Introduction

Fair Housing

Promises, Protests, and Prospects for
Racial Equity in Housing

JUSTIN P. STEIL, NICHOLAS F. KELLY,
LAWRENCE J. VALE, AND MAIA S. WOLUCHEM

Introduction: A New Round of Fair Housing Struggle

In the United States, the paired struggle for fairness in housing and for equality of access to opportunity is as old as the nation itself. It is a struggle with many battles, yielding both significant gains and lamentable reversals. This book centers on the most recent of these struggles: a regulation, little known outside housing policy circles, called the Affirmatively Furthering Fair Housing (AFFH) Rule, which was issued by the Department of Housing and Urban Development (HUD) in 2015. The AFFH Rule was immediately attacked by a variety of critics, suspended by the Donald Trump administration in 2018, and then rescinded in 2020. But the debate leading up to the implementation of the rule and the lessons learned from it have the potential to reshape national housing policy, local government actions to encourage more equal access to place-based opportunities, and the landscape of racial equity more broadly. At a time of renewed national reckoning about the role of structural racism in American society, debate over the AFFH Rule is a product of that struggle and its microcosm. As future administrations consider how to address intertwined concerns of housing affordability and racial disparities in access to resources, reflection upon the AFFH Rule will be a crucial starting point.

The Affirmatively Furthering Fair Housing Rule

On July 15, 2015, President Barack Obama’s HUD secretary, Julián Castro, announced the finalization of the AFFH Rule, the most significant federal effort in a generation to address long-standing, pervasive residential segregation by race and to increase equality of access to place-based opportunities, such as high-performing schools or access to jobs. Pointedly, Castro made the announcement in Chicago, one of America’s most racially segregated metropolitan areas.

Nearly fifty years earlier, the Fair Housing Act of 1968 had outlawed the denial of housing on the basis of race, color, religion, or sex. That landmark legislation had also instructed all executive departments and agencies to administer their programs “in a manner affirmatively to further” fair housing.¹ Although federal officials occasionally made efforts to address the separate and unequal neighborhoods that have characterized U.S. metropolitan areas for more than a century, the Fair Housing Act’s mandate to take active steps to reduce disparities in access to place-based opportunities essentially withered on the vine. Indeed in the United States, the history of fair housing, and of racial equity more broadly, has been a famously long struggle, fraught with repeated cycles of promises, protests, backlash, and uncertain prospects for success.

Over the five decades since the passage of the Fair Housing Act, Republican and Democratic administrations have largely declined to require states or localities to take meaningful steps to reduce segregation or disparities in access to opportunity as the act’s mandate to affirmatively further fair housing required. While levels of Black-white segregation have declined somewhat since the Fair Housing Act’s passage, they remain high, and levels of Latinx-white segregation have remained largely unchanged over the past half-century.² Research has consistently found that higher levels of metropolitan-area segregation are associated with lower levels of socioeconomic mobility for all residents and with negative impacts on the life chances of African American and Latinx children and young adults,³ including wider gaps in educational attainment, employment, and earnings;⁴ negative health outcomes;⁵ and reduced political power.⁶ Deindustrialization, suburbanization, and widening income polarization have interacted with continuing racial residential segregation to contribute to the creation and intergenerational transference of neighborhood contexts characterized by concentrated, racialized poverty.⁷

With this mounting evidence of associations between segregated metropolitan areas, high-poverty neighborhoods, and negative outcomes for social mobility and socioeconomic opportunity, the Obama administration devoted substantial efforts to create the AFFH Rule to finally implement the 1968 act’s mandate. As enacted, the AFFH Rule requires HUD to provide grant recipients with uniform data about residential segregation and disparities in access to place-based resources and opportunities, and HUD created a publicly accessible website that generates customized maps and tables for each jurisdiction and its surrounding region. The rule requires HUD grantees to engage with their residents to create local strategies to address disparities by race, national origin, family status, disability, and other protected characteristics in access to amenities or risks such as quality schools, proximity to employment, and exposure to environmental hazards. The rule then requires municipalities to submit plans to HUD, called Assessments of Fair Housing (AFHs). By mandating local creation of specific measurable goals and actions to reduce segregation and increase access to opportunity, the AFHs link these planning and assessment efforts to the availability of future HUD funding.⁸

To operationalize the AFFH Rule, HUD created the AFFH Assessment Tool, which contains questions that guide grantees through effective completion of their fair housing plans. The assessment tool has several key elements, including a community participation section that requires municipalities to gather public input on fair housing issues, make their draft plans public, solicit community feedback, and address those comments and concerns before submission. It also asks municipalities how they have addressed prior fair housing goals and how that progress or lack of progress has influenced the selection of current goals. Municipalities are required to analyze the HUD-provided data and additional local data, including data on segregation and integration along lines of race and ethnicity, national origin, English proficiency, and disability; racially or ethnically concentrated areas of poverty; disparities along protected class lines in access to high-performing schools, employment, transportation, low-poverty neighborhoods, environmentally healthy neighborhoods, and disproportionate housing needs; data on access to opportunity for the residents of publicly supported housing; data on access to opportunity for individuals with disabilities; and an analysis of fair housing enforcement, outreach capacity, and resources.

Based on this assessment of data and information gathered during public engagement activities, the assessment tool asks grant recipients to identify pressing local fair housing challenges and then to pinpoint and to prioritize the factors that contribute to those issues, particularly those that limit realistic opportunities to live in a variety of neighborhoods and drive disparities in access to opportunity. Finally, the tool asks grant recipients to set goals designed to overcome those contributing factors, to clarify how each goal addresses that contributing factor, and to set out metrics, milestones, time frames, and parties responsible for achieving the goals. Crucially, to ensure implementation, HUD requires that metrics, milestones, and strategies be included in subsequent Consolidated Plans, Annual Action Plans, and Public Housing Authority Plans.

HUD timed the due dates for the AFHs to precede the due dates for Community Development Block Grant (CDBG) Consolidated Plans and Public Housing Authority Plans, which must include fair housing elements from the AFHs. The AFFH Rule obligates HUD to review fair housing plans within sixty days; any plan not reviewed within sixty days is deemed accepted. HUD reviews each AFH to evaluate whether the program participant has met the rule’s requirements for analysis, assessment, and goal setting, and the rule mandates that HUD reject an AFH if it is found to be inconsistent with fair housing or civil rights requirements or is substantially incomplete. For any AFH that is not accepted, the rule requires HUD to provide in writing the reasons for nonacceptance and guidance as to how the AFH should be revised to be accepted.

In Fiscal Year 2019, HUD’s Community Planning and Development department disbursed $7.7 billion in block grants and related funding to more than 1,200 state and municipal governments. The block grant programs all require state and local governments to conduct annual and long-term strategic planning for their use of these funds in what is known as the Consolidated Plan process. Withheld block grant funding for failure to complete the AFH process would represent a significant financial burden for some HUD program participants—and potentially an effective incentive to comply with the AFFH regulation. Similarly, HUD also requires public housing agencies to conduct annual and long-term planning and produce a Public Housing Authority Plan. To receive block grant funds, program participants must submit a Consolidated Plan to HUD every three to five years and certify that they will comply with all statutory and regulatory requirements, including the AFFH provision.

In the process of its development and after its release, the AFFH Rule was praised and criticized. From the Right, it was decried as social engineering and a federal takeover of the suburbs.⁹ Conservative members of Congress tried repeatedly to repeal or undermine the rule after its passage.¹⁰ From the Left, it was criticized as unlikely to be effective, given only blunt enforcement mechanisms.¹¹ Some took issue with its focus on racial segregation rather than racial equity.¹² Yet others heralded the rule as the most significant step forward for addressing place-based inequality in the United States since the passage of the Fair Housing Act itself in 1968.¹³

This book analyzes multiple dimensions of this new rule, including failures of past efforts to reduce segregation, how the AFFH Rule was crafted, what the effects of the rule have been so far, and how it interacts with other pressing contemporary housing issues, such as gentrification. Work on the book began with a series of public workshops in 2016 about the AFFH Rule as it was initially being implemented. We have worked to update the chapters as much as possible, as the landscape has changed dramatically over and over again in the intervening years. The book lays out criticisms of the AFFH Rule from the Left and the Right and then, given the efforts of the Trump administration to curtail it, asks where we can go from here. By examining the near past and the distant past, we seek to identify promising new directions for future policies and practices.

The Role of Place in Socioeconomic Mobility and Racial Equity

Over the past half-century, socioeconomic mobility in the United States has declined dramatically. Ninety percent of children born in the 1940s grew up to earn more than their parents, compared to only 50 percent of children born in the 1980s.¹⁴ These backward steps have not been experienced evenly. As socioeconomic mobility has declined broadly across America, the economic gains experienced by African American households immediately following the civil rights movement have largely reversed. The majority of African American households whose parents were in the middle class in the post–civil rights era have experienced downward mobility since, moving lower in the income distribution today than they were in their parents’ generation.¹⁵

These trends are even more dramatic when considering how directly place shapes a child’s chances of moving up the economic and social ladders. Neighborhood characteristics are strong predictors of upward socioeconomic mobility, especially for children starting out in the lower half of the income distribution.¹⁶ In particular, the degree of racial and economic segregation in a metropolitan area dramatically influences children’s upward economic advancement. The socioeconomic characteristics of neighborhoods are particularly powerful predictors of the educational and economic attainment of African American and Latinx young adults, whose neighborhoods are by and large physically separate and materially unequal from the neighborhoods in which white young adults grow up.¹⁷ Today, residential segregation by race nationwide remains high, and income segregation is increasing, exacerbating gaps in intergenerational mobility by race.¹⁸

These trends are intertwined with a widening wealth gap that further reinforces economic inequality, particularly by race. For the majority of U.S. homeowners, their homes are their most valuable assets. Thus, one reason for the substantial racial and ethnic disparities in wealth is the disparity in rates of homeownership and in its financial returns. Homeownership rates in the United States reached record highs in 2004 and 2005, when more than three out of every four (76 percent) white non-Hispanic households were homeowners. But even at this peak, only half of Black households (49 percent) and Latinx households (50 percent) owned their own homes.¹⁹ The economic growth in the first decade of the 2000s and the devastating recession beginning in 2008 were caused in part by the increased global investment in U.S. homes, commodified through the packaging of home mortgage loans into securities. The precipitous decline in home values and the increased rate of foreclosures after 2008 contributed to a widening of the racial wealth gap between white and non-white households. In 2016, the median white household had a net worth of $171,000, nearly ten times the median Black household’s net worth of $17,600 and roughly eight times the median Latinx household’s net worth of $20,700.²⁰ By 2019, the white homeownership rate had fallen to 73 percent, while the Black homeownership rate had fallen to 41 percent and the Latinx rate to 47 percent—leaving a 26 to 32 percentage point gap in homeownership rates by race and ethnicity.²¹ Even looking solely at those who do own their homes, white homeowners have substantially more net housing wealth, or home equity, than non-white homeowners.²²

As homeownership rates have declined over the past decade, housing costs for renters have risen—in many cities, faster than renters’ incomes. Increasing rent burdens for low- and moderate-income households have contributed to the rise of the most active local and national movements for affordable housing in recent memory. For instance, in 2018 and 2019, tenants’ rights activists in Oregon and California won the passage of state laws enabling rent regulation, while tenants in New York strengthened existing rent regulations. Affordable housing organizers in Minneapolis worked with the mayor and city council to enact a “Minneapolis 2040” plan that changed zoning: across the roughly 75 percent of the city previously zoned for single-family homes, construction of three-family (or more) homes is now generally allowed.²³ Similarly, the Oregon state legislature enacted a law in 2019 requiring the creation of multifamily zoning in municipalities statewide. At the same time, conversations about racial equity, especially after the rise of the Black Lives Matter movement, continue to capture public attention and spur a focus on the wide and persistent racial wealth gap as well as racial disparities in measures of access to opportunity.

