SECTION V
HUD's Enforcement of Section 504
A. Introduction
1. Scope of the Section 504 Discussion
The U.S. Department of Housing and Urban Development
has multiple Section 504 responsibilities that affect the grants
and contracts that it awards. The Offices of Public and Indian Housing,
Single Family Housing, Multifamily Housing, and Community Planning
and Development have issued regulations, notices, and handbooks
that address civil rights issues, and each is responsible for coordinating
its civil rights obligations with HUD's FHEO. FHEO has primary responsibility
for enforcing the FHAA, Section 504, and the other civil rights
laws that apply to recipients of federal funds.
This report is limited to FHEO's operations, and this
section focuses on FHEO's Section 504 complaint investigations and
its Section 504 post-grant award compliance reviews. It is important
to note that FHEO's Section 504 responsibilities, however, are much
more extensive. Since its creation, FHEO has been responsible for
providing civil rights guidance to the entire agency and to HUD's
thousands of grant recipients. It has done so by reviewing proposed
regulations and handbooks, describing the civil rights implications
of internal and external program guidance and proposed legislation,
and reviewing thousands of responses to HUD's annual Notices of
Funding Availability. This report will address those actions as
they relate to FHEO's external enforcement responsibilities.
This report will not analyze how HUD's programs, practices,
and policies have shaped and affected disability discrimination
in the real estate and community development industries. HUD awards
grants, contracts, and mortgages worth trillions of taxpayer dollars
every year. HUD's influence is enormous, and it is critical to understand
how its policies and practices affect the housing choices of people
with disabilities. Another report that addresses those issues would
provide an important context for this focused report on FHEO's enforcement
of the disability rights laws.
2. Section 504 Provides Relief Not Available Under
the Fair Housing Act
Why is Section 504 important if the FHA also prohibits
disability discrimination? While the FHA applies to all housing,
including housing subsidized with federal funds, Section 504 adds
requirements to the use of its funds that the FHA does not. Except
for the accessibility requirements that the FHA applies to new multifamily
housing, the FHA describes prohibited conduct, but it does not prescribe
specific steps that must be followed.
Section 504's regulations do prescribe specific steps,
and they impose specific requirements on the housing providers and
political entities that accept federal funds. For example, recipients
are required to conduct self-evaluations of their programs and make
existing properties accessible. Section 504 regulations also require
recipients to pay for the modifications and accommodations their
tenants and beneficiaries require.
Because Section 504 requires HUD to ensure that its
funds are being spent in nondiscriminatory ways, it does not have
to wait for a complaint to be filed. Instead, it may initiate its
own post-award reviews, called compliance reviews, that may lead
the agency and the subject of the review to sign a Voluntary Compliance
Agreement (VCA), through which the recipient agrees to specific
actions, within specified time limits, to bring itself into compliance
with Section 504.
Section 504 also gives HUD enforcement options that
the FHA does not. For example, HUD may condition the receipt of
any further funds; it may sue the recipient for specific performance;
it may assign the recipient to a suspended or limited denial of
participation status; it may initiate binding arbitration proceedings;
it may initiate administrative proceedings before an ALJ; and it
may, as its ultimate power, suspend or terminate the recipient's
HUD funds. Thus, Section 504 is as important as and is potentially
a more powerful civil rights tool than the FHA.
3. Section 504 Emphasizes Voluntary Compliance
Unlike the FHA, Section 504 applies only to those
who receive federal funds. This difference has had a major impact
on the structure of HUD's Section 504 enforcement program. Every
federal agency has the authority to terminate the receipt of federal
funds if the agency finds that the recipient has violated Section
504. To ensure that agencies use that remedy as a last resort, Congress
has required them to give recipients extensive opportunities to
correct the violation, even after a full hearing and an adverse
decision.136
Congress further requires that the Secretary notify the appropriate
House and Senate committees before terminating any funds. HUD provided
NCD with no document indicating that HUD has ever terminated federal
funds on the basis of Section 504. In that regard, HUD's record
is consistent with those of other executive agencies.137
Section 504's emphasis on voluntary compliance has
led HUD to be very deferential in its Section 504 enforcement activities.
With the FHA, if the parties do not agree to conciliation and HUD's
investigation uncovers sufficient evidence to prove that the law
was violated, the statute requires the agency to proceed to enforcement
and spells out the remedies available to the fact finder. Under
Section 504, if HUD determines that a violation has occurred, the
ultimate remedy available is to withhold the violator's federal
funds-a remedy fraught with so many hurdles that it has never been
used.
The emphasis on voluntary compliance has affected
not simply the conduct of complaint investigations and compliance
reviews but also HUD's pre-award enforcement program. These "front-end
reviews" involve FHEO staff determinations as to the grant applicant's
civil rights compliance status. They are usually desk audits but
may include on-site visits, and they have provided FHEO offices
with valuable information about cities, housing developers, and
other recipients of HUD funds.
A thorough analysis of this part of HUD's enforcement
program was beyond the scope of this project. HUD did not provide
any document to indicate that enforcement action resulted from these
reviews, however, and HUD's discussion of actions regarding the
reviews spoke instead of the value of technical assistance and voluntary
compliance. This was consistent with both the statutory provisions
for informal resolutions of adverse civil rights findings and the
emphasis that HUD has placed on voluntary compliance throughout
its Section 504 program.
B. Overview of Section 504 Enforcement
Until 1988, when HUD published its Section 504 rules,
race discrimination accounted for the majority of its work, through
Title VI of the Civil Rights Act of 1964, Section 109 of the Community
Development Block Grant of 1974, and the FHA of 1968. When Congress
enacted the FHAA in 1988, it added people with disabilities to the
protected classes. HUD published its Section 504 regulations the
same year, and its responsibilities for training its staff, publishing
guidance, and providing technical assistance in and outside the
agency increased dramatically.
By the mid-1990s, HUD had gained some experience in
enforcing the disability rights laws, but it continued to face difficult
resource and management issues. Not only was the FHA generating
more than five times the number of Section 504 complaints it had
been since 1988, but Congress was eliminating more and more of the
funding for affordable housing. This permitted cities and housing
providers to blame tighter housing markets rather than discrimination
for rising rates of homelessness among people with disabilities
and families with children.138
In 1994, FHEO reached its highest staffing and resource levels.
It created a separate Disability Rights Division, and it expanded
and reorganized its Fair Housing and Section 504 enforcement programs
in the field and in Headquarters.
In 1995, HUD created an Office of Disability Policy
at the secretarial level. Its purpose was to raise the visibility
of disability rights throughout HUD. Its goals were to make HUD's
funding policies consistent with the civil rights laws and to press
the agency to require recipients of HUD funds to do the same.
In 1997, FHEO began its campaign to double its enforcement
of the FHA. This effort resulted in an emphasis on FHA complaints,
to the detriment of Section 504 staff and resources. Almost all
complaint investigations slowed to a crawl, and staff that would
have worked on Section 504 complaints and compliance reviews were
drafted into the doubling effort.
Once the doubling effort ended in 2000, FHEO initiated
a number of Section 504 enforcement training and departmentwide
coordination efforts. It took these actions with reduced numbers
of staff as HUD responded to the Administration's governmentwide
downsizing initiative. FHEO moved the pre-award civil rights reviews
of funding applicants out of FHEO to other HUD offices in an effort
to focus its limited resources on enforcement efforts.139
It joined with DOJ to combine training with a limited number of
compliance reviews, and it began to focus on creating a credible
data collection system. FHEO's staffing levels are lower now than
they were 10 years ago, and the Administration had not named an
Assistant Secretary for FHEO as of August 2001. The future direction
of HUD's Section 504 enforcement program therefore remains uncertain.
C. Data
Unlike the previous section, which described HUD's
enforcement of the FHA, this section is not replete with graphs
and charts. In order to compare staffing ratios with numbers of
complaints, to decipher enforcement trends, and to measure success
in terms of numbers of beneficiaries helped, it is necessary to
have data. The data must be reliable, consistent, and retrievable.
HUD has created the Title Eight Automated Paperless
Office Tracking System (TEAPOTS) system to measure its enforcement
of the FHA. TEAPOTS did not exist in 1988, when the FHAA was first
enacted, and it took many years before a combination of leadership
support, the assistance of an independent consultant, sustained
and excellent staff work, and sufficient resources enabled FHEO
to create its current fair housing data system. In contrast, HUD's
enforcement of its Section 504 responsibilities is not reflected
in a reliable, usable, and adequately funded data collection system.
FHEO did provide NCD with Section 504 data, and it
is possible to glean some information from that data. But it is
revealing that FHEO produced the data originally in response to
external requests. It did not indicate that it used the data as
a method of obtaining information about its own efforts to enforce
Section 504. It did not provide any documentation to show that it
used the data to plan compliance reviews or to correct under- or
overemphasis on a particular set of recipients or for training,
budgeting, or coordinating Section 504 and other civil rights efforts.
The failure to collect, maintain, and benefit from
effective data was evident when FHEO and the Office of Public and
Indian Housing undertook a joint enforcement effort in 1994. The
goal was to help all of the 3,338 public housing authorities make
their housing and programs accessible to and usable by tenants with
disabilities. (This effort is described more fully later in this
section.) Because FHEO had no existing method of collecting the
results of the effort, it created a specific data collection survey.140
The survey was staffed by a single person who, without sufficient
resources or support, was unable to obtain responses from each of
the field offices. The report was never disseminated to the field;
it was never shared with FHEO's enforcement offices; and its findings
were not made part of FHEO's planning activities.
Shortly before HUD published the Section 504 regulations,
FHEO established the Section 504 Complaints Computer Tracking System
(TRACE). Assistant Secretary Judith Brachman sent a memo instructing
all regional directors to enter all Section 504 complaint data into
the system.141
Three months later, Headquarters sent another memo to the field,
this time to the Section 504 coordinators, advising them that the
computer system for tracking Section 504 complaints was called MCATS--Management
and Complaint Automated Tracking System--and that all Section 504
complaint and compliance data were to be entered into this system.142
Unfortunately, neither TRACE nor MCATS was user-friendly.
FHEO staff in Headquarters and the field were frequently frustrated
by their efforts to enter data into the systems. One of their many
problems was that no matter how much data had been entered, if it
was necessary to correct a mistake, all of the data had to be reentered.143
The information technology staff was too small to be able to provide
the support necessary to maintain the systems, and in the mid-1990s,
Headquarters scrapped them. Data maintenance had always been inconsistent
and unreliable, but it was not until the TEAPOTS system for fair
housing complaints had been in use for several years (see Section
IV) that FHEO began, in FY 2001, to incorporate Section 504 data
into the TEAPOTS system. Even now, TEAPOTS collects complaint information
only, when it could also collect compliance review data.
Finding V.C.1: TEAPOTS does not include enough information
about Section 504 complaints and compliance reviews to permit it
to be used as a planning and evaluation document. FHEO has just
begun to add Section 504 to TEAPOTS. TEAPOTS may need to be expanded
to include data about Section 504 compliance reviews for it to be
a fully effective data collection system. FHEO has not had sufficient
resources to create effective data collection systems or to provide
adequate IT support services to FHEO staff to enable them to provide
reliable, consistent data or to use FHEO's data systems effectively.
Recommendation V.C.1: FHEO should make its data systems
a priority. HUD should fund FHEO's data systems and resources adequately.
FHEO should determine whether to add fields to TEAPOTS that would
make it as effective a data system as possible for planning, coordinating,
and evaluating purposes.
Instead of relying on TRACE and MCATS, FHEO's Section
504 enforcement data appears to have been generated from salary
and expense reports developed as part of HUD's budget requests to
Congress, civil rights implementation reports to the Office of Coordination
and Review of the DOJ, Annual Reports to Congress pursuant to FHA
requirements, and annual reports to the U.S. Commission on Civil
Rights. Unfortunately, the data are not consistent from one report
to the next. For example, one year's report may show complaints
received while the next year's report tracks complaints investigated.144
Nor has FHEO systematized its data collection in a way that controls
for the variables that result when Headquarters staff ask for information
at different times of the year, from different staff, in offices
with varying levels of resources to devote to data collection. The
differences among the various data sets is apparent from Tables
V-1 and V-2, and they were too inconsistent to be used as the basis
for any but the most general conclusions.
