Comments from Richard Besser, MD, on Affirmatively Furthering Fair Housing Proposed Rule

The following comments were submitted by Richard Besser, MD, Robert Wood Johnson Foundation (RWJF) President and CEO, on the U.S. Department of Housing and Urban Development’s (HUD) proposed rule, Affirmatively Furthering Fair Housing (hereinafter “2023 Proposed Rule”).

RWJF is committed to improving health and health equity in the United States. In partnership with others, we are working to develop a Culture of Health rooted in equity that provides every individual with a fair and just opportunity to thrive, no matter who they are, where they live, or how much money they have. This includes supporting the development of the physical, economic, and social conditions in communities that enable all residents to reach their best possible health and wellbeing. Addressing housing inequities is among our areas of work because of the historic and foundational role of housing policies in creating ongoing segregation from opportunity and racialized concentrated poverty, which adversely impact health.

Health is more than an absence of disease. It is a state of physical, mental, and emotional wellbeing. It reflects what takes place in our communities, where we live and work, where our children learn and play, and where we gather to worship. That is why RWJF focuses on identifying, illuminating, and addressing the barriers to health caused by structural racism and other forms of discrimination, including sexism, ableism, and prejudice based on sexual orientation.

We lean on evidence to advance health equity. We cultivate leaders who work individually and collectively across sectors to address health equity. We promote policies, practices, and systems-change to dismantle the structural barriers to wellbeing created by racism. And we work to amplify voices to shift national conversations and attitudes about health and health equity.

RWJF is pleased to offer the following comments in response to the 2023 Proposed Rule. Our comments are grounded in the perspectives and learnings of our grantees, who include academic researchers, policy experts, advocates, and organizers with deep expertise in affordable housing. We focus our comments as outlined below on the connections between housing and health and wellbeing as well as the opportunities presented by the 2023 Proposed Rule to advance health and racial equity. RWJF’s specific recommendations for strengthening the 2023 Proposed Rule are included as text that is both italicized and indented. In addition, we have included recommendations in section V of our comment letter that respond to specific questions posed in Section IV of the preamble to the 2023 Proposed Rule.

I.    The 2023 Proposed Rule is necessary to advance the goals of the Fair Housing Act.
II.    Safe, stable, and affordable homes are a catalyst for healthier, more equitable communities.
III.   Racial residential segregation is inextricably linked to health inequities.
IV.   AFFH showed promise prior to its suspension in 2018.
V.    The 2023 Proposed Rule is an opportunity to actively address systemic racism, ableism, and segregation and foster community engagement in fair housing.

   I.    The 2023 Proposed Rule is necessary to advance the goals of the Fair Housing Act.

Where we live determines many of the opportunities we have to live our healthiest life, shaping our ability to access safe water, healthy foods, high-quality schools, and good jobs with fair pay. Access to safe, stable, accessible, and affordable housing in thriving communities is foundational for health. Yet housing inequities in this country are pervasive.

Past and ongoing housing discrimination has created widespread segregation and disparities by race, income, and ability. Today, 55 years after the passage of the Fair Housing Act, too many communities lack fair and accessible housing due to systemic barriers—from land use and zoning policies that limit housing supply and the construction of multifamily homes, to mortgage and appraisal bias, to modern-day “redlining” and lending discrimination. Housing discrimination also occurs when developers build units that are inaccessible to people with disabilities and when housing providers deny requests for reasonable accommodations and modifications so individuals with disabilities can use and enjoy their homes. The effects of housing discrimination were exacerbated by the COVID-19 pandemic, which heightened housing challenges for millions of struggling renters and homeowners who were disproportionately people of color. Today, we face the largest homeownership gap between Black, Latino, and White households since 1970, and Black and Latino renters continue to face widespread housing discrimination. Individuals with disabilities continue to face significant hurdles to finding, acquiring, and maintaining accessible housing.

The 2015 Affirmatively Furthering Fair Housing (AFFH) rule that provided a framework for local governments, states, and public housing agencies to address housing discrimination showed great promise, including its community-centered process to ensure the representation of resident and community voices in addressing fair housing issues. The rule not only affirmed the Fair Housing Act’s original intent to ban discrimination in housing, but also required those receiving federal housing and urban development funds to intentionally undo the impact of decades of federal, state, and local discriminatory policies and practices that resulted in segregated communities.

The Trump Administration’s 2020 suspension of AFFH with the rationale that “fair housing” equates to housing that is simply affordable, accessible under civil rights laws, and free from illegal discrimination, fell far short of addressing the problems that structural racism, ableism, and residential segregation cause.

