Fair Housing Month: Local Laws & HUD’s Proposed Rule on Affirmatively Furthering Fair Housing

April is Fair Housing Month!

April marks the fifty-fifth  anniversary of the enactment of the Fair Housing Act, [1] signed on April 11, 1968.[2] The Fair Housing Act passed less than a week after the assassination of Dr. Martin Luther King Jr.,[3] following the spirit of his efforts to “bring an end to discriminatory housing practices” that forced minority communities to live in poor housing conditions.[4] The concept of fair housing represents “the right for a person to live where they choose to, free from discrimination.”[5]

The Fair Housing Act prohibits discrimination in the process of renting, buying, financing, advertising, or engaging in other housing-related activities[6] based on an individual’s membership in a protected class.[7] The seven federally protected classes under the Fair Housing Act are “race, color, national origin, religion, sex (including gender identity and sexual orientation), disability, and familial status.”[8] Yet, the Fair Housing Act is not the only law that protects housing, as there are several housing laws on state and local levels. For example, Illinois,[9] Cook County,[10] and Chicago[11] each have their own laws and ordinances that protect fair housing. But why do local laws matter if we already have protections on the federal level through the Fair Housing Act?

Why Are Local Fair Housing Laws & Protected Classes So Important?

The state of fair housing law continues to evolve and respond to new needs in our communities.[12] While some change to fair housing laws exist at the federal level, more significant development occurs at state or local levels.  Many localities and states have enacted laws that are more expansive than the Fair Housing Act and “have narrower exemptions or additional protected classes.”[13]

For example, in May 2022, Illinois passed legislation creating a protected class for “source of income.”[14] Effective January 2023, housing providers can no longer deny housing based on an individual’s source of income.[15] The source of income protected class “will protect individuals on government assistance [including veterans], single mothers receiving child support and seniors on fixed incomes who may have been turned away from housing in the past.”[16]  State Senator Ram Villivalam (D-Chicago), discussing motivations behind this law, stated: “[n]o one should be denied housing when they have the means to make the rent.”[17] It seems logical right? Simply because someone receives income through alimony, child support, disability, or social security should not impact their right to access housing. Opponents argued that the state should not use fair housing laws to compel landlord participation in government programs.[18] However, the very root of fair housing law is in protecting a person’s right of housing to be free from discrimination.[19] Illinois’s recognition of discrimination based on a person’s source of income falls squarely under fair housing law.[20]

Amber Smock, Director of Access Living, a Chicago-based organization that works to “break down systemic barriers to create a stronger, more inclusive society” through disability advocacy,[21] emphasized the importance of creating a source of income protected class, stating:

With one in four Illinoisans living with at least one disability, accessible engagement with our state legislators has become more critical than ever. In our experience, ensuring full accessibility tends to benefit everyone, not just those with disabilities. This new law will provide for much-needed structure and support so that our legislators can truly hear from all who live in Illinois.[22]

Smock’s statement stresses just how significant it is to “engage[] with our state legislators” at a local level and discuss the fair housing needs of our communities.[23] State and local laws matter because  they may provide more protection than the federal Fair Housing Act and further address the discrimination within our local and state communities.

Many local laws predate the Fair Housing Act, because this “engagement with our state legislatures”[24] and push for social justice often first occurs at the local level.[25] Additionally, these local laws are “helpful in providing a basis for enforcement efforts by state or local officials that help to promote fair housing.”[26] The question then becomes whether our communities have a responsibility, and if so to what extent, to continue to create fair housing laws on a state and local level.

What Exactly is Affirmatively Furthering Fair Housing (“AFFH”)?

The Fair Housing Act, “foster[s] the development of many state and local fair-housing laws and agencies….”[27] Since its enactment, the federal government recognized “its responsibility to undo the effects of policies, practices, and procedures that result in a lack of equity.”[28] Therefore, the Fair Housing Act included a mandate to affirmatively further fair housing (“AFFH”). AFFH “direct[s] the government to promote fair housing choice, eliminate disparities in housing, and foster inclusive communities.”[29]

Who Does the AFFH Mandate Apply To?

