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46 U. Mem L. Rev 1009 (2016)


When many of us think about fair housing enforcement, scenes involving undercover apartment applicants ferreting out racially biased landlords come to mind. Indeed, fair housing "testers" have been and continue to be an important element of civil rights accountability.' However, implementation of the Fair Housing Act of 1968 has had at least as much to do with increasing the supply of decent, affordable housing options to members of protected groups as with assuring those individuals that they will not be denied a particular housing unit because of the color of their skin or a disability.

This macro aspect of fair housing enforcement has been led by organized activists challenging the policies, actions, and inactions of state and local housing and land use agencies. Early on, it involved battles over the siting of public housing projects outside areas of concentrated poverty, like the 1980's-era struggle in Yonkers depicted in the recent critically acclaimed HBO series, Show Me a Hero. As housing subsidy increasingly took the form of rent payment vouchers, advocates litigated to force local agencies to facilitate the voluntary relocation of poor, inner-city residents of color to suburban areas that had good schools as well as jobs. Critical to plaintiffs' prospects for success in these impact cases has been the ability to establish a violation of the Fair Housing Act through evidence that showed that the policies in question disproportionately harmed the housing opportunities of federally protected racial groups. Proving racial bias as the motivation behind the adoption of a harmful governmental policy has been even more difficult than it has been in the reason for denial of an apartment or mortgage application. The U.S. Supreme Court has ruled that a showing of deliberate discrimination is required to establish a violation of constitutional rights under the Equal Protection Clause, but the lower court, upon remand, held that the Fair Housing Act was not so limited in its protection.Evidence that a facially neutral policy nevertheless harmed the housing prospects of a protected group would at least shift the burden of proof to the defendant governmental unit to justify the policy approach. Advocates battling against the exclusion of affordable housing have had some success in showing that targeted policies harm the housing options of racial minorities. But, local jurisdictions' ability to escape liability by showing a non-racial basis for a detrimental policy has contributed to a declining overall success rate in federal appellate courts. Such a record has encouraged activists to look elsewhere in the law to advance housing justice for protected groups. Potentially more important than the ability to prove unlawful discrimination through disparate impact evidence is the capacity to scrutinize a local agency's compliance with its Fair Housing Act obligation to Affirmatively Further Fair Housing ("AFFH"). Offered as a possible "missing link" in the chain of fair housing accountability," AFFH has significant potential to affect local decision- making. By law, recipients of funding from the United States Department of Housing and Urban Development ("HUD") not only have to avoid policies that deny protected groups housing opportunities, they also are required to work proactively to eliminate entrenched segregation in their communities regardless of who is to blame for its creation.

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