HUD’s New Teeth: The Affirmatively Furthering Fair Housing Rule

/ Housing Law / By

Aphrodite Stamboulos*1

I. Introduction

The Fair Housing Act of 1968 (FHA) prohibits discrimination against home buyers on the basis of race, color, religion, sex, familial status, or national origin.2 The Act’s central aim at the time of its passage was to reduce the high levels of racial segregation present in property markets across the United States.3 Although this segregation has declined since the passage of the FHA, it persists in many parts of the country.4 Many scholars point to a weak enforcement mechanism within the Act that has hampered efforts by the Department of Housing and Urban Development (HUD) to combat segregation.5 To overcome this problem, HUD proposed a new rule in February 2023 called the Affirmatively Furthering Fair Housing (AFFH) Rule, which would broaden the agency’s enforcement powers under the FHA to encompass more proactive measures to combat racial residential segregation.6

This Note will discuss the past and current regulatory approaches that HUD has used to enforce the FHA, including the FHA’s inbuilt mechanisms and the version of the AFFH rule promulgated under the Obama administration. This Note will then explain what this new rule entails and what new or expanded regulatory powers it gives HUD in enforcing the FHA. Some of these powers include the ability to open investigations on the agency’s own initiative and to pull funding from recipients for noncompliance. Finally, this Note will analyze why the rule may be more effective in helping HUD enforce the FHA. Ultimately, this Note will argue that the AFFH rule will help HUD to better enforce the FHA, because the rule introduces an accountability mechanism for funding that does not depend on the public for enforcement.

II. Previous And Current Regulation

Currently, the FHA’s primary enforcement mechanism relies upon external complaints of statutory violations in order to trigger an agency investigation.7 Such violations concern discrimination in “housing-related activities,” including buying, renting, getting a mortgage, and so on.8 HUD cannot open its own investigations affirmatively. Once it does receive a complaint, the agency will conduct an initial interview with the complainant to determine whether it has jurisdiction.9 From there, it decides whether to accept the complaint; if so, a HUD investigator will compose a formal complaint that the complainant will sign.10 This will be sent to the respondent, who will have ten days to submit a response to HUD.11 The investigation itself will consist of an “interview [with] the complainant, the respondent, and pertinent witnesses. The investigator will collect relevant documents or conduct on-site visits, as appropriate.”12

 If HUD determines that the complaint is valid, the complainant has the opportunity to file a lawsuit against the supposed violator.13 If neither party opts to go to court, then an administrative law judge hears the case and can order the respondent to pay damages, provide injunctive relief, and so forth.14 HUD can also act as a mediator between the parties while the department conducts its investigation.15 If a complaint involves zoning or land use laws, criminal violations, or “patterns or practices of discrimination,” then HUD refers the case to the Department of Justice.16

 HUD also requires grant recipients to have “a planning document known as an Analysis of Impediments to Fair Housing Choice (AI), which identifies any potential impediments to fair housing choice within the jurisdiction.”17 Recipients must also “take appropriate actions to overcome the effects of any impediments identified in the AI . . . and maintain records reflecting the analysis and actions taken.”18 All of this is done to fulfill HUD’s responsibility to act “in a manner affirmatively to further the purposes” of the FHA.19

To give HUD a more proactive role in executing the FHA, rather than just requiring AI and investigating complaints, the Obama administration in 2015 introduced the “Affirmatively Furthering Fair Housing Rule.”20 Under this rule, recipients of “HUD funding [were required] to use HUD-provided data to identify potential local fair housing issues, and then to develop approved goals to address” them.21 Noncompliant recipients risked losing their funding.22 However, “[t]he Trump administration suspended its implementation in 2018 before abolishing it altogether in the summer of 2020.”23 In January 2023, the Biden administration reintroduced the Obama-era rule, but with new changes.

III. The New Rule

The new rule retains the Obama-era name, Affirmatively Furthering Fair Housing, but confers expanded regulatory powers. As with the previous rule, funding recipients must identify possible fair housing problems and create goals to mitigate them or risk losing funding.24 New in the AFFH rule is an obligation to submit an annual plan to HUD that details how recipients will complete these goals and track their progress.25 HUD will now be able to open its own compliance reviews on recipients without needing a complaint from the public.26 If they find noncompliance with the rule or FHA altogether, they will provide remedies for the issue, including the withdrawal of funding.27 

IV. Why The New Rule?

In 2010, the Government Accountability Office (GAO) performed a study on the extent to which HUD funding recipients complied with the requirement to maintain AIs. The study found that the recipients were neither keeping up-to-date records on their AIs nor creating a timeline of actions that they would take on the identified issues.28 GAO recommended that HUD have stronger powers to ensure that progress was made on the AIs and that they were kept up-to-date.29 Notably, HUD still has the same regulatory powers today as it did in 2010, indicating the need for a new rule, like the AFFH rule, that would give HUD more enforcement power. Additionally, the new rule, because of the funding accountability mechanism, incentivizes funding recipients to be more proactive in identifying and addressing fair housing issues.

