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No Certification, No Money: The Revival of Civil Rights Obligations in HUD Funding Programs

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Since the late 1960s, states and municipalities receiving federal housing and community development funds — under the Community Development Block Grant (CDBG), HOME Investment Partnership (HOME), and similar programs — have been required to certify that they will comply with federal civil right laws. Many have done so without understanding what is required by these certifications, assuming that the U.S. Department of Housing and Urban Development (HUD) would not challenge their validity.

Until recently, this assumption was largely correct, as HUD rarely questioned recipients on these issues and virtually never terminated or threatened to terminate funding. HUD simply did not press recipients to comply with their civil rights fair housing certifications. Consequently, from 1995 through 2009, hundreds of recipients bowed to NIMBY pressures, ignored their certifications, and spent billions of dollars in federal funds to segregate affordable housing by placing most of it in already disadvantaged neighborhoods or communities.

In just the past year, however, this situation has begun to rapidly change — the result of a ground-breaking lawsuit against Westchester County, New York ) and the Obama Administration’s interest in reviving civil rights enforcement. Under emerging HUD guidelines and a stepped-up agency enforcement policy, recipients of federal housing funds will be required to take a hard look at impediments to fair housing choice in their jurisdictions and propose robust actions to overcome them.

This new environment will have a dramatic impact on communities across the country, whether they are one of the 1200+ “entitlement jurisdictions” receiving federal funds directly from HUD, or small cities or rural counties whose federal funds are channeled through a state community development agency.

Civil Rights Certifications in Federal Housing and Community Development Programs

To be eligible for CDBG and related funds, state and local governments must certify that they will comply with a range of federal civil rights laws and “affirmatively further fair housing.” Since at least 1995, this last obligation, sometimes referred to as “AFFH,” has required recipients to conduct an Analysis of Impediments (AI), in which they identify and analyze impediments to fair housing choice within their jurisdictions, and outline appropriate actions to overcome those impediments. HUD also requires recipients to maintain records supporting the analysis and the actions taken to overcome impediments.

HUD requires state and local governments to use their AIs to list impediments experienced by members of all seven protected classes, whether caused by intentional discrimination or by policies and practices that have a harsher effect on members of a protected class than on those not in a protected class.

Recipients, in their AI, must make an honest assessment of their own zoning, land use, building, and other ordinances that may decrease housing choice, and must design approaches that will counteract those negative effects. An AI is also required to look at impediments caused by private sector actors, including steering in the sales and rental markets, discriminatory lending practices, insurance redlining, and similar practices.

While recipients are encouraged to provide affordable housing, HUD makes clear that doing so does not fully satisfy the obligation to affirmatively further fair housing, where the focus is on eliminating discrimination on the basis of protected class and expanding housing opportunity regardless of income.

End of excerpt

… the article then continues with a discussion of the Westchester County litigation and its broader national implications.


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