manna believes that developing affordable housing in integrated communities and in struggling communities is vital to truly promote choice and fair housing. HUD recognizes this by stating that strategies to affirmatively further fair housing and to reduce disparities include development of affordable housing in “areas of opportunity” and “place-based strategies to encourage community revitalization.” It would seem to be a violation of affirmatively fair housing if a jurisdiction purposively neglected struggling neighborhoods (which are often predominantly minority). This would not provide meaningful fair housing choice to residents of these neighborhoods that want to remain and build their communities. Likewise, it would be a violation of fair housing choice if jurisdictions did not provide meaningful opportunities for low-income and minority families to move into affordable housing developments in integrated neighborhoods.
Jurisdictions should also be careful in developing new programs and policies to ensure that housing needs or inferior housing options do not disproportionately impact protected classes. For instance, inclusionary housing programs aim for the laudable goal of promoting integration through mixed income housing. Yet, some of these programs provide homeownership options that limit, to various degrees, the amount of equity that homeowners can accumulate. This is done to promote long-term affordability of the homeowner units. Yet, in the process, the programs may create a housing need or issue that disproportionately impacts protected classes. In particular, African-Americans have considerably lower homeownership rates and equity than whites. An inclusionary program that disproportionately places African-Americans in homeownership units with limited equity possibilities is not combating lower levels of equity among African-Americans and may, in fact, be exacerbating racial disparities in equity accumulation. It would behoove these types of inclusionary zoning programs to provide substantial opportunities for equity gains or traditional homeownership for every homeowner unit of limited equity if these programs are not to run afoul of the spirit if not the letter of the new AFFH requirements.
AFH plans need to scrutinize private sector as well as public sector actions from a fair housing perspective. For instance, some lending institutions have contributed to segregation and lack of fair housing opportunities for protected classes. Rigorous AFH plans must examine and develop strategies to combat disparities in access to credit impacting protected classes.
How do we ensure that AFH plans promote affordable housing development and fair housing choice in integrated and struggling neighborhoods? How do we make sure that inclusionary zoning programs are carefully crafted to preserve equity building opportunities for all protected classes? How do we ensure that public and private sector actions are carefully scrutinized by AFH plans? One critical way of doing this is to make sure that the community participation requirements are robust and meaningfully allow for input of all communities, including minority and modest income communities. All laws intended to redress historic and ongoing discrimination from CRA to the Fair Housing Act work best when the community is at the center and has real opportunities for input.
Josh Silver is the Development Manager at Manna, Inc. Prior to his time at Manna, Josh served as Vice President of Research & Policy at NCRC. Josh is an avid District sports fan and loves spending time with his daughter.