House Oversight Subcommittee Issues Testimony From National Fair Housing Alliance
I offer my testimony here on behalf of the
NFHA is the voice of fair housing, working to eliminate housing discrimination and to ensure equal housing opportunity for all people through leadership, education, outreach, membership services, public policy initiatives, community development, advocacy, and enforcement throughout the nation.
HUD's brazen disregard for its responsibilities to enforce the
HUD must surely be aware that its reformulation of the AFFH mandate directly contradicts the legislative history and intent of the Fair Housing Act, as well as the objective analysis and recommendations of the Government Accountability Office concerning the history of AFFH enforcement. The proposed 2020 AFFH rule is in no way a fair housing rule. Instead, it is a thinly veiled attempt to deregulate aspects of housing development and community planning to the detriment of the nation's most marginalized communities.
In this testimony, I discuss the history and purpose of the Fair Housing Act and explain how the patterns of residential segregation and concentrated poverty in America were created. I offer examples of why those conditions are harmful to children and necessitate remediation in order to ensure the success of every child in America. I explain the history of the willful disregard of the AFFH provision of the Fair Housing Act by successive presidential administrations. I discuss the intent and vision behind the now-suspended 2015 AFFH rule as well as some of its promising results. I follow with an enumeration of the ways in which the newly proposed 2020 AFFH rule would work and how it fails to meet the statutory mandates of the Fair Housing Act or the needs of children and the American public. Finally, I offer recommendations for
3 Purpose and Intent of the Fair Housing Act Title VIII of the Civil Rights Act of 1968, better known as the Fair Housing Act, just seven days after the assassination of Dr.
At the heart of the
While Headrights, Land Grants, and Homestead Grants allowed millions of Americans to achieve land ownership and homeownership, these programs nearly exclusively benefitted Whites./2
By the end of the Reconstruction Era in 1877, Jim Crow laws began to take root and with them came greater opportunities for Whites that were similarly unavailable to people of color.
During the 1920s, it became increasingly common for White elected officials, developers, lenders, real estate agents and resident associations to establish discriminatory housing and zoning policies designed to maintain the White composition of residential neighborhoods.
Associations often referred to as "neighborhood improvement associations" actively sought to influence local government bodies to establish racial zoning restrictions. These associations would threaten to boycott individual real-estate agents who were willing to work with
From the post-Depression era through the aftermath of World War II, federal policies that stabilized the floundering housing market and opened housing opportunities for returning veterans and their families expressly excluded people of color from the benefits of governmentsupported housing programs. Among these programs were public housing, which created muchneeded housing for working families; the
The United States Housing Act of 1937 established the
Thus, it was federally mandated that public housing investments after World War II preserve existing patterns of residential segregation while creating new patterns of segregation where they did not previously exist.
Initiatives under the New Deal were directly aimed at tackling instability in many economic markets, especially housing.
But in the process of attempting to eliminate risk in the market, the HOLC adopted property appraisal processes that mimicked the view in the private market that the presence of African- Americans, certain immigrants and some religious groups directly contributed to neighborhood deterioration and decline in property values./5
The HOLC created a neighborhood classification system that rated communities based on a "desirability scale' and was accompanied by
Residential Security Maps. On these maps entire neighborhoods could be coded as "hazardous" simply because of the presence of
In 1934 the
In Section 284, the manual goes on to suggest that deed restrictions should include a "[p]rohibition of the occupancy of properties except by the race for which they are intended."/7
FHA also placed limitations on construction loans which required that builders agree not to sell any of those homes to
Thus, through generations of discriminatory housing and lending policies the American government institutionalized residential segregation and created the foundations upon which modern racial and economic isolation continue.
Indeed, the legislative history of the Fair Housing Act reflects the need to address institutionalized residential segregation and calls out the realities of children living in redlined, disinvested neighborhoods at the time. In the discussion surrounding the protections of the 14th Amendment, the
It is clear from this legislative history that the
The Impact of Segregation on Child Opportunity Outcomes Where one lives determines the types of opportunities they will have - where one's child attends school, their transportation options, whether they have safe places to play, and whether they have clean air to breathe and healthy foods available to them. However, due to the legacy of government-sponsored segregation there are disparities across the board for children, particularly children of color. It is well documented that the disparate outcomes that children experience are tied to segregation and concentrated poverty. Residential segregation is a direct determinant of the opportunities children have access to and their outcomes in terms of educational attainment, health and well-being, financial well-being, and involvement in the criminal justice system.