AFFH proposes to “implement the obligation to affirmatively further the purposes and policies of the Fair Housing Act … with respect to certain recipients of HUD funds.”[30] The mandate does not apply to the federal government alone. It “applies to HUD and its grantees, as well as all executive agencies and departments of the federal government and relates to the administration of any program or activity relating to housing and urban development.”[31] Therefore, AFFH is an encompassing responsibility, applying to any recipient of HUD grants and to the administration of “any program and activity that relate[s] to housing” more generally.[32] HUD has defined program participants to include “local governments, states, and insular programs” participating in grants and “public housing agencies (“PHAs”) receiving assistance under section 8 or 9….”[33] Thus, the application of AFFH is broad and encompassing. Yet, the biggest challenge to these stakeholders and agencies is knowing exactly what it means to “affirmatively further fair housing”, and how far those agencies must go to satisfy this requirement.

HUD’s Recent Proposed Rule

On February 9, 2023, HUD released a Notice of Proposed Rulemaking to employ and “fulfill the promise of” affirmatively furthering fair housing.[34] The proposed rule is similar to and builds on HUD’s 2015 AFFH rule,[35] which was declared under the Obama Administration and repealed in 2020 under the Trump Administration.[36] The proposed rule applies the AFFH mandate by requiring local communities and public housing agencies to identify and address fair housing issues through a “streamlined required analysis, greater transparency, and an increased emphasis on goal setting and measuring progress.”[37]

Marcia L. Fudge, Secretary of HUD, stated: “[t]his proposed rule is a major step towards fulfilling the law’s full promise and advancing our legal, ethical, and moral charge to provide equitable access to opportunity for all.”[38] Similarly, Demetria L. McCain, Principal Deputy Assistant Secretary for HUD’s Office of Fair Housing and Equal Opportunity,[39] stated:

Affirmatively furthering fair housing means more than merely steering clear of housing discrimination violations. Today, HUD is taking new, bold action to eliminate the historic patterns of segregation that continue to harm American families. This action will help make the purpose of the Fair Housing Act reality by making it easier for local communities to identify inequities and make concrete commitments to address them.[40]

A Breakdown of Some of The Key Features of HUD’s Proposed AFFH Rule:

1. Streamlines Fair Housing Analysis Obligations
   The proposed rule makes it easier for agencies and program participants to complete HUD’s required fair housing analysis by “scal[ing] the expected complexity of answers based on the size of a HUD grantee.”[41] Therefore smaller program participants who might have more limited public infrastructure don’t have to provide the same level of analysis as a larger program participant with more resources or serving larger populations.[42]
2. Emphasizes Goal Setting
   Under the proposed rule, participants submit an Equity Plan, containing their fair housing analysis, goals, and strategies, to HUD for review and acceptance.[43] This Equity Plan would be submitted every five years.[44] Additionally, the proposed rule requires the goals set forth in the Equity Plan to be incorporated “into subsequent planning documents, such as annual action plans and public housing agency plans.”[45]
3. Provides Accountability & Increases Transparency
   To create accountability, the proposed rule requires participants to submit evaluations that detail progress toward, or modification to, the goals listed in the Equity Plan.[46] The proposed rule also seeks to increase transparency through HUD publishing its AFFH data, proposed Equity Plans, and the review status of the Equity Plans.[47] It will allow the public “to file complaints directly with HUD if they believe that a program participant is not living up to their AFFH commitments.”[48]

So, What’s Next?

HUD sought public commentary on the proposed rule with submissions for sixty days, originally set to end on April 10, 2023.[49] However, HUD granted a fourteen day extension for the comment period, now ending April 24, 2023.[50] Several housing and civil rights institutions have already voiced their support and opinions related to the new rule.[51] For more information on HUD’s proposed AFFH rule you can reference HUD’s fact sheet,[52] quick reference guide,[53] or follow HUD’s recent press releases.[54]

Need Help with a Fair Housing Issue?

