Fair Housing from the Inside Out
A Behind-the-Scenes Look at the Creation of the Affirmatively Furthering Fair Housing Rule
RAPHAEL W. BOSTIC, KATHERINE O’REGAN, AND
PATRICK PONTIUS, WITH NICHOLAS F. KELLY
After nearly fifty years of federal inaction to meaningfully implement the “affirmatively furthering” fair housing mandate of the Fair Housing Act, how did the Department of Housing and Urban Development (HUD) and the Barack Obama administration successfully promulgate the Affirmatively Furthering Fair Housing (AFFH) Rule? As former leaders in HUD’s Office of Policy Development and Research and the Office of the Secretary, we were part of the HUD-wide AFFH rule-making team that included dedicated, hard-working career staff who helped shepherd the rule from its internal HUD beginnings in 2009 through its final 2015 publication and implementation in 2016. This chapter describes our three perspectives regarding working at HUD, with Nicholas Kelly’s help to bring our thoughts together. It provides an inside view of how the most significant federal effort in a half century to address segregation through the Fair Housing Act came to be. We hope that this story illustrates some of the struggles that persist in defining and implementing the Fair Housing Act’s affirmatively furthering obligation as well as how we might overcome them by not permitting the dismantling of the AFFH Rule.
In this chapter, we describe how reforming the previous process landed on HUD’s regulatory agenda and then delve into the long journey of consensus building within HUD, looking at the key phases of rule making and the mechanisms we used to succeed in promulgating a highly contentious regulation in a very challenging environment. We then provide an overview of several key policy innovations that came out of that process and are critical components of the final AFFH Rule. We demonstrate the value of an approach to affirmatively furthering fair housing that centers more on using the AFFH process as a practical planning tool rather than one that relies solely on legal enforcement.
After decades of insufficient progress in the capacity to affirmatively deliver fair housing at the national level, HUD was able to develop a framework that has great potential. Although the Donald Trump administration effectively suspended implementation of the final AFFH Rule, we hope that this chapter—and book—will help a future administration and the public better understand why this rule is important for our nation. In spite of its suspension and subsequent rescisssion, many communities around the country continued to use some of or all the pieces of the rule in their HUD planning. We see great potential to learn from those efforts so that it will be easier to pick up the ball in the future and continue to learn about, refine, and make improvements to the AFFH framework—all so that we can actually fulfill the goals set out in the Fair Housing Act more than fifty years ago.
A Brief Overview of Why the Department of Housing and Urban Development Decided to Undertake the Affirmatively Furthering Fair Housing Rule
Four key factors led Secretary Shaun Donovan and the HUD team to put the AFFH Rule on the policy agenda: the general understanding from fair housing advocates and community development practitioners of the inadequacies of the existing Analysis of Impediments (AI) process; an internal review by HUD corroborating these presumed deficiencies; most crucially, a report from the Government Accountability Office (GAO) that reiterated these points; and the damaging role of racial segregation and concentrated poverty given a new urgency by the foreclosure crisis and the differential impacts of hurricanes.
Prior to the AFFH Rule, a regulatory requirement and process were in place for communities receiving HUD formula grants (such as the Community Development Block Grant [CDBG]) as part of meeting their obligation to affirmatively further fair housing.1 This process relied on a relatively broad, loosely defined AI (this regulatory requirement was part of the broader AFFH requirement listed in the Consolidated Plan regulations at 24 CFR Part 91), which all jurisdictions were required to complete as part of their HUD planning process. An AI was supposed to lay out all the impediments to fair housing choice in that particular locality so that the locality could undertake appropriate action to overcome the effects of those impediments.
Unfortunately, the AI process appeared to have many flaws in practice. First, many communities hired consultants to create the AIs rather than conduct the analyses themselves, and it was suspected that some local officials may not have even read them. If true, it is hard to see how an AI could then inform any strategies to address the impediments. Second, HUD did not generally review AIs, so little was known about their quality or whether municipalities were conducting them regularly. Finally, there was no explicit connection between any impediments identified in the AI and strategies to address them via a community’s consolidated plan, which lays out the community’s investment priorities for its major HUD funding stream. At base, the AI lacked any formal way to couple planning to meaningful action.
Aware of the suspected deficiencies in the AI process, Secretary Donovan tasked HUD with conducting an internal review of some set of the AIs in 2009. Importantly, the GAO decided to conduct a similar assessment as well.2 Both studies provided remarkably strong critiques of the AI process, finding it highly flawed and ineffective. The GAO report detailed a lack of clarity for the grantees and revealed that HUD had employed inconsistent compliance requirements over the last couple of decades.3 Only 40 percent of jurisdictions could produce current AIs, and many of them were quite out of date. The GAO report called for Secretary Donovan to address the highly flawed AI process.
