Urban Wire What HUD’s Proposed Rule Gets Wrong about Fair Housing
Martha M. Galvez, Solomon Greene, Katherine Thomas, Claudia D. Solari
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Before Congress passed the Fair Housing Act in April 1968, it was common and, in most states, legal for real estate agents, banks, landlords, and entire communities to discriminate against people of color and limit their housing options. Today, the Act prohibits housing discrimination on the basis of race, color, religion, sex, national origin, disability, and familial status across the US, but discrimination persists. Congress included in the Act a requirement that federal housing and community development funds be used to “affirmatively further fair housing” (AFFH).

Although the AFFH requirement has been inconsistently enforced, the US Department of Housing and Urban Development (HUD), Congress, and federal courts have consistently interpreted this provision as requiring federal agencies and state and local governments to use federal funds to eliminate discrimination, reverse racial segregation, and improve access to opportunity for protected groups.

In 2015, HUD adopted a rule that, for the first time, rigorously enforced the AFFH requirement and provided tools to help local communities comply. HUD created a standardized Assessment of Fair Housing, which asks cities and counties that receive federal housing funds to measure housing needs and access to opportunity for racial and ethnic minorities and other protected groups. To help communities complete their assessments, HUD provided robust data and a mapping tool to analyze housing and neighborhood conditions, disaggregated by race, ethnicity, disability status, and other protected characteristics.

Despite early evidence of successfully supporting robust community engagement and effective goal setting, HUD suspended the 2015 rule in January 2018. And in January 2020, HUD proposed a complete overhaul of the 2015 AFFH rule. The proposal negates the considerable federal investments made to roll out the 2015 rule and ignores evidence of ongoing racial discrimination, residential segregation, and barriers to opportunity in the US. In doing so, HUD disregards Congress’s clear goals for the Fair Housing Act and intent in including the AFFH requirement.

As of this writing, over 18,000 comments were submitted in response to the proposal, including comments from Urban researchers that highlight the history and continued importance of the Fair Housing Act and AFFH. We also use public data from HUD’s 2015 rule to illustrate how the proposed changes are likely to stall or reverse progress toward fulfilling the Fair Housing Act’s goals and to show how race-neutral housing measures produce different results than race-conscious measures of housing access.

Replacing local fair housing assessments with a top-down ranking system

HUD proposes to delete references to racial disparities in access to housing, residential segregation, and racially concentrated poverty from its definition of AFFH and would rewrite the requirement to focus on overall housing affordability and quality. HUD’s proposal also conflates fair housing and general affordable housing challenges, suggesting that addressing the latter through increased supply will erase disparities in access to housing and neighborhood choice.

In addition to redefining AFFH, HUD’s proposal removes the requirement that communities use data and community engagement to develop a bottom-up Assessment of Fair Housing and replaces it with a top-down “jurisdictional risk analysis.” HUD would score and rank the nation’s 1,170 cities and counties that receive housing and community development funds directly from HUD (which we refer to here as “entitlement jurisdictions” because they receive funds under HUD’s Community Development Block Grant Entitlement Program).

HUD proposes to rank entitlement jurisdictions based in part on aggregate measures of housing supply and quality and use the ranks to identify and reward high-performing jurisdictions and target the lowest-performing for “remedial resources and potential regulatory enforcement actions.” HUD identifies nine jurisdiction-wide metrics in the proposal, including housing cost burden, vacancy rates, and other measures of housing costs and conditions. Notably, none of these metrics are disaggregated by race, nor do they capture residential segregation or variations in access to housing across neighborhoods or protected groups.

What happens when we remove race from fair housing?

Although affordability is undeniably important and the affordability gap in this country continues to grow, exclusively focusing on affordability ignores decades of evidence of housing discrimination and unequal access to housing opportunities for people of color and protected groups. In light of these patterns, race-neutral and aggregate metrics could obscure disparities in housing access by race or other protected status and ultimately help perpetuate patterns of disadvantage.

To test this concern, we explored whether a race-neutral ranking system might produce different rankings from a similar approach using metrics disaggregated by race and ethnicity or that include measures of segregation.

