November 6, 2001

National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004-1107

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This report is also available in alternative formats and on NCD's award-winning Web site (www.ncd.gov).

The views contained in the report do not necessarily represent those of the administration, as this document has not been subjected to the A-19 executive branch review process.

Letter of Transmittal

November 6, 2001

The President
The White House
Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit a report titled Reconstructing Fair Housing. This report is the fifth in a series of independent analyses by NCD of federal enforcement of civil rights laws.

The series grew out of NCD's 1996 national policy summit, which was attended by more than 300 disability community leaders from diverse backgrounds who called upon NCD to work with federal agencies to develop strategies for greater enforcement of existing disability civil rights laws. In March 1999, NCD produced its first report, Enforcing the Civil Rights of Air Travelers with Disabilities. The second report, Back to School on Civil Rights, on the enforcement of the Individuals with Disabilities Education Act, was issued in January 2000. In June 2000, NCD produced its third report, titled Promises To Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act. The fourth report, The Accessible Future, on the status of enforcement of various federal laws dealing with electronic and information technology accessibility, was issued in June 2001. The enforcement reports to follow in this series will be on Section 504 of the Rehabilitation Act and the Civil Rights of Institutionalized Persons Act.

Reconstructing Fair Housing looks at the Fair Housing Amendments Act of 1988 (FHAA) and Section 504 as they relate to one key federal agency, namely, the U.S. Department of Housing and Urban Development (HUD). NCD's findings reveal that while the past several Administrations have asserted their support for the civil rights of people with disabilities, the federal agency charged with enforcement and policy development under the FHAA and Section 504 has been underfunded, understaffed, and lacking any consistent strategy and direction.

We recognize that your Administration is committed to eradicating fair housing discrimination and removing barriers to community living for people with disabilities. In a number of instances, you have indicated your commitment to Americans with disabilities. That commitment is articulated in your New Freedom Initiative; in the mandate you issued under Executive Order No. 13217, establishing an Interagency Council on Community Living; and, in the work of your Fair Housing Council.

As HUD Secretary Mel Martinez and Attorney General John Ashcroft stated so eloquently on April 11, 2001 (the 33rd anniversary of the Fair Housing Act): "Discrimination in housing simply will not be tolerated, and we will prosecute those who violate the Fair Housing Act." And in signing their pledge as members of the Fair Housing Council, they indicated, "As members of the President's Fair Housing Council established by Executive Order 12892, we pledge to administer the programs of our Department or Agency in support of the Fair Housing Act of 1968 as amended in 1988 and aggressively fight to end housing discrimination because of race, color, national origin, religion, sex, familial status, or handicap."

Reconstructing Fair Housing responds to the commitments of your Administration, as listed above, by providing a roadmap for addressing the shortcomings that have hampered FHAA and Section 504 compliance and enforcement until now. NCD is prepared to work with HUD and other stakeholders inside and outside the government to develop that strategy.

NCD stands ready to work on those and related matters.

Sincerely,

Marca Bristo
Chairperson

(This same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the U.S. House of Representatives.)

National Council on Disability Members and Staff

Members
Marca Bristo, Chairperson
Hughey Walker, First Vice Chairperson
Kate Pew Wolters, Second Vice Chairperson

Yerker Andersson, Ph.D.
Dave N. Brown
Edward Correia
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Gerald S. Segal
Ela Yazzie-King

Staff
Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Director of Communications
Kathleen A. Blank, Attorney/Advisor
Gerrie Drake Hawkins, Ph.D., Program Specialist
Martin Gould, Ed.D., Research Specialist
Pamela O'Leary, Interpreter
Allan W. Holland, Accountant Officer
Brenda Bratton, Executive Assistant
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Assistant
Edward J. Heaton, Fellow

Acknowledgments

This report is the product of a team effort and incorporates the work of several people. First and foremost, the research and interviews were conducted and a report to the National Council on Disability (NCD) prepared--through a contract with the National Fair Housing Alliance and the Bazelon Center for Mental Health Law--by Sara Pratt, Michael Allen, and Bonnie Milstein.