The failures of the AI process and HUD’s limited AFFH efforts were made more salient by the ongoing foreclosure crisis and how it was particularly debilitating in urban communities of color. Advancing fair housing entered the Obama administration agenda in large part because of the continued realization that racial segregation and areas of concentrated disadvantage had become the source for so much other damage and that our country had not done enough to address these issues. Sometimes things happen in waves. The 1968 Fair Housing Act was passed fewer than two months after release of the Kerner Commission’s report, which attributed the spate of urban riots to racial segregation and the disparities in opportunity this creates.4 Forty years later, President Obama and Secretary Donovan were looking at segregated urban communities and feared that those same characteristics were continuing to drive persistent disadvantage and laying the groundwork for another round of negative impacts. We finally had a leadership environment that wanted to get it done.
Political scientists have theorized about what conditions are necessary for major policy changes like the AFFH Rule. John Kingdon’s policy streams approach argues that policy windows like the one that opened during the AFFH process occur when (1) policy issues come to be seen as a problem, (2) political conditions change to enable the consideration of new policy ideas, and (3) policy communities have developed solutions to address the problem at hand. At least the first two streams were present in 2009: while advocates had known about the deficiency of the AI process for many years, the GAO report served as a “focusing event” that provided the extra initiative for change, and the election of President Obama and corresponding changes in staff at HUD were essential for putting the possibility of an AFFH process on the agenda.5 But as the next section illustrates, there was far from a consensus on the appropriate policy solution.
The Long Process to Promulgate a Final Affirmatively Furthering Fair Housing Rule
So, how did the AFFH Rule become a reality? The story we tell here is one of consensus building of the highest order. A number of debates within the fair housing community as well as between fair housing and community development advocates made the process much more difficult. Indeed, our nickname for the AFFH process within HUD was “the Civil War Project” because even within the agency, this issue brought out that kind of passion and opposition. At times, these were angry meetings. It is worth emphasizing that this level of conflict was occurring fully within HUD, well before the initiative became public and we encountered some external opposition.
One source of that conflict was limited resources. We live in an environment and a society where resources are scarce and where federal agencies—especially HUD—do not have enough money to do all the things they might want to do. This situation fosters a zero-sum view, wherein every dollar spent in one area is simply seen as a dollar not spent in another. Staff from different program offices within HUD, and advocates for those programs outside HUD, often opposed any increased programmatic effort not in their own areas, even when they did not oppose the effort itself.
That was the backdrop for this entire discussion. In broad strokes, we aspired to have a collectively owned and meaningful AFFH process for all involved, one that would be useful for the grantees on the ground and in the actual community, not just useful for HUD. We wanted this process to be easy to understand—easy enough for one’s parents to understand why AFFH matters; easy enough for regular people to be able to use public-facing data and tools to comprehend the current state of affairs in their community; and easy enough to create eureka moments of awareness, such as why are all of our communities of poor Black residents here and why are all the high-performing schools there? This process would give communities an avenue to discuss the complex issues of segregation and access to opportunity, which in turn would help citizens better understand their communities and what perpetuates disparities and make it easier to figure out what might be done to improve the situation.
A major challenge, though, was that we knew that the problems we were trying to address went back generations and that the amount of money we controlled in this process was small and dwindling. But we (and many others) believed that reforming the process for AFFH and making the assessment and planning tools actually useful and doable was important, and so we had high hopes, tempered with cautious optimism.
Phase 1—False Starts: Initial Failed Attempts (Late 2009 through End of 2010)
Despite many good intentions, the new AFFH rule-making process began in late 2009 with a series of failures. The first effort was launched in the Office of Fair Housing and Equal Opportunity (FHEO)—the office with the primary responsibility of managing AFFH and the AI process—but it was unable to gain support from other parts of HUD. Consequently, Secretary Donovan moved the rule-making process to the General Counsel’s office. Staffers tried there but, again, failed.
After these initial two failures, Secretary Donovan was frustrated. He brought senior leadership together in the fall of 2010 to announce a “fair housing retreat” to force everyone to talk about what a new AFFH Rule could look like. At the meeting, he asked for the creation of a mission statement.
In trying to draft a mission statement, senior leadership faced a critical existential question about what AFFH means—is it a compliance or a planning process? Seen most broadly, HUD already had a substantial infrastructure established to eliminate discrimination, largely through enforcement by the FHEO office. That office funds nonprofits and legal aid organizations and offers technical assistance to tenants as well. Those programs focus primarily on enforcement and compliance.
