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Public
Policy
Testimony of Barbara R. Arnwine, Executive Director of The
Lawyers' Committee For Civil Rights Under Law
Before
The United States House of Representatives Committee on
Financial Services, Subcommittee on Housing and Community
Development Regarding HUD Enforcement
June
25, 2002
The
Lawyers' Committee for Civil Rights Under Law ("Lawyers'
Committee") would like to thank Chairman Roukema and
Representative Frank for holding these important hearings
and for providing the Lawyers' Committee with the opportunity
to participate. We appreciate the opportunity to present
the House Committee on Financial Services, Subcommittee
of Housing and Community Opportunities, with information
about matters critically important to the Lawyers' Committee,
our affiliates, and our clients across the country.
The
Lawyers' Committee for Civil Rights Under Law is a 39 year
old nonpartisan, nonprofit civil rights legal organization.
It was formed in 1963 at the request of President John F.
Kennedy to involve the private bar in providing legal services
to address racial discrimination. The principal mission
of the Lawyers' Committee is to secure, through the rule
of law, equal justice under law. Among other things, the
Lawyers' Committee has been actively engaged in efforts
to combat racial discrimination and segregation in the public
and private housing markets, the discriminatory distribution
and use of federal funds by municipalities and housing authorities,
and racial discrimination and disparities in lending. In
particular, the Lawyers' Committee has focused on eradicating
the continuing and persistent effects of this country’s
history of enforced racial segregation. This work is ongoing
as the problems of both de facto and de jure segregation
continue.
My
comments today focus on the Lawyers' Committee's concerns
with the Department of Housing and Urban Development's declining
efforts at ensuring that principles of fair housing, as
set forth in the Constitution and the Title VIII of the
Civil Rights Act of 1968, are not only memorialized in words
but are also adhered to by deed. Over the past ten years,
we have seen the federal government's involvement in the
enforcement of fair housing and other civil rights laws
decrease dramatically. This trend is alarming at a time
when the number of civil rights complaints is rising and
thus the need for leadership of agencies enforcing vital
civil rights laws is even greater. The alarm's ring, however,
has been met by the deaf ears of HUD and the other federal
agencies responsible for enforcing and ensuring equal justice
under law.
Today,
I will focus on two major areas of concern. First, the Lawyers'
Committee has serious concerns about the HUD complaint process.
While Congress intended to provide individuals with a simple
mechanism to have their housing discrimination complaints
reviewed and investigated by HUD, HUD has created a complex
maze of procedures and steps, whose purpose has only discouraged
the filing of complaints. A problem related to the complaint
process is that continuous reduction of budget and staff
for the Fair Housing and Equal Opportunity ("FHEO")
office, which is responsible for investigating complaints,
has happened at the same that the number of fair housing
complaints has steadily increased.
The
second area of concern involves HUD's perpetuation and exacerbation
of the problems of racial discrimination and segregation
in both the public and private housing markets. Specifically,
the Lawyers' Committee is concerned that HUD makes no effort
to determine the impact that its grants and awards will
have on minorities and the communities in which they live.
Moreover, even when there has been a finding that a community
is violating the civil rights guarantees of the Constitution,
HUD has continued to provide millions and millions of dollars
in grants, such as funds from the Community Development
Block Grant program. This blind eye toward discriminatory
behavior is disgraceful and leaves one with the conclusion
that it is a purposeful attempt to avoid the federal government's
constitutional and statutory responsibility to ensure that
the recipients of federal funding do not utilize that funding
to discriminate against individuals on the basis of race.
Additionally, this conduct violates HUD's affirmative obligation
not only to avoid discrimination, but to further the principles
enshrined in the Constitution and the Fair Housing Act to
address and solve the problems of racial discrimination
in our nation.
II.
HUD's Complaint Process Has Failed to Provide An Effective
Mechanism For Individuals to Raise Civil Rights Complaints.