For some years, the salaries and expenses reports
reflect the number of complainants assisted; in other years, the
reports reflect the number of complaints received or the number
of complaints investigated. For still other years, Section 504 complaints
are listed as 504/age discrimination complaints or 504 complaint/compliance
reviews, or simply as 504 complaints, with no indication as to whether
the reported figure represents the number of complaints received,
investigated, closed, or held over from the previous year.
It is also difficult to compare the number of complaints
reflected in the salaries and expenses reports with the civil rights
implementation reports that HUD transmitted to the DOJ Office of
Coordination and Review annually. The numbers reported in the implementation
reports vary from the numbers in the salaries and expenses reports
and are themselves internally inconsistent. Some years, the numbers
are simply estimates.
With sufficient time and resources, it may be possible
to reconstruct the number of Section 504 complaints that FHEO received,
the number that it investigated, and the number that it charged.
It would then be possible to identify trends and compare hours of
staff time with budget amounts and numbers of cases. Based on the
data that FHEO supplied, however, it is not possible to provide
that information in this report. The charts reproduced below, therefore,
are subject to many interpretations.
HUD's annual reports to Congress, titled The State
of Fair Housing, provide baseline information on complaints and
compliance reviews (see Tables V-1 and V-2).
Table V-1: State of Fair Housing--Complaints
Category |
FY
1990* |
FY
1991 |
FY
1992 |
FY
1993 |
FY
1994 |
FY
1995* |
FY
1996 |
FY
1997 |
FY
1998 |
504 Complaints |
212 |
146
(rec'd)
200
(closed) |
|
|
568
(rec'd) |
|
228
(accepted) |
206 |
207 |
Title
VI
Complaints |
113 |
248 (rec'd)
276
(closed) |
|
|
251
(accepted) |
|
143
(accepted) |
74 |
105 |
109 Complaints |
27 |
13
(rec'd) |
|
|
51 |
|
100
(accepted) |
|
|
109/Title
VI
Complaints |
|
|
|
|
|
|
|
141 |
153 |
Age Complaints |
|
|
|
|
|
|
102
(accepted) |
|
|
ADA Complaints |
|
|
|
|
|
|
9
(accepted) |
4 |
4 |
ADA/504
Complaints |
|
|
|
|
|
|
|
62 |
134 |
Total
Complaints |
|
|
547
(rec'd)
279
(closed) |
513
(rec'd)
453
(closed) |
870
(accepted) |
no data
available |
582
(accepted) |
487
(accepted) |
613 |
* 1990 figures are for complaints that were investigated
and resolved.
** Only Title VIII data reported in 1995. HUD reports that 417 investigations
were completed in FY 1994 but does not specify the category of the
complaints.
Table V-2: State of Fair Housing--Compliance
Reviews Category
Category |
FY
1990* |
FY
1991 |
FY
1992 |
FY
1993 |
FY
1994 |
FY
1995** |
FY
1996 |
FY
1997 |
FY
1998 |
504
Compliance
Reviews |
|
12 |
|
22
(initiated)
17
(closed) |
32
(initiated) |
|
|
|
|
Title VI
Compliance
Reviews |
|
68 |
|
55
(initiated)
37
(closed) |
53
(initiated) |
|
|
|
|
109
Compliance
Reviews |
|
|
|
1
(initiated)
2
(closed) |
3
(initiated) |
|
|
|
|
Total
Compliance
Reviews
(not by statute) |
|
|
|
|
|
|
131 |
126 |
126 |
*1990 figures are for complaints that were investigated
and resolved.
** Only Title VIII data reported in 1995.
Table V-3 combines data from HUD annual budget
submissions to Congress and data reported to the U.S. Commission
on Civil Rights, yielding perhaps the most complete (and most accurate)
information about the number of complaints and compliance reviews
that FHEO handled from 1989 through 1999. Unlike Tables V-1 and
V-2, this table does not show a remarkable rise in complaints in
1994. Instead, Table V-3 reflects half as many Section 504 complaints
and either half as many Section 504 compliance reviews or an increase
of two, depending on the data source. On the other hand, 1995 shows
the highest number of Section 504 complaints and compliance reviews
for the 10-year period (380 complaints and 155 compliance reviews).
The Section 504 numbers continue to be higher for both complaints
and compliance reviews from 1995 through 1999.
The other interesting data in Table V-3 reflect the
generally increasing numbers of ADA complaints and compliance reviews.
The table reflects none until HUD reports receiving 42 ADA complaints
(and no compliance reviews) in 1994, 17 complaints in 1995, 107
in 1996, 150 in 1997, down to 62 in 1998, and 64 in 1999.
Since HUD's ADA responsibility is to enforce Title
II, which concerns cities and other political entities, one would
expect to see a rise in Section 109 complaints and compliance reviews
for the same years that ADA activity increased. The table does seem
to reflect that fact, although logic may not be the source of the
coincident rise in numbers. By 1996, the largest number of Section
109 compliance reviews that HUD reports it conducted was six. Yet
the number jumps to 30 in 1997, is 30 again in 1998, but drops to
3 in 1999.
Table V-3: FHEO Salaries and Expenses Documents
and October 2000 U.S. Commission on Civil Rights Draft Report
Category |
FY
1989 |
FY
1990 |
FY
1991 |
FY
1992 |
FY
1993 |
FY
1994 |
FY
1995 |
FY
1996 |
FY
1997 |
FY
1998 |
FY
1999 |
504/Age
Complaints |
227 |
228 |
117 |
281 |
285 |
285 |
380 |
218 |
250 |
206 |
225 |
Title
VI/109
Complaints |
32 |
92 |
267 |
270 |
147 |
228 |
193 |
143 |
175 |
74 |
144 |
109 Complaints
|
|
|
|
|
|
48 |
38 |
103 |
175 |
67 |
21 |
504/Age
Compliance
Reviews |
12 |
9 |
14 |
2 |
|
21
34 |
155
* |
121
* |
150 |
150 |
38 |
VI/109
Compliance
Reviews |
72 |
0 |
|
|
|
|
|
|
|
|
|
VI Compliance
Reviews |
|
25 |
36 |
10 |
7 |
7
21 |
12 |
51 |
100 |
100 |
39 |
109
Compliance
Reviews |
|
|
0 |
0 |
|
2 |
2 |
6 |
30 |
30 |
3 |
ADA Complaints |
|
|
|
0 |
0 |
42 |
17 |
107 |
150 |
62 |
64 |
ADA Compliance
Reviews |
|
|
|
|
|
0 |
0 |
10** |
40 |
40 |
32 |
504 Complaints/
Compliance
Reviews |
|
|
|
|
285 |
|
|
|
|
|
|
* Includes 100 reviews conducted of Voluntary
Compliance Agreements signed with housing authorities that had failed
to imple- ment needs assessments and transition plans as requested
by 24 CFR 8.25(c), and includes 41 reviews for approval or dis-approval
of designated housing allocation plans, submitted pursuant to the
1992 Housing and Community Development Act.
** Includes compliance reviews resulting from the accessibility campaign
launched in FY 1996.
--504 only --Title VI only --USCCR --Started
Note: Beginning in 1996, each reported incident of discrimination
is investigated under all applicable statutes. This will result in
some incidents under investigation being counted under more than one
category of complaint received or review conducted.
Table V-4 reflects HUD's implementation reports
filed with DOJ. On the one hand, too much information is missing
to be able to draw any conclusions from the numbers in this table.
On the other hand, the data do reflect two important facts. First,
for 1993, it appears that FHEO sent two implementation reports to
DOJ a month apart, and the numbers differ. The February 1994 report
indicates that HUD received a total of 492 complaints; the March
1994 report indicates that the number is 551. Both numbers were
for 1993 and a year old. The reason for the discrepancy is unexplained
but not unusual.
Second, the report consists of answers to detailed
questions that DOJ asks of all Executive agencies responsible for
enforcing program-related civil rights statutes. The questions ask
for the number of unresolved complaints at the beginning and end
of the fiscal year; the reasons for closing complaints; the number
of complaints closed before investigation, after investigation,
and with and without findings; the resulting enforcement actions;
the number of findings for action that was and wasn't taken; the
number of pre- and post-award reviews and their results; the number
of housing units that were the subject of FHEO actions; and salary,
expense, and workload data.
If it were possible to obtain implementation reports
for each year from 1989 through 2000 and to confirm the accuracy
of the answers that HUD provided to DOJ, it would be possible to
create a detailed picture of HUD's program-related civil rights
enforcement efforts for the past decade. Unfortunately, DOJ was
not able to provide us with a complete set of documents, and the
unreliability and inconsistency of the data would continue to pose
serious research problems.
Table V-4: Implementation Reports (E.O. 12250)
Category
of
Complaint
Received |
FY
1989 |
FY
1990 |
FY
1991 |
FY
1992 |
FY
1993 |
FY
1994 |
FY
1995 |
FY
1996 |
FY
1997 |
FY
1998 |
FY
1999 |
Section
504 |
286 |
472 |
253* |
356*
325** |
|
|
218 |
|
|
|
225 |
Title
VI |
3 |
|
430 |
157* |
161*
141** |
|
|
143 |
|
|
144 |
Section
109 |
12 |
|
|
|
N/R*
26** |
|
|
2 |
|
|
1 |
Total
Complaints |
|
|
|
315* |
551*
492** |
|
|
582 |
487 |
431 |
730 |
Title
VI and 109 |
|
|
|
|
|
|
|
101 |
|
|
164 |
Age |
|
|
|
|
|
|
|
10 |
|
|
|
504 &
ADA |
|
|
|
|
|
|
|
102 |
|
|
286 |
ADA |
|
|
|
5* |
34* |
|
|
5 |
|
|
3 |
* From March 1994 implementation report, p. 46
** From 2/94 implementation report
--Investigated
--Field reports only
In 1998, FHEO created a system for collecting
information about compliance reviews. The first report, issued on
December 21, 1998,145
provided the case number, the recipient's name, the jurisdiction
of the review, the date it was initiated, the dates of the letters
of finding, letters of determination, and Voluntary Compliance Agreements.
It also included a column for "status/concerns." FHEO produced only
this one report, and it is unclear if other reports exist.
In fiscal year 2000, FHEO began maintaining a List
of Voluntary Compliance Agreements. These lists are arranged by
HUB and identify the name and location of the recipient, the jurisdictional
basis of the VCA, its expected date of expiration, whether Headquarters
has a copy of the VCA, and whether the VCA resulted from a complaint
or compliance review.
A review of FHEO's April 20, 2000, VCA list provides
a snapshot of compliance activity around the country.146
All of Seattle's VCAs are based on compliance reviews, while all
of San Francisco's are based on Section 504 or Title VI complaints.
Texas has many more VCAs than any other office, and the Colorado
HUB has none. The Philadelphia office has VCAs with housing authorities,
assisted housing providers, redevelopment agencies, and cities,
while the Fort Worth and Kansas City HUBs have entered into VCAs
only with housing authorities.
The February 1, 2001, list reflects the following
information:
- Boston HUB--Twenty-two VCAs; 21 based on complaints;
1 on compliance review of a housing authority. Twenty are Section
504 or Section 504 and Title VIII VCAs.
- New York HUB--Six VCAs, all based on compliance
reviews; 3 signed with housing authorities; 3 signed with assisted
housing providers. Five are Section 504 VCAs.
- Philadelphia HUB--Twenty VCAs; 14 based on housing
authority reviews and 6 based on complaints. Seventeen are Section
504 VCAs and most are Section 504 and ADA.
- Atlanta HUB--Six VCAs; 4 based on reviews of housing
authorities; 2 based on complaints. Two are Section 504 VCAs.
- Chicago HUB--Sixteen VCAs; 5 based on reviews of
housing authorities, 11 based on complaints. Fifteen are Section
504 VCAs.
- Ft. Worth HUB--Twelve VCAs; 6 based on housing
authority reviews, 6 on complaints. Seven are Section 504 VCAs.
- East Texas Office--Fifty-two VCAs; all are Section
504, Title VI, and Title VIII.
