The National Association of Realtors (NAR) says its existing policies already align with new federal guidance allowing agents to discuss neighborhood crime rates and school quality without violating the Fair Housing Act’s prohibition on racial steering.
The Department of Housing and Urban Development (HUD) announced the new guidance last week, reversing Biden-era policies that led many real estate firms to remove or restrict such information. HUD’s announcement characterized past industry practices as restrictive — and accused NAR of imposing a “professional gag order” on members.
In an emailed response to HousingWire, a NAR spokesperson disputed that framing.
“NAR has never prohibited these conversations between agents and prospective homebuyers,” the spokesperson said. “NAR’s Code of Ethics, fair housing training and fair housing manuals explicitly allow members to discuss neighborhood information regarding crime and school data. For decades, NAR has emphasized that members share accurate, objective information, not opinions or hearsay. This is a risk management best practice.
“Some practitioners, misunderstanding the law or seeking to eliminate all risk, may have adopted the view, ‘it’s illegal to talk about it.’ That has never been NAR’s guidance.”
The NAR spokesperson added: “NAR’s current training and guidance generally align with HUD’s position that agents can and should provide prospective buyers with the information they seek on neighborhood crime and school quality, provided the information comes from an accurate third-party resource and is not subjective opinion. We believe it will be helpful to underscore among our membership that the law and our existing guidance supports these practices.”
The association may provide more information on the topic, the spokesperson said. “We may supplement existing guidance and training materials to provide additional best practices on how agents may comply with the law while providing consumers with the information they seek.”
Legal backing — and lingering risk
Attorney Robert Butters — a former NAR deputy general counsel and antitrust trial attorney in the Federal Trade Commission’s Bureau of Competition — said HUD’s updated stance aligns with arguments he has made for years.
“The assumption behind preventing that kind of information included minority home seekers being less concerned about crime statistics than majority home seekers, which I never found to be logical,” he said. “It’s the same thing with schools. Do you mean that minority home seekers don’t care about the quality of the schools their children are going to attend? None of that made any sense to me.”
Butters said the prior reasoning required drawing tenuous inferences about how different groups interpret information — an approach he viewed as inconsistent with the Fair Housing Act.
At the same time, he cautioned that the new guidance does not eliminate legal exposure for agents or brokerages.
“There’s always a risk of being sued,” Butters said. “You open the door of your establishment, you’re taking on a degree of risk. The question is, what is your tolerance? I think the position will make it easier to defend the cases, if they come, and it may be a mitigating factor on potential plaintiffs for bringing the cases in the first place.
“They’re going to have to contend with the current HUD position on that, but you really can’t eliminate down to zero risk.”
He added that HUD’s interpretation, while influential, is not binding on courts — meaning judges and juries could still reach different conclusions.
NAR said its position continues to emphasize a distinction between what is legally permissible and what is professionally advisable — particularly when it comes to subjective commentary.
“Subjective commentary is not automatic evidence of discriminatory intent,” the spokesperson said. “But subjective commentary raises the risk that the agent will present biased information. Courts have held that statements about crime and schools, in some situations, can be deployed as ‘code words’ for race and evidence of discriminatory intent. That doesn’t mean that every time an agent shares an opinion, it’s discriminatory.
“NAR’s risk-management guidance helps ensure members are providing accurate, unbiased information. It is not a declaration that entire categories of speech are illegal.”
State laws complicate compliance
Butters said agents must also consider stricter state and local standards — which can broaden liability even as federal guidance becomes more permissive.
“Every state, indeed, and in many cases, localities, counties and municipalities, also have fair housing statutes, and many of those are broader in scope,” he said. “They extend protection, for example, to sexual preference and other protected classifications that go beyond what’s in the federal Fair Housing Act.”
Differences in judicial interpretation across jurisdictions could further complicate compliance decisions, even with HUD’s updated position, Butters added.
Still, he said the new federal guidance provides meaningful support for agents navigating those risks.
“This HUD pronouncement is is going to be helpful, even if you’re being sued under a state statute that that may be interpreted more broadly,” Butters said. “It’s better to be able to cite to this than not being able to cite to it, even if you’re in a state or municipal forum.”
As brokerages, listing platforms and agents reassess policies, the combined message from NAR and legal experts is nuanced — more flexibility, but not less responsibility.
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