A home, of course, is also much more than just an asset. The level and quality of neighborhood-based resources are powerful predictors of individual life chances. The condition, security of tenure, and location of one’s home, whether owned or rented, all have substantial impacts on one’s health, well-being, and socioeconomic mobility. The structure of governance in the United States makes access to crucial public services and resources, such as schools or policing, dependent on the location of one’s home.²⁴ In consequence, the level or quality of these services varies substantially based on jurisdiction or neighborhood. Indeed, differentiation by residential location in the United States is part of a spatial structure that organizes our social lives.²⁵

Neighborhoods are not just separated by race, ethnicity, and income; they are also unequal.²⁶ The average Latinx or African American individual lives in a neighborhood with a substantially higher poverty rate (8 to 10 percentage points) and a lower-performing local school (16 to 22 percentage points) than the average white individual.²⁷ Neighborhoods shape families across generations, and the inequality of those neighborhoods must be conceptualized as a central dimension of social stratification and racial inequality in the United States.²⁸

Because housing policy lies at the intersection of declining socioeconomic mobility and persistent racial and ethnic inequality in wealth and income, housing in recent years has become an issue of greater significance in national politics than has been seen in decades. From mortgage underwriting to foreclosures, rent regulation to evictions, housing cost burdens to exclusionary zoning, gentrification and Yes in My Backyard (YIMBY) organizations, housing policy issues have inspired an array of contemporary local and national social movements. The AFFH Rule connects these movements to the ongoing struggle for racial equality. It also creates leverage to make real changes in local and regional policy.

Nationally, the AFFH Rule has been referenced and expanded upon by a range of actors. Democratic presidential candidates in the 2020 cycle, including Bernie Sanders, Elizabeth Warren, Cory Booker, Kamala Harris, Pete Buttigieg, Amy Klobuchar, and former HUD secretary Julián Castro, all released housing plans that, at least in part, aimed to address disparities in access to place-based resources and opportunities. Sanders proposed national just-cause eviction requirements and rent regulation as well as investments in public housing and housing choice vouchers. He also proposed making federal housing and transportation funds contingent on remedying restrictive zoning ordinances and using HUD’s authority to encourage state and local land-use policies that advance racial, economic, and disability integration. Warren proposed an expansive plan to reform land-use rules that restrict affordable housing construction and further racial segregation and recommended investments that would begin to close the racial wealth gap through targeted homeownership assistance. Warren’s proposal also increased funding for public housing and strengthened protections for renters. Castro released a detailed plan to expand the housing choice voucher program, prohibit discrimination based on source of income, create a rent-ers’ tax credit, invest in subsidized housing, create federal land-use guidelines, and to use an expanded CDBG program to require zoning reforms that would advance fair housing and reduce racial disparities. Harris proposed a federal tax credit designed to ease the burden of rents for low- and moderate-income households. Booker proposed a federal tax credit for renters paying more than 30 percent of their income on rent and offered policies designed to restrain exclusionary zoning.

The eventual Democratic party candidate, Joe Biden, ultimately proposed a plan also aiming to directly address place-based racial disparities. His plan included restoring and implementing the AFFH Rule, conditioning receipt of federal CDBG and transportation funding on the elimination of exclusionary zoning regulations, strengthening the Community Reinvestment Act, maintaining existing disparate impact liability under the Fair Housing Act, reinstating the power of the Consumer Financial Protection Bureau to investigate discriminatory lending, providing housing choice vouchers to all eligible households, creating a new first-time homebuyer tax credit, creating a new renter’s tax credit, helping tenants facing eviction access legal assistance, and allocating increased funding and tax credits to affordable housing production. Perhaps just as important as the details of any of these plans is the fact that these presidential candidates generated new public dialogue about housing affordability and racialized wealth disparities that had been largely absent from previous campaigns.

This public dialogue is further strengthened by the immense power exercised through protest, particularly in the wake of the intertwined health, social, economic, and political crises of 2020. The unprecedented force of the 2020 resurgence of the Black Lives Matter movement has moved conversations about the pervasiveness of white supremacy in U.S. society to the forefront, contributing to significant changes in public perception about racial discrimination, particularly among white audiences. Importantly, the movement has sharpened this growing recognition of the nature of racial discrimination faced by Black Americans, providing a clearer lens through which to view the AFFH Rule.

In 2016, the Movement for Black Lives platform articulated a call to end the war on Black people and a call for reparations—including reparations to atone for long-standing housing discrimination. In addition, the movement demanded divestment from policing and prisons; investment in education and health care; community control over schools and public safety, together with participatory budgeting processes; and reforms to existing political processes that would support independent Black political power and Black self-determination. The platform also called for economic justice, including reforming the tax code, strengthening workers’ rights, devoting resources to encourage cooperative or collective ownership, and delivering a right to land, clean air, clean water, and housing. Although the 2020 protests were sparked initially by police violence in a context of enduring white supremacy, the participation of millions of Americans nationwide helped underscore a growing understanding that racism must be understood not as individualized prejudice but as systematic white supremacist subordination—as ideologies, policies, and practices that normalize and perpetuate racialized inequalities. This movement pointedly underscores the deep historical roots undergirding the AFFH Rule, giving it renewed urgency. Seen this way, the racialized disparities in homeownership rates or neighborhood resources that the rule was designed in part to address must be seen as products of racism and a white supremacist social and economic order.

In response to the momentum of the Black Lives Matter movement, Donald Trump countered by continuing to stoke division, especially along racial lines. Among many elements of his response, he reasserted his widespread resentment of protestors and dissent, reaffirmed support for white supremacists, and continued to double down on his racist and divisive rhetoric. Reminiscent of his 2016 campaign, his calls for “law and order” were shouted over the calls for justice, even as protests continued through all fifty states throughout the summer of 2020. His actions illuminated a clear connection between racist ideologies and the policy decisions that uphold these divisions, especially urban and regional policies that continue to enable neighborhood-based socioeconomic and racial inequality. In July he tweeted:

Critics and pundits widely viewed Trump’s invocation of the AFFH Rule as an attempt to reverse declining suburban support by further inflaming racial divides. In the following weeks, Trump continued this rhetoric, evoking segregationist fearmongering from the 1960s. He claimed that because of the AFFH Rule, “Your home will go down in value and crime rates will rapidly rise” and that the rule “will totally destroy the beautiful suburbs. Suburbia will be no longer as we know it.”²⁹ On July 23, 2020, the Trump administration issued a final rule titled “Preserving Community and Housing Choice” that repealed the 2015 AFFH Rule.

These statements that presaged the rule’s repeal highlight the ways that the struggle for racial justice extends across every urban block and suburban front yard. In so doing, it clarified and amplified what is at stake in the fight to revive—or “end”—the AFFH Rule. Addressing racial disparities in housing produced by white exclusion and resource hoarding requires a complex reimagining of multiple dimensions of our collective ways of life. The work of the AFFH Rule is to root out the ways in which white supremacy has become physically embedded in the American landscape.

The Meaning of Fair Housing

Although much of the dialogue around housing centers on matters of affordability and only implicitly engages issues of fairness, the dialogue is not often explicitly framed in terms of “fair housing.” It is worth stepping back, then, to ask what “fair housing” is and what acting “affirmatively to further” it should entail. The dual mandate of the Fair Housing Act, to end discrimination and “to provide . . . for fair housing throughout the United States,” raises the question of what is—or should be—“fair” about housing.

As Alexander von Hoffman illustrates in Chapter 1 of this volume, civil rights activists created the “open housing” movement (as it was originally called) during World War II. The movement for open housing gained momentum in the 1950s and 1960s through challenges to government-sponsored or enforced housing segregation and to the widespread use of racially restrictive covenants that prohibited non-white or non-Christian individuals from purchasing housing. The term “open housing” captures fair housing’s first meaning in its goal of opening housing opportunities that were denied on the basis of race or religion. The second, affirmative meaning of fair housing—to reduce segregation and increase access to opportunity—embodies a broader and arguably more controversial set of policy aspirations for a more inclusive, equal, and “fair” society. One of the Fair Housing Act’s sponsors, Senator Walter Mondale, saw the goal of the act ultimately as the creation of “truly integrated neighborhoods.”³⁰

How exactly one interprets what it means to create fairness in housing, however, is complex. The AFFH Rule identifies a mandate to “overcome the legacy of segregation, unequal treatment, and historic lack of access to opportunity in housing,” but what form that overcoming should take has been a crucial point of division in housing policy for decades. As Edward Goetz points out in Chapter 5, this mandate could be interpreted in at least three ways: first, as opening up exclusionary communities to new residents; second, as dismantling structural incentives that perpetuate racially segregated living patterns; or third, as working to actively integrate residential patterns, even if this integration has the consequence of significantly changing the composition of neighborhoods that have historically been predominantly populated by people of color. The chapters that follow explore the tensions among these different interpretations.

The History of Fair Housing: From 1866, to 1968, to 2015

To fully understand the significance of housing policy in reproducing inequality and to effectively engage in the contemporary policy debates regarding housing, it is revealing to look back at two key historical moments: first, the Reconstruction period and subsequent rise of racial residential segregation; and second, the civil rights movement and the push for the Fair Housing Act of 1968. The advances and the setbacks of these earlier rounds of struggle frame the challenges faced by the AFFH Rule.

The Reconstruction Amendments and the Civil Rights Act of 1866

In the midst of the Civil War, Congress passed the Thirteenth Amendment to the Constitution, and in 1865, the states ratified it, abolishing slavery and involuntary servitude throughout the nation and giving Congress the power to enact further legislation to enforce the amendment. Almost as soon as the Civil War had ended and the Thirteenth Amendment had been ratified, however, white officials in the South began to resist emancipation. States and municipalities enacted Black Codes (laws that applied only to African American individuals) to re-create the social and economic structure of slavery, criminalizing “vagrancy” to force freed individuals to sign labor contracts with white employers, allowing sheriffs to hire out Black “vagrants” to white employers to work off their sentences, and providing that Black employees who left before the end of a contract would forfeit all their wages for the year and could be arrested and returned to their “masters.”³¹ State and local officials generally refused to enforce whatever limited rights their newly enacted state constitutions actually granted to African American residents, white citizens used violent intimidation and terror to oppress Black neighbors, and white planters collaborated to compel freed slaves to work for their former masters or other planters on terms dictated by the employer. Carl Schurz, investigating the progress of Reconstruction, noted that the freed man was “not only not permitted to be idle” but “positively prohibited from working or carrying on a business for himself” and “[wa]s just as much bound to his employer ‘for better and for worse’ as he was when slavery existed in the old form.”³²

Despite this exploitation of Black labor, arguably the most pressing problem facing freed men and women was access to land.³³ During the Civil War, some freed slaves were able to access land abandoned by former plantation owners, but in 1865, President Andrew Johnson’s Amnesty Proclamation stripped that property from the freed men and women and returned it to white plantation owners.³⁴ Land—“this absolutely fundamental and essential thing to any real emancipation of the slaves—was continually pushed by all emancipated Negroes and their representatives in every Southern state,” W. E. B. Du Bois observed. Appeals to state and federal officials for land, however, were “met by ridicule, [and] by anger.”³⁵

Promise

In response to Southern efforts to effectively re-enslave the newly freed men and women, the Republican majority in Congress enacted the nation’s first civil rights law, the Civil Rights Bill of 1866. President Johnson vetoed the legislation, arguing that the bill “intervenes between capital and labor and attempts to settle questions of political economy through the agency of numerous officials,” but Congress overrode the veto.³⁶ Reinforcing the Thirteenth Amendment, Congress intended for the legislation to make everyone born in the United States truly full citizens. The statute stated that all

In light of the Black Codes, Congress recognized the urgent need for federal protections against discrimination by the states. As important, Congress also recognized the danger of private discrimination by white individuals and white collectives, acting to deny African American men and women equal social and economic rights, especially equal rights in land. In his veto, President Johnson complained about the congressional recognition of the asymmetry of political, legal, and social power in a context of white supremacy, arguing that “the distinction of race and color is by the bill made to operate in favor of the colored and against the white race” and presaging contemporary arguments regarding “reverse discrimination.”³⁸

As the struggle between Republican legislators and President Johnson continued, congressional leaders sought to enshrine the civil rights protections in a constitutional amendment and thus protect them against a later congressional repeal. Congress proposed the Fourteenth Amendment in 1866, and the states ratified it in 1868, solidifying the citizenship of all those born within the United States; prohibiting states from depriving citizens of life, liberty, and property without due process of law; and prohibiting states from denying to any person within their jurisdiction the equal protection of the laws.

