Affirmatively Furthering Fair Housing Through State Law – N.Y.U. Journal of Legislation & Public Policy

By Will Gomberg

February 21, 2024

Introduction

Residential segregation and housing discrimination in America are pervasive.¹ Despite the dire circumstances, federal fair housing advocates often play defense. Conservative policymakers and an empowered Supreme Court pose an increasingly potent threat to policies that seek to address the country’s history of race discrimination.² The theory of a “colorblind” constitution advanced in the Supreme Court’s 2023 term threatens equity not only in college admissions, but also in housing access.³

It was not always this way. In fact, the seminal Fair Housing Act (FHA) imposes an affirmative mandate on certain government actors to actively consider race and other protected characteristics while remedying the country’s legacy of housing discrimination.⁴ This is commonly known as the Affirmatively Furthering Fair Housing (AFFH) mandate.

The AFFH mandate is ambitious in scope and necessary to address the country’s violent history of residential segregation.⁵ However, AFFH has had an insignificant impact for most of its life. For decades, apathetic presidential administrations neglected to enforce the mandate.⁶ In 2015, the Obama administration promulgated a rule designed to revive the AFFH mandate (AFFH Rule).

The proposed AFFH Rule has ridden a rulemaking rollercoaster — the Trump administration rolled back the rule, but the Biden administration reinstated it. Though it is not yet finalized, the AFFH Rule’s stop-and-start revitalization has had two key impacts. First, it raised the AFFH mandate to notoriety for legislators and housing advocates nationwide. Second, it empowered state and local stakeholders to pick up the slack left by the federal government.

As a result, over the last five years, more states have enshrined AFFH obligations into state law. These mandates vary in age, scope, and enforceability. With so many new laws on the books — and such little case law — advocates, legislators, and impact litigators are working in real time to iterate and build better legal and legislative strategies.

This article supplements that effort, studying state AFFH laws to provide analysis and recommendations for local stakeholders committed to fulfilling the AFFH mandate. Part I describes the federal AFFH mandate and its enforcement and development over time. Part II traces state governments’ relationship to the AFFH mandate and their reaction to recent rulemaking. Part III provides a high-level summary of state AFFH laws, with a particular focus on how these laws have become more robust in recent years. Specifically, it presents California’s AFFH law as a model. Part IV offers recommendations for states looking to build on recent progress.

Part I: The Federal AFFH Mandate

A. FHA and AFFH

Approved on April 11, 1968, the FHA is among the most important pieces of federal civil rights legislation. Passed one week after Dr. Martin Luther King Jr.’s assassination, the FHA represented an ambitious attempt to address both de facto and de jure discrimination in America’s housing market.

Behind the FHA’s “broad remedial intent” is a two-pronged approach.⁷ First, and most well-known, is a “negative right” to be “free from discrimination.”⁸ This anti-discrimination prong identifies protected characteristics, outlines prohibited conduct, and empowers public-private enforcement.⁹

The second, more ambitious aim addresses the pernicious legacy of government-imposed segregation through an affirmative mandate. It requires the Secretary of the Department of Housing and Urban Development (“HUD”) and all executive departments and agencies to administer programs “in a matter affirmatively to further” the FHA’s goals.¹⁰ The intent of the AFFH mandate is “best understood as Congress’s acknowledgement of the government’s role as an architect of segregation.”¹¹ The mandate’s explicit, affirmative language and broad scope make the FHA “unique among civil rights laws.”¹²

B. Historical Enforcement Issues

Despite its ambitious goals, the AFFH mandate lay dormant for many years. Plagued by a bipartisan culture of non-compliance and confused by vague statutory text, the federal government rarely enforced the AFFH mandate for nearly five decades.¹³

In addition, courts have constrained private parties’ ability to enforce the AFFH mandate. Initially, plaintiffs found some success holding HUD accountable for avoiding its affirmative responsibilities, despite the lack of an explicit private right of action.¹⁴ However, a pair of First Circuit cases held that AFFH offered no private right of action, and enforcement must occur through the Administrative Procedures Act (APA).¹⁵ While not a death knell, this complicates enforcement of the mandate. For example, local governments, which not subject to the federal APA, nonetheless significantly impact the fair housing landscape. While courts initially allowed a right of action against states and localities under the civil rights enforcement statute, 42 U.S.C. § 1983, this option has been significantly narrowed over time.¹⁶ Undeterred, innovative litigators have sought to locally enforce the AFFH mandate in unique ways with varying success.¹⁷ Ultimately, private enforcement of the AFFH mandate remains an elusive yet critical goal.

