8

Furthering Fair Housing

Lessons for the Road Ahead

MEGAN HABERLE

The contours of the Fair Housing Act’s obligation to affirmatively further fair housing have evolved over the five decades since its enactment. These contours are sometimes murky, due to a lack of political will to prompt the U.S. Department of Housing and Urban Development (HUD) to firmly define performance standards or outcomes across the breadth of the statutory obligation to affirmatively further fair housing. Yet a new surge of interest in federal housing policy—catalyzed by advocates demanding a response to the growing shortage of affordable housing—means that there may be revitalized potential for a wave of reforms that could more concretely further fair housing within future, progressive administrations. To understand this potential, it is instructive to look back at the groundwork laid by the Barack Obama administration and the lessons it can provide.

Building on the Groundwork of the Affirmatively Furthering Fair Housing Rule

Although the systemic barriers to residential racial integration are significant, efforts at reforming them advanced in meaningful ways during the Obama years. For HUD, the obligation to affirmatively further fair housing has two overlapping components: it applies to the agency’s oversight of its grantees and to its direct administration and design of its own affordable housing programs. In addition, HUD’s oversight function clarifies for its grant recipients the parameters of their own, independent obligation to affirmatively further fair housing.¹ In the Obama administration, HUD began to institute progressive new policies across these interrelating aspects of the affirmatively furthering obligation. The department took steps aimed at improving the design and administration of its own programs (such as housing vouchers), strengthening its enforcement and oversight over its grant recipients, and using guidance and enforcement examples to propel recipients to fulfill their own fair housing obligations.

The most notable accomplishment was the issuance in 2015 of the Affirmatively Furthering Fair Housing (AFFH) Rule requiring HUD block grant program participants—localities and states, in addition to public housing authorities (PHAs)—to document step-by-step fair housing analyses and commit to specific goals to address fair housing in their regions. Civil rights and housing policy communities heralded the rule’s release: at long last, HUD was meaningfully implementing the directive to affirmatively further fair housing in its block grant programs and holding its recipients accountable.² HUD also embarked on a number of incremental reforms to housing voucher administration and other housing programs. Across a range of program areas, HUD issued a series of funding notices and guidance documents intended to help recipients improve their fair housing practices by enabling residential mobility and taking care not to cluster subsidized housing into high-poverty areas.³ These measures were partial and largely relied on recipients’ initiative but were still important steps toward institutionalizing fair housing as a real consideration across HUD programs. They also built a foundation of research that might support future fair housing policies. The notices and guidance were a start at undoing the ways in which federal housing program administration, in its design, perpetuates the legacy of government-backed residential segregation by concentrating subsidized housing.

Without understating the losses created by the post-Obama regime of deregulation and hostility toward civil rights, advocates and progressive policy makers can build upon the momentum of these earlier efforts. Local and state governments and PHAs can remain places to incubate and test ideas; but in the longer term, there is still a need for an improved, firmer federal commitment to civil rights, so that residents of all areas—not only the pioneering ones—may benefit accordingly. This requirement means looking ahead to a restoration of fair housing at HUD and to the next wave of reforms that are needed in federal program administration and funding oversight.

What can be learned from the progress made at HUD before the 2016 election, specifically with regard to the AFFH Rule? And how do those lessons inform what remains to be done? This chapter explores those questions, with a focus on two particular characteristics of the 2015 rule: its requirement for a planning process as well as a mechanism for accountability and its potential to influence other federal housing programs as they are administered on the ground. The chapter identifies and discusses three important sets of lessons that can be gained from the initial implementation of the AFFH Rule: (1) the advantages of the rule’s approach to balancing local flexibility with federal accountability; (2) the benefits of the rule’s design as a framework for local or regional, cross-departmental planning efforts; and (3) the importance of extending the rule’s priorities across other federal programs.

One initial lesson is that the particular federalism balance of the 2015 AFFH Rule undergirded much of its early success. As discussed by Raphael W. Bostic, Katherine O’Regan, Patrick Pontius, and Nicholas F. Kelly in Chapter 2, in designing the 2015 rule, HUD allowed its recipients significant flexibility and discretion, ostensibly to accommodate local variability in housing markets and conditions but also to avoid unsettling the status quo of local and state authority over specific housing policies. However, the rule also contains strong standards with regard to the required analysis and documentation and facilitates the formulation of meaningful goals that would be responsive to significant local housing issues. It engages funding recipients in actively working through their own means of civil rights compliance but ultimately holds them accountable to HUD—and HUD, crucially, provided thorough reviews of the analyses and their key components, such as the sufficiency of fair housing goals and inclusion of input from fair housing groups.

A second set of lessons relates to the design of the AFFH Rule as a framework for planning. The rule conveys important process benefits by enlisting grant recipients to draw up their own fair housing goals. These benefits include, for example, increased public participation in the fair housing assessment process and increased public and government investment in fair housing issues. The rule was also designed to catalyze collaboration among local entities—such as planning departments, PHAs, and others—that serve common populations and face shared fair housing problems, but whose domains have been splintered by divergent funding streams and administrative requirements. Similarly, the structure and oversight features of the 2015 rule have the potential to guide funding recipients toward meaningful regional collaborations, which can seek to overcome the imbalance of affordable housing and resource distribution among cities and suburbs.

