HUD Seeks to Eliminate Affirmative Fair Housing Marketing Rules

The Department of Housing and Urban Development recently proposed repealing decades-old regulations that require federally supported housing providers to actively market to underserved communities. First established in the 1970s, these Affirmative Fair Housing Marketing (AFHM) regulations were designed to ensure that families and individuals who had historically been excluded from housing would learn about and have access to affordable housing opportunities. 

HUD’s proposal, published in the Federal Register on June 3, would roll back these obligations, with the agency stating that its new direction prioritizes a race-neutral, deregulated approach. These AFHM regulations apply to a broad range of HUD-assisted housing programs. The rules cover properties financed or assisted through Federal Housing Administration (FHA) insurance, project-based Section 8 contracts, Section 202 and Section 811 capital advances, the HOME Investment Partnerships Program, and the National Housing Trust Fund, among others.

Current AFHM Requirements

Before advertising new or vacant units, owners must submit an AFHM plan to HUD that describes the outreach channels they will use. The plans outline specific outreach strategies designed to inform populations “least likely to apply.” These strategies typically include advertising through minority-owned media, distributing materials in multiple languages, and conducting regional outreach that extends beyond the immediate neighborhood. 

These requirements are intended to go beyond merely prohibiting discrimination. They were designed to counteract the legacy of residential segregation and ensure federally assisted housing is equally accessible, regardless of race, ethnicity, disability, family status, or other protected characteristics.

Owners are required to submit notice 90 days before launching their marketing efforts, and HUD reviews the materials to ensure compliance. Plans must be publicly available, and failure to comply can lead to administrative sanctions or referral to the Department of Justice. These practices have long been considered integral to HUD’s legal obligations under the Fair Housing Act and Executive Order 11063, both of which aim not just to prohibit discrimination, but to affirmatively further fair housing. Failure to comply can trigger administrative sanctions, including loss of HUD funding or referral to the Department of Justice for enforcement.

What the Proposal Would Do

HUD’s proposed rule would eliminate the requirement to submit marketing plans and the corresponding compliance oversight procedures. It would also do away with any obligation to tailor advertising in ways that target populations historically excluded from housing opportunities. According to HUD’s own estimate, this change would relieve housing providers of more than 12,000 hours of administrative work annually.

Instead of requiring affirmative outreach, HUD states that owners must simply avoid discriminatory practices in their advertising, tenant screening, and leasing procedures. HUD emphasizes that it will continue to investigate fair housing complaints and take enforcement action when there’s evidence of unlawful conduct, but it no longer believes that proactive marketing requirements are a justified or lawful tool for that mission.

HUD Justifications

The proposed rescission rests on a combination of legal, constitutional, policy, and practical arguments. In the proposed rule, HUD offers six justifications for eliminating the AFHM rules.

Scope of authority. The agency argues that the current rules exceed the scope of its statutory authority under the Fair Housing Act, which it interprets as prohibiting discrimination but not mandating proactive outreach based on race or other protected characteristics. 

Constitutionality. HUD also raises constitutional concerns, pointing to recent Supreme Court decisions that cast doubt on the legality of any government action that involves race-conscious classification. HUD asserts that the AFHM rules compel owners and developers to sort people by race and engage in differential treatment without a compelling government interest. The agency considers such practices “immoral,” even when intended to address past exclusion, and expresses a policy preference for race-neutral treatment of applicants. 

Legislative authority. HUD also suggests that if Congress had intended to authorize such broad mandates, it would have done so explicitly. In the absence of a clear “intelligible principle” guiding such obligations, HUD believes that the AFHM rules stretch the statute beyond permissible limits under Article I of the Constitution.

HUD’s color-blind policy. HUD says it is the policy of the agency to not require owners to engage in racial sorting. HUD is embracing a color-blind approach, asserting that treating all applicants the same without regard to race is the more ethical, constitutionally sound, and administratively appropriate standard. 

Decreasing burdens. HUD says another policy of the agency is to not burden applicants unless they have engaged in discrimination. The agency acknowledges that the AFHM outreach requirements may have positive effects, such as helping underrepresented groups learn about housing opportunities, but it argues that it’s unfair to impose those costs on owners who have done nothing wrong. 

Equalizing outcomes. HUD states that its role is to stop unlawful discrimination and not to engineer specific demographic results in housing. The agency argues that the AFHM regulations go beyond this mission by focusing on increasing minority resident representation, which implies a goal of equalizing outcomes rather than ensuring equal treatment.

What Comes Next

HUD is accepting public comment on the proposed rule through July 3. Interested persons may submit comments electronically through the Federal eRulemaking Portal at www.regulations.gov or by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500.

The agency shortened the standard 60-day comment period to 30 days, arguing that stakeholders are already familiar with the longstanding rule and that swift action is warranted given the legal and constitutional issues raised. If finalized, the proposed rule would mark a significant rollback of federal civil rights enforcement in the housing sector. It would shift HUD’s role away from proactive desegregation and toward a narrower model of complaint-based enforcement. Without the requirement to submit marketing plans or conduct targeted outreach, owners will have broader discretion in how they advertise affordable units. 

It’s important to note, however, that owners will still be required to comply with the Fair Housing Act, which prohibits discriminatory practices in housing-related activities. HUD’s burden of enforcement would shift toward investigating individual complaints rather than requiring upfront marketing plans. Owners may need to reassess their marketing practices to ensure they remain nondiscriminatory without relying on HUD-approved templates or affirmative outreach standards.