The 2023 Proposed Rule will strengthen community voice and engagement and provide more transparency in promoting fair housing choice. It will also ensure progress toward eliminating historical disparities in housing, foster inclusive communities, and advance racial, social, and health equity.

   II.    Safe, stable, and affordable homes are a catalyst for healthier, more equitable communities.

A safe, stable, accessible, and affordable home in a community with high-quality schools, fair-paying jobs, and access to clean water, healthy foods and green spaces is a key factor for people to reach their best health and wellbeing. Unfortunately, across the country and in communities of all sizes, too many people face housing-related challenges.

Housing is the largest cost for many families and a significant determinant of financial security, with nearly 15 million renter households in the United States spending more than 30 percent of their income on housing. Because people of color are more likely to be renters at all income levels, increasing costs within the rental market disproportionately harm these households. Among renters, 55 percent of Black households and 53 percent of Latino households are cost-burdened compared to 43 percent of White households.

When families spend less than 30 percent of their income on rent or a mortgage and utilities, they are better able to meet needs like food, childcare, healthcare, and transportation, and to start to save and build wealth. Yet, there is a shortage of affordable housing units for almost 7 million families below the poverty line or 30 percent of their area’s median income. Many of these families include older adults, children, and people with disabilities who face additional challenges securing affordable, accessible housing. The health impacts of the nation’s affordable housing shortage—including the effects of overcrowding—were magnified during the pandemic.

To be clear, housing that is “affordable” is still not available or accessible to everyone due to widespread discrimination, limited affordable and accessible housing supply, and other barriers. In 2021, there were more than 31,000 formal complaints of housing discrimination; when accounting for systematic under-reporting, research suggests more than 4 million instances of discrimination occurred. Of the formal complaints filed in 2021, more than half were regarding housing discrimination based on disability and roughly 20 percent were regarding housing discrimination based on race. For individuals with disabilities who experience race-based discrimination, the challenges to accessing affordable housing are compounded. Transgender individuals also face disproportionate housing discrimination; as of 2015, nearly one in four trans people overall—and four in 10 Black trans people—had experienced housing discrimination in the previous year.

Housing stability, the ability to stay in one’s home over time, is associated with better economic opportunity, health, and educational outcomes for children. Stable housing is foundational to children’s wellbeing, but when housing is unaffordable, families may have to move. More than three moves in the first seven years of life is associated with more thought- and attention-related problems.

Evictions are a frequent occurrence among renters in the U.S. Black and Latino women and families with children are at especially high risk for eviction. An estimated 3.6 million eviction cases were filed annually on average in the U.S. between 2000 to 2018. While most evictions were halted during the pandemic, eviction filings have now returned to pre-pandemic levels or higher in certain parts of the country. Protecting both renters and homeowners from displacement and eviction fosters both individual and community health.

RWJF recommends that the final rule require that Equity Plans—the fair housing plans prepared by HUD program participants that commit to goals advancing equity in housing—consider data on eviction filings in their fair housing planning process and ensure access to affordable housing near the resources that support good health, including grocery stores, quality schools, good jobs with fair pay, accessible public transportation, healthcare services, and safe places to play and exercise.

   III. Racial residential segregation is inextricably linked to health inequities.

The creation of White-only suburbs from the 1930s to the 1960s through mortgages insured by the Federal Housing Administration and the segregation of once-integrated public housing communities in cities across the country, followed by a consistent lack of investment from the public and private sectors, have created segregated neighborhoods for communities of color. In many cases, these neighborhoods have experienced a lack of investment in infrastructure, such as streets, sidewalks, and clean water; low housing quality; and less access to good jobs with fair pay, transportation, healthcare, healthy food, and high-quality schools than predominantly White neighborhoods. The recently passed Bipartisan Infrastructure Law acknowledged as much with the unprecedented admission that the federal transportation program—largely, but not limited to, the highway program—has been used to divide Black and White communities for decades. This segregation has only served to exacerbate our nation’s race- and income-based health inequities in the following ways, among others:

• Cities with the highest levels of segregation have the highest levels of place-based (and, by proxy, race-based) differences in life expectancy.
• Over the course of a lifetime, residential segregation limits wealth accumulation and social and economic mobility for people of color and people with low incomes.
• Research demonstrates that when people move from segregated neighborhoods to those with modestly less segregation, they experience improvements in many health and social outcomes, including lower rates of obesity and diabetes among adults and better school performance and higher incomes in adulthood among children who moved before the age of 13.

