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The Future of Fair Housing - Report of the National Commission on Fair Housing and Equal Opportunity

Forty years after the passage of the Fair Housing Act in 1968, the National Commission on Fair Housing and Equal Opportunity was convened to travel across the country to collect information and hear testimony about the nature and extent of illegal housing discrimination, its connection with government policy and practice, and its effect on our communities. The Commission held hearings in Chicago, Houston, Los Angeles, Boston, and Atlanta.

On December 9, 2008, at the National Press Club in Washington, DC, the Commission reported on its findings.

  Federal Housing Programs:
    The Mandate to "Affirmatively Further Fair Housing"

Since 1968, the Fair Housing Act has required that HUD and other federal agencies engaged in housing and urban development, as well as grantees that they fund, act in an affirmative way to further fair housing.[207] The courts have recognized that this "affirmatively furthering" duty requires HUD to "do more than simply not discriminate itself; it reflects the desire to have HUD use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases."[208]The courts have emphasized the importance of both careful fair housing analysis[209] and more diverse housing choices and outcomes.[210] As one state plan framed the goal, "the opportunity to choose where one lives is essential to endowing individuals and families, across a spectrum of race, ethnicity and disability, with the opportunity to have a choice in the selection of schools, access to job opportunities, and an ability to engage as fully equal members of their community."[211]

The affirmatively furthering obligation requires fair housing certifications by recipients of Community DevelopmentBlock Grant Funds[212] and other federal housing assistance. The obligation to affirmatively further fair housing also includes any federal agency having regulatory or supervisory authority over financial institutions. [213]Two Executive Orders also cover these requirements and Executive Order 12892 established the President’s Fair Housing Council to coordinate activities to affirmatively further fair housing across federal government agencies and regulatory bodies.[214]

Despite these strong requirements, the testimony unanimously reported that the process was not functioning as intended. HUD has not been successful in bringing the affirmatively furthering obligation to life. As Senator Edward Brooke, R. Mass., an original co-sponsor of the Fair Housing Act along with Senator Walter Mondale, D. Minn., said in 1968, HUD itself has been part of the problem:

"What adds to the murk is officialdom's apparent belief in its own sincerity. Today's Federal housing official commonly inveighs against the evils of ghetto life even as he pushes buttons that ratify their triumph -- even as he ok's public housing sites in the heart of Negro slums, releases planning and urban renewal funds to cities dead-set against integration, and approves the financing of suburban subdivisions from which Negroes will be barred. These and similar acts are committed daily by officials who say they are unalterably opposed to segregation, and have the memos to prove it. . . . But when you ask one of these gentlemen why, despite the 1962 fair housing Order, most public housing is still segregated, he invariably blames it on regional custom, local traditions, personal prejudices of municipal housing officials.[215]

Witness after witness echoed this powerful statement during the Commission’s hearings.[216] Forty years later, HUD still has not adequately advanced fair housing principles in its own programs, and although it has provided guidance on the content of the "affirmatively furthering" obligation,[217] it has failed to adequately monitor or enforce these rules among federal program grantees.

Impact of Federal Programs on Fair Housing and Integration

The federal government should first look at its own housing programs to reduce segregation and expand housing choices for all American families. As discussed earlier, federal housing programs – particularly public housing and the Federal Housing Administration – have been an important foundation for segregation in this country. Today, for a number of reasons, federal programs are still focusing low-income housing resources in higher poverty, segregated areas.

Fair housing compliance within HUD programs is a key responsibility of each division at HUD, including the existing Office of Fair Housing and Equal Opportunity. It is our hope that removing fair housing enforcement to a separate agency will free the remaining civil rights office at HUD to engage in more focused program compliance activities both within HUD and among HUD grantees.

The three largest federal housing programs (Section 8, public housing, and the Low Income Housing Tax Credit) serve more than 4.5 million families. If these programs were reoriented to permit families and children to move to better schools in less segregated communities, the nation could dramatically alter the face of metropolitan segregation.

Section 8 Housing

The Section 8 Housing Choice Voucher Program currently serves more than two million low- income households. Unlike other housing programs, it creates a portable housing benefit that can be used by an eligible family to rent private apartments in multiple locations.