At the same time that the rule conveys those process benefits, it also achieved specific fair housing outcomes due to the rigor of federal supervision. HUD’s deep oversight of the initial cohort of participants following the new requirement was necessary in helping them break from long-standing inertia around fair housing and take concrete steps toward addressing segregation and other issues. Reviving HUD’s fair housing review capacity, but also going further to build and strengthen HUD’s historically underresourced Office of Fair Housing and Equal Opportunity (FHEO), should be a priority of the next progressive administration.

A third set of lessons revolves around the need for further reforms to other HUD programs (such as the voucher program) in line with the AFFH Rule. As discussed below, the Donald Trump administration’s suspension of the rule and overall curtailment of fair housing progress at HUD left unanswered questions about how the suspended rule might affect the operation of those other housing programs that must also be administered so as to “affirmatively further fair housing.” Continued application of the AFFH Rule onto local housing plans (even without HUD review) could, region by region, help funnel the operation of housing programs with diffuse and competing priorities into better fair housing outcomes. Strong HUD review capacity, as well as a restoration of the AFFH Rule or equivalent as applied to public housing agencies, is necessary for long-term fair housing progress. But, as discussed below, widespread improvement will occur only if significant changes are also made within the architecture of federal housing programs themselves, disrupting the ways in which program design still drives segregation.

Federal Programs, but Local Discretion: The Context of Affirmatively Furthering Fair Housing

Despite the potential reach of the affirmatively furthering fair housing provision, it has not so far enabled the U.S. government to make a clean break from its history of sponsoring residential segregation.⁴ Discrimination still concentrates its effects within segregated communities, impeding access to quality schools, employment, health, economic development, stable housing, and other aspects of life opportunity. Although more than fifty years have passed since the enactment of the Fair Housing Act, fair housing (especially in the structural sense) has yet to take hold as a moral norm for most American communities. Real estate industry interests and institutional inertia have been countervailing forces impeding systemic change. Today, just as persistent discrimination by landlords, real estate agents, lenders, and potential neighbors continues to impose a barrier to open housing choice and integration, federal, state, and local housing policies still contribute to segregation or fail to prioritize its redress.⁵ This institutional inertia across levels of government and among different public agencies contributes to segregation, often in interlocking ways.

For example, federal funding incentives, overlaid on local zoning decisions, act on a systemic level to shape the locational patterns of subsidized and other affordable housing. Bureaucratic structures within public housing administration, set by the federal government, reinforce jurisdictional fragmentation among local housing authorities and focus them on short-term needs and efficiencies rather than on fair housing goals (such as tenants’ mobility beyond segregated areas).

In legal terms, the AFFH Rule and other fair housing regulations respond to the need for an effective “institutionalized method”⁶ through which HUD, and its grant recipients, further the Fair Housing Act’s aims and redress this complex, continuing legacy. The “affirmatively furthering” directive requires proactive measures to undo the patterns of segregation and exclusion,⁷ and it requires a regional approach, in which cities and their suburbs work together to heal the legacies of redlining and white flight.⁸ Although the affirmatively furthering directive is fundamental to the Fair Housing Act’s intended broad remediation of our country’s residential divides, its scope and application have evolved over the years, in fitful response to litigation and other advocacy pushes and government trends. The Fair Housing Act itself does not define the content of the obligation to further fair housing (see 42 U.S.C. §3608(d), providing in simple terms that the HUD secretary shall “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of [the act]”). Instead, what it means to “affirmatively further fair housing” has been fleshed out episodically through judicial interpretation and on occasion systematized in agency regulations and guidance governing siting, tenant selection, and other policies.

Stretching over several decades of history, the story of the affirmatively furthering mandate is one of unfulfilled potential, reflecting themes of political will and access and institutional dynamics (and of how race and class can drive the government’s priorities in overt and subtle ways). One contributing problem has been agency reticence to engage in rigorous oversight or create accountability for local policies, even among federal funding recipients. In addition, municipal fragmentation and insufficient political will to support fair housing policies pose enduring challenges to advocates working for change in this field from the grass roots up, as does the general absence of cross-issue policy infrastructure (such that housing segregation and reciprocal problems, such as school segregation or neighborhood environmental health, could be addressed in coordination).

A further challenge is that HUD historically has declined to use its spending leverage to prompt states and localities to redress their broad range of segregative policies, such as exclusionary zoning and siting policies for affordable housing. With regard to its grant administration, prior to the 2015 AFFH Rule, HUD traditionally did little to direct recipients away from segregative practices or condition its funds on their furtherance of fair housing. Recipients were required to certify that they were meeting their affirmatively furthering obligation, but oversight was vastly inadequate. Severe, widespread deficiencies and delays characterized HUD’s pre-2015 Analysis of Impediments (AI) process, which lacked a template or any HUD review mechanism.⁹ Testimony and reports from multiple experts, previous HUD officials, and civil rights groups abundantly documented the inadequacy of AIs to further fair housing or provide accountability;¹⁰ meanwhile, impediments to fair housing remained in many places unexamined and deeply ingrained.