The UIC Fair Housing Legal Clinic is focused on “educating the public about fair housing law and providing legal assistance to private or public organizations that seek to eliminate discriminatory housing practices.”[55] You can contact the Clinic by calling 312-786-2267 or completing a complaint on UIC's website.[56] For up-to-date information on the Clinic and developments in fair housing, follow the Clinic on Instagram or Twitter at @FairHousingCLC.

[1] Fair Housing Act of 1968, Pub. L. No. 90-284, 82 Stat. 73 (codified at 42 U.S.C. §§ 3601-3619).

[2]Fair Housing Month, U.S. Dep’t Hous. &Urb. Dev. (April 2023), www.hud.gov/FHM.

[3] Historical Highlights: The Fair Housing Act of 1968, U.S. H.R.: Hist., Art & Archives, www.history.house.gov/Historical-Highlights/1951-2000/hh_1968_04_10/ (last visited Apr. 6, 2023); see also Aastha Uprety, Martin Luther King, Jr.’s Fair Housing Legacy: How Testing Played a Role in the Civil Rights Movement, Equal Rts. Ctr. (Jan. 21, 2019), equalrightscenter.org/martin-luther-king-fair-housing/ (“Discrimination, intimidation, exclusion and even violence segregated and relegated Black people to low-income areas with poor quality housing. In his role as a Civil Rights leader, Dr. King recognized that this reality was a core component of racial injustice in the United States, and decided to take action in response.”).

[4] Erica Gunderson, Lawndale Legacy: Martin Luther King Jr.’s Fight for Fair Housing, WTTW News (Jan. 17, 2021), news.wttw.com/2021/01/17/lawndale-legacy-martin-luther-king-jr-fight-fair-housing.

[5] Fair Housing, Chi. Comm’n on Hum. Rel.’s, www.chicago.gov/city/en/depts/cchr/supp_info/FairHousing.html (last visited Apr. 4, 2023).

[6] See e.g., 42 U.S.C. § 3604(b) (prohibiting discrimination in the “terms, conditions, or privileges of sale or rental. . . ”); id. at § 3604(e) (prohibiting steering individuals into specific neighborhoods based by their membership of a protected class); id. at § 3604(f) (prohibiting refusing reasonable accommodations for individuals with a disability).

[7] Fair Housing Month, supra note 2; 42 U.S.C. §§ 3604 et seq.

[8] Fair Housing Month, supra note 2; 42 U.S.C. §§ 3601-3619.

[9] Illinois Human Rights Act, 775 Ill. Comp. Stat. 5/3-102 (2021); see also Fair Housing Division, Ill. Dep’t Hum. Rts., www.dhr.illinois.gov/filing-a-charge/housing.html (last visited Apr. 4, 2023) (“The Illinois Human Rights Act prohibits discrimination in all aspects of real estate transactions, including renting or leasing, home sales, mortgage lending and insurance, advertising, practices such as restrictive covenants, and new construction.”).

[10] Cook Cnty., Ill., Code § 42–101-116 (2022) (providing Cook County’s Residential Tenant and Landlord Ordinance).

[11] Chi., Ill., Code ch. 5-8 (2022) (providing Chicago Fair Housing Regulations).

[12] Ian Wilder, The FHA and ADAAA: 20 Ways to Fight Housing Discrimination, 38 Touro L. Rev. 655, 656 (2022).

[13] Robert G. Schwemm, Source-of-Income Discrimination and The Fair Housing Act, 70 Case W. Rsrv. L. Rev. 573, 578 (2020); see, e.g., Enforcement of Fair Housing Laws: Overview, Loc. Hous. Sol.’s, www.localhousingsolutions.org/housing-policy-library/enforcement-of-fair-housing-laws/ (last visited Apr. 6, 2023) (“For example, some state and local laws prohibit discrimination on the basis of sexual orientation or gender identity. Some laws also prohibit discrimination on the basis of source of income, as refusing to rent to a Section 8 voucher holder.”).

