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I recently gave a talk to a local California Association of Realtors group on the “Past, Present and Future of Fair Housing” to commemorate Fair Housing month (April), and to help the group think about their role in promoting fair housing. It is especially notable that CAR and other realtor groups adopted this charge given that CAR, in an earlier incarnation known as the California Real Estate Association (CREA), was one of the most nefarious actors in the country in terms of promoting and institutionalizing racial residential segregation.

CREA, along with the national association and local associations, played a critical role in promoting professional rules that prevented non-white homeseekers from buying homes in white neighborhoods, opposed laws that would prohibit discrimination, promulgated an ideology that linked segregation to property rights and maintenance of property values, and financially supported and boosted segregative ballot initiatives like Proposition 14, which attempted to overturn California’s first significant fair housing law.

A recent book that covers this history vividly is The Freedom to Discriminate: How Realtors Conspired to Segregate Housing and Divide America by Gene Slater, a book I highly recommend. Another book that covers some of this history, but with an even sharper focus on California, is Racial Propositions: Ballot Initiatives and the Making of Postwar California by Daniel Martinez HoSang.

It is to the credit of organizations like CAR that they have not only publicly apologized for their role in this sordid history, but they are now actively trying to figure out how to remedy it.

As part of my talk, one of the points I tried to emphasize was that the concept of fair housing predates local ordinances, state statutes, and even federal laws that codify the concept. Fair housing was actually an outgrowth of the open housing movement, a movement that reached its zenith in the 1950s and 1960s open housing movement. This movement sought to open up previously exclusionary neighborhoods to everyone, and to break down the barriers that kept people out on the basis of race, religion, and other categories.

Beginning in the late 1950s, and continuing into the early 1960s, this movement achieved some successes, first in prohibiting discrimination in public housing, and then later private housing, as cities such as New York City, Toledo, and Pittsburgh, and states such as Oregon, Colorado, Connecticut, and Massachusetts began adopting open housing ordinances and statutes. Ultimately, however, this push ran into an argument, most powerfully advanced by the real estate industry, that open housing was “forced housing,” and violative of property rights. It was in this context that the open housing movement adopted the frame of “fair housing” as a tactic that could help overcome these critiques. Undoubtedly, it is harder to sustain a political campaign against “fair housing” than “open housing.” But the core idea remained the same.

Unfortunately, we have a long way to go. Unlike education, there was never a central authority that could unilaterally reassign people to different neighborhoods. And that is why the federal Fair Housing Act of 1968 did more than simply prohibit discrimination in housing markets, it also required that the federal government put its weight behind a concept called “affirmatively furthering fair housing.” This meant taking proactive steps to promote integration and overcome patterns of racial residential segregation, not simply ending discrimination.

This equally nebulous term, however, was undefined for nearly 50 years. In 2015, the Obama issued a landmark regulation which attempted to define and operationalize the duty to “affirmatively further fair housing.” That rule defined affirmatively furthering fair housing as: “taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.”

In 2020, the Trump administration issued a revised version of the rule that purged all references to segregation, integration, and racial composition from the regulation and the definition of AFFH. Thankfully, earlier this year, the Biden administration’s Department of Housing and Urban Development issued a proposed AFFH rule which attempts to restore and revise the 2015 rule. As the “purpose” section of the proposed rule states: “This regulation implements the Fair Housing Act’s affirmatively furthering fair housing mandate, which requires Federal housing and urban development programs and activities to be administered in a manner that not only avoids and eliminates discrimination today, but also remedies the legacy of public and private policies and practices that have created segregated communities and enduring inequities in housing and related opportunities throughout the Nation.” I could not have put it better myself.

The rule also creates a new process for implementing this purpose, requiring localities and jurisdictions to develop “equity plans.” These plans will all be posted to a new AFFH webpage, and must take seriously the need to create meaningful housing options, even in the face of NIMBY resistance. The process is somewhat streamlined compared to the 2015 rule, responsive to some of the complaints that perhaps motivated the Trump administration’s gutting of the 2015 rule, but the new rule nonetheless contains strong potential enforcement measures and sanctions for non-compliance.

PolicyLink, based in Oakland, has put together a comprehensive guide for commenters, with input and contributions from many fair housing organizations. The comment period closes, Monday April 24.

Editor's note: The ideas expressed in this blog post are not necessarily those of the Othering & Belonging Institute or UC Berkeley, but belong to the author.