The health justice framework sets forth the importance of understanding structural elements in health disparities that exist within communities of color and other marginalized populations.Reference Benfer1 Health justice expounds the necessity of regulation in integrating solutions to economic, social and environmental factors that create adverse health outcomes for socially disadvantaged people.2 The framework asserts that laws and policies must be implemented to increase the capacity of individuals so that they may achieve optimal health outcomes.3 The health justice framework sets forth the following four categories of solutions: 1) developing primary prevention policies; 2) prohibiting, amending, or repealing laws adversely affecting health; 3) ending discrimination and racial bias; and 4) listening to, engaging, and developing affected communities.4
This paper expands upon these solutions by advocating for intra-government data sharing solutions between local housing and education agencies that will assist in efforts to mitigate health disparities. To develop primary prevention policies to remediate health stressors (for example, asbestosis and mold in substandard housing) policymakers and regulators need better information about the existence of such hazards and reports of illnesses in residential buildings and schools.5 Planning living spaces, deciding on school locations and programs and providing support for funding requests to further housing, education and economic goals would be more effective if agencies work across sectors to share data on progress toward fair housing.6 Sharing data provides information as basic as understanding the population overlap between low-income neighborhoods and schools. This data can serve as the basis for financial support to address behavioral and academic challenges in housing units. Partnerships between housing and education agencies can permit the housing agencies identifying educational challenges and providing a justification for offering academic support services in low-income communities and to those in public housing or who use public housing vouchers.7 If data is shared between housing and education agencies, then such services can be implemented earlier.8 For example, if school districts provide local housing agencies information on graduation rates, test scores and other measures of academic success, together with information on the services needed to optimize educational achievement, housing agencies would be able to leverage this data when planning housing units that are financed using government funds. 9 Providing evidence-based reasons for building housing units that accommodate such support services aligns with developing primary prevention policies to achieve health justice, rather than attempting to retroactively implement educational services in housing units that were not initially designed for this purpose. Housing agencies and education agencies both provide resources that are necessary for economic mobility.10 If housing agencies had academic achievement data, they could also plan structures that would support infusing education initiatives into children’s lives prior to attending school. Providing early education at home will increase the chances of academic success and also assist with funding housing structures that are inclusive of support services. 11 The purpose of introducing the data sharing component is to support the health justice framework and to introduce an efficient method of understanding the magnitude of health disparities so the appropriate laws and policies can be enacted to counter discriminatory structural systems.
I. An Overview of Fair Housing and Housing Discrimination
Throughout the 19th and 20th centuries the federal government and private lending institutions promoted and constructed policies and practices that created segregated living patterns. The US government removed Native Americans from their homelands, restricted access to federally backed mortgages based on race, and even demolished whole neighborhoods for infrastructure projects that would primarily benefit white citizens. Private housing developers also used racially restrictive covenants and restricted access to housing opportunities for communities for communities of color.12 The affirmatively furthering clause of the Fair Housing Act of 1968 (the “FHA”) was implemented in large part to eradicate the racial segregation that is attributed to government policies and practices.13
