HUD to abolish Obama-era AFFH fair housing rule

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The AFFH rule requires cities and towns that receive federal funding to examine local housing patterns for racial bias.

This story was updated post-publication with statements from HUD Secretary Ben Carson and NAR.

The Trump administration will terminate the Obama-era rule regarding the implementation of the Affirmatively Furthering Fair Housing, or AFFH, provision of the 1968 Fair Housing Act, according to Housing and Urban Development Secretary Ben Carson.

In a press release issued on Thursday, Carson alleged the provision has proven “to be complicated, costly, and ineffective.”

“After reviewing thousands of comments on the proposed changes to the Affirmatively Furthering Fair Housing (AFFH) regulation, we found it to be unworkable and ultimately a waste of time for localities to comply with, too often resulting in funds being steered away from communities that need them most,” said Secretary Carson in the release. “…Washington has no business dictating what is best to meet your local community’s unique needs.”

The 2015 rule requires cities and towns that receive federal funding to examine local housing patterns for racial bias and design a plan to address any measurable bias.

On a related note, proposed amendments of the HUD interpretation of the Fair Housing Act’s disparate impact standard have been met with opposition from industry leaders including the National Association of Realtors and Quicken

But a complete “tearing down” of the AFFH rule, as Carson put it, was not expected.

In its place, HUD has unveiled a new rule called Preserving Community and Neighborhood Choice, which it says defines fair housing broadly to mean housing that, among other attributes, “is affordable, safe, decent, free of unlawful discrimination, and accessible under civil rights laws.”

It then defines “affirmatively furthering fair housing” to mean any action rationally related to promoting any of the above attributes of fair housing. 

HUD added: “With the new rule, a grantee’s certification that it has affirmatively furthered fair housing would be deemed sufficient if it proposes to take any action above what is required by statute related to promoting any of the attributes of fair housing. HUD remains able to terminate funding if it discovers, after investigation made pursuant to complaint or by its own volition, that a jurisdiction has not adhered to its commitment to AFFH.”

Carson took to Twitter on Thursday morning to reiterate his and Trump’s stance on the issue, writing: “President @realDonaldTrump and I agree that the best-run communities are the ones run locally. Today, we are tearing down the Obama Administration’s Affirmatively Furthering Fair Housing rule, which was an overreach of unelected Washington bureaucrats into local communities.”

He went on to describe the AFFH rule as “a ruse for social engineering under the guise of desegregation,” which essentially turned HUD into a national zoning board.

Carson then alleged that funding subject to the AFFH rule has “been misused and abused for decades as slush funds for pet projects and causes ranging from an entertainment venue to a splash park and Planned Parenthood funding.”
Meanwhile, the National Associaton of Realtors® expressed disappointment after HUD unveiled its final rule. The organization pointed out that, following the administration’s initial proposal in January, it had publicly commented that the changes threatened to strip away the rule’s original civil rights purpose, as mandated by the 1968 law.

In a statement on Thursday, NAR President Vince Malta, a broker at Malta & Co. Inc., in San Francisco, said HUD’s decision “significantly weakens the federal government’s commitment to the goals of the Fair Housing Act.”

“The viability of our 1.4 million members depends on the free, transparent and efficient transfer of property in this country, and NAR maintains that a strong, affirmative fair housing rule is vital to advancing our nation’s progress toward thriving and inclusive communities,” he added. “With the pandemic’s disproportionate impact on people of color reminding us of the costs of the failure to address barriers to housing opportunity, NAR remains committed to ensuring no American is unfairly denied this fundamental right in the future.”