112 AMERICAN BAR ASSOCIATION ADOPTED BY THE ...
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112
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 22, 2021
RESOLUTION
RESOLVED, That the American Bar Association supports the reinstitution of the
Affirmatively Furthering Fair Housing Final Rule adopted in 2015, at 80 FR 42272 (July
16, 2015), which promotes the Fair Housing Act’s goals of equal housing opportunity for
all Americans, including supporting the elimination of barriers to racial equality; and
FURTHER RESOLVED, That the American Bar Association urges the United States
Department of Housing and Urban Development to void the Rule adopted on July 23,
2020, so as to reinstate the 2015 Affirmatively Furthering Fair Housing Rule in full force
and effect.112
REPORT
On July 23, 2020, the United States Department of Housing and Urban
Development (HUD) announced the issuance of a new Affirmatively Furthering Fair
Housing (AFFH) regulation, called "Preserving Community and Neighborhood Choice"
(PCNC) regulation. 1 The regulation is a final rule that took effect 30 days after it was
published in the Federal Register. 2 It replaced the Obama-era AFFH rule, which was
adopted in 2015 to pursue the purposes and policies behind the 1968 Fair Housing Act,
as amended (FHA). The FHA, with roots in the aftermath of the Civil War, not only calls
for the prohibition of discrimination in housing practices but also calls on HUD program
participants to actively combat patterns of historic segregation to promote integration of
living patterns and fair housing choice. This is not a final version of the rule that HUD
proposed in January to which the agency received more than 19,000 public comments,
overwhelmingly opposing HUD's proposal. 3 This is an even weaker, previously unseen
rule.
In an attempt to undermine the central component of the FHA and in a move
viewed by many as political theater, HUD is engaging in an end-run around the normal
rulemaking process by adopting the PCNC rule in an executive fiat devoid of public
comment. The PCNC rule lacks substance, clarity, and accuracy in its definition of both
fair housing and affirmatively furthering fair housing. Further, the rule went into effect
during a global health pandemic that has killed over 210,000 in the United States and an
economic downturn comparable to the Great Depression which is disproportionately
impacting communities of color. Moreover, the rule fundamentally ignores the country's
current reckoning with racial injustice and the public outcry for the country to dismantle
systemic racism. In short, this new rule is completely at odds with the purpose of the FHA
and decades of case law.
AFFH Implementation Before the Current Rule
The FHA requires federal agencies, in particular HUD, to "affirmatively further fair
housing." This mandate requires all localities receiving federal funding to take active
meaningful steps to undo decades of federal, state, and local discriminatory policies and
practices that created racially segregated, underserved communities that persist to this
day.
Prior to the 2015 AFFH rule, HUD program participants met the mandate to
affirmatively further fair housing by analyzing impediments to fair housing choice and by
certifying to HUD that they would engage in actions that would affirmatively further fair
housing. 4 HUD program participants were directed to engage in an Analysis of
Impediments (AI). This analysis required them to identify impediments to fair housing
1 Press Release, Secretary Carson, Secretary Carson Terminates 2015 AFFH Rule (July 23, 2020),
https://www.hud.gov/press/press_releases_media_advisories/HUD_No_20_109.
2 "Preserving Community and Neighborhood Choice," published August 7, 2020 at 85 FR 47899.
3 "Affirmatively Furthering Fair Housing; Proposed Rule," published January 14, 2020, at 85 FR 2041.
4 Aggrieved parties were not able to sue for lack of compliance with the Analysis of Impediments until
Westchester County was sued for damages for accepting federal funding without affirmatively furthering
fair housing. United States Anti-Discrimination Center of Metro New York v. Westchester County, 668
FSupp2d 548 (S.D.N.Y. 2009).112
choice in their jurisdiction, to plan, and to take action to combat the effect of those
impediments. The program participants were required to keep records of their actions.