When Congress enacted the Fair Housing Act in 1968, they recognized that the federal government had a responsibility to not only prohibit discriminative practices in the housing sector, but also to “affirmatively further” fair housing — to promote integration and increased access to housing.14 Section 3608 of the FHA requires “all executive departments and agencies [to] administer their programs and activities relating to housing and urban development (including any federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of the [FHA].15 It can be exceedingly difficult to find reasonably priced housing and accommodations in areas with good schools, good jobs, and public transit.16 In addition, it can be even more difficult when individuals of color are seeking affordable housing.17 Many of the disparities we see today are the result of years of policies and laws that entrench patterns of segregation and discrimination.18 The purpose of the FHA was to alleviate some of the issues that were caused by these policies and laws.19 The Fair Housing Act of 1968 was enacted in response to the rise of racism and the demand for civil rights, and was designed specifically to “provide, within constitutional limitations, for fair housing throughout the United States.”20
The HUD Secretary administers the FHA pursuant to Section 3608(d) of the Act and determines the scope of this clause.21
II. Rulemaking by the Office of Housing and Urban Development and Fair Housing
Prior to 2015, HUD responded to housing discrimination by enforcing the FHA; however, there was no proactive plan in place to ensure equality in fair housing. HUD did little to define and describe the statute’s requirement to “affirmatively further” fair housing. The FHA has been interpreted to require Fund Recipients to consider barriers to fair housing, mitigate segregation and increase integration. HUD required participants to submit an analysis of impediments to fair housing (“AI”), but there was no requirement to submit the AI to HUD for HUD or for HUD to review the AI in its entirety.22 HUD made suggestions — not requirements — as to what should be included in the AI. HUD suggested that the report contain general data such as descriptions of fair housing lawsuits and complaint, use of housing vouchers, zoning and land use policies and other housing policies. The Fund Recipients were responsible for collecting and analyzing the data for their AI. Upon the completion of the AI, the grantees had to certify in writing that their housing programs affirmatively further fair housing and the agencies are required to submit this certification to the federal government together with a summary of the AI, but the entire AI report was neither received not reviewed by HUD. The lack of guidance and oversight were reasons that the Government Accountability Office prepared a report in 2010 which explained why the AI is insufficient and ineffective. 23
In 2013, HUD began the official rulemaking process to develop a more robust framework for the obligation to affirmatively further fair housing, resulting in a final rule that went into effect in 2015 (the “2015 Rule”).24 HUD created the 2015 Rule to clarify and expand the requirement of Fund Recipients under Section 3608 of the FHA by, among other things, replacing the AI with the Assessment of Fair Housing. 25 The 2015 Rule required Fund Recipients to implement specific policies and actions to combat and overcome patterns of segregation and to promote inclusive communities.26 Fund recipients were required to affirmatively provide increased and equal access to housing for individuals in protected classes such as race, color, national origin, religion, sex, familial status, and disability. The 2015 Rule mandated that HUD to provide neighborhood demographics, patterns of integration, segregation statistics, and the race and ethnicity of individuals living in impoverished areas to recipients of HUD funds.27 The Fund Recipients would then use this data to create plans to affirmatively further fair housing and achieve fair housing benchmarks.28 This information was to be sent to HUD as an Assessment of Fair Housing (the “AFH”), which HUD would critique before approving the AFH and utilizing it for government planning purposes related to housing development and land use.29 The 2015 Rule changes the previous process in numerous ways including: 1) providing data for recipients to use in the AFH, 2) adopting the AFH to replace AI, 3) providing more direction on the use and purpose of AFH, 4) providing a more inclusive role for HUD in reviewing the analysis and plan of the Fund Recipients, and 5) stating that HUD will provide data and resources to fund recipients. Data collection under the 2015 Rule is in the areas of: 1) neighborhood school proficiency, 2) poverty, 3) labor market engagement, 4) job accessibility, 5) health hazard exposure, and 6) transit access. The data is meant to be used by the Fund Recipient to conduct the AFH.30 The Fund Recipients must evaluate the data for, among other things, noting and evaluating neighborhood disparities, segregation, and integration. The final AFH is required to be reviewed by HUD, and if it is not approved and accepted by the agency, funds are not disbursed.