- Denver HUB--No active VCAs.
- San Francisco HUB--Seventy-six VCAs (27 of which
are with the Riverside, California, Department of Building and
Safety),147
all based on complaints. Forty-two are Section 504 VCAs; several
are combined with Title VIII or ADA.
- Seattle--Eleven VCAs; 6 based on reviews of housing
authorities, 3 reviews of assisted housing providers, 1 cooperative,
and 1 housing and community development council. All are Section
504 or Section 504 and Title VI VCAs.
Finding V.C.2: FHEO has not developed an adequate,
consistent, and reliable data system for its Section 504 enforcement
actions. As a result, it has not been able to learn from its successes
or its mistakes, make the best arguments for adequate funding, plan
or allocate resources in a reasonable way, or justify the actions
that it has taken or proposes to take.
Recommendation V.C.2: FHEO should add the same Section
504 complaint and compliance review data to the data system it currently
maintains to track its enforcement of the FHA. In addition, FHEO
should systematize the requests, timing, and storage of data that
it must collect for its annual reports to Congress, to the Department
of Justice, and to the U.S. Commission on Civil Rights.
Recommendation V.C.3: FHEO should review the data collection
system that the Office of Coordination and Review uses to collect
governmentwide Section 504 data from all federal agencies and consider
how best to collect, maintain, and use the HUD data and make it
available to the public. FHEO should provide adequate resources
to its data collection system and to the IT staff that support it.
Recommendation V.C.4: Headquarters should involve field
staff in solving the data collection and data maintenance problems.
The data system should be able to identify common enforcement problems
and discrimination trends to enable FHEO and HUD to target enforcement
activities.
D. No Significant Section 504 Enforcement Occurred
Before HUD Published Its Final Section 504 Regulations in 1988
Congress enacted Section 504 in 1973. However, HUD
did not publish regulations until 1988. While some department officials
believed that HUD had the authority and the responsibility to enforce
the statute, others believed that it could not do so until HUD issued
regulations. It was not a period of strong disability rights enforcement.
In 1976, the White House issued an Executive Order
requiring the U.S. Department of Health, Education and Welfare (HEW)
to issue general standards for other departments and agencies of
the Federal Government to follow in developing their own regulations.148
HEW did so in 1977. The following year, HUD published a proposed
set of Section 504 regulations. Ten years later, in June 1988, HUD
issued final Section 504 regulations. (See Section III. B. for a
discussion of the history of the regulations.)
Until HUD published its final Section 504 regulations,
regional office responses to complaints were inconsistent and agency
officials took few actions to enforce the statute, believing they
could not do so until HUD had issued its own Section 504 regulations.
In 1980, Paralyzed Veterans of America (PVA) sued HUD and other
agencies149
that had taken a similar position. The court agreed with PVA's argument
and required the agencies to publish a notice in the Federal
Register advising all of their recipients that they were required
to comply with Section 504 and that they were to rely on HEW's model
regulations for guidance.150
HUD published the notice in 1981.151
Thereafter, HUD accepted and investigated Section
504 complaints. Pursuant to advice from the Office of General Council
(OGC), however, FHEO did not enforce any findings resulting from
its investigations. Instead, when an investigation resulted in findings
that the recipient had violated the statute, HUD referred the case
to DOJ. Furthermore, the OGC interpreted the Paralyzed Veterans
decision as applying only to complaints that individuals had filed
with FHEO. It therefore advised FHEO not to initiate compliance
reviews, saying that neither the agency nor the recipients had sufficient
guidance as to what would constitute a violation of the statute
and the model regulations.152
FHEO disagreed with the OGC's opinion and urged counsel
to seek guidance from DOJ asking whether HUD had the authority not
only to investigate complaints but to make and enforce Section 504
findings of noncompliance and to initiate compliance reviews in
the absence of departmental regulations.153
DOJ assured HUD that it did have enforcement authority. DOJ recommended
that HUD and its recipients rely on the model regulations as of
1981 and Section 504 case law before that.154
In spite of the response, FHEO did not begin to conduct compliance
reviews until two years later, after it had issued Section 504 regulations
and had published a compliance review manual.155
E. Budget and Staff
1. Budget and Staff Before Publication of Final Section
504 Regulations
Lack of money, lack of staff, and lack of interest
in Section 504 at the secretarial level contributed to the difficulty
that FHEO faced in administering any Section 504 activities before
1989. NCD received no information from HUD indicating whether any
funds were used to enforce Section 504 before 1981. In 1981, Congress
appropriated $900,000 for HUD to spend on Section 504 implementation
activities, but HUD returned it all to the Treasury.156
In 1982, Congress again allocated $900,000 for HUD's
Section 504 enforcement and related independent living activities.
HUD returned all but $9,000 and announced that it intended to use
the much smaller amount to produce a public service film starring
Kermit the Frog and Miss Piggy, popular puppets from a children's
television program. HUD abandoned its plan after negative responses
from members of Congress and the disability community.157
From 1981 through 1983, the Undersecretary for Intergovernmental
Relations was responsible for "all advocacy and policy activity
concerning the handicapped, including chronically mentally ill,
alcoholics, and drug addicts, should they be included in that definition."158
FHEO was responsible for "assisting on issues of discrimination,"
and the Office of Housing was to draft the Section 504 regulations.
It wasn't until 1984 that Section 504 "policy and advocacy activity"
was placed in FHEO.159
Headquarters was to review and return all compliance
review findings of Section 504 violations in an average of six months
and all complaint findings of Section 504 violations in an average
of three months.160
FHEO Headquarters failed to meet those deadlines every year until
it changed the policy in the mid-1990s to permit the field to make
its own noncompliance findings. Until that happened, many noncompliance
findings remained at Headquarters for years in suspended states
of investigation and review.161
From 1984 through 1987, FHEO's Section 504 implementation
and enforcement budget, not including salaries, was $100,000 annually.
Two full-time staff in Headquarters managed all Section 504 activities,
and each of the 10 regional offices was allotted one half-time professional
slot for this purpose. During that period, staff conducted investigations,
but did not initiate any enforcement actions.162
Instead, the field staff referred all noncompliance findings to
the two staff in Headquarters for review and potential referral
to DOJ. The two were also responsible for responding to all congressional
and public inquiries about Section 504, technical assistance to
HUD programs, Architectural Barriers Act complaints, proposed legislation,
program guidance, and internal disability employment matters. They
had no secretarial support.163
In an effort to establish some Section 504 expertise
in the regional and field offices, FHEO Assistant Secretary Antonio
Monroig issued a memorandum August 1984 instructing regional field
directors to designate a current staff person in each regional and
field office as a Section 504 coordinator.164
The memorandum listed the coordinators' duties as being the regional
liaison with constituency groups; collecting information on complaints,
compliance agreements, and outreach activities; providing technical
assistance; coordinating all disability rights issues; and providing
training. It states, "We anticipate that the Section 504 coordinators'
responsibilities will not be time-consuming or burdensome."165
Three years later, Monroig's successor, Judith Brachman,
sent another memo to the regional directors, saying, "It has come
to our attention, through performance reviews and conversation with
regional staff, that this system has not been as effective as it
must be if we are to have a successful Section 504 compliance program."166
The memorandum requested the names of the coordinators and provided
a new list of their responsibilities.
Conversations with various FHEO staff indicate that
Headquarters lent minimal attention to the function and role of
the coordinators, and their value in implementing the Section 504
enforcement program varied widely. In January 1988, FHEO headquarters
staff used the proposed Section 504 regulation as the basis for
training the 10 Section 504 coordinators on disability issues. Thereafter,
most regional directors relied on the coordinators as resource staff
for providing technical assistance to HUD staff and to the public,
if the coordinators had the time, given their other responsibilities.
In some offices, the coordinator had significant responsibility
for shaping the Section 504 program; in others, the coordinator
was criticized for working on disability at all.167
2. Budget and Staff After Publication of the Section
504 Regulations
Although Section 504 had been enacted in 1973, the
Section 504 regulations and the FHAA regulations appeared in 1988
and 1989 within six months of each other. The resulting attention
and willingness on the part of HUD to enforce its two sets of regulations
produced twice the funding for Section 504 "implementation services,"
from $100,000 in FY 1987 to $196,000 in FY 1988 and 1989, and $532,000
in FY 1990. FHEO had to stretch that funding to cover a significant
share of HUD's Architectural Barriers Act responsibilities, internal
Section 504 training, training and technical assistance to HUD recipients,
policy development, an internal Section 504 self-assessment, internal
employment issues, and management training.168
According to HUD's February 1989 Implementation report
to DOJ, FHEO's Section 504 goal was to conduct two public housing
compliance reviews per region, process Section 504 complaints, provide
training to HUD staff on Section 504 requirements, and conduct a
public information campaign through town meetings. The change from
"a minimally acceptable level of activity"169
to a credible Section 504 enforcement program resulted in part from
HUD's having finally issued Section 504 regulations. It also resulted
from the increased attention that the FHAA brought from Congress
and the civil rights community to HUD.
Unfortunately, it has been impossible to draw many
conclusions from the Section 504 data that HUD produced. From 1988
to 2000, HUD has not had one consistent data collection system.
For example, starting in 1991, FHEO salaries and expenses data no
longer used the term "implementation services" and instead listed
the amount of funds received for "Section 504 technical assistance."
The funds budgeted for 1991 are listed at $271,000 and, for succeeding
years, $94,000 (1993), and $20,000 (1994). FHEO did not provide
data that listed funding for Section 504-specific "implementation
services" or "technical assistance" after 1994. The 1994 figure
represented "contracts to provide the support needed to address
in-house complaint investigations and provide technical expertise
on more complex issues."170
It is not possible to determine what the Section 504 expenditures
were for or how much HUD spent on Section 504 enforcement activities.
Nor do the salaries and expenses reports break out either the number
of dollars dedicated to or staff assigned to Section 504 enforcement
activities. What does seem to be clear is that every field office,
as well as Headquarters FHEO, has carried a backlog of Section 504
complaints since the issuance of the regulations.171
To ensure that Section 504 received at least some
resources after the publication of the regulations, FHEO established
a Section 504 Unit in its Headquarters Office of Program Compliance
in 1988. The two full-time staff dedicated to Section 504 activities
from 1984 through 1987 were joined by two more full-time employees,
one full-time temporary, one contract interpreter, and one student
intern.172
Unfortunately, the Section 504 Unit was assigned many more tasks
than Section 504 enforcement. These included responding to Architectural
Barriers Act complaints and complaints filed under Section 109 of
the Community Development Block Grant Act, coordinating the Section
504 town meetings, providing technical assistance to the field and
Headquarters on pre-award reviews, reviewing all departmental policies
and regulations from a Section 504 perspective, responding to congressional
inquiries, developing and providing Section 504 training for FHEO
managers and staff, and creating a Section 504 federally conducted
program.173
In spite of the small size of the unit, FHEO succeeded
in meeting its goal of conducting 13 three-day town meetings around
the country from 1989 through 1991, as well as developing desk guides
for Section 504 complaint investigations and compliance reviews,
conducting training for managers on their Section 504 responsibilities
and training for the Section 504 coordinators, producing training
manuals, monitoring contracts for the production of technical guidance
for specific HUD programs, and sponsoring a joint Public and Indian
Housing/FHEO conference on the housing rights of individuals with
mental disabilities.174
Headquarters Section 504 staff were frequently reassigned
to work on nonenforcement matters that were of urgent concern to
the Secretary and the Administration. Thus, for example, the National
Association of Home Builders pressured HUD to clarify the accessibility
requirements of the FHAA. The FHEO staff who were most familiar
with accessibility issues were also the Section 504 staff. On June
15, 1990, HUD published proposed fair housing accessibility guidelines,
and on March 6, 1991, it published the final guidelines. For most
of the period leading up to the publication of the proposed guidelines
until well after their publication in final form, at least one and
sometimes two of the four-person Section 504 staff worked full time
on them. The same staff have continued to act as resources for ongoing
structural accessibility interpretations, and FHEO has not assigned
or hired additional staff to address the unmet Section 504 enforcement
work.
HUD issued its Section 504 regulations in 1994. (These
regulations implemented Congress's 1978 amendment of Section 504.
