After SFFA: Affirmatively Furthering Fair Housing as a Remedy to Federal Housing Discrimination

Nearly sixty years after the passage of the Fair Housing Act (FHA), racial
segregation, housing discrimination, and consequent disparities in health and
opportunity stubbornly persist. Yet the Department of Housing and Urban
Development has made limited use of the FHA’s most powerful provision: its
mandate to affirmatively further fair housing. In recent years, new barriers
to meeting this mandate emerged. Still, affirmatively furthering fair housing
remains constitutionally viable and urgently necessary, even in the face of shifting
equal protection doctrine. This Note begins by tracing the contested meaning of
“affirmatively furthering fair housing” in the courts and executive branch. It then
examines how Students for Fair Admissions v. Harvard creates new constitutional
roadblocks to governments seeking to affirmatively further fair housing today. In
response, this Note proposes a process for crafting race-conscious policy within
the many constraints of current equal protection jurisprudence. Finally, it outlines
an application of this process to affirmatively furthering fair housing. By doing so,
this Note reaffirms the continued need for affirmatively furthering fair housing, the
continued possibility of this work in the face of constitutional changes, and specific
avenues forward for state and federal actors dedicated to building “truly integrated
and balanced living patterns.”