Enforcement and compliance are vital, but a new AFFH Rule promised to be something different. The history of discrimination and segregation in this country has had lasting impacts that needed to be addressed proactively. The rationale behind the rule was that if we were going to move forward, we needed to do so affirmatively, with proactive purpose. We needed to actively use resources to try to redress those disparities and dismantle them. And so, in addition to stopping discrimination and its effects, the Fair Housing Act called on HUD to encourage communities to affirmatively create policies and use resources to make a difference.
HUD has an established infrastructure to support enforcement and compliance, but on the “affirmative” side, such infrastructure is far less robust. At the most basic level, HUD has a carrot and a stick. The enforcement and compliance are the stick; the AFFH Rule is the carrot. HUD has devoted substantial resources to the stick side, so communities have been largely reluctant to engage in these conversations. From their experience, when they have this conversation, they get pushback. Ultimately, we decided it was important to lift up the carrot to convey the agency’s recognition that positive things could happen if we pursued strategies to advance fair housing and to signal that HUD wanted to help communities do that. So, that was the goal. The HUD leadership needed to carry out a process of rule setting that would garner this broader buy-in and get people to see AFFH as a planning tool—the first step in a longer series of events culminating in investments and actions.
For the AFFH process to be meaningful, we argued that it would have to have some teeth and that HUD would also have to have some “skin in the game” as a partner working with the grantees. This accountability had two important parts. The first was committing HUD to providing a clear, base-level set of data with a standard framework for analysis (what became the Assessment of Fair Housing [AFH] tool) and requiring grantees to submit their completed AFHs to HUD for review. The second was connecting this analysis to existing planning requirements for funding recipients—the Consolidated Plan for jurisdictions and the Public Housing Authority (PHA) plans required of PHAs. Rather than a jurisdiction’s assessment potentially just sitting on a shelf, HUD would actually verify whether a grantee was then making investment decisions in its Consolidated Plan and PHA plan that related to issues raised in the AFH. This approach was how we thought we could best effect change.
It was hoped that the AFFH Rule and the AFH tool at the core of the rule would start a conversation within municipalities about addressing long-standing fair housing issues. We expected that this process would be incremental, a first step in a much longer game. Most grantees have three-to five-year planning cycles, and we were not going to address deeply rooted, systemic problems in five or even ten years. But the fact that communities would actually have to have this conversation was one of the most important pieces—it is one thing to know that fair housing barriers and disparities exist, but actually sitting down in a room with people in the community and facing them—you can’t brush it off or laugh it off. The AFFH process was meant to force the conversation and also equip the public to discuss those issues.
The ideal outcome would be for communities to have a first conversation, use the AFH tool to complete and submit a first AFH with their goals, connect these goals to actions in their Consolidated and PHA Plans, and then repeat the process in five years. Then this process would become an incremental layer, an opportunity to discuss what was and wasn’t working; this knowledge could then be used to modify their goals and strategies. It might not be until the third or fourth planning cycle—perhaps as far as twenty years down the road—when some communities would start seeing the needle really move. Ideally, a series of interrelated players would be working together. Then, through this process, communities would gain a very clear, transparent entry into what had been a hidden process bogged down by the baffling language of consultants during the AI era.
Resolving that the rule was meant to be a planning tool with some teeth for enforcement helped us land on a mission statement that we could use to start anew and kick off the second phase of the rule-making process.
Phase 2—Pivot to Success: Launch of the Affirmatively Furthering Fair Housing Council and Development of a Proposed Rule (January 2011 through July 2012)
We started the new process in February 2011 by launching a departmental AFFH Council with representation from all the core offices (e.g., Fair Housing and Equal Opportunity [FHEO], Community Planning and Development [CPD], Public and Indian Housing [PIH], Office of the General Counsel [OGC], Policy Development and Research [PD&R], and so forth) that would be integral to the process. In recognition of the inherent tensions between the offices charged with administering AFFH (FHEO and, to some degree, the OGC) and those that worked directly with the grantees that were subject to the AFFH obligation (CPD and PIH primarily), Secretary Donovan made PD&R the neutral lead convener for the rule-making group. We also began an external listening tour with a variety of urban and rural jurisdictions and PHAs from coast to coast to get initial thoughts on the AI process and what might improve it.
We set an ambitious timeline to have the draft rule ready by the summer of 2011, but in doing so, we were extremely naïve. Efforts had failed for two years previously, and dealing with race, integration, and other complex issues requires making major, complex policy decisions. It took much longer than expected. We met twice a week with the full rule-making council, where we would tee up and strive to resolve significant policy decisions: How should we define a racially concentrated area of poverty? What opportunity measures should we use (if we used them at all)? What kinds of maps should we provide?
