April 24, 2023
RE: Docket No. FR-6250-P-01; Affirmatively Furthering Fair Housing To Whom It May Concern:
The 48 undersigned fair housing, civil rights, housing advocacy, faith, consumer, women’s, real estate, LGBTQI+, senior and allied organizations submit these comments on HUD’s proposed new affirmatively furthering fair housing (AFFH) regulation (Docket No. FR-6250-P-01). We commend HUD for advancing this important regulation, which is a critical tool for creating more equitable and inclusive communities in which all residents – regardless of who they are or where they live – have access to the resources, amenities and opportunities they need to flourish. A strong AFFH regulation will amplify the impact of the Biden-Harris administration’s commitment to advancing equity in our country.
Background and context
The mandate to affirmatively further fair housing has been an essential component of the Fair Housing Act since it was passed in 1968. It is meant to rectify our nation’s deep inequities in access to opportunity: the result of unfair policies put in place over many decades; policies that have created unfair systems depriving millions of people access to secure and healthy housing opportunities. Those systems – unfair appraisals, biased technologies, a dual credit market, restrictive zoning policies, health and food deserts and many more – are driving disproportionate outcomes in health, education, wealth, homeownership, technology, environment, climate, employment and other areas.
AFFH is a major tool for removing those unfair structures and replacing them with systems that benefit everyone. This will not only lead to better outcomes for individuals, it will also strengthen our communities and boost our nation’s prosperity. Researchers have found that eliminating racial inequities for Black people alone would add hundreds of thousands of jobs and increase our nation’s GDP by $5 trillion over a 5- year period.
Our comments below highlight some of the provisions of the proposed rule that are particularly crucial for its success, and which must be preserved in the final rule, as well as some areas in which the rule should be strengthened to make it more effective.
Provisions that must be maintained in the final rule
A number of the elements in the current proposed regulation are particularly important to its long-term success, and we urge HUD to ensure these elements are preserved in the final rule. These include, among others:
- The strengthened definition of AFFH. The definition of AFFH in both the 2015 AFFH rule and the 2021 Interim Final AFFH rule articulated the concepts at the heart of the AFFH mandate: that it is not enough to eliminate discrimination from the housing market and our housing and community development programs, although that is necessary. But to overcome the harms caused by decades of sustained and systemic discrimination and segregation, in which the government played a major role, we must take deliberate – affirmative – steps to eliminate the barriers that have disadvantaged members of protected classes and ensure they have equitable access to our communities’ important assets and resources. That definition also reminded program participants that the AFFH obligation is not limited to the funding they receive from HUD. Rather, it extends to all of their programs and activities relating to housing and community development. This is critical to ensure that program participants do not adhere to their AFFH obligations with funding from HUD while simultaneously administering other programs or taking other actions that conflict with and undermine the AFFH mandate. This proposed rule adds a further important component to the definition of AFFH. It requires a program participant to “take actions, make investments, and achieve outcomes that remedy the segregation, inequities, and discrimination the Fair Housing Act was designed to redress.” (§ 5.152.) The focus on actions, investments and outcomes underscores the distinction between creating plans and executing those plans. The former is an essential step in the AFFH process, but the latter is required for program participants to actually fulfill their AFFH obligations. This has been a point of confusion for some program participants, which the new language should help to dispel.
- Measures to ensure accountability. According to the NPRM, there are 1,250 jurisdictions required to conduct Consolidated Plans (ConPlans) and more than 3,800 public housing agencies, putting the number of program participants required to create Equity Plans above 5,000. Even with the additional staff resources requested in the President’s recently proposed budget, it will be a challenge for HUD to monitor closely the equity planning process and its implementation for all of those program participants. Therefore, it is important to create backstops to ensure that HUD can carry out its oversight responsibilities effectively. The proposed rule would put in place a number of mechanisms to ensure greater accountability for program participants. These include:
- The opportunity for the public to submit comments to HUD on draft Equity Plans. The proposed rule provides that members of the public may submit comments to HUD during its review of draft Equity Plans, preferably within the first 60 days after a plan has been submitted. This will allow community stakeholders to alert HUD to potential problems that require particular review. Those could include a program participant’s failure to adhere to the community engagement requirements of the rule, consider important local data or knowledge that has been brought to its attention, address concerns raised during the development of the plan, set goals that will result in meaningful action and measurable results, or other flaws in the development of the Equity Plan. Establishing a mechanism through which community stakeholders can flag issues of concern early on will allow HUD to take corrective action when needed before a plan is finalized. This, in turn, will improve the quality and effectiveness of Equity Plans and enhance HUD’s oversight capacity.
- The requirement for annual progress evaluations. In an improvement over the 2015 rule, which had no comparable provision, the proposed rule requires program participants to submit progress evaluations to HUD annually, detailing the progress made toward achieving each fair housing goal in the program participant’s Equity Plan. This requirement will help ensure that program participants are working diligently to accomplish the goals they have set out, keeping them accountable both to HUD and to their communities. This is especially important since most Equity Plans will cover a five-year period, which is a relatively long time – too long to go without any updates on program participants’ progress. The annual progress evaluations will also allow for course corrections to be made in a timely manner, where needed.The proposed rule states HUD’s intention to publish program participants’ progress evaluations on a HUD-maintained website. While such a website may prove to be a useful, centralized source for finding progress evaluations and making comparisons between them, we urge HUD to require program participants to make these reports publicly available on their own websites as well. This is an important step to facilitate access to those reports by local stakeholders and to increase their value as a mechanism for local accountability.
- Establishment of a process for filing AFFH-related complaints. It has never been entirely clear whether members of the public could file a complaint with HUD alleging an AFFH violation by program participants. The absence of a clear process for doing so has hampered the public’s ability to hold program participants accountable for fulfilling their AFFH obligations, and HUD’s ability to ensure compliance with this important provision of the Fair Housing Act. The proposed rule establishes a straightforward process for doing so and sets out the protocols that HUD will use to investigate and resolve such complaints. As other commenters note, it would be helpful for the rule to specify the timelines associated with accepting, investigating and resolving complaints, and the remedies available to complainants. Nonetheless, the inclusion of this provision in the proposed rule is a significant improvement over the previous AFFH regulations, and we urge HUD to ensure that it remains in the final rule.
- Clear procedures for enforcing AFFH. The proposed rule spells out clearly the procedures HUD will use to enforce the AFFH obligation and the remedies it has available to resolve violations. HUD’s history of enforcing AFFH is limited, so making these procedures clear to program participants and community stakeholders alike will be helpful. In addition, by including these provisions in the rule, HUD sends a helpful message about the importance it places on program participants taking their AFFH obligations seriously.
3. Strong connections to other planning processes.