As Barbara Sard points out:

The voucher program does a better job than any other low-income housing program of enabling families to live in lower-poverty neighborhoods. But there is mounting evidence that in many metropolitan areas it is not doing as well as it could at helping families to live in safer communities with better schools, services and access to jobs. As a result, it is falling short of its potential to improve the lives of the families it assists. Failing to provide voucher holders access to high opportunity areas may leave them concentrated in a small number of increasingly poor neighborhoods.[218]

The Section 8 program has fallen short of its potential for a number of reasons. There is insufficient counseling and information about the full range of choices families have; low maximum rents restrict tenants to certain areas; landlord discrimination occurs in some areas; and bureaucratic impediments can make moving from one "jurisdiction" to another more difficult than it needs to be.

It is crucially important to expand housing opportunities available to Section 8 recipients, because access to diverse and inclusive communities should not be limited only to middle and upper middle class families. As Xavier deSouza Briggs notes, there is also "growing evidence that assisted relocation can dramatically reduce exposure to neighborhood crime and the physical and mental risks associated with daily exposure to gun violence and the threat of same, as well as gang recruitment of boys and sexual harassment of girls."[219]

Beyond administrative and funding changes, several witnesses supported a stronger geographic targeting of vouchers to areas with excellent schools and rich employment opportunities, as in the original Gautreaux housing mobility program.[220]One simple way of accomplishing this in the regular Section 8 program would be to initially target vouchers to low poverty neighborhoods with a tenant option to opt out of the target neighborhood.[221] Other witnesses pointed to the importance of strategies to better connect families to opportunities in their new communities, and additional counseling to encourage families to stay after making a successful move.[222]

Alex Polikoff, the civil rights lawyer behind the Gautreaux v. HUD case, which led to a well regarded housing mobility program for 7000 Chicago families, goes an important step further in his recommendation for a national Gautreaux housing mobility program targeted to America’s most hyper-segregated metropolitan areas. Mr. Polikoff proposes a new program that would set aside funds for up to 50,000 new geographically targeted vouchers each year that could only be used in low poverty communities with high quality schools and employment opportunities. Participation in the program would be purely voluntary, and only families in segregated, high poverty neighborhoods would be eligible.

Mr. Polikoff’s proposal is similar to the important proposal from the Half in Ten coalition[223] calling for the federal government to fund 200,000 new "opportunity vouchers" each year for the next ten years, providing two million households with access to opportunity as part of a strategy to reduce the poverty rate by half in ten years. The coalition’s report also recommends that project-based vouchers be "created for specific units in areas with good schools, high-quality public services, and good employment opportunities, and to preserve affordable housing in rapidly gentrifying neighborhoods to prevent displacement of low-income residents."[224] To maximize housing choice, agencies that consider housing needs regionally should be given preference for administering these vouchers. Further, funding for the vouchers should be combined with funding for other mobility programs, such as housing-search assistance and case management services that would allow families to participate in HUD’s Family Self-Sufficiency program.[225]

Public Housing and Hope VI

The vast inventory of federal public housing is an essential housing resource for low-income Americans. It is also a monument to segregated housing policies of the 1940s, 50s, and 60s. Today, the pressing need to renovate or replace significant parts of this inventory represents an opportunity to give families in public housing more choices.

The federal HOPE VI program was originally conceived as a way of transforming poverty concentrated, high density public housing into mixed income housing on a more human scale; and at the same time giving public housing residents more housing choice, including the opportunity to live in a new mixed income community. Unfortunately, the program as implemented did not achieve these goals; many public housing residents were not allowed to return to the original development after it was rebuilt, and many others were simply moved into other segregated neighborhoods, rather than into low poverty and racially integrated areas.[226]

As we move forward with public housing redevelopment, HOPE VI and other public housing reform initiatives must open up new choices for residents. We should not simply resegregate public housing residents in low opportunity communities because funds are available to renovate dilapidated housing. A balance must be struck between residents’ right to return to a revitalized mixed income community, and the rights of other residents (and families on the waiting list) to move to new, less segregated areas of higher opportunity.[227] This balance must promote racially and economically integrated housing, but it is not a one-size-fits-all approach. As Demetria McCain observed in Dallas, the fair housing analysis depends on local context:

