Natalie Spievack, Housing California, and Philip Tegeler, Poverty & Race Research Action Council
Excerpted from the AIR Equity Initiative: Integration and Equity 2.0, New and Reinvigorated Approaches to School Integration – A Collection of Essays
The ambitious Affirmatively Furthering Fair Housing (AFFH) rule launched by the Obama administration in 2015 had great potential to bring housing agencies and school districts together to promote more integrated neighborhoods and schools. However, the Trump administration suspended the rule before its potential could be fully realized, and only a few of the jurisdictions that participated in the initial rollout made significant connections between housing and education policy.1 Now that the AFFH rule is soon to be reinstated and expanded in practice to both public housing authorities and state governments,2 it is important to ensure that the potential of the AFFH rule can be fully realized.
Building on the AFFH provision of the Fair Housing Act of 1968,3 the 2015 AFFH rule set out a fair housing framework for U.S. Department of Housing and Urban Development (HUD) grantees to take meaningful actions to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination.4 To give the mandate teeth, the AFFH rule created obligations for HUD grantees to analyze local fair housing conditions and determine goals and actions through an Assessment of Fair Housing (AFH) (called an “Equity Plan” under the new proposed AFFH rule).
Recognizing robust evidence that demonstrates the reciprocal relationship between housing and school segregation,5,6 the 2015 AFFH rule required the AFH to analyze access to quality schools. To help jurisdictions examine this intersection, HUD developed an AFFH mapping tool that supplied index scores for school proficiency7 by geographic area, with the ability to overlay neighborhood demographics and the location of subsidized housing. The AFFH process also included requirements for intergovernmental consultation and community participation.8 To reinforce the importance of using the AFH process to address segregation in neighborhoods and schools, the Secretaries of HUD, the U.S. Department of Education, and the U.S. Department of Transportation issued a joint letter in 2016 urging local education, housing, and transportation leaders to work together to develop “thoughtful goals and strategies to promote equal opportunity.”9
Ideally, the AFFH rule ensures that local jurisdictions, public housing authorities, and states assess whether members of protected classes have equal access to highperforming schools, and, if they do not, to identify the factors contributing to this disparity and propose solutions.10 However, a review of the AFHs submitted by jurisdictions that participated in the first year of the AFFH process found that, with a few exceptions, access to high-performing schools was not meaningfully addressed in AFH analyses or goals, and consultation with school districts did not occur.11 The January 2018 suspension of the rule (followed by the official termination of the AFFH rule in July 2020)12 meant that there was no opportunity to improve this process, although a number of jurisdictions continued to implement the requirement voluntarily (see below).
A reinstated and expanded AFFH rule is uniquely positioned to promote school integration. First, as a housing intervention, the rule presents an opportunity to address the underlying patterns of neighborhood segregation that create school segregation in the first place.13 Second, the affirmative mandate of the AFFH rule requires that HUD grantees do more than simply not discriminate; they must proactively address segregation and other systemic issues driving housing inequities.14 School districts are not bound by such an explicit affirmative mandate to address segregation, although they are under an obligation to avoid policies that discriminate or increase segregation.15 Third, the Equity Plan process gives the federal government leverage to support interagency collaboration, the absence of which has historically been a major barrier to coordinated housing and school integration strategies.16 Finally, an expanded AFFH rule that includes state governments would create unprecedented opportunities to promote integration, given that states—more than agencies at the local or federal level—control the key drivers of modern school and housing segregation, including local land use and zoning, local education policy, local tax structures, school district boundaries, regional transportation policy, regional planning structures, and infrastructure investment.17
1. Finnigan, K., DeBray, E., Greenlee, A. J., Haberle, M., & Kurniawan, H. (2021). Using fair housing planning as a tool to address schooling inequities, Education Law and Policy Review, 6, 73–89. https://prrac.org/pdf/using-fair-housing-planning-as-a-tool-to-address-schooling-inequities-ed-lawpolicy-review-v6.pdf
2. The original 2015 AFFH rule applied to all U.S. Department of Housing and Urban Development (HUD) grantees, including public housing authorities and state governments, but HUD had not yet completed the assessment forms for state governments by the time the rule was suspended, and the data tool for public housing authorities had also not yet been finalized—although a number of public housing authorities (PHAs) joined their local jurisdictions in joint Assessments of Fair Housing in 2016–2017. The proposed new AFFH rule includes both PHAs and state governments but eschews the use of the official assessment forms that delayed implementation of the 2015 rule. See Affirmatively Furthering Fair Housing, 88 F. R. 8516 (proposed February 9, 2023).