However, the program participants were not required to submit their analysis or records
to HUD for review. Despite its lack of an effective review function, HUD carefully
considered the effectiveness of the AI process on program participants to determine
whether participants met the affirmatively furthering fair housing mandate before
proceeding with changes to the rule.
HUD found the process needed improvement. This sentiment was confirmed by
a report published in 2010 by the U.S. Government Accountability Office (GAO) titled,
"HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions' Fair Housing
Plans." 5 The report found, among other things, that HUD neither specified the content
nor the scope of the AI's which resulted in uneven analysis across jurisdictions and
decreased the effectiveness of the AI as a planning tool. The report recommended HUD
could improve the program by providing effective guidance and technical assistance as
well as data already in HUD's possession to help program participants plan for
affirmatively furthering fair housing.
Impetus for the 2015 AFFH Rule
Congress intended for HUD to take active steps to end housing discrimination,
dismantle housing segregation and tackle systemic racism by expanding access to
housing opportunity to all people. 6 In response to the Government Accountability Office
and on the basis of its own findings, HUD announced a proposed rule on July 19, 2013
to replace the AI in assessing fair housing. 7 The proposed new assessment was
designed to better assist program participants in carrying out their affirmatively furthering
fair housing obligations by conditioning the receipt of HUD funds on identifying fair
housing issues, prioritizing these issues and setting concrete goals to promote housing
and community development planning. HUD found support for this more active role within
its AFFH mandate, the FHA, and extensive judicial interpretations.
Section 3608(d) of the FHA requires HUD to administer its programs and activities
in a manner designed to affirmatively to further the purposes of the FHA. 8 In N.A.A.C.P.
Chapter v. HUD, the First Circuit Court of Appeals analyzed section 3608(d) and found
that, Congress intended HUD to do more than simply not discriminate itself and that the
FHA reflects the desire to have HUD use its grant programs to assist in ending
discrimination and segregation, to the point where the supply of genuinely open housing
increases. 9 During the debate of the Fair Housing Act, Senator Phillip Hart, the floor
manager for the bill in the Senate, stated, "this problem of where a family lives, where it
is allowed to live, is inextricably bound up with better education, better jobs, economic
motivation, and good living conditions." 10 Further, the Second Circuit Court of Appeals in
Otero v. New York City Housing Authority, determined that section 3608(d) of the FHA
5 GAO-10-905, Sept. 14, 2010 See https://www.gao.gov/assets/320/311065.pdf
6 42 U.S.C §3608(d).
7 “Affirmatively Furthering Fair Housing; Proposed Rule,” published July 16, 2013 at 78 FR 43710.
8 42 U.S.C §3608(d).
9 N.A.A.C.P. v. Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir. 1987).
10 114 Cong. Rec. 2276-2707 (1968).
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mandated "[a]ction must be taken to fulfill, as much as possible, the goal of open,
integrated residential housing patterns and to prevent the increase of segregation, in
ghettos, of racial groups whose lack of opportunity the Act was designed to combat." 11
The 2015 AFFH Rule
In 2015, after HUD received public comment and made changes, its proposed
AFFH rule became a reality, replacing the analysis of impediments with a standardized
Assessment of Fair Housing (the "Assessment"). 12 The 2015 AFFH rule sought "to
empower program participants and to foster the diversity and strength of communities by
overcoming historic patterns of segregation, reducing racial or ethnic concentrations of
poverty, and responding to identified disproportionate housing needs consistent with the
policies and protections of the FHA." 13 The 2015 rule provided program participants with
a framework to assist "in reducing disparities in housing choice, access to housing and
opportunity based on race, color, religion, sex, familial status, national origin or disability,
thereby expanding economic opportunity and enhancing the quality of life." 14
The key features in achieving these goals were:
(1) A new fair housing assessment tool. HUD replaced the AI with the Assessment
as a more effective and standardized assessment to assist program participants with
identification and evaluation of fair housing issues. In addition, program participants
would identify factors that contributed to a lack of fair housing.
