HUD staff should rewrite the FHIP eligibility and performance standards in consultation with industry and private fair housing groups. Eligibility standards might include compliance with statutorily required standards, confirmation of a full range of services to be provided, establishment of service areas and office locations, and maintenance of financial accountability standards. Certain minimum numbers of activities in identified categories could be required, depending on the type of funding. For example, for an enforcement grant, required activities might include counseling potential complainants, conducting testing directly, conducting individual and systemic case investigations, providing education for the public and housing industry, promoting the benefits of diversity in their communities and working with other organizations and policy-makers to effect change, making timely and appropriate referrals to HUD/FHAP administrative enforcement agencies, conducting litigation activities, conducting educational workshops, and so forth.^[166] Performance standards would be required and poor or nonperformance could result in technical assistance, performance improvement plans, and ultimately suspension or termination of funding. This approach is much like the system already in place for state and local enforcement agencies in the FHAP program; compliance would be monitored by the reformed fair housing office (and eventually the new independent agency) with on-site performance assessments and remote monitoring.

The Fair Housing Assistance Program

The Fair Housing Assistance Program (FHAP) was established by the Fair Housing Act, 42 USC 3616, 24 CFR 100.115. The program provides that HUD may enter into agreements with state and local governmental units that HUD determines enforce laws with rights and remedies equivalent to the federal Fair Housing Act. Such agencies enforce a state or local law, but are referred cases from HUD for enforcement, receive funding from HUD, and must meet certain performance standards. If HUD receives a case that arises within the jurisdiction of a FHAP participant, HUD refers the complaint to the FHAP agency and generally takes no further action on the case. Neither complainants nor respondents may select HUD over the FHAP agency or vice versa. HUD reports that 37 states plus the District of Columbia and 68 local agencies currently participate in the FHAP program. ^[167]

FHAP agencies have the same types of problems that are observed in HUD’s fair housing offices. A 2005 GAO report that surveyed both HUD’s fair housing office and FHAP agencies found problems and delays at the intake process, with 30 percent of complainants surveyed reporting that it was somewhat or very difficult to contact the offices to discuss filing a complaint. ^[168]

More recent studies by HUD’s Office of the Inspector General found many errors in case processing, including several that could result in dismissal of a complaint or other adverse consequences even if complainants had a strong case.^[169] These external reviews also found that cases were not always processed in a timely fashion; that required documentation (including documentation of conciliation efforts and letters serving complainant and respondents with documents about the case) was not found; and that the files did not contain investigative plans. ^[170]

FHAP agency processes need not be identical to processes at HUD, but similar interpretations of the law should apply to cases so there is no unequal justice. However, the Commission received reports of cases handled by FHAP agencies with outcomes that were not consistent with federal law or with HUD policy. Commission witnesses expressed a number of concerns about the lack of enforcement undertaken in cases where the agency had made a determination that there was reasonable cause to believe that the federal law had been violated, as well as in direct cases brought under state law.^[171] There are also reports that state and local laws have been changed by judicial or legislative action and are no longer equivalent to the federal Fair Housing Act, without any action by HUD. ^[172]

The lack of cooperation between HUD and FHAP agencies also leads to inefficient and ineffective enforcement. Novel and complex cases and cases alleging systemic violations are poorly suited for some state or local enforcement agencies. Such cases require relative sophistication and high levels of resources to investigate and prosecute and many FHAP agencies lack that sophistication and those resources. More flexibility is needed to permit cases to be investigated jointly with HUD or only by HUD.

Next Section: Improve Coordination and Oversight of the Fair Housing Assistance Program

Footnotes

[166] Testimony of Cathy Cloud (Boston), at 17.

[167] U.S. Dep’t of Hous. & Urban Development, Fair Housing Assistance Program (FHAP) Agencies, http://www.hud.gov/offices/fheo/partners/FHAP/agencies.cfm.

[168] U.S. GAO, Fair Housing: HUD Needs Better Assurance that Intake and Investigation Processes Are Consistently Thorough, GAO-06-79, at 16 (2005).

[169] HUD OIG Report 07-001, September 2008, Evaluation of FHEO Housing Discrimination Complaint Processing and Compliance, http://www.hud.gov/offices/oig/ied/IED-07-001.pdf.

[170] Id.

[171] Testimony of Wayne Dawson (Atlanta), at 3; Testimony of Jill Fenner (Chicago); Testimony of Keenya Robertson (Atlanta), at 4-5; Testimony of Amy Nelson (Los Angeles), at 4.

[172] Oral Testimony of Shanna Smith (Atlanta).