Former Furman Center Legal Fellow Noah Kazis Submits Public Comment on HUD’s Interim Final Rule on Affirmatively Furthering Fair Housing

The Affirmatively Furthering Fair Housing provisions of federal law (“AFFH”) are important elements of our civil rights law. They implement the Congressional insight that the federal government can and should do more than simply cease its discriminatory housing practices. The government has many tools to help others meet their legal and moral obligations not to discriminate and to build an integrated housing market, and it must consider how those tools can best be used. Through AFFH, the Fair Housing Act inserts fair housing as a factor to be considered and promoted across all of federal housing policy.

There is always room for a rethinking of how that statutory mandate can best be instantiated: as a society, we have yet to achieve the goals of the Fair Housing Act. I myself have offered suggestions for how to reshape AFFH to be more targeted, where appropriate, by replacing open-ended planning processes with clear standards promoting the most efficacious reforms.4 (These suggestions are discussed further below). However, the IFR does not suggest an alternative path to furthering fair housing. HUD has chosen instead to simply abandon any meaningful enforcement of AFFH. This contravenes HUD’s statutory obligations, at precisely a moment when we are making consistent progress in learning how to effectively further fair housing and how important such efforts are.

By failing to consider the benefits of a working AFFH process (and the resulting costs of increased housing discrimination and segregation), failing to consider a range of alternative approaches to furthering fair housing, and failing to heed the command of the Fair Housing Act, HUD has taken a fundamentally flawed approach. The IFR is procedurally improper, arbitrary and capricious, and inconsistent with the underlying statute.5 HUD should immediately withdraw the IFR and thoroughly reconsider its approach.