Program Planning and Evaluation Office -three positions

Administrative Office-nine positions Education and Training Office-eight positions

Office of Housing Opportunity-19 positions

Office of Assisted Programs-22 positions Office of Contract Compliance and Employment Opportunity-13 positions.39 Of these seven offices, two-the Office of Housing Opportunity and the Office of Assisted Programs have the main responsibility for carrying out programs to assure fair housing. The Office of Housing Opportunity is responsible for administering Title VIII. Its director, a GS-17, currently is Kenneth F. Holbert. The Office of Assisted Programs is responsible for insuring that the programs and activities of the Department operate affirmatively to further the goals of equal opportunity." Its director, a GS-16, is Lloyd Davis.

2. REGIONAL OFFICES

HUD currently maintains six regional offices in the continental United States." Each regional office has an Assistant Regional Administrator for Equal Opportunity, who advises the Regional Administrator on equal opportunity matters and is responsible to him for administering and enforcing civil rights laws within the Department's jurisdiction."2 Just as the status of the Department's chief civil rights officer in the central office has been elevated from Director of Equal Opportunity to Assistant Secretary for Equal Opportunity, so the status of the chief civil rights officer in the field has been similarly raised from Assistant to the Regional Administrator to Assistant Regional Administrator.

The equal opportunity organization in the regional offices is as follows: A total of 30 positions is provided for the immediate staffs of the assistant regional administrators and their deputies. In addition, each of the Assistant Regional Administrators for Equal Oppor

"HUD, Equal Opportunity, Summary of Estimated Employment (undated).

"Handbook 1160.1A, at 17.

"In accordance with a Presidential directive, these will be expanded to 10 regional offices later in 1970. 42 HUD Transmittal Notice 1170.1 CHG 8, par. 170, Aug. 28, 1969.

tunity maintains the following units within their offices:

Housing Opportunity Division-95 positions.

Assisted Programs Division-38 positions. Contract Compliance and Employment Opportunity Division-50 positions.

There also are positions for eight equal opportunity representatives who act as the ARA's representatives in advising and assisting local groups and individuals." HUD is planning to establish "area offices" in 23 cities later this year. These area offices will be manned by about 70 equal opportunity staff members," in addition to program staff, who will have decisionmaking authority, leaving the regional offices with responsibility for postaudit reviews.45

As in the case of most other departments and agencies, the Assistant Secretary does not maintain line authority over the regional equal opportunity staff.46 The ARA is not appointed by the Assistant Secretary but by the Regional Administrator; the Assistant Secretary has only the right of veto. Further, the ARA has the power to select his own staff subject to the approval of the Regional Administrator. The Assistant Secretary has no official role in this selection process. In addition, the ARA reports formally to the Regional Administrator, not to the Assistant Secretary for Equal Opportunity. It should be made clear, however, that the status of the Assistant Secretary for Equal Opportunity is identical to program Assistant Secretaries in this regard. None maintains line responsibility over regional staff.47

"Id., at par. 172. See Organization Chart, Regional Office, Equal Opportunity Office, August 1969. According to HUD, these positions will not be filled. Romney letter, supra note 36.

"There will be approximately 50 professionals and 20 clericals. Romney letter, supra note 36.

45 Statement of Samuel J. Simmons, supra note 36. See also Romney letter, supra note 36.

"This is in contrast to the procedure of the Department of Health, Education, and Welfare, where the Director of the Office for Civil Rights holds the power to select all civil rights staff members, both in the field and in the central office. These staff members also report directly to him.

"Romney letter, supra note 36.

B. Administration and Enforcement

of Federal Fair Housing Law While organization and staffing reveal something about an agency's capacity to carry out assigned civil rights responsibilities, closer examination is necessary to determine the effectiveness of the agency's program. The relevant inquiries include what overall goals the agency has set, what enforcement priorities it has established to make most effective use of available staff and mechanisms, what use it makes of its own assistance programs to promote maximum compliance with civil rights laws, and what its activities are in areas other than enforcement to promote full compliance. In the case of HUD, answers to these questions suggest that effective administration and enforcement of the various civil rights laws relating to fair housing have not yet been achieved: that HUD has barely begun to use the variety of available enforcement techniques and strategies at its command.

