The Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, prohibits discrimination in housing because of race, color, national origin, religion, sex, familial status, and disability. The law gives HUD two overarching mandates: (1) to combat discrimination in real estate transactions and (2) to affirmatively further fair housing. The latter, HUD’s “AFFH” mandate, requires HUD and recipients of HUD funds to take additional steps towards ensuring fair housing beyond simply pledging not to discriminate; they must also proactively overcome patterns of segregation, foster inclusive communities, and work to end discrimination in housing.
Over time, HUD has promulgated regulations to interpret the Fair Housing Act and strengthen it, including regulations to implement the AFFH mandate—the latest of which the Biden administration is expected to release this summer. In advance of the Biden administration’s rule, this explainer provides an overview of how the regulations implementing AFFH have evolved, key issues raised in the rulemaking process, and where AFFH is headed.
“[HUD] shall administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies [of the Act].” – Fair Housing Act of 1968
Congress enacted the Fair Housing Act in April 1968 as an amendment to the Civil Rights Act of 1968. The amendment, sponsored by Senators Walter Mondale (D-MN) and Edward Brooke (R-MA), was the culmination of several previously failed attempts to legislate fair housing protections federally. The Fair Housing Act passed just a week after Dr. Martin Luther King Jr.’s assassination and in response to the Kerner Commission, which warned policymakers that the country was “moving toward two societies, one black, one white—separate and unequal.” While the legislation was a key civil rights victory, compromise language that left HUD with little enforcement power was needed to secure the support of then-Senate Minority Leader Everett Dirksen (R-IL) and to move the bill forward.
When originally passed, the Fair Housing Act covered only four protected classes: race, color, religion, and national origin. But in the years since, Congress expanded coverage of the Fair Housing Act to provide civil rights protections to other categories of people. Sex was added as a protected class in the Housing and Community Development Act of 1974 and disabilities and familial status were added as part of the Fair Housing Amendments Act of 1988. Both legislative and administrative actions to date have also strengthened HUD’s enforcement powers.
Efforts to implement the specific AFFH mandate were limited in the years following the Fair Housing Act’s enactment—until new regulations, legal decisions, and congressional action in the 1980s reaffirmed the mandate. It was not until 1988 that HUD developed its “Fair Housing Review Criteria,” outlining requirements for Community Development Block Grant program recipients to certify how they would affirmatively further fair housing.
Below is a review of some of the most recent revisions to regulations implementing the AFFH mandate and the key issues raised as they advanced through the federal rulemaking process. Each iteration has grappled with a fundamental question—what is the best way to affirmatively further fair housing?
The Biden administration is expected to release a new rule, finalizing the 2021 interim rule, this summer. In evaluating this final rule, many fair housing groups and advocates will be looking for full reestablishment of the 2015 standards for fair housing planning and a requirement for grantees to update their fair housing plans (which may have not been updated since before the 2015 AFFH rule went into effect). They also hope that a new rule will address the features they suggested to strengthen the 2015 rules, such as the use of quantifiable and time-based metrics, enforcement mechanisms, and performance plans in their fair housing plans.
On the other hand, many trade associations, housing agencies and providers, and other industry groups, citing real and significant burdens imposed by the 2015 Rule, desire an AFFH rule that streamlines fair housing responsibilities and provides enough technical assistance and resources to aid in fair housing planning. In their view, reducing the administrative burdens posed by the 2015 rule would enable them to more efficiently distribute resources in response to local housing needs.
When HUD releases the new AFFH rule, we can expect further discussion and debate over how best to enforce critical federal fair housing protections while ensuring that administrative and other burdens imposed on local communities are not unduly burdensome.
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