The federal Fair Housing Act of 1968 made it unlawful to refuse to sell, rent, or otherwise make unavailable or deny a dwelling to any person based on race, color, religion, national origin, sex, handicap, or familial status. The Fair Housing Act now extends beyond this non-discrimination mandate, requiring the U.S. Department of Housing and Urban Development (HUD) to administer its programs and activities relating to housing and urban development in a manner that affirmatively furthers its purpose. Since the enactment, most courts have held that HUD and its grantees have a duty to comply. These courts have held that in order to meet their obligations, funding recipients must, at a minimum, ensure that they make decisions informed by preexisting racial and socioeconomic residential segregation.
In 2015, under the Obama Administration, HUD published the “Affirmatively Furthering Fair Housing” rule imposing a regulatory obligation upon HUD grantees to comply with Affirmatively Furthering Fair Housing (AFFH) requirements. Last year, the Trump administration without notice and comment replaced this rule with the “Preserving Community and Neighborhood Choice” (PCNC) rule, redefining the AFFH obligations, among other things.
On June 10, 2021, HUD published an interim final rule “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications” to, in part, “restore certain definitions and certifications that have been through notice-and-comment scrutiny and that are grounded in legal precedent to its regulations implementing the Fair Housing Act’s requirement to affirmatively further fair housing.” This interim rule is narrowly focused “to withdraw the PCNC rule definition” and “to reinstate a definition that properly states [the AFFH] duty.”
The interim final rule restores certain definitions related to the AFFH obligations and certification requirements to those promulgated in the 2015 AFFH rule. These definitions include Affirmatively Furthering Fair Housing, Data, Disability, Fair Housing Choice, Housing Programs Serving Specified Populations, Integration, Meaningful Actions, Protected Characteristic, Protected Class, Racially or Ethnically Concentrated Areas of Poverty, Segregation, and Significant Disparities in Opportunity.
The interim final rule further states that HUD will assist grantees in carrying out their obligations by engaging in fair housing planning, including Assessment of Fair Housing (AFH) and Analysis of Impediments to Fair Housing Choice (AI). However, the rule does not mandate any specific fair housing planning mechanism upon grantees themselves. Grantees may choose other appropriate means to support their AFFH certifications.
Until the rule is finalized, HUD will restore the AFFH Rule Guidebook published for the 2015 rule as it may assist grantees in identifying key issues and strategies for compliance. Similarly, HUD will also make the Assessment Tool for Local Governments and the Assessment Tool for Public Housing Agencies available.
The rule is scheduled to go into effect on July 31, 2021. HUD will continue to solicit comments until July 12, 2021, so that it may consider public views before the effective date. HUD strongly encourages commenters to use the Federal eRulemaking Portal at www.regulations.gov for submissions.
Other proposed rules relating to the Fair Housing Act are anticipated in the upcoming months.
If you have any questions about this legal update or the Fair Housing Act, please do not hesitate to reach out to the authors or any of your contacts at Morris, Manning & Martin, LLP.