NYU Furman Center Comments on HUD’s Affirmatively Furthering Fair Housing Rule

The NYU Furman Center and Noah Kazis, a Professor of Law at the University of Michigan and former Furman Center legal fellow,  recently each submitted comments on HUD’s Interim Final Rule, “Affirmatively Furthering Fair Housing (AFFH) Revisions” (Docket No. FR-65191-I-01) published in March 2025 (the “2025 Interim Final Rule”). [1]

The 2025 Interim Final Rule would change how HUD evaluates whether jurisdictions receiving federal housing funds are meeting their legal obligation to affirmatively further fair housing. Most notably, the rule would eliminate the requirement that recipients conduct formal fair housing planning and would lower the bar for compliance—deeming any action “rationally related” to “a broad set of housing related goals” sufficient to meet the obligation. In our collective comments, we raised serious concerns that this approach would effectively nullify the AFFH mandate and reverse progress made under prior rules, including HUD’s 2015 Final Rule and 2021 Interim Final Rule.

Read the comment the Furman Center submitted to HUD here, and the comment Professor  Kazis submitted here. 

Under the Fair Housing Act, HUD must administer its programs “in a manner affirmatively to further” the law’s purposes. HUD carries out this statutory mandate by requiring that local jurisdictions receiving federal funding not only prohibit discrimination in housing but also affirmatively further fair housing by actively addressing disparities and other barriers to housing access based on race, color, religion, national origin, sex, disability, and family status. [2]

HUD’s prior 2021 Interim Final Rule explicitly defined the AFFH mandate and required recipients of federal funds to certify that they have “taken meaningful actions” to further fair housing. The 2021 Interim Final Rule also established opportunities for jurisdictions to receive technical assistance while undertaking Assessments of Fair Housing, an Analysis of Impediments, or other kinds of fair housing planning. The 2021 Interim Final Rule did not explicitly require recipients to use a specific planning process, which a predecessor rule published in 2015 had required. [3]

The 2025 Interim Final Rule is a significant step backwards. It applies a new standard for HUD’s review of certifications that effectively nullifies the AFFH mandate for recipients of federal funds. This new standard states that a certification “will be deemed sufficient provided they took any action during the relevant period rationally related to promoting fair housing.” [4] Professor Kazis and the Furman Center emphasize that this broad phrasing, as well as a newly expanded definition of “fair housing” to include affordability, safety, and housing quality, render the AFFH mandate meaningless, as a jurisdiction’s basic land use and zoning activities could be framed as sufficient proof of AFFH compliance, even if those activities in fact maintain or contribute to exclusionary housing practices. 

The 2025 Interim Final Rule also repeals existing planning requirements, both those promulgated in 2015 and the “Analysis of Impediments” requirements first established in 1994. The  Furman Center’s comments argue that any successful rule to further fair housing must include both (1) a planning process to ensure that recipients understand and analyze the fair housing disparities in their jurisdiction, and (2) a certification process with real, enforceable standards so HUD can know whether recipients have actually taken meaningful actions to address those disparities.

The Furman Center’s comment drew lessons from a body of research quantifying the effects of residential segregation on housing patterns, neighborhood conditions, mobility, and opportunity. [5] The Furman Center’s comment also detailed its research finding inequality in New York City’s schools, [6] eviction filing rates by area [7], voucher usage rates [8], where new units (including affordable units) are built [9], investment in public housing [10], and homeownership rates.[11] The comment also summarized the Furman Center’s analyses of how property tax exemptions [12] and zoning text amendments can significantly impact fair housing metrics [13]. The research and analysis the comment discusses demonstrate how forcing jurisdictions to consider fair-housing related goals and data can help them make better informed decisions about many aspects of  housing policy.

Professor Kazis’ comment shares the Furman Center’s concerns about the likely consequences of the 2025 Interim Rule and emphasizes that the proposed rule both broadens the definition of AFFH-compliant activities to the point of meaninglessness and dismantles the planning framework that currently supports AFFH implementation. Demonstrating HUD’s failure to consider alternative approaches to its statutory obligation to further fair housing, Kazis suggests a focus on practices that are known to impede fair housing, like unduly restrictive zoning or residency preferences. Kazis details other proposed reforms to the AFFH process that would tighten oversight, clarify ambiguous terms, and otherwise facilitate compliance. Kazis also describes the growing recent literature on the extent and costs of housing discrimination, the effects of segregation, and the outcomes of various AFFH policy interventions. By effectively repealing any meaningful AFFH process, he suggests, HUD is likely to exacerbate the ongoing social consequences of discriminatory housing policies. 

The Furman Center and Kazis urged HUD to reconsider the 2025 Interim Final Rule, which would weaken the obligation on recipients of federal funds to a point where it effectively eliminates the AFFH obligation. Both comments emphasized that HUD must fulfill its statutory obligation to affirmatively further fair housing and that HUD should be providing a framework that holds recipients of funding accountable if they do not take meaningful actions to affirmatively further fair housing and address the enormous social costs of segregation.  

Read the Furman Center’s comment here, and Professor  Kazis’ comment here.

Footnotes 

[1] 90 FR 11020(March 3, 2025).

[2] 42 U.S.C. §§ 3608(d), (e)(5) (2006).

