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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations racial groups whose lack of opportunity the Act was designed to combat. Id. at 1134. Otero further held that, to accomplish this goal, HUD and funding recipients must take into account the socioeconomic and demographic makeup of the neighborhoods they govern, reasoning that the affirmative duty placed on the Secretary of HUD by 3608e5 and through him on other agencies administering federallyassisted housing programs also requires that consideration be given to the impact of proposed public housing programs on the racial concentration in the area in which the proposed housing is to be built. Id. at 113334.
In NAACP, Boston Chapter v. HUD, 817 F.2d 149 1st Cir. 1987, the U.S.
Court of Appeals for the First Circuit likewise found that the AFFH mandate in 42 U.S.C. 3608e5 requires, as a matter of language and of logic, that HUD and its funding recipients do more than refrain from discrimination. Id. at 154. NAACP involved a claim that HUD
and Boston officials knew the citys neighborhoods and housing were racially segregated, yet they failed to utilize the immense leverage of federal funds to provide desegregated housing so that the housing stock is sufficiently large to give minority families a true choice of location. Id. at 152. The court held that HUDs obligation to AFFH requires that HUD
do more than simply not discriminate itself; rather, HUD must use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases. Id. at 155. Like Shannon, NAACP explained that, to carry out this AFFH obligation effectively, HUD and its grantees must consider the effect of a HUD grant on the racial and socio-economic composition of the surrounding area, including historical patterns of segregation. Id. at 156.
Thus, each federal court of appeals that has construed the Fair Housing Acts AFFH requirement has recognized that the AFFH obligation requires a funding recipient to consider existing segregation, including racial segregation, and other barriers to fair housing, and then take meaningful action to address them. These cases make plain that the AFFH obligation requires HUD and recipients of its funding to take proactive steps towards fair housing in this manner, beyond merely refraining from discrimination.
These judicially recognized AFFH
court decisions, including those referenced throughout this preamble, refer to ghettos when discussing racially concentrated areas of poverty.

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principles cannot be reconciled with PCNCs far more limited definition of affirmatively furthering fair housing, which a funding recipient satisfies by taking any step rationally related to any of a large set of objectives, some of which are not intrinsically about fair housing at all. More recently, courts applying and construing the AFFH
requirement, and the precedents described above, have recognized that discretion and flexibility that HUD and its funding recipients have are inherent to the statutory obligation, because the precise actions needed depend on the local context. At the same time, they have continued to recognize that this discretion is cabined by the obligations to meaningfully assess racial and other forms of segregation and other impediments to fair housing and then take meaningful actions to address them. For example, in Thompson v.
HUD, 348 F. Supp. 2d 398, 409 D. Md.
2005, the court found that HUD
violated its duty to AFFH by limiting its efforts to desegregate public housing in Baltimore to the city limits, as opposed to widening its focus to the Baltimore region as a whole. Id. at 459, 461. In ordering HUD to take a regional approach, the court found that the AFFH mandate requires HUD to adopt policies whereby the effects of past segregation in Baltimore City public housing may be ameliorated by the provision of public housing opportunities beyond the boundaries of Baltimore City. Id. at 462. See also U.S.
ex rel. Anti-Discrimination Ctr. v.
Westchester Cnty., 2009 WL 455269
S.D.N.Y. Feb. 24, 2009 finding program participants certification that it would AFFH deficient where it failed to adequately consider the impact of race on housing opportunities in the county.
While the Supreme Court has never had occasion to consider the scope of the AFFH provision, it has consistently recognized and noted the Fair Housing Acts broad and remedial goals and has repeatedly observed that the Act is meant not just to bar discrete discriminatory acts, but to affirmatively counteract the nations long history of racial segregation and discriminatory housing practices and policies.
In Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 1972, while analyzing the scope and purpose of the Act soon after the law was enacted and finding that it conferred very broad standing on private litigants to challenge discrimination, the Court relied on the statements of the Acts cosponsor Senator Walter F. Mondale that:
the reach of the proposed law was to replace the ghettos by truly integrated
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and balanced living patterns. Decades later, in confirming the unanimous view of the courts of appeals that the Act permits disparate-impact claims, the Court further explained that much progress remains to be made in our Nations continuing struggle against racial isolation. . . . The Court acknowledges the Fair Housing Acts continuing role in moving the Nation toward a more integrated society. Tex.
Dept of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc., 576 U.S.
519, 54647 2015. As the Supreme Court held in Inclusive Communities Project, the Acts broad remedial purposes cannot be accomplished simply by banning intentional discrimination. The AFFH requirement plays a key role in the accomplishment of those purposes, requiring HUD and recipients of federal financial assistance to take affirmative steps to create an open, integrated society and to eliminate the barriers that stand in the way of truly equal housing opportunities for underserved populations.
Moreover, Congress has repeatedly confirmed its view that the AFFH
mandate imposes affirmative obligations on HUD funding recipients. In three separate statutes post-dating the Fair Housing Actthe Housing and Community Development Act of 1974, the Cranston-Gonzalez National Affordable Housing Act, and the Quality Housing and Work Responsibility Act of 1998Congress has required covered HUD program participants to certify, as a condition of receiving Federal funds, that they will AFFH. See Public Law 93383, the Housing and Community Development Act of 1974, 88 Stat. 633, Aug. 22, 1974, as amended by Public Law 98181, Supplemental Appropriations Act of 1984, 97 Stat.
1153, Nov. 30, 1984 codified at 42
U.S.C. 5304b2, Pub. L. 101625, Cranston-Gonzalez National Affordable Housing Act, 104 Stat. 4079 Nov. 28, 1990 codified at 42 U.S.C.
5306d7B, 12705b15; Pub. L. 105
276, Quality Housing and Work Responsibility Act of 1998, 112 Stat.
2461, Oct. 21, 1998 codified at 42
U.S.C. 42 1437C1d16. The certifications these laws require are designed to ensure compliance with a term that Congress necessarily understood to have the content given it by the courts and the agency tasked with overseeing compliance. See e.g., 42
U.S.C. 5304b2 requiring certification that the grantee will affirmatively further fair housing; 5306d7B
No amount may be distributed by any State or the Secretary under this
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