The Thirteenth, Fourteenth, and later Fifteenth (prohibiting discrimination on the basis of race in voting) Amendments held out the promise of a Reconstruction that could bring forth a true multiracial democracy. Together, these Reconstruction amendments transformed the Constitution from a document that was designed to protect the rights of individual white male property holders from interference by the state into a document that made it possible for the federal government to protect the rights of all those within the United States from discrimination by those states.³⁹ Electorates voted large numbers of African American officials into almost every level of public office, from city councils, to state legislatures, to Congress. For a brief moment, Black men (although not yet women) were part of the structure of governance, and “poor men were ruling and taxing rich men.”⁴⁰

Protest

White elites’ opposition to Reconstruction, however, only intensified as African American elected officials revealed the falsity of white supremacist myths. Further, the economic situation of the South after the Civil War was dire. Industrialization was transforming not only the northern economy but also the southern one. White plantation owners still owned land but now found it much more difficult to extract labor at no or very low cost. White and Black workers without property struggled to survive. Nationally, the fledgling labor movements, in the words of Du Bois, “never had the intelligence or knowledge, as a whole, to see in Black slavery and Reconstruction, the kernel and meaning of the labor movement in the United States,” and the hope for a “union of democratic forces never took place.”⁴¹ After the disputed 1876 presidential election, northern Republicans agreed to remove federal troops from the South, cede control back to the white planter elites, and essentially abandon the freed people in exchange for awarding the White House to Republican Rutherford B. Hayes. “Redeemer” governments quickly took power across the South, rewriting state constitutions to further disenfranchise and disempower Black citizens.

Still, farmers’ alliances, including the National Farmers’ Alliance and the Colored Farmers’ Alliance, sprung up in the 1880s and 1890s and solidified into the Populist or People’s Party, seeking to strengthen direct democracy through such changes as the direct election of U.S. senators and to enact policies equalizing the playing field between small farmers and industry, such as a graduated income tax. Georgia Populist Party leader Tom Watson addressed racially mixed crowds of farmers, saying that “the colored tenant is in the same boat as the white tenant, the colored laborer with the white laborer, and that the accident of color can make no difference in the interests of farmers, croppers, and laborers.”⁴² In North Carolina, the fusion of Republican and Populist voters won control of the North Carolina General Assembly, governorship, and most of the U.S. congressional seats in a powerful alliance of Black and white Republicans and small farmers. This Black-white political alliance precipitated the only coup d’état in U.S. history, in the Wilmington Massacre of 1898, when white Democratic party leaders led a mob of thousands of white supporters to terrorize the Black community, murder scores of Black residents, and overthrow the democratically elected, multiracial fusion government, chasing the elected leaders from the city.⁴³

Prospects

The Civil Rights Bill of 1866 and the Reconstruction amendments held out the promise of a multiracial democracy, including crucial protections for basic rights and the ability to acquire and transfer property. But the Civil Rights Bill of 1866 failed to address the overwhelming inequity in land ownership by race that divided the South and the nation. In the words of Du Bois:

Nevertheless, these first, contested steps taken by Fourteenth Amendment and the Civil Rights Bill of 1866 charted a direction for future civil rights organizations, such as the National Association for the Advancement of Colored People (NAACP), to chip away at the assumptions undergirding white supremacy and to assert Black citizenship and property rights. It would take until 1968 to pass the Fair Housing Act, but five decades of grassroots organizing and legal cases based on the Fourteenth Amendment and the Civil Rights Bill of 1866, such as Buchanan v. Warley (1917), Shelley v. Kraemer (1948), and Jones v. Alfred H. Mayer Co. (1968), prepared the legal and intellectual groundwork.

The Fair Housing Act of 1968

Following the end of Reconstruction, white collective violence against Black residents of integrated neighborhoods at the end of the eighteenth and beginning of the nineteenth centuries forced African American neighbors from their homes and neighborhoods, creating a more segregated metropolitan landscape. Following Baltimore’s passage of a municipal segregation ordinance in 1910, cities across the South passed laws “requiring . . . the use of separate blocks for residences, places of abode and places of assembly by white and colored people respectively.”⁴⁵ After the NAACP successfully challenged explicit municipal racial zoning provisions pursuant to the Fourteenth Amendment’s Equal Protection Clause in Buchanan v. Warley (1917), white strategies to solidify separate and unequal living patterns focused increasingly on the diffusion of private racially restrictive covenants in white communities.

Beginning in the early 1900s, real estate developers marketed middle-class suburban living in planned neighborhoods. These developers promoted deed restrictions governing the use of properties as a noteworthy amenity. Some covenants also included explicit prohibitions on residence by non-white people. These binding covenants ran with the property deed and generally prohibited all future purchasers from selling to non-white, and often non-Christian, buyers. The National Conference on City Planning provided a platform that helped these racially restrictive covenants spread countrywide, while the National Association of Real Estate Boards revised its code of ethics in 1924 to prohibit real estate agents from “introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individual whose presence will clearly be detrimental to property values in that neighborhood.”⁴⁶

In the midst of the Great Depression, Congress created the Federal Housing Administration (FHA) to insure mortgages and to facilitate long-term loans with fixed monthly payments. To systematize appraisals and underwriting, the FHA also created an underwriting manual that urged the use of “proper zoning and deed restrictions” to protect against changes that diminished “desirable neighborhood character.” It stated that the “more important among the adverse influential factors are the ingress of undesirable racial or nationality groups” and gave higher ratings to those properties and neighborhoods that had restrictive covenants in place.⁴⁷

In 1935, the federal Home Owners’ Loan Corporation (HOLC) created “Residential Security Maps” that color-coded neighborhoods of major cities according to appraisers’ view of their profitability for mortgage lending, driven in part by racial or ethnic composition. Neighborhoods seen as higher lending risks were shaded red, leading to the term “redlining” to describe the denial of loans or financial services because of a neighborhood’s racial or ethnic composition. The FHA provisions and the HOLC maps emboldened discrimination by real-estate agents, banks, sellers, and landlords.

As a result of the combination of these public and private policies, between 1880 and 1940, levels of segregation increased substantially nationwide. In 1880, an African American household had a one-in-two chance of having a non–African American neighbor. By 1940, that likelihood had declined to just over one in three.⁴⁸

Civil rights organizations, such as the NAACP, developed political and legal campaigns to challenge public policies and private practices that excluded African American homeseekers from white neighborhoods—from municipal segregation ordinances, to racially restrictive covenants, to redlining—and from white schools. As discussed above, litigation by the NAACP led the Supreme Court to invalidate segregation ordinances in Buchanan v. Warley (1917). In another case brought by the NAACP concerning racially restrictive covenants, Shelley v. Kraemer (1948), the Court held that, even if the Constitution did not prohibit private racial discrimination, courts could not enforce private racially restrictive covenants because court enforcement would constitute state action in violation of the Fourteenth Amendment’s Equal Protection Clause. Perhaps best known among these cases is Thurgood Marshall’s victory in Brown v. Board of Education (1954), wherein the Supreme Court held that “separate educational facilities are inherently unequal” and that segregation in public education deprived Black students of their right to the equal protection of the laws guaranteed by the Fourteenth Amendment.⁴⁹ Even after Brown, however, racial discrimination in housing by lenders, brokers, landlords, and other private actors continued to be legally permissible and pervasive. The real estate development and financing practices that facilitated suburbanization after World War II essentially blocked Black households from the opportunity to move to these new suburban developments and continued to limit their ability to accumulate home equity.

As public and private investment in suburban land and infrastructure grew after World War II, property values in many inner-city neighborhoods began to fall. To confront this urban decline, Congress created national urban-renewal programs in the Housing Acts of 1949 and 1954. These acts provided federal funds to municipalities to acquire land, raze existing structures, and pave the way for private construction. Cities frequently used the program to demolish poor, and often predominantly non-white, neighborhoods that were categorized as “blighted,” uprooting and displacing large numbers of Black, Latinx, and immigrant residents.

In 1966, Martin Luther King Jr. and the Southern Christian Leadership Conference (SCLC) announced a collaboration with the Coordinating Council of Community Organizations on the Chicago Freedom Movement, comparing residential segregation to colonization and seeking “to bring about the unconditional surrender of forces dedicated to the creation and maintenance of slums and ultimately make slums a moral and financial liability upon the whole community.”⁵⁰

King subsequently noted the parallels between spatial control through plantations under slavery and spatial control through metropolitan segregation: “The plantation and ghetto were created by those who had power, both to confine those who had no power and to perpetuate their powerlessness. The problem of transforming the ghetto, therefore, is a problem of power—confrontation of the forces of power demanding change and the forces of power dedicated to the preserving of the status quo.”⁵¹

Focused on securing “open housing,” the movement led marches through the summer of 1966 into all-white neighborhoods on Chicago’s southwest and northwest sides to expose white opposition to residential integration and, in King’s words, to “draw this hate into the open.”⁵² The marchers were consistently jeered, taunted, and met with violence from hostile white residents. King pointed out that “many whites who oppose open housing would deny that they are racists.”⁵³ Against this hostility to neighborhood integration, however, King had little concrete progress to show, even after seven months of marches, protest, and meetings.

King and the movement struggled to effectively organize Chicago’s culturally and economically diverse Black residents and faced mounting opposition from many white residents. That August, the movement’s leaders announced plans to march through the all-white town of Cicero, where, fifteen years earlier, thousands of white residents had rioted for days after an African American World War II veteran, Harvey E. Clark, and his family had attempted to move into an apartment there. The Illinois governor ultimately had to call in the National Guard to stop the violence, and the Clark family left the state.

With local white leaders fearful of a new round of violence in Cicero and King struggling to gain traction among Black Chicagoans, he and other civil rights leaders met with Illinois governor Otto Kerner and Chicago mayor Richard Daley and agreed to call off the marches into white neighborhoods; in turn, city officials agreed to do more to promote fair housing. Civil rights leaders generally saw the agreement as a failure. Indeed, the city did little to fulfill its commitments, and the Chicago Real Estate Board would not even agree to drop its legal challenge to Chicago’s largely ineffective fair housing ordinance. King that summer nevertheless highlighted the importance of tenant union organizing and pathways to homeownership as well as Black-owned banks. In his presidential address to the SCLC, King focused largely on access to housing and schools and on the spatial dimensions of inequality, urging members to continue the fight:

The limited success of the Chicago open housing campaign was one of King’s relative failures in the civil rights movement. The struggles of the campaign highlight the vociferous opposition and violent resistance that efforts to promote racially integrated living patterns provoked in the past and still provoke today.