Under
the Fair Housing Act, a victim of housing discrimination
can file a complaint with the FHEO office of HUD. Congress
intended the complaint process to be a simple, straight-forward
mechanism for individuals to initiate a federal investigation
of potential fair housing act violations. In short, Congress
intended to provide an enforcement system that will handle
complaints quickly, easily, and inexpensively. Instead,
HUD has created a complex set of procedures (some of which
are hidden from the public) that makes the process far from
the user-friendly system it is intended to be. The complicated
nature of this system, along with HUD's poor track record
in investigating the complaints filed, creates the impression
that HUD’s intent is to simply eliminate cases from
HUD's system or to discourage their filing altogether. Sadly,
HUD has failed to meet Congress's mandate, which was to
ensure that the federal government takes an active role
in enforcing the law and of "transforming the symbol
and dream [of equal housing opportunity] into legal and
procedural reality."
The
starting point for the problem with the HUD complaint process
is the failure to fully fund FHEO. According to a report
by the United States Commission on Civil Rights, since FY
1994, budget requests for FHEO have decreased by 11.4 percent,
while appropriations have fallen by 14.4 percent. This trend
has continued in the President's request for FY 2003. In
FY 1994, for example, the President requested $51 million.
In FY 2003, President Bush’s budget request for FHEO
is only $46 million. The reduction in funding is only exaggerated
when the President's request is reduced to 1994 dollars,
which makes the request only $38 million. Moreover, the
number of FHEO staff has also consistently shrunk in size.
Again, from FY 1994 to FY 2000, staffing levels dropped
from 750 to 584, a reduction of 22 percent. While there
has been a slight increase in the number of staff estimated
for FY 2003, these numbers still represent a major reduction
since fiscal year 1994, particularly given the steady increase
in the number of complaints being filed with HUD. In 1994,
HUD received approximately 9,500 complaints. HUD itself
estimates that it will receive over 11,000 complaints in
the current year. As would be expected, the reduction in
funding and staff has taken its toll as HUD has been unable
to keep up with its increasing workload. By failing to conduct
timely and complete investigations of fair housing complaints,
HUD prolongs fair housing act violations, and its conduct
threatens this country's commitment to ensuring that every
American will be free from discrimination in housing.
For
example, in March 2001, the North Carolina Fair Housing
Center and several African- American female heads of households,
who are represented by the Lawyers' Committee, filed a HUD
complaint alleging racial and familial status discrimination
by a property management company. Despite clear evidence
of discrimination, including letters signed by the respondent
harassing the complainants and even attempts by the respondent
to run over the complainants with a car - more than 15 months
after the complaint was filed the investigation has not
been concluded and no findings have been issued. In another
case, the Lawyers' Committee is representing a community
organization in Mebane, North Carolina, which filed a HUD
complaint in September 2000 alleging racial discrimination
as a result of zoning laws and the discriminatory distribution
of community development block grant funding. Again, HUD
has not concluded its investigation despite the fact that
almost two years has elapsed since the complaint was filed.
Unfortunately, the experience of the Lawyers' Committee
is not unique, but instead has become commonplace for those
in the civil rights community who have come to expect long
delays in the HUD complaint process. These delays are unacceptable,
for as we all know, justice delayed is justice denied.
What is more troubling than HUD's delay in investigating
complaints are HUD's recent efforts to reduce the backlog
of complaints. Rather than providing more staff to investigate
and respond to the complaints, HUD has taken Congress's
clear mandate to operate a straight-forward, user-friendly
complaint process and created a labyrinth-like system, designed
to administratively dismiss complaints without conducting
any investigation to determine the merits of the underlying
claim. This reprehensible conduct by HUD seemingly returns
us to a day where we had a law that banned discrimination
but without "an effective enforcement system to make
that promise a reality."
Through
the work of the Lawyers' Committee and its affiliates across
the country, we have seen numerous and repeated failings
by the FHEO staff to meet the Congressional goals set forth
in the Fair Housing Act. As noted above, to address the
shameful number of backlog of fair housing complaints, HUD
has turned to administrative gimmicks to dismiss, but not
to resolve, complaints. The problems we have seen include:
- Refusal
to accept validly-filed complaints;
- Dismissal
of cases for failing to meet statute of limitations issues,
despite the fact that the complaints were timely filed;
- Misapplication
of the continuing violations doctrine;
- Strained
analysis of standing laws, particularly with respect to
Fair Housing Organizations; and
Allowing
complaints to languish for years without any investigation
or action.