The amendment required federal agencies to conduct their own operations
according to the same Section 504 mandates they applied to the recipients
of their funds.) The same FHEO staff who were charged with providing
guidance and support to field operations were also responsible for
the drafting, publication, and implementation of these regulations.
Information indicating how HUD has enforced these rules or how much
FHEO time they have absorbed is limited to the data appearing in
FHEO's implementation reports to DOJ. It seems clear from the documents
that FHEO did not receive an increase in staff or other resources
to enforce the new Section 504 regulations.
Recently, FHEO has tried to increase the number of
investigators who enforce Section 504, while not losing any FHA
staff. First, FHEO abandoned the specialist model in favor of training
staff to be generalists. As one HUD official explained, "We got
what we got. We do the best with what we got." Thus, all investigators
are expected to be as comfortable conducting Section 504 compliance
reviews as FHA complaint investigations.
To reinforce the generalist approach, Headquarters
has undertaken several actions. It has initiated the creative concept
of combining training and compliance reviews by walking trainees
through actual compliance reviews. To enable FHEO staff to expand
compliance reviews beyond housing authorities, it has published
a draft manual on investigating private housing providers who receive
HUD funds.
Headquarters' decision to work with field staff on
specific compliance reviews and to add a training component to the
effort was reinforced by DOJ in 1998. The DOJ Office of Coordination
and Review published a massive Investigation Procedures Manual
for the Investigation and Resolution of Complaints Alleging Violations
of Title VI and Other Nondiscrimination Statutes in September
1998. FHEO and DOJ staff developed a training and compliance review
schedule that resulted in FHEO's initiating compliance reviews in
several different locations that field staff subsequently and quickly
completed, with letters of findings and voluntary compliance agreements.
In recent interviews, FHEO officials in Headquarters
spoke enthusiastically about continuing to combine training with
investigations. They indicated that field staff are supportive of
the training and investigation approach but complained about the
time constraints being too limiting. For these compliance reviews,
on-site time has been limited to a single day, with FHEO emphasizing
quick investigations and timely issuance of findings. The current
theory is that some findings resulting in some relief for some complainants
soon after the initiation of the compliance review is a better result
than well-developed findings that are issued years after the on-site
review.
The draft Assisted Housing Provider Compliance
Review Manual that FHEO staff published on May 25, 2000, has
been a useful component of FHEO's new coordinated training and investigation
approach. The majority of compliance reviews, as this section discusses
later, have focused on housing authorities and not on private owners
of assisted housing. Because the number of assisted housing units
dwarfs the number of public housing units, both should be monitored
for civil rights compliance.
This manual is notable for its detailed and user-friendly
approach. It is arranged in steps rather than chapters and includes
forms that help the investigator understand the timing and relationship
of the data while collecting it. The manual makes it clear that
disability, race, and national origin data are to be collected.
Simultaneously, this guidance reflects the multistatute policy that
FHEO adopted in the mid-1990's, which is more fully described later
in this section. The advantages of reviewing all of a recipient's
civil rights responsibilities during one compliance review has made
the reviews much more effective compliance and enforcement tools.
The manual has translated the policy into easily understood tasks.
It constitutes an important part of the training/investigation method
that had been missing.
Finding V.E.2.a: FHEO has drafted an Assisted Housing
Provider Compliance Review Manual that provides a detailed approach,
is easy to follow, and has been effectively combined with on-site
compliance reviews. FHEO has not finalized the manual, nor has it
developed similar manuals for reviews of other recipients, such
as states, cities, and agencies that receive funding from the Office
of Community Planning and Development. FHEO has combined compliance
reviews with training.
Recommendation V.E.2.a: FHEO should finalize the Assisted
Housing Provider Compliance Review Manual and should publish
similar manuals for each type of recipient. The development of the
manuals should accompany increased resources for continued training
and compliance reviews. The manuals should contain instructions
on contacting local advocacy groups, tenant organizations, and any
other local group that has experience with the recipient; inviting
the contacts to submit information before the compliance review
or meeting with the compliance team before the review; and obtaining
information from FHEO after the compliance review, for the purpose
of developing methods of encouraging and helping the recipient to
comply with Section 504.
Recommendation V.E.2.b: FHEO should continue to combine
training with compliance reviews. It should review the merits and
problems of the approach and address them both. Some of the issues
to review are the amount of on-site time; the number of FHEO staff
involved; coordination and staff from field and Headquarters program
offices, and inclusion of general or regional counsel staff, Department
of Justice staff, or staff from other federal or state agencies,
such as the Environmental Protection Agency and the Departments
of Education and Transportation.
Recommendation V.E.2.c: FHEO should continue to target
its compliance reviews based on number of complaints, input from
advocates and recipients, news articles, and current Department
of Justice guidance.
Finding V.E.2.b:The Section 504 enforcement program
has never been adequately staffed in Headquarters or in the field,
nor has it been provided with adequate resources.
Recommendation V.E.2.d:The Section 504 enforcement
program must be fully staffed in Headquarters and in the field,
and should be adequately funded to support a departmentwide Section
504 enforcement program.
F. FHEO Reorganizations
During the mid-1990s, HUD twice reorganized FHEO.
Both actions had major impacts on the enforcement of Section 504.
As we noted earlier, when HUD published its Section 504 and FHAA
regulations in 1988 and 1989, FHEO created a Fair Housing Enforcement
Office. It conducted all of its other civil rights responsibilities,
including Section 504 enforcement, through the Offices of Program
Compliance, Program Standards and Evaluation, and later, in the
early 1990s, the Office of Quality Assurance. In the field, one
director was responsible for all enforcement and compliance work
under all of HUD's civil rights laws.
The 1994 reorganization separated enforcement of the
FHA from enforcement of the other civil rights laws. In Headquarters,
the change resulted in the creation of the Program Compliance and
Disability Rights Office, which included an office devoted entirely
to disability rights.175
In the field, the change was even more significant. For the first
time, FHEO placed two directors in each field and regional office:
one for fair housing enforcement (Fair Housing Enforcement Center)
and the other for program compliance (Program Operations Compliance
Center). The new organization resulted in 10 Fair Housing Enforcement
Centers, 10 Program Operations and Compliance Centers, and 28 smaller
Program Operations and Compliance Centers. The staff of all the
offices were no longer required to report to the HUD regional directors,
reporting instead directly to FHEO.
Similar to Headquarters, the larger Program Operations
Compliance Centers were divided again into compliance and enforcement
divisions. Each compliance center conducted post-award compliance
reviews and monitored VCAs. The Operations Division monitored program
compliance with the civil rights laws through pre-award reviews,
provided technical assistance to grantees, reviewed program applications,
and reviewed the work of FHIPs.
The U.S. Civil Rights Commission criticized the reorganization
for being too fragmented and too complex, especially with regard
to coordinating enforcement of Title VI.176
Nonetheless, FHEO adopted this reorganization for a variety of reasons.
First, because the FHAA and the Section 504 regulations had been
issued within six months of each other, some method was necessary
to keep all of FHEO's Section 504 and other program-related civil
rights enforcement resources from being swallowed by the much larger
number of fair housing complaints.
Second, a variety of pressures convinced HUD to give
increased attention to program-related civil rights enforcement.
These pressures included HUD's efforts to resolve nearly 20 race
discrimination lawsuits--some of them decades old--for establishing
or maintaining racially segregated public housing around the country;
the White House's promotion of "customer-friendly" government actions
that required more effective working relationships between agencies
and their constituencies; and increased publicity and pressure from
civil rights advocates, especially disability rights activists and
housing providers serving low-income and homeless families, making
the heightened attention to program-related civil rights enforcement
appropriate.
FHEO was not able to staff the Program Operations
Compliance Centers at their promised levels. At least from 1994
to 1996, however, FHEO and HUD leadership gave Section 504 enforcement
enough backing and support to enable its staff to generate some
model and replicable enforcement actions. These included coordinated
and complex compliance reviews that resolved long-standing interpretation
conflicts and corrective relief from at least one large city that
had never complied with several Section 504 requirements.177
In 1997, the White House had begun to pressure HUD
to double its FHA enforcement efforts and simultaneously required
it to reduce its staff. HUD reorganized FHEO's structure by eliminating
the Program Operations Compliance Centers; returning to a single,
regional enforcement director; cutting staff; and requiring all
staff to be responsible for investigating all of FHEO's statutes.
The plan's "reorganizational statement" describes the change:
Under the proposed structure, for the first time,
field FHEO components will perform all core functions at the lowest
organizational levels, thereby empowering field managers to choose
from a range of civil rights actions when responding to local
needs. All functions and services will now be conducted wherever
FHEO has a presence. This creates a multidisciplinary service
unit which will enable FHEO to deliver all of the program and
statutory elements related to fair housing when it deals with
housing providers and HUD program participants.178
In fact, Headquarters devoted significantly fewer
resources to Section 504 enforcement after the 1997 reorganization.179
FHEO described the reorganization as a necessary response to the
White House request that it double its fair housing enforcement
effort. Headquarters staff who had been working with field staff
on investigations stopped most of their Section 504 enforcement
work. As one FHEO official said, "The doubling effort affected everything.
We had to pull back on compliance reviews, monitoring, everything.
It did have the effect of raising the Secretary's knowledge of fair
housing cases, however."180
Because of the pressure to double the enforcement
numbers, many FHA complaints against recipients of HUD funds were
resolved for the individual complainants but did not trigger the
more time-consuming development of VCAs. Such agreements could have
resulted in changes to the recipients' overall programs, policies,
and practices. Some offices tried to meet the doubling effort while
also generating VCAs, but the results were mixed.181
It was only when the doubling effort ended, in January 2001, that
FHEO staff in Headquarters and the field began to devote attention
to Section 504 again, this time to aged Section 504 complaints and
to compliance reviews assisted by Headquarters staff.
1. Numbers
FHEO's data reflect what FHEO staff said: During the
doubling effort, from 1997 to 2001, the resources available to Section
504 complaint investigation and compliance reviews were shifted
to fair housing complaint investigations. In 1995, FHEO reported
processing 380 Section 504 complaints. The number for 1999 was 225.182
HUD's October 6, 2000, TEAPOTS report showed 964 open Section 504
complaints.
The fact that FHEO reports a 400 percent increase
in Section 504 complaints from 1999 to 2000 may be an accurate count
of the number of aged Section 504 cases that accumulated while the
doubling effort lasted, and the lower number may reflect the number
of Section 504 complaints that FHEO received in 1999.
The compliance work that did continue during the doubling
effort placed an emphasis on conducting a small number of joint
Title VI and Section 504 compliance reviews, and were initiated
by Headquarters staff. While some reviews resulted in monetary damages
to remedy Title VI problems, the compliance reviews yielded policy
and practice changes through VCAs for Section 504 violations but
no monetary damages. FHEO's failure to assess recipients for monetary
damages is puzzling. The regulations clearly authorize HUD to seek
damages to make victims of discrimination whole,183
and DOJ confirmed HUD's authority to seek damages under Section
504 when HUD's General Counsel was skeptical.184
Even where Headquarters initiated and lent staff to
specific reviews, FHEO devoted too few resources to this effort
to make an impact with more than a few recipients. That is, when
the office identified enforcement problems or opportunities, it
would develop a plan, take action, and then fail to sustain the
action or the necessary support. FHEO's limited staff, the short
turnaround time for pre-award reviews, and the demand for higher
numbers of FHA enforcement actions made it very difficult for FHEO
to sustain, much less expand or monitor, its earlier Section 504
enforcement efforts.
Only in East Texas, when the plaintiffs in Young v.
Pierce185 brought
HUD back into court for having failed to conduct Title VI compliance
reviews of the 70 housing authorities in the lawsuit, was FHEO able
to complete a significant number of compliance reviews. Although
the case focused on race and Title VI, HUD applied its multistatute
investigation policy. As a result, FHEO was able to identify and
correct Section 504 violations as well.
