U.S. Commission on Civil Rights

Funding Federal Civil Rights Enforcement: 2000 and Beyond

Chapter 6

Office of Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development

The U.S. Department of Housing and Urban Development (HUD) was established in 1965.[1] From its beginning, equal opportunity in housing has been one of the agency s primary functions. Under the direction of the Assistant Secretary for Equal Opportunity, the Office of Fair Housing and Equal Opportunity (FHEO) exercises a broad range of authority in matters relating to fair housing.

ENFORCEMENT AUTHORITY

Several laws and executive orders extend fair housing enforcement powers to FHEO. These are:

• President Kennedy's Executive Order 11063 relating to equal opportunity in federally financed housing;[2]

• Title VI of the Civil Rights Act of 1964;[3]

• Title VIII of the Civil Rights Act of 1968;[4]

• Section 3 of the Housing and Urban Development Act of 1968;[5]

• Section 504 of the Rehabilitation Act of 1973;[6]

• Section 109 of Title I of the Housing and Community Development Act of 1974;[7]

• the Age Discrimination Act of 1975;[8]

• the Housing and Community Development Act of 1987;[9]

• the Fair Housing Amendments Act of 1988;[10]

• Title II of the Americans with Disabilities Act of 1990;[11] and

• President Clinton's Executive Order 12892 that requires HUD to coordinate certain fair housing efforts.[12]

The majority of FHEO's civil rights responsibilities lie in its authority to enforce Title VIII of the Civil Rights Act of 1968. Originally the law prohibited discrimination on the basis of race, color, religion, or national origin in the sale or rental, provision of brokerage services, or financing of housing, and placed the responsibility and authority for administering the act with the Secretary of HUD. In 1974, the Housing and Community Development Act of 1974 added sex as a jurisdictional basis to the Fair Housing Act.[13]

Prior to 1988, FHEO had limited authority to enforce the fair housing requirements; it could not bring any kind of enforcement action. The agency was authorized to investigate complaints alleging discriminatory housing practices and to seek voluntary compliance through informal methods, such as conciliation.[14] If such efforts were unsuccessful, FHEO would notify the complainant, who could then file a civil action in any state or federal court. However, the Fair Housing Amendments Act of 1988 dramatically expanded the enforcement responsibilities of FHEO. The amendments increased the coverage of Title VIII to include the prohibition of discrimination on the basis of disability and familial status and authorized FHEO to use administrative and judicial proceedings as means of enforcement.[15]

Pursuant to statutory authority and presidential executive orders, FHEO also has the responsibility to ensure nondiscrimination without regard to race, color, religion, sex, disability, familial status, national origin, and age in programs and activities that receive federal financial assistance.[16] Currently, there are more than 35 statutory programs or activities to which HUD's Title VI, Section 504, and Section 109 regulations apply.[17] The Civil Rights Restoration Act of 1987 expanded the reach of the office s authority regarding equal opportunity in federally assisted programs and activities relating to housing and urban development.

HUD is the designated agency for the enforcement of certain aspects of Title II of the Americans with Disabilities Act, which requires all units of state and local government to make their services and programs available without regard to an individual's disability. HUD's Title II responsibilities cover all programs, services, and regulatory activities relating to state and local public housing, and housing assistance and referral. [18]

FHEO also is responsible for the enforcement of Section 3 of the Housing and Urban Development Act of 1968,[19] which seeks to provide employment and other economic opportunities for the low-income residents and business concerns in the area in which HUD-financed projects are being planned or constructed. In 1992, Congress substantially amended Section 3, including the extension of coverage to very low-income persons. [20] The provision applies broadly to all HUD housing and community development programs that receive federal financial assistance.[21]

Finally, FHEO prepares rules and regulations to govern the enforcement of nondiscrimination requirements relating to housing and urban development, and performs coordination functions in the area of equal opportunity in housing and urban development. In January 1994, President Clinton issued Executive Order 12892,[22] which expanded HUD's directive to coordinate enforcement efforts among federal agencies administering programs or activities relating to housing and urban development.

