NLIHC Joins Poverty and Race Research Action Council Letter Opposing Rescission of Affirmative Fair Housing Marketing Regulations 

By Kayla Blackwell, NLIHC Housing Policy Analyst and San Kwon, NLIHC Policy Intern  

NLIHC joined a comment letter led by the Poverty and Race Research Action Council (PRRAC) opposing the proposed rule to rescind the HUD Affirmative Fair Housing Marketing (AFHM) rule (see Memo, 6/9). HUD developed the AFHM rule not only to end discriminatory practices of segregation and racist policies, but also to take affirmative steps toward ensuring that federally assisted housing would not reproduce discriminatory patterns of the past. If finalized, the proposed rule to rescind AFHM regulations would be a major setback in building equitable and fair housing in federally assisted programs and would further contribute to the fair and affordable housing crisis.   

Developed by HUD following passage of the “Civil Rights Act of 1968” (specifically, Title VIII, or the “Fair Housing Act,” “FHA”), AFHM regulations require federally assisted owners to target advertising and outreach regarding their properties to populations that are “least likely to apply” amongst groups that are protected from discrimination by the FHA. This typically involves property owners identifying relevant demographic groups and targeting public advertising and outreach to those communities. The AFHM regulation does not dictate which tenants an owner must select for a unit, nor does it prohibit landlords from advertising their properties through other means that reach different populations.   

The PRRAC-led comment letter argues that the proposed AFHM rule is arbitrary, capricious, and inconsistent with HUD's statutory duty under the FHA to affirmatively further fair housing (AFFH). The letter points out that HUD’s proposed rule completely fails the “arbitrary and capricious” standard by failing to provide reasoned analysis and good reasons for the new policy and its departure from prior policy and by failing to address factual findings that contradict prior policy.  

HUD asserts that AFHM regulations reinforce racial stereotypes and are unconstitutional under the Supreme Court’s 2023 decision on affirmative action (Students for Fair Admissions v. Harvard). The letter strongly rebuts this claim, arguing that it “grossly misrepresents the nature and purpose of affirmative marketing.” The letter states, “HUD's claim that the AFHMP [Affirmative Fair Housing Marketing Plan] regulations require favoring some racial groups over others for outreach ignores that outreach and tenant selection are distinct and the fact that targeted marketing efforts are necessary to reach groups historically excluded or unaware of opportunities in certain markets.” The letter emphasizes that AFHM rules are fundamentally a race-neutral strategy informed by an analysis of racial demographic data, making it distinct in nature from race-conscious policies like affirmative action.  

Additionally, the letter also points out that existing AFHM requirements do not pose any significant administrative burden on federally assisted property owners. HUD-assisted property owners have developed efficient systems for complying with AFHM requirements with minimal burden. Since being enacted in the 1970s, HUD’s affirmative marketing requirements have never been challenged in court.   

If finalized, the proposed AFHM rule would take HUD decades back in civil rights progress. This would be especially ruinous given that since the passing of the Fair Housing Act in 1968, HUD’s efforts for fair housing have fallen far short of what is needed. Neighborhoods today are more racially segregated than they were 100 years ago, and Black homeownership has remained virtually unchanged for 50 years.  

“At a time when housing affordability and racial justice are central concerns for millions in the United States, we urge HUD to move in the direction of progress, not retrenchment. The existing AFHMP rules are more than a regulatory requirement; they are a manifestation of HUD’s obligation to dismantle discriminatory barriers to housing. Their rescission would represent a significant step backward in the United States of America’s ongoing struggle for racial, economic, and housing justice. We strongly call on HUD to uphold its duty to fair housing by not finalizing the rescission of the AFHMP rules,” writes the authors of the letter.  

Read PRRAC’s letter here.  

Read PRRAC’s helpful two-page paper, “What You Need to Know about the Trump Administration’s Attack on Affirmative Marketing,” here.  

Read HUD’s proposed rule here.