The Lawyers' Committee has grave concerns about the imposition
of additional requirements on complainants that are neither
required, nor permitted under the Fair Housing Act or HUD's
implementing regulations. An example of this practice includes
cases the Lawyers' Committee has worked on where HUD has
refused to accept validly-filed complaints. A quick trip
to HUD's internet web site informs victims of housing discrimination
that a complaint can be filed with HUD in any number of
ways. An individual can send a letter, call the FHEO office,
or complete the form provided on the web site. These instructions
could not be clearer. Nevertheless, HUD has consistently
refused to accept complaints filed pursuant to these requirements.
Moreover, because individuals have only one year from the
date of the incident to file a complaint with HUD, any refusal
to accept a complaint can result in the case being dismissed
without any investigation, because of statute of limitations
issues.
For
example, in 2001, we represented an individual from Portsmouth,
Virginia, who alleged that he was denied an apartment because
he is African-American. Using the form provided on HUD's
own website, our client submitted his complaint to HUD.
HUD, however, refused to accept that complaint and told
client that it had the authority to require him to use any
form HUD desired and that the form on the internet was not
good enough. Accordingly, HUD administratively dismissed
his complaint. When our client attempted to re-file his
complaint, the one-year statute of limitations had already
passed.
Similarly, in 2002, the Lawyers' Committee represented a
Fair Housing organization in Charleston, West Virginia.
Again, just as with our other client, a discrimination complaint
was filed using the form listed on the website. Again, HUD
refused to accept the complaint as filed, but instead indicated
that the organization had to re-submit the complaint on
a separate form provided by HUD.
In
addition to imposing requirements not authorized by the
Fair Housing Act or its regulations, HUD has also adopted
strained analyses of relevant legal principles, again with
the seeming intent to avoid its obligation to investigate
complaints of discrimination. First, HUD has dismissed complaints
by ignoring clear and well-settled precedent regarding the
fact that fair housing organizations have judicial standing
to sue as an aggrieved person under the Fair Housing Act.
FHEO has ignored these principles for the purpose of reducing
their backlog of cases. For example, the Lawyers' Committee
for Civil Rights Under Law of the Boston Bar Association,
our Boston affiliate, received a Fair Housing Initiatives
Program ("FHIP") grant to conduct testing to investigate
instances of redlining in the homeowners insurance industry.
After conducting a testing program, which was funded and
approved by FHIP, and finding evidence of discrimination,
the Boston Lawyers’ Committee filed a complaint with
HUD. After waiting years for a decision, HUD found that
the testers lacked standing to challenge the discriminatory
pricing of homeowners insurance policies in minority neighborhoods
because the testers did not actually reside in the neighborhoods.
In addition, HUD found that at least one of the testers
had a financial stake in the outcome of the case, which
is not permitted under HUD's regulations regarding testing
programs. Yet, the financial stake HUD was concerned with
was that the tester could recover damages for the discrimination
he faced. Clearly, HUD's regulations were never intended
to be so restrictive. Even more disturbing are examples
across the country where HUD has found that fair housing
organizations lack standing because the fact that they have
received FHIP grants - grants provided to nonprofit fair
housing organizations to carry out testing and enforcement
activities to prevent or eliminate discriminatory housing
practices - means that the organization cannot establish
any diversion of resources, a prerequisite for organizational
standing under the Fair Housing Act. This is so even though
the organization may receive the majority of its funding
from sources other than HUD. This tortured analysis of the
law on standing threatens not only the success of these
cases, but also potentially undermines the legitimacy of
testing programs generally. These programs are essential
to aid in the investigation of violations of fair housing
and fair lending practices.
That
HUD attempts to reduce its backlog through administrative
gimmicks rather than through investigation and resolution
of cases is troubling and clearly goes against Congress’s
intent when it passed the Fair Housing Act Amendments in
1988. Using administrative schemes to avoid HUD's investigative
responsibilities is shameful and fails to fulfill HUD’s
duties to investigate and eradicate housing discrimination.
It is clear that further oversight and guidance from Congress
is needed more now than ever.
I.
HUD Fails to Evaluate Or Consider the Impact That The Programs
It Funds Will Have on Minorities and Minority Community.