Although HUD is charged with the interpretation of the Fair Housing Act and the implementation and oversight of its AFFH provision, the agency has been reticent to exert its full authority to advance civil rights. This reticence holds true within HUD’s program design and its block grant administration. Much of federal housing policy operates in a form of cooperative federalism, with federal, state, and local actors each playing a role in shaping program design and operation and in making decisions that can either advance or deflect fair housing mandates. Thus, housing voucher administration is funded and regulated by HUD but administered by PHAs—sometimes dozens throughout a metropolitan region—that set their own policies on rent structures, admissions and billing practices, local site selection, and other aspects of operation of great practical import in molding residential choice and options and, therefore, fair housing outcomes. Block grant spending is relatively loosely governed by HUD, although it is subject to civil rights laws and AFFH certification requirements for recipients. Another major program, the Low-Income Housing Tax Credit (LIHTC; administered by the Department of the Treasury), involves siting priorities and standards that are rooted in overlapping sources of authority: legislative, regulatory, and state agency directives. Local zoning, other land use, and anti-discrimination policies overlay each of these programs and help drive their outcomes (subject again to civil rights oversight).

On the one hand, the local flexibility inherent in this system has allowed for progressive experimentation and for some jurisdictions to undertake new and effective fair housing techniques. On the other hand, these overlapping roles have, at times, functioned as a way for any one actor to elude accountability, in ways that can impede progress toward systemic reforms.¹¹ Furthermore, because of practical concerns about accommodating varying local needs and political concerns about preserving local autonomy, federal housing policy has shied away from imparting to recipients clear performance goals or standards for desegregation. This is in contrast to other regulatory fields—such as environmental regulation—that similarly operate in a cooperative federalism model in which state or local actors are charged with implementation but which come with federally prescribed performance metrics. Within fair housing, this absence of performance metrics has been particularly problematic because it combines with other institutional forces that inhibit progress on civil rights (as described further in the section on federal housing program design, below). In addition, HUD has traditionally lacked the resources—or has failed to find them—for the kind of individualized, immersive oversight that is called for to further fair housing across such a localized system. For local actors, this lack of oversight has been a loss: localities benefit from federal priority setting in the interest of civil rights and from the synergies and political cover created when local advocates or progressive administrators can point to progressive federal directives.

While these federal-local dynamics are long-standing in housing administration, they are not inevitable. For example, the 2015 AFFH Rule responded to the widespread criticism around the lack of accountability for block grant recipients by mandating the completion of an Assessment of Fair Housing (AFH), which created a standardized process for recipients to document local fair housing issues and commit to “meaningful goals” to further fair housing. The AFH must also inform the recipient’s subsequent Consolidated Plan, which describes how the recipient will use the block grant allocation, as well as the PHA’s planning documents—thereby attaching HUD’s AFFH mandate more firmly to its grant spending.

For the most part, the Obama administration worked along the grain of cooperative federalism and local discretion, even when building in new incentives and openings for fair housing (as discussed further below). But with the AFFH Rule, it also took an important step to more actively bind local discretion within fair housing parameters and to hold its block grant recipients accountable for their affirmatively furthering responsibilities as a condition of receiving HUD funds. With the issuance of the rule, HUD embarked on a period of detailed reviews of local fair housing issues and goal setting; the rule’s implementation was also intended to begin a cycle of accountability during which jurisdictions would later need to answer for their progress.

Fair housing advocates noted during the rule’s formulation that, while the regulation provided content and clarity for recipients, it adopted a collaborative tenor. It was not intended to be an intrusive leap into a vigorous new enforcement regime.¹² Much about the rule was process-oriented, in the sense that it helped localities draw up appropriate goals but stopped short of having HUD itself set forth metrics or standards. Moreover, because the rule leaves goal identification to the program participants, its degree of success in creating real change in any given location rests significantly on local consensus building and initiative. Yet, as Chapter 3 makes clear, the early results of the AFH process showed that, in fact, HUD had assertively propelled many recipients to create sharper, more meaningful goals.¹³ This was significantly thanks to the diligence of HUD’s fair housing staff, who thoroughly reviewed each submitted AFH, provided individualized feedback, and declined to accept AFHs that did not contain appropriate or sufficient goals. The goals generated by the early cohort of participants completing the AFH process included production of affordable housing units in low-poverty areas; zoning revisions to accommodate mixed-use, mixed-income development; landlord outreach programs to support moves by housing choice voucher (HCV) holders; adoption of new voucher payment standards to cover rents in higher-opportunity areas; and more.¹⁴

At the same time, the planning process itself also engendered new collaborations and public involvement, as participants worked to meet those requirements. Part of the Obama administration’s legacy was to show that local flexibility can offer opportunities for civil rights not just continuing challenges.¹⁵ That is, the process in itself—designed to accommodate local priorities and needs—conveyed important benefits to participating communities by enlisting them in the active design of their fair housing goals.