[3] 86 FR 30779 (June 10, 2021).

[4]  90 FR 11020 (March 3, 2025) (emphasis added).

[5] See e.g. Jorge De La Roca, Ingrid Gould Ellen & Katherine M. O’Regan, Race and Neighborhoods in the 21st Century: What Does Segregation Mean Today?, 47 REGIONAL SCI. & URB. ECON. 138 140 (2014); Raj Chetty et al., Where Is the Land of Opportunity? The Geography of Intergenerational Mobility in the United States, (Nat’l Bureau of Econ. Research, Working Paper No. 19843, 2014); David M. Cutler & Edward L. Glaeser, Are Ghettos Good or Bad?, 112 Quarterly J. Econ. 827 (1997); Jorge De la Roca, Ingrid Gould Ellen & Justin P. Steil, Does Segregation Matter for Latinos?, 40 J. HOUS. ECON 129 (2018); Ingrid Gould Ellen, Is Segregation Bad for Your Health? The Case of Low Birth Weight, BROOKINGS-WHARTON PAPERS ON URB. AFF. 203 (2000).

[6] Diana Cordovo-Cobo & Ingrid Gould Ellen, NYU FURMAN CENTER, 2018 Focus: The Diversity of New York City’s Neighborhoods and Schools, in State of New York City’s Housing & Neighborhoods – 2018 Report (2018), https://www.furmancenter.org/wp-content/uploads/ee-legacy/sotc/2018_SOC_Focus_Web_Copy_Final.pdf. “Black and Hispanic students are much more likely to share schools with each other than with any other racial/ethnic group. Roughly 9 in 10 Black students and 7 in 10 Hispanic students attend schools classified as Black-Hispanic, predominantly Black, or predominantly Hispanic. In contrast, roughly 7 in 10 white students and 8 in 10 Asian students attend schools with a significant share of students (20% or more) from a different racial/ethnic group…When the population of school zones and neighborhoods diversified, their elementary schools diversified as well, but school changes were far more muted.”

[7] Ryan Brenner & Katherine M. O’Regan, NYU FURMAN CENTER, 2019 Focus: Eviction Filings, in State of New York City’s Housing & Neighborhoods – 2019 Report (2019), https://www.furmancenter.org/stateofthecity/view/eviction-filings. “There were large differences in the race and ethnicity of residents of areas with high versus low filing rates. Strikingly, the share of the population that is Black in the areas with the highest filing rates (39.5%) was almost ten times the share in areas with the lowest filing rates (4.1%) and almost twice the share in the city as a whole (21.9%). Similarly, although less dramatic, the share of the population that is Hispanic in the highest filing areas (40.8%) was over twice the share in the lowest filing areas (19.4%).”

[8] Katherine M. O’Regan, Hayley Raetz, Jiaqi Dong, Elizabeth Lochhead, Kristen Tauber, Matthew Murphy, NYU FURMAN CENTER, 2023 Focus: The Use of Housing Choice Vouchers in New York City, in State of New York City’s Housing & Neighborhoods – 2023 Report (2023), https://www.furmancenter.org/stateofthecity/view/the-use-of-housing-choice-vouchers-in-new-york-city.

[9] Hayley Raetz, Matt Murphy & Ingrid Gould Ellen, NYU FURMAN CENTER, 2021 Focus: the Geography of New Housing Developments, in State of New York City’s Housing & Neighborhoods – 2021 Report (2021), https://www.furmancenter.org/stateofthecity/view/the-geography-of-new-housing. “There was considerable variation across housing types in terms of neighborhood attributes. Market-rate units were generally built in more advantaged neighborhoods (with higher than average white population shares, college graduation rates, building sales price, rents, and household incomes) than new units overall. By contrast, income-restricted units targeted to low-income households were built in SBAs that had higher poverty rates, lower family incomes and median rents, and higher Black and Hispanic population shares on average compared to new units overall.”

[10] NYU FURMAN CENTER, NYCHA’s Road Ahead (2019), https://www.furmancenter.org/wp-content/uploads/ee-legacy/NYCHAs_Road_Ahead_Final.pdf. 

[11] Vicki Been, Hayley Raetz, Matthew Murphy & Ryan Brenner, NYU FURMAN CENTER, 2022 Focus: Low-Density Neighborhoods, in State of New York City’s Housing & Neighborhoods – 2022 Report (2022),

. 

[12] Hayley Raetz & Matthew Murphy, NYU FURMAN CENTER, The Role of 421-a during a Decade of Market Rate and Affordable Housing Development (2022); Vicki Been, Mark Willis, Matthew Murphy & Nikki Miller, NYU FURMAN CENTER, Principles to Guide an Improved Tax Exemption to Secure New Rental Housing: Fostering Affordability and Equitable Development in New York City (2024);  Matthew Murphy and Ryan Brenner, Racial Inequities in New York City’s Property Tax System, The Stoop (Jan. 8, 2024).  https://www.furmancenter.org/thestoop/entry/racial-inequities-in-new-york-citys-property-tax-system. 

[13] Matthew Murphy, Mark Willis & Hayley Raetz, NYU FURMAN CENTER, Testimony: City of Yes for Housing Opportunity from the NYU Furman Center at 5.

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