Members of the council had widely different opinions, and the tension between planning and enforcement resurfaced. Many wanted to focus on making the AFFH Rule’s language and implementation tools practical. But others argued that the AFH tool must pass a legal threshold of sufficiency to be useful for enforcement. When working on some element of the assessment tool or a key definition, we tried to make it practical (e.g., “If I worked for a city, I could do this, and if I’m a layperson in the community, I’ll understand what we’re trying to do.”). But this kind of thinking quickly got very specific in terms of requirements for communities, and a strong faction insisted that this level of practical analysis was not sufficient, given the Fair Housing Act. This tension between planning practicality and legally sufficient compliance proved to be incredibly challenging despite the core foundation established by the secretary: that this process would be first and foremost for planning.
The whole process of getting all the different program offices within HUD on board took a full year-and-a-half. One group wrote draft language for a particular section of the rule, for example, while another wrote language for another section. When we could not resolve disagreements, we would take them to the secretary for resolution. Then we would go back to working. It was basically slowly moving the ball down the field. We were trying to be as transparent as possible across offices. Since everybody in the department owned a piece of it, this process could not be done behind the scenes. It was a game changer for the way HUD hoped (and hopes) to operate, but it made the process a lot longer.
Rather than just “write it up and publish it,” we undertook an arduous, iterative process with key staff involved from each office as well as senior leadership. We constantly reiterated the importance of this rule’s being departmental, something that everyone owns. Eventually, we reached agreement on the elements that we thought communities needed to analyze and had the proposed AFFH Rule and a starting outline for the AFH tool ready by mid-2012. Reaching this milestone included an extensive back-and-forth review process with the White House’s Office of Management and Budget (OMB) and its Office of Information and Regulatory Affairs.
Phase 3—Unexpected Turbulence: Political Uncertainty and Delayed Publication of the Proposed Rule (July 2012 through July 19, 2013)
With our approval from OMB and positive meetings with the White House, we planned to publish the proposed AFFH Rule in the Federal Register and have President Obama announce it in a speech at the National Urban League Conference in New Orleans on July 25, 2012. But we quickly learned that major policies, such as AFFH, are not only extremely complex to develop inside one federal agency; they are also just as hard to roll out given the especially difficult and unpredictable politics that come with a presidential election year. Due to an unfortunate and completely unforeseen event not at all related to HUD and AFFH, the release of the proposed rule was delayed. We hoped this delay would be temporary, but this initial hiccup and the uncertainty of the upcoming election soon affected not only the AFFH Rule but all major regulations in the queue across the federal government. Secretary Donovan tried valiantly to regain the “green light” for publication without the formal announcement by the president, but the entire regulatory engine had shut down by late August. We immediately went into a Plan B contingency mode, adapting much of the proposed rule as new guidance for the existing AI regulatory requirement should the administration change following the election. Fortunately, we did not need the contingency, but we naïvely thought we could pick up where we had left off and publish the new rule soon after the election.
The election delay necessitated a tremendous amount of work just to get back to where we had been in July. We ended up having to completely rebrief key offices in the White House and at OMB, which took up the entire first half of 2013. On July 19, 2013, we finally published the proposed AFFH Rule in the Federal Register after a very long journey, but this announcement was just the beginning of an even larger amount of work to come. We had basically lost an entire year.
Phase 4—The Final Push: Publishing and Implementing the Final AFFH Rule and AFH Tool (January 2014 through 2016)
Every proposed rule in the Federal Register goes through an extensive period of public review and comment. When the comment period on the proposed rule closed in late 2013, HUD had received well over one thousand comments to address in its final rule making. The long years of proposed rule making had exhausted almost all involved, but everyone knew that we had to dive back in and get this done. To set ourselves up for success, incorporate lessons learned from the proposed rule making, and adapt to leadership and personnel changes, we invested a significant amount of time in the winter of 2014 in establishing working norms and operating protocols. The primary neutral stewardship role had moved from PD&R to the Office of the Secretary, run by a senior adviser to the secretary. This person met with each key office career staff member to solicit feedback and then convened all the assistant secretaries and deputy secretaries to codify a full set of guidelines, expectations, and resource allocations for final rule making, something we had not had in place for the proposed rule making. These norms and protocols became the gold standard that everyone could use to anchor our shared ownership and accountability while trying to maintain civility during complex policy making. Although we had worked through many critical issues in proposed rule making, we had also punted many concerns, and many public comments homed in on critical issues that we still needed to resolve.
With a firm commitment for regular involvement from the secretary and the deputy secretary to each assistant secretary, a dedicated full-time career staff member from each core office, and the aforementioned set of norms and protocols in place, we officially launched final rule making in February 2014. This endeavor focused on two primary components: (1) addressing the thousand-plus comments and drafting the final rule’s language; and (2) finalizing the first draft of the AFH tool, including the data, which would need to go through its own period of public review and comment.