C. Recent Rulemaking

In 2015, the Obama administration sought to resuscitate the AFFH mandate by adopting the AFFH Rule.¹⁸ The final rule acknowledged that HUD‘s approach was “not as effective as originally envisioned” and redoubled the agency’s efforts to address systemic residential segregation.¹⁹ Critically, the final AFFH Rule stated it “does not mandate specific outcomes for the planning process” but recognized the “importance of local decisionmaking.”²⁰ The most important changes focused on the Assessment of Fair Housing (“AFH”), a revised, highly structured reporting framework for HUD grantees to evaluate their fair housing data and goals.²¹ AFHs would require approval from HUD through an iterative process, putting an end to no-questions-asked self-certification.²² While HUD Secretary Julian Castro claimed withholding funds from jurisdictions who do not comply with AFH requirements was a “last resort,” returning this option to HUD’s toolbox was still critical. To be sure, the AFFH Rule was still deeply bureaucratic and far from perfect.²³ But its potential impact was deep, with one scholar calling it “arguably President Obama’s most significant race-focused policy change.”²⁴

Yet, the AFFH Rule was short-lived. The Trump administration undermined the transformative rule before gutting it altogether in 2020. Then, continuing the rulemaking whiplash, the Biden administration reinstated the 2015 AFFH Rule in 2021. The final rule is still pending. While the forthcoming, finalized rule inspires cautious optimism, the federal government has demonstrated only a shaky commitment to AFFH. As a result, Washington D.C.’s fitfulness has opened the door for state governments to take the lead on carrying out the AFFH mandate.

Part II: State Governments’ Relationship to AFFH

To a large extent, American housing policy is defined by deference to state and local governments. This includes fair housing law. On the negative rights front, many state and local governments have gone beyond the FHA in expanding the protections enshrined in fair housing law. Many also show an increased appetite for implementing desegregation policies in line with the FHA’s mandate.

States’ reactions to the AFFH mandate are not monolithic. Critics of the mandate argued it trampled local interests and imposed unreasonable administrative burdens.²⁵ However, other local authorities welcomed the renewed focus on fair housing and used the rulemaking process to rededicate themselves to creating more equitable communities. This article focuses on the latter group.

Those state and local government actors eager to fulfill the FHA’s AFFH mandate had varied reactions to the AFFH Rule. Some eagerly engaged with the new iterative AFH process to seek input from the federal government. Many jurisdictions went beyond their duties even when the Trump administration turned unresponsive.²⁶ Others used the Obama, Trump, and Biden Rules’ notice and comment processes to express their strong views.²⁷ Others still used their bully pulpits to call attention to ongoing fair housing issues: Local officials leveraged social media, Attorneys General published high-profile joint letters, and advocates uplifted the AFFH mandate.

Perhaps most importantly, state legislatures mobilized. Buoyed by a renewed nationwide focus on fair housing but dismayed by antipathy towards the AFFH Rule, they publicized their frustration. For example, New Jersey’s Senate passed a resolution lauding the 2015 AFFH Rule and expressing its “opposition to and disapproval of” the Trump administration’s reversal.²⁸ Some lawmakers went further by enshrining binding AFFH responsibilities into state law. Evaluating these state AFFH obligations is critical to building a more robust and enforceable fair housing infrastructure at all levels of government.

Part III: State AFFH Laws

State-level AFFH mandates vary in their age, scope, and enforceability. Broadly, these laws fall into three categories. First, many states have provisions that pre-date the renewed focus on AFFH. This older language is generally weak and underenforced. Second, more states have adopted AFFH language after recent federal inaction. These bills largely focus on reporting, without going beyond the federal AFFH. Finally, California has adopted AFFH language that is more robust than its federal counterpart. California’s law, enacted with an eye toward enforceability, should serve as a model for jurisdictions looking to fulfill the FHA’s full mandate.

A. Existing, Weak AFFH Language

Mirroring federal history, older state AFFH obligations are underenforced by agencies and shielded from private enforcement by the courts.