Promise

During the summer of 1967, more than 150 uprisings erupted in cities across the country, triggered by racially discriminatory housing policies and urban inequality generally. President Lyndon Johnson convened the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission after its chair, Otto Kerner. The Kerner Commission’s report, released in February 1968, described the nation as “moving toward two societies, one black, one white—separate and unequal.”⁵⁵ The report determined that housing discrimination, residential segregation, and economic inequality were causing increasing societal division, and it recommended that Congress “enact a comprehensive and enforceable open housing law.”⁵⁶

President Johnson and Senator Mondale had pushed for a federal fair housing bill in 1966 and 1967, without success. Mondale recalled, “A lot of civil rights was about making the South behave and taking the teeth from [southern segregationist] George Wallace,” but the proposed fair housing law “came right to the neighborhoods across the country. This was civil rights getting personal.”⁵⁷

On April 4, 1968, King was assassinated, and the threat of widespread civil unrest loomed. Senator Jacob Javits, speaking in support of the Fair Housing Act, warned that “the crisis of the cities . . . is equal to the crisis which we face in Vietnam.”⁵⁸ Mondale, the primary drafter of the Fair Housing Act, cautioned that “our failure to abolish the ghetto will reinforce the growing alienation of white and black America. It will ensure two separate Americas constantly at war with one another.”⁵⁹

Congress recognized that discriminatory housing practices hurt not only individuals who were denied access to housing but the whole community. Mondale emphasized that citywide problems were “directly traceable to the existing patterns of racially segregated housing.”⁶⁰ The sponsors of the Fair Housing Act pointed out that cities were overburdened and underfinanced specifically as a result of discrimination in housing. For instance, Mondale stated that the Fair Housing Act was necessary to address the “declining tax base, poor sanitation, loss of jobs, inadequate education opportunity, and urban squalor” that central cities faced.⁶¹

Congress repeatedly framed the Fair Housing Act as legislation intended to address the complex web of challenges that discrimination in housing had entrenched in segregated metropolitan areas. Senator Edward Brooke emphasized that the “tax base on which adequate public services, and especially adequate public education, subsists has fled the city,” and he noted that the objective of the Fair Housing Act “must [be to] move toward [the] goal” of recreating “adequate services in the central city” by rooting out systemic discrimination.⁶²

Within a week of King’s assassination, Congress finally passed the Fair Housing Act, often referred to as the “last plank” of civil rights legislation. It set out the goal of providing for fair housing throughout the nation and fulfilling two promises. First, the Fair Housing Act prohibited discrimination in housing on the basis of race, color, religion, and national origin (and subsequently, after amendments in 1974 and 1988, sex, disability or handicap, and familial status).⁶³ Second, the Fair Housing Act required that “all executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of this subchapter.”⁶⁴ In short, the Fair Housing Act held out the promise of ending discrimination in housing and bringing about “fair housing” more broadly throughout the United States.

Protest

Following the 1968 presidential election of Republican Richard Nixon, George Romney became the HUD secretary and took steps to fulfill the act’s promise to affirmatively further fair housing. As one strategy, Romney sought to deny HUD funding to wealthy municipalities that used a variety of exclusionary practices, such as overly restrictive land-use regulations or discriminatory provision of basic urban infrastructure. In his own words, Romney sought to break up the “high-income white noose” around Black communities.⁶⁵ President Nixon, however, actively sought to undermine Romney’s open communities efforts, stating that “this country is not ready at this time for either forcibly integrated housing or forcibly integrated education.”⁶⁶ Nixon’s opposition ultimately contributed to Romney’s resignation. In short, before efforts to realize the affirmatively furthering provision could truly begin, they were blocked from the top of the executive branch.

Nixon instead advanced his concept of “the New Federalism” through the Housing and Community Development Act of 1974, which consolidated multiple federal funding streams into the CDBG program, with the aim of “providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.”⁶⁷ The 1974 act was required to comply with Title VI of the Civil Rights Act of 1964 (prohibiting discrimination in programs receiving federal assistance) but conspicuously did not include any reference to the Fair Housing Act, implying that Nixon was happy to allow states and localities receiving HUD funding to avoid complying with the requirement to affirmatively further fair housing.⁶⁸

In 1983, Congress amended the CDBG program to specify that HUD should award grants only if the grantees demonstrated that they would affirmatively further fair housing, clarifying again that state and local recipients of HUD’s largest source of community development funds had a central role to play in opening access to housing.⁶⁹ In 1988 and again in 1995, HUD issued regulations stating that CDBG recipients would be considered in compliance with the obligation to further fair housing if recipients “conduct an analysis to identify impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions.”⁷⁰ HUD, however, rarely reviewed these Analyses of Impediments (AIs), and there were essentially no consequences for incomplete, inadequate, or nonexistent filings.

Eventually, in 2009, HUD conducted a study in which it asked a sample of participating jurisdictions to produce AIs for review and found that more than a third of jurisdictions failed to produce one at all.⁷¹ The HUD study concluded that “only a minority of jurisdictions have an AI readily available to the public” and that “citizens seeking to obtain AIs would not consistently find them readily available.”⁷² Conducting a systematic review of completeness, the HUD study found that nearly half of the AIs that the department actually did receive and review needed improvement or were of poor quality. Specifically, HUD noted that “a sizable proportion of the AIs reviewed did not contain key aspects recommended for inclusion by the Fair Housing Planning Guide” and that many of the AIs “were completed in a cursory fashion only.”⁷³ A Government Accountability Office (GAO) study of AIs conducted the following year similarly found that more than a third of them were out of date. The study also found that the analyses included few measurable objectives or time frames and were generally not signed by the grantees’ highest-ranking local officials, effectively making it impossible to establish clear accountability.⁷⁴ The HUD study and the GAO study reinforced the findings of the bipartisan National Commission on Fair Housing and Equal Opportunity, cochaired by former HUD secretaries Jack Kemp and Henry Cisneros, which found that “the current federal system for ensuring fair housing compliance by state and local recipients of housing assistance has failed.”⁷⁵ The commission determined that “HUD requires no evidence that anything is actually being done as a condition of funding and it does not take adverse action if jurisdictions are directly involved in discriminatory actions or fail to affirmatively further fair housing.”⁷⁶

These minimal requirements in the decades after Congress enacted the Fair Housing Act illustrate the struggle to realize the act’s promise of reducing persistent racial disparities in access to opportunity. In what some have referred to as “our federalism,” substantial power to exclude continues to rest with local governments.⁷⁷ And political will for the federal government to curb those exclusionary powers is generally lacking.

Prospects

The Fair Housing Act offered a crucial tool in the fight to realize its first promise: the fight against discrimination in housing. Enforcement has been limited, however, by a combination of lack of awareness by victims of discrimination, low levels of enforcement by the government agencies empowered to implement the act, and relatively weak penalties for lawbreakers.⁷⁸ Nevertheless, audit studies over the past three decades have suggested that explicit discrimination in housing has decreased and taken somewhat more subtle forms, such as non-white homeseekers’ being shown fewer units or offered fewer financing options.⁷⁹ The Fair Housing Act has been less effective, however, in fulfilling its second promise: to reduce overall segregation. In this case, the structures that encourage and perpetuate segregation are entrenched in our local government boundaries, municipal financing structures, and homeownership policies. Continuing asymmetrical preferences for neighborhood racial composition combine with metropolitan fragmentation, exclusionary zoning, and regressive local tax policies to generate neighborhoods that remain separate and unequal.

To address the structural dimensions of continuing place-based disparities in access to resources requires giving life to the AFFH mandate of the Fair Housing Act. Unlike the direct anti-discrimination provisions of the Fair Housing Act, under which any “aggrieved person” can file suit, courts have generally been skeptical of a “private right of action” for individuals to sue directly to challenge failures by HUD and its grantees to affirmatively further fair housing.⁸⁰ Advocates have nevertheless sought creative ways to realize the potential power of the provision in such cases as Resident Advisory Board v. Rizzo (E.D. Pa. 1976), in which Philadelphia residents eligible for subsidized housing sued the mayor and city officials, alleging that they violated the AFFH provision by blocking construction of public housing in an all-white South Philadelphia neighborhood.⁸¹ The appellate court upheld the district court’s decision in favor of the residents but based liability on the provisions in Section 3604 of the Fair Housing Act, prohibiting the denial of housing on the basis of race, and sidestepped the question of private rights of action under Section 3608’s AFFH provision.⁸² In NAACP, Boston Chapter v. HUD (1st Cir. 1987), the NAACP challenged the city of Boston’s and HUD’s failure to use Urban Development Action Grant funds to create low-income housing in areas that would give households “a true choice of location.”⁸³ Then-Judge (now Supreme Court Justice) Stephen Breyer wrote that although Section 3608 does not create a private right of action directly enforceable in court, it could be reviewed under an Administrative Procedure Act claim if the governmental actions were arbitrary and capricious in failing to affirmatively further fair housing. Another creative approach was seen in United States ex rel. Anti-discrimination Center of Metro New York, Inc. v. Westchester County.⁸⁴ The Anti-Discrimination Center of Metro New York sued Westchester County under the False Claims Act in 2006 for falsely certifying the county’s compliance with fair housing regulations, when it had not, in fact, taken any steps to analyze or address impediments to fair housing. The United States joined the lawsuit, ultimately coming to a settlement in 2009. In 2011, HUD began withholding millions of dollars in funding from Westchester because the county had failed to comply with the settlement agreement; it finally accepted Westchester’s eleventh submission of an AI in 2017 only after the change in presidential administrations.

These cases suggest that the AFFH provision has the potential to have a substantial impact on the construction and siting of affordable housing and on municipal and regional planning, but clear guidelines and federal enforcement are lacking. Such were the hopes of advocates when the Obama administration started working on the AFFH Rule. They engaged with HUD in imagining what form the rule could take.

As work on the AFFH Rule began, the legacy of the litigation discussed above revealed the difficulty of addressing local exclusion and regional inequality within a federal system that rests on strong protections for states and popularly entrenched localism. Given that there are limited avenues for either private or public enforcement through the courts for the Fair Housing Act’s AFFH provision, the most viable path forward entailed having HUD use its administrative powers to set directives for state and local governments to advance racial equity.⁸⁵ As described by Raphael W. Bostic, Katherine O’Regan, Patrick Pontius, and Nicholas F. Kelly in Chapter 2, the AFFH Rule relies on localities’ undertaking rigorous analysis and creating meaningful goals to meet the fair housing requirements and then honestly evaluating their progress toward those goals. The AFFH Rule thus arguably takes the form of an equality directive, albeit one without explicit federal goal setting. As with other equality directives, in which federal agencies set objectives for state and local governments to advance, responsibility falls to federal agencies to use their administrative powers strategically to ensure local compliance.⁸⁶ As the discussion below of comments submitted regarding the proposed rule reveals, concerns about effective enforcement were paramount for civil rights advocates as well as for localities and public housing authorities.

