The Fair Housing Act Today: Current Context and Challenges at 50

ABSTRACT

As is true for most legislation, the Fair Housing Act (FHA) was a product of its time; the legislation’s content, and even passage, was formed by dominant issues in housing markets and the country at that time. The context shaped the goals of the FHA and the strategies and tools employed under its auspices. Fifty years after the passage of the FHA, much of that context has changed. This commentary argues that changes in the context not only raise new fair housing challenges and create new gaps in our knowledge, but also may necessitate a fresh look at fair housing strategies and tools if they are to be effective at achieving the goals of the act. This commentary begins with a brief background on the FHA itself, the social context at the time of its writing, and its main goals. Next it lays out a few key changes in housing markets relevant for fair housing, highlighting challenges they may create and where research could be of greatest value. It then considers challenges arising from threats to two specific U.S. Department of Housing and Urban Development (HUD) fair housing rules seen by many as critical fair housing tools. The commentary ends with two examples of a “refresh,” where current context has shaped, or reshaped, a strategy to address today’s fair housing challenges.

KEYWORDS:

• Fair housing
• discrimination
• disparate impact

Disclosure Statement

No potential conflict of interest was reported by the author.

Notes

1. For example, in HUD’s recent large-scale study of discrimination against families with children in the rental market, the primary differential treatment identified was that families with children were shown slightly larger units (HUD, 2016a). The implications of this type of treatment are less clear than outright refusal to rent.

2. Bill Dedham’s original Color of Money series ran in the Atlanta Journal and Constitution May 1–4, 1988. The follow-up series ran May 5, 1988 to October 25, 1989. The full compilation is available at http://powerreporting.com/color/

3. Some scholars have raised concerns that even without any narrowing of application (at least as applied in employment discrimination cases), disparate impact may not be fully up to the challenge of big data or algorithms (Barocas & Selbst, 2016).

4. For a thorough discussion of the AFFH rule and its requirements, see Bostic and Acolin (2017).

5. See Steil and Kelly (2018) for a detailed discussion of what has been learned from those jurisdictions that have already filed AFHs.

6. For details, on the court filings, see http://prrac.org/full_text.php?item_id=15191&newsletter_id=0&header=Current%20Projects.

7. For details see https://www.hud.gov/sites/dfiles/FHEO/documents/AFFH-ANPR.pdf.

8. The assessment’s broad provision of data, emphasis on measurable metrics, and requirement of robust public engagement are all features driven by current understanding of best planning practices.

9. For the earlier AIs for 23 early submitters reviewed in Steil and Kelly (2018), see https://steil.mit.edu/civil-rights-and-fair-housing-city.

Additional information

Notes on contributors

Katherine M. O’Regan

Katherine O’Regan is Professor of Public Policy and Planning at NYU's Robert F. Wagner Graduate School of Public Service and Faculty Director of NYU's Furman Center for Real Estate and Urban Policy.  Her research focuses on low-income neighborhoods, affordable housing and residential segregation.