1. GOALS AND POLICY

One major question that arises under Title VIII is the definition of "fair housing". Under a narrow definition of the term, HUD would attempt only to provide redress for individual homeseekers who have been discriminated against. Under a broader definition, HUD might establish as a goal opening of access to housing to minority groups throughout metropolitan areas.

If a narrow definition were adopted, HUD's major effort in implementing the law would focus on the resolution of complaints. Under the broader definition, a much wider range of enforcement activities could be undertaken.

As late as February 1970, nearly 2 years after the enactment of Title VIII, HUD's Director of the Office of Housing Opportunity conceded that this basic question had not been explicitly faced and answered.48 Six months later, HUD informed the Commission that: "The Department has established as its goal the creation of open communities which will provide an opportunity for individuals to live within a reasonable distance of their job and

48 Interview with Kenneth Holbert, Director, Office of Housing Opportunity, HUD, Feb. 18, 1970.

daily activities by increasing housing options for low-income and minority families." 49

An examination of the activities HUD has undertaken to implement Title VIII and the way it has carried them out suggests that as of June 1970 a narrower approach was being followed.50

2. TITLE VIII ACTIVITIES

Principal responsibility within the Office of the Assistant Secretary for Equal Opportunity for the administration and enforcement of Title VIII lies with the Office of Housing Opportunity. As noted earlier, this office consists of 19 professional and clerical staff members in Washington and 95 staff positions in the various regional offices throughout the country. In view of the variety of responsibilities imposed by Title VIII, a nationwide staff of less than 120 is clearly inadequate. Given the paucity of staff resources a serious question arises, as to whether they have been used as well as they might have been.

The enforcement priorities that have been developed have placed primary emphasis on the processing of individual complaints." This, in the Commission's view, makes it unlikely that significant changes in the policies and practices of the housing industry can be brought about in the reasonably foreseeable future or that the growing trend toward racial residential segregation can be reversed. a. Complaints

Section 810 of the Civil Rights Act of 1969 assigns HUD the responsibility for processing Title VIII complaints. The only authority given to HUD to eliminate or correct discriminatory housing practices, however, is "by informal methods of conference, conciliation, and persuasion." 52 HUD has no authority to issue cease and desist orders, nor is it empowered to institute litigation against parties it has found to discriminate.53

55

During the calendar year 1969, a total of 979 complaints under Title VIII were received.54 According to HUD, as of April 1970, about 270 had been dismissed without investigation and about 100 of the 176 cases the Secretary determined to resolve had been successfully conciliated. The rest were in various stages of processing.56 One major reason for the lack of greater success in resolving complaints under Title VIII undoubtedly is the absence of strong enforcement authority in HUD. In the event that "conference, conciliation, and persuasion" do not succeed, HUD has four additional courses of action available to it: It may recommend to the Attorney General that he bring a lawsuit, refer the matter to the Attorney General for any other appropriate action, institute proceedings under Executive Order 11063 or Title VI of the Civil Rights Act of 1964, where they apply, or inform other Federal agencies which have an interest in the subject matter of the complaint.57

It also is noteworthy that the number of complaints that have been received in the 2 years since Title VIII was passed is not impressive fewer than 1,500.58 One reason for

56

According to HUD, conciliation agreements are aimed at much more than individual relief for the complaint. They also involve institutional relief or affirmative action by the respondent to overcome the effects of his past discrimination. In addition, reporting requirements and provisions for compliance reviews are a part of almost all conciliation agreements. The result, HUD states, is that the processing of a complaint is not necessarily a "narrow" remedy but can be a means for opening an entire facility or development, or a whole complex of apartments managed by a specific firm or real estate broker to minorities protected py the law. Romney letter, supra note 36.

