HUD Directed to Act on Fair Housing

Regulation | January 27, 2021 | by Linda Couch

On January 26, President Joe Biden issued a Memorandum, “Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies.”

On January 26, President Joe Biden issued a Memorandum, “Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies.” The Memorandum directs HUD to take very specific actions to overcome and redress the nation’s racially discriminatory housing policies that contributed to segregated neighborhoods and inhibited equal opportunity and the chance to build wealth for Black, Latino, Asian American and Pacific Islander, and Native American families, and other underserved communities.

The January 26 Memorandum directs the HUD Secretary to do three things:

First, to examine the effects of the August 7, 2020, HUD rule entitled “Preserving Community and Neighborhood Choice” that repealed HUD’s “Affirmatively Furthering Fair Housing” (AFFH) rule. The AFFH rule, published on July 16, 2015, requires local governments to conduct an Assessment of Fair Housing using an Assessment Tool to assist them in meeting their obligation to affirmatively further fair housing. Although AFFH has been law since 1968, when the Fair Housing Act passed as Title VIII of the Civil Rights Act directly after the assassination of Dr. Martin Luther King, Jr., meaningful regulations to provide jurisdictions with guidance on how to comply had not existed until the 2015 AFFH rule.

Second, to examine the effects of the September 24, 2020, rule entitled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard.” The September 2020 rule pushed back against a Supreme Court decision from 2015 that recognized the viability of disparate impact claims for the first time since the Fair Housing Act was signed into law in 1968. In its decision, the Supreme Court held that facially neutral policies that nonetheless have a disproportionately negative effect on a protected class, those that “disparately impact,” can also violate the Fair Housing Act.

Third, to implement the Fair Housing Act’s requirements that HUD administer its programs in a manner that affirmatively furthers fair housing and in a way that prevents practices with an unjustified discriminatory effect.

“It is the policy of my Administration that the Federal Government shall work with communities to end housing discrimination, to provide redress to those who have experienced housing discrimination, to eliminate racial bias and other forms of discrimination in all stages of home-buying and renting, to lift barriers that restrict housing and neighborhood choice, to promote diverse and inclusive communities, to ensure sufficient physically accessible housing, and to secure equal access to housing opportunity for all,” President Biden wrote in the Memorandum to HUD.

HUD Acting Secretary Matthew Ammon welcomed the Memorandum. “President Biden’s executive order is a vital step toward redressing the federal government’s legacy of housing discrimination and securing equal access to housing opportunity for all.

“Racially discriminatory housing practices and policies have kept communities of color from accessing safe, high-quality housing and the chance to build wealth that comes through homeownership. To this day, people of color disproportionately bear the burdens of homelessness, pollution, climate-related housing instability, and economic inequality because of deliberate and systemic efforts to deny them fair and equal access to housing opportunity,” Acting Secretary Ammon said in a January 26 statement.

LeadingAge supports the policy directives in the Memorandum. In a letter to then-President-Elect Biden, LeadingAge urged reversal of HUD’s 2020 repeal of the AFFH rule, as well as other Fair Housing and civil rights changes in the first 30 days of the Administration.