(2) Nationally uniform housing data for use by program participants to frame their
assessment activities. HUD provided data to program participants to improve the fair
housing assessment, planning and decision making to assist the program participants in
determining goals to address the fair housing issues and contributing factors. In addition
to the data, HUD provided analytical tools vetted by the housing research community that
enabled jurisdictions to identify Racially and/or Ethnically Concentrated Areas of Poverty
and evaluate the degree of segregation by race and ethnicity occurring within their
boundaries.
(3) Directions focused on the purpose of the Assessment and standards by which
HUD would evaluate the Assessment as well as provide specific HUD review procedures
with clear standards. These processes would allow for technical assistance and enforce
the value and importance of planning activities for fair housing.
11 Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (1973). Affirmatively furthering fair
housing is taking proactive steps to end exclusionary practices. In the words of Walter Mondale, “When
high-income black families cannot qualify for a prime loan and are steered away from white suburbs, the
goals of the Fair Housing Act are not fulfilled,” he said. “When the federal and state governments will pay
to build new suburban highways, streets, sewers, schools and parks, but then allow these communities to
exclude affordable housing and nonwhite citizens, the goals of the Fair Housing Act are not fulfilled.
When we build most new subsidized housing in poor black or Latino neighborhoods, the goals of the Fair
Housing Act are not fulfilled.” http://www.nytimes.com/2015/09/06/opinion/sunday/the-architecture-of-
segregation.html?_r=0
12 “Affirmatively Furthering Fair Housing; Final Rule,” published July 16, 2015, at 80 FR 42272.
13 Id.
14 Id.
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(4) A more direct link between the Assessment and subsequent program participant
planning documents to tie fair housing planning into the priority setting, commitment of
resources, and specific activities to be undertaken. This was done with the intent to have
fair housing planning incorporated explicitly into existing planning processes such as the
Consolidated Plan and the Public Housing Agency Plan to make fair housing goals and
priorities inextricably linked to housing and community development planning.
(5) Promotion and facilitation of collaboration between different jurisdictions and public
housing agencies to develop regionally appropriate approaches to address fair housing
issues. This collaboration with the public, with an emphasis of individuals who had been
historically excluded as a result of their protected status, would allow more transparency
in addressing local fair housing issues, goals, and how best to allocate HUD funding. The
inclusion of community involvement is required under this rule as an integral part of the .
Municipalities began submitting their Assessments to HUD on a rolling basis in 2016.
Evidence Supported the 2015 AFFH Rule
The roll-out the 2015 AFFH rule showed promise. Prior to HUD's announcement
of the suspension of the 2015 AFFH rule the Poverty & Race Research Action Council
(PRRAC) conducted a study to evaluate the implementation of the 2015 rule. 15 While
HUD has now denounced the 2015 rule as a failure that over burdened program
participants, PRRAC's research suggested otherwise. The study compared Assessment
submissions to the previous AI submissions by the same program participants, and
consistently found an increase of 28% of submissions containing quantifiable metrics or
included new policy, and most of the submissions contained multiple of both. Only 5% of
the AI's had either a quantifiable metric or new policy whereas in the Assessment 33%
had such information. 16 When reviewing the Assessment, PRRAC found that program
participants "made concrete commitments to measureable goals or the implementation
of new policies." 17 These goals ranged from reducing displacement through gentrification
in Seattle, Washington, to increasing household mobility through housing vouchers in
New Orleans, Louisiana. 18 The research continued to find that the Assessments were
producing results consistent with the goals of the 2015 AFFH rule to overcome patterns
of segregation and foster inclusive communities. The rule was making quantifiable
change in rooting out entrenched segregation and expanding access to opportunities
throughout communities across this country.
