Protecting HUD’s affirmative marketing requirements: On April 9, 2025, the U.S. Department of Housing and Urban Development (HUD) sent a notice of proposed rulemaking that – if finalized – would rescind HUD’s affirmative marketing requirements to the Office of Management and Budget (OMB) for pre-publication review. On May 5, members of the PRRAC team will be meeting with OMB staff to explain why HUD’s existing regulations are critical to ensuring that the Department complies with its statutory civil rights obligations and administers its programs in a manner that fosters the development of integrated, inclusive communities. For decades, HUD’s affirmative marketing regulations have required operators of covered HUD-subsidized housing to conduct proactive outreach to the communities identified as the “least likely to apply” through an analysis of demographic data. Without this kind of outreach, word-of-mouth networks often function to ensure that the demographics of HUD-assisted properties mirror the demographics of the neighborhoods in which they are located thereby undermining the desegregative potential of federal affordable housing investments when that housing is located in predominantly white neighborhoods. HUD originally promulgated its affirmative marketing regulations in part to ensure its own compliance with the affirmatively furthering fair housing (AFFH) mandate of the Fair Housing Act, and, if the Department follows through on its threat to repeal its rules, it will have abdicated its statutorily-mandated responsibility.
The lawless attack on the disparate impact standard: On April 23, 2025, the White House issued an executive order deceptively titled “Restoring Equality of Opportunity and Meritocracy.” The executive order took aim at the disparate impact standard of proof provided for by some of the United States’ legacy civil rights statutes and their implementing regulations. Under the disparate impact standard, if a policy harms members of one protected group much more than others and if there is no good reason for the policy, it violates the law. The executive order directs federal agencies to repeal the disparate impact regulations that they currently have on the books regarding Title VI of the Civil Rights Act of 1964, which prohibits discrimination in programs and activities that receive federal financial assistance. It also directs the agencies responsible for enforcing certain other statutes – including the Fair Housing Act – to take unspecified actions consistent with the order, which could include the repeal of existing rules and steps to vacate current voluntary compliance agreements and consent decrees, among other actions. This attack is doubly unwarranted. First, it is flatly inconsistent with the law: Congress explicitly has explicitly written the disparate impact standard into some statutes, and the Supreme Court (unanimously in at least one instance) has interpreted civil rights laws to allow for disparate impact claims. Additionally, imposing disparate impact liability does not require remedies or preventative steps that grant or deny benefits or burdens on the basis of an individual’s race in a way that might raise Equal Protection Clause concerns. Second, the disparate impact standard is a critical tool for moving our society towards a more just and equitable one. We cannot afford to do without it. Accordingly, PRRAC will be working with allies in the civil rights movement to fight back against this executive order.
Other news and resources:
Responding to the President’s proposed Fiscal Year 2026 budget: Our partners at the National Low Income Housing Coalition have issued a call to action opposing leaked plans for cuts to HUD’s budget that President Trump is expected to announce soon.
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