ENFORCEMENT PROCEDURES

FHEO investigates complaints received by persons alleging discriminatory practices relating to housing. Title VIII complaints that fall within the jurisdiction of state or local agencies are referred to those agencies for initial processing. During the investigatory period, FHEO engages in conciliation and, at the end of the investigation, issues a determination indicating whether reasonable cause exists to believe that discrimination has occurred. If reasonable cause is found, any of the parties may elect to have the matter resolved in federal court through a HUD referral to the U.S. Department of Justice, Civil Rights Division. If no party opts for a judicial determination, the charge is resolved through the HUD administrative process, which could result in awarding actual damages, equitable relief, a civil penalty, costs, and attorney fees.[23]

FHEO also conducts investigations and compliance reviews to enforce the provisions of Title VI, Section 504, the Age Discrimination Act of 1975, Section 109 of Title I of the Housing and Community Development Act of 1974, Section 3 of the Housing and Urban Development Act of 1968, the Americans with Disabilities Act, and Executive Order 11063. If a violation is found, HUD may refuse to approve an application for financial assistance, or if the proceedings involve a current recipient, HUD may terminate funding or take other appropriate measures.

FHIP AND FHAP

FHEO also administers two funding assistance programs: the Fair Housing Assistance Program (FHAP) and the Fair Housing Initiatives Program (FHIP). FHAP provides financial assistance to supplement the enforcement activities of state and local enforcement agencies that have been certified as providing rights, remedies, procedures, and the availability of judicial review that are substantially equivalent to that provided in the Fair Housing Act.[24] FHEO makes determinations as to whether state and local agencies are substantially equivalent, which often involves on-site reviews.

FHIP was authorized by the Housing and Community Development Act of 1987,[25] which provided for the execution of grants, contracts, or cooperative agreements with state or local government agencies, public or private nonprofit organizations, institutions, or other entities that are formulating or carrying out programs to prevent or eliminate discriminatory housing practices.[26] Initiative funding is provided in four distinct areas: administrative enforcement, education and outreach, private enforcement, and fair housing organization.[27] The Housing and Community Development Act of 1992[28] expanded the provisions of FHIP, adding initiatives to (1) establish fair housing organizations in unserved and underserved areas and build the capacity of existing fair housing organizations; (2) establish a national media campaign for dissemination of fair housing information; and (3) create an annual National Fair Housing Month program component within FHIP.

BUDGET ANALYSIS

Since FY 1994, budget requests and appropriations for FHEO have declined, in both actual and real terms (see tables 6.1 and 6.2). Full-time-equivalent positions also have been reduced in number. Between FY 1994 and FY 2000, the number of FHEO staff decreased by 22 percent (see table 6.3). Although there were 23 additional FTEs in FY 1998, the decline over the past seven years has been consistent.

Budgets

Overall requested funding for FHEO fell in actual dollars between FY 1994 and FY 2000 (see table 6.1). In terms of real spending power, the amount of funding requested by the President for FHEO has decreased 11 percent during this period (see table 6.2). Since FY 1994, Congressional appropriations also have decreased.

Between FY 1995 and FY 1998, a series of program adjustments and buyouts adversely affected funding levels for FHEO.[29] As a result, during this period FHEO's budget fell by nearly $4.6 million in actual dollars and $6.7 million in real dollars (see tables 6.1 and 6.2). In FY 1999, the requested and appropriated budget for FHEO increased somewhat, compared with the previous year (see figure 6.1). However, the FY 2000 appropriation was lower than the FY 1999 appropriation in both actual and real terms.

FIGURE 6.1
HUD/FHEO Funding History (in constant 1994 dollars)

Note: Estimates based on data in table 6.1.

Staffing and Workload

FHEO's FY 1995 budget proposed a 20 percent decrease in staffing as a result of a reduced need for temporary employees to conduct Title VIII investigations. A reorganization of FHEO that year was designed to enable the office to be more effective in implementing fair housing policies and enforcing the law.[30] However, for FY 1996, FHEO requested an increase of eight FTEs as a result of an increase in the number of temporary employees needed for Title VIII investigations.[31] The FY 2000 FTE level remains well below that of FY 1994 (see table 6.3).

FIGURE 6.2
HUD/FHEO Staffing History

Source: FHEO, fax to USCCR, Aug. 31, 2000, p. 2.

As staff levels decreased between FY 1994 and FY 1999, the number of Title VIII complaints received by FHEO rose by 14 percent (see table 6.4). During this same period, the number of FTEs declined by 21 percent, from 750 in FY 1994 to 592 in FY 1999 (see figure 6.2). FHEO estimated that Title VIII complaints would continue to increase slightly in FY 2000 and FY 2001.[32] Since FY 1994, FHEO has received an average of 10,000 Title VIII complaints annually. Throughout the 1980s, FHEO received an average of only 5,000 Title VIII complaints per year.

