Background Fair Housing Act AmendmentsFHAA of 1988 Prohibits

Background • Fair Housing Act Amendments(FHAA) of 1988 --Prohibits Discrimination --Requires HUD to administer development programs (funds) in a manner that “affirmatively furthers fair housing. ”

Jurisdictions subject to the AFFH • Those receiving Housing and Community Block Grant Funds (CDBG, HOME Partnership, HOPWA, ESG) • Required to prepare and submit to HUD a “document” (now Analysis of Impediments) regarding the jurisdictions obligations under AFFH • AFFH obligation extends to all of the jurisdictions activities that involving housing and urban development, federally funded or not, and funded by HUD or not.

Proposed Definition of AFFH • Taking proactive steps beyond simply combating discrimination to foster more inclusive communities and access to community assets for all persons protected by the FHA. • Specifically: – Taking steps proactively to address significant disparities in access to community assets, – To overcome segregated living patterns, support and promote integrated communities, – To end racially and ethnically concentrated areas of poverty, – To foster nd maintain compliance with civil rights and fair housing laws. . ”

New definition of Fair Housing Choice • Individuals and families have the information, options and protection to live where they choose without unlawful discrimination and other barriers related to race, color, religion, sex, familial status, national origin, or handicap. It encompasses actual choice, which means the existence of realistic housing options: protected choice, which means housing that can be accessed without discrimination, and enabled choice which means the availability and realistic access to sufficient information regarding options so that any choice is informed. For persons with disabilities, fair housing choice includes access to accessible housing, and for disabled person in institutional or other residential environments, housing in the most integrated setting appropriate as required under law, including disability-related services that an individual needs to live in such housing.

New: Significant Disparities in Access to Community Assets • Measureable differences in access to educational, transportation, economic, and other important assets in a community based on housing unit location and protected class status— • An inquiry into protected class households experience equally the positive benefits of specific locations or disproportionately experience the negative effects of specific locations.

New: Integration • Based on recent census data and other data sources, • Particular geographic areas within a jurisdiction do not contain high concentrations of persons of a particular protected class when compared to the jurisdiction or Metropolitan Statistical Area as a whole, and • PWD live in the most integrated setting appropriate

The Force Behind the Change • Current regulations do not provide sufficient clarity or guidance to participants. – Current regulations do not define “affirmatively further fair housing” or “assessment of fair housing” – 2009 Westchester County: False Claims Act violations – 2009 HUD Internal Study found AIs were outdated, cursory, limited oversight; admissions HUD failed to providing assistance to grantees to meet AFFH – GAO September 2010 Report recommended specific changes

Oversight Issues • While regs require preparation of Analysis of Impediments, HUD has not issued regs specifying or updating requirements – AIs out of conformance with HUD Guidance – No definition as to what constitutes “outdated” – No requirement to submit AI to HUD for review and approval, instead certification is enough. – Poor Record keeping – HUD rarely took independent action on certification

Purpose of Proposed Rule • To refine and improve the existing Analysis of Impediments to Fair Housing Choice (AI) process to better aid HUD program participants • To provide more explicit directions, guidance and procedures for program participants.

Fair Housing Goals For Assessment of Fair Housing (AFH) • Analyze and eliminate housing discrimination within the jurisdiction: • Promote fair housing choice for all person: • Provide opportunities for inclusive patterns of housing occupancy regardless of the protected class status. (equitable distribution of LIHTC properties) • Promote housing that is structurally accessible to and useable, by persons with disabilities: and • Foster compliance with the nondiscrimination provisions of the Fair Housing

Provisions of AFH – Includes fair housing data analysis, an assessment of fair housing issues and determinants, and an identification of fair housing priorities and general goals. – Requires a conversation at the jurisdictional level as to why housing opportunities and residential housing patterns have developed or currently exist. • Four steps: – – – Data delivery Analysis of relevant local data Review and response to community input Incorporation into planning and subsequent action AFH designed to inform and engage the public: similar to other civil rights requirements of other federal programs. (Title VI)

The Making of an AFH 1. Data—supplied by HUD, community input and local jurisdiction 2. Analysis of data 3. Outreach and consultation to community and protected class households 4. Review and respond to community input 5. Incorporation into planning and subsequent actions

Draft Assessment Tool for Entitlement Jurisdictions and PHAs – Geospatial tool – Uniform local and regional data on the following • Patterns of residential integration and segregation: • Racially and ethnically concentrated areas of poverty (R/ECAP): • Disparities in access to neighborhood opportunities: • Disproportionate housing needs: • Data on individuals with disabilities and families with children and • Measurements of community-wide and regional patterns of segregation

Local Analysis • 5 major categories make up the AFH analysis: – Demographics – Segregation and integration – Racially/ethnically concentrated areas of poverty – Neighborhood disparities in access to community assets – Housing needs across protected classes – Summary of Fair Housing issues – Assessment of the jurisdiction’s fair housing enforcement and outreach capacity.