One of the tensions that shaped the drafting of the AFFH Rule was the long-standing strain between advocates of what have sometimes been called “place-based” and “people-based” investments. Some fair housing advocates have especially favored investments that support household geographic mobility—for instance, through housing choice vouchers combined with the calculation of small area fair market rents and the provision of robust housing counseling. An important early milestone in this approach came with the settlement of Hills v. Gautreaux, 425 U.S. 284 (1976), a case challenging racial discrimination by HUD and the Chicago Housing Authority; the resolution required the construction of new “scattered-site” public housing in Chicago and the creation of the Gautreaux Assisted Housing program, providing housing vouchers for Chicago Housing Authority tenants to use in racially integrated neighborhoods across the region. Research involving the participants in the assisted housing program found socioeconomic benefits for children and helped inspire the subsequent Moving to Opportunity for Fair Housing (MTO) program administered by HUD in the 1990s.⁸⁷ Recent research on the MTO program has found further support for the positive educational and income effects that mobility to neighborhoods with lower poverty rates can have on young children.⁸⁸ Similarly, research on some of the developments that followed the Southern Burlington County NAACP v. Mt. Laurel, 336 A.2d 713 (1975) decision by the New Jersey Supreme Court (requiring municipalities statewide to zone in such a way as to enable the construction of their fair share of affordable housing) also found substantial improvements in socioeconomic outcomes for children in more economically integrated neighborhoods.⁸⁹ Advocates of this people-based or mobility approach often emphasize that all households should have the freedom to live where they choose and argue that—given historical and continuing opposition to meaningful community investment—supporting household mobility is most likely to lead to substantial improvements in outcomes for young people and in reducing racial disparities in socioeconomic outcomes over the long term. In Chapter 7, Michael C. Lens reviews some of the research regarding the MTO program and the implications of that research for the AFFH Rule; in Chapter 8, Megan Haberle identifies obstacles and opportunities in the rule for advancing racial and economic integration.

An emphasis on place-based investments encourages the allocation of public and private capital to neighborhoods that have experienced historic disinvestment and that currently experience high poverty rates and economic isolation. Advocates of this approach often emphasize the importance of place-based social networks to household well-being and the cultural and psychological significance of connections to place as well as the costs of moving, the burdens of which are often unequally distributed. Chester Hartman noted decades ago that people should have a “right to stay put” if they choose and that the realization of that right requires investments that make neighborhood-based public services and amenities more equal.⁹⁰ In Chapter 5, Edward Goetz sets out several arguments from the Left in favor of place-based investments; in Chapter 4, Howard Husock presents a conservative argument against an undue emphasis on mobility.

Attempting to rigidly confine individuals or groups to either category, however, is not particularly productive, as organizations with leanings in both directions have largely come to appreciate the importance of simultaneous support for voluntary household mobility and for concerted investments in comprehensive community revitalization. Many now encourage a “place-conscious” approach to investing in people and neighborhoods.⁹¹ Indeed, “comprehensive approaches that combine and coordinate sustained, long-term investments in multiple areas—such as affordable housing, early childhood education, quality schools, access to primary medical care, and a range of social supports—and track progress towards common goals over time, adjusting course when necessary” combined with “organizing efforts that build power and self-direction among residents” are critical.⁹²

HUD’s efforts to draft the proposed AFFH Rule had to navigate among these tensions and find what its officials came to call “a balanced approach” to furthering fair housing.⁹³ As discussed in Chapter 2, HUD expended significant effort on community engagement, working with civil rights advocates, affordable housing developers, public housing authorities, and other stakeholders. One of the basic innovations of the proposed rule was to actually define what “affirmatively furthering fair housing” should entail. HUD defined it as “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”⁹⁴ The definition notably highlights that advancing racial and economic integration and investing in the transformation of economically isolated areas into ones rich with opportunity are central aspects of furthering fair housing. This articulation of a balanced approach was arguably central to gaining the strong support of civil rights organizations, community development groups, affordable housing developers, fair housing advocates, and others for the proposed rule. Although some anxiety remained on both sides about what its effects would be, the support for it was wide, as discussed below.

HUD officials were also careful to include attention to all protected classes in the proposed AFH process. HUD defined “fair housing choice” in the AFFH Rule as meaning “that individuals and families have the information, opportunity, and options to live where they choose without unlawful discrimination and other barriers related to race, color, religion, sex, familial status, national origin, or disability.”⁹⁵ It further clarified that “for persons with disabilities, fair housing choice and access to opportunity include access to accessible housing and housing in the most integrated setting appropriate to an individual’s needs as required under Federal civil rights law, including disability-related services that an individual needs to live in such housing.”⁹⁶ As discussed in Chapter 3, several of the HUD grantees that completed early AFHs noted the role of the rule in catalyzing new attention to disability access in housing. Of the first AFHs that were submitted after the AFFH Rule’s implementation, HUD rejected several for failing to address the integration of disabled households or failing to analyze and to set out goals to confront discrimination on the basis of national origin.⁹⁷

The 2015 Affirmatively Furthering Fair Housing Rule, and Beyond

The history of fair housing from the nineteenth century until today forms the backdrop for this volume’s central focus on more recent innovations. Ultimately, we look beyond the current stalemate over the AFFH Rule to envision new possibilities for next steps. Bringing together scholars from across the political spectrum and a wide range of disciplines, we examine the promises, protests, and prospects for fair housing in the next decade and beyond.

Promises

By structuring this volume to convey promises, protests, and prospects, we acknowledge the significance of a tortuous history of partial starts and setbacks but keep our focus on future possibilities. The AFFH Rule builds on the complex historical struggle for open housing that von Hoffman—a historian based at Harvard’s Joint Center for Housing Studies—describes in Chapter 1. Von Hoffman explores the distinction—and sometimes even tension—between efforts to end discrimination in housing and efforts to affirmatively foster racial integration as well as debates over the meaning and significance of “the ghetto.”

As Bostic, O’Regan, Pontius, and Kelly describe in Chapter 2, HUD worked carefully to overcome internal institutional divides and external opposition to issue the final AFFH Rule in July 2015. As key players in the process while working at HUD during the Obama administration, Bostic, O’Regan, and Pontius highlight some of the challenges to drafting the rule, including tensions between the department’s planning and enforcement arms. This chapter shows how many of the key debates among fair housing and affordable housing advocates entered into internal contestation within HUD. The authors outline the process of crafting the rule, securing buy-in within HUD, compromising across departments, persevering in the face of delays, and ultimately succeeding in issuing the new rule—a process that took virtually the entire Obama administration to execute. One of the difficult debates they reveal revolved around whether the approach should be consensual and planning-based or focused more on punitive enforcement through legal action. The authors make a full-throated defense of the former, arguing that the rule was written with long-term planning processes in mind, designed to change conversations within municipalities around the country and, over time, to build a less segregated, more equal metropolitan America. Finally, the authors focus on some of the rule’s key innovations, such as facilitating local determination of priorities, conceiving of the AFH as a meaningful planning tool for future action integrated with other planning requirements, and empowering communities with data so that they could effectively engage in a dialogue about unique local obstacles and strategies.

Civil rights organizations, including the NAACP, the NAACP Legal Defense Fund, the National Council of La Raza, the National Urban League, the Equal Rights Center, the Lawyers’ Committee for Civil Rights Under Law, the Disability Rights Legal Center, the National Gay and Lesbian Task Force, and others, enthusiastically supported the AFFH Rule in public comments to HUD during the notice and comment period. For instance, the NAACP described the proposed regulations as “a very important step towards achieving Congress’ vision about how the Fair Housing Act should be a tool for creating equal opportunity in our country.”⁹⁸ Civil rights organizations generally offered vocal support for the proposed rule together with suggestions to strengthen it, largely by increasing community engagement requirements, offering incentives for regional collaboration in AFHs, setting higher expectations for performance by grantees, requiring grantees to make timely and concrete progress toward achieving their fair housing goals, creating a process for residents and advocates to challenge AFHs, and ensuring that HUD allocated effective resources to review AFHs. A joint letter from a diverse coalition of forty-one civil rights organizations, including the American-Arab Anti-Discrimination Committee, Asian Americans Advancing Justice, the Human Rights Campaign, the Leadership Conference on Civil and Human Rights, The National Coalition for Asian Pacific American Community Development, The National Consumer Law Center, the National Women’s Law Center, the Opportunity Agenda, and PolicyLink, noted that by “establishing a framework that holds recipients of federal funding accountable, this rule will promote thriving, diverse communities that can meet the challenges of the 21st century.”⁹⁹ The National Council of La Raza emphasized its belief that the proposed rule “w[ould] offer better protections for a family’s right to obtain adequate and safe housing of one’s choosing” than existing regulations, but, like many other civil rights organizations, it also noted that “the success of these changes is highly dependent on accountability through rigorous outreach and enforcement,” encouraging HUD to require more robust community outreach, set higher standards of performance for grantees, and make enforcement of the AFFH Rule a priority.¹⁰⁰ The National Community Reinvestment Coalition similarly endorsed the proposed rule, encouraging HUD to require grantees to maximize citizen participation throughout the assessment process, to require grantees to consider more information beyond the data provided by HUD, to require grantees to identify quantifiable performance benchmarks, and to allocate resources for enforcement.¹⁰¹

Several civil rights organizations enthusiastically supported the AFFH Rule and called for a stronger emphasis on integration and mobility. For instance, the NAACP Legal Defense Fund described the rule as a “tremendous first step” toward further advancing the Fair Housing Act but asked HUD to clarify that the “the central purpose of the Fair Housing Act’s affirmatively furthering fair housing mandate is to promote integration” and encouraged HUD to adopt more robust enforcement mechanisms, to require measurable performance standards of grantees, and to more expressly weave the fair housing requirements into the Consolidated Plan and Public Housing Authority Annual Plans.¹⁰² The Lawyers’ Committee for Civil Rights Under Law noted that “there is a serious imbalance between housing opportunities available to low income people—with a dearth of opportunities in low poverty areas with quality schools, good employment opportunities, and proximity to transportation assets compared to opportunities existing in high poverty, segregated areas” and called for the AFFH Rule to “promote a better balance of housing choices for people who are members of protected classes than currently exists.”¹⁰³ The Poverty and Race Research Action Council, writing on behalf of itself and more than two dozen other civil rights and fair housing groups, expressed concern that the proposed rule did not go far enough to ensure compliance, arguing that “[a]s civil rights advocates, we do not object to HUD’s basic premise—that part of the fair housing mandate must include the radical improvement of segregated, higher poverty neighborhoods where many low-income families will continue to reside even after strong voluntary desegregation efforts,” but expressing concern that the proposed rule did not forcefully enough put forth the “primary integrative purpose” of the provision.¹⁰⁴ The letter encouraged HUD to “make it clear that the primary purpose of the ‘community revitalization’ prong of the AFFH rule is to direct non-housing economic and community assets into these neighborhoods: assets like enhanced school resources, economic development, job training, improved parks, full service grocery stores, and community policing.”¹⁰⁵ The letter also expressed concern about HUD’s capacity to review the AFHs and encouraged the department to avoid its routine review altogether, instead substituting an audit-based and complaint-triggered review process, providing more guidance in the rule on what constitutes an acceptable AFH, and creating a procedure through which local advocates could object to HUD’s approval of an AFH.¹⁰⁶

