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August 13, 2015 Practice Points

Obama Administration Introduces New Administrative Rule on Fair Housing

By Handel Destinvil

In July 2015, the Obama administration, in conjunction with the U.S. Department of Housing and Urban Development (HUD), announced a new administrative rule, which "requires communities receiving HUD funding to use HUD-provided data to identify potential local fair housing issues, and then to develop approved goals to address these issues." The rule, formally titled the Affirmatively Furthering Fair Housing (AFFH) final rule, replaces the current Analysis of Impediments requirement with a new Assessment of Fair Housing requirement for HUD participating jurisdictions.

HUD explains that the rule arises from its statutory duty to "affirmatively further fair housing" in Section 808(e)(5) of the Fair Housing Act, 42 U.S.C. § 3604, and requires that it take "meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics."

The administrative rule is not completely novel directive but rather "seeks to clarify obligations imposed under the Fair Housing Act and to provide communities with the resources to meet them." As such, it replaces the current Analysis of Impediments requirement with a new Assessment of Fair Housing requirement, which aims to address the perceived failings of the current system: a lack of specific guidance for HUD participating jurisdictions and weak enforcement mechanisms. Under the present system, Paul Jargowsky, a Professor of Public Policy at Rutgers University—Camden, noted that "public and assisted housing units were often constructed in ways that reinforced existing spatial disparities," and "[o]ur governance and development practices ensure that significant segments of our population live in neighborhoods where there is no work, where there are underperforming schools, and where there is little access to opportunity."

The new rule primarily seeks to correct the lack of specific guidance through the utilization of objective census data. HUD plans to "provide a trove of data to communities to help them better assess their respective deficiencies," including data on "racially and ethnically concentrated areas of poverty, patterns of segregation and integration, disparities in housing needs, and inequality in access to opportunity," which is expected to provide grantees "more data and analytical tools to help quantify and interpret particular fair housing dynamics" so as to pinpoint and rectify dynamics that impede the equitable distribution of fair housing.

The second concern about weak enforcement mechanisms is of particular concern to fair housing advocates. Julián Castro, HUD Secretary, in a conference call regarding the new rule, stated that "[w]hile the 1968 law has always required communities to ensure equal opportunity in their neighborhoods, 'the fact is that federal efforts have often fallen short' when it came to enforcement." A 2012 ProPublica article on the history of the Fair Housing Act specific failings, found that although "HUD's largest program of grants to states, cities and towns has delivered $137 billion to more than 1,200 communities since 1974", only on two occasions had HUD withheld money from communities for violating the Fair Housing Act. In addition, the article found that "HUD has sent grants to communities even after they've been found by courts to have promoted segregated housing or been sued by the U.S. Department of Justice."

Under the proposed rule, Secretary Castro said penalties for noncompliance, including the loss of federal housing funds, were a "last resort" that he did not anticipate using, instead stating that the agency's preference is to "work cooperatively and steadfastly with communities." A NAACP Legal Defense Fund letter commenting on the proposed rule addressed to HUD at the time the rule was first proposed expressed reservations "about the lack of robust enforcement mechanisms contained in the rule," and requested that HUD "explicitly set forth sanctions it may impose for failure to AFFH."

The effective date of the "affirmatively furthering fair housing" rule is August 17, 2015.

Keywords: minority trial lawyer, litigation, HUD, Fair Housing Act, AFFH

Handel Destinvil, Esq., is with the Superior Court of New Jersey in Essex Vicinage in Newark, New Jersey.

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