We were working fervently to develop two sets of complex, interdependent language for the rule and the AFH tool. Most critically, we had to move these two pieces together at an urgent “lock-step” pace, as we knew that even if we published a final rule, we could not implement it without a fully vetted and approved AFH tool since that was how the public and our grantees would actually fulfill the AFFH obligation. And the clock was ticking to 2016, uncertainty around another major election, and whether the next administration would carry forward the AFFH torch. Additionally, HUD underwent a leadership change with the transition from Secretary Shaun Donovan to Secretary Julián Castro in the summer of 2014. Folks worked hard to get the incoming secretary up to speed and fully invested, as there was no guarantee he would have the same commitment to AFFH as his predecessor. Fortunately, Secretary Castro dove in and fully committed to releasing the new AFFH Rule.
The departmental HUD team worked around the clock in two overlapping work groups on the rule and the AFH tool. The process of reaching consensus on the AFH tool was incredibly difficult, because it often involved relitigating policy issues ostensibly agreed upon months earlier during the proposed rule making. Compromises on vague language resurfaced once we needed to get specific and concrete, issues reopened that some believed had already been resolved, and the turnover in players at senior appointee levels did not help. But we persevered due to the hard work and determination of everyone involved, especially the dedicated career staff from each office.
On September 26, 2014, HUD published a proposed AFH tool, which went through significant public review and comment and then further revision by HUD staff for most of 2015. Simultaneously, the same core group of HUD staff worked diligently on the final rule. After a very long journey, HUD published the final AFFH Rule in the Federal Register on July 16, 2015. But the fun did not end for the AFFH team: we continued to refine the AFH tool and published a final version for larger CDBG grantees on December 31, 2015, which would allow implementation to begin in earnest in 2016.
After some brief pauses to celebrate these major milestones, the team dove back in to work on developing AFH tools for PHAs and states as well as on drafting further guidance for grantees and planning for implementation and the first round of AFH submissions. 2016 was a sprint! By the end of the Obama administration, HUD had a final AFFH Rule and AFH tool for larger CDBG grantees in place, a first round of grantees who had worked on and submitted their AFHs in late 2016, and in-progress drafts of AFH tools for PHAs and states.
Phase 5—Stalled Out: Affirmatively Furthering Fair Housing in the Trump Administration (January 2017 through the Present)
The transition to a new administration in January 2017 proved challenging, and as of this writing, in early 2020, the future of AFFH is very uncertain. HUD published the AFH tool for states on March 11, 2016, but never finalized it. HUD then published the AFH tool for PHAs on January 13, 2017, under the condition that it would not get implemented until HUD issued guidance and data. Then, in 2018, HUD Secretary Ben Carson and the new HUD political leadership essentially halted the implementation of AFFH by suspending the tool that the rule requires grantees to use to complete their AFHs. The administration also announced that it would be undertaking a rule-making process to modify the AFH tool and the rule itself. Many of the key career staff involved throughout AFFH rule making and implementation became discouraged, and some left the agency altogether. Still, there was reason for some hope. The AFFH Rule and the AFH tool was released to the public, and a whole first round of grantees (many highlighted in this book; see Chapters 3 and 8) submitted completed AFHs by using the new rule and tool. They have overwhelmingly supported the new process and found it useful. As part of meeting their general AFFH obligations, some jurisdictions are conducting analyses and using a process that essentially mimics the rule. In January 2020, HUD issued a proposed rule, discussed in the Introduction and the Conclusion to this volume, that if finalized would reverse the core innovations of the 2015 AFFH Rule.
While the 2015 AFFH process is far from perfect, it is a big step in the right direction of affirmatively furthering fair housing. We hope that future administrations will pick it back up so our nation can actually equip communities with the tools and a framework to address barriers to fair housing and make investments to mitigate the effects of segregation. The suspension of the AFH tool was a serious setback, followed by HUD’s rescission of the rule altogether. In reflecting on the development of the rule, we attempt to situate our deliberations at HUD within broader theories about how policy making operates. Finally, we end on an optimistic note by highlighting the major policy and practical innovations that we think stand out in the AFFH Rule—components that any future administration should build on in its efforts toward AFFH.
Theories of the Policy Process and Affirmatively Furthering Fair Housing
We noted at the beginning of this overview that Kingdon’s policy streams approach partly helped explain the creation of the AFFH Rule: first, with significant changes in the politics stream with the election of President Obama, and, second, with a series of reports on the inadequacy of the AI process that helped bring attention to the need for policy change. But as our discussion of the internal negotiations at HUD has demonstrated, there was far less of a consensus on the policy solution itself.