HUD’s January 2020 proposed rule to redefine AFFH and shift its overarching goal from fostering inclusive communities to ensuring “an adequate supply of affordable housing”—effectively eliminating its focus on addressing residential segregation, a key driver of health inequities—ignored the fact that housing inequities have been created and maintained through laws, policies, and ongoing discrimination in rental and mortgage lending practices.

RWJF urges HUD to ensure that the final rule is implemented to affirmatively further fair housing through the preservation of existing affordable housing and HUD investments in neighborhoods that historically had experienced a lack of investment, and supporting mobility programs that enable residents to move to neighborhoods that already have high-quality community infrastructure and assets, helping to reverse historic patterns of segregation while also respecting community preferences related to development and investment.

   IV. AFFH showed promise prior to its suspension in 2018.

When HUD adopted AFFH in 2015, it laid out a framework for local governments, states, and public housing agencies to act to overcome historic patterns of segregation, promote fair housing choice, and foster inclusive communities that are free from discrimination. It required communities receiving HUD funding to undertake a structured planning process every five years to assess the degree of segregation locally and regionally, explore disparities in access to social and economic opportunity and healthy environments, and engage community members and interested parties from multiple sectors to develop a comprehensive fair housing plan. Prior to AFFH, HUD’s prevailing guidance for promoting fair housing was relatively non-specific and did not include rigorous oversight. In fact, a 2010 U.S. Government Accountability Office study found that the process was ineffective at fostering inclusive communities.

As enacted in 2015 and prior to its suspension in 2018, AFFH showed progress was possible, including in the following ways:

• Public engagement was much more robust than that done under the prior fair housing guidance with greater efforts to make community participation easier and to collaborate with non-housing agencies, such as health, education, and transportation.
• Goals were more concrete, measurable, and cross-sectoral, such as improvements in water quality and park access, increased workforce training, and enhanced transportation systems.
• More new actions were proposed to achieve these goals, including the central objective of reducing segregation.
  
  

Prior to 2015, there was little formal guidance on how to implement AFFH; the rule set forth in 2015 called for fair housing assessments and provided tools to help develop them. The Trump Administration postponed the deadline for compliance and then suspended AFFH. RWJF supports the 2023 Proposed Rule’s return to the promise of the 2015 AFFH and the proposed focus on addressing housing inequities, streamlining reporting requirements, and setting and working toward fair housing goals and community engagement.

   V. The 2023 Proposed Rule is an opportunity to actively address systemic racism, ableism, and segregation and foster community engagement in fair housing.

RWJF sees great opportunity in the potential of the 2023 Proposed Rule to address systemic racism, ableism, and residential segregation. With that in mind, we offer the following recommendations responding to HUD’s questions in Section IV of the preamble to the 2023 Proposed Rule that we view as being at the intersection of systemic racism, ableism, segregation, and community engagement in fair housing.

A. Responding to Questions 1 and 2 About the Streamlined Equity Plan Process

The 2015 AFFH rule establishing the Assessment of Fair Housing process created a resource for community-based advocates and stakeholders, and for HUD in its civil rights oversight role, to understand local, state, and regional policies and conditions and ensure that entities receiving HUD funds were setting and following through on meaningful goals to address housing inequities and targeting federal resources to increase access to housing choice and opportunity.

The 2023 Proposed Rule would establish Equity Plans (formerly the Assessments of Fair Housing) and streamline the goal-setting and reporting process in order to enable program participants to set meaningful goals that will affirmatively further fair housing and broaden meaningful and constructive engagement in housing issues by other interested parties, such as environmental justice groups, tenants rights groups, and hospitals and health systems.

We view the two fair housing goal categories (categories v and vii to address the legal and policy framework and the practices at the local level that affect the provision of affordable housing in well-resourced areas of opportunity and discrimination or violations of civil rights laws that impede equitable access to community assets) as stronger than under the 2015 rule.

RWJF recommends requiring assessments of a jurisdiction’s fair housing enforcement and fair housing outreach capacity. Such assessments were a key requirement from the 2015 rule. Enforcement and outreach are essential components of a jurisdiction’s ability to promote fair housing, which cannot be accomplished only by having fair housing laws on the books. Strong enforcement mechanisms are also of particular importance to fair housing organizations, which constitute a central element of the local fair housing infrastructure.

B. Responding to Question 5 Regarding Facilitating the Community Engagement Process

The 2018 Final Rule removed the requirement for community participation and engagement focused on fair housing issues, including a public hearing and a written comment period. Civic engagement and building community power are essential to democratic decision-making and advancing health equity. Communities that have been systematically denied opportunities for fair housing over generations should have a seat at the table when designing new housing policies and investments, and they should be able to hold governments accountable for their actions.

