A Seat at the Table: Changing the Governing Structure of Low Income Housing Tax Credit Program Administration to Reflect Civil Rights Values and Fair Housing

Abstract

The Low Income Housing Tax Credit (“LIHTC”) program is the largest existing program for the development of low-income affordable rental housing in the country.  The program is administered by the United States Department of Treasury and the Office of Comptroller of the Currency (“OCC”), federal agencies by statute that have regulatory and supervisory authority over financial institutions.  However, while 42 U.S.C. § 3608(d) provides that federal agencies that have regulatory authority over financial institutions need to administer their programs in a manner that affirmatively furthers fair housing, part of Treasury’s policies under the LIHTC statute gives preference for affordable housing projects being developed in areas that are already predominantly minority and contain concentrated poverty.  Neither the Treasury nor the OCC have any regulations, guidance, reports, or audits that further fair housing by enforcing federal nondiscrimination policies or their legal duty to overcome patterns of racial segregation in housing.  This Note argues that Treasury and OCC should take a larger role in affirmatively furthering fair housing under the Fair Housing Act by reforming their governing structure and polices to reflect civil rights values.  Specifically, the Treasury should explicitly acknowledge the authority Title VI and the Fair Housing Act in their policies and regulations, establish a centralized, federal governing body to assure state housing finance agencies are in compliance with civil rights laws, and require state housing finance agencies (“HFA”) to establish governing bodies that are inclusive of the communities they serve.