Connecticut’s AFFH obligations, while among the oldest nationwide, provide lessons for advocates in other states. Enacted in 1991, Section 8-37cc (b) states: “Each housing agency shall affirmatively promote fair housing choice and racial and economic integration in all programs administered or supervised by such housing agency.”²⁹ The accompanying bill, Public Act 91-362, required housing agencies to collect data, submit affirmative marketing plans, and report their progress around fair housing and integration initiatives.³⁰ Despite this seemingly strong language, many of the obligations were “minimized or removed from statute in later years” or “have not been carried out in as robust a manner as the statutory language envisioned.”³¹

The main culprit for this lack of enforcement was the 2006 Connecticut Supreme Court case Asylum Hill Problem Solving Revitalization Ass’n v. King.³² In Asylum Hill, the Court held there was no private right of action to enforce Section 8-37cc (b). It reasoned that the legislature’s decision to impose strong reporting requirements on the legislative and executive branches indicated a lack of intent to allow a private cause of action.³³ While describing the plaintiffs’ integrationist goals as “laudable”, the Court nonetheless insisted that “to the extent that the legislature has chosen not to demand compliance with the reporting requirements and thereby has failed to monitor the defendant’s efforts to promote integration, the plaintiffs’ remedy is political, not judicial.”³⁴ Foreclosing private judicial remedies has limited accountability for Connecticut’s housing agencies, blunting the state’s efforts to reduce segregation.

Other states’ AFFH language pre-dating the Obama era also lacks necessary bite. States such as Nebraska,³⁵ Louisiana,³⁶ and West Virginia³⁷ have affirmative obligations embedded in their fair housing laws. However, these provisions represent little more than aspirational filler given the lack of enforcement resulting from their inclusion. Still, as the focus on AFFH increases nationwide, impact litigators and advocates would be wise not to dismiss these provisions as a helpful (if untested) option in their toolbox.

B. New, Cautious AFFH Language

A handful of states have recently passed bills with AFFH language in response to the federal government’s indecisiveness. These bills are mainly intended to ensure state agencies’ AFFH obligations continue in the case of future federal rollbacks. Because these obligations are so new, their strength is untested. Digging into the legislative process reveals the difficulty in passing legislation that is simultaneously strong, politically palatable, and bureaucratically manageable.

Maine

Maine passed LD 1269 in 2021, which requires that “Maine State Housing Authority [“MaineHousing”] funding or any state or local funding is used in a manner that will affirmatively further fair housing in this State”.³⁸ It defines AFFH to mean “engag[ing] actively” to improve full and equal housing access. The bill also requires MaineHousing to share a report outlining how to meet these AFFH goals.³⁹ According to the bill’s sponsor, LD 1269 affirmed Maine’s commitment to equal housing access, “regardless of the whims of the federal government.”

Still, LD 1269 was designed for continuity, not transformation. The bill was intentionally “not a very heavy lift” for MaineHousing, which interpreted the bill merely as being an assurance to the Maine Legislature that the state will continue to measure and share progress toward fair housing goals, regardless of what happens on the Federal level. Despite its limited scope, questions remain. Unlike federal fair housing programs, which are siloed under HUD, state and local governments often enforce fair housing law through a kaleidoscope of agencies and commissions. This can result in buck-passing: In their required report, MaineHousing emphasized that enforcement should lie with the Maine Human Rights Commission, not their agency. It is also unclear what exact reporting standards Maine’s agencies will be held to. As a result, it is unknown if LD 1269 will hold Maine’s agencies to a consistent reporting standard or simply fall prey to the same pre-2015 no-questions-asked self-certification process.

Maryland

Maryland has followed a similar process to Maine. Encouragingly, the legislature passed a 2021 bill imposing substantial AFFH obligations on the state.⁴⁰ Among other things, the bill required the department in charge of housing and community development to “administer its programs and activities…to affirmatively further fair housing,” to “not take any action that is materially inconsistent with the obligation to affirmatively further fair housing,” and to issue consistent reports on their progress.⁴¹

Hearing testimony reveals the delicate back-and-forth between ambitious legislators and the state agencies tasked with carrying out their vision. In their testimony, the Maryland Department of Housing and Community Development cautioned against overburdensome reporting requirements that went beyond federal AFFH obligations. Because the Biden administration was still formulating its rule, the Department emphasized that “[i]t would be prudent to let the federal examination and recommendations play out, without creating a duplicative, perhaps overly burdensome, unfunded mandate that may not comply with the federal government’s ultimate determination.” Perhaps as a compromise, the bill was amended to lower the frequency of reporting from every one year to every five years.⁴² With the first report only due at the end of 2023 and Maryland’s executive branch in the hands of a new party, it remains to be seen whether these new requirements will make a dent in their AFFH efforts.⁴³