Process Benefits: Collaboration and Public Engagement

In comparison with many other fields of advocacy, fair housing has long had a collective action challenge.¹⁶ In contemporary times, individuals who seek to live in less-segregated neighborhoods have not traditionally formed a political bloc, and public officials have too rarely been proactive in responding to their needs or the aspirations of a diverse society. Fair housing has largely been protected and advanced through litigation and a rights-enforcement model, rather than a political-mobilization model. There are positive exceptions, such as state AFFH legislation in California and Connecticut and inclusionary regional strategies such as that formed in the Twin Cities,¹⁷ but most locations have been locked by inertia when it comes to developing measures to address segregation.

While the AFFH Rule lacks the power to change all these underlying dynamics, the rule’s process in itself may be a driver of change if taken as a serious opportunity by advocates. The 2015 rule constitutes a shift to a truer vein of cooperative federalism, away from the empty formalism and lack of accountability represented by the previous AI process.

This sort of collaborative governance not only enables local flexibility but also actively enlists recipients in such a way that may spark new coalition building and public understanding of civil rights.¹⁸ The 2015 AFFH Rule, for example, requires public participation in the creation of the AFH, urges interagency consultation, and encourages the use of local data provided by such entities as advocates and universities. Through these provisions, it offers a framework for documentation and coalition building around residential segregation, including segregation’s reciprocal relationship with other issues, such as environmental health, school segregation, and other land-use policies. Problems that are factually and causally linked, such as economic development and housing development, are frequently the purviews of different local agencies. The AFH can potentially provide a coordinating framework for collaboration around these issues as well as related advocacy and planning.

Additionally, the 2015 rule requires a regional analysis and encouraged regional collaborations (among adjacent entities, such as cities, their suburbs, and their PHAs). This requirement can help promote regional strategies that aim to overcome the fragmentation of resources and services throughout metropolitan areas. This fragmentation was driven, at the outset, by federal and state regimes that enabled boundary drawing around services and tax bases and by the capacious sprawl that aligned development interests and government support.¹⁹ Local autonomy was secured by state and federal court decisions that rejected equal protection arguments seeking a broader conception of rights and accountability.²⁰ As David Troutt observes, a series of Supreme Court cases during the prime era of white flight, including Village of Belle Terre v. Boraas, Warth v. Seldin, Village of Arlington Heights v. Metropolitan Housing Development Corp., San Antonio Independent School District v. Rodriguez, and Milliken v. Bradley, “put the Court’s imprimatur on the critical aspects of local autonomy. . . . Without them, the twin pillars of local autonomy and land use and school finance would not have been secure in the jurisprudential edifice succeeding racial segregation.”²¹ These protective theories of federalism and localism were reinforced by the development of limiting theories of causation, and therefore accountability, for regional actors.²² Such court decisions not only encouraged such boundary-drawing behavior but also helped elide the ways in which institutional mechanisms were creating segregation.²³

Such scholars as Sheryll Cashin, Richard Briffault, and others have noted that fragmentation is closely linked to resource hoarding by historically advantaged groups and to segregation.²⁴ This process is part of an enduring American “ideology of localism,” as Cashin puts it. Over time, as it comes to mimic an ingrained natural order, boundary drawing and racial distance have a self-reinforcing effect.²⁵ What is fundamentally driven by self-interest, among exclusionary areas, enfolds itself in notions of “community.” The long-term hope of civil rights advocates is that the majority notions of self-interest are fluid and can be redefined to a less narrow and short-sighted conception. Realism dictates that, more immediately, self-interest must be redirected by the tools available, which in civil rights often entail federal oversight, funding incentives, and regulatory design.

Advocates hope that public engagement efforts around fair housing may help the broader communities of metropolitan regions perceive that they share a collective identity and fate, even as this shared identity is hidden by geographic distance and municipal boundary lines.²⁶ These communities may also come to understand better the ways in which housing policy perpetuates racial distance and can serve as a form of corrective justice for past wrongs.²⁷ As well as pulling the mask off local segregative histories and connecting them to continuing discrimination, public education efforts around fair housing may help expose the extent of private discrimination, which is drastically underreported and thus underenforced.²⁸ The rule provided for richer documentation of Fair Housing Act violations, such as affordable housing distribution, exclusionary zoning, or inadequate anti-discrimination enforcement. Civil rights advocates remain hopeful that this platform will drive increased public understanding about fair housing as well as spur specific policy change through federal oversight.²⁹