Nevertheless, HUD determined that, even with the limited roll-out of the 2015 rule,
there was sufficient evidence to show that the rule was so over-burdensome on program
participants that suspension of the rule was announced in 2018. 19 HUD suspended the
15 Justin Steil and Nicholas Kelly, Snatching Defeat from the Jaws of Victory: HUD Suspends AFFH Rule
that was Delivering Meaningful Civil Rights Progress, Poverty & Race Research Action Council, (October-
December 2017),
http://web.mit.edu/afs/athena.mit.edu/org/f/fairhousing/research/Steil_Kelly_2017_Snatching_Defeat_Jaw
s_Victory_AFFH_PRRAC.pdf
16 Id.
17 Id.
18 Id.
19 “Affirmatively Furthering Fair Housing: Streamlining and Enhancements,” published August 16, 2018, at
83 FR 40713.
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2015 AFFH rule based on only 49 initial Assessment of Fair Housing submissions. The
suspension was dismissive of the fact that any brand new and more meaningful approach
to AFFH would require a learning curve even though that learning curve was anticipated
by the 2015 rule. When HUD suspended the 2015 AFFH rule, it curtailed the progress
brought on by some of the most meaningful guidance for how states and localities can
address discriminatory housing practices and undo the harms caused by racial
segregation and housing discrimination.
Preserving Community and Neighborhood Choice
HUD has now used a procedural ploy to adopt the PCNC rule without public notice
and comment by invoking a provision of the Administrative Procedure Act that allows
certain grant-related actions to be made final without notice and comment. 20 This action
allows HUD to avoid standard rulemaking procedures and to implement the rule virtually
sight unseen. 21 This action violates HUD's regulatory process to provide public notice
and the opportunity for public comment. 22 Yet, HUD argues that violating its own policy
is within the Secretary's discretion even though the new rule dramatically departs from
precedent and was not subject to public scrutiny prior to it taking full effect. 23 It also relies
on a rather strained and unwarranted expansion of the grantmaking exception to the
normal requirements for notice and comments.
The PCNC rule takes an extreme and regressive approach to affirmatively
furthering fair housing that is antithetical to Congressional intent, the legislative history
and the judicial record on affirmatively furthering fair housing. The core tenets of the
FHA's AFFH provisions that included mandating HUD to take active steps to end
segregation, promote integration and to ensure all neighborhoods equal access to
opportunity have been excised by the PCNC rule.
The PCNC redefines the very meaning of fair housing, stripping away virtually all
requirements for program participants to meaningfully fulfill their fair housing obligations,
while removing any consequential oversight by HUD.
The key features driving these results include:
(1) A new definition of fair housing, as "housing that is safe, decent, affordable, free
of unlawful discrimination and accessible in accordance with applicable civil rights
statutes." 24 This definition ignores issues of residential segregation and structural racism
resulting from decades of racial steering and redlining that are central to the true meaning
of AFFH. It also ignores the continuing impact of highly restrictive zoning codes that even
most conservative commentators have attacked as unfair impediments to housing
availability for all varieties of people, including but not limited to minority groups. Further,
20 42 U.S.C. 3535(q); 24 C.F.R. 5.110.
21 5 U.S.C. 553(a)(2).
22 24 CRF 10.1. See HUD's decision to favor the statutory waiver over the rule at 85 FR 47899 (August 7,
2020).
23 Id.
24 24 C.F.R. §5.150(a).
5112
there is virtually no reference to the protected classes under the FHA: race, color, religion,
national origin, sex, family status or disability within the rule let alone their absence from
the definition of fair housing as reflected in the 2015 definition.
(2) Revising the meaning of affirmatively furthering to mean, "tak[ing] any action
rationally related to promoting any attribute or attributes of fair housing." 25 The "rational
relationship" standard is such a low bar that effectively any "actions" would meet this
standard.
(3) While the requirement for program participants to certify that they will affirmatively
further fair housing still remains, the rule states that these certifications will be deemed
sufficient if "the participant takes, in the relevant period, any action that is rationally related
to promoting one or more attributes of fair housing." 26 Since the new definition of fair
housing has removed anything related to segregation or the residue of historical and
structural racism, these core problems will not likely be addressed.