Community organizing groups and affordable housing advocates generally expressed support for the proposed AFFH Rule as well, while also raising concerns about potential effects on community reinvestment efforts. National People’s Action, a federation of twenty-nine grassroots organizations in eighteen states working together for racial and economic justice, endorsed the rule while cautioning that “too much emphasis on promoting integration and overcoming segregation (as important as these goals are and even in the name of eliminating concentrations of poverty in minority areas)[. . .] can be used to undermine the legitimate needs of existing minority communities where, in fact, most minority families will live out their lives.”¹⁰⁷ The National Low Income Housing Coalition “commend[ed] HUD for undertaking a multi-year effort to obtain the views of a wide range of stakeholders” and “enthusiastically support[ed] the proposed improvements,” while also requesting that HUD “recognize that affirmatively furthering fair housing may entail devoting resources to improve areas of concentrated racial and ethnic poverty by preserving and improving affordable housing, and by implementing investment policies that augment access to essential community assets for protected class residents who wish to remain in their communities—while protecting them from the forces of displacement.”¹⁰⁸

Although they indicated support for the goals of the proposed AFFH Rule, many public housing authorities, by contrast, expressed skepticism and concern about the regulations. The Council of Large Public Housing Authorities warned “that the proposed rule sends mixed messages about how PHAs’ [Public Housing Authorities’] current operations comply with their obligation to affirmatively further fair housing; offers inadequate protections to PHAs that strive to meet their obligations; and imposes an unfunded mandate on PHAs that are already suffering from severe budget cuts to their current operations.”¹⁰⁹ The National Association of Housing and Redevelopment Officials similarly voiced apprehension “that this highly procedural proposed rule will add significant administrative burden for PHAs and other HUD grantees while doing very little to actually promote fair housing outcomes,” leading to “small communities opting out of federal programs and resources being diverted away from actually serving the populations intended to benefit from the regulations.”¹¹⁰

Few conservative public policy research institutions submitted comments. While on the campaign trail, Ben Carson wrote an article in the Washington Times describing the AFFH Rule as a “mandated social-engineering scheme,” much like, he said, the desegregation efforts after Brown v. Board of Education (1954).¹¹¹ He criticized these “government-engineered attempts to legislate racial equality” as examples of “failed socialist experiments.”¹¹² Many individuals also submitted comments in opposition to the rule, articulating similar concerns about “social engineering,”¹¹³ expressing disapproval of the regulation on the grounds that it would “subvert private property laws and limit if not eliminate any or all future suburban development,”¹¹⁴ and urging HUD to “return land use control to the local governments.”¹¹⁵

HUD responded to hundreds of such comments, revised the rule, and issued the final regulation in 2015. One of the most surprising things about its initial rollout was HUD’s engagement and enforcement. In Chapter 3, Nicholas F. Kelly, Maia S. Woluchem, Reed Jordan, and Justin P. Steil analyze fair housing plans from the first forty-nine municipalities that submitted AFHs before the tool was suspended in 2018. The authors code every goal in every AFH, finding that the rule led to more goals with measurable objectives or new policies than did the prior AI process. Many of the municipalities engaged in meaningful community dialogues that produced innovative, rigorous goals to reduce segregation and increase access to opportunity. These authors also code the goals according to a variety of other measures, finding that the AFHs included goals focused on place-based and mobility policies, zoning changes, efforts at combating displacement, and regional collaborations, among other things. This diversity of goal types represents the broad array of policies that municipalities proposed to fulfill the AFFH mandate. The authors also find a statistically significant relationship between the level of segregation in a community and whether the fair housing plan set out measurable objectives or proposed new policies, suggesting that some of the most segregated communities were taking the most meaningful steps to further fair housing.

Protests

Even after its passage, the AFFH Rule continued to be contested. Once it was promulgated, civil rights advocates expressed concerns about its enforceability. Others criticized its focus on segregation and on racially and ethnically concentrated areas of poverty, as compared to the need for community investment and affordable housing. For instance, planning and policy scholar Goetz argues in Chapter 4 that the existence of spatial inequality does not necessarily mean that spatial integration is the right solution. He argues that criticism by some fair housing advocates of the construction of more affordable housing in neighborhoods with high poverty rates draws on and reinforces negative views toward affordable housing more generally. Attempts to dismantle public housing to further integration, he suggests, benefit developers, who profit from the construction, and harm communities of color, who bear the burden of relocation.

In Chapter 5, the Manhattan Institute’s Husock similarly critiques the AFFH Rule, this time from a conservative perspective, as an ineffective way of improving the prospects of low-income people of color. Instead of integration, Husock, like Goetz, advocates for greater investment in low-income neighborhoods. He does not question the research demonstrating the importance of neighborhoods for the long-term economic outcomes of children. Instead, he questions the practicality of scaling up the AFFH Rule and challenges the general skepticism among mobility advocates about place-based approaches. He situates these critiques in the recognition that past government efforts have often undermined the same low-income neighborhoods that the current AFFH Rule aims to support. Husock points out that many neighborhoods cleared by urban renewal were not as impoverished as commonly thought and held high levels of social and political capital. In short, he argues against environmental determinism and in favor of the idea that low-income areas can be “good neighborhoods.”

Promises

In this book’s final section, we turn to three chapters that look beyond the AFFH Rule to address a select number of issues that show how we might grapple with fair housing challenges in the years to come.

In housing policy today, perhaps no issue provokes as vocal a response as that of gentrification. The interaction of gentrification with fair housing concerns raises a set of particularly vexing policy questions. In Chapter 6, Been, a former commissioner of the New York City Department of Housing Preservation and Development and subsequently a deputy mayor of Housing and Economic Development for New York City, examines how policymakers, advocates, and scholars should think about how to affirmatively further fair housing in the context of gentrification. New York is a particularly compelling case through which to examine the intersection of fair housing and gentrification, as it is simultaneously one of the most segregated metropolitan areas in the country with some of the most intense gentrification pressures, as well as the city with the nation’s largest public housing authority and most powerful municipal housing preservation and development agency. In recent years, New York has also been home to a growing tenant movement focused on strengthening and expanding rent regulation, which it accomplished in 2019, and fighting against displacement, often by seeking to intervene in the city’s proposed neighborhood based re-zonings. Been examines these issues in relation to the affordable housing crisis in New York City and the city’s efforts to address it. She confronts difficult policy tradeoffs evident in such policies as efforts to allow for more density in many neighborhoods in New York—many of them low-income—which have stoked fears of increased displacement. From a fair housing context, she engages the concern that increased investment in such neighborhoods may remedy years of disinvestment while also contributing to racial and economic integration—but through the mechanism of gentrification. Conversely, efforts to prevent displacement can, at times, further concentrate poverty and exacerbate segregation. Finally, she confronts the ways that zoning interacts with efforts to promote integration, examining how a variety of zoning changes affect residential segregation and integration. Been explores these questions through her practical experience shaping housing policy in New York City, moving us forward in understanding this intersection of crucial issues facing America’s cities.

In Chapter 7, University of California, Los Angeles planning professor Lens offers a way to improve the AFFH process through paying greater attention to a crucial measure of opportunity: the relative presence or absence of crime. He reviews the literature on neighborhood effects, finding that poverty, crime, and school quality are three primary indicators associated with changes in outcomes for low-income children. Lens also evaluates the literature on neighborhood preferences of low-income families who participated in the MTO program, arguing that crime and violence are primary concerns for those participants wanting to move. Lens then notes that the AFFH tool currently lacks a key metric of neighborhood quality: crime data. He shows how tract-level crime data, while difficult to collect, have become more common. This availability means that is now possible to add in the most significant missing variable in the current AFFH tool.

Finally, in Chapter 8, Haberle, who directs housing policy at the Poverty & Race Research Action Council, analyzes how the AFFH Rule created a policy context for rigorous efforts to reduce segregation while also facing a number of hurdles to achieve that reality. These barriers include discrimination, local zoning decisions, federal funding, and bureaucratic structures within public housing authorities that tend to reinforce jurisdictional fragmentation. Haberle also discusses past problems with enforcing the Fair Housing Act, which may continue in future AFFH enforcement. These problems range from HUD’s lack of commitment to fair housing to an unwillingness to leverage its funding over states and localities to incentivize compliance. She discusses the double-edged sword of local control over fair housing in the AFFH Rule—it allows for experimentation but may also be a way to avoid accountability. Haberle points to the lack of prior performance metrics as key to HUD’s previous inability to hold grant recipients accountable. She argues that participation in the AFFH process could spark a cooperative federalism, creating new coalitions and public understandings. Haberle also notes that the AFFH’s focus on regional issues could be an innovative way to confront our fragmented metropolitan regions that reinforce segregation. Given federal efforts to undermine the AFFH Rule, she points to the possibility of overlaying the AFFH onto the housing choice voucher and low-income housing tax credit programs as a way to achieve many of the same goals.

Conclusion

The post-Obama attacks on civil rights protections have extended to a set of crucial policies created over the prior decade to begin to address powerful place-based inequalities in resources and access to opportunity. The AFFH Rule became a key target of these attacks. As discussed above, HUD in 2018 initially suspended and then subsequently proposed revising the AFFH Rule.¹¹⁶ In 2019, HUD released its proposal for an alternative AFFH Rule.¹¹⁷ The proposed rule eliminated any focus on disparities between protected classes in access to opportunities and made no mention of segregation.

To say the least, this reorientation marked a dramatic pullback. The 2015 rule had defined AFFH to mean addressing “significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”¹¹⁸ The 2019 proposed revisions, by contrast, redefined AFFH as “reducing obstacles within the participant’s sphere of influence to providing fair housing choice.”¹¹⁹ It went on to define fair housing choice as merely ensuring that “within a HUD program participant’s sphere of influence, that individuals and families have the opportunity and options to live where they choose, within their means, without unlawful discrimination related to race, color, religion, sex, familial status, national origin, or disability.”¹²⁰

In short, the proposed revisions eliminated the effort to address centuries of discrimination in housing policy on the basis of race, national origin, religion, sex, familial status, and disability that had been the core of the 2015 rule and jettisoned the focus on disparities in access to place-based opportunities and their relationship to socioeconomic mobility. Instead, the 2019 proposed revisions introduced narrow language focusing on eliminating intentional discrimination and presented an effort to facilitate the construction of market rate housing by eliminating state and local regulations. To evaluate progress toward fair housing, the proposal suggested that HUD would use measures of housing costs, the availability of “complete plumbing or kitchen facilities,” vacancy rates, and “rates of subpar Public Housing conditions” as well as measures of lead poisoning, disability access, and voucher use.¹²¹ Instead of looking holistically at the interaction between land use, housing policy, environmental quality, economic development, educational access, transportation, and social mobility as the 2015 rule had done, the 2019 proposal returned to a siloed focus on housing alone and to rudimentary measures of housing quality that would be easy for jurisdictions to meet (for example, more than 99 percent of occupied housing units in 2017 had complete plumbing and kitchen facilities).

This proposed evisceration of the 2015 AFFH Rule is part of a broad assault on civil rights protections in housing. For instance, HUD in 2019 also issued a proposed rule revising the 2013 rule implementing the Fair Housing Act’s disparate impact standard. In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (2015), the Supreme Court confirmed that claims of discrimination under the Fair Housing Act could be brought on the basis of a policy’s disparate impact, without direct evidence of an intent to discriminate. Yet under the Trump administration, HUD sought to undermine the essential ability to look at not just the intent of policies but also their effects.