NCD would also like to thank the people who gave of their time and agreed to participate in the development of this report. Special acknowledgment goes to the many staff members of the U.S. Department of Housing and Urban Development who not only answered many questions but gathered documents and shared voluminous data with the research team. In addition, they reviewed and commented on preliminary drafts of the contents of this document for technical accuracy.

Contents

I. Preface

II. Executive Summary

A. Overview

B. Summary of Key Recommendations

1. Improving Enforcement of Disability Rights and Ensuring Compliance by Grantees

2. Dedicating Adequate Resources to Enforcement and Compliance Activities

3. Improving Policy Guidance and Data Collection

4. Improving Identification and Dissemination of Best Practices

5. Regaining Public Trust in HUD's Enforcement and Compliance Activities

C. Future Prospects

III. The Fair Housing Act and Section 504: What Congress Intended

A. The Fair Housing Act

1. Passage of the Law

2. Legislative History of the Fair Housing Amendments Act of 1988

3. Expanding the Fair Housing Act to Cover Disability and Familial Status

4. The Administrative Enforcement Process

5. Other Enforcement Options

6. Private Fair Housing Enforcement Agencies

B. Section 504 of the Rehabilitation Act of 1973

1. Initial Passage of the Law

2. Congressional Intent

3. History of HUD's Section 504 Regulations

4. HUD's Final Section 504 Regulations

5. The Administrative Enforcement Process

C. The Role of Federal, State, and Local Agencies in the Fair Housing Act Enforcement Process

1. Introduction

2. The Claims Process

3. HUD Conducts Its Fair Housing Act Responsibilities Through Regional Offices

4. Recent History of HUD Enforcement of Title VIII

a. Devolution of Authority to HUBs

b. Hot Cases

c. Doubling Enforcement Actions

5. State and Local Fair Housing Agencies

IV. Enforcement of the Provisions of the Fair Housing Act

A. Introduction

B. Complaint Intake

1. The Growth (or Stagnation) of Disability Complaints

2. HUD Has Complicated Its Reporting by Creating a New Category

3. HUD Regional Offices Vary Widely in Complaint Intake

4. Growth in State and Local Agency Intake

5. Disability Is the Fastest Growing and Largest Category Among Housing Discrimination Complaints

6. There Are Wide Regional Variations in HUD Disability Complaints

7. Disability Caseloads at State and Local Agencies

8. Issues in Disability Claims and Complaints Filed with HUD and FHAPs

C. Case Outcomes

1. Cases Administratively Closed

2. Cases Conciliated

3. No Cause Findings

4. Cases in Which HUD Finds Cause to Believe Discrimination Has Occurred

D. Case Processing Times

1. Statutory and Regulatory Constraints

2. Actual Experience of Complaints and Claims.

3. Regional Variations on Aged Cases

4. Age to Closure

a. Age to Conciliation:

b. Age to No Cause

c. Age of Cause Cases

E. Financial and Other Relief Made Available to Victims of Discrimination

F. Other Enforcement Options

1. Secretary-Initiated Complaints

2. Proceedings Before Administrative Law Judges

V. HUD'S Enforcement of Section 504

A. Introduction

1. Scope of the Section 504 Discussion

2. Section 504 Provides Relief Not Available Under the Fair Housing Act

3. Section 504 Emphasizes Voluntary Compliance

B. Overview of Section 504 Enforcement

C. Data

D. No Significant Section 504 Enforcement Occurred Before HUD Published Its Final Section 504 Regulations in 1988

E. Budget and Staff

1. Budget and Staff Before Publication of Final Section 504 Regulations

2. Budget and Staff After Publication of Section 504 Regulations

F. FHEO Reorganizations

1. Numbers

G. Section 504 Enforcement Emphasis on Public Housing

H. Joint Initiatives Between FHEO and Office of Public and Indian Housing

I. Broadening the Enforcement Agenda Through Coordination and Multistatute Reviews

1. Intradepartmental Cooperation Leads to More Accessible Units in New York

2. Broad Array of Enforcement Tools Protects Relief in Pinellas County, Florida

3. Working in Partnership with Local Advocacy Group Wins Broad Relief in Austin

J. HUD Has Often Failed to Enforce VCAs

K. HUD Initiates Multistatute Compliance Reviews

L. Guidance

M. Civil Rights Conflicts Within the Department

1. HUD's Narrow Definition of "Recipient" Limits Civil Rights Enforcement

2. Elders, Nonelders with Disabilities, and the Secretary's Office on Disability Policy

3. HOPE VI's Adoption of Townhouses to Replace Large Public Housing Buildings Has Significantly Reduced the Number of Accessible Units in the Public Housing Inventory.