We believe that several other theories of the policy process align with our experience of the internal process at HUD that led to the specific AFFH Rule. The resistance of various departments within HUD to the AFFH process, because of a perceived diversion of resources from their own departments, aligns well with a theory of institutional rational choice, with its emphasis on individuals acting out of their own self-interest; this theory seems to partly explain our difficulty in achieving consensus.6 Indeed, the failures experienced in Phase 1 demonstrated the deeply held beliefs represented in the agency’s different factions. To that end, the idea of an advocacy coalition framework (ACF), with its emphasis on competing groups vying with one another to achieve their policy ends, better captures the fiercely competitive nature of the process.7 The launch of the AFFH Council in Phase 2 created a cross-HUD process and infrastructure for surfacing those conflicts regularly, as part of a slow process of finding compromise. Indeed, consistent with this perspective, the balanced approach ultimately endorsed in the AFFH process represented an example of compromise—not of core beliefs among these advocacy coalitions but of a policy learning around “secondary” aspects of the belief system of the groups involved. The ACF approach predicts that such policy-oriented learning is a slow process that requires years to develop—consistent with the glacial process of getting AFFH approved within HUD.8 This framework seems to better explain our experience with the AFFH process than one focused on punctuated equilibrium, with long periods of stability followed by short periods of significant change.9 Although the AFFH process represented a significant change, it was a drawn-out progression that mostly involved internal debate within the agency rather than a rapid transformation. Furthermore, as Chapter 3 discusses in its interviews with government officials, the AFFH Rule represented a more significant policy change than that predicted by incremental approaches to institutional change.10
Key Innovations of the Affirmatively Furthering Fair Housing Rule
Out of the arduous rule-making process emerged what we believe to be an innovative planning tool for local communities to address segregation and increase access to opportunity. Four key innovations lie at the heart of the rule’s potential. First is its power as a planning tool, which begins with the provision of a standardized assessment mechanism that is then linked to grantees’ investment plans. Second, for the first time, the rule defines the goal of AFFH and makes clear that access to opportunities that come with housing is at its core. The assessment tool adds concreteness to the concept of access to opportunity through its opportunity indices and analysis of racially and ethnically concentrated areas of poverty. Third, while the rule codifies the overall AFFH goal, it does not dictate local strategies; importantly, it explicitly embraces a both/and approach to the perennial tension between mobility and place-based strategies. And fourth, it embraces a more transparent and inclusive process by requiring robust community engagement as well as public provision of data with a standardized assessment framework.
Affirmatively Furthering Fair Housing as a Meaningful Planning Tool for Future Action
Most broadly, AFFH’s approach to fair housing ties the process to bolder challenges through planning rather than solely through enforcement. HUD designed the AFFH Rule this way because of our theory of how communities would learn and respond—they would first use the AFH tool to identify fair housing barriers and develop an AFH with goals, incorporate concrete strategies in their subsequent HUD plans to address the goals set in the AFH, assess their progress in future AFHs, and then start the cycle all over again.
To better enable communities to learn during their assessment processes, HUD developed a standardized AFH tool, which essentially walked grantees through a set of analyses meant to support the jurisdiction’s decision making about which goals to prioritize and which strategies to adopt to accomplish those goals. The AFH tool was meant to clarify what such an assessment should entail and address many of the concerns raised in the GAO report and elsewhere, including specifying concrete goals that can be measured, along with timelines.
Critical to the AFFH process overall, the AFHs had to be submitted to HUD and then be referenced in subsequent plans submitted (the Consolidated Plan for jurisdictions and the PHA Plan for PHAs). This requirement created a direct link from the AFH analysis and proposed strategies to action—actual programmatic and investment decisions of participants. While the submission of both plans to HUD provided checks on this process, the expectation was that communities going through this process would genuinely learn during their assessments and that those lessons would shape their HUD plans and their actions.
The learning was meant to continue in each cycle. AFHs were required in advance of every major planning cycle (generally three to five years apart), and each AFH started by assessing progress on the goals and strategies from the prior assessment. Some strategies may not have been adopted or may not have had the intended effects, so those revelations would be part of the public process of again assessing how the community was faring as well as surfacing new issues and ideas.
Broadening the Analytical Focus: Access to Opportunity and Areas of Racially or Ethnically Concentrated Poverty
A number of novel elements of the AFH tool are particularly worth emphasizing for how they embodied HUD’s commitment to making the AFFH Rule work as a planning tool for local communities. One of the most important was the explicit focus on access to opportunities that come with housing. Doing so harkened back to the original context of the Fair Housing Act, since its adoption was driven by the extreme disparities in opportunities that existed at the time. As noted, the Kerner Commission report connected many of those disparities to residential segregation and disparities in places. More recent research by Raj Chetty and his coauthors has confirmed that being raised in racially concentrated areas of poverty alters the life trajectory of residents, even today.11
Calling that out and focusing on the spatial aspect of opportunity were quite important to the rule. Physical separation within our society is integrally linked to inequality within our society; making progress on lessening inequality requires addressing this separation and the associated disparities in places.