With concerted involvement by advocates and progressive policy makers, a revived AFFH process could, as the early results already suggest, yield models of dialogue and action. For example, the Greater New Orleans Fair Housing Action Center, which partnered with the city of New Orleans to conduct its AFH, engaged in extensive stakeholder outreach, in particular to maximize the participation of “those that have been historically underrep-resented in the planning process,” including public housing residents.³⁰ Together with the AFH’s analytical framework, this process resulted in a series of strong, specific goals in housing voucher administration and other areas. In Philadelphia, advocates leveraged the AFH’s requirements to engage the city in formulating strong goals responsive to pressing local fair housing issues. In Seattle and New York, city staff convened ongoing cross-agency and cross-issue working groups to focus on the intersections of such issues as environmental health and education with fair housing. Overall, the initial AFHs yielded rich gains in public participation, including in “the number of opportunities for public engagement; the inclusiveness of those opportunities; the provision of data for assessing public engagement; documentation and consideration of the public input; and existence of cross-jurisdictional or cross-sector engagement.”³¹

What Difference Could the Affirmatively Furthering Fair Housing Rule Make to Other Federal Housing Programs?

Because of the overall halt in momentum of initiatives to affirmatively further fair housing at HUD that occurred during the Trump administration, the potential of the AFFH Rule has yet to be realized. At the same time, its initial rollout also posed significant questions about the next steps needed at HUD and other agencies responsible for affirmatively furthering fair housing. In particular, the overlay of the rule onto subsidized housing program implementation has intriguing potential. An updated version of the 2015 AFFH Rule could make a real difference in improving the fair housing performance of such programs as HCVs, the LIHTC program (administered by the Department of the Treasury), and other aspects of federal housing administration—but it should also be accompanied by serious changes to the design of those programs themselves. With regard to HUD’s own programs, fair housing has been treated as a subsidiary concern, peripheral rather than fundamental to program design and operation. That is, although the AFFH mandate is designed to shape the administration of all federal housing program from the outset, in actuality it tends to be applied inconsistently and post hoc alongside other civil rights compliance. The history of federal housing programs and the current state of segregation show how deep the need is for corrective direction within such programs. Cumulatively, HUD’s own housing program designs fail to affirmatively lead local administrators to further fair housing—and in numerous respects have even counter-incentivized such moves.

Although the most egregious policies that historically confined low-income households to segregated areas are now curtailed, the administration of subsidized housing nonetheless continues to reproduce patterns of racial and ethnic segregation and concentrated poverty, especially for people of color.³² This contribution to continuing segregation by race, ethnicity, and class is in part because federal housing administration, by and large, fails to sufficiently prioritize policies that could disrupt the “cycle of segregation”³³ embedded by racial information gaps, market forces (often shaped by racism), and the institutional inertia of a variety of actors. Federal housing programs also contribute to segregation due to the persistence of program design elements that are strikingly inconsistent with civil rights aims. For instance, in the HCV program, PHA budgeting structures and administrative incentives impede agencies from focusing on residential mobility.³⁴ HCV administration is by default deeply fragmented within geographic regions, such that separate apartment listings, resident applications, and billing hurdles impede residents’ ease of movement, and PHAs lose administrative fees when residents depart their jurisdictions (even when those moves better serve families and improve distribution). Similarly, in LIHTC administration, unit production in high-poverty areas remains the primary program focus.³⁵

More positively, during the same period in which it issued the AFFH regulation for block grant recipients, HUD ventured down a parallel path toward affirmatively furthering fair housing within many of its own programs. Most of these fair housing advances were exploratory or incentive-based, with housing desegregation one of multiple, competing incentives. For instance, HUD’s Strategic Plans included a focus on “housing as a platform for quality of life” and referenced the need to expand housing options but did not make a strong overarching commitment to break from the past reinforcement of segregation and prioritize housing choice.³⁶ HUD’s general Notices of Funding Availability, providing guidance for grant applicants, did contain a new, explicit focus on affirmatively furthering fair housing starting in 2010, with points awarded for poverty and racial deconcentration and related strategies.³⁷ Specific HUD programs that were designed or expanded during the Obama administration—such as the Choice Neighborhoods Initiative, the Sustainable Communities Initiative, Moving to Work Demonstration (MTW), and Rental Assistance Demonstration (RAD)—similarly provided new opportunities, but not ground-breaking new requirements, for localities and PHAs to use federal programs to pursue housing mobility and desegregation.³⁸ One exception was the 2016 Small Area Fair Market Rent Rule, which required twenty-four designated metropolitan areas, with especially concentrated housing voucher use, to calculate voucher payments by zip code rather than (as generally prescribed) by metropolitan region. As discussed in the Introduction, this new range of payment standards enables voucher holders to access rental units in areas that are traditionally fore-closed to them because of relatively high rents but that offer lower neighborhood poverty levels, better-performing schools, and other amenities.

From a fair housing perspective, the majority of the new fair housing incentives were influential largely by enabling progressive PHAs and localities to pursue their own fair housing agendas and by signaling to recipients that affirmatively furthering fair housing should be a serious aspect of their missions. When it came to its own federal housing policies, in other words, the Obama administration’s predominant approach in program design was one of expanding the opportunities for program participants to voluntarily advance equality. This conception of civil rights is an elastic one, in the sense of being flexible to accommodate individualized circumstances, but also reliant on the motivation of local actors, federal officials, and advocates. Furthermore, because such programs as MTW lack sufficiently strong internal fair housing standards, it has become increasingly clear in the Trump era that their inherent flexibility can also enable localities to shirk their fair housing responsibilities.