In 2020, HUD abruptly issued a new final rule that repealed the AFFH Rule altogether. The 2020 rule essentially rewrote two crucial terms. First, it redefined “fair housing” to mean “housing that, among other attributes, is affordable, safe, decent, free of unlawful discrimination, and accessible as required under civil rights laws.” Second, it redefined “affirmatively further” to mean “to take any action rationally related to promoting any attribute or attributes of fair housing.” With these new definitions in place, the 2020 rule required HUD grantees to certify only that they had taken “any” action linked to fair housing. The earlier revisions proposed in 2019 gutted the 2015 effort to address place-based disparities associated with race, disability, family status, or other protected characteristics in access to resources. The 2020 final rule went even further by completely eliminating any affirmative responsibility to advance fair housing, allowing whatever step a locality proposed related to “affordable,” “safe,” or “decent” housing to suffice.

To Trump and his supporters, the problem with the 2019 proposed changes was that “the HUD approach did not go far enough.” What they wanted, though, was not further enforcement of fair housing but, instead, a rule that would enable HUD to “do more . . . to empower local communities and to reduce the regulatory burden of providing unnecessary data to HUD.” In his tweets accompanying the repeal, Secretary Ben Carson described the AFFH Rule as a “ruse for social engineering under the guise of desegregation” that essentially turned HUD “into a national zoning board.” The repeal followed Trump’s claims via Twitter and virtual town halls that the AFFH Rule was “not fair to homeowners” and that it would be “bringing who knows who into your suburbs, so your communities will be unsafe and your housing values will go down.” Evoking racialized claims of neighborhood decline and white grievance, Trump further tweeted that “people have worked all their lives to get into a community, and now they’re going to watch it go to hell. Not going to happen, not while I’m here.” Trump tweeted after the repeal, “I am happy to inform all the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood. . . . Your housing prices will go up based on the market, and crime will go down. I have rescinded the Obama-Biden AFFH Rule. Enjoy!”

Fair housing advocates have already had substantial victories in their efforts to protect important civil rights regulations, however. In 2017, HUD tried to undermine the Small Area Fair Market Rents Final Rule—something that the agency had finalized just one year earlier. The Small Area Fair Market Rents Rule provides that instead of determining housing choice voucher payment standards by using a metropolitan areawide fair market rent estimate, PHAs can use fair market rents calculated for each zip code within the metropolitan area, thus enabling housing choice voucher tenants to access areas with lower poverty rates and with greater resources by deploying a housing subsidy adequate to cover higher rents in those areas. After HUD sought to withdraw the Small Area Fair Market Rents Rule in 2017, fair housing advocates successfully sued under the Administrative Procedures Act to reinstate it, enabling the Small Area Fair Market Rents Rule’s implementation in a growing number of metropolitan areas across the country.

The 2020 repeal of the AFFH Rule, along with the proposed revisions to the disparate effects rule, represents another cycle of retreat from the promises of fair housing, just like the ones that had occurred in the nineteenth and twentieth centuries. In the run-up to the 2020 presidential election, as the struggle for suburban voters intensified and the Black Lives Matter movement directed attention to racial inequality, the AFFH Rule suddenly emerged into the limelight: Democratic presidential candidate Joe Biden expressed his intention to reinstate it, while Trump highlighted his repeal. As the conclusion to this book affirms, our intention here is to find ways to regain momentum in the simultaneous fight for fair and affordable housing. Many of the chapters that follow draw insights from the process through which the AFFH Rule was passed to help identify how a future policy can be made. Other chapters illuminate what the AFFH Rule accomplished during the brief time when it was actually in effect. Collectively, critically, and constructively, we have tried to evaluate the 2015 AFFH Rule. Ultimately, having identified several of its strengths and weaknesses, we envision some ways in which fair housing policies can be revised, improved, and given new life.

ENDNOTES

1. 42 U.S.C. § 3608.

2. Jorge De la Roca, Ingrid Gould Ellen, and Katherine M. O’Regan, “Race and Neighborhoods in the 21st Century: What Does Segregation Mean Today?” Regional Science and Urban Economics 47 (July 2014): 138–151.

3. Raj Chetty, Nathaniel Hendren, Patrick Kline, and Emmanuel Saez, Where Is the Land of Opportunity? The Geography of Intergenerational Mobility in the United States (Cambridge, MA: National Bureau of Economic Research, January 2014).

4. David M. Cutler and Edward L. Glaeser, “Are Ghettos Good or Bad?” Quarterly Journal of Economics 112, no. 3 (August 1, 1997): 827–872; Jorge De la Roca, Ingrid Gould Ellen, and Justin Steil, “Does Segregation Matter for Latinos?” Journal of Housing Economics 40 (June 2018): 129–141.

5. Ingrid Gould Ellen, “Is Segregation Bad for Your Health? The Case of Low Birth Weight,” Brookings-Wharton Papers on Urban Affairs (2000): 203–229.

6. Elizabeth Oltmans Ananat and Ebonya Washington, “Segregation and Black Political Efficacy,” Journal of Public Economics 93, no. 5–6 (2009): 807–822.

7. Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993), 10; Lincoln Quillian, “Segregation and Poverty Concentration: The Role of Three Segregations,” American Sociological Review 77, no. 3 (June 1, 2012): 354–379; Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality (Chicago: University of Chicago Press, 2013); Paul Jargowsky, “The Architecture of Segregation” (Century Foundation, August 7, 2015), available at https://tcf.org/content/report/architecture-of-segregation/.

8. 24 CFR §§ 5.150 et seq. The provisions of the AFFH Rule are discussed in greater detail in Chapter 2.

9. For example, Ben Carson, “Experimenting with Failed Socialism Again: Obama’s New Housing Rules Try to Accomplish What Busing Could Not,” Washington Times, July 23, 2015, available at https://www.washingtontimes.com/news/2015/jul/23/ben-carson-obamas-housing-rules-try-to-accomplish-/.

10. H.R.482 - Local Zoning Decisions Protection Act of 2017, 115th Congress (2017–2018).

11. For example, Poverty and Race Research Action Council, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

12. For example, National People’s Action, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

13. For example, National Association for the Advancement of Colored People, Washington Bureau, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 16, 2013.

14. Raj Chetty, Nathaniel Hendren, Patrick Kline, Emmanuel Saez, and Nicholas Turner, “Is the United States Still a Land of Opportunity? Recent Trends in Intergenerational Mobility,” American Economic Review 104, no. 5 (2014): 141–147.

15. Sharkey, Stuck in Place, 4.

16. Chetty et al., “Where Is the Land of Opportunity?”

17. De la Roca, Ellen, and O’Regan, “Race and Neighborhoods in the 21st Century”; De la Roca, Ellen, and Steil, “Does Segregation Matter for Latinos?”; Sharkey, Stuck in Place; Ingrid Gould Ellen, Justin P. Steil, and Jorge De la Roca, “The Significance of Segregation in the 21st Century,” City and Community 15, no. 1 (2016): 8–13.

18. De la Roca, Ellen, and O’Regan, “Race and Neighborhoods in the 21st Century”; Sean F. Reardon and Kendra Bischoff, “Income Inequality and Income Segregation,” American Journal of Sociology 116 (2011): 1092–1153.

19. U.S. Department of Commerce, Bureau of the Census, “Housing Vacancies and Homeownership. Table 16: Quarterly Homeownership Rates by Race and Ethnicity of Householder: 1994 to Present,” 2019, available at https://www.census.gov/housing/hvs/data/histtabs.html.

20. Jesse Bricker et al., “Changes in U.S. Family Finances from 2013 to 2016: Evidence from the Survey of Consumer Finances,” Federal Reserve Bulletin 103, no. 3 (2017), available at https://www.federalreserve.gov/publications/2017-September-changes-in-us-family-finances-from-2013-to-2016.htm.

21. U.S. Department of Commerce, Bureau of the Census, “Housing Vacancies and Homeownership.”

22. Bricker et al., “Changes in U.S. Family Finances from 2013 to 2016.”

23. “Minneapolis 2040,” accessed May 12, 2019, available at https://minneapolis2040.com/.

24. Yonah Freemark, Justin P. Steil, and Kathleen Thelen, “Varieties of Urbanism: A Comparative View of Inequality and the Dual Dimensions of Metropolitan Fragmentation,” Politics and Society (2020), available at https://doi-org.libproxy.mit.edu/10.1177/0032329220908966.

25. Robert J. Sampson, Great American City: Chicago and the Enduring Neighborhood Effect (repr., Chicago: University of Chicago Press, 2012), 21.

26. Justin P. Steil, Jorge De la Roca, and Ingrid Gould Ellen, “Desvinculado y desigual: Is segregation harmful to Latinos?” Annals of the American Academy of Political and Social Science 660, no. 1 (2015): 57–76; Justin P. Steil and Laura Humm Delgado, “Limits of Diversity: Jane Jacobs, the Just City, and Anti-subordination,” Cities 91 (2019): 39–48.

27. De la Roca, Ellen, and O’Regan, “Race and Neighborhoods in the 21st Century.”

28. Sharkey, Stuck in Place, 6.

29. Kevin Liptak, “Trump Pitches White Suburban Voters in Blatantly Political White House Event,” CNN, July 16, 2020, available at https://www.cnn.com/2020/07/16/politics/donald-trump-white-suburbs/index.html.

30. 114 Cong. Rec. 3422 (1968).

31. Theodore Brantner Wilson, The Black Codes of the South (Tuscaloosa: University of Alabama Press, 1965).

32. Carl Schurz, “Report on the Condition of the South,” S. Exec. Doc. No. 39-2 (1865), reprinted in Carl Schurz, Speeches, Correspondence and Political Papers of Carl Schurz, ed. (New York: G. P. Putnam’s Sons, 1913), 325.

33. W. E. B. Du Bois, Black Reconstruction in America, 1860–1880 (New York: Harcourt, Brace and Company, 1935), 601.

34. Ibid., 602–603.

35. Ibid., 601.

36. Andrew Johnson, The Papers of Andrew Johnson, Volume 10 (Knoxville: University of Tennessee Press, 1967), 319.

37. 42 U.S.C. § 1981.

38. Johnson, The Papers of Andrew Johnson, 319.

39. Eric Foner, Reconstruction: America’s Unfinished Revolution (New York: Harper-Collins, 1989).

40. Du Bois, Black Reconstruction in America, 419.

41. Ibid., 353, 239.

42. C. Vann Woodward, “Tom Watson and the Negro in Agrarian Politics,” Journal of Southern History 4, no. 1 (1938): 14–33.

43. Elizabeth A. Herbin-Triant, Threatening Property: Race, Class, and Campaigns to Legislate Jim Crow Neighborhoods (New York: Columbia University Press, 2019).

44. Du Bois, Black Reconstruction in America, 661.

45. Baltimore, Maryland, Ordinances and Resolutions of the Mayor and City Council of Baltimore Passed the Annual Session 1910–11, 379 (1911). See generally Justin P. Steil and Laura Delgado, “Contested Values: How Jim Crow Segregation Ordinances Redefined Property Rights,” in Global Perspectives on Urban Law, ed. Nestor Davidson and Geeta Tewari (London: Routledge, 2018), 7–26; Justin P. Steil and Camille Z. Charles, “The Sociology of Segregation and Fair Housing,” in Perspectives on Fair Housing, ed. Wendell Pritchett, Susan Wachter, and Vincent Reina (Philadelphia: University of Pennsylvania Press, forthcoming).

46. National Association of Real Estate Boards, “1924 Code of Ethics,” June 6, 1924, available at http://archive.realtor.org/sites/default/files/1924Ethics.pdf.

47. Daniel Aaronson, Daniel Hartley, and Bhashkar Mazumder, “The Effects of the 1930s HOLC ‘Redlining’ Maps” (Federal Reserve Bank of Chicago, August 3, 2017), available at http://eh.net/eha/wp-content/uploads/2017/08/Aaronson.pdf.