The 2015 Rule effectively provides participants in the HUD program with an approach to incorporate processes to affirmatively further the purposes and policies of the Fair Housing Act. The goals of the 2015 Rule were to: 1) reduce segregation, 2) eliminate racially and ethnically concentrated areas of poverty, 3) narrow the gaps that result in protected classes experiencing severe housing problems and 4) reduce disparities in access to critical neighborhood assets.31 A significant method to achieving this goal is to provide equitable access to neighborhood assets such as employment, transportation, schools and green space.32 As discussed above, since the enactment of the Fair Housing Act, HUD has been tasked with providing participants with local and regional element of the 2015 Rule is that the data provided by HUD will make program participants better able to evaluate their individual situation and accurately assess fair housing issues and establish adequate fair housing priorities and goals.33 This includes data on integrated and segregated living patterns, concentrated areas of poverty, the location of public housing, and disproportionate housing needs.34 The 2015 Rule received comments on the benefits of an expansive data collection with some emphasizing that federal agencies outside of HUD should contribute information to promote a comprehensive understanding of housing situations.35
The Trump administration harshly criticized the 2015 Rule, claiming that it will “destroy the suburbs,” and is, “not fair to homeowners.”36 The administration criticized the broad scope of the 2015 Rule.37 They argue that the definition of “affirmatively further” in the 2015 Rule means to take any action rationally related to promoting any attribute of fair housing.38 Others in the Republican Party criticize the rule for reducing local control over zoning, and Secretary Ben Carson called the Rule a “social engineering” policy.39 Therefore, the Trump administration ceased implementing the 2015 Rule. The Trump administration enacted, without a notice and comment period, the Preserving Community and Neighborhood Choice Rule in 2020 (“PCNC”) which not only repealed the 2015 Rule, but also redefined “fair housing” to include number of factors such as low cost, and safe, without referencing or requiring jurisdictions to reduce segregation or to otherwise act pursuant to the meaning and purpose of the FHA.40
On July 31, 2021, HUD, under the Biden Administration, put into effect the “Restoring Affirmatively Furthering Fair Housing Definitions and Certifications” (the “IFR”), which repeals the 2020 PCNC and reinstates and updates some of the requirements of the 2015 Rule.41 HUD’s IFR requires all jurisdictions receiving HUD funds to submit certifications explaining how and in what ways the participant will affirmatively further fair housing.42 However, the Interim Final Rule does not require recipients to follow a specific plan to further fair housing. In contrast, the IFR was made to provide resources and to assist program participants in implementing fair housing policies.43
Segregation remains a defining factor of neighborhoods in this country, and segregation has a negative correlation to equities in employment, health, education, and other areas that are integral to one’s quality of life. There are more than 14 million people who live in impoverished areas in the United States, and there are 4,000 high poverty neighborhoods. Black people are more likely to live in very low-income households.
HUD solicited public comments on the IFR in anticipation of publishing a new Affirmatively Furthering Further Housing Rule (the “Final Rule”), which repeals the 2020 PCNC, reinstates and updates some of the requirements of the 2015 Rule, and omits some of the details and processes regarding data collection that are included in the 2015 Rule.44 Several housing and civil rights advocacy organizations commented to provide their support for the IFR.45 These organizations urged HUD to revisit is the IFR’s certification requirements.46 This comment underscored the need for HUD to mandate that Fund Recipients confirm that they have an action plan in place that is designed to affirmatively further fair housing, and that this plan is based on relevant analysis and public input.47 The second point of interest in this comment is the organizations’ suggestion that HUD analyzes how assist with efficient coordination efforts among public housing agencies and other entities.48 This following section of this article concurs with the spirit of the comments but expands upon the critique to set forth best practices to optimize data analysis requirements.
III. Data Sharing for Health Justice
The Final Rule should specifically require Fund Recipients to develop a data sharing plan with local education agencies to comprehensively understand and mitigate the effects of segregation outside of residential factors. Currently, there are no such data sharing requirements. The data sharing that does take place voluntarily between these types of entities flows from education agencies to housing agencies and they are focused on education goals.49 There is also an opportunity to achieve housing and anti-segregation goals to affirmatively further fair housing. School districts usually do not involve housing agencies in decisions regarding where to build schools, attendance zone, transportation, schools closing, or other areas that are directly related to the student’s physical environment, which of course their home is also a part.50 Beyond the educational resources they provide, schools are physical assets to neighborhoods and can serve as community spaces to discuss social and political topics, and facilitate sports, voting and other extracurricular activities. 51 Neighborhood development and planning should be inclusive of school location and use plans. The data can be used to plan new housing, infrastructure and greenways that compliment extracurricular activities and allow for various modes of transportation to school.
