Fifty-two years ago, Congress enacted a one-of-a-kind civil rights directive. It requires every federal agency—and state and local grantees by extension—to take affirmative steps to undo segregation. In 2020, this overlooked Fair Housing Act provision—the “affirmatively furthering fair housing” or “AFFH” mandate—had heightened relevance. Perhaps most visible was Donald Trump’s racially charged “protect the suburbs” campaign rhetoric. In an appeal to suburban constituents, his administration replaced a race-conscious fair housing rule with a no-questions-asked regulation that elevates local control above civil rights.
The maneuver was especially stark as protesters marched in opposition to systemic racism’s many forms. In this moment of racial awakening, it is critical to revisit how neighborhood segregation affects nearly all aspects of American life. We live in a racist ecosystem, and racial segregation is its defining feature. Segregation’s profound influence reinforces the importance of the AFFH mandate as a remedial tool.
Drawing on recent events as a case study, this Article examines the AFFH mandate’s potential to be our country’s most effective anti-segregation tool. First, this Article accounts for the mandate’s historic failures. Second, it demonstrates why the Act must be amended to instill a durable compliance process at the local level.
As currently configured in statute, the mandate is profoundly inadequate to meaningfully reduce segregation. But if amended, it has the unleashed power to reduce segregation at the local level. This has critical real-world implications—new studies reveal that even incremental reduction of neighborhood segregation decidedly improves quality-of-life outcomes, from education to health to life expectancy.
Decades after Congress announced the government’s affirmative duty to undo it, housing segregation remains a profound collective problem that merits the resources necessary to systematically dismantle it. The stage is set for fair housing’s third act.
Associate Professor and Director of the Civil Rights and Transparency Clinic, State University of New York (SUNY) at Buffalo School of Law