(4) Program participants will only be required to maintain records that show that they
filed the AFFH certification. No metrics or data showing how their actions have
affirmatively furthered fair housing or even how the participants plan on implementing
their actions is required.
(5) HUD will not actively engage in any monitoring or oversight of program
participants' AFFH activities. HUD, however, will continue to retain the right to investigate
and take enforcement action against any participants that fail to comply with the rule's
very rudimentary requirements. 27 As evidenced by the GAO report about the AI this
means very little.
( 6) This rule removes the Assessment, which, as mentioned above, was required
under the 2015 rule, from the public participation requirements of the Consolidated Plan.
As a result, program participants will not be required to make any fair housing plans prior
to making spending decisions designated in their Consolidated Plans. Further, this rule
also removes the pre-2015 Analysis of Impediments requirement for program
participants. 28
Adverse Effects of the Current Rule
With the PCNC rule in effect, program participants will no longer be required to
conduct any sort of fair housing planning. Thus, there will be no need for participants to
identify fair housing goals, develop plans to accomplish those goals or to maintain records
documenting such efforts. Program participants will not be required to gather, let alone
evaluate data, analysis or public input regarding segregation, integration, discrimination,
and systemic racism within their jurisdictions. Any actions taken by program participants
that have the effect of perpetuating segregation both racial and economic will not be used
to show that they are failing to meet their AFFH obligations. HUD will not actively monitor
program participants' performance regarding their compliance with the AFFH mandate.
25 24 C.F.R. §5.150(b).
26 24 C.F.R. § 5.151.
27 85 FR 47899 (August 7, 2020).
28 Id.
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There will be no way to show that any action taken on the part of the participants actually
help to affirmatively further fair housing or whether these actions are in fact doing the
opposite. HUD has all but abdicated its mission to create strong, sustainable, inclusive
communities and quality affordable homes for all.
For example, as pointed out by the National Fair Housing Alliance, a program
participant could comply with the PCNC rule while intentionally locating all of its affordable
housing in poor, highly segregated neighborhoods, depriving the neighborhoods of
resources, and pushing heavy industrial factories into those neighborhoods as long as
the participant engages in targeted rudimentary code enforcement under the auspices of
housing safety. 29 It could adopt highly exclusionary zoning codes that forbid any kind of
housing variety that might accommodate different income groups that include higher
proportions of people of color. More to the point, a program participant could engage in
all of the above actions to perpetuate discrimination and inequality and simply hold a fair
housing poster contest. Based on this rule, the poster contest alone would be enough for
the participant to be in compliance with the AFFH mandate. 30
The 2015 AFFH rule would not only prevent harm, despite HUD’s claims, it would
also promote better suburban communities. The famous town of Mt. Laurel, New Jersey,
which resisted affordable housing for years, finally approved housing choice very much
in the spirit of the AFFH rule. It was just named by Money Magazine as the 16th most
desirable community in the whole country, partly because of this diversity. So the AFFH
Rule is a good thing and its elimination will hurt our towns.
At any time this would be an egregious rule but at a time when this nation is again
grappling with structural racism, its purpose is all the more stark. This rule is not a fair
housing rule. The PCNC rule does nothing to address fair housing issues or advance a
fair housing agenda. Rather, it is a rule implemented without standard administrative
procedures for the purpose of avoiding a complete review of the 19,000 public comments
for the noticed January 2020 contemplated but abandoned rule. This rule adopts a
definition of affirmatively furthering fair housing that is antithetical to the language and
legislative history of the FHA and case law interpreting it, and returns us to tested but
ineffective AI-like legislation.