Finding V.F.1: HUD has not coordinated its Section
504 enforcement responsibilities to take advantage of critical program
or departmental efforts. It does not have a method for conducting
ongoing discussions about the impact of departmental actions and
policies on Section 504 enforcement. It does not work with other
federal or state agencies or with the Justice Department Office
of Coordination and Review. It does not communicate regularly and
effectively with consumers or their representatives or with the
agencies and advocates who represent them on their discrimination,
housing, or community development issues.
Recommendation V.F.1: FHEO should develop a Section
504 program that includes short-term and long-term strategies and
goals for enforcing Section 504; a review of the successful ways
FHEO has coordinated with other HUD offices; establishment of systems
for communicating within HUD and with consumers and recipients;
evaluation methods; coordination of its technical assistance branch,
its FHA branch, and its Section 504 enforcement branch; review,
evaluation, and plans for improving responses to, investigations
of, and enforcement of Section 504 complaints; review of, evaluation
of, and plans for a compliance program that results in rational
and effective use of compliance reviews; and sufficient resources
to implement a Section 504 program.
G. Section 504 Enforcement Emphasis on Public
Housing
HUD's civil rights laws apply to all of the recipients
of its grant and contract funds. The recipients include city agencies,
nursing homes, for-profit and nonprofit housing developments, retirement
communities, and state housing finance agencies, among many others.
Yet, in the past decade, HUD has predominantly focused its enforcement
of recipients' civil rights obligations on public housing authorities.
Many housing authorities receive all their funding from HUD, making
them appropriate targets for investigation. This singular focus,
however, has resulted in an overly limited Section 504 enforcement
program.
The many reasons for and implications of HUD's enforcement
emphasis on public housing authorities are beyond the scope of this
report. One of the reasons for the emphasis, however, was the Young
v. Pierce (now Young v. Martinez) litigation that was
filed in 1980,186
alleging that HUD was responsible for the racial segregation of
public housing in East Texas. HUD allocated substantial staff and
resources to defending the litigation and responding to court orders.
HUD's desire to avoid similar lawsuits was one reason it chose to
focus its enforcement on public housing authorities.
While federal agencies have broad discretion in selecting
recipients and subrecipients for compliance reviews, they may not
select only one type of recipient, such as housing authorities.
According to DOJ regulations, federal agencies are required to maintain
"an effective program of post-award reviews."187
DOJ suggests specific criteria for agencies to consider for their
compliance review program:
- Issues targeted in your agency's strategic plan.
- Issues frequently identified as problems faced
by program beneficiaries.
- Geographical areas you wish to target because of
the many problems you know beneficiaries are experiencing or because
your agency has not had a "presence" there for some time.
- Issues raised in a complaint or identified during
a complaint investigation that could not be covered within the
scope of the complaint investigation.
- Problems identified to your agency by community
organizations or advocacy groups that are familiar with actual
incidents to support their concerns.
- Problems identified to your agency by its block
grant recipients.
- Problems identified to your agency by other federal,
state, or local civil rights agencies.188
Several of FHEO's field offices have used some of
these criteria to plan their compliance reviews. Because HUD has
focused almost exclusively on housing authorities, however, FHEO
has not applied these criteria in an effective compliance program
for other HUD recipients. Furthermore, HUD has selected different
criteria for identifying targets of compliance reviews than those
recommended by DOJ. HUD did not provide NCD with data to explain
its more limited criteria or to indicate any communication between
HUD and DOJ on this matter.189
Finding V.G.1: FHEO has not developed a standardized
system for determining when compliance reviews of HUD recipients
would advance FHEO's and HUD's civil rights goals. HUD and DOJ criteria
for identifying targets of compliance reviews have not been used
consistently by field offices and have not been used at all by field
offices that have not conducted compliance reviews or have targeted
only housing authorities.
Recommendation V.G.1: HUD's compliance program should
include all HUD recipients and should be an integral part of its
goal of affirmatively furthering fair housing. FHEO's compliance
program must be based on articulated criteria that can be measured
and communicated within FHEO and HUD and to recipients and the public.
HUD must ensure that each of its program offices provides FHEO with
relevant information about the compliance of its recipients and
cooperates with FHEO in its compliance program.
Nonetheless, FHEO's emphasis on housing authorities
has yielded important benefits for the Section 504 and fair housing
enforcement programs. Through years of interaction with the Office
of Public and Indian Housing (PIH), that office has achieved the
most thorough understanding of its recipients' Section 504 obligations
and a closer working relationship with FHEO. As we discuss later
in this section, PIH and FHEO published joint guidance, issued joint
notices, and initiated enforcement actions together. Rarely was
FHEO successful in achieving this level of cooperation with other
HUD programs.
Soon after HUD published the Section 504 regulations,
FHEO's first significant interoffice cooperative publication resulted
from a 1990 Federal District Court decision. In the Northern District
of New York, the court relied on the Section 504 regulations to
find that the Rochester housing authority had violated the law when
it required applicants to meet a "capable of independent living"
standard. The housing authority's defense rested on HUD's Public
Housing Handbook, which conflicted with the Section 504 regulations.
Secretary Jack Kemp publicly supported the Section 504 regulations
on a radio broadcast, which resulted in widespread publicity. Further,
FHEO and PIH issued a joint memorandum to their staff to follow
the Section 504 requirements, and PIH published a notice for public
housing agencies about its correction of its handbook.190
H. Joint Initiatives Between FHEO and Office of
Public and Indian Housing
When each of the agencies issued Section 504 regulations,
they understood that both technical assistance and time would be
necessary before recipients could bring their facilities and programs
into compliance with Section 504. HUD's regulations thus required
that each recipient conduct a self-evaluation within a year of the
date the regulations were published and correct any programmatic
problems that it found.191
The rule also required recipients to evaluate their buildings and
make any structural changes necessary to make them accessible.192
Public housing authorities were required to determine whether the
needs of their tenants and applicants for accessible housing had
been met and, if they had not, how to meet those needs by 1992.193
FHEO continued its relatively successful relationship
with PIH by publishing a Joint Notice to Housing Authorities about
their Section 504-mandated self-evaluation, needs assessment, and
transition plan responsibilities. The notice was published on August
15, 1994.194
The goal of the PIH/FHEO Notice was to ensure that housing authorities
had met these requirements or that they take immediate action to
comply with Section 504. For housing authorities that had not yet
complied, the notice advised that they had missed the deadline and
could obtain a final extension until July 11, based on "extraordinary
circumstances," if the Secretary granted it.
HUD notified all 3,338 housing authorities that they
were required to meet the extension requirements of the notice if
they had not already met their Section 504 responsibilities. Those
who had not met their obligations were required to sign corrective
action orders with PIH, and VCAs with FHEO. The corrective action
orders made explicit the requirement that if a housing authority
applied for modernization funding, it could use the funding only
for work that was necessary to complete Section 504 structural changes.
The number of Section 504 compliance reviews increased substantially
from 21 in 1993 to 155 in 1994 (see Table V-3 for Section 504).
The VCAs gave FHEO a basis for enforcing the regulatory requirements.
That is, if the housing authority violated the terms of its VCA,
FHEO was authorized to refer the authority to DOJ for having breached
its agreement.
FHEO concluded that 66 percent, or 2,217 housing authorities,
had completed the Section 504 process. Of these, 104 signed VCAs,
but the field offices "closely followed" only 17 of the VCAs.195
According to HUD data, HUD did not refer a single housing authority
to DOJ, even when a housing authority breached its VCA.
FHEO was also not able to collect accurate data on
this effort. When FHEO attempted to determine the outcome of its
joint work with PIH by conducting a survey of the field offices
in 1997, it received no information from FHEO field offices concerning
22 percent of the housing authorities. Nor were the data that were
collected reliable. For example, data from all of Region I are missing,
possibly because the office failed to respond to the survey questionnaire.
Region II data were included in the report, but the VCA that office
signed with the New York City Housing Authority in December 1996
was missing. Finally, by the time Headquarters collected the data,
FHEO was already under a mandate to shift its focus, resources,
and staff away from Section 504 and other federally assisted civil
rights acts to enforcement of the FHAA. FHEO data do not reflect
that it conducted any further study of the 1994 PIH/FHEO Notice.
The Joint Notice was an efficient way to communicate
with recipients. It brought the program and enforcement offices
together for the purpose of determining how well housing authorities
understood their Section 504 responsibilities and how closely they
were following them. It allowed PIH and FHEO to resolve problems
of interpretation and implementation in the context of specific
housing authority responses. It could have resulted in effective
enforcement actions. It could have formed the basis for continuing
PIH-FHEO implementation of the Section 504 regulations. It could
have resulted in the creation of an invaluable body of data about
every housing authority in the country. It could have formed one
of the pillars of an organized Section 504 enforcement program.
It did not.196
Finding V.H.1: FHEO and PIH have conducted joint ventures
that have not been documented. Their results are therefore not available
for planning, budgeting, technical assistance, or further joint
ventures.
Recommendation V.H.1: FHEO and its departmental partners
should document and evaluate their joint efforts. FHEO and PIH should
make their joint report available within HUD and to the public.
To the extent possible, FHEO and PIH should issue documents reflecting
past coordinated efforts. Both offices should institute a system
to ensure that future efforts are similarly recorded and made public.
Finding V.H.2: Enforcement of Section 504 is a departmental
responsibility. Without the support of HUD leadership and the cooperation
of HUD's program offices, FHEO has limited ability to ensure the
law's enforcement.
Recommendation V.H.2: HUD should establish a secretarial-level
office whose responsibility is to conduct a "civil rights impact
statement" for each of its initiatives. Similar to an environmental
or business impact statement, the civil rights analysis will clarify
whether a funding program's decision, action, or interpretation
will affect its civil rights program and whether it will promote,
hinder, or have no impact on the accomplishment of HUD's civil rights
goals.
I. Broadening the Enforcement Agenda Through Coordination
and Multistatute Reviews
During the mid-1990s, FHEO made a concerted effort
to reach out to other departmental offices to resolve policy inconsistencies,
generate departmentwide strategies, and incorporate fair housing
goals in grant-making programs.197
FHEO first tried to make its own program compliance enforcement
strategy more efficient. Headquarters issued uniform procedures
for reviewing Section 504 Letters of Determination; developed and
conducted sessions on Advanced Disability Training, building on
the training that had preceded it; and obtained the assistance of
the OGC on a variety of legal and statutory issues198
in order to buttress the broader scope that Congress returned to
civil rights agencies through the Civil Rights Restoration Act of
1987. Headquarters also consulted with various field offices before
it issued guidance on conducting multistatute complaint investigations
and on identifying targets for compliance reviews. FHEO issued the
latter guidance in 1995 and the multistatute guidance in 1996.199
The intent of the guidance was to signal a change
in the direction that compliance reviews had taken. Beginning with
the publication of the Section 504 regulations, FHEO had focused
on housing authorities and their compliance with either 504 or Title
VI. The new guidance and assistance from Headquarters were intended
to yield multijurisdictional compliance reviews. The intent was
also to help the field initiate compliance reviews based on current
complaints and information from FHEO reviews of funding applicants'
and recipients' civil rights compliance. For example, the field
offices of Community Planning and Development (CPD) waited for FHEO
to certify that cities, states, and other recipients were in compliance
with the civil rights laws. Without the certification, CPD would
not approve entitlement grants, such as Community Development Block
Grant (CDBG) funds, or competitive grants, such as (Housing for
People with AIDS) HOPWA funds.
FHEO always provided the certifications and CPD always
released the funds, certainly for the entitlement funds. But many
field offices conducted time-consuming and thorough reviews of the
recipients and provided valuable technical assistance to them explaining
how they were violating the civil rights laws and suggesting corrective
action. Often FHEO staff would tell CPD staff of their findings
and their recommendations and would base their compliance certifications
on the city's agreement to adopt corrective action. The same CPD
staff and the same FHEO staffer often worked with the same recipients
year after year, so that corrective action that wasn't taken in
one year would be recommended again for the next.200
Surprisingly, this information was more freely shared
between FHEO and CPD than between FHEO staff conducting pre-grant
award reviews and FHEO enforcement staff. As a result, FHEO lost
valuable enforcement opportunities to focus compliance reviews on
data FHEO had already collected and often serious but complex civil
rights violations that had already been identified. This problem
was one of the reasons for the creation of the Program Operations
Compliance Centers. With sufficient staff reporting to a director
whose only responsibility was funding related civil rights laws,
the theory was that he or she would be able to implement an enforcement
program that took advantage of all available information, whether
it was collected during front-end reviews or complaint investigations,
and that could be coordinated with the FHA enforcement staff as
well.
