Although the Fair Housing Act (FHA) requires any government entity managing or receiving federal funds “affirmatively to further fair housing,” (AFFH), 42 U.S.C. §3608(e)(5), enforcement of this provision has been remarkably lax since the passage of the FHA in 1968.

The Obama Administration tried to change that with a new regulation that provided detailed guidance about steps local governments needed to take to determine whether they were complying with their AFFH obligations. They were required to report to HUD their efforts to comply with the obligation, including reporting on the ways their laws contributed to racial segregation. Importantly, that rule also required HUD to review those plans and approve them. Final Rule, Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,273, 42,278 (July 16, 2015). The rule did not mandate specific outcomes but

That regulation would have helped prompt local governments to determine how their local land use laws affected the availability of housing to groups protected under the FHA and nudge them into action by having to report on how they were trying to comply with that obligation. Although much heralded, that regulation did not actually require municipalities to amend their zoning laws or build affordable housing or do anything else. It was, in effect, a reflection and reporting requirement whose only mandate was to persuade HUD that the entity was acting rationally to comply with the statutory obligation.

Nonetheless, the Trump administration found the rule onerous and refused to enforce it. In January 2018 renounced the assessment tool that had been the heart of the new regulation, and officially repudiated the rule on July 23, 2020, Secretary Carson Terminates 2015 AFFH Rule: Removal of rule returns power to localities to advance fair housing nationwide, HUD.gov (July 23, 2o020).

President Trump tweeted that “all of the people living their Suburban Lifestyle Dream [would] no longer be bothered or financially hurt by having low income housing built in your neighborhood.” He also argued that, if Biden is elected, he will return to the Obama era rule and “destroy the beautiful suburbs.” In January 2020, HUD proposed a replacement rule that would provide a new way to measure the AFFH obligation. Affirmatively Furthering Fair Housing, 85 Fed. Reg. 2041 (Jan. 14, 2020). The new rule eschews any consideration of race so there will be no obligation to determine whether local land use regulations are having a racially segregative effect; instead, the rule adopts the idea of increased government benefits to local governments that choose to increase affordable housing while trusting local governments to certify their own efforts to comply with the law.

For a detailed and helpful analysis of the issue, see Heather R. Abraham, Fair Housing’s Third Act: Americaxn Tragedy or Triumph? -- Yale L. & Pol’y Rev. -- (forthcoming, 2020)