By Justin Steil & Nicholas Kelly (Click here to view the entire P&R issue)
After years of sustained pressure from civil rights advocates and support from across the housing and community development field, the Department of Housing and Urban Development (HUD) in July of 2015 at last issued the Affirmatively Furthering Fair Housing (AFFH) Rule. On January 5, 2018, however, HUD abruptly announced that no new Assessments of Fair Housing (AFHs) would be required until October of 2020, and AFHs in progress would not be reviewed. In justification of the suspension, HUD claimed that cities need more time to comply. A research analysis that we conducted prior to the suspension, however, suggests that the AFFH Rule was working. Even though some municipalities submitted weak proposals, HUD correctly refused to accept those plans until they were revised, and the majority of submissions were a significant improvement over the prior Analysis of Impediments to Fair Housing (AI) regime.
Regulatory Background
When Congress enacted the Fair Housing Act in 1968, it prohibited discrimination on the basis of race, color, religion, national origin, and sex (and later family status and disability) in the provision of housing and also required that federal housing and community development funding “affirmatively further” fair housing (42 U.S.C. §5304(b)(2); see also 42 U.S.C. §3608(e)(5); 24 C.F.R. §5.154). The policy interests underlying the Fair Housing Act and its AFFH provision are still sharply relevant today: levels of residential segregation by race in the United States remain high. And higher levels of metropolitan area segregation continue to be associated with worse socioeconomic outcomes for Black and Latino young adults. Segregation by race and by income is also associated with lower levels of overall socio-economic mobility, for all residents of a metropolitan area.
Yet although the Department of Housing and Urban Development (HUD) is responsible for ensuring that recipients of HUD funding affirmatively further fair housing, HUD has rarely enforced these provisions of the Fair Housing Act. After Congressional prodding, HUD in 1988 required grant recipients to submit an Analysis of Impediments to Fair Housing Choice (AI) and certify that they were furthering fair housing. HUD, however, rarely if ever reviewed these AIs and many HUD grant recipients paid little attention to advancing fair housing. A 2010 Government Accountability Office report found that roughly one-third of AIs were out of date and that the majority of AIs lacked any time frame for implementing their recommendations.
In contrast, the 2015 AFFH Rule was designed to provide HUD grant recipients “with an effective planning approach to aid program participants in taking meaningful actions to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.” Pursuant to the AFFH Rule, HUD now provides data about residential segregation about disparities in access to opportunity (measured in terms of local school proficiency, job access, transportation access, and exposure to environmental hazards) to public entities receiving HUD funds. Those HUD grant recipients are then required to engage in a community process to conduct an analysis of segregation, of racially or ethnically concentrated areas of poverty, of disparities in access to opportunity, and of disproportionate housing needs within the jurisdiction, and then to identify what factors contribute to these fair housing issues (24 C.F.R. §5.154 (d)(1)-(3)). To address those contributing factors, grant recipients then set out goals for advancing fair housing and equal access to opportunity, identify the metrics, milestones, and parties responsible for achieving those goals, and, in their subsequent Consolidated Plans and annual Action Plans, include strategies and actions to realize the Assessment of Fair Housing (AFH) goals (24 C.F.R. §5.154 (d)(4)-(5)). Municipalities began submitting their AFHs to HUD on a rolling basis in 2016.
Research Findings: Concrete Commitments, Consistency with the FHA’s and Rule’s Aims
To evaluate to what extent the AFFH submissions differ from the prior AI submissions, we coded and analyzed all of the 28 AFHs that were submitted between October 2016 (the first submission date) and July of 2017, as well as each of these municipalities’ AIs (their previous plans filed before the AFFH Rule came into effect) to examine variation in two areas. We analyzed differences in the robustness of municipal goals (measured as goals that set out a quantifiable metric or commit to a new policy) to address segregation between those plans submitted pursuant to the AFH process and those submitted previously under the AI process. We recognize that introducing a new policy or having a quantifiable metric for a goal is at best an imperfect measure of the robustness of an AFH plan, but it is a consistently measurable characteristic of goals that captures at least some level of the strength of a tangible public commitment.
Of all goals in the 27 AIs we reviewed (one AI was unavailable), only 5 percent contained a quantifiable metric or included a new policy. By contrast, 33 percent of all goals in the 28 AFHs contained a quantifiable metric or new policy, an increase of 28 percentage points. Every municipality except one (Harrisonburg, VA) had more goals with quantifiable metrics or new policies in their AFH than in their AI. On the one hand, advocates can and should ask why only a third of AFH goals included either a new policy or an easily measurable metric and should be pressing municipalities to make even more innovative goals and concrete commitments. On the other hand, compared to the old AIs, the new AFHs include a dramatic increase in the number of goals, in the ambition of those goals, and in the share of goals with metrics the public can use to hold municipalities accountable to their commitments.