Many field offices believed that the correct goal
was to conduct a compliance review of every housing authority in
their jurisdiction, regardless of its size, its remoteness, its
resources, or specific complaints and allegations about other recipients'
civil rights violations. The new guidance alone was not enough to
change that belief, but it was a necessary first step whose impact
might have been greater if FHEO had the time and resources to follow
through. Instead, at the end of 1996 and beginning of 1997, the
effort to double the number of fair housing cases drew the majority
of FHEO's enforcement resources.
For a brief time before the doubling effort, FHEO
conducted a limited version of such a compliance review program
that reflected its 1995 and 1996 guidance on targeting compliance
reviews and conducting multistatute reviews. It began with Headquarters
program compliance staff identifying recipients, typically housing
authorities, that were the focus of litigation, a serious complaint,
or a number of serious complaints. Headquarters staff contacted
the lead office in the field and designed the compliance review
with them. Headquarters staff assembled teams consisting of knowledgeable
and productive investigators from around the country, added them
to the local staff, created the schedule, identified the tasks for
each part of the schedule, and joined in the investigation.
The goals of these compliance reviews were to make
them multijurisdictional, if possible, expeditious, accurate, and
responsive to the complaints. While the number of these compliance
reviews was not large, they did accomplish their goals and reflected
much better results, for several regions, than those generally conducted
without Headquarters support and assistance. For example, a 1998
HUD Inspector General review of 33 compliance reviews in four field
offices that did not follow the new model found that 17 remained
incomplete "for long periods of time," that "FHEO did not ensure
that corrective action was actually taken," that management and
data collection systems "were lacking," and that the compliance
reviews were inefficient because they "did not result in resolving
known discriminatory practices by program participants."201
Headquarters resumed this approach to compliance reviews
after the doubling effort ended. Although the number of Headquarters-
and field-coordinated reviews has remained small and the effort
has been understaffed, FHEO has initiated a number of creative approaches
to maximizing the resources that it does have.
Finding V.I.1.a: FHEO limited compliance reviews to
housing authorities for many years. It investigated only Title VI
or Section 504 compliance when it could have investigated both simultaneously.
When FHEO adopted its multistatute approach and issued multijurisdictional
guidance, compliance reviews became more efficient. Except for a
brief period, FHEO's compliance review strategy in many field offices
was to review every housing authority and to review every one again.
FHEO's efforts to create a compliance review strategy that used
reviews to focus on known civil rights problems was logical and
effective. The effort ended when FHEO staffing levels were reduced
and remaining staff and resources for compliance reviews were diverted
to FHA complaint investigations.
Recommendation V.I.1.a: FHEO should adopt an expanded
version of its previously successful compliance review strategy
as part of its Section 504 program. It should target its compliance
reviews according to enforcement strategies that have had the greatest
likelihood of accomplishing specific programmatic goals, and it
should conduct multistatute reviews. The goals should include expanding
recipients' understanding of and compliance with Section 504 requirements;
coordinating with HUD program offices and expanding their ability
to ensure recipients' compliance with Section 504; and increasing
the public's knowledge of and support for Section 504 and related
civil rights laws.
1. Intradepartmental Cooperation Leads to More Accessible
Units in New York
Under the aegis of the Program Operations Compliance
Center organization, FHEO succeeded in identifying and addressing
some of the most complex issues in its Section 504 enforcement history
during this period. One of them was the New York City Housing Authority's
(NYCHA's) compliance with Section 504. A group of public interest
organizations had sued NYCHA on behalf of tenants and applicants
with disabilities. Although HUD was not a party to the suit, FHEO,
PIH, and General Counsel staff formed a Headquarters team to address
the numerous and fundamental issues that the NYCHA litigation presented.
The housing authority disputed the regulatory requirement
that at least 5 percent of its apartments be accessible to people
with mobility impairments and that an additional 2 percent be usable
by tenants with vision and hearing impairments.202
NYCHA contended that the number of tenants with disabilities, people
with disabilities on the waiting list, and people with disabilities
among the eligible population didn't justify the 5 percent and 2
percent thresholds. They insisted that enough of their 181,000 units
were accessible to meet the need and that the New York PIH and FHEO
offices had given them many waivers because of the age of the buildings.
Finally, NYCHA had an undisputed backlog of more than 13,000 requests
for reasonable accommodations from current tenants.
Although PIH and FHEO had coordinated on several Section
504 guidance and enforcement matters before, the OGC had never taken
as active a role. With its assistance, it was possible to add a
statistician from the Office of Policy, Development and Research
to the team. He and NYCHA conducted simultaneous analyses that convinced
both HUD and the housing authority that it needed a minimum of 9,000
fully accessible apartments. The age of the buildings and the size
of the elevators led to more disputes that required a specific elevator
accessibility study. The results of the study led to NYCHA's agreement
to expand the number of accessible units in nearby buildings when
the original buildings were too old or too narrow to generate the
required 5 percent.
Similar issues arose during the course of nearly a
year of negotiation, study, surveys, and policy clearance within
HUD. The effort resulted in a VCA that put NYCHA on firm management
reform and construction/rehabilitation schedules, and that included
modification and accommodation tenant request forms that other housing
authorities have since adopted.203
The members of HUD's NYCHA team hoped that they would be able to
replicate their successful team approach that included FHEO, OGC,
the Office of Policy, Development and Research, and the appropriate
program office. Unfortunately, changes in Administration internal
leadership and HUD's downsizing did not result in systematizing
this approach.
Finding V.I.1.b: FHEO successfully obtained one of
the most extensive VCAs in its history by working in conjunction
with OGC and PIH. The team received full support from departmental
and program leadership. Without that support, the team would not
have had the time, the resources, or the authority to develop solutions
to enforcement and program interpretation problems that had prevented
earlier compliance efforts. The NYCHA approach could have been replicated
with other housing authorities, but HUD did not provide the necessary
resources to do so.
Recommendation V.I.1.b: FHEO should review the approach
that resulted in the NYCHA VCA and determine what resources and
support would be necessary to apply it to other recipients. FHEO
should also publish its evaluation of the NYCHA approach and use
it to further its training, technical assistance, and enforcement
efforts.
2. Broad Array of Enforcement Tools Protects Relief
in Pinellas County, Florida
A more recent example of effective intradepartmental
coordination was the compliance review and extensive VCA that FHEO
and PIH developed for the Pinellas, Florida, Housing Authority in
1997. FHEO had received complaints that the housing authority awarded
Section 8 vouchers on the basis of race; failed to provide the same
maintenance services to its African- American tenants as its white
tenants; failed to respond to requests for reasonable accommodations;
required tenants with disabilities to pay for necessary accessibility
modifications of housing authority property, including the purchase
and installation of ramps and grab bars; and had not conducted the
transition plan that the Section 504 regulations required.
The VCA was creative and extensive. HUD withheld
the Comprehensive Grant funds from the housing authority until it
conducted its accessibility survey and submitted a report to HUD
indicating how it planned to meet the Title VI and Section 504 requirements
of the VCA, with specific time deadlines. It required the housing
authority to employ an "agreement monitor" to notify all tenants
and Section 8 participants of the VCA as well as of the new policies
the VCA required the housing authority to generate, and to invite
members of the African-American and disabled communities to open
meetings of the housing authority and to participate in its VCA
activities. Finally, the VCA was unique in listing a much broader
array of enforcement options available to HUD if the housing authority
failed to comply with the terms of the agreement. The options included
binding arbitration, referring the housing authority to DOJ for
violating its annual contributions contract with HUD or for civil
rights violations or to seek specific performance of the agreement's
terms; and withholding the housing authority's funds.
HUD did not provide NCD with documents indicating
whether the housing authority complied with the agreement or whether
the local HUD office fulfilled its monitoring responsibilities.
If the housing authority did not comply, HUD also did not provide
documentation indicating whether it invoked any of the enforcement
mechanisms that it listed in the agreement. Because HUD could have
referred the housing authority to DOJ for having failed to conduct
the self-evaluation and needs assessment required by Section 504
(discussed earlier in this chapter), rather than developing a Voluntary
Compliance Agreement, HUD probably decided that another VCA was
as likely as a court order--and certainly easier to develop--to
compel the housing authority to end decades of civil rights violations.
3. Working in Partnership with Local Advocacy Group
Wins Broad Relief in Austin
Another highly effective but unreplicated VCA signed
during this period followed a complaint about the failure of the
city of Austin, Texas, to comply with its Section 504 obligations.
The disability rights advocacy group Americans Disabled for Attendant
Programs Today (ADAPT), located in Austin, filed its complaint in
1995. Two years later, after an investigation and lengthy negotiations
with the city, FHEO and Austin signed a VCA. The city agreed to
amend its Consolidated Plan to make housing needs for persons with
disabilities a priority; to deny funding to housing projects that
could not be made accessible; to develop incentives for city contractors
to build or rehabilitate housing that contains more than 5 percent
accessible units; and to provide Section 504 training to all management
staff, among other provisions.
According to the city's May 15, 2000, Summary Report,
the city complied with all of these requirements. In addition, it
enacted a visitability ordinance requiring the entrance and one
bathroom in newly built homes be usable by individuals with mobility
impairments; contracted with an accessibility expert to ensure that
current and future multifamily rental housing complies with the
FHA and Section 504; established a barrier-removal fund for existing
single-family homes; and established the SMART Housing Initiative.
As the report explains,
SMART stands for Safe, Mixed-income,
Accessible, Reasonably priced, and Transit-oriented.
The Mixed Income component will provide incentives to projects
that may provide upwards of 10 percent SMART Housing, bringing
Visitability and Accessibility to units that receive no federal
funding. This will expand accessibility beyond those projects
receiving CDBG and HOME funds, particularly to single-family projects
and multifamily projects that are not regulated by Section 504
standards.
HUD did not provide documentation indicating that
it has required any other city to comply with Section 504 in similar
ways. FHEO's efforts with Austin were successful because it worked
with a strong local advocacy group, the field office received continuous
support for its efforts from Headquarters, and the city was willing
to work with both HUD and the local advocacy agency.
Finding V.I.3.a: FHEO's Austin VCA is replicable, but
no other FHEO agreement with a city accomplishes as much. The probable
reasons for the breadth of the VCA and its successful implementation
are a combination of Headquarters support, dedicated field staff,
willing city officials, and, possibly most important, a local advocacy
group that knew the city, understood Section 504 and the FHA, and
persisted with both FHEO and the city until it achieved the goals
of its complaint.
Recommendation V.I.3.a: FHEO should replicate the resources
and sustained support that were necessary to bring the city of Austin
into compliance with Section 504. FHEO should encourage staff to
work with local agencies and advocacy groups in identifying discrimination
issues, forging solutions, and monitoring agreements.
Recommendation V.I.3.b: HUD should enforce the Section
504 responsibilities of cities, counties, and states to ensure that
all of their programs and activities meet the regulatory requirements.
For example, every city should ensure that 5 percent of the city's
housing program is fully accessible to residents with mobility impairments.
See, for example, the city of Austin's program. Every state should
ensure that all its programs promote the ability of individuals
with cognitive and mental disabilities to gain access to the same
benefits and services as all other state residents.
J. HUD Has Often Failed to Enforce VCAs
In spite of the focus on housing authorities, FHEO
did not refer any of them, or any other recipients who had signed
VCAs, to DOJ for having failed to comply with the terms of the VCA.
When recipients violate VCAs, FHEO's response has been to "work
with" the recipient and, if necessary, to draft a second VCA. FHEO
staff are not trained, however, to treat VCAs as contracts that,
once breached, may be the basis for administrative action, such
as limiting, conditioning, or terminating further financial assistance,
and for referral to DOJ. Instead, as the 1997 Accountability Report
explains, "[a]s a result of [compliance] reviews, a large portion
of HUD recipients are better informed about Title VI and 504, thus
increasing the likelihood for increased compliance under these laws
in the future with regard to the provision of accessible and desegregated
housing."204
As this report indicated earlier, FHEO's failure to
enforce VCAs results from several factors. Section 504 emphasizes
voluntary compliance and negotiated settlements. In addition, disagreements
between FHEO staff and regional counsel and the absence of good
working relationships among many offices contributes to the problem
(see Section IV for a discussion of this issue). Finally, enforcing
VCAs requires a diversion of significant time and resources that,
in an agency strapped for both, has been difficult to muster.