The rule establishes the importance of opportunity in its clarification of the meaning of the AFFH mandate, which requires that jurisdictions take meaningful actions to “overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics” [emphasis added].12 The rule operationalizes “opportunity” within the AFH tool in two main ways. First, jurisdictions must assess disparities in a variety of opportunities typically accessed through neighborhoods, such as the quality of schools, access to public transit, and access to jobs. Second, jurisdictions are required to focus particular attention on areas of racially or ethnically concentrated poverty (R/ECAPs), areas of concentrated disadvantage that have historically provided the least access to opportunities.
While the link to opportunity and use of R/ECAPs became core to the rule, many fair housing staff and stakeholders were initially uncomfortable with this way of thinking about fair housing issues. The traditional fair housing stance does not incorporate a lens of concentrated poverty or opportunity. The AFH tool, however, directed communities to not only assess patterns of segregation but also attend to how those patterns might connect to disparities in neighborhood-based opportunities; the consideration of R/ECAPs required communities to consider where segregation may be having some of its most profoundly negative effects. This recasting highlights the emphasis of the AFFH Rule as a planning tool, used for prioritizing programmatic and investment efforts rather than solely for enforcing fair housing guidelines. It also provides the potential for the planning process to focus on nonhousing (and non-HUD) resources as part of a long-term strategy to improve spatial disparities across neighborhoods.
Locally Determined Priorities, Inclusive of Place-Based Reinvestment and Mobility
While the federal regulation sets the high-level goal of addressing residential segregation and disparities in opportunity, it does not prescribe any specific set of local strategies for achieving that goal. Communities are expected to have a data-informed and inclusive conversation and decide upon the right approach, given the local context. But we—HUD—were going to help them do it with the various components of the rule, including the AFH tool and the provision of data and technical assistance. This stance of HUD as a guiding partner is itself an innovation of the rule.
Nowhere was the tension between potential strategies more contentious than between place-based and mobility approaches (an issue discussed in more detail in Chapter 5). There is a lot of passion on both sides. Both groups point to the evidence showing the multiple negative consequences of living in segregated neighborhoods and areas of concentrated poverty. Advocates of mobility strategies say, “Let’s get people out of those places with concentrated poverty.” Their focus is on supporting households moving to areas that might provide better opportunities, particularly for economic advancement and for children. Advocates of redevelopment counter by asking, “Why should there be any places on the map characterized by such disadvantage? Why should we place the burden of moving—and all the disruption and isolation it can cause—on those who have been burdened most already?” The focus for this group is on investing in the neighborhoods to encourage economic mobility for their current residents.
What we tried to do through the regulation was to remain neutral in the mobility versus place-based debate, although this decision was hard-fought. The passions and tensions in the advocacy communities existed just as strongly among the HUD staff. It took a long time for everyone to get on board with a balanced approach that embraced place-based and mobility tactics. This balanced approach marked a sea change in the fight between people in the fair housing and community development camps. This multipronged approach said to HUD grant recipients that they should consider both approaches—addressing segregation by expanding access to areas of high opportunity and investing in neighborhoods to improve them as areas of opportunity for current residents. Jurisdictions need to enable mobility and decrease segregation, while also improving neighborhoods. They need to address nonhousing aspects of the neighborhoods that come with housing. That is one of the most critical things about this rule and makes it very different from what communities had been doing when they did their AIs.
We also hoped the AFFH Rule and AFH tool would produce some truly innovative strategies. When a community decided it wanted to adopt a strategy, such as increasing housing mobility, it was not obvious how exactly they would do it. Currently, there is not enough evidence to provide a menu of strategies that we know work in a given context. Although HUD provides some ideas based on the evidence of certain pilots, this rule is part of an important larger opportunity to tap into the creativity of hundreds or even thousands of communities across the country that are willing and able to try new things. We hoped communities would build on their local knowledge to find practical solutions that worked for their areas.
Empowering Inclusive Local Dialogue and Planning: Data and Community Engagement
The theory of how the AFFH process could truly move the needle on an issue as intractable as segregation rests on the apparatus the rule provides for a truly inclusive dialogue and process, in which data play a role in leveling the playing field.
At local community levels, all too often some people come with a lot more information than others, creating not only an uneven starting place for dialogue but also uneven power. Those with information can talk over others, particularly those groups whom they do not want to be part of the conversation. Because the data provided in the AFH tool were available to all, everyone was meant to have the chance to be fully informed and fully prepared to have a conversation. The common access to data should mean that when the public shows up and someone says something that is not right, individuals in the public who had access to the data could act as a correcting force by noting the disconnect. This kind of pause to correct things that are wrong does not happen nearly often enough in communities when plans or important investment decisions get made.