Concentrated Poverty, Economic Outcomes and Housing Cost Burden Affecting Children
The legacy of residential segregation has cemented patterns of concentrated poverty/10 across urban centers and continues to produce negative outcomes for children living in those conditions.
However, children of color experience significant disparities in outcomes when compared to the life outcomes of White children. Black and American-Indian children are seven times more likely to live in high-poverty neighborhoods than White children, and Latino children are nearly five times more likely to live in high-poverty neighborhoods./11
Those disparities exist along poverty rates and housing affordability; health indicators and outcomes and exposure to hazardous environmental conditions; rates of educational attainment; public safety indicators and exposure to the criminal justice system. When considered together, these disparities paint a picture of what it is like for children of color to grow up in
Recent research has shown that urban areas, especially those with substantial concentrated poverty, typically correlate with worse outcomes for children compared to suburbs and rural areas, regardless of family income. Researcher
Children of color experience greater levels of poverty and extreme poverty, and their families suffer from higher housing cost burdens than their White counterparts. In 2018, 32 percent of Black children, 31 percent of American-Indian children, and 26 percent of Hispanic or Latino children lived in poverty compared to just 11 percent of non-Hispanic White children./13
Breaking down that data further, it is clear that children of color also are more likely to live in extreme poverty than their White counterparts. In 2018, 16 percent of Black children, 15 percent of American-Indian children, and 10 percent of Hispanic or Latino children lived in extreme poverty, compared to five percent of White children./14
In 2018, 44 percent of Black children, 41 percent of Hispanic or Latino children, and 29% of American-Indian children lived in high housing-cost burdened households, compared to 22% of non-Hispanic White children./15
To remove a racial analysis blatantly ignores the stark disparities in child outcomes in America.
Child Health Outcomes
Children of color and their families experience lower rates of health care and well-being than their White counterparts. In 2017, 12 percent of American-Indian births, ten percent of Black births, and eight percent of Hispanic or Latino births were by women receiving late or no prenatal care, compared to four percent of White births./16
And surveys between 2016 and 2017 revealed that 16 percent of Black children, 14 percent of American Indian children, 15 percent of Hispanic or Latino Children, and 11 percent of Asian or Pacific Islander children were not in excellent or very good health, compared to just seven percent of White children./17
Educational Outcomes for Children and Teens
Children and teens of color have significantly worse educational outcomes than their White counterparts. Data for 2019 show that 82 percent of Black children, 80 percent of American- Indian children, and 77 percent of Hispanic or Latino children in fourth grade scored below proficient reading levels, compared to 56 percent of White Children./18
In the same year 87 percent of Black children, 85 percent of American-Indian children, and 81 percent of Hispanic or Latino children in the eighth grade scored below proficient math achievement level, compared to 57 percent of White children./19
And in 2018, seven percent of American-Indian teens, five percent of Hispanic or Latino teens, and four percent of Black teens between the ages of 16 and 19 were not in school and were not high school graduates, compared to three percent of White teens./20
Safety Indicators and Exposure to the Criminal Justice System
Children of color feel significantly less safe in their neighborhoods and they and their parents are more likely to have been involved in or exposed to the criminal justice system compared to their White counterparts. Between 2016 and 2017, nine percent of Black children, eight percent of Hispanic or Latino children, and 7 percent of American-Indian children lived in a neighborhood identified as "sometimes" or "never" safe, compared to three percent of White children./21
And between 2016 and 2017, 37 percent of American-Indian children, 33 percent of Black children, and 20 percent of Hispanic or Latino children reported having experienced two or more adverse life experiences, compared to 18 percent for White children./22
In 2017, for every 100,000 children, 383 Black children, 235 American-Indian children, and 118 Hispanic children lived in a juvenile detention, correctional, and/or residential facility, compared to 83 White children./23
And in 2016 to 2017, 19 percent of American-Indian children, 15 percent of Black children, and seven percent of Hispanic or Latino children had a parent who was ever in jail or prison after they were born, compared to six percent of non-Hispanic White children./24
Researchers at DiversityDataKids.