Finding V.J.1: When recipients violate VCAs, HUD does
not take enforcement action against them. HUD treats VCAs as "educational
documents" and the compliance review process as an "educational
process" rather than as a means of enforcing civil rights laws.
Recommendation V.J.1: All VCAs must be enforced after
their time limits expire and the recipient has not fulfilled the
VCA's terms. FHEO shall immediately forward the VCA to the Office
of General Counsel for enforcement. The OGC shall initiate administrative
proceedings within two months of receiving the referral from FHEO.
OGC and FHEO shall give the recipient one month to comply with the
terms of the VCA before initiating enforcement actions.
Recommendation V.J.2: FHEO must develop protocols with
the grant-award program to ensure that if funds are granted they
be conditioned upon the recipient's correcting the violations according
to an existing VCA. HUD should make clear that failure to comply
with the terms of the VCA shall result in enforcement and temporary
denial of all future funds to the recipient, including funds that
have been approved but are awarded on a periodic basis.
Recommendation V.J.3: HUD should publish all VCAs on
the HUD Web site and include the name of the FHEO contact for questions
from the public and other recipients.
K. HUD Initiates Multistatute Compliance Reviews
FHEO also initiated a multistatute approach to its
enforcement activities. Because investigators had to go on-site
to investigate claims of racial discrimination, FHEO leadership
saw the benefit of combining Title VI and FHA investigations with
Section 504 investigations. This approach was successful in another
major FHEO-PIH initiative that addressed race discrimination litigation
in Texas. The Young v. Pierce [685 F. Supp. 975 (E.D. Tex. 1988)]
case accused HUD of establishing and maintaining racially segregated
public housing in East Texas. HUD decided to open a separate office
in Beaumont, Texas, to work only with the East Texas housing authorities.
Both FHEO and PIH staffed the office.
From 1998 to 2001, FHEO and PIH completed their investigations
of the 70 housing authorities covered by the litigation. The housing
authority properties ranged in size from 10 to 568 units. Although
the litigation raised only Title VI claims, FHEO and PIH decided
to investigate the housing authorities' compliance with Section
504. After issuing 54 Letters of Findings and executing 16 VCAs,
the FHEO Beaumont office found 90 percent of the housing authorities
had Section 504 violations, ranging from the absence of accessible
units to debris making accessible paths non-navigable.205
There is no reason to believe that the East Texas housing authorities
are not representative of Section 504 compliance by housing authorities
nationwide.
Finding V.K.1: FHEO has successfully operated under
the multistatute guidance for several years. The results of investigating
a recipient's compliance with two or more civil rights laws simultaneously
has had obvious efficiency benefits for the recipient, the beneficiaries,
and HUD.
Recommendation V.K.1: HUD should continue to follow
the multistatute guidance. The agency should conduct an evaluation
of how the field offices use the guidance, identify any differences,
and develop guidance to address gaps and to reinforce successful
outcomes. HUD should also define successful outcomes in terms of
numbers of beneficiaries assisted, timeliness of the operation,
satisfaction of the parties involved, funds and time spent, and
replicability of the effort.
Beyond the obvious enforcement benefits of the East
Texas reviews, the approach helped FHEO and the new Beaumont Office
accomplish important internal goals. It gave them an opportunity
both to obtain baseline measures of racial and disability integration
in its housing authorities and to apply the disability rights laws
consistently over a specific geographic area, and it proved that
the fair housing doubling effort could include Title VI and Section
504 compliance reviews as well as FHA complaint investigations.
HUD's 1997 Accountability Report indicates that 90
VCAs that had resulted from combined Section 504 and Title VI compliance
reviews were signed in 1997, although the report does not indicate
how many of those were signed with East Texas housing authorities.206
Because FHEO's data collection systems for compliance reviews, VCAs,
and Section 504 enforcement generally has been inconsistent, it
is difficult to draw any conclusions from these numbers. It seems
fairly safe, however, to conclude that most of the Section 504 compliance
reviews and VCAs concluded in the mid-1990s resulted from joint
PIH-FHEO coordination. The other major program funding offices,
Community Planning and Development and Housing, did not play significant
roles in supporting or promoting HUD's fair housing or Section 504
regulations, according to HUD data.
Thus, apart from the two HUBs that are not conducting
compliance reviews, six of the remaining eight HUBs continue to
review only housing authorities, in spite of receiving complaints
about city agencies, assisted housing providers, and other recipients
of HUD funds. It is encouraging that two of the HUBs and Headquarters
have initiated compliance reviews of recipients other than housing
authorities. It is hoped that Headquarters will not only continue
to collect this data from the field but will use it to further a
compliance review program that is more closely connected with HUD's
continuing devolution of discretion to its field offices.
L. Guidance
FHEO issued a fair number of technical assistance
guidance (TAG) memoranda before HUD adopted Section 504 regulations.
Some were published in the Federal Register, but the majority
were guidance memoranda that Headquarters issued to the field. Of
these, about half answered enforcement questions and the other half
reflected either court decisions or legal analyses and conclusions
that interpreted Section 504.207
After the publication of the Section 504 regulations,
FHEO continued to publish TAGs, but instead of increasing, the number
of TAGs decreased substantially.208
The last TAG that FHEO provided was dated October 10, 1991. FHEO
continued to provide guidance within HUD and between Headquarters
and field offices, but in different venues and for different audiences.
HUD did not replace TAGs with an alternative system of cataloging
policy interpretations of Section 504. Moreover, the TAGs were never
maintained, indexed, or cataloged to enable HUD staff or the public
to use them to solve recurring or new problems. As a result, many
of HUD's decisions, especially those that have not been published
in the Federal Register, are not retrievable by HUD staff
or by the public.
Having operated without a unified or retrievable guidance
system, HUD staff throughout the department have addressed and solved
some of the same issues over and over again, without knowing how
the department addressed the issue before and without any guarantee
that one office's solution was consistent with another's. For example,
in 1986 and 1987, FHEO issued TAGs addressing the interface of Section
504 and the Section 202 Program for the Elderly and Handicapped.209
In spite of this guidance, and because it was not easily accessible,
FHEO staff around the country and in Headquarters continued trying
to balance Section 202 program requirements with Section 504 requirements.
When the Corporation for Supportive Housing tried
unsuccessfully to get the Office of Community Planning and Development
and FHEO to explain apparent contradictions between the civil rights
laws and Section 202 and other assisted housing programs, the HUD
offices declined to provide any answers in writing. Instead, all
of the San Francisco regional office directors reviewed and commented
upon the corporation's responses to its own questions.210
Copies of the book are circulating within HUD, and it has become
very popular among supportive housing providers around the country.
Finding V.L.1: FHEO has not maintained in any systematic
way the Section 504 guidance that it has issued. It has not maintained
the systems that once existed, and it has not created a system for
maintaining such guidance now. It is critical that the source for
policy decisions, the decisions themselves, and the resulting guidance
be continually available to HUD staff and to the public.
Recommendation V.L.1: FHEO should create a method as
soon as possible for collecting all Section 504 policies, guidance,
notices, and interpretive materials in a single location. Each of
the documents should be identified by issuance date, location (i.e.,
where it first appeared), history, and current force. FHEO should
allocate sufficient resources to this project so that a system of
locating and maintaining such information can be established and
maintained. FHEO should make these historical documents and future
documents available to HUD staff and to the public in a user-friendly
format that is searchable by word or concept.
M. Civil Rights Conflicts Within the Department
1. HUD's Narrow Definition of "Recipient" Limits Civil
Rights Enforcement
HUD has adopted policies that limit its ability to
investigate recipients other than housing authorities. For example,
when HUD defined "recipients" in its Section 504 regulations, it
concluded that housing providers who accepted federal rent subsidies
were not "recipients of federal funds." Instead, HUD adopted the
position that the housing authorities responsible for administering
rental certificate programs were the only recipients. Private and
assisted housing providers who accepted the subsidies were contractors
with the housing authorities (see 24 CFR 8.28). As a result of this
decision, FHEO rarely conducted compliance reviews of any recipients
other than housing authorities, in spite of information that HUD
received and data that it collected that reflected ongoing violations
of disability rights and race discrimination by private and assisted
housing providers.211
HUD's protection of private, subsidized housing providers has led
directly to the decreasing supply of affordable housing for which
individuals with disabilities are eligible.
Finding V.M.1: HUD has too narrowly defined "recipient"
to exclude housing providers who benefit from federal financial
assistance. HUD's assigning housing authorities with the responsibility
of monitoring private housing providers' compliance with the civil
rights laws has been unworkable.
Recommendation V.M.1: HUD should review its policy
decision and issue an interpretation of the responsibilities of
federally subsidized private housing providers that is effective
and enforceable.
2. Elders, Nonelders with Disabilities, and the Secretary's
Office on Disability Policy
As with all Executive agencies, HUD has faced the
difficult problems of coordinating its civil rights enforcement
policies with its grant-making responsibilities. This issue has
been exacerbated in HUD by a number of conflicting public policy
goals. One of these has been the integration mandate of the civil
rights laws and the mandate that public agencies ensure the safety
of "vulnerable populations." This conflict attained national attention,
beginning in the 1980s, in the context of HUD's housing programs
for "the elderly and the handicapped."212
The conflict led to statutory, regulatory, advisory, and enforcement
issues that have yet to be resolved.
During the 1980s, the numbers of nonelderly tenants
with disabilities increased in housing that Congress had created
for them and for tenants 62 and older. As funding decreased for
low-income housing and as more and more individuals with disabilities
sought affordable housing, the number of housing units available
to accommodate low-income applicants dropped to one-third of the
need.213 The
press carried sensational stories of elders threatened by individuals
with disabilities and Congress's forsaking its promises of the 1970s
to house low- income elders. In addition, a number of federal court
decisions, beginning with Brecker v. B'nai Brith Housing Development
Fund,214
adopted HUD's argument that those who housed individuals with disabilities
needed specific expertise for different kinds of disabilities.
HUD's position directly contradicted its own Section
504 regulations. The regulations prohibit limiting tenants with
disabilities to programs created specifically for them (24 CFR Sec.8.4(b)(viii)(3));
denying a dwelling to a tenant because of a disability, which occurred
in housing programs limited to people with specific types of disabilities
(Sec. 8.4(b)(vii)); and providing different or separate housing
to tenants or to a class of tenants without proof that doing so
is "necessary" (Sec. 8.4(b)(iv)). Most important, Section 8.4(c)(1)
permits individuals and classes of individuals with disabilities
to be excluded from housing only if federal law or a presidential
Executive Order limits the housing to a different class of individuals.
An example of such a program is Housing Opportunities for Persons
with AIDS (HOPWA), in which applicants with disabilities other than
AIDS may be denied housing.
The impact of this position on FHEO's ability to enforce
the Section 504 regulations was significant. If HUD had not taken
this position, FHEO could have investigated complaints and helped
HUD resolve internal policy and regulatory conflicts on the basis
of objective and verifiable data. HUD could have developed a body
of law that would have enhanced the civil rights protections of
its beneficiaries and provided valuable guidance to its recipients.
Unfortunately, confusion and misinformation persist within HUD and
among recipients, providers, and beneficiaries.
The confluence of these issues led to changes that
affected, and continue to affect, FHEO's ability to enforce the
disability rights laws, especially against assisted housing providers.
In 1990, with HUD and the Administration's support, Congress changed
the definition of elderly to eliminate nonelders with disabilities
from housing programs that had previously housed both populations.215
Two years later, Congress amended the Section 202 program to eliminate
the eligibility of nonelders with disabilities, and created the
Section 811 program.216
The new program provides funding for rental subsidies and for assisted
housing for people with disabilities only. Consistent with the disability
rights laws, the legislation does not allow providers to distinguish
among disabilities in their application process unless they receive
specific permission to do so.217
Yet, across the country, HUD offices of housing are advising the
811 providers that they are to follow pre-1990 Section 202 rules.