48. Trevon D. Logan and John M. Parman, “The National Rise in Residential Segregation,” Journal of Economic History 77, no. 1 (2017): 127–170.

49. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

50. Martin Luther King, “King Encyclopedia,” speech given on March 18, 1966, available at http://mlk-kpp01.stanford.edu/index.php/encyclopedia/encyclopedia/enc_chicago_campaign.

51. Martin Luther King, “Where Do We Go from Here?” address delivered at the eleventh annual SCLC Convention, August 16, 1967, available at https://kinginstitute.stanford.edu/king-papers/documents/where-do-we-go-here-address-delivered-eleventh-annual-sclc-convention.

52. Stephen B. Oates, Let the Trumpet Sound: The Life of Martin Luther King, Jr. (New York: Mentor, 1985), 388.

53. Ibid., 413.

54. King, “Where Do We Go from Here?”

55. The National Advisory Commission on Civil Disorders, Report of the National Advisory Commission on Civil Disorders (Washington, DC: National Institute of Justice, 1968).

56. Ibid.

57. Nikole Hannah-Jones, “Living Apart: How the Government Betrayed a Landmark Civil Rights Law,” ProPublica, June 25, 2015, available at https://www.propublica.org/article/living-apart-how-the-government-betrayed-a-landmark-civil-rights-law.

58. 114 Cong. Rec. 2703 (1968).

59. 114 Cong. Rec. 2274 (1968).

60. 114 Cong. Rec. 2276 (1968).

61. 114 Cong. Rec. 2274 (1968).

62. 114 Cong. Rec. 2280 (1968).

63. See Section 804(a), which makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin” (42 U.S.C. § 3608(d)); and Section 804(b), which provides that “it shall be unlawful for any person or other entity whose business includes engaging in real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin” (42 U.S.C. § 3608(e)).

64. Sec. 808(d), codified as 42 U.S.C. 3608(d).

65. Hannah-Jones, “Living Apart.”

66. Robert Mason, Richard Nixon and the Quest for a New Majority (Chapel Hill: University of North Carolina Press, 2014), 149; Christopher Bonastia, Knocking on the Door: The Federal Government’s Attempt to Desegregate the Suburbs (Princeton, NJ: Princeton University Press, 2008).

67. Pub. L. 93–383, title I, § 101, Aug. 22, 1974, 88 Stat. 633.

68. Pub. L. 93–383, title I, § 109, Aug. 22, 1974, 88 Stat. 649.

69. Pub. L. 98–181; 42 U.S.C. § 5304(b)(2), 5306(7)(B).

70. 53 Fed. Reg. 34,416 (Sept. 6, 1988); 60 Fed. Reg. 1,878 (Jan. 5, 1995); see 24 C.F.R. §§ 91.225(a)(1) and 91.325(a)(1).

71. U.S. Department of Housing and Urban Development, Policy Development Division, Office of Policy Development and Research, Analysis of Impediments Study (Washington, DC: U.S. Department of Housing and Urban Development, 2009).

72. Ibid.

73. Ibid., 15.

74. Government Accountability Office, Report: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans (Government Accountability Office, September 2010).

75. National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing: Report of the National Commission on Fair Housing and Equal Opportunity (National Commission on Fair Housing and Equal Opportunity, 2008), 44.

76. Ibid.

77. Richard Briffault, “Our Localism: Part I—The Structure of Local Government Law,” Columbia Law Review 90, no. 1 (1990): 1–115.

78. Michael Schill, “Implementing the Federal Fair Housing Act: The Adjudication of Complaints,” in Fragile Rights within Cities: Government, Housing, and Fairness, ed. John M. Goering (Lanham, MD: Rowman and Littlefield, 2007), 143–176.

79. Margery Austin Turner, Rob Santos, Diane Levy, Doug Wissoker, Claudia Aranda, and Rob Pitingolo, “Housing and Discrimination against Racial and Ethnic Minorities 2012” (Urban Institute, 2013); Devah Pager and Hana Shepherd, “The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets,” Annual Review of Sociology 34, no. 1 (2008): 181–209.

80. Robert G. Schwemm, “Overcoming Structural Barriers to Integrated Housing: A Back-to-the-Future Reflection on the Fair Housing Act’s Affirmatively Further Mandate,” Kentucky Law Journal 100 (2011): 125.

81. 425 F. Supp. 987, 1013–21 (E.D. Pa. 1976), aff’d in part, rev’d in part, 564 F.2d 126 (3d Cir. 1977).

82. Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977).

83. 817 F.2d 149, 161 (1st Cir. 1987).

84. United States ex rel. Anti-Discrimination Center of Metro New York v. Westchester County, No. 668 F. Supp. 2d 548, 563, 570–71 (S.D.N.Y. 2009).

85. Olatunde C. A. Johnson, “Beyond the Private Attorney General: Equality Directives in American Law,” NYU Law Review 87 (2012): 1339; Olatunde C. A. Johnson, “Overreach and Innovation in Equality Regulation,” Duke Law Journal 66 (2016): 1771; Justin P. Steil, “Antisubordination Planning,” Journal of Planning Education and Research (forthcoming), available at https://doi.org/10.1177/0739456X18815739.

86. Justin P. Steil and Nicholas F. Kelly, “The Fairest of Them All: Analyzing Affirmatively Furthering Fair Housing Compliance,” Housing Policy Debate 29, no. 1 (2019): 85–105.

87. Xavier de Souza Briggs, ed., The Geography of Opportunity: Race and Housing Choice in Metropolitan America (Washington, DC: Brookings Institution Press, 2005).

88. Raj Chetty, Nathaniel Hendren, and Lawrence F. Katz, “The Effects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment,” American Economic Review 106, no. 4 (2016): 855–902.

89. Douglas S. Massey, Len Albright, Rebecca Casciano, Elizabeth Derickson, and David N. Kinsey, Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb (Princeton, NJ; Princeton University Press, 2013).

90. Chester Hartman, “The Right to Stay Put,” in Land Reform, American Style, ed. Charles. C. Geisler and Frank. J. Popper (Totowa, NJ: Rowman and Allanheld, 1984), 302–318; see also Kathe Newman and Elvin K. Wyly, “The Right to Stay Put, Revisited: Gentrification and Resistance to Displacement in New York City,” Urban Studies 43, no. 1 (2006): 23–57.

91. Margery Austin Turner, “Beyond People versus Place: A Place-Conscious Framework for Investing in Housing and Neighborhoods,” Housing Policy Debate 27, no. 2 (2017): 306–314.

92. Nancy Andrews and Dan Rinzler, “Holistic Place-Based Investments,” in The Dream Revisited: Contemporary Debates about Housing, Segregation, and Opportunity, ed. Ingrid Ellen and Justin P. Steil (New York: Columbia University Press, 2019), 233–234.

93. There have often been fierce debates between these two perspectives, as Bostic, O’Regan, Pontius, and Kelly describe in Chapter 2; see also David Imbroscio, “‘United and Actuated by Some Common Impulse of Passion’: Challenging the Dispersal Consensus in American Housing Policy Research,” Journal of Urban Affairs 30, no. 2 (2008): 111–130; Xavier de Souza Briggs, “Maximum Feasible Misdirection: A Reply to Imbroscio,” Journal of Urban Affairs 30, no. 2 (2008): 131–137. Mary Pattillo has written about a conundrum intertwined with mobility approaches: that the promotion of integration by race or by class “as the means to improve the lives of Blacks stigmatizes Black people and Black spaces and valorizes Whiteness as both the symbol of opportunity and the measuring stick for equality. In turn, such stigmatization of Blacks and Black spaces is precisely what foils efforts toward integration” (in The Dream Revisited: Contemporary Debates about Housing, Segregation, and Opportunity, ed. Ingrid Ellen and Justin P. Steil [New York: Columbia University Press, 2019], 30). Others, such as Goetz in this volume, suggest that a focus on mobility can in some contexts pave the way for gentrification, developer profit, and the dispersal of Black communities. Critic of an emphasis on place-based investments have argued that these policies, despite decades of efforts, have not meaningfully changed the racially and economically unequal geographies of the United States and have instead continued to perpetuate segregated and unequal living patterns.

94. 24 C.F.R. § 5.152.

95. Ibid.

96. Ibid.

97. Justin P. Steil and Nicholas F. Kelly, “Survival of the Fairest: Examining HUD Reviews of Assessments of Fair Housing,” Housing Policy Debate 29, no. 5 (2019): 736–751.

98. National Association for the Advancement of Colored People, Washington Bureau, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 16, 2013.

99. Letter from forty-one national civil rights, fair housing, women’s, disability, LBGT [Lesbian, Bisexual, Gay, Transgender], and consumer organizations, and labor unions, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

100. National Council of La Raza, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

101. National Community Reinvestment Coalition, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

102. NAACP Legal Defense Fund, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

103. The Lawyers’ Committee for Civil Rights Under Law, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

104. Poverty and Race Research Action Council, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

105. Ibid.

106. Ibid.

107. National People’s Action, Comment re: Proposed Rule Affirmatively Furthering Fair Housing.

108. National Low Income Housing Coalition, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

109. Coalition of Large Public Housing Authorities, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

110. National Association of Housing and Redevelopment Officials, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, September 17, 2013.

111. Carson, “Experimenting with Failed Socialism Again.”

112. Ibid.

113. Sharon Howard, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, August 12, 2013.

114. Chris Brown, Comment re: Proposed Rule Affirmatively Furthering Fair Housing, Docket No. FR-5173-P-01, August 14, 2013.

115. Ibid.

116. 83 Fed. Reg. 683, January 5, 2018; 83 Fed. Reg. 23927, May 23, 2018.

117. 85 Fed. Reg. 2041, January 14, 2020.

118. 24 C.F.R. § 5.152.

119. 85 Fed. Reg. 2041, 2053, January 14, 2020. It further delineated three dimensions of this choice: “protected choice,” “which means access to housing without discrimination”; “actual choice,” “which means not only that affordable housing options exist, but that information and resources are available to enable informed choice”; and “quality choice,” “which means access to affordable housing options that are decent, safe, and sanitary.”

120. 85 Fed. Reg. 2041, 2053, January 14, 2020.

121. Ibid.

NOTE REGARDING CAPITALIZATION:

Throughout this volume, we have capitalized “Black” but not “white.” As a social construction, race is also a construction of language. Some style guides recommend writing “white” and “black” in all lowercase letters. Lori L. Tharps has made a case for why she “refuse[s] to remain in the lower case” and have her “culture . . . reduced to a color.” As Tharps and others have highlighted, Du Bois fought to have the “n” in Negro capitalized nearly a century ago, and when the New York Times ultimately agreed, in 1930, the editorial board wrote, “In our ‘style book’ ‘Negro’ is now added to the list of words to be capitalized. It is not merely a typographical change; it is an act of recognition of racial self-respect for those who have been for generations in ‘the lower case.’” If “Black” is capitalized, should “white” then also be capitalized? Some style guides accept the capitalization of both for consistency. Touré explains that he chooses to capitalize “Black” and write “white” in lowercase because he believes that “‘Black’ constitutes a group, an ethnicity equivalent to African-American, Negro, or, in terms of a sense of ethnic cohesion, Irish, Polish, or Chinese” but that whiteness does not merit the same treatment. Touré notes that “most American whites think of themselves as Italian-American or Jewish or otherwise relating to other past connections that Blacks cannot make because of the familial and national disruptions of slavery.” Because “Black speaks to an unknown familial/national past it deserves capitalization,” but white does not. We agree.