The AFFH Rule offered potential synergy with these other Obama-era HUD initiatives, which on their own gently guided PHAs toward better fair housing policies. The 2015 rule covered HUD block grant recipients and applied to all their housing activities and their PHAs, and it encouraged local entities to collaborate with each other in the analysis and development of goals. It was also meant to apply directly to PHAs, although this provision did not take effect before the rule’s suspension. Still, many city and county AFH filers had already collaborated with their PHAs, including Philadelphia, New Orleans, Seattle, Albuquerque, Los Angeles, entities throughout Delaware, and Contra Costa County in California. Many of the early AFH goals entailed local improvements to subsidized housing administration, and if HUD were to engage in rigorous oversight, more such goals would follow. The AFFH planning process was a serious opportunity to place a fair housing overlay on PHA policy decisions, including regional initiatives, and should guide PHA (as well as local) discretion on housing policies. For example, the AFFH platform could serve as a mechanism for communities to push forward discretionary fair housing advances within federal programs, such as adjustments to voucher payment standards to allow for access to high-opportunity communities, incorporation of civil rights best practices into tax-credit allocation plans, and others. Advocates may be able to draw upon the AFH or AI process as well as the positive fair housing models incubated in progressive areas as ways to advance such change. However, the fact remains that while the cooperative federalism model of civil rights oversight can convey important benefits, it requires strong reviews and incentives to succeed with regard to PHAs, just as with other local entities.

In addition, the AFFH Rule should be seen as a complement—not a substitute—for reforms needed more broadly within the architecture of federal housing programs themselves. Absent the combination of restored AFFH oversight with more comprehensive fair housing reforms at the federal level, federal housing programs such as the LIHTC, HCVs, and others will continue to support the spatial concentration of housing and lack of choices for low-income people. Unless those facets of federal housing policy are directly addressed, they will act as a headwind—again preventing the AFFH Rule, or any successor, from achieving its full potential.

Conclusion

Along with other areas of civil rights, Obama-era progress toward desegregation underwent significant reversals during the Trump administration. Political directives at HUD impaired the agency’s ability to provide fair housing oversight,³⁹ and the administration almost immediately targeted the newer civil rights requirements, to which jurisdictions were still adapting, as the low-hanging fruit of its deregulatory agenda—notably, in its suspension of the AFFH Rule.⁴⁰ Nonetheless, the Obama administration’s regulatory initiatives have catalyzed positive transformations. For example, the AFFH Rule’s initial rollout year yielded successes in jurisdictions’ new commitments to meaningful fair housing goals, generated with the participation of advocates and protected groups.⁴¹ And even after the rule’s suspension, a number of cities, regions, and collaborating PHAs chose to follow the AFFH Rule’s instructions and conduct rigorous fair housing analyses.

Although much of the work of fair housing assumed a defensive posture during the Trump administration, with increased attention paid to local policies and organizing strategies, federal reforms are still fundamental to advancing change. The federal role is essential to incentivize (or require) regional solutions and to sustain and “scale up” local progress. In addition, as noted above, HUD’s own housing program structures still constrain open housing choice in many locations. Institutional inertia and resource constraints continue to impede fair housing reforms among a significant number of PHAs and localities, even as others engage in important, entrepreneurial fair housing endeavors. If a reawakened AFFH Rule is to fulfill its future potential for concrete change, stronger federal enforcement capacity will be needed, as will action by Congress, HUD, and the Treasury Department (and housing advocates) to improve upon federal housing program design. For local fair housing efforts to thrive and be sustained in more of the places where they are needed, and for us to break from the segregative patterns of the past, the next generation of progressive policies should build on past lessons but also more assertively push for change.

ENDNOTES

The author thanks Philip Tegeler and the editors for their insightful comments on earlier drafts.

1. See 42 U.S.C. § 3608(d) (requiring all executive branch departments and agencies administering housing and urban development programs and activities to administer these programs in a manner that affirmatively furthers fair housing); 42 U.S.C. § 3608(e) (5) (requiring HUD to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of [the act]”). See also the Quality Housing and Work Responsibility Act of 1998, 42 U.S.C. § 1437v (2015); the Housing and Community Development Act, 42 U.S.C. § 5304; the United States Housing Act, 42 U.S.C. § 1437c-1(d) (15) (requiring that HUD recipients certify that they are affirmatively furthering fair housing).

2. See 24 C.F.R. § 5.152. See also Affirmatively Furthering Fair Housing Rule Preamble, 80 Fed. Reg. 42275 et seq., discussing legal authorities and policy background.