Another study by HUD found that although roughly seventy percent of the public has knowledge of fair housing law, only seventeen percent would do something if they believed they were being discriminated against.30 Eighty-three percent said they would do nothing.31 When asked why they would take no action, forty percent explained that they “believed there was no point to responding, that it would not have solved the problem or, in some instances, that it could have made the problem worse.”32 A follow-up study by HUD found that only two percent of those who have done something in response to housing discrimination filed a complaint with the federal government or a fair housing group.33 The self-reporting mechanism is clearly not effective in identifying the majority of FHA violations; a stronger mechanism is therefore needed in the form of allowing HUD to open its own investigations. 

It is evident that relying on the public and HUD funding recipients to report discrimination or progress, respectively, is not enough. The new AFFH rule will rely less on the public to report discrimination, enabling HUD to catch and adjudicate housing discrimination. The rule also allows HUD to pull funding for noncompliance. Thus, funding acts as an accountability mechanism for recipients. The greater degree of oversight afforded by the new rule will allow HUD to better execute the FHA.

V. Conclusion

The AFFH rule will help HUD to better enforce the FHA because the rule introduces an accountability mechanism for funding that does not depend on the public for enforcement. Consequently, HUD will be able to catch more violations that go unreported and incentivize funding recipients to be proactive in preventing violations. Even though there are unknowns when it comes to the new AFFH rule, there is a clear need for the stronger enforcement of the FHA that this rule would provide. Violations are not often reported to HUD, which cannot presently penalize violators; thus, the AFFH rule is necessary to combat this and allow HUD to effectively enforce the FHA. The new rule aims to change this and affirmatively further fair housing.

  1. *B.A. Candidate for History and Urban Studies minoring in African and African American Studies, Fordham College at Rose Hill, Class of 2025. It has been an honor to be a staff writer this semester for the Fordham Undergraduate Law Review. Thank you to my editor, family, friends, and the FULR E-Board, who have given me endless support and advice during the writing process.
  2. Fair Housing Act, 42 U.S.C. §§ 3601-3619.
  3. Douglas S. Massey, The Legacy of the 1968 Fair Housing Act, 30 Sociological Forum 571, 571 (2015).
  4. Id. at 579.
  5. Id. at 578.
  6. Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8516 (proposed Feb. 9, 2023) (to be codified at 24 C.F.R. pts. 5, 91, 92, 93, 570, 574, 576, 903, and 983) [hereinafter Proposed Rule].
  7. Libby Perl, Cong. Rsch. Serv., R44557, The Fair Housing Act: HUD Oversight, Programs, and Activities 4 (2021).
  8. Housing Discrimination Under the Fair Housing Act, U.S. Dep’t of Housing & Urban Dev., https://www.hud.gov/program_offices/fair_housing_equal_opp/fair_housing_act_overview (last visited May 23, 2023).
  9. HUD’s Title VIII Fair Housing Complaint Process, U.S. Dep’t of Housing & Urban Dev., https://www.hud.gov/sites/documents/23536_COMPLAINT-PROCESS.PDF (last visited May 23. 2023).
  10. Id.
  11. Id.
  12. Id.
  13. Perl, Cong. Rsch. Serv., supra note 6, at 4.
  14. Off. of Fair Housing and Equal Opportunity, U.S. Dep’t of Housing & Urban Dev., Fair Housing: Equal Opportunity for All 12 (2011), https://www.hud.gov/sites/documents/FHEO_BOOKLET_ENG.PDF.
  15. Perl, Cong. Rsch. Serv., supra note 6, at 4.
  16. Id.
  17. U.S. Gov’t Accountability Off., GAO-10-905, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions’ Fair Housing Plans 1 (2010).
  18. Id.
  19. Fair Housing Act, 42 U.S.C. § 3608.
  20. 24 C.F.R. §§ 5.150-5.180 (2015).
  21. Kim Kirschenbaum, New Regulation Seeks to Combat Housing Segregation, The Regulatory Review (July 16, 2015), https://www.theregreview.org/2015/07/16/kirschenbaum-housing-segregation/.
  22. Handel Destinvil, Obama Administration Introduces New Administrative Rule on Fair Housing, Practice Points (Aug. 13, 2015), https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2015/obama-administration-introduces-new-administrative-rule-fair-housing/.
  23. Katy O’Donnell, HUD Revamps Obama-Era Discrimination Rule in Rebuke to Trump, Politico (Jan. 19, 2023), https://www.politico.com/news/2023/01/19/hud-revamps-obama-era-discrimination-rule-in-rebuke-to-trump-00078539.
  24. Proposed Rule, 88 Fed. Reg. at 8517.
  25. Id. at 8519.
  26. Id. at 8520.
  27. Id. at 8528.
  28. U.S. Gov’t Accountability Off., supra note 16, at 1.
  29. Id.
  30. Off. of Pol’y Dev. & Rsch., U.S. Dep’t of Housing & Urban Dev., How Much Do We Know?: Public Awareness of the Nation’s Fair Housing Laws 25 (2002).
  31. Id.
  32. Id. at 27.
  33. Off. of Pol’y Dev. & Rsch., U.S. Dep’t of Housing & Urban Dev., Do We Know More Now?: Trends in Public Knowledge, Support and Use of Fair Housing Law 36 (2006).
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