Segregation remains a defining factor of neighborhoods in this country, and segregation has a negative correlation to equities in employment, health, education, and other areas that are integral to one’s quality of life. There are more than 14 million people who live in impoverished areas in the United States, and there are 4,000 high poverty neighborhoods.52 Black people are more likely to live in very low-income households.53 Children are at an especially risk of being exposed to deadly chemicals and suffering from asthma, violence, and toxic stress, all while likely attending a school that does not have sufficient resources to support them in reaching the academic achievement level of their higher-income peers.54
Housing has been touted as a foundation to address the interdisciplinary nature of such disparities; therefore, the Final Rule should specifically require a plan that reflects this important role that housing plays in alleviating socioeconomic determinants that lead that negatively impact communities of color at disproportionately high rates. One of the many examples is the fact that involuntary residential moves adversely impact children’s education, and these type of moves are most common in households where incomes are below the poverty line.55 Frequent moves impact students who remain in their classrooms because attention and resources must be devoted to the mobile students.56
Although the data sharing arrangements that currently exist between local housing and education agencies typically only bolster education goals, rather than housing goals, these arrangements are helpful in supporting the expansion to housing goals. Guidelines for drafting and implementing the data sharing process via memorandum of understanding and technology platforms exist, and there are basic models that show how the data sharing results in specific programs.57 There are examples of programs based on the integration of housing and education facilities and data. The Boston Housing Authority works with the city public schools to deliver educational resources to children living in public housing and using housing vouchers.58 Data is collected from school and housing authorities to develop this program and the evaluations of the program showed that over 75% of the child participants improved literacy and emotional growth.59 The stated purpose is to, “[strengthen] the educational outcomes of students living in public housing and in Housing Choice Voucher (HCV) units.” 60 This underpins the relationship between housing and education in that they are both necessary for economic mobility, the physical structures required for both affect the health of a neighborhood, and systemic and historic racism inherent in both housing and education negatively affect health outcomes.61
HUD’s Data-Sharing Roadmap62 and case studies conducted by HUD, the Urban Institute, and their partners63 provide support and guidelines for data sharing between housing and education agencies. The case studies reviewed efforts in Akron, OH; New Haven, Connecticut and Vancouver, Washington to create and promote relationships between housing and education agencies.64 The underlying premise of these relationships is that the combination of resources from both agencies results in a collective impact that address social problems related to the adverse effects the poverty and housing instability have on children’s education.65 Akron developed an education center that is owned by the city’s housing authority and its public school system.66 New Haven provided at-home educational services for youth residents of its assisted housing units.67 Vancouver implemented initiatives to improve absenteeism rates and instability via after school programs and increased access to early childhood education.68 The cities reported success with their endeavors and attributed the favorable outcomes to the partnership between their housing and education agencies.69 In all three cases, these youth subjects were limited to those living in public housing, or in housing that is subsidized with housing choice vouchers.70 The Final Rule provides an opportunity to expand the success to housing units that are in high poverty neighborhoods but are not subsidized or public. An important part of the housing and education partnerships is data sharing between the agencies.71 These entities can better understand the interrelated elements of both contexts and analyze how achievements in one area affect the other. However, since this data is subject to privacy laws, the protocol from federal agencies how to share this confidential student information is a helpful part of ensuring that the bureaucracy does not discourage data and the sensitive material is not misused.
HUD issued its Data-Sharing Roadmap to describe key education data points, the details of forming a housing-education partnership, and best practices for evaluating and monitoring the outcomes for the relationship.72 Integrating this roadmap within the Final Rule will enhance the effectiveness of this roadmap because housing indicators that are analyzed by the HUD grantees can also be shared with education agencies. Currently, the information sharing is focused on school districts providing data points related to enrollment, discipline, academic progress, graduation and attendance to housing agencies in order to for public housing buildings to implement changes to support educational achievement.73
Under the Final Rule, additional data related to segregation, housing development and environmental conditions can be evaluated and provided to school districts. This data will be pertinent to a wider variety of students, as it is not limited to those residing public housing. Furthermore, this data will assist with increasing the effectiveness of schools as a neighborhood asset by assessing programs and policies that can take place in the educational context to support integration and fair housing initiatives.
Participants, armed with knowledge and data, can take the actions necessary to ensure that they are actively attempting to further fair housing in the United States. For decades, HUD has created programs and plans that have furthered segregation and discrimination. This rule is a way for HUD and its participants to undo some of the damage that has been caused by this government agency.74 However, HUD must unequivocally assert that grantees take meaningful action to affirmatively further fair housing pursuant to, among other thigs, “improving community assets such as quality schools, employment and transportation.” The reinstatement of the language from the Rule illustrates that the certification requirements are to be interdisciplinary and measurable.
Note
The author has no conflicts of interest to disclose.