While nearly all the data provided in the AFH tool were already public, translating the data into readable maps and tables requires a level of sophistication and resources that many institutions, organizations—and certainly families—do not have. The AFH tool was meant to change that by creating an easy-to-use mapping system that conveyed the data in an easily digestible way for housing policy experts and novices alike.
Whether the form and ease are exactly correct is still an open question, but the logic is quite similar to that behind the Home Mortgage Disclosure Act (HMDA), the banking regulation that requires banks to provide publicly available information on every mortgage application they get and what happened to that application. Prior to the late 1970s, banks did not provide such data; hence there were no data to refute the claim by banks that they treated all individuals in the same manner. But the availability of HMDA data triggered a different conversation, in great part due to the use of those data by the advocacy community. The AFH tool armed advocates in the same way, enabling them to construct stories that were impossible to ignore and refute.
To enable the data to have this effect, the AFFH Rule requires a robust engagement process to ensure broad community participation, particularly from groups typically absent from local decision making. As part of the new process, jurisdictions must document their engagement strategies, post their draft AFHs publicly, and collect and respond to all public comments on the drafts in the AFHs they submit to HUD. This process includes explaining the rationale for not addressing specific comments in the content of the AFHs, much as federal agencies must address public comments in the rule-making process.
Robust, inclusive community engagement may be one of the most difficult components of the AFFH Rule to achieve, and several of the initial earliest AFH submissions to HUD in late 2016 may have fallen short. But evidence suggests that AFH submissions received before the suspension of the tool documented considerably more robust public engagement than did the AIs previously submitted by those jurisdictions.13
Final Thoughts
No new approach is flawless, and AFFH is no exception. HUD expected that the rule and its assessment tools would evolve as they were used, incorporating lessons on what was most and least useful. Indeed, the AFH tools themselves are subject to public comment and potential revisions every three years as part of the requirements of the Paperwork Reduction Act. But as HUD considers what revisions it may make to the Rule and tools, and as communities and future administrations think about building from the framework created, we continue to believe that the 2015 version of the rule has “good bones.” It is a platform to build on, one that includes true innovations for creating a process that may be the start of really implementing the AFFH mandate of the Fair Housing Act, albeit fifty years late.
ENDNOTES
1. The Fair Housing Act of 1968 created this obligation for federal agencies undertaking housing and community development activities, and this obligation extends to how those funds are spent.
2. The specific congressional requester that triggered the GAO report is not delineated in its report.
3. U.S. Government Accountability Office, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans (GAO-10-905), 2010, available at https://www.gao.gov/new.items/d10905.pdf.
4. Otto Kerner, Report of the National Advisory Commission on Civil Disorders, 1968, available at https://www.ncjrs.gov/pdffiles1/Digitization/8073NCJRS.pdf.
5. John W. Kingdon, Agendas, Alternatives, and Public Policies (Boston: Little Brown, 1984).
6. Elinor Ostrom, Understanding Institutional Diversity (Princeton, NJ: Princeton University Press, 2005).
7. Paul A. Sabatier, “Policy Change over a Decade or More,” in Policy Change and Learning: An Advocacy Coalition Approach, ed. Paul A. Sabatier and Hank C. Jenkins-Smith (Boulder, CO: Westview Press, 1993), 13–39.
8. Paul A. Sabatier and Christopher M. Weible, “The Advocacy Coalition Framework: Innovations and Clarifications,” in Theories of the Policy Process, ed. Paul A. Sabatier (Boulder, CO: Westview Press, 2007), 189–220.
9. Frank R. Baumgartner and Bryan D. Jones, “Agenda Dynamics and Policy Subsystems,” Journal of Politics 53, no. 4 (November 1991): 1044–1074.
10. Kathleen Thelen, “Historical Institutionalism in Comparative Politics,” Annual Review of Political Science 2, no. 1 (June 1999): 369–404.
11. For example, see Raj Chetty, Nathaniel Hendren, and Lawrence Katz, The Effects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment (Cambridge, MA: National Bureau of Economic Research, May 2015).
12. 24 C.F.R. § 5.152. The rule explains that “meaningful actions” means “significant actions that are designed and can be reasonably expected to achieve a material positive change that affirmatively furthers fair housing by, for example, increasing fair housing choice or decreasing disparities in access to opportunity.” Ibid.
13. Vicki Been and Katherine O’Regan, The Potential Costs to Engagement of HUD’s Assessment of Fair Housing Delay (New York: NYU Furman Center, 2018), available at http://furmancenter.org/research/publication/the-potential-costs-to-public-engagement-of-huds-assessment-of-fair-housing.