3. See Philip Tegeler, Megan Haberle, and Ebony Gayles, “Affirmatively Furthering Fair Housing in HUD Housing Programs: A First Term Report Card,” Journal of Affordable Housing and Community Development Law 22 (2013): 27–60.

4. For fuller discussions of the AFFH Rule’s potential and the structural reasons it has so far failed to achieve it, see, e.g., Olatunde Johnson, “The Last Plank: Rethinking Public and Private Power to Advance Fair Housing,” Journal of Constitutional Law 13 (2011): 1191; Stacy E. Seicshnaydre, “The Fair Housing Choice Myth,” Cardozo Law Review 33 (2012): 967.

5. See Megan Haberle, Ebony Gayles, and Philip Tegeler, “Accessing Opportunity: Affirmative Marketing and Tenant Selection in the LIHTC and Other Housing Programs” (Poverty and Race Research Action Council, 2012).

6. Shannon v. United States Department of Housing & Urban Development, 436 F.2d 809, 819 (3d Cir. 1970).

7. See, e.g., N.A.A.C.P., Boston Chapter v. Secretary of Housing and Urban Development, 817 F.2d 149, 154 (1st Cir. 1987); County of Westchester v. United States Department of Housing and Urban Development, 802 F.3d 413 (2nd Cir. 2015).

8. Thompson v. United States Department of Housing and Urban Development, 348 F.Supp.2d 398 (D. Md. 2005); Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971).

9. U.S. Government Accountability Office, “HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing,” GAO-10-905, September 2010, available at www.gao.gov/products/GAO-10-905. See also Affirmatively Furthering Fair Housing Rule Preamble, 80 Fed. Reg. 42275.

10. The Opportunity Agenda, “Reforming HUD’s Regulations to Affirmatively Further Fair Housing,” 2010, available at https://opportunityagenda.org/sites/default/files/2017-03/2010.03ReformingHUDRegulations.pdf (stating that “[a] range of housing experts, civil rights groups, and former HUD officials have documented the inadequacy of the current AI process” and detailing that testimony).

11. For example, government agency defendants in Fair Housing Act cases have successfully argued that plaintiffs failed to show sufficient causality because the policies at issue were not shaped solely or primarily by the agency; see The Inclusive Communities Project Inc v. Department of Treasury, No. 3:14-CV-3013-D (N.D. Tex. October 28, 2016).

12. See, e.g., Michael Allen, “HUD’s New AFFH Rule: The Importance of the Ground Game,” The Dream Revisited, September 2015, available at http://furmancenter.org/research/iri/essay/huds-new-affh-rule-the-importance-of-the-ground-game. See also Eloise Pasachoff, “Agency Enforcement of Spending Clause Statutes: A Defense of the Funding Cut-Off,” Georgetown Law Faculty Publications and Other Works 124, no. 2 (2014), available at https://scholarship.law.georgetown.edu/facpub/1394.

13. See Justin P. Steil and Nicholas F. Kelly, The Fairest of Them All: Analyzing Affirmatively Furthering Fair Housing Compliance (Future of Housing Policy in the U.S., University of Pennsylvania, 2017), available at http://web.mit.edu/afs/athena.mit.edu/org/f/fairhousing/research/Steil_Kelly_Fairest_of_them_All.pdf.

14. Ibid.

15. Olatunde Johnson has written about this as part of a broader theme in governance, noting that “moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new ‘inclusive regulation’ can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation.” Olatunde C. A. Johnson, “Overreach and Innovation in Equality Regulation,” Duke Law Journal 66, no. 8 (2017): 1771.

16. Sheryll Cashin has also discussed the “collective action” problem that local fragmentation poses to regional equity. See Sheryll Cashin, “Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism,” Georgetown Law Journal 88 (2000): 1985–1988.

17. See David Rusk, Inside Game/Outside Game: Winning Strategies for Saving Urban America (Washington, DC: Brookings Institution, 1999), 228.

18. For a comparative view, discussing a similar dynamic in the environmental context, see Gabriel Pacyniak, “Making the Most of Cooperative Federalism: What the Clean Power Plan Has Already Achieved,” Georgetown Environmental Law Review 29 (2017): 301.

19. See, e.g., Rusk, Inside Game/Outside Game; Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States (New York: Oxford University Press, 2006), 26; Andrew Ross, Bird on Fire: Lessons from the World’s Least Sustainable City (New York: Oxford University Press, 2011).

20. David D. Troutt, “Localism and Segregation,” Journal of Affordable Housing and Community Development Law 16, no. 4 (2007): 323–347.

21. Ibid., 323.

22. See Michelle Adams, “Causation, Constitutional Principles, and the Jurisprudential Legacy of the Warren Court,” Washington and Lee Law Review 59 (2002): 1173.

23. Ibid., at 1183: “The Court . . . paid insufficient attention to the roles of the State, local officials, and the Board in creating what are now self-perpetuating patterns of residential segregation. The Court was all too willing to accept a narrative which presumed that the school district did not cause residential segregation and that the cause or causes of such segregation were due to ‘personal preferences,’ safely outside the purview of constitutional requirements and federal judicial authority.”