The decision to rebuild some or any units onsite varied depending upon which of the 3 public housing structures were being demolished. Roseland Homes, in a gentrifying area, called for one solution, while a West Dallas project, isolated across the Trinity River in a heavy industrial area and near a lead smelter, called for another.[228]

Other HUD Programs

The project-based Section 8 program, the Community DevelopmentBlock Grant (CDBG) Program, and the HOME program share some of the tendencies to concentrate poor people only in certain communities or in specific neighborhoods within communities. This is partly the result of HUD program features but also has to do with HUD’s traditional deference to local decision-making and the voluntary nature of local participation in federal grant programs. Thus, since not all communities are "required" to participate in HUD programs, most federal assisted housing is funneled to jurisdictions that request it. These segregative tendencies in federal housing programs need to be addressed by both strong new incentives to promote a wider choice of locations as well as stricter program requirements on site selection and affirmative marketing.

Low Income Housing Tax Credit Program

The Low Income Housing Tax Credit (LIHTC) program, administered by the Internal Revenue Service and state housing finance agencies, is the nation’s largest low-income housing production program. Like the public housing program, the LIHTC program has failed to promote racial and economic integration. Indeed the program has operated with little or no civil rights oversight since its inception in 1986. As Professor Florence Roisman testified, "Neither Treasury nor the housing finance agencies have taken effective steps to require even that racial segregation be taken into account when decisions are made about where to site LIHTC developments."[229] There are also no affirmative marketing, racial data reporting,[230] or other fair housing requirements in the Department of Treasury’s LIHTC regulations, and decisions about which projects to fund are entirely delegated to the states.

The lack of civil rights controls in the LIHTC program is well-illustrated in the state of Texas, where most tax credit units – particularly housing for families – have been placed in predominantly minority neighborhoods, prompting a lawsuit against the state Department of Housing and Community Affairs challenging its lack of fair housing review for LIHTC siting.[231]This pattern of siting tax credit properties in minority concentrated areas is widespread.[232]

Housing for Individuals with Disabilities

When Congress passed the Fair Housing Amendments Act of 1988, it said the new law was:

A clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.

The testimony of Marca Bristo at the Commission’s first hearing poignantly summarizes the discrimination that people with disabilities face:

For most of our nation’s history, persons with disabilities were viewed as unfit, dangerous, and a detriment to "normal" society. Literally and figuratively, persons with disabilities were treated as second class or even non-citizens. This viewpoint resulted in, condoned and rationalized government-imposed segregation of people with disabilities in every aspect of community life including education, transportation, employment, recreation and, of course, housing. Historically, and even to this day, government-imposed housing segregation has forced persons with disabilities into state-operated and private institutional settings. Because people with disabilities were considered "sick" and in need of treatment and cure, their housing options resembled (and still largely do resemble) medical centers.[233]

More than 51 million Americans have a disability. Of these, 25 million people have ambulatory disabilities, 14.8 million have difficulty hearing, seeing or speaking, and 14.3 million have intellectual, mental, or emotional disabilities.[234] The population of people with disabilities is disproportionately represented among people living in poverty and their numbers are increasing. In 2007, disability discrimination complaints constituted 47 percent of the cases filed with HUD.[235] However, fair housing enforcers are not always familiar with the developing law in this area and sometimes lack sensitivity to issues confronting people with disabilities.

HUD’s own programs segregate people with disabilities. HUD programs that combine housing with services for people with disabilities (such as the 202/811 programs) require defined disability or a minimum age as a condition of eligibility, and other options in the community are not available. Mainstream accessible housing units, especially units designed for families, are often not available in public or assisted housing, limiting options for families with a household member who has a disability. Further, HUD does not require that its homeownership programs provide accessible units.[3] Housing options should be expanded for people with disabilities in federal housing programs, to allow them to have real housing choice. [236]