Among the neighborhood conditions factored into the index are: high school graduation rates; poverty and employment rates; housing vacancy rates and homeownership levels; air pollution levels; and the availability of green spaces and healthy food options. Researchers scored every neighborhood or census tracts in
The most recent findings from the Child Opportunity Index speak volumes to the harm that neighborhood conditions can expose children to and explain the disparities I document above.
Researchers found that there is a wide variation in child opportunity across metros but an even greater divide within metro areas themselves. The most recent findings observed that children who live short distances from each other often experience entirely different neighborhood opportunity - only 9 percent of the disparity in neighborhood opportunity for children occurs between metros, while 91percent occurs within the same metro./27
Within the 100 largest metropolitan areas, 32 percent of families living in very-low opportunity neighborhoods live below the federal poverty line, compared to only 4 percent of families in very-high opportunity neighborhoods. Only 42 percent of young children in very-low opportunity neighborhoods are enrolled in preschool compared to 64 percent of young children in very-high opportunity neighborhoods. Recent findings also show that very-low opportunity neighborhoods are less likely to have green space and more likely to experience extreme heat, exposing children to worse health outcomes./28
The Child Opportunity Score for White children is three times that of the score for Black children, and two times that of the score for Latino children./29
Similarly, Black children are 7.6 times more likely and Latino children are 5.3 times more likely to live very-low opportunity neighborhoods than white children./30
Data on the various opportunity outcomes I describe above generally show that children of Asian and
More work must be done to better capture the disparities that children of Asian or
Additionally, while this research is illuminating, it is important to assert that the terminology it uses does not reflect the value or importance of any low-index neighborhoods or the children that live in them. Instead, the score a neighborhood receives reflects the level of disinvestment and neglect associated with the impacts of residential segregation throughout American history.
These are the results of failed AFFH enforcement and children growing up in "very-low or low opportunity" neighborhoods, particularly children of color, bear the brunt of this legacy.
History of AFFH Implementation The history of enforcement of the
As
It was not until 1995 - 27 years after enactment of the Fair Housing Act - that HUD adopted the first AFFH regulation. During those 27 years, HUD had been sued several times for failing to implement and enforce the AFFH mandate./33
The provisions of the 1995 AFFH regulation were extremely abbreviated. They required jurisdictions to conduct an analysis of impediments to fair housing, take appropriate steps to overcome those impediments, and maintain records documenting their analyses and the fair housing actions taken. HUD provided little guidance or oversight of these efforts, and over the following twenty years, few actions were taken by HUD's grantees to address the fundamental problems of discrimination, segregation and lack of access to opportunity that
By 2013, the Government Accountability Office, HUD itself, HUD's grantees and other stakeholders were all in agreement that the 1995 regulation had failed to fulfill its purpose.
In 2015, HUD adopted a new AFFH regulation. As described in more detail elsewhere in this testimony, the 2015 regulation responded directly to the requests from jurisdictions for greater clarity and guidance about what steps they should take to fulfill their AFFH obligations, as well as the weaknesses in the 1995 regulation that GAO had identified. Implementation of the new regulation began in 2016, and was to be phased in over the next several years.
In January, 2018, HUD effectively suspended the 2015 regulation by delaying for two years the deadline for grantees to submit their required fair housing plans./34
Since most jurisdictions would have been required to submit their plans during that time period, and would not have to update and resubmit their plans until the next Consolidated Planning ("ConPlan") cycle, this amounted an effective five-year delay in the implementation of the rule. In May, 2018, HUD withdrew the notice delaying submission of jurisdictions' fair housing plans, and withdrew the Assessment Tool local jurisdictions needed in order to be able to complete and submit those plans./35
This, too, was an effective suspension of the rule. In both cases, HUD directed its grantees to return to the process required under the 1995 rule, which had been widely deemed ineffective as a means to implement the
On
That rule, which is currently open for public comment, utterly fails to fulfill
The 2015 Rule Fully Aligned with the
In 2010, the GAO issued a report entitled, "Housing and Community Grants: HUD Needs to Enhance its Requirements and Oversight of Jurisdictions' Fair Housing Plans." (GAO-10-905) The report assessed both the extent to which HUD grantees adhered to HUD's guidance with respect to their required fair housing plans, known as Analyses of Impediments to Fair Housing Choice (AIs), and the adequacy of the AI process as a mechanism for HUD's oversight of its grantees' fair housing obligations.
