AFFH HUD Rule Follows Supreme Court’s Disparate Impact Decision

Since the U.S. Supreme Court decided to uphold the disparate impact doctrine as a legal tool to fight discrimination in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc., HUD has followed with a new rule that jurisdictions accepting federal housing dollars not only have to avoid discrimination but work actively to reduce racial disparities in communities—or "affirmatively further fair housing" (AFFH), in the language of the rule. That concept was part of the 1968 Fair Housing Act, but had never been enforced very seriously.

In practice, this means that HUD is going to provide extensive data to communities, highlighting racial differences in jobs, education, and access to transportation in their areas. Local housing authorities or other agencies will have to hold public meetings to discuss their findings and then incorporate ideas for how to address segregation in their master plans every five years, or risk losing federal housing dollars.

The court decision and the new rule could together encourage more affordable housing to be built in middle-class or affluent neighborhoods, as opposed to the standard pattern of building public housing in low-income areas.