Other Federal Housing Programs

The U.S. Department of Agriculture (USDA) has a significant housing responsibility in rural areas, with programs providing loans and grants for housing and community facilities. Indian tribes also participate in some of these programs intended to assist low-income and very low-income Americans.[237] Despite its civil rights obligations, the USDA has failed to do anything effective to disestablish segregation or promote integration.[238] It has never drafted regulations implementing Title VI, so recipients of USDA funds have no guidance and often no motivation to provide translation and interpretation for beneficiaries of housing programs.[239] Further, many rural fair housing programs receive less attention than they deserve, as a result of the USDA’s large-farm bias combined with the urban bias of HUD.[240]

The National Housing Trust Fund, authorized by the Economic Recovery Act, P.L. 110-289, would provide a dedicated income stream for affordable housing development from annual contributions by Fannie Mae and Freddie Mac that are separate from the regular Congressional budgeting process. Although the Fund may not produce revenues up to its potential during the current economic downturn, it has the potential to be a large source of revenue for affordable housing by FY 2010.

Because the Housing Trust Fund is targeted to very low-income families, it has the potential to further lock in geographically concentrated poverty in racially isolated neighborhoods, if careful steps are not taken to distribute funds in an equitable manner. Strong site selection standards – along with affirmative marketing – should be built into the program, so that the Fund gives poor families living in high poverty neighborhoods real housing choices not just in their current neighborhoods, but also in communities with low poverty rates and high performing schools.

Next Section: Ensure Compliance with the "Affirmatively Furthering Fair Housing" Obligation in Federal Housing Programs


Footnotes

[207] 42 U.S.C. § 3608.

[208] NAACP. v. Sec’y of Hous. & Urban Development, 817 F.2d 149, 155 (1st Cir. 1987) (Breyer, J.); Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209-10 (1972); see also Otero v. N.Y. City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973) ("Action must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat."); Shannon v. HUD, 577 F.2d 854 (3d Cir. 1978).

[209] Shannon, 577 F. 2d at 821.

[210] The strong pro-integration mandate of the Act is also reflected in its legislative history. See generally Florence Wagman Roisman, Affirmatively Furthering Fair Housing In Regional Housing Markets: The Baltimore Public Housing Desegregation Litigation, 42 Wake Forest L. Rev. 333 (Summer 2007).

[211] Commonwealth of Massachusetts, Department of Housing and Community Development, Affirmative Fair Housing: Policy and Recommendations, Circulation Draft, August 26, 2008 (Boston Exhibit).

[212] The Housing and Community Development Act of 1974, and as amended in 1983, contains two specific provisions that address the Fair Housing Act requirements. Section 104(b)(2) of that Act explicitly required that grants under the Community Development Block Grant Program (CDBG) be "conducted and administered in conformity" with the Fair Housing Act and that the grantee would affirmatively further fair housing. Section 106(d)(5) of the Act requires that CDBG grantees certify their compliance with the Fair Housing Act and certify that they will affirmatively further fair housing. Section 109 of the Housing and Community Development Act of 1974 also requires nondiscrimination in programs and activities conducted under the Act. "The obligation imposed by §3608 is an affirmative obligation, and calls on HUD to ensure that federal housing and community development funds are used to reduce racial segregation, not to perpetuate or exacerbate it." Testimony of Michael Allen (Boston), at 1.

[213] 42 U.S.C. § 3608(d).

[214] Exec. Order No. 12,892, 59 Fed. Reg. 2939 (Jan. 20, 1994)

[215] At another point in the debate, Senator Brooke observed: "Rarely does HUD withhold funds or defer action in the name of desegregation. . . . It is clear that HUD is determined to speak loudly and carry a small stick." 114 Cong. Rec. 2281, 2527-28 (1968).

[216] HUD has "not developed the enforcement tools or the political will to take on the powerful constituent groups." Testimony of Michael Allen (Boston), at 2. Actions to affirmatively further fair housing are "AWOL." Testimony of Frances Espinoza (Los Angeles), at 1. "Many CDBG jurisdictions do little or nothing that fulfills HUD’s requirement that they affirmatively further fair housing"; communities’ efforts are meaningless or non-existent. Testimony of William R. Tisdale (Chicago), at 3-4. "Grossly insufficient." Testimony of Constance Chamberlin (Atlanta), at 6.