GAO reviewed 441 AIs as part of its 2010 analysis. It found that 29 percent of those dated from 2004 or earlier, including 11 percent from the 1990s. 25 jurisdictions provided no AI at all, suggesting that they did not have one, and several provided documents that were so brief as to be questionable as AIs. GAO also analyzed 60 AIs that it deemed current (created between 2005 and 2010). It found that the vast majority of these had no timeframes for implementing their recommendations and lacked signatures of top elected officials, which HUD policy encouraged.
GAO concluded that these significant weaknesses in the AI process called into question its effectiveness as a system for oversight of grantees' fair housing performance. Its recommendations to HUD focused on the lack of a schedule for completing AIs, the lack of any format for the AIs, the lack of HUD review of the AIs, and the lack of sign-off on the AIs by key elected officials who would be responsible for ensuring their implementation. This last focus was important to ensure that the AIs would inform local decisions about the expenditure of housing and community development funds.
As GAO stated: "it is unclear whether the AI is an effective tool for grantees that receive federal CDBG and HOME funds to identify and address impediments to fair housing. HUD's limited regulatory requirements and oversight may help explain why many AIs are outdated or have other weaknesses.
Specifically, HUD regulations do not establish requirements for updating AIs or their format, and grantees are not required to submit AIs to the department for review. A 2009 HUD internal study on AIs, department officials, and GAO's work at 10 offices identified critical deficiencies in these requirements. For example, HUD officials rarely request grantees' AIs during on-site reviews to assess their compliance with overall CDBG and HOME program requirements, limiting the department's capacity to assess AIs' timeliness and content...In the absence of a department-wide initiative to enhance AI requirements and oversight, many grantees may place a low priority on enduring that their AIs serve as effective fair 13 housing planning tools. GAO recommends that, through regulation, HUD require grantees to update their AIs periodically, follow a specific format, and submit them for review."/37 The 2015 AFFH rule addressed all of the weaknesses identified in the GAO report, and included a number of other provisions that were critical for ensuring that grantees' fair housing plans were data-driven, reflected local conditions and priorities, informed decisions about how housing and community development funds would be spent, and held grantees accountable for making progress toward accomplishing the fair housing goals they established.
Among the notable provisions of the 2015 rule were the following:
1. A new, clearer definition of affirmatively furthering fair housing. This definition comports with the legislative history and judicial findings that explicate the intent of
2. A robust community engagement requirement. The 2015 rule requires jurisdictions to consult with a range of individuals and organizations, both private and governmental, with relevant knowledge and experience. Among those are "community-based and regionally-based organizations that represent protected class members, and organizations that enforce fair housing laws." (24 CRF Sec. 91.100(a)(1). Jurisdictions are required to consult with individuals and organizations that have direct experience with the issues and problems under consideration and that would be directly affected by the fair housing actions (or lack thereof) taken by the jurisdiction to address them. The public has access to the same data and information available to the jurisdiction for its fair housing planning purposes, and also has the opportunity to offer additional data and knowledge for consideration. Further, the draft AFH is to be made available for public comment before it is finalized, and the jurisdiction must explain why it declined to accept any comments offered, should there be any.
The 1995 regulation contained no community engagement requirements.
3. An analytical framework for jurisdictions to use to conduct their fair housing plans.
This analytical framework is known as an Assessment of
The Assessment Tool also walked jurisdictions through the identification of top local fair housing priorities to be addressed over the subsequent three- to five-year period (that is, the time period covered by the jurisdiction's ConPlan), and the establishment of metrics and timelines for assessing progress toward addressing those priorities. HUD completed an Assessment Tool for Local Governments, but was not able to complete the tools for public housing authorities or states before it suspended the AFFH rule under the Trump administration. The Assessment Tools were to be reviewed and updated, as necessary, every three years.
The 1995 rule did not contain any format for an AI. It was accompanied by a Fair Housing Planning Guide that offered recommendations for conducting analysis, but the guide was not formally linked to the regulation and, as GAO found, many jurisdictions did not follow its recommendations.
