Affirmatively Furthering Equal Protection: Constitutional Meaning in the Administration of Fair Housing

73 Pages Posted: 8 Mar 2017 Last revised: 10 Mar 2017

See all articles by Blake Emerson

Blake Emerson

UCLA School of Law; Yale University - Law School

Date Written: March 6, 2017


This Article argues that the Department of Housing and Urban Development (HUD)’s recent “Affirmatively Further Fair Housing” (AFFH) Rule at once adheres to the formal requirements of current equal protection doctrine, and challenges one of the principal rationales for those requirements. The Rule requires HUD grant recipients to perform, document, and submit a planning process, in which they use data to identify fair housing issues, develop goals to address these issues, and commit to concrete actions to achieve these goals. The Rule cautions against the use of racial classifications, but requires local governments to engage in race-conscious policy-making in consultation with the affected public. This requirement of race-consciousness discourse on the part of local policymakers challenges an important motivation for the Court’s current equal protection regime: its effort to make the consideration of race less conspicuous, salient, and visible to the public. I argue that the Rule instead builds upon an older strand of equal protection doctrine, which recently resurfaced in Fisher II. This approach to equal protection borrows an administrative law methodology, reviewing race-conscious policy to ensure that it is evidence-based, well-reasoned, based on public feedback, and thus calculated to avoid arbitrary outcomes. I conclude that the Court should embrace the rational, race-conscious policy discourse that the AFFH Rule embodies, and abandon its preference for the concealment of race-based decision-making. The court should turn away from this approach because the effort to reduce the salience of race in public policy has prevented narrow tailoring, undermined democratic accountability, and failed to reduce racial antagonism. Therefore, the Court should follow HUD’s lead, and ensure that race-conscious public policy is audible, transparent, and well-justified.

Keywords: equal protection, fair housing, administrative law, administrative constitutionalism

JEL Classification: k23

Suggested Citation

Emerson, Blake, Affirmatively Furthering Equal Protection: Constitutional Meaning in the Administration of Fair Housing (March 6, 2017). Buffalo Law Review Vol. 65, No. 1, Available at SSRN:

Blake Emerson (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Drive East
1242 Law Building
Los Angeles, CA 90095
United States

Yale University - Law School ( email )

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