As a result, housing for applicants with specific disabilities are
the norm rather than the exception.
Having hobbled its own Section 504 enforcement program,
HUD continued to recommend legislation that undermined those regulations.
For example, HUD strongly supported, and Congress enacted, more
changes in the Housing and Community Development Act of 1992 that
have diminished the availability of housing for and the rights of
nonelders with disabilities. Public housing authorities were permitted
to designate their elderly housing as elderly only if HUD approved
their plans to do so. Private housing providers who received HUD
subsidies were given even more leeway and were permitted to cease
accepting any but elderly tenants. They did not need HUD's approval
to do so. Although the legislation required HUD to issue guidance
for private housing providers, HUD never did so. As a result, HUD's
Office of Housing did not enforce protections for low-income tenants,
and FHEO and the Office of Housing gave private housing providers
conflicting information as to their responsibilities.218
Several studies have been commissioned to study the
impact of these changes. The most recent concluded that housing
providers accepted nonelders with disabilities most frequently in
poor neighborhoods and into troubled housing. Elders, in contrast,
were the exclusive tenants in good neighborhoods, in well-maintained
housing, regardless of the laws and regulations and with little
HUD oversight.219
This practice has civil rights implications; yet, in spite of repeated
requests to do so, HUD has never effectively reviewed and addressed
or acknowledged the impact of its interpretations on HUD's own civil
rights enforcement program and regulations or on the worsening housing
crisis for low-income renters protected by the civil rights laws.220
The 1992 law also resulted in HUD's creation of the
Occupancy Task Force. Congress required that the members of the
task force represent elders, individuals with disabilities, public
and assisted housing providers, HUD officials, and others who had
been involved in the elder-disability debates. The task force issued
consensus recommendations as to how HUD might conform its program
and civil rights regulations and policies. The Office of Public
Housing adopted many of the recommendations, while the Offices of
Housing and Community Planning and Development did not.221
The task force recommended that both the public housing
and the assisted private housing offices require landlords to develop
written procedures for providing reasonable accommodations to tenants.
It recommended that the Community Planning and Development Office
condition the grant of funds on the community's submission of a
credible fair housing plan and compliance with it. It recommended
that all of HUD's program offices provide housing recipients with
the marketing techniques developed by the task force to ensure that
accessible units would be occupied by families with mobility impairments.
Finding V.M.2.a: HUD's Occupancy Task Force issued
numerous recommendations in 1994 as to how the funding programs
could incorporate disability rights requirements into their operations.
The Offices of Housing and Community Planning and Development did
not adopt the majority of the recommendations. The recommendations
resulted from agreement among public and private housing providers,
advocates for elders and people with disabilities, and management
organizations.
Recommendation V.M.2.a: HUD should review and incorporate
as many of the Occupancy Task Force recommendations as are applicable
to HUD's current Housing and Community Planning and Development
programs. It should determine whether the recommendations can be
applied to programs and initiatives that did not exist in 1994 and
the most effective ways of applying them.
These conflicts focused the disability community's
attention on housing issues in several ways. In addition to the
work that FHEO and PIH accomplished, HUD established the Secretary's
Office on Disability Policy. Created in 1995, it was the first secretarial-level
office in HUD's history to focus on the rights of individuals with
disabilities. While it did not address enforcement issues per se,
it brought disability advocates into regular meetings with Secretaries
Henry Cisneros and Andrew Cuomo. The meetings alone raised the visibility
of the disability focus on HUD's programs. The office was also able
to resolve some of the rights-program conflicts and succeeded in
incorporating disability rights goals into both HUD staff performance
reviews and Notices of Funding Availability.222
Finding V.M.2.b: The Secretary's Office on Disability
Policy brought Section 504 and fair housing disability issues to
the attention of HUD's leadership. It encouraged the Secretary and
his staff to meet with disability rights advocates, and it resulted
in greater recognition among program staff of the implications of
program regulations and guidance for individuals with disabilities.
Recommendation V.M.2.b: HUD should maintain the Secretary's
Office on Disability Policy. HUD should assign it joint oversight
with the Office of Administration, FHEO, and the Office of General
Counsel for HUD's Section 504 federally conducted responsibilities
insofar as necessary to ensure that no HUD program operates in inaccessible
buildings; that HUD conducts an effective self-evaluation of its
policies, regulations, guidance, and practices; and that HUD drafts
an employment needs assessment, develops a transition plan to correct
deficiencies, and secures sufficient funding to implement the recommendations
from its assessments and evaluations.
Recommendation V.M.2.c:The Office on Disability Policy
should have a director with experience in disability rights. The
director should have at least one staff person for each of HUD's
offices, including FHEO. Each staff person shall be familiar with
the operations and statutory responsibilities of the particular
office. The staff person responsible for FHEO shall maintain continuing
communication with the Assistant Secretary of FHEO and shall ensure
that the two offices coordinate their activities. The office shall
be responsible for conducting a "disability impact study" of HUD's
major initiatives, which will include specific recommendations for
changes, expansions, and consultation with the civil rights community.
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.
Congress created the HOPE VI program for the purpose
of "transforming public housing projects into mixed income, diverse,
and stable neighborhoods."223
Unfortunately, HUD did not include individuals with disabilities
in the design process, nor did it consider the impact of promoting
the use of townhouses as the major design style to replace large,
multifamily structures. Instead, HUD decided to replicate "the most
stable and admired traditional neighborhoods," or neighborhoods
consisting "largely of two-story houses, often with raised front
porches, which have been a barrier to people with mobility impairments."224
As a result of the work of the Secretary's Office
on Disability Policy and pressure from disability advocacy groups,
HUD is now recommending, but not requiring, that HOPE VI projects
include modified single-story homes; condominiums; co-ops with first-floor
accessible flats; and two-story homes with elevators or lifts.225
N. The Most Recent Years: 1998-2001
1. FHEO and Departmentwide Coordination
The loss of resources and staff to the doubling campaign
was only one of the pressures that forced FHEO to rethink its Section
504 enforcement efforts. The second source of pressure came from
the disability community. Through FHEO directly and through the
Secretary's Office on Disability Policy, the disability community
was able to communicate its demands for more effective enforcement
of the civil rights laws throughout HUD. While the community received
far less than it requested, FHEO and HUD did make some changes.
FHEO joined the Offices of Housing and Community Planning
and Development to issue notices to their recipients reminding them
of their civil rights responsibilities. The first notice addresses
recipients' responsibilities to "affirmatively further fair housing."226
The notice requires compliance with the new construction requirements
of the FHA and warns recipients that if they fail to conduct an
Analysis of Impediments to Fair Housing Choice and to take appropriate
actions to address the findings of the analysis, HUD "may...reject
the Consolidated Plan." Presumably, HUD will not award funds to
a recipients whose plans have been rejected. HUD does not make that
clear in the notice, nor does it explain the process it will adopt
to deny funds to recipients. Because recipients include cities whose
size entitles them, by statute, to Community Development Block Grant
and other HUD funds, the notice's silence with regard to the procedure
it will adopt or the weight of evidence that it will require to
reject a city's Consolidated Plan undermines the credibility of
the threat. It would be encouraging if either the offices of CPD
or FHEO are permitted to hire staff to enforce the notice. Nonetheless,
the message is welcome and long requested by civil rights advocates.
The notice also responds to House Appropriations language by encouraging
recipient cities and states to adopt building codes that incorporate
the accessibility provisions of the FHA. That, too, is welcome.
The Office of Community Planning and Development recently
issued two additional notices.227
Both address accessibility and program requirements of Section 504,
the FHA, and the Americans with Disabilities Act (ADA). Because
CPD grant recipients communicate most frequently with CPD staff
and read CPD documents, HUD's inclusion of civil rights information
in these notices is appropriate and may be effective if the offices
are adequately staffed to, if necessary, monitor compliance, answer
recipients' questions, provide technical assistance, and initiate
enforcement actions.
These notices, along with a similar notice issued
by the Office of Housing,228
follow DOJ guidance from January 28, 1999, to enlist recipients
of block grant funding in civil rights enforcement efforts.229
The year before, HUD proposed rules pursuant to the FHA as to how
recipients of CDBG funds could "affirmatively further fair housing."230
HUD withdrew the rules after a sustained negative response from
CDBG fund recipients, led by the National League of Cities.231
It is hoped that the current Administration will embrace DOJ's guidance
and assist FHEO in enforcing these recent notices.
HUD has also begun to include civil rights guidance
in its funding publications. For example, HUD created the SuperNOFA
(Notice of Funding Availability) in 1998 for the purpose of consolidating
the application process of dozens of grant programs.232
Both FHEO and the Secretary's Office on Disability Policy successfully
encouraged HUD to incorporate civil rights guidance in the NOFAs.
This change had the salutary effect of notifying applicants
for HUD funds of disability and other civil rights requirements
in a way that was directly connected to the funding system.233
The drawback to this approach was that only those who applied for
specific HUD grants in the specific year learned of HUD's policy.
Had the policy been systematically codified, as TAGs had been in
the 1980s, posted on the Web, or published in the Federal Register,
the public and HUD staff would have been better served.
Finding V.N.1.a: HUD has, for the past three years,
included specific civil rights information in its Notices of Funding
Availability (NOFAs). The information is limited and is not preserved
in any form other than NOFAs. It has also issued notices to program
recipients about civil rights obligations in the context of specific
HUD grant programs.
Recommendation V.N.1.a: HUD should continue to include
civil rights requirements, especially Section 504 and other funding-related
requirements, in NOFAs and other communications with recipients.
HUD should maintain the information in a retrievable system for
recipients and the public. HUD should assign sufficient staff and
resources to the grant programs and to FHEO, both to provide adequate
technical assistance for voluntary compliance and to make the enforcement
warnings credible.
Both before and after HUD issued policy guidance through
the SuperNOFAs, various HUD offices, including FHEO, used a variety
of different vehicles to construe the application of Section 504:
letters from FHEO and from the Office of General Counsel in response
to questions, notices circulated internally and published in the
Federal Register, internal memoranda, guidance documents
in Q&A format, training materials, and correspondence with other
agencies.234
These materials, however, are not collected in one place, are not
cross-indexed, and are not searchable.
In 2001, HUD established a Section 504 Web site on
HUD's Web page: www.hud.gov/fhe/504/sect504.html.
In a press release issued January 19, 2001, Secretary Cuomo described
the site as providing valuable information for recipients of HUD
funds and for consumers with disabilities. In fact, the site provides
basic information, an FHEO complaint form, the means to file a complaint
online, links to Section 504 handbooks and regulations, and a useful
Q&A. The site does not provide the links to HUD's funding program
regulations and handbooks or to non-FHEO policy guidance that would
make it much more useful. The site is also difficult to find, requires
searching though FHEO links, and is not identified by name on either
the HUD or FHEO Web page. Nonetheless, this is a useful start.
Finding V.N.1.b: FHEO and HUD have begun to use the
Web to provide information to the public about programs, regulations,
notices, and related sources of information and assistance. The
FHEO Web page is promising but is difficult to navigate and does
not include all of HUD's past and current civil rights information
and documents.
Recommendation V.N.1.b: HUD and FHEO should maximize
their use of their Web sites. All HUD and FHEO information, guidance,
and requirements related to civil rights compliance and enforcement
should be on the Web sites. In particular, information that is not
retrievable in any other way should be on the Web sites. This includes
information in grant documents, such as the SuperNOFA, that defines
eligibility for HUD funding in terms of civil rights compliance.
O. Conclusion
The history of Section 504 enforcement at HUD has
been replete with good intentions, hard work, and partially fulfilled
promises. It is discouraging to hear FHEO promise to conduct the
same number of post-award compliance reviews in 2001 as it promised
in 1989. The current Administration has the opportunity to provide
strong support for meaningful enforcement of Section 504 and make
Section 504 enforcement an effective tool in the mandate to make
it possible for individuals with disabilities to live in the communities
of their choice.
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