4. A uniform national set of data provided by HUD. This data set was intended to inform local analysis, which was to be supplemented by local data and knowledge. The data set was extensive, including information about local demographics (both current data and data on trends), housing stock (including details about each type of federally-assisted housing), measures of segregation, and various indicators for access to transportation, education and jobs, as well as measures of environmental hazards and concentrated poverty. The data tool, which was available to the public, included a set of maps enabling users to see how various data and trends played out across neighborhoods, both within the jurisdiction and within the larger region. Because there is not uniform national data available for everything a jurisdiction might need to consider - for example, data relevant to the housing needs of people with disabilities - the Assessment Tool provided information about where additional data for that jurisdiction might be found. In addition, the rule provided an opportunity for members of the public to offer both data and other types of information relevant to the fair housing issues under consideration.
The 1995 regulation did not provide any data, mapping capacity or other analytical tools for jurisdictions to use in the AI process.
5. A regular schedule by which AFHs were to be conducted. This was linked to the Consolidated Planning Cycle, with the AFH conducted first, so its findings could inform the ConPlan. The rule had a similar schedule for PHAs, linked to their five-year planning cycle. Further, the rule stated that AFHs must be updated in the event of major changes in the local housing market, such as those that might be caused by a hurricane or other natural disaster.
The 1995 regulation did not include any requirements about the timing for completion of AIs, although the Fair Housing Planning Guide suggested that they be conducted every three to five years. Nor did the 1995 regulation require AIs to be updated in the aftermath of a natural disaster or other major changes in the local housing market.
6. A requirement that the AFH identify and prioritize fair housing goals, with metrics and timelines for assessing progress toward accomplishing those goals. With the public input described above, the Assessment Tool guided jurisdictions to rank their fair housing goals according to their level of priority, and then develop specific metrics and timelines by which their progress toward achieving their highest-ranking goals would be measured. These concrete benchmarks were a critical part of the public accountability built into the 2015 rule.
The 1995 rule had no such requirements for jurisdictions to assess, with public input, which fair housing goals should have highest priority. Nor did it require jurisdictions to publish metrics and timelines for assessing progress toward those goals.
7. A requirement that the goals from the AFH be incorporated into the ConPlan or PHA plan and annual progress reports. This requirement was one of the most significant elements of the 2015 rule. By creating a direct link between the fair housing plan (the AFH) and the ConPlan (or, for PHAs, the five year PHA plan), the rule created a mechanism by which HUD could effectuate its statutory obligation to affirmatively further fair housing. This provision ensured that fair housing considerations related to ending systemic discrimination, dismantling segregation and creating equitable access to resources and neighborhood amenities for members of protected classes would be incorporated into the jurisdiction's decisions about how to deploy the housing and community development resources it received both from HUD and other sources. It ensured that fair housing planning did not take place in isolation and that it was part of the overall community planning process.
The 1995 rule did not create any link between the fair housing plan (AI) and the ConPlan or PHA plan. The result was that jurisdictions routinely failed to implement any of the recommendations of the AI and fair housing considerations did not inform housing and community development decisions.
8. A requirement to submit the AFH to HUD for review and acceptance. Under the provisions of the 2015 rule, jurisdictions were to submit their AFHs to HUD according to an established schedule. HUD had 60 days to review the AFH and determine whether or not it was acceptable. If an AFH was not deemed acceptable, HUD would provide the jurisdiction with specific comments about changes that were needed, and the jurisdictions then had an additional 45 days to make those changes. In this way, the rule anticipated that many jurisdictions might not have the capacity or experience to develop an acceptable AFH, especially the first time they went through this new process. The rule also stated that if HUD did not notify the jurisdiction of any shortcomings in its AFH within that initial 60-day review period, the AFH would be deemed accepted. With these provisions, the rule accounted for the potential need for some back and forth between HUD and the jurisdiction about how best to ensure that the AFH was complete and conformed to the regulatory requirements, while also ensuring the timely flow of CDBG and other HUD dollars. The rule provided that an accepted AFH was a prerequisite for the receipt of CDBG funds, thus underscoring the importance of jurisdictions taking seriously their own obligations to affirmatively further fair housing.
The 1995 regulation did not require jurisdictions to submit their AIs to HUD, nor did it require HUD to review its grantees' AIs. The rule did not link the AI and the ConPlan in any way.
Examples of Impact from Assessments of Fair Housing A total of 41 jurisdictions completed the Assessment of
As described by researchers at
In addition, they include dates by which the proposed actions will be completed, and indicate who has responsibility for achieving them.
