Affirmatively Furthering Fair Housing: Why You Should Care

Civil Rights Enforcement Resources, Economic Justice Resources 01.31,23

By Nia Warren

In Mississippi, owners and managers of three apartment complexes refused to show two of its complexes to prospective Black renters, reserving them for White renters only. In Georgia, owners of a residential rental property steered older Black applicants to only apply to less desirable apartment complexes rather than newer, predominantly white ones. In New Jersey, a rental manager conditioned housing for prospective tenants on the performance of sexual favors. In Wyoming, a rental manager refused to grant a reasonable accommodation to their no pets policy for a prospective tenant with a disability that required her to have an assistance animal.

These are not hypothetical situations or cases of discrimination from decades past. These are the facts of complaints made in the past two years that allege discrimination on the basis of race, gender, and ability, among other protected attributes.

Housing discrimination is not just an evil of the past, but rather a persistent issue that continues to perpetuate inequality in our society. For example, out of every metropolitan region in the United States with more than 200,000 residents, 81 percent were more segregated as of 2019 than they were in 1990. Owner-occupied homes in Black neighborhoods are undervalued by $48,000 per home on average. And in 2020, there were 28,712 fair housing complaints filed with government agencies and private organizations.

Recent cases and data make clear that something must be done to not only prevent discrimination, but also to actively address the negative effects of past discrimination that contribute to the current cycle of inequality. Legislators recognized this need decades ago and added an explicit provision to “affirmatively further fair housing” in the Fair Housing Act, which President Lyndon Johnson signed in 1968. The Fair Housing Act requires the Department of Housing and Urban Development (HUD) and all federal agencies and departments that handle issues intersecting with HUD programs to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further” the aims of the law, such as addressing racially segregated neighborhoods, lack of housing choice, and unequal access to housing-related opportunities.

In 2015, the Obama administration released a final Affirmatively Furthering Fair Housing (AFFH) rule that codified how HUD should implement the policy based on past HUD practices and judicial decisions. The rule required cities that receive federal funding for any HUD purposes to engage in fair housing planning, which includes identifying housing patterns or practices that promote bias against any protected classes under the Fair Housing Act, and creating a plan for rectifying barriers to fair housing.

Despite this important progress, former President Trump in 2020 attacked AFFH on Twitter, stating that the 2015 Obama era rule had “a devastating impact on these once thriving suburban areas,” that it would “destroy the suburbs,” and that it was “not fair to homeowners.” The Trump administration later issued a final rule, Preserving Community and Housing Choice, which essentially stripped HUD’s statutory obligation to enforce AFFH. Rather than requiring HUD funding recipients to take meaningful actions to address discrimination, the rule allowed recipients to take any action rationally related to promoting any attribute of fair housing. Under this new rule, housing advocates could no longer use a crucial tool to ensure progress toward equal access to housing, and people in America faced more barriers to accessing safe, affordable housing. Because of the key role AFFH plays in providing equal access to housing, its implementation should not be dependent on the whims of whomever is in power. It is essential that AFFH is restored, and public engagement is essential.  

If you care about eliminating housing discrimination and ensuring an equal opportunity for everyone to find safe, affordable housing, you have to support affirmatively furthering fair housing. When your house is on fire, it is not enough to just put the fire out and move back in; you must also address the lasting damage caused by the fire. The same logic applies to housing discrimination. It is not sufficient for government agencies, landlords, and housing authorities to just stop practicing discrimination to achieve equal access to housing; they must also actively address the effects of our country’s long history of housing discrimination. Right now, it is up to us to ensure that our elected officials take housing issues seriously by holding them accountable at the ballot box, raising attention around housing issues, and engaging in relevant legislative and administrative action.

We have an opportunity now to make our voices heard as the Biden administration engages in rulemaking related to AFFH. The administration previously released an interim final rule, Restoring Affirmatively Furthering Fair Housing Definitions and Certifications, which reinstates many of the requirements of the 2015 final rule. And just this month, HUD released its proposed final rule. I encourage you to participate in the rulemaking process and amplify the importance of AFFH. We cannot rest until everyone has access to safe, affordable housing — and AFFH is a crucial component of achieving that goal.

Nia Warren was a fall 2022 undergraduate intern at The Leadership Conference on Civil and Human Rights.