Community Assets • Will be required to identify the geography of 6 key community assets and who has access to them: – Poverty – School proficiency – Labor market engagement – Job access – Transit access – Health hazard exposure

Review and Response • Submit completed AFH to HUD on the same cycle as the Consolidated Plan or, for PHAs, either on a similar timetable or annually. • First Assessment: submit to HUD at least 270 days before the start of the program year, thereafter 195 calander days before the start of the program year. • HUD to review: accept the AFH or provide specific reasons for non-acceptance with actions the program participant may take to address. • Acceptance is not a “get out jail free card”.

Incorporation • Once HUD accepts the AFH, program participant must incorporate the AFH findings into subsequent AFH plans and other federally required plans (Consolidated Plan, PHA plan) • Cross fertilization of other work involving federal funds and Title VI obligations: – Transportation planning – Land use planning – Public health

Key Benefits with Proposed Rule • More clarity regarding the goals • Establishes HUD’s provisions of key data elements • Specifically requires jurisdiction to include relevant local data where appropriate • Creates more explicit linkages between this process and other planning processes the jurisdiction is involved in—public outreach and participation, LEP plans, equal justice obligations

Potential Problems • Possible over emphasis of reducing segregation to the expense of addressing the loss of housing opportunities in areas subject to gentrification or public investment and consequential concentration of poverty and race/ethnicity in other areas. • HUD goals: “ addressing patterns of segregation while supporting integrated and integrating communities…” • “The proposed rule recognizes that segregation. . , with the dual concentration of poverty and racial and ethnic populations (are)still too prevalent. ” • Proposed Rule, Fed. Reg. , Vol 78. No. 139, at p. 43714

Is Data The Answer To A Fair Society? • “… HUD recognizes there is significant uncertainty associate with quantifying outcomes of the process, proposed by this rule, to identify barriers to fair housing, the priorities of program participants in deciding which barriers to address, the types of policies designed to address those barriers and the effects of those policies on protected classes. ” • HUD Regulatory Impact Analysis, Docket NO. FR-5173 -P-01

What Triggers A Review of AFFH by HUD? • 1. Individuals or entities may file a complaint that explicitly raises AFFH issues, often in conjunction with claims under other laws, such the Fair Housing Act, Title VI of the 1964 Civil Rights Act, Section 504 of the 1973 Rehabilitation Act or Section 109 of the Housing and Community Development Act.

Triggers continued…. • 2. It may be identified by an evaluation of issues in a complaint which has been filed or which is in investigation which raises AFFH although there is not explicitly a basis for the complaint. • Formal complaints, civil rights reviews of federally funded programs, administrative complaint investigation reveals facts supporting a concern failure to AFFH.

Triggers continued…. • 3. Developed by FHEO as a result of an analysis of existing information including the conclusion of a lawsuit, a judicial finding of a violation of one or more civil rights laws, review of an AI (AFH), Annual Action Plan, Consolidated Plan or CAPERS reports, a risk assessment, news reports, examination of complaint filings, a monitoring review or issues brought to FHEO’s attention in some other way.

Relationship Between An AFFH Review And A Complaint Under The FHA • FHEO will not accept a complaint directly under the FHA that an entity has failed to AFFH because there is no authority in the Act to do so: • A failure to AFFH is a programmatic violation. • In zoning or land use, a FHA complaint is accepted to establish a potential violation of one or more of the Act’s prohibitions and may raise additional AFFH issues

Recent AFFH Cases • HUD v. The City of Mc. Keesport, Pa. , 2011 – Review of Consolidated Plans, Annual Plans and CAPERs. For 5 years, HUD found Con Plan to violate AFFH obligation. • HUD v. City of Atlanta, 2012 – Programatic review, failure to keep adequate records, AI was six years old and did not meet programtic requirements. . • HUD v. Wayne County Housing Authority 2000 – Individual administrative FH complaint, investigation revealed AFFH violation.

More AFFH cases • HUD and Latino Action Network, New Jersey State Conference of the NAACP and Fair Share Housing Center v. The State of New Jersey and the New Jersey Department of Community Affairs, 2014 – Initiated by an administrative FH complaint alleging FH violations in the use of disaster relief funds, failure to have a LEP plan.

More AFFH cases…. • HUD v State of Nebraska Department of Economic Development, 2011 – Civil rights compliance reviews determined State had not taken reasonable steps to provide meaningful access to programs to LEP population and failed to monitor subrecipients for same obligation.

Last few…. . • HUD v. City of San Rafael, 2010 – Regulatory compliance review of CDBG programs determined non-compliance with regulations regarding citizen participation, record-keeping, meaningful participation, communications and its AI did not comply with regulatory requirements • HUD v. City of Dubuque • Civil rights related program review of City’s Section 8 Program determined discriminatory policies limited participation of African-Americans

Last thoughts… • Should the obligation to AFFH be a lens through which to make decisions regarding a jurisdiction’s LUT department or a state agency—DEQ or DOT? • All share similar civil rights obligations, should such departments and agencies share the burden for creating the next AFH?