Among the landmark legislative acts of the Civil Rights era, the Fair Housing Act of 1968 is the stepchild, rarely enforced with rigor by presidential administrations of either political party. Since Jim Crow fell, few American politicians have championed the cause of desegregation at the federal level. Even among liberals concerned with housing segregation, the political toll of addressing the immense harm wrought by racial isolation—and the disproportionate benefits reaped by affluent white neighborhoods—has simply been seen as too explosive.
The Affirmatively Furthering Fair Housing (or AFFH) rule, promulgated by President Barack Obama’s Department of Housing and Urban Development in 2015, marked the first forward momentum for the Fair Housing Act in decades. The rule required jurisdictions that receive federal housing funding to not only document barriers to integration and opportunity, but to detail—and prioritize—policies to eradicate them. It would be easy to write off the regulation, held until the end of Obama’s presidency, as a toothless change that merely instigated another round of bureaucratic paper-pushing. No additional funding accompanied the AFFH rule. Few fair-housing advocates believed that municipalities that didn’t pursue the rule in good faith would face any sort of punishment, no matter who won the 2016 election. Now that the presidency belongs to Donald Trump—a man whose own real estate career has earned federal scrutiny under the Fair Housing Act—the rule might appear to be not just flaccid but anathema to the new administration. Making that calculus even more severe is a secretary of housing and urban development, Ben Carson, whose only previous demonstrated interest in affordable-housing issues happened to be op-eds denouncing the AFFH rule as a doomed socialistic experiment.
But the Affirmatively Furthering Fair Housing Rule isn’t just a piece of paper, and it may not be destined for the waste bin. In fact, over its single year in effect, it’s already made housing a little bit fairer in some of America’s most segregated places.
HUD ordered 22 jurisdictions to comply in the first year of the AFFH rule, including three major cities: Philadelphia, New Orleans, and Kansas City. Philadelphia is now placing a more intensive focus on the eviction crisis that haunts the city; the City Council will soon be holding hearings on how to provide greater access to legal assistance to low-income renters. The Kansas City area agreed to try distributing Section 8 vouchers more evenly across the region, with the goal of breaking up concentrations of poverty in central cities, helping residents to access areas with better schools and more job opportunities. These kinds of steps may be tentative, but they were unthinkable even a decade ago.
Many of the early affected counties and cities, it turned out, were ready for a federal nudge. As many jurisdictions become more racially diverse, progressive politicians at the local level are more open to pressure from advocates on housing issues than they used to be. “We are seeing a number of jurisdictions that have already affirmed their commitment to fair housing regardless of whether the rule is removed,” says Laurel Blatchford, a former HUD chief of staff and now the chief program officer with Enterprise Community Partners, a nonprofit that’s assisted jurisdictions in complying with AFFH.
This year, 100 more jurisdictions are scheduled to begin compliance with AFFH, and Blatchford is hearing indications from local leaders that they will proceed as originally planned. “What is striking to me is that there are jurisdictions that want to continue,” said Blatchford. Even if HUD withdraws from the effort, “[the AFFH rule] provides a calendar and a deadline for people to start having conversations about their communities that haven’t happened before. I think that can be transformational.”
In all of the big cities from the first round of jurisdictions, the implementation of the AFFH rule acted as an impetus to re-examine policy priorities that have been locked in for years, if not decades. An abundance of fresh data showed stark patterns of segregation. These maps didn’t surprise academics or seasoned fair-housing advocates, but they serve as a useful spur to politicians and bureaucrats who may not be have an intimate knowledge of housing distribution.
“My impression is that the mayors in those places were very positive about the process and how it turned out,” said Philip Tegeler, a civil rights lawyer and president of the Poverty and Race Research Action Council, a civil rights–focused research organization. Tegeler is a veteran of the fair-housing struggle. He’s seen six different administrations (including Trump’s) attempt to address, to varying degrees, this seemingly intractable problem of segregation. He’s been impressed by the AFFH rule’s implementation thus far. “The purpose of this rule was to take the difficult issues of segregation and disparate impact among communities and work them out in a democratic and community-based way, as opposed to through the courts.” The AFFH process is meant to unfold over months. The doorstopper reports that result—Philadelphia’s ran to more than 800 pages—are compiled by the municipal governments from local sources, HUD data (like a mapping tool created for the rule), and local knowledge. Community engagement is mandatory.
None of this is to say adaption of the rule has been seamless. In Philadelphia, the engagement process earned criticism from a new fair-housing coalition formed to pressure the city and housing authority to pursue the AFFH rule more vigorously, in particular for lacking focus on the city’s expanding Hispanic and Asian immigrant communities. More specific goals were included in the final plan as a result. In New Orleans, the aftermath of Hurricane Katrina has inspired a robust advocacy sector around housing issues. Fair housing and community groups were heavily consulted from the beginning, according to Cashauna Hill, executive director of the Greater New Orleans Fair Housing Center. She says the AFFH process was far more transparent and participatory than she’d expected. “It’s more honest than what we’ve seen in the past,” says Hill. “The plan takes a very clear-eyed look not only at private sector, but at public-sector acts of discrimination and the ways in which public sector contributes to housing segregation in the New Orleans area.”
There are nevertheless severe limitations to the documents produced in these three jurisdictions. In Philadelphia and New Orleans, the reports only focus on the cities themselves. Most advocates argue that segregation cannot be effectively addressed without including wealthier and often whiter suburban and exurban areas to build more affordable housing or allow easier access to Section 8 voucher holders. After decades of middle-class flight, most cities simply don’t have enough wealthy or middle-class neighborhoods to make really meaningful steps toward desegregation on their own. They have to include suburbs in the picture.
While these baby steps are improvements on the status quo, it’s easy to see why many housing experts remain skeptical of the rule. “The whole history of enforcement of fair-housing law … shows that more conservative and more liberal politicians use different rhetoric but act pretty much the same,” Brown University’s John Logan, a well-regarded expert on segregation, told me. “Only through court action, with HUD and/or localities as defendants, have real steps been taken.” The history is certainly not heartening. But most fair-housing advocates I interviewed for this piece weren’t in total despair. Local officials in the three big cities first touched by the AFFH have repeatedly committed to following through, no matter what happens with HUD. If local governments in the first wave of jurisdiction don’t make good on their AFFH commitments, activist groups have a clear document against which to measure their success.
Trump and Carson may decide to scrap the rule, or they may decide to go easy on its enforcement. (There are bills in both houses of Congress that would undermine the bill, although they haven’t gone anywhere before.) Or they may just quietly leave it alone. Some advocates even say Carson’s messaging on the issue has softened since his nomination: During his confirmation hearing he hedged on his earlier condemnation of AFFH and claimed “the Fair Housing Act was one of the best pieces of legislation.” For his part, Tegeler said he isn’t convinced the Trump administration will attack the rule. Even if it simply leaves it on the books, he believes community coalitions can ensure that local jurisdictions take it seriously—even without serious enforcement or oversight from HUD.
Meanwhile, the National Fair Housing Alliance reports that far larger jurisdictions, like California, New York, and Connecticut, have expressed interest in an AFFH framework at the state level if the regulation is rolled back at the federal level. The result would be a checkerboard of compliance. But for fair-housing advocates in the age of Trump, that would still be better than nothing at all.
