The Affirmatively Furthering Fair Housing rule, promulgated under the Obama administration and swiftly repealed under the Trump administration, was the most significant fair housing effort in decades. But for all its ambitions, the rule had a fundamental weakness. It was (intentionally) focused on process and not able to support prescriptive, readily-enforceable mandates to improve racial equity in housing. This Essay argues that this weakness stems from the open-ended meaning of “fair housing.” With little consensus—even within the fair housing community—as to what fair housing demands, it was nearly impossible for the federal government to demand state and local governments “affirmatively further” anything in particular. To make matters worse, the judiciary may have locked in that open-ended understanding of fair housing, limiting how HUD can strengthen its regulatory framework.
In light of this diagnosis, this Essay offers a new path forward: focusing less on promoting “fair housing,” and more on eliminating practices known to contribute to unfair housing. Here, there is more clarity: some practices routinely impede racial equity in housing. HUD can encourage the elimination of these practices while still permitting states and cities to define their own positive visions of racial equity. Doing so could pair the best of HUD’s previous bottom-up framework with new tools to promote concrete action. This Essay closes by detailing a framework for how to integrate a renewed focus on unfair housing into the Affirmatively Furthering Fair Housing process.