It’s the law in California!

In July 2020, President Trump issued an Executive Order formally rescinding the Obama Administration’s 2015 HUD guidance on how to implement the Affirmatively Furthering Fair Housing (AFFH) provision of the Fair Housing Act. Part of the Civil Rights Act of 1968, The Fair Housing Act and its AFFH provision intended to end discrimination on the basis of “race, color, religion, sex, familial status, national origin, and disability.” This 1968 Act has not been overturned and remains the law of the land. 

The original intent of the AFFH provision, to end segregation in communities around the country, has not come to pass. This failure came both from a lack of clear guidance for implementation and also because many cities and towns chose not to pursue full integration. The Obama Administration’s 2015 rules provided a framework for implementation, requiring that cities and towns take steps to understand barriers to integration and act to create integrated communities. 

The 2015 AFFH rules required that cities consider all the ways discrimination impacts people’s lives, including education, environment, transportation, health, and more. The rules were meant to foster the design of locally driven approaches that promote access to affordable housing in communities with high performing schools, clean air, and reliable transportation choices and access to workforce opportunities and good jobs. The 2015 AFFH rules required jurisdictions that receive HUD funding to submit a plan on how they would address fair housing, which was defined by HUD as “taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics.” It did not require localities to change their zoning laws, though localities may decide to do so in order to further fair housing. 

Although the intent of the rule was clear, the 2015 AFFH rules had not been implemented at the federal level before being placed on hold by the Trump administration in 2018. The July 2020 actions simply formalized its repeal. What remains today at the federal level is the original AFFH provision of the 1968 Fair Housing Act, which offers vague language and little guidance or enforceability.

On January 26, 2021, President Biden issued a memo directing the Secretary of HUD to examine the effect that repealing the 2015 AFFH rule has had on HUD’s statutory duty to affirmatively further fair housing. The memo also directs the examination of the previous administration’s changes to the Disparate Impact rule, and the effect that it has had on HUD’s statutory duty to ensure compliance with the Fair Housing Act. The memo then instructs the HUD secretary to take the necessary steps to implement the Fair Housing Act AFFH requirement, and to prevent practices that have disparate impact. As a result, AFFH was reinstated at the federal level on June 10, 2021 by HUD Secretary Marcia Fudge.

AFFH & the Housing Element

Every seven to eight years, the Regional Housing Needs Allocation (RHNA) process is used to assign each city and county in California their “fair share” of new housing units to build. These homes are intended to accommodate existing need and projected growth in the region. The RHNA process is critical because it requires all cities and counties to plan for the housing needs of their residents, at all income levels, in an effort to plan for future growth and ease the Bay Area’s acute housing crisis. Right now, each city in the Bay Area is creating a state-mandated plan known as the Housing Element to implement their allocation, in a planning cycle that will cover the 8-year period between 2023 and 2031.

The Housing Element must contain Sites planned for housing affordable to residents at all income levels, and Policies & Programs that are responsive to the housing needs of residents and address barriers to housing identified during robust public outreach and analysis. The California Department of Housing & Community Development (HCD) has provided extensive guidance on requirements and best practices to help cities effectively address this requirement. Learn more in the video below:

The Law in California

Many stakeholders have asked how the Executive Order and other changes at the federal level affect the requirement to affirmatively further fair housing in California- the short answer is that it does not change California’s requirements at all

California’s Affirmatively Furthering Fair Housing law (AB 686, October 2018), states:  

Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together,

  • address significant disparities in housing needs and in access to opportunity, 
  • replace segregated living patterns with truly integrated and balanced living patterns, 
  • transform racially and ethnically concentrated areas of poverty into areas of opportunity, 
  • and foster and maintain compliance with civil rights and fair housing laws.

The law requires all jurisdictions to administer their programs and activities relating to housing and community development in a manner to affirmatively further fair housing, and to not take any action that is materially inconsistent with this obligation.

AFFH and the Planning Process: RHNA & Housing Elements

Considering high opportunity areas in allocating the Bay Area’s total housing need in the RHNA process helps to fulfill the State’s core mandate to affirmatively further fair housing. AFFH housing policies, program guidelines, and regulations have untapped potential to both prevent further segregation and concentration of poverty in the Bay Area, and to encourage access to opportunity. 

Using fair housing metrics to allocate the Bay Area’s total housing need can more effectively advance the mandate to affirmatively further fair housing and promote the greatest expansion of housing opportunities in resource-rich communities, many of which have a legacy of exclusion that must be overcome. Promoting greater housing opportunities in these neighborhoods is a proven way to help advance regional priorities such as economic mobility, and is clearly consistent with the statutory requirement to affirmatively further fair housing. It is crucial for this metric to be used throughout the allocation process, rather than only to allocate the low-income share of housing need, to ensure that more housing of all types is built where it is needed most. In this way, allocation based on access to high opportunity areas can also advance the requirement to increase housing supply & mix of housing types across all jurisdictions in an equitable manner.

Opportunity mapping is a way to measure and visualize place-based characteristics linked to critical life outcomes, such as educational attainment, earnings from employment, and economic mobility. This helps regional and city planners identify the high opportunity areas where more affordable housing should be located in order to expand housing choice and affirmatively further fair housing. Opportunity maps show the level of opportunity of a region, broken down by census tract, by considering levels of poverty or wealth and degree of segregation. It is important to note that California’s affirmatively furthering fair housing law requires both opening previously exclusionary areas to lower-income residents, and also policies and investment to transform racially and ethnically concentrated areas of poverty into areas of opportunity.

Beginning in 2021, every jurisdiction in the state is required to integrate plans for ending discrimination and promoting integration into the Housing Element portion of their General Plan.

Additional Resources

California Department of Housing and Community Development (HCD): Affirmatively Furthering Fair Housing Guidance Memo

HCD: Webinar on AFFH in the Housing Element