[14] HB 2775: Source of Income Protections for All Illinoisans, Ill. Coal. for Fair Hous., www.housingchoicepartners.org/soi-campaign (last visited Apr. 6, 2023).

[15] Id.

[16] Press Release, J.B. Pritzker, Governor, State of Illinois, Governor Pritzker Signs Legislation Protecting Illinoisans with Disabilities in Housing, State Government (May 23, 2022), www.illinois.gov/news/press-release.24939.html (internal quotations omitted).

[17] Id.

[18] Andrew Hensel, Rental Property Owners Remain Opposed to Bill Requiring Subsidized Housing, Ctr. Square (Mar. 31, 2022), www.thecentersquare.com/illinois/rental-property-owners-remain-opposed-to-bill-requiring-subsidized-housing/article_fc1243cc-b079-11ec-86c8-67de3b643ae7.html.

[19] Fair Housing, supra note 5.

[20] Fair Housing Division, supra note 9 (“The Illinois Human Rights Act prohibits discrimination in all aspects of real estate transactions, including renting or leasing, home sales, mortgage lending and insurance, advertising, practices such as restrictive covenants, and new construction.”).

[21] Who We Are, Access Living, www.accessliving.org/who-we-are/ (last visited Apr. 6, 2023).

[22] Press Release, J.B. Pritzker, supra note 16.

[23] Id.

[24] Id.

[25] See History of Fair Housing in Chicago, Chi. Comm’n on Hum. Rel.’s, www.chicago.gov/city/en/depts/cchr/supp_info/HistoryFairHousing.html (last visited Apr. 13, 2023) (providing that the Chicago Fair Housing Ordinance “was originally passed by the City Council on September 11, 1963.”).

[26] Enforcement of Fair Housing Laws: Overview, supra note 13.

[27] Schwemm, supra note 13, at 578  (discussing the requirement for HUD complaints to be referred to local agencies for investigation) (citing 42 U.S.C. § 3610(f)).

[28] Affirmatively Furthering Fair Housing (AFFH), U.S. Dep’t Hous. & Urb. Dev., www.hud.gov/AFFH (last visited Apr. 6, 2023). “[P]olicies, practices, and procedures” is considered broadly, and could relate to a number of things such as zoning and land use, fair housing testing, demographic patterns a community, lending and appraisal, and other policies and procedures that are the vestiges of historic segregation and discrimination. Id.; see also Fair Housing Planning Guide, U.S. Dep’t Hous. & Urb. Dev., www.hud.gov/sites/dfiles/FHEO/documents/Fair%20Housing%20Planning%20Guide_508.pdf (last visited Apr. 28, 2023) (providing information for officials responsible for Fair Housing Planning) .

[29] Michael Matthews & Julia Cortina, HUD Proposed Rule on Affirmatively Furthering Fair Housing (AFFH) Mandate, Nat’l Ass’n Cnty.’s (Feb. 27, 2023), www.naco.org/blog/hud-publishes-proposed-rule-affirmatively-furthering-fair-housing-affh-mandate.

[30] Id. (“The Fair Housing Act not only prohibits discrimination, but also directs HUD to ensure that the agency and its program participants will proactively take meaningful actions to overcome patterns of segregation, promote fair housing choice, eliminate disparities in housing-related opportunities, and foster inclusive communities that are free from discrimination.”).

[31] Affirmatively Furthering Fair Housing (AFFH), supra note 28.

[32] Id. (emphasis added).

[33] HUD Fact Sheet and Frequently Asked Questions: Affirmatively Furthering Fair Housing, Notice of Proposed Rulemaking, U.S. Dep’t Hous. & Urb. Dev., www.hud.gov/sites/dfiles/FHEO/documents/AFFH%20Fact%20Sheet.pdf (last visited Apr. 6, 2023) [hereinafter HUD Fact Sheet]; Housing Act of 1937, Pub. L. No. 93-383, 88 Stat. 653 (codified at 42 U.S.C. § 1447(g-f)) (providing statutory law related to low-income housing, commonly referred to as Section 8 and Section 9 housing vouchers).