N. The Most Recent Years: 1998-2001

1. FHEO and Departmentwide Coordination

O. Conclusion

VI. Effects of Policy Decision Making, Resources, Legal Decisions, and Structure on Delivery of Enforcement

A. Resources and Leadership Must Be Dedicated to Administrative Enforcement

B. Organizational Structures Must Support Enforcement and Compliance Activities

1. Overview of FHEO'S Organizational Structures That Set Enforcement and Compliance Priorities

2. HUD's Strategic Plan Has Only Limited Commitments to Improving Enforcement and Compliance in General and for People with Disabilities

3. FHEO's Current Annual Performance Plan Lacks a Strong Enforcement and Compliance Direction

4. FHEO's Business and Operating Plan Has Only Limited Application to Enforcement and Compliance

5. Organizational Structure and Accountability

6. FHEO Should Improve Its New Monitoring System by Focusing on Outcome-Oriented Performance by Field Staff

7. FHEO's Criteria for On-Site Monitoring Should Be Revised to Focus on Improved Substantive Performance, Not Process

a. Enforcement

b. Compliance

c. FHAP-Related Activities

d. FHIP-Related Activities

8. FHEO's Performance Requirements for Individual Employees Should Focus on Enforcement and Compliance Outcomes

9. HUD's Legal Guidance Should Be Compiled and Organized to Support Enforcement and Compliance Activities

C. Organizational Resources Supporting Enforcement and Compliance Have Not Been Adequate

1. FHEO Has Not Been Adequately Staffed to Perform Enforcement and Compliance Activities

a. FHEO Staffing Overall Has Dropped Significantly During the Past 10 Years

b. Enforcement Staffing Has Dropped

c. Staffing of Compliance Activities Has Dropped Significantly and Is Now Half the 1989 Level

d. Lawyers in the Field Offices of Counsel Should be Provided in Adequate Numbers to Support Enforcement and Compliance Activities

2. Funding for the Two Major Programs Authorized by the Fair Housing Act to Address Enforcement Has Been Inconsistent and Management Practices Problematic

a. The Fair Housing Initiatives Program Has Not Been Consistently Funded by Congress

b. FHEO's Administration of the Fair Housing Initiatives Program Does Not Engender Confidence in the Program

c. The Fair Housing Initiatives Program Is Critical to Effective Enforcement of the Act and Should Be Revitalized

d. Funding for the Fair Housing Assistance Program Has Been Increased

e. Although FHAP Agencies Have Performed More Efficiently than FHEO in Enforcement, Improved FHEO Oversight Could Improve Their Performance

3. HUD Has Not Provided Adequate Contract Funds to Support Enforcement and Compliance Activities

4. Funding for Travel Costs Has Not Increased over the Past Seven Years

D. FHEO Should Improve Its Policy Decision Making and Communication of Those Policies to Staff and to the Public

1. Existing Procedures for Developing and Communicating Substantive Policy Guidance Should Be Expanded

2. FHEO's Training Capability Is Limited Because of Lack of Resources, and This Lack Adversely Impacts Enforcement and Compliance

3. HUD Has Never Performed a National Audit of Discrimination Based on Disability That Could Contribute to Greater Understanding of the Nature and Extent of Such Discrimination

4. At the Departmental Level, HUD Needs Ongoing Disability-Related Policy Input

5. Increased Input from People with Disabilities and Their Advocates Is Needed to Inform HUD and the Public About the Nature and Extent of Housing Discrimination.

6. Increased Support and Leadership from the Administration, Congress, and HUD Leaders Are Critical to Enforcement and Compliance Improvements

VII. Conclusion

APPENDIX I: List of Findings and Recommendations

APPENDIX II: List of Tables and Charts

APPENDIX III: List of Acronyms

APPENDIX IV: Supplementary Charts and Tables

APPENDIX V: Technical Guidance Materials

APPENDIX VI: Mission of the National Council on Disability