The Evolution of HUD’s Affirmatively Furthering Fair Housing Rules: A Look at the Latest Proposed Regulation

The United States Department of Housing and Urban Development’s Affirmatively Furthering Fair Housing rules have careened wildly back and forth as administrations have changed. Most recently, on February 9, 2023, the Department of Housing and Urban Development published in the Federal Register a proposed regulation entitled “Affirmatively Furthering Fair Housing.”  Under this version, HUD would require recipients of federal financial assistance to do more than simply stamp out discrimination, but rather to take affirmative action to overcome disparate racial outcomes in housing.

HUD first proposed detailed regulations concerning AFFH during the Obama administration, and ultimately adopted final regulations in 2015, which required more than 5,000 program participants, including states, municipalities, and public housing authorities to develop plans, utilizing a computer based geospatial mapping and data tool and a template of required questions to address “fair housing issues” such as perceived disparities in access to areas of opportunity.  Implementation was delayed under the Trump administration, but the first attempt at an alternative regulation, which would have focused grantees’ efforts on the dismantling of regulatory barriers to housing production, was never finalized, and, instead, a final regulation that replaced the 2015 rule with a barebones certification requirement was implemented at the end of his term.  That regulation, in turn, was repealed early in the Biden administration before it then published the proposed rule this February. Under it, communities must affirmatively address any existing patterns of adverse impact by providing housing for them in better areas or, alternatively, transforming the community.  It focuses on state and local jurisdictions preparing “equity plans” that describe how they will incorporate procedures, not only with respect to housing but also education, transportation, and other local planning considerations, to advance more racially balanced communities.  The comment period on the regulation ended on April 10, 2023.

In this webinar, a panel of ideologically diverse experts discuss the latest proposal of HUD’s AFFH requirements for state and local governments.

Paul Compton

Founding Partner

Compton Jones Dresher

Thomas Silverstein

Associate Director, Fair Housing & Community Development Project

Lawyers' Committee for Civil Rights Under Law

Braden Boucek

Vice President of Litigation

Southeastern Legal Foundation

State & Local

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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