[217] HUD Fair Housing Planning Guide, 1995, Vol. 1, page 1-13.

[218] Testimony of Barbara Sard (Boston), at 1; see also Testimony of Florence Wagman Roisman (Chicago), at 6 ("HUD has administered the voucher program in such a way as to discourage families from moving to high opportunity areas.").

[219] Testimony of Xavier de Souza Briggs (Boston), at 1.

[220] Testimony of James Rosenbaum (Chicago), at 1 ("Better targeted vouchers are necessary if we don’t want to merely recreate poverty enclaves in new places."); Testimony of Xavier de Souza Briggs (Boston), at 10; Testimony of Alexander Polikoff (Boston), at 4-5; Testimony of Barbara Sard (Boston), at 1.

[221] Testimony of Ingrid Gould Ellen (Boston), at 5-6; Testimony of Xavier de Souza Briggs (Boston), at 8 ("Major developments in behavioral economics underline the wisdom of generating better choices for families, making those better choices the defaults or starting points, and then letting families opt out and make different choices if they so desire").

[222] Xavier de Souza Briggs & Margery Austin Turner, Assisted Housing Mobility and the Success of Low-Income Minority Families: Lessons for Policy, Practice and Future Research, 1 NW J. L. & Soc. Pol’y 25, at www.law.northwestern.edu/journals/njlsp (2006).

[223] The Half in Ten coalition includes the Association of Community Organizations for Reform Now (ACORN), the Center for American Progress Action Fund (CAPAF), the Coalition on Human Needs (CHN), and the Leadership Conference on Civil Rights (LCCR).

[224] Ctr. for American Progress Task Force on Poverty, From Poverty to Prosperity: A National Strategy to Cut Poverty in Half 36 (Apr. 2007).

[225] From Poverty to Prosperity, at 36.

[226] Testimony of William Wilen (Chicago); see generally False HOPE: A Critical Assessment of the HOPE VI Public Housing Redevelopment Program (National Housing Law Project et al, 2003); Philip Tegeler, "The Persistence of Segregation in Government Housing Programs," in Xavier de Souza Briggs, ed., The Geography of Opportunity: Race and Housing Choice in Metropolitan America (Brookings Institution Press 2005).

[227] See "HOPE VI Statement" (Houston exhibit), at 5-6.

[228] Testimony of Demetria McCain (Houston), at 5.

[229] Testimony of Florence Wagman Roisman (Chicago) at 7.

[230] Reporting of racial and other demographic information on LIHTC developments is now required by federal statute (H.R. 3211) but still remains to be implemented by the I.R.S. and state housing finance agencies.

[231] Testimony of Demetria McCain (Houston), at 4.

[232] Abt Associates, "Are States Using the Low Income Housing Tax Credit to Enable Families with Children to Live in Low Poverty and Racially Integrated Neighborhoods?" (Chicago exhibit).

[233] Testimony of Marca Bristo (Chicago), at 3.

[234] Id. at 6.

[235] U.S. Dep’t of Hous. & Urban Development, The State of Fair Housing, FY 2007 Annual Report on Fair Housing, available at http://www.hud.gov/offices/fheo/library/FairHousing-FY2007AnnualReport.pdf.

[236] Testimony of Bonnie Milstein (Los Angeles), at 3-5; Testimony of Henry Korman (Boston), at 4, 9.

[237] "Housing America’s Native People" (Los Angeles), at 4.

[238] Testimony of Florence Roisman (Chicago), at 7-8; Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 9. The U.S.D.A.’s civil rights regulations are at 7 C.F.R. § 1944.

[239] Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 9.

[240] Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 8.

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  The Future of Fair Housing
Coinciding with the 40th anniversary of the passage of the Fair Housing Act in 1968, NFHA has partnered with the Lawyers' Committee for Civil Rights Under Law, NAACP Legal Defense & Educational Fund, and the Leadership Conference on Civil Rights Education Fund to create a national, bipartian fair housing commission to investigate the alarming state of U.S. housing in the wake of the subprime housing debacle.
On December 9, 2008, the commission released its findings and recommendations in this comprehensive report.
Appendices
Appendix C: Commissioner Correspondence on Foreclosure Relief Implementation
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