Fair Housing, Unfair Housing

21 Pages Posted: 2 Sep 2021 Last revised: 29 Nov 2021

See all articles by Noah Kazis

Noah Kazis

New York University School of Law

Date Written: November 23, 2021


The Affirmatively Furthering Fair Housing rule, promulgated under the Obama administration and swiftly repealed under the Trump administration, was the most significant fair housing effort in decades.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 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.” Without any 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, pairing 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.

Keywords: housing, fair housing, affirmatively furthering fair housing, AFFH, HUD, exclusionary zoning,

Suggested Citation

Kazis, Noah, Fair Housing, Unfair Housing (November 23, 2021). 99 Washington University Law Review Online (2021), Available at SSRN: https://ssrn.com/abstract=3914954

Noah Kazis (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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