To achieve those goals,
These are just of few of the goals set out in the AFHs of
As these AFHs illustrate, the fair housing plans developed under the 2015 AFFH regulation laid out concrete steps each jurisdiction would take step to address the fair housing barriers they identified. These plans are grounded in an analysis of local patterns of discrimination and segregation and public input about which fair housing barriers should be the highest priority to tackle in order to create more equitable access to community resources and overcome each city's legacy of discrimination and segregation. As they move forward with implementation of their plans, these cities will be enhancing their communities' health and vitality and providing the best possible future for their children.
Analysis of the Proposed 2020 AFFH Rule On
The proposed rule effectively eliminates the AFFH mandate of the Fair Housing Act and discards the equity and opportunity lenses that were key to the 2015 AFFH rule HUD seeks to replace. The proposed rule is premised on the notion that if jurisdictions remove the "barriers" to affordable housing development and let the market operate without constraints, it will solve their affordable housing problems and that, in turn, will solve our fair housing problems. It does not acknowledge systemic discrimination or segregation in any way and it completely ignores the connection between where one lives and the opportunities they may or may not have as a result. It ignores the multitude of disparities that have been created and fostered by persistent segregation or the role that decisions concerning the placement and design of housing and community development investments have on producing them. It has virtually no reference to protected classes and it does not require jurisdictions to provide meaningful explanations for how their housing and community development decisions will address the issues they choose to prioritize.
The proposed rule completely changes the concept of what it means to affirmatively further fair housing. Under the proposed rule, AFFH is defined as "advancing fair housing choice within the program participant's control or influence." "Fair housing choice" is defined as allowing individuals and families [to] have the opportunity and options to live where they choose, within their means, without unlawful discrimination related to [protected class status]." It consists of 3 components:
1. Protected choice, which means access to housing without discrimination.
2. Actual choice, which means not only that affordable housing options exist, but that information and resources are available to enable informed choice.
3. Quality choice, which means access to affordable housing options that are decent, safe and sanitary, and for people with disabilities, access to accessible housing as required under civil rights laws./44
Jurisdictions would meet this threshold by certifying, in conjunction with their ConPlans, that they will affirmatively further fair housing by identifying at least 3 goals to work toward addressing obstacles to fair housing choice "within their control or partial control." Fair housing obstacles can be chosen from among 16 pre-determined obstacles that HUD considers "inherent" barriers to fair housing choice. These are:
1. Lack of a sufficient supply of decent, safe, and sanitary housing that is affordable.
2. Lack of a sufficient supply of decent, safe, and sanitary housing that is affordable and accessible to people with disabilities.
3. Concentration of substandard housing stock in a particular area.
4. Not in derogation of applicable federal law or regulations, inflexible or unduly rigorous design standards or other similar barriers which unreasonably increase the cost of the construction or rehabilitation of low-to- mid price housing or impede the development or implementation of innovative approaches to housing.
5. Lack of effective, timely, and cost- effective means for clearing title issues, if such are prevalent in the community.
6. Source of income restrictions on rental housing.
7. Administrative procedures which have the effect of restricting or otherwise materially impeding the approval of affordable housing development 8. High rates of housing-related lead poisoning in housing.