[34] Affirmatively Furthering Fair Housing, 88 Fed. Reg. 8,516 (proposed Feb. 9, 2023) [hereinafter Affirmatively Furthering Fair Housing 2023]; Matthews & Cortina, supra note 29.

[35] Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,271 (Aug. 17, 2015).

[36] Andrea Lau, A Deep Dive into the Proposed AFFH Rule Rewrite, Bipartisan Pol’y Ctr. (Feb. 7, 2023), www.bipartisanpolicy.org/blog/proposed-affh-rule-rewrite/; see also Press Release, U.S. Dep’t Hous. & Urb. Dev., HUD Announces New Proposed “Affirmatively Furthering Fair Housing” Rule, Taking A Major Step Towards Rooting Out Longstanding Inequities In Housing And Fostering Inclusive Communities (Jan. 19, 2023), www.hud.gov/press/press_releases_media_advisories/hud_no_23_013

(“Rule expands upon HUD’s previous policy, implementing opportunities for transparency and accountability while bolstering economic equity for American families”) [hereinafter HUD Press Release].

[37] Affirmatively Furthering Fair Housing 2023, supra note 34; HUD Fact Sheet, supra note 33.

[38] HUD Press Release, supra note 36.

[39] Fair Housing and Equal Opportunity, U.S. Dep’t Hous. & Urb. Dev., www.hud.gov/fairhousing (last visited Apr. 7, 2023).

[40] HUD Press Release, supra note 36.

[41] Lau, supra note 36.

[42] Id.; see also Affirmatively Furthering Fair Housing 2023, supra note 34  (“As a result, smaller program participants, though responding to the same questions, would be expected to have less to analyze and HUD anticipates that it would be acceptable for them to provide briefer answers.”).

[43] HUD Fact Sheet, supra note 33; Matthews & Cortina, supra note 29.

[44] Matthews & Cortina, supra note 29.

[45] Id.

[46] Id.; HUD Fact Sheet, supra note 33.

[47] Matthews & Cortina, supra note 29; Lau, supra note 36.

[48] Matthews & Cortina, supra note 29.

[49] Id.

[50] Affirmatively Furthering Fair Housing (AFFH), supra note 28.

[51] HUD Announces New Affirmatively Furthering Fair Housing Rule, Affordable Hous. Fin. (Jan. 19, 2023), www.housingfinance.com/policy-legislation/hud-announces-new-affirmatively-furthering-fair-housing-rule_o (“The National Council of State Housing Agencies, National Low Income Housing Coalition, National Housing Conference, and many other housing and civil rights organizations voiced their support in a joint statement.”).

[52] HUD Fact Sheet, supra note 33.

[53]Quick Reference Guide, U.S. Dep’t Hous. & Urb. Dev., www.hud.gov/sites/dfiles/FHEO/documents/AFFH%20Quick%20Reference%20Guide.pdf (last visited Apr. 6, 2023).

[54] Press Releases 2023, U.S. Dep’t Hous. & Urb. Dev, www.hud.gov/press/press_releases_media_advisories (last visited Apr. 6, 2023).

[55] Fair Housing Legal Support Center & Clinic, Univ. Ill. Chi., www.law.uic.edu/experiential-education/clinics/fairhousing/ (last visited Apr. 3, 2023).

[56] File a Complaint: Report of Housing Discrimination, Univ. Ill. Chi. www.law.uic.edu/experiential-education/clinics/fairhousing/clients/discrimination-form/ (last visited Apr. 3, 2023); see also Resources, Univ.  Ill. Chi., www.law.uic.edu/experiential-education/clinics/fairhousing/resources/ (providing a bank of resources related to fair housing laws and the Fair Housing Act) (last visited Apr. 3, 2023).