Did HUD get its interim final AFFH rule right?
June 10, 2021 – HUD today published in the Federal Register an interim final rule restoring affirmatively furthering fair housing (AFFH) definitions and certifications that had been required by the 2015 (Obama administration) rule but that had been repealed by the Trump administration.
Concerns were immediately expressed by some that the interim final rule does not mandate an “analysis of impediments” (AI) or “assessment of fair housing” (AFH) process, as the 2015 rule had done, but rather sets out a substantive definition of AFFH and requires that jurisdictions receiving funding certify that they will AFFH.
In our view, this actually has the potential to be a positive development. The 2015 rule was built on the fiction that once jurisdictions came to learn of their segregated housing patterns those jurisdictions would act to undo the patterns. In fact (as everyone knows), the reason that segregated housing patterns stay in place is NOT because of a jurisdiction’s lack of information, but rather because of a jurisdiction’s lack of will to make change.
In other words, far too much time and energy have been spent fetishizing analysis, and far too little time and energy have been spent insisting on making actual change.
Moreover, the requirement to act under the 2015 rule only applied to impediments that had been identified. Perversely, jurisdictions could argue that they had insulated themselves from taking actually meaningful action by creating an underinclusive assessment and then saying that met the requirement of addressing the subset of issues they had identified.
There are, of course, many additional steps that HUD can and should take in connection with the further rulemaking it is planning. For example, the required certification should not only be prospective but retrospective as well. A new rule should explicitly disclaim the appalling, neutering language in the preamble to the 2015 rule that “This rule does not impose any land use decisions or zoning laws on any local government.” The procedure for assessing the validity of a certification (referencing only 24 CFR Part 91 generally) is opaque and appears (please, someone, correct us if we’re wrong) to accept submissions unless HUD disapproves them within 45 days. Certifications have to be able to be challenged (whether internally at HUD, through the use of the False Claims Act, or otherwise) for a far longer period of time after submission.
But, to return to the beginning, focusing on a substantive definition rather than process-oriented requirements that rarely brought results does not seem to us to be a problem.
What is of great concern is the extraordinary statement in the preamble that HUD expects that the instances where it will be reviewing certifications to see if those certifications are supported by the grant recipient’s actions will be RARE. Since the overwhelming percentage of jurisdictions certifications of compliance are false, HUD either (1) doesn’t understand the history of the almost-universal ignoring of the AFFH requirement (which seems highly unlikely given that it has some very smart people in place) or (2) is preemptively surrendering and announcing its willingness to allow widespread noncompliance because it fears that doing more would be politically untenable (we’ve seen that movie before).
We would, of course, love to hear a response from HUD.