For instance, in the Wilmington, North Carolina AI, one of the nine goals and recommendations was to “consider soliciting an intern from a local college to institute basic practices with regard to fair housing” for the city and the county by “disseminating fair housing information,” “developing and monitoring a hotline,” and “work[ing] with the city and county to maintain fair housing information on each website.” This is an example of a goal that makes essentially no public commitment to any defined action and provides minimal ways to measure if fair housing information is being effectively disseminated and what effect that dissemination is having on awareness or enforcement of fair housing laws.
The AFH from Wilmington, by contrast, includes an increased number of goals (12) and a number of more concrete commitments. “10% of affordable housing produced with CDBG and HOME participation over the next 5 years will be targeted for persons with disabilities”; “partner with area banks to provide up to 10 mortgages annually through the homeownership opportunities program to households at or below 80% of AMI” with a commitment that housing authority will enhance the existing Housing Choice Voucher homeownership program support; “fund after-school programs in racially or ethnically concentrated areas of poverty over the next 5 years” such that “75% of youth enrolled will increase scores on end of year test at 80% or more; 90% promotion to next grade level;” and a commitment to making 100% of city-owned available in-fill lots available for development into affordable housing, as well as revisions to the zoning code to encourage mixed-use, mixed-income, and mixed-tenure status units. The goals in the AFH are more specific, touch on a broader range of place-based characteristics affecting access to opportunity, and include concrete commitments to measurable outcomes, from first-time home-buyer loans financed, to dwelling units that are accessible to the disabled, to school performance, to the use of public land for affordable housing.
Throughout the AFHs we reviewed, municipalities made concrete commitments to measurable goals or to the implementation of new policies. Some of those goals attempted to increase the mobility of households receiving housing vouchers. For instance, New Orleans, Louisiana set out to provide landlords in the city with information on how to become a Housing Choice Voucher landlord in order to expand program participation and decrease the share of Housing Choice Voucher properties in racially or ethnically concentrated areas of poverty from 33% to 30% by 2021. Other goals sought to reduce displacement from gentrification. For instance, Seattle, Washington proposed scaling its mandatory housing affordability requirements to geographic areas of the city based on market conditions, in an effort to increase the contributions to affordable housing from areas with strong markets. Similarly, New Orleans set out the goal of developing more than 400 affordable rental units in the gentrifying neighborhood of Treme over five years. Other goals made commitments to increasing the number of affordable units in neighborhoods with high levels of access to opportunity. For instance, Chester County, Pennsylvania committed to creating 200 new affordable units in high opportunity neighborhoods across the county by 2021. Still other goals focused on public housing, economic development, and education. For instance, Wilmington set out the aim of enrolling at least 150 individuals from public housing in a job training and placement program while New Orleans proposed developing new commercial sites in public housing. Perhaps the most exciting development was the joint regional submission from five different municipalities in the Kansas City region, collaborating across jurisdictional lines to develop a shared approach to reducing place-based disparities in access to opportunity.
To assess the extent to which the AFHs were actually producing goals that were consistent with the AFFH Rule’s aim to “overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics,” we also coded goals that either proposed to increase household mobility or access to neighborhoods with low-poverty rates and other measures of opportunity (“mobility” goals); or that proposed to invest in “transforming racially and ethnically concentrated areas of poverty into areas of opportunity” (“place-based” goals). There was a more than five-fold increase in both of these types of goals, from fewer than 20 across all of the AIs to nearly 100 in the AFHs.
Of the AFHs we reviewed, roughly one out of four had initially been “not accepted” by HUD for failing to comply with the AFFH Rule and HUD has reported that of all 48 submissions prior to the delay in implementation just over one in three were initially not accepted. The primary reasons for these “pass-backs” were failures to sufficiently analyze obstacles to fair housing or incorporate ideas from the community engagement process, failures to justify the prioritization of contributing factors for each fair housing issue identified, and a lack of metrics and milestones for determining when fair housing results will be achieved. These initial non-acceptances from our perspective represent a strength of the new AFFH Rule and HUD’s implementation of it, in that the AFFH Rule has higher standards for municipalities than the previous AI and that HUD is enforcing those standards. Additionally, the non-acceptances provided participants with the opportunity to respond to HUD feedback and to strengthen their final AFHs so as to meet their fair housing obligations. In short, the non-acceptances should be seen as a strength of the new rule, not a failure. We hope that a non-acceptance would be embraced by a municipality as an opportunity to improve their analysis and enhance their goals and simultaneously embraced by HUD as a sign of the need for further investment in technical assistance to municipalities conducting AFHs.
Conclusion
Since the announcement of the January 5 delay, dozens of civil rights groups have expressed their opposition to the change, urging HUD to reverse its action. If HUD will not act (or is not forced to act), advocates will also need to press their cities to pursue the rigorous analysis and robust goals that the AFFH rule calls for. The Fair Housing Act and its goal of “moving the Nation toward a more integrated society” require it (Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2515 (2015)).
Justin Steil, steil@mit.edu, is Assistant Professor of Law and Urban Planning at MIT. Nicholas Kelly is a PhD student in Urban Studies and Planning at MIT. This article is adapted from a forthcoming paper by the authors; citations have been omitted.