The
Lawyers' Committee is not only concerned about HUD's failure
to investigate complaints filed with the agency, but even
more significantly, we are concerned with HUD's failure
to meet its obligation under the fair housing act to affirmatively
further fair housing in the administration of its programs,
particularly with respect to the HOPE VI program, the Low-Income
Housing Tax Credit Program, and the Community Development
Block Grant program. What it takes to meet this obligation
is clear. HUD must both gather and make use of racial and
ethnic data to prevent discrimination and ensure expanded
opportunities when programmatic and funding decisions are
made. Unfortunately, the data is not collected, nor is it
clear that if it were available that HUD would consider
it when decisions are made. This is troubling on many levels.
First, the federal government has an obligation to ensure
that its funds are not used for discriminatory purposes.
Second, given the federal government’s well- documented
role in creating and maintaining segregation in the public
housing market, HUD has a constitutional obligation to take
steps to disestablish and cure the discrimination it was
so instrumental in helping to create.
Of
particular concern is HUD's implementation of the HOPE VI
program, which provides for the demolition and redevelopment
of severely distressed public housing. The implementation
of the HOPE VI program has resulted in the loss of tens
of thousands of public housing units, a housing source upon
which communities of color disproportionately rely. HUD,
however, continues to approve and fund these demolition
applications with little or no understanding of the effect
that these programs will have on the housing situation of
minorities and minority communities. In this respect, HOPE
VI bears a striking resemblance to the Urban Renewal efforts
of the past. Urban Renewal, referred to by many as "Negro
Removal," uprooted entire minority communities with
little to no consideration or concern with the impact on
the existing residents. Similarly, through HOPE VI, the
federal government is again knocking down minority communities,
asserting that it knows the best and most efficient use
for those sites. This time, though, there is nowhere for
these residents to go. The Lawyers' Committee has seen HOPE
VI projects where families whose homes were taken in urban
renewal and were relocated into public housing are now being
victimized yet again - as HUD has approved the demolition
of the public housing they were relocated to. Sadly, HUD
makes no effort to ensure that the families who have lost
their homes are able to find replacement housing, let alone
replacement housing in non-segregated parts of cities. Thus,
because fair housing principles are essentially ignored
in the HOPE VI review process, the federal government has
created yet another program that continues and maintains
the deplorable conditions of segregation and isolation that
the federal government helped to create. Unless HUD squarely
addresses the past and present conditions of racial segregation
in the public housing system by taking steps, through the
consideration of racial and ethnic data, to reduce, rather
than cement, conditions of racial segregation, another chapter
in the federal government's perpetuation of segregation
will be written, while developers get rich and municipalities
increase their tax base, all on the backs of minorities
and minority communities.
For
these reasons, the Lawyers' Committee calls on Congress
to require HUD to enhance fair housing requirements in all
of its programs, to collect racial and socio-economic data,
and to ensure that this data is utilized to determine what
impact its programs will have on minorities and minority
communities before grants are awarded. And, if the analysis
of the program and the data shows a discriminatory impact,
HUD must either not award the grant or require the grantee
to amend the program to eliminate any discriminatory effect
of the program.
Finally,
when discrimination is uncovered, HUD must act. As described
above, HUD has failed to investigate complaints of discrimination.
In addition, HUD has continued to fund programs that it
knows have a discriminatory effect. This is just such the
case in Huntington, New York, where the Lawyers' Committee
is representing a number of African-American residents and
a fair housing organization. Huntington, New York, as many
of you may know, has had a judicially-recognized history
of racial segregation. As the Second Circuit Court of Appeals
noted in 1988, Huntington's practices have "reinforced
racial segregation in housing," "impede[d] integration,"and
"significantly perpetuated segregation in the Town."
HUD has blindly continued to provide funding to Huntington,
despite the Second Circuit's findings, recent complaints
filed with HUD, and HUD's own determination that Huntington
continues to engage in discriminatory housing practices,
which prompted HUD to refer the matter to the Department
of Justice. This short-sightedness is unacceptable and is
a violation of HUD's affirmative obligations under the fair
housing act.
III.
Conclusion
In
sum, HUD's record on ensuring fair housing is far from meeting
Congress's mandate to the agency. HUD, along with each of
the federal agencies responsible for enforcement of the
nation’s civil rights laws, must not only avoid putting
stumbling blocks in the path of those asserting violations
of their rights under the Fair Housing Act. HUD must also
take steps to affirmatively further fair housing by ensuring
that its programs and grants do not continue to have a discriminatory
impact on minorities and the communities in which they live.
Only then will the promise of equal justice under the law
become a reality for all.
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