New York

New York’s AFFH law, passed in December 2021, is among the most clear-eyed about its purpose and specific in its prescriptions.⁴⁴ The bill provides that the Commissioner of the Department of Housing and Community Renewal and “all covered housing agencies shall administer all such programs and activities related to housing and community development in a manner that affirmatively furthers fair housing and shall cooperate with the commissioner to further such purpose.”⁴⁵ These actors must “take meaningful action” towards six enumerated fair housing goals and the Commissioner must submit regular reports on their progress.⁴⁶ The first draft report, issued in April 2023, emphasized the state’s commitment to AFFH as articulated in the FHA and parallel state law.

One issue looming over New York’s AFFH law –– and those of many other states –– is the question of judicial enforcement. The statute lacks an explicit enforcement mechanism. But this does not make it toothless: Some have persuasively argued the statute may be privately enforceable through either an implied right of action or a writ of mandamus under New York’s civil procedure law.⁴⁷ It remains to be seen whether courts find these arguments persuasive, or if New York’s AFFH law will be limited like its federal counterpart.⁴⁸

C. Going Further: California’s Approach

While consistent reporting obligations are a step in the right direction, they are arguably insufficient on their own. As a result, certain state legislators – most notably in California – are pushing the boundaries beyond the federal AFFH in innovative ways.

Section 8899.50

In 2018, California passed AB 686, which introduced AFFH obligations into state law.⁴⁹ As one writer put it, “AB 686 can be most easily described as having two main components: a generalized AFFH obligation, and a planning requirement that would become part of the existing Housing Element in local general plans mandated by state law.”⁵⁰ Regarding the generalized AFFH obligation, the newly enshrined Section 8899.50 requires the state, cities, counties, and public housing authorities to “administer its programs and activities relating to housing and community development in a manner to affirmatively further fair housing, and take no action that is materially inconsistent with its obligation to affirmatively further fair housing.”⁵¹ Because California’s law is not tied to specific state funding, it covers more entities than the federal law.⁵² Furthermore, the law explicitly requires that the AFFH obligation be interpreted consistently with the 2015 Obama-era AFFH Rule, regardless of any federal changes.⁵³ As for the planning requirement, the law expands California’s Housing Element planning process to include “an assessment of fair housing practices, an analysis of the relationship between available sites and areas of high or low resources, and concrete actions in the form of programs to affirmatively further fair housing.”

AB 686 is among the most ambitious ameliorative fair housing laws nationwide. The reaction among stakeholders was immediate. For example, land use attorneys and city planners reported that cities were reevaluating their Housing Elements to change zoning in historically affluent single-family areas to allow for more density, which improves economic mobility and equity.⁵⁴

To bolster the law, a 2021 bill amended Section 8899.50 further.⁵⁵ The changes strengthened local governmental analyses through additional tweaks to the Housing Element process. More importantly, the bill added a subsection to clarify that public agencies have a “mandatory duty” to comply with their AFFH obligations.⁵⁶ The amendment aimed to “clarify current law to ensure that there is no future confusion that the general AFFH duty is mandatory and enforceable in the courts.” In fact, the authors emphasized this was a direct response to a recent trial court case holding section 8899.50 did not provide a private right of action, which they stated “runs counter to the intent of the author and sponsor of AB 686.”

Judicial Enforcement

A 2023 California decision, Martinez v. City of Clovis, revealed the strength of California’s AFFH law after the 2021 revisions.⁵⁷ Desiree Martinez, a Clovis resident, sued the central California city alleging defects with its March 2019 housing element and related zoning ordinances.⁵⁸ She argued the City did not meet minimum density requirements and did not provide enough sites to accommodate the City’s affordable housing allocation, violating fair housing and housing elements laws.⁵⁹ The appellate court’s decision represented a big win for fair and affordable housing advocates on multiple fronts. The court was amenable to arguments based on the Housing Element Law⁶⁰ and disparate impact or segregative effect claims under the FHA⁶¹ and multiple state laws.⁶²

Most relevant to this Article, though, is the Court’s holding regarding California’s AFFH law. Because no California appellate court had interpreted section 8899.50 before, this represented a case of first impression.⁶³ As a baseline, the Court held that “the duty to affirmatively further fair housing is enforceable in court”⁶⁴ via an ordinary writ of mandate.⁶⁵ Though not surprising given the 2021 amendments, this holding was groundbreaking nonetheless. In addition, the court held that “the scope of section 8899.50’s AFFH duty goes beyond simply prohibiting a public agency from discriminating in its housing programs and zoning.”⁶⁶ In other words, rather than “simply repeating the prohibition against discrimination” contained elsewhere in state law, section 8899.50 also requires meaningful affirmative action.⁶⁷