3. 42 U.S.C. 3608. The AFFH obligation has also been reinforced by subsequent legislation. As described by HUD, “Congress has repeatedly reinforced the AFFH mandate for funding recipients, embedding within the Housing and Community Development Act of 1974, the Cranston-Gonzalez National Affordable Housing Act of 1990, and the Quality Housing and Work Responsibility Act of 1998, the obligation that certain HUD program participants certify, as a condition of receiving Federal funds, that they will AFFH. See 42 U.S.C. 5304(b)(2), 5306(d)(7)(B), 12705(b)(15), 1437C-1(d)(16).” Restoring Affirmatively Furthering Fair Housing Definitions and Certifications, 86 F. R. 30779, 30780 (June 10, 2021).
4. HUD. (n.d.). AFFH fact sheet: The duty to affirmatively further fair housing. https://www.hud.gov/sites/dfiles/FHEO/documents/AFFH-Fact-Sheet.pdf
5. HUD. (2016). Breaking down barriers: Housing, neighborhoods, and schools of opportunity. http://www.prrac.org/pdf/HUD_housing-schools_report_May_2016.pdf
6. Tegeler, P., & Hilton, M. (2017). Disrupting the reciprocal relationship between housing and school segregation. PRRAC. https://www.prrac.org/disrupting-the-reciprocal-relationship-between-housingand-school-segregation/
7. School proficiency, which is measured by HUD based on test scores, can also serve as a proxy for the racial and economic composition of schools because of the close association between family income, race, and test scores.
8. HUD. (2015). Affirmatively Furthering Fair Housing rule guidebook. https://www.nhlp.org/wpcontent/uploads/HUD-AFFH-Rule-Guidebook-Dec.-2015.pdf
9. HUD, U.S. Department of Education, & U.S. Department of Transportation. (2016, June 3). Dear colleague letter on Affirmatively Furthering Fair Housing rule. https://www2.ed.gov/documents/pressreleases/06032016-dear-colleagues-letter.pdf
10. PRRAC. (2021). Meaningful collaboration between housing and education agencies in the implementation of AFFH. [Letter to HUD and the Department of Education]. https://www.prrac.org/schools-affh-rule-letter-09-13-21/
11. Finnigan et al. (2021).
12. The initial suspension, Affirmatively Furthering Fair Housing: Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants, 83 F. R. 683 (Jan. 5, 2018), was followed by a withdrawal of the assessment tool jurisdictions needed to complete the AFFH process, Affirmatively Furthering Fair Housing: Withdrawal of the Assessment Tool for Local Governments, 83 F. R. 23922 (May 23, 2018), and eventually the publication of a new rule eliminating the AFFH rule and its obligations, Preserving Community and Neighborhood Choice, 85 F. R. 47899 (Sept. 8, 2020).
13. Monarrez, T. (in press). School attendance boundaries and the segregation of public schools in the U.S., American Economic Journal: Applied Economics.
14. Finnigan et al. (2021).
15. See Tegeler, P. (2016). Predicting school diversity impacts of state and local education policy: The role of Title VI. In E. Frankenberg, L. M. Garces, & M. Hopkins (Eds.), School integration matters: Research-based strategies to advance equity (pp. 145–154).Teachers College Press.
16. Holme, J. J., & Finnigan, K. S. (2018). Striving in common: A regional equity framework for urban schools. Harvard Education Press.
17. Haberle, M., & Tegeler, P. (2019). Coordinated action on school and housing integration: The role of state government. University of Richmond Law Review, 53(3), 949–978. https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=3250&context=lawreview