9. Artificial economic restrictions on the long-term creation of rental housing, such as certain types of rent control.
10. Unduly prescriptive or burdensome building and rehabilitation codes.
11. Arbitrary or excessive energy and water efficiency mandates.
12. Unduly burdensome wetland or environmental regulations.
13. Unnecessary manufactured- housing regulations and restrictions.
14. Cumbersome or time-consuming construction or rehabilitation permitting and review procedures.
15. Tax policies which discourage investment or reinvestment.
16. Arbitrary or unnecessary labor requirements./45
With one exception, the availability of accessible housing units, which presumably means access to appropriate housing for people with disabilities, none of these goals relates to protected classes under the Fair Housing Act. Most of these goals are deemed "inherent" obstacles to fair housing choice without any explanation or justification. These include such items as design standards and building and rehabilitation codes and review procedures, rent control, "arbitrary or excessive" energy and water efficiency mandates, wetland or environmental regulations, tax policies that "discourage" investment or reinvestment, and arbitrary labor requirements. These terms are subject to widely varying interpretations and, with no requirements for jurisdictions to meaningfully explain why they chose particular goals or how the removal of "obstacles" would increase nondiscriminatory access to housing and neighborhood opportunity, jurisdictions will be able to spend federal dollars in ways that may further perpetuate segregation or known fair housing issues. Goals chosen from HUD's list need not be based in HUD-prescribed analysis or data. Jurisdictions would not be required to conduct an analysis of any chosen barrier or provide data to justify their decision. In the unlikely event that jurisdictions choose goals not enumerated in the proposed regulation, they would only be required to include a brief narrative of how those goals would affirmatively further fair housing. No fair housing analysis would be required.
After a jurisdiction has identified its goals and described those will be achieved in its ConPlan, it must report outcomes in its subsequent Consolidated Annual Performance Evaluation Reports (CAPERs). HUD will deem the jurisdiction's actions satisfactory if the steps the jurisdiction has taken are "rationally related" to its identified goals.
Under the Trump Administration's proposal, PHAs would no longer be required to conduct a fair housing analysis. Instead, they would have to certify that they have consulted with their local jurisdiction about how to affirmatively further fair housing and that they will carry out their plans in conformity with applicable civil rights laws.
The proposed rule also eliminates a separate fair housing planning process or document, and any separate requirement for a community engagement process designed to elicit fair housing problems. Instead, fair housing considerations, to the extent that they can actually be assessed under the other components of the proposed rule, are obscured and buried among existing community planning requirements.
HUD also plans to conduct what it terms a "jurisdiction risk analysis" (see FR 6123-P-02 Sec.5.155), under which it would rank jurisdictions each year and sort them into three categories, with those at the top being deemed outstanding and those at the bottom, which would be deemed failing and in need of an enhanced review. Jurisdictions will be ranked against each other in six groups, disincentivizing collaboration in favor of arbitrary competition:
i. Jurisdictions with population growth and tight housing markets.
ii. Jurisdictions with population growth and loose housing markets.
iii. Jurisdictions with population decline and tight housing markets.
iv. Jurisdictions with population decline and loose housing markets.
v. States with significant population growth.
vi. States without significant population growth.
Low-ranking jurisdictions may have their certifications questioned, and jurisdictions ranked "outstanding" would receive potential benefits for the next 24 months, including additional points in competitive funding programs, and eligibility for additional funds recaptured or reallocated from various programs. None of the variables that HUD suggests it may use for this analysis relate to actual fair housing barriers and it does not propose to break out the data out by race, ethnicity, or any other protected characteristic.
A jurisdiction's "outstanding" rank could only be challenged if it has been found in violation of civil rights laws, as adjudicated by a court or administrative law judge in a case or complaint brought by HUD or DOJ. No other enforcement action outcomes could be used as justification for the removal of a jurisdiction's "outstanding" designation. This is especially concerning as 21 the majority of reported fair housing complaints are investigated by private, nonprofit, fair housing organizations tasked with providing fair housing services in local housing markets./46
Furthermore, it is highly unlikely that any jurisdiction that does have a civil rights action taken against it by HUD or DOJ could possibly lose its "outstanding" grade. The overwhelming majority of HUD and DOJ enforcement actions result in settlements in which admission of guilt is seldom made and very few, if any, receive a formal adjudicated decision.
Of additional concern is the likelihood that under the ranking rubric HUD is proposing larger cities will be disproportionately ranked lower than smaller cities that don't face the same types of housing market conditions. This ranking system will not only falsely qualify cities and states according to HUD's flawed rubric, but it will also negatively impact cities with larger populations and with the highest concentrations of people of color and other protected classes.
As I have discussed, the Trump Administration's proposal is not a fair housing rule. Instead, it is an effort to promote deregulation based on the unfounded notion that an unfettered market will serve the needs of all people fairly and efficiently. The experience of the foreclosure crisis taught us that when left to its own devices, the private market will not serve communities of color and other marginalized communities. In the run up to the foreclosure crisis, previously disinvested communities of color were targeted for predatory, unsustainable loans with toxic terms and feature. And in the absence of federal affordable housing programs, the private market has not closed the gap between the supply of and demand for affordable housing.