Regarding the case at hand, the court held the City of Clovis violated their AFFH duties.⁶⁸ First, it stated that violations of the Housing Element Law’s site inventory and minimum density zoning requirements — which it found unlawful earlier in its decision — were per se violations of section 8899.50.⁶⁹ Second, it held that, “a practice with a discriminatory effect on persons of color or housing intended to be occupied by lower income households” also would per se violate the City‘s AFFH duty.⁷⁰ Because those alleged causes of action for discrimination were already remanded, so was this portion of Martinez’s AFFH claim.⁷¹ Finally, the court suggested that other potential violations of the City’s AFFH obligations that were not included in the plaintiff’s brief could give rise to a section 8899.50 claim.⁷² This signals that there may be acts or omissions would violate section 8899.50 that would not simultaneously violate other existing California laws, offering a new tool for impact litigators.

In sum, Martinez provided a roadmap to challenge local governments’ housing plans. Specific to California’s AFFH law, the Court set important precedent by holding that section 8899.50 was judicially enforceable. It emphasized that public agencies had an obligation to do more than not discriminate. And, it identified multiple examples of per se violative acts, while simultaneously opening the door for new theories of liability under AFFH law. In doing so, Martinez vindicated California’s AFFH bill as a model for peer states.

Part IV: Recommendations

State and local governments’ role in affirmatively furthering fair housing requires thoughtful, intentional, and ambitious action. States looking to implement new laws in the coming years should heed lessons from peer states.

First, states should craft AFFH laws that are mandatory and enforceable in court. Private enforcement of fair housing laws is critical to hold agencies and bad actors accountable. As scholars and advocates have persuasively described, providing an explicit and broadly defined right of action — along with allowing for the recovery of attorney’s fees — is critical to enforce the AFFH in practice.⁷³ California’s experience is illustrative. By clarifying that public agencies have a “mandatory duty” to comply with their AFFH obligations, California allowed for a clear private right of action under their AFFH law.⁷⁴ Other states have already taken notice. For example, Massachusetts considered a bill in 2021 that would have codified AFFH obligations independent of federal law, established a commission to define these obligations for each relevant public entity, and explicitly allowed for private enforcement.⁷⁵ Though this bill has yet to pass, its provisions provide a promising template.

Second, states should be explicit about what action public entities must take to meet their AFFH obligations. Of course, state-level disparate impact protections and other laws can be critical tools to promote fair housing. But AFFH laws can do more than merely mirror obligations codified elsewhere. States that provide explicit guidance — whether through a Massachusetts-style commission or otherwise — will reduce speculative litigation and help state entities meet their AFFH goals.

Third, states should continue advocating for federal action. Throughout the last three presidential administrations, states have flexed their political power to support a robust AFFH Rule. States know that excessive deference to local government poses issues.⁷⁶ Indeed, segregation does not stop at state lines. State AFFH laws can provide a backstop for federal indecision. But they can also represent a model for future federal action.

Conclusion

In Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., Justice Sotomayor offered a vigorous critique of the majority’s ahistorical edict banning affirmative action in college admissions. She stated, “At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”⁷⁷

AFFH presents an opposite path. It contains a unique admission by the government: that achieving housing equality requires the government to affirmatively act to redress past wrongs. In Justice Sotomayor’s words, it recognizes that race has always mattered and continues to matter in housing, and affirmative steps are necessary to achieve the worthy goal of housing equity.

In recent years, many states have taken this mandate to heart. This Article outlines how state governments have reacted to the federal AFFH mandate and implemented their own AFFH laws. Amidst federal uncertainty, states can continue to make progress toward building truly equitable and accessible communities via robust state AFFH laws.

Will Gomberg, J.D. Class of 2025, N.Y.U. School of Law.

