By Ed Gramlich, Senior Advisor
As anticipated (see Memo, 4/21), a proposed rule to rescind HUD’s Affirmative Fair Housing Marketing regulations was published in the Federal Register on June 3. This is yet one more attack on fair housing by the Trump Administration, along with its termination of the Affirmatively Furthering Fair Housing rule and replacing it with a meaningless Interim Final Rule (see Memo, 3/3). Instead of the usual 60-day public review and comment period for the proposed recission, HUD is only allowing 30 days; comments are due July 3.
The obligation to affirmatively market housing in a way that complies with federal fair housing laws applies to housing insured by the Federal Housing Administration (FHA), assisted with HUD’s Multifamily Assistance programs, and other HUD-subsidized housing, such as the HOME and national Housing Trust Fund programs. This obligation, which dates to the 1970s, applies to jurisdictions, subrecipients, and project owners. These entities must design and employ marketing plans and/or submit HUD-designed forms that promote fair housing by ensuring outreach to all potentially eligible households, especially those least likely to apply for assistance. This is especially important if a development is located in a low-poverty area.
Affirmative marketing consists of actions to provide information and otherwise attract eligible people to available housing without regard to race, color, national origin, sex, familial status (persons with children under 18 years of age, including pregnant women), disability, or religion. These are the “protected classes” spelled out in Title VIII of the “Civil Rights Act of 1968” as amended (also known as the “Fair Housing Act”). As reflected in the affirmative marketing regulations, a marketing program typically involves publicizing the availability of federally assisted housing opportunities to people in any of the protected classes through the type of media they might customarily use. This might include minority-oriented publications, minority-oriented radio or television stations, or other minority-oriented media in a federally assisted housing development in the housing market area.
The Affirmative Fair Housing Marketing regulations do not require a property owner to rent to a household on the basis of race or any of the other protected classes.
The proposed rule lists six “reasons” for removing the affirmative marketing regulation. Several themes are peppered among the six “reasons.” One of the themes centers on the Fair Housing Act’s prohibition of various forms of explicit housing discrimination based on the protected classes.
- “HUD’s rule making authority is cabined to those rules necessary to prevent discrimination…The Affirmative Fair Housing Marketing [AFHM] regulations are not about preventing discrimination; rather, they require applicants to affirmatively attract minority persons and do so through ‘minority publications or other minority outlets’…Again, the Fair Housing Act and Executive Order 11063 [signed by President John F. Kennedy on November 20, 1962] are aimed at discrimination against persons because of race, not information disparities.”
- “It is the policy of the Department to prevent discrimination, not to equalize statistical outcomes; however, AFHM regulations are based on an assumption that equal outcomes are what matter…, but the objective of the Fair Housing Act is to eliminate discrimination. The [regulatorily required] AFHM plans are aimed at increasing the number of minority tenants in FHA-assisted housing, not simply eliminating discrimination.”
What the proposed recission fails to acknowledge is another section of the Fair Housing Act, the “Affirmatively Furthering Fair Housing” obligation. That section calls on all executive departments and agencies to administer their programs and activities relating to housing and urban development (including any federal agency with regulatory or supervisory authority over financial institutions) in a “manner affirmatively to further the purposes of [the Act]. More specifically, the Fair Housing Act requires the HUD Secretary to “administer [its] programs and activities relating to housing and urban development in a manner affirmatively to further the policies and priorities [of the Fair Housing Act].”
In other words, the Fair Housing Act not only prohibits housing discrimination, it also requires HUD (and any other federal agency), as well as recipients of any federal housing and urban development assistance, to take meaningful actions to overcome historic patterns of segregation (often fostered by past federal policy and programs) and to promote fair housing choice.
Another theme misinterprets the aim of the Affirmative Fair Housing Marketing regulations to lead to or even require racial quotas.
- “Far from supporting race-neutral and purely prohibitory requirements of the Fair Housing Act, the AFHM regulations require private parties to sort individuals by race and engage in outreach based on race.”
- “The AFHM regulations also require applicants to favor some racial groups over others, without a compelling interest.”
- “…it is the policy of the Department not to require applicants to engage in racial sorting. HUD should encourage applicants to be color-blind, as it is always immoral to treat some racial groups differently than others.”
HUD asserts that failing to provide outreach to minority groups is not “discrimination,” yet the AFHM regulations “punish” noncompliance with denial of further participation in HUD programs and even referral to the Department of Justice for legal relief. However, money damages or civil monetary penalties are not at play, according to Thomas Silverstein at the Policy & Race Research Action Council (PRRAC). In addition, HUD claims (without facts or data) that that the AFHM regulations place an economic burden on “innocent” private actors, yet as Thomas Silverstein notes, HUD-subsidized landlords have developed systems and policies for complying with affirmative marketing regulations over the decades that the regulations have been in place; consequently, compliance is not especially burdensome. HUD also asserts, “It is inappropriate for HUD to require applicants without payment to do this outreach,” ignoring the financial benefit of advertising in order to quickly achieve lease up for new developments and to fill vacancies as rapidly as possible in subsequent years. Finally, HUD defends a short, 30-day public review and comment period (instead of the standard 60-day period), stating that all of the above is so egregious that something must be done “as expeditiously as possible.”
The Poverty & Race Research Action Council (PRRAC) has a helpful two-page paper, “What You Need to Know about the Trump Administration’s Attack on Affirmative Marketing,” available here.
Read the proposed rule at: https://tinyurl.com/27bmrs7a