Realizing the Promise of the Fair Housing Act

By Heather Abraham, Associate Professor of Law and Director of the Civil Rights & Transparency Clinic at the University at Buffalo School of Law, 2016 Equal Justice Works Fellow, and member of the Equal Justice Works Alumni Advisory Council

*Note: This post discusses the importance of the proposed Affirmatively Furthering Fair Housing rule, for which public comment is due by Monday, April 24, 2023.

In April, we celebrate National Fair Housing Month. This year marks the 55th anniversary of the Fair Housing Act of 1968, a landmark federal civil rights law that prohibits housing discrimination. It also requires the federal government and its grantees to take steps to reduce housing segregation, a mandate that has gone largely unenforced since its inception.

As an Equal Justice Works Fellow, I focused on housing as the foundation for wellbeing in nearly all other areas of life—from physical and mental health to financial stability. I defended clients facing eviction, built up-stream supportive programs to reduce eviction like an “Eviction Diversion Program,” and collaboratively designed a problem-solving “Community Outreach Court,” for people indebted to the court system over low-level offenses correlated with homelessness. These early-career experiences were invaluable. My Fellowship did more than make me a more confident advocate. It humanized otherwise abstract concepts like “housing insecurity” and the “housing shortage” and taught me how to humanize them for others. Ultimately, the best thing my Fellowship did for my public interest career was expose me to the human toll of unsafe, unaffordable housing and the alarming effects of housing discrimination.

During my Fellowship, I came to understand the unfulfilled promises of the Fair Housing Act. Most notably, I learned that the federal government—and cities and states receiving federal funding—has a legal obligation to reduce housing segregation. Yet, this duty is not being enforced. For decades, the federal government largely abandoned any effort to reduce segregation, as detailed by Pulitzer Prize journalist Nikole Hannah-Jones in Living Apart: How the Government Betrayed a Landmark Civil Rights Law.

After my Fellowship, I became a clinical law professor. I’ve pursued fair housing law as my primary practice area and housing segregation as the focus of my academic research. At the Georgetown University Law Center’s Civil Rights Clinic, I worked with student attorneys to file impact litigation designed to enforce the Fair Housing Act’s anti-discrimination principles. Together, we learned about the history behind the Fair Housing Act (as summarized by the U.S. Department of Housing and Urban Development):

For much of the late 19th and early 20th century, government at all levels throughout the United States, along with private developers, and mortgage lending institutions, played an active role in creating segregated living patterns and inequalities of opportunity. The federal government used the power of the military to remove Native Americans from their homelands, restricted federally insured mortgages on the basis of race and used “slum clearance” and “urban renewal” programs to demolish neighborhoods for infrastructure projects that largely benefitted white Americans at a significant cost to and perpetuated the segregation of Black communities, Indigenous communities, and other communities of color. Private housing developers also used racially restrictive covenants that perpetuated segregation and restricted access to homeownership and other housing opportunities for communities of color, among many other forms of discrimination….

In 1967, following the “Long, Hot Summer of 1967,” which consisted of over 150 race-related riots, President Lyndon B. Johnson established the National Advisory Commission on Civil Disorders, also known as the Kerner Commission. The Commission was tasked with investigating the causes of the riots that occurred in cities like Los Angeles, Detroit, Chicago, Newark, Milwaukee, and New York City. The final report of the Commission, issued in 1968, pointed to a lack of economic opportunity, failed government programs, police brutality, and racism, among other causes. The Commission’s Report is famously known for its declaration that “Our nation is moving toward two societies, one black, one white—separate and unequal.”

In 1968, when Congress enacted the Fair Housing Act, one of the Act’s co-sponsors, Senator Walter F. Mondale, explained that “the purpose that the proposed law was designed to replace the ghettos by ‘truly integrated and balanced living patterns.’” Congress intended that HUD do more than simply not discriminate itself and intended for HUD to use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases. As such, since 1968, the federal government recognized its role in creating segregated living patterns that continue to have negative impacts on health, education, and the economy and its responsibility to undo the effects of policies, practices, and procedures that result in a lack of equity.

I also began to dive deeper into the concept of “Affirmatively Furthering Fair Housing,” a tongue-twister that refers to the government’s duty to reduce racial housing segregation. The phrase originates from the original Fair Housing Act of 1968 (42 U.S.C. § 3608). After decades of federal inaction, in 2015, the U.S. Department of Housing and Urban Development issued the first-ever regulation on the government’s duty to reduce housing segregation. But it was short-lived. In 2020, the Trump Administration rewrote the rule. Three years later, the Biden Administration has proposed a new rule that would require the federal governments, states, municipalities, and public housing authorities to take meaningful steps to tackle housing segregation. This helpful HUD factsheet summarizes the proposal. To redress continued segregation and disinvestment from communities of color, the proposed rule would require government entities to submit “Equity Plans,” to HUD every five years. Equity Plans are fair housing planning documents informed by community input that analyze existing segregation patterns and identify goals and strategies toward reducing segregation. In essence, Equity Plans are commitment statements by cities and states to the federal government about their strategies to end racial segregation in their backyards.

The proposed AFFH Rule is perhaps the most promising tool our country will have to reduce segregation. As I recently wrote in the Journal of Affordable Housing and Community Development Law, HUD’s theory of change is to make fair housing and housing desegregation a central element of all local planning for any federal funding recipient, with the long-term goal of undoing the historic patterns of segregation formed by decades of public and private policies like redlining and disinvestment in communities of color.

My clinic students and I are currently working with a coalition of fair housing advocates to submit public comments to HUD about the importance of this vital rule.

You can read the full proposal here and submit a comment by Monday, April 24, 2023 here.

Visit here for more information about Heather’s Equal Justice Works Fellowship.