A robust community engagement process is essential to ensuring that a HUD grantee adequately gathers and accounts for local knowledge, and that its identification of fair housing issues and formulation of fair housing goals reflects the needs and preferences of community members and of community organizations with relevant expertise.

Principles for effective community engagement include: outreach to fair housing groups and other groups with expertise, such as environmental justice and tenants rights groups, at multiple stages of the process; engagement designed to reach low-income community members, for example, through thoughtful consideration of location, timing, and publicity of opportunities to provide input on fair housing issues and goals; and considerations for engaging with immigrant populations and individuals and communities with limited English proficiency through linguistically and culturally appropriate communications. Community engagement across all groups should be designed to reach individuals with sensory disabilities and include plain language summaries.

RWJF makes the following recommendations to HUD to improve the 2023 Proposed Rule’s guidance on community engagement to create more inclusive and representative community-driven approaches:

1. Specify that outreach to fair housing groups and other key constituencies, including representation of groups that address and understand accessible housing and use of accessible communications, is required as part of the obligation outlined in the 2023 Proposed Rule to gather diverse perspectives.
2. Reconsider the number of meetings grantees are required to hold. In some smaller jurisdictions, three meetings may be sufficient. However, for grantees that serve large populations or large geographic areas, three meetings may be insufficient to allow for meaningful participation by affected communities.
3. Provide greater direction and flexibility about the various formats that may be used to engage with community members.

a. Experience from the 2015 rule and during the pandemic suggests that a wider variety of formats—including smaller, targeted focus groups and virtual meetings that do not require participants to travel from their homes—may enhance the opportunity for meaningful engagement by a range of community members, including immigrant populations and individuals with disabilities.

b. Include providing language assistance to ensure meaningful access to participation by residents with limited English proficiency.

c. Ensure culturally appropriate communications and outreach to diverse communities and individuals.

4. Describe program participants’ obligations to provide accommodations for persons with disabilities and language assistance for persons with limited English proficiency. Section 5.158(a)(7) of the 2023 Proposed Rule refers to TItle VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. However, it offers no further details. RWJF recommends that HUD explain more fully how program participants can comply with these civil rights laws in the context of community engagement.

C. Responding to Question 6 Regarding the Definition of “Affordable Housing Opportunities”

We view the definition of “affordable housing” as both too broad and too narrow in that it does not account for the people with the lowest incomes, whose housing needs are most challenging to address or those who are not low- and moderate-income, but whose access to housing may be constrained because of race, national origin, disability, or chronic illness requiring specific access needs or other protected characteristics. It also blurs the line between affordable housing and fair housing in a way that may be confusing for HUD grantees.

D. Responding to Question 15 Regarding Guidance on Compliance

The addition of a complaint procedure in the 2023 Proposed Rule helps to bring the AFFH framework up to the standard that is more generally in place and expected for civil rights requirements, as exists for example for Title VIII’s nondiscrimination requirements and across federal agencies for Title VI (prohibiting discrimination in the use of federal funds). This is an important new development that enables community groups to challenge whether program participants are meeting commitments made in the planning process, complying with the AFFH regulations, and carrying out their duty to affirmatively further fair housing more generally.

RWJF views the complaint process that the 2023 Proposed Rule would make available for community members and fair housing advocates as a significant and positive addition to the AFFH regulations. RWJF recommends that the final rule include a description of HUD’s mechanism for responding in a substantive and timely manner to concerns raised regarding a HUD grantee’s Equity Plan while also articulating how HUD will work to safeguard against misuse or abuse of the complaint process by individuals opposed to having affordable and accessible housing in their neighborhoods or communities.

Thank you for the opportunity to comment on the 2023 Proposed Rule. We have included numerous citations to supporting research through direct links. We request that the full text of each of the studies and articles cited and made available through active links, along with the full text of our comment, be considered part of the formal administrative record for the purposes of the Administrative Procedure Act. If HUD is not planning to consider these materials as part of the record, we ask that you notify and provide us an opportunity to submit copies of the studies and articles into the record.

We look forward to continuing to work with HUD and other partners to ensure that every individual has a fair and just opportunity to thrive.
 

About the Robert Wood Johnson Foundation

The Robert Wood Johnson Foundation (RWJF) is committed to improving health and health equity in the United States. In partnership with others, we are working to develop a Culture of Health rooted in equity that provides every individual with a fair and just opportunity to thrive, no matter who they are, where they live, or how much money they have.

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