Suggested Citation: Will Gomberg, Affirmatively Furthering Fair Housing Through State Law, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
See generally Richard Rothstein, The Color of Law (2019).
2
See Khiara M. Bridges, Race in the Roberts Court, 136 Harv. L. Rev. 23, 25 (2022).
3
See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181, 143 S. Ct. 2141, 2149 (2023).
4
See 42 U.S.C. §§ 3608(d), 3608(e)(5).
5
While outside the scope of this article, it should be acknowledged that the integrationist intent of the AFFH mandate is not universally embraced. For example, some critical theorists have offered critiques of integration as a sole avenue to address segregation. See, e.g., Gary Peller, Frontier of Legal Thought III: Race Consciousness, 1990 Duke L.J. 758, 761 (1990) (outlining the critiques of integrationist ideas developed by Black nationalists); Michelle Adams, Radical Integration, 94 Calif. L. Rev. 261, 268 (2006) (advancing a new theory to reconcile the goals of eradicating segregation and centering Black identity formation).
6
See infra, Part I.
7
Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982).
8
Ezra Rosser, Affirmatively Resisting, 50 Fla. St. U.L. Rev. 123, 136 (2022).
9
See, e.g., 42 U.S.C. § 3604.
10
42 U.S.C. §§ 3608(d), 3608(e)(5) (emphasis added).
11
Heather R. Abraham, Fair Housing’s Third Act: American Tragedy or Triumph?, 39 Yale L. & Pol’y Rev. 1, 14 (2020).
12
Heather R. Abraham, Segregation Autopilot: How the Government Perpetuates Segregation and How to Stop It, 107 Iowa L. Rev. 1963, 1971 (2022).
13
See Abraham, supra note 11 at 23-24 (outlining shortcomings of the AFFH mandate as currently constructed).
14
See, e.g., Shannon v. HUD, 436 F.2d 809, 821-22 (3d Cir. 1970) (holding that HUD needed to consider race while approving high density affordable housing built in a predominantly Black neighborhood); Clients’ Council v. Pierce, 711 F.2d 1406, 1408 (8th Cir. 1983) (similarly holding that “HUD officials abdicated their affirmative duty to eliminate the racially discriminatory practices,” thus violating the AFFH mandate).
15
See Latinos Unidos de Chelsea En Accion (LUCHA) v. Secretary of Hous. & Urban Dev., 799 F.2d 774, 793 (1st Cir. 1986) (”We therefore hold that a remedy against HUD for failure to comply with section 3608 (d) is available only pursuant to the APA.”); NAACP v. HUD,817 F.2d 149, 153-154 (1st Cir. 1987) (confirming that “no special circumstance exists in this case, or under Title VIII, that would call for other than APA review”).
16
See Andrew Darcy, Using State Law to Enforce Affirmatively Further Fair Housing Obligations: No Longer Fitting a Square Peg in a Round Hole, 29 Cardozo J. of Equal Rts. and Soc. Just. 593, 608-10 (tracing the history of private enforcement of the federal AFFH mandate); c.f. Michelle Ghaznavi Collins, Opening Doors to Fair Housing: Enforcing the Affirmatively Further Provision of theFair Housing Act Through 42 U.S.C. § 1983, 110 Colum. L. Rev. 2135, 2137 (2010) (arguing for the continued enforceability of the AFFH mandate through § 1983 despite purported setbacks).
17
See, e.g., United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester County, 668 F.Supp.2d 548 (S.D.N.Y. 2009) (successfully bringing a False Claims Act case against Westchester County regarding misrepresentations in their certifications to HUD relating to AFFH obligations); Tex. Low Income Hous. Info. Serv. v. Carson, 427 F. Supp. 3d 43, 59 (D.D.C. 2019) (unsuccessfully bringing a lawsuit against HUD for AFFH-related harm caused by local government).
18
Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272 (July 16, 2015) (codified at 24 C.F.R. § 5.150-5.180 (2015)).
19
Id. at 42,273.
20
Id.
21
Id. at 42,273-76.
22
See Heather R. Abraham, Fair Housing’s Third Act: American Tragedy or Triumph?, 39 Yale L. & Pol’y Rev. 1, 33 (2020).