Impact of the Rescission of the 2015 AFFH Rule
If HUD rescinds the 2015 AFFH rule and adopts its proposed 2020 AFFH rule, it would be a major setback for fair housing generally, as well as for HUD's implementation of its own statutory AFFH obligations. The result would be the loss of a number of key elements of the 2015 rule that were critical for its effectiveness in fulfilling that statutory mandate. Among those would be the following: 1. Loss of a definition of AFFH and a process for implementing it that is consistent with Congressional intent. As described above, the legislative history and nearly 50 years' worth of judicial interpretations of the AFFH provision of the Fair Housing Act make it clear that
2. Elimination of any requirement for jurisdictions to undertake an assessment of local residential patterns of discrimination and segregation. Not only does the proposed 2020 AFFH regulation lack a definition of AFFH that reflects
3. Loss of a data-driven process and elimination of fair housing planning tools that were extremely valuable to HUD's grantees. Decisions about how to spend housing and community development dollars, and how to use the other resources and authorities a jurisdiction has to influence local development patterns, are most effective when they are based on careful review and analysis of relevant data. The 2015 rule incorporated a robust analytical process that was shaped by the critical fair housing questions to be addressed, and incorporated not only quantitative data from HUD and other sources but also other information available to jurisdictions or provided by local stakeholders. The proposed 2020 rule requires no data - from any source - and no analysis.
4. Abandonment of an approach that focuses on the intersection between housing and other key indicators of opportunity and the strategic decision-making that an intersectional analysis can foster. HUD's 2015 AFFH rule was based in part on recognition that the neighborhood in which a person lives has an enormous impact on that person's life: educational and employment opportunities, access to healthy food and safe, reliable transportation, the air and water quality to which they are exposed, their opportunities to build wealth and many others. Over many decades, access to these and other resources and opportunities have been withheld from people and neighborhoods of color through the discriminatory policies and practices of government and the private sector, resulting in tremendous racial and ethnic disparities that harm our nation's cohesion and prosperity. The many strands of work involved in these different fields - housing, community and economic development, education, employment, environment, public health, and the like - often operate in silos and without knowledge of what those in other silos may be planning, despite the fact that all may be targeting many of the same communities. Recognizing these intersections and considering both how to coordinate different planning processes and leverage multiple funding streams leads to the most efficient use of limited resources and creates the most positive impacts. That is what the 2015 rule encouraged. The proposed 2020 rule does not even acknowledge the role of community development efforts in addressing discrimination, segregation and concentrated poverty, despite HUD's role in funding those efforts, let alone the 23 intersection between housing and community development and other fields. The narrow perspective embodied in the proposed 2020 rule will minimize the impact of any efforts it may spur and delay accomplishment of the goals
5. Elimination of meaningful community engagement in identifying and setting priorities among key fair housing goals. The 2015 AFFH rule had a broad set of provisions designed to ensure that the people most affected by the fair housing challenges and barriers in the community had a seat at the table when those issues were discussed and priorities for addressing them were decided. The stakeholders involved included members of protected classes and organizations representing them, agencies that provide a wide range of services (housing, health, social services and others) to those people, and groups involved in fair housing enforcement. In addition, the regulation recommended that jurisdictions consult with a variety of other players, such as other local and regional government agencies, including those involved in transportation and other forms of regional planning. Further, the regulation set out requirements designed to ensure that community members with disabilities and those with limited English proficiency were aware of and could participate in the deliberations. It required a public hearing and other opportunities for comment on a draft AFH. Taken together, these requirements provided for an unprecedented level of access and participation by a wide range of community stakeholders. As a result, the AFH was predicated on a sharper and deeper understanding of the issues community residents identified as being most pressing. In turn, this meant that stakeholders were more invested than ever before in the goals articulated and the strategies developed to achieve them. The AFH process facilitated planning that truly reflected the local community and took account of its challenges and strengths. The proposed 2020 rule eliminates any fair housing planning separate from the ConPlan process, which is aimed at a very different result, namely determining how funds should be spent, and its adoption would eliminate an important component of the 2015 rule that created a shared understanding of the community's past and a shared vision for its future.
The Proposed 2020 AFFH Rule Does Not Satisfy the
Ultimately, HUD's proposed AFFH rule does not satisfy the "affirmatively further" mandate
The proposed rule outlines a process whereby a local jurisdiction may certify compliance
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