24. See, e.g., Richard Briffault, “Localism and Regionalism,” Buffalo Law Review 48 (2000): 1–30; Cashin, “Localism, Self-Interest, and the Tyranny of the Favored Quarter.”

25. See Troutt, “Localism and Segregation,” 333–334. In accordance with the concept of “binary capitalism,” Troutt writes, “If spatial separations among people, however unequal, are rationally and legally justified, the resource imbalance created by those relationships will fulfill certain instrumental cultural prophecies. The first is that in the absence of overt racial discrimination in housing, education, and employment, something must be inherently wrong with the segregated poor. . . . Conversely, in the absence of overt racism or privilege taking, something must be inherently right about the separated middle class.”

26. See, e.g., Cashin, “Localism, Self-Interest, and the Tyranny of the Favored Quarter.” As Cashin writes, “Viewed from a regional perspective, this dominance of the favored quarter is decidedly anti-majoritarian. But the fact of fragmented metropolitan governance, coupled with society’s strong cultural preference for local powers, may be blinding us to these realities. In particular, the degree of influence and subsidization of the favored quarter is completely hidden from public view. This invisibility of the favored quarter’s systematic advantage occurs in part because fragmented governance reduces the ability of citizens to learn what is going on regionally. But more specifically, it occurs because information about the geographic allocation of public investments is not systematically collected or disclosed to the public” (ibid., 1988).

27. See Ira Katznelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (New York: Norton, 2005), 149 (discussing the role of affirmative action as corrective justice).

28. Kelly L. Patterson and Robert Mark Silverman, “How Local Public Administrators, Nonprofit Providers, and Elected Officials Perceive Impediments to Fair Housing in the Suburbs: An Analysis of Erie County, New York,” Housing Policy Debate 21, no. 1 (January 2011): 173. (“Underreporting of housing discrimination is the product of limited fair housing education, a lack of confidence in the fair housing enforcement system, time and resource constraints experienced by victims of discrimination, and other factors.”)

29. Johnson, “The Last Plank.”

30. See Declaration of Maxwell Ciardullo in support of Plaintiff’s Motion for a Preliminary Injunction, National Fair Housing Alliance et al. v. Carson, available at http://prrac.org/pdf/2-2_Declaration_of_Maxwell_Ciardullo.pdf.

31. See Declaration of Daniel Urevick-Ackelsberg in support of Plaintiff’s Motion for a Preliminary Injunction, National Fair Housing Alliance et al. v. Carson, available at http://prrac.org/pdf/2-9_Declaration_of_Daniel_Urevick-Ackelsberg.pdf.

32. See, e.g., Stacy E. Seicshnaydre, “How Government Housing Perpetuates Racial Segregation: Lessons from Post-Katrina New Orleans,” Catholic University Law Review 60, no. 3 (2011): 661–665; Florence Roisman, “Keeping the Promise: Ending Racial Discrimination and Segregation in Federally Financed Housing,” Howard Law Journal 48, no. 3 (2005): 913; Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (New York: Liveright, 2017); Paul Jargowsky, The Architecture of Segregation (Century Foundation, August 7, 2015), available at https://tcf.org/content/report/architecture-of-segregation/.

33. Maria Krysan and Kyle Crowder employ this term as the title of their book discussing a number of these dynamics. Maria Krysan and Kyle Crowder, Cycle of Segregation: Social Processes and Residential Stratification (New York: Russell Sage Foundation, 2017).

34. See, e.g., Deborah Thrope, “Achieving Housing Choice and Mobility in the Voucher Program: Recommendations for the Administration,” ABA Journal of Affordable Housing and Community Development Law 27, no. 1 (2018): 145–160.

35. See, e.g., Florence Roisman, “Mandates Unsatisfied: The Low-Income Housing Tax Credit Program and the Civil Rights Laws,” University of Miami Law Review 52, no. 4 (1998): 1011.

36. See Tegeler, Haberle, and Gayles, “Affirmatively Furthering Fair Housing in HUD Housing Programs.”

37. Ibid.; see also, e.g., U.S. Department of Housing and Urban Development, “General Section to HUD’s Fiscal Year 2016 Notice[s] of Funding Availability for Discretionary Programs,” 2015, available at https://www.hud.gov/program_offices/administration/grants/fundsavail/nofa16/gensec.

38. Tegeler, Haberle, and Gayles, “Affirmatively Furthering Fair Housing in HUD Housing Programs.”

39. See, e.g., Glenn Thrush, “Under Ben Carson, HUD Scales Back Fair Housing Enforcement,” New York Times, March 28, 2018, available at https://www.nytimes.com/2018/03/28/us/ben-carson-hud-fair-housing-discrimination.html.

40. Open Communities Alliance v. Carson, No. 1:17-cv–02192 (D.D.C. 2017); National Fair Housing Alliance v. Carson, No. 1:18-CV–01076 (n.d.).

41. See Steil and Kelly, “The Fairest of Them All.”