23
See Noah M. Kazis, Fair Housing for a Non-Sexist City, 135 Harv. L. Rev. 1684, 1701 (2021) (critiquing the AFFH Rule for not accounting for inequity based on sex).
24
Ezra Rosser, Affirmatively Resisting, 50 Fla. St. U.L. Rev. 123, 133 (2022).
25
Id. at 123, 157.
26
Id. at. 161.
27
Id. at 152-161.
28
See S. Res. 76, 219th Leg., Reg. Sess. (N.J. 2020).
29
Conn. Gen. Stat. § 8-37cc (b) (2023).
30
1991 Conn. Pub. Acts 91-362, §§ 1, 4, and 5.
31
Open Communities Alliance, Is Connecticut Living Up to Its Fair Housing Promise? 1 (2017), https://d3n8a8pro7vhmx.cloudfront.net/opencommunitiesalliance/pages/281/attachments/original/1486675231/OCA_Data_Analysis_-_2017.pdf?1486675231.
32
277 Conn. 238 (2006).
33
Id. at 254 (“Such an enforcement mechanism entrusted to the other two branches of government counsels strongly against finding a legislative intent to provide for judicial enforcement of the directive through a private cause of action.”).
34
Id. at 259.
35
Neb. Rev. Stat. § 20-323 (2023).
36
La. Stat. Ann. § 51:2610(D)(5) (2023).
37
W. Va. Code § 5-11A-9 (2023).
38
2021 Me. Laws 1269.
39
Id.
40
Md. Code Ann., Hous. & Cmty. Dev. §§ 2-302, 2-402 (LexisNexis 2023).
41
Id.
42
Md. Code Ann., Hous. & Cmty. Dev. §§ 2-302 (LexisNexis 2023).
43
Id.
44
N.Y. Pub. Hous. Law § 600.
45
N.Y. Pub. Hous. Law § 600(2).
46
N.Y. Pub. Hous. Law § 600(3), (5).
47
See Andrew Darcy, Using State Law to Enforce Affirmatively Further Fair Housing Obligations: No Longer Fitting a Square Peg in a Round Hole, 29 Cardozo J. of Equal Rts. and Soc. Just. 593, 614-15.
48
See supra Part II.A for a discussion of federal private enforcement issues.
49
Assem. Bill 686, 2017-2018, Reg. Sess., ch. 958, 2018 Cal. Stat https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB686.
50
Renee M. Williams, Affirmatively Further Fair Housing: California’s Response to a Changing Federal Landscape, 28 J. Affordable Housing & Community Dev. L. 387, 392-393 (2019).
51
Cal. Gov’t Code § 8899.50(b)(1).
52
See Renee M. Williams, Affirmatively Further Fair Housing: California’s Response to a Changing Federal Landscape, 28 J. Affordable Housing & Community Dev. L. 387, 394 (2019).
53
Cal. Gov’t Code § 8899.50(c).
54
Bill Fulton, et al., New Pathways to Encourage Housing Production: A Review of California’s Recent Housing Legislation, Terner Center for Housing Innovation 5 (Apr. 2023), https://ternercenter.berkeley.edu/wp-content/uploads/2023/04/New-Pathways-to-Encourage-Housing-Production-Evaluating-Californias-Recent-Housing-Legislation-April-2023-Final-1.pdf.
55
Assem. Bill 1304, 2021-2022, Reg. Sess., ch. 357, 2021 Cal. Stat. https://leginfo.legislature.ca.gov/faces/billPdf.xhtml?bill_id=202120220AB1304&version=20210AB130494CH.
56
Id.;Cal. Gov’t Code § 8899.50(b)(2) (West 2023).
57
90 Cal. App. 5th 193 (Cal. Ct. App. 5th) petition for review and depublication request denied.
58
Id. at 219.
59
Id.
60
Id. at 251-52.
61
Id. at 268.
62
Id. at 273, 281.
63
Id. at 286.
64
Id. at 290.
65
In California, an ordinary writ of mandate can be used “to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station.” Cal. Civ. Proc. Code § 1085(a) (Deering 2023).
66
Martinez, 90 Cal. App.5th at 288.
67
Id. at 287.
68
Id. at 288.
69
Id. at 289.
70
Id.
71
Id.
72
See Id. at 289 n.38.
73
See Andrew Darcy, Using State Law to Enforce Affirmatively Further Fair Housing Obligations: No Longer Fitting a Square Peg in a Round Hole, 29 Cardozo J. of Equal Rts. and Soc. Just. 593, 617-19.
74
Cal. Gov’t Code § 8899.50(b)(2) (West 2023).
75
Mass. H.1441 § 2(b), 2021 Gen. Ct. (2021).
76
See Ezra Rosser, Affirmatively Resisting, 50 Fla. St. U.L. Rev. 123, 158 (2022)
77
Students for Fair Admissions, Inc., 600 U.S. 181, 143 S. Ct. 2141, 2149 at 2249 (Sotomayor, J., dissenting).