Respectfully submitted,
Erica Levine Powers, Chair
Section of State and Local Government Law
February 2021
29 HUD Abandons Its Mandate to Dismantle Segregation and Systemic Discrimination, National Fair
Housing Alliance (August 4, 2020) https://nationalfairhousing.org/wp-content/uploads/2020/08/Overview-
of-HUDs-New-AFFH-Rule-Final-8.4.20.pdf.
30 Id.
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GENERAL INFORMATION FORM
Submitting Entity: State and Local Government Law
Submitted By: Erica Levine Powers
1. Summary of the Resolution(s).
Urges the United States Department of Housing and Urban Development to void the
Rule that it adopted on July 23, 2020, so as to reinstate the 2015 Affirmatively
Furthering Fair Housing Rule.
2. Approval by Submitting Entity.
State and Local Government approved the resolution on October 30, 2020.
3. Has this or a similar resolution been submitted to the House or Board previously?
No
4. What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
The Association has adopted policy supporting the implementation of housing and
community economic development initiatives and programs to revitalize low- and
moderate-income communities (See ABA House Report 99M105), supporting the
Section 8 low-income housing voucher program (See ABA House Report 03A121),
supporting the establishment of a federal affordable housing trust fund (See ABA
House Report 05M111), and promoting the human right to adequate housing for all
(See ABA House Report 13A117). The current recommendation would complement
and enhance these adopted policies by allowing the Association to continue to support
efforts to increase access and equity to housing to all Americans.
5. If this is a late report, what urgency exists which requires action at this meeting of
the House?
N/A
6. Status of Legislation. (If applicable)
At this time there is no pending legislation and the PCNC rule is still in effect.
7. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
Direct advocacy by ABA Government Affairs and volunteer members in Washington
DC with HUD and elected officials
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8. Cost to the Association. (Both direct and indirect costs)
Minimal lobbying costs
9. Disclosure of Interest. (If applicable)
10. Referrals.
Administrative Law
Real Property, Trust and Estate Law
Government and Public Sector Lawyers Division
Criminal Justice Section
11. Name and Contact Information (Prior to the Meeting. Please include name, telephone
number and e-mail address). Be aware that this information will be available to
anyone who views the House of Delegates agenda online.)
Andy Gowder
O: 843.727.2229
M: 843.870.0307
andy@austengowder.com,
Patty Salkin
646-565-6522
psalkin@tourolaw.edu,
Jennifer Bragar
503-894-9900
jbragar@tomasilegal.com
12. Name and Contact Information. (Who will present the Resolution with Report to the
House?) Please include best contact information to use when on-site at the
meeting. Be aware that this information will be available to anyone who views the
House of Delegates agenda online.
Andy Gowder: andy@austengowder.com
Patty Salkin: psalkin@tourolaw.edu
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EXECUTIVE SUMMARY
1. Summary of the Resolution.
Urges the United States Department of Housing and Urban Development to void
the Rule that it adopted on July 23, 2020, so as to reinstate the 2015 Affirmatively
Furthering Fair Housing Rule.
2. Summary of the issue that the resolution addresses.
The PCNC rule takes an extreme and regressive approach to affirmatively
furthering fair housing that is antithetical to Congressional intent, the legislative
history, and the judicial record on affirmatively furthering fair housing. The PCNC
redefines the very meaning of fair housing, stripping away virtually all requirements
for program participants to meaningfully fulfill their fair housing obligations, while
removing any consequential oversight by HUD. The core tenets of the FHA's
AFFH provision mandates HUD to take active steps to end segregation, promote
integration and to ensure all neighborhoods equal access to opportunity. The 2015
AFFH rule is in line with these core tenets because it instituted proactive steps to
end exclusionary practices and provide equal housing opportunity for all
Americans.
3. Please explain how the proposed policy position will address the issue.
Reinstatement of the 2015 rule will begin a documentation process for local
jurisdictions to examine patterns of segregation and dismantle them through
commitment to new policy.
4. Summary of any minority views or opposition internal and/or external to
the ABA which have been identified.
None known at this time.
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