We use data for the nation’s 100 most populous entitlement jurisdictions in 2018, which are home to about 43 percent of all people living in entitlement jurisdictions. We select one of HUD’s proposed measures of housing affordability—the share of all households with severe housing cost burden (paying more than 50 percent of their income in housing costs)—as a sample race-neutral metric.

We then calculate five additional race-conscious metrics of racial segregation and of housing affordability for Black and Latino residents to see if they align with the race-neutral metric. We rank jurisdictions from 1 to 100 based on their relative performance on each metric and examine the full set of six rankings for each jurisdiction to assess how much they differ based on the metric used.

The figure below shows how rankings for each of the 100 jurisdictions shift across the five race-conscious measures and how they compare with rankings under the race-neutral overall severe housing cost burden measure. Each dot represents one of the 100 entitlement jurisdictions in our sample. The lines’ slopes reflect how dramatically the rankings and presumed performances differ based on whether the aggregate, race neutral rent-burden measure or one of the alternative, race-conscious measures is used.




In most entitlement jurisdictions, the race-neutral severe housing cost burden measure provided an incomplete snapshot of nuanced local contexts. For nearly all jurisdictions (90 of the 100), the rankings for one or more of our race-conscious comparison metrics differed by at least 25 positions from the rankings based on the aggregate race-neutral severe housing cost burden metric.

These differences sometimes placed jurisdictions into higher-performing rankings and sometimes into lower-performing rankings. In our comments to HUD, we further illustrate the potential challenges with a ranking system by highlighting results for the Dallas, Texas, Portland, Oregon, and St. Louis County, Missouri entitlement areas. In each of these areas, the race-neutral measure masks evidence of disparities in outcomes by race.

For example, the race-neutral measure suggests that St. Louis County is performing relatively well based on overall affordability: it is ranked 20th out of 100 for the percentage of all residents experiencing severe housing cost burden. But the county is the worst performer among the jurisdictions in the ratio of Black to white families experiencing severe housing cost burden. In total, 1 in 4 Black residents experience severe housing cost burden compared with just 1 in 10 white residents.

Because using a race-neutral measure produces different results than measures of segregation and racial disparities in housing access, HUD’s proposed approach may provide misleading assessments of jurisdictions’ performance under the Fair Housing Act. If applied, the proposed ranking system might lead HUD to reward or penalize areas as high or low performers based on incomplete or inaccurate information.

More generally, our analysis shows the relationships among metrics of affordable housing access are complex, and aggregate metrics alone—or a uniform national ranking system—cannot reliably reflect that complexity.

Evidence shows why AFFH should be enforced using disaggregated data, local knowledge, and evidence-based principles

Our analysis suggests that aggregate assessments of local jurisdictions’ progress are incomplete, and they risk obscuring and perpetuating discriminatory housing patterns and practices. We recommend that HUD retain the robust data and locally driven processes already included in the 2015 AFFH rule. We also direct HUD to six principles for successful efforts to reverse patterns of residential segregation and racially concentrated poverty, based on evidence and experience and documented in our report on ensuring equal access to opportunity neighborhoods.

More details on these measures and our analysis are available in our comments to HUD, and the data we calculated for our analysis are available for download. In both sets of comments, our focus was on disparities by race and ethnicity, but analyses of housing access for other protected classes, such as families with children or people with disabilities, may be similarly illustrative. We encourage communities to explore variations in outcomes for their jurisdictions using our data or other local-level data still available from HUD under the 2015 rule.

The Fair Housing Act is as important and relevant today as it was in 1968. Discriminatory practices on the part of public and private actors created highly segregated neighborhoods and cities that, to this day, too often limit access to opportunities for people of color and members of other protected groups. The evidence is clear that for HUD to preserve AFFH, it should pursue policies that support fair housing goals.

Research Areas Housing
Tags Federal housing programs and policies Federal urban policies Civil rights laws and regulations Fair housing and housing discrimination
Policy Centers Metropolitan Housing and Communities Policy Center Research to Action Lab