As the number of Title VIII complaints continues to increase, complaints under other statutes have decreased overall. Section 504 complaints slightly decreased between FY 1994 and FY 2000, from 285 to 236 (see table 6.5). As well, Title VI and Section 109 complaints are below what they were in FY 1994. In FY 2000, 64 complaints received by FHEO were filed under the ADA. Although this figure is below the 150 ADA complaints received in FY 1997, it still represents a 52 percent increase over the FY 1994 figure.

The decrease in complaints has occurred simultaneously with an increase in the number of compliance reviews conducted by FHEO staff (see table 6.6). The number of compliance reviews conducted increased from 57 to 320 between FY 1994 and FY 1998, yet fell to only 112 in FY 1999. FHEO staff conducted only 39 Title VI compliance reviews in FY 1999, which is significantly lower than the number of compliance reviews conducted in FY 1998 (see table 6.6). More than half of the compliance reviews are conducted under Title VI and Section 504. FHEO expects to increase its compliance reviews over the coming years. For FY 2001, FHEO estimates that it will conduct 126 compliance reviews,[33] still far less than the number of compliance reviews conducted in FY 1997 and FY 1998.

According to HUD documents, the FHEO Field Office was reorganized in the mid-1990s. Thus, FHEO was able to conduct more compliance reviews in FY 1997 than in previous years.[34] At the same time, FHEO increased its coordination and collaboration with the Office of Housing, Public and Indian Housing, and Community Planning and Development in order to improve the targeting of recipients for compliance reviews.[35]

Nonetheless, the number of staff in the field declined by 23 percent between FY 1994 and FY 2000 (see table 6.7), as did the total number of compliance reviews. In FY 1994, there were 603 FTEs located in field offices, compared with only 462 FTEs in FY 2000.

Field positions are skewed toward fair housing enforcement as opposed to compliance. Since FY 1995, the ratio of enforcement to compliance staff has remained around five to one (see table 6.8). For example, in FY 2000 there were 319 FTEs for enforcement, compared with 61 FTEs for compliance. Yet, in FY 1994, there were 406 FTEs responsible for enforcement and 100 FTEs for compliance, a ratio of four to one.

FHEO's FY 2001 budget request includes a new initiative which will be funded from funds that would have been appropriated for salaries, expenses, FHAP, and FHIP. According to the FY 2001 budget request, [t]his new initiative supports the Annual Performance Plan and National BOP Program Goals of restoring the public trust by decreasing the number of complaints filed with HUD using Alternative Dispute Resolution mechanisms to resolve selected Fair Housing Act complaints through the conciliation process mandated under Section 810 of the Act. [36] The FY 2001 budget, which provides $400,000 for the Alternative Dispute Resolution program, includes a cost estimate of $400 per conciliated case. The agency expects to resolve 1,000 cases through the program during its first year of operation.[37]

In contrast to FHEO, the budget for FHAP has increased since FY 1994, in both actual and real dollars. In FY 1994, FHAP received its requested amount of $4.5 million (see table 6.9). Between FY 1994 and FY 1999, the FHAP budget appropriation has more than doubled in real dollars (see table 6.10).

FHIP, on the other hand, has experienced a roller coaster of funding since FY 1994. Its Congressional appropriation in actual dollars has fluctuated between $26 million and $15 million (see table 6.11), having received $24 million in FY 2000. In addition, its appropriated funds fell far short of its requested funding in FY 1998 and FY 1999.

Conclusion

In 1995, the Commission concluded that both the President and the Congress have retreated from their obligation to ensure that adequate resources are provided for civil rights enforcement. [38] This current study demonstrates that this abandonment has continued and funding for civil rights enforcement remains insufficient.

From FY 1994 to FY 1999, the number of full-time-equivalent positions in the six federal civil rights enforcement agencies discussed in this report has declined by approximately 10 percent. As a result of inadequate funding, the nation's civil rights laws remain, in large measure, unfunded mandates. These agencies budgets have been reduced at a time when their enforcement responsibilities have grown substantially. In the face of rising workloads, inadequate funding and staff levels continue to endanger our national enforcement of civil rights laws.