this may be the cumbersome procedures that must be followed under the statute. In housing, where the need for relief is often immediate, complex and time-consuming complaint procedures are likely to stifle complaints. Pursuant to section 810(b), complaints must be verified. Under this provision HUD requires notarization.59 Following receipt of a complaint, HUD has 30 days in which to investigate the case and give written notice to the complainant whether or not the Department intends to resolve it.60 Within that period, a copy of the complaint is forwarded to the party who is alleged to have discriminated. He has 20 days in which to answer.61 The answer must also be verified.62

Further, where a State or local fair housing law provides rights and remedies which are "substantially equivalent" to those under the Federal fair housing law, HUD is obligated to notify the appropriate State or local agency of the complaint and to take no further action if the State or local agency begins proceedings within 30 days.63 If HUD determines that under the circumstances of the particular case, the protection of the rights of the parties or the interests of justice require it, the Department may proceed on its own.64

A complainant also has the right to bring private court action if voluntary compliance has not been obtained.65 Further, a complainant may bypass the administrative process entirely and institute litigation in the first instance.66 The statute directs the courts, however, to "continue" such cases "if the court believes that the conciliation efforts of the Secretary or

59

According to HUD, "The 'requirement' of notarization was adopted because of the interpretation of the Department of Justice. There is no requirement that a complaint be sworn to at the time of filing. The use of a notary public is not necessary. Most complaints are in letter form and are verified under oath subsequently by HUD investigators. In addition, the majority of complainants have filed their own complaints without the assistance of a lawyer." Romney letter, supra note 36. * 24. C.F.R. 71.21(a).

a State or local agency are likely to result in satisfactory settlemen." 67

Most complaint activities are carried out by the six regional HUD offices, not by the central office.68 Thus, the Assistant Regional Administrator for Equal Opportunity and his staff handle the complaint process of acknowledgment, investigation, and conciliation. If a complaint involves possible violations of Title VI or of Executive Order 11063, action to bring about compliance is theoretically to be handled by the Assisted Programs Division in the regional office. But in fact, Title VIII staff handles these complaints as well, in the same manner as complaints involving nonfederally assisted housing.69

(1) Referral to the Attorney General

In cases where it is determined that complaints cannot be conciliated, one of the courses of action available to HUD is referral to the Attorney General for litigation or other appropriate action. The decision on whether particular complaints should be referred to the Attorney General is made by the Assistant Secretary for Equal Opportunity with the concurrence of the Office of General Counsel. As of April 1970 HUD had referred 33 cases to the Attorney General. According to Mr. Simmons, 22 such referrals have resulted in lawsuits.70

(2) Referral to State and Local Agencies

As noted earlier, where a State or local fair housing law provides "substantially equivalent" rights and remedies to those under the Federal fair housing law, HUD is required to refer complaints to the appropriate State or local agency. Key questions arise concerning the meaning of the term "substantially equivalent" and the standards by which it shall be

determined. Shortly after Title VIII was enacted, Robert C. Weaver, then Secretary of HUD, stated that the question of whether States or localities satisfy the "substantially equivalent" criterion would be answered on the basis of an evaluation of their performance, not by their statutes alone."1

In the more than 2 years since Title VIII was enacted, HUD has not developed standards with which to determine the adequacy of performance by State or local agencies. Nonetheless, as of March 1970 HUD was referring complaints to 21 of the 26 States that have fair housing laws.72 An examination of their statutes has been the basis for determining if these States provide "substantially equivalent" rights and remedies. No effort has yet been made to determine whether their performance is satisfactory. According to Mr. Simmons, recognition of these State laws as "substantially equivalent" is temporary. Plans have been made for more intensive examination of their operations, including such matters as budgeting, staff resources, and training." Of the 979 Title VIII complaints received by HUD during 1969, 74 were referred to these States. Of the hundreds of cities and the District of Columbia that maintain fair housing laws, however, HUD has not referred any complaints because the Department's Office of General Counsel has not yet completed its analysis of local ordinances.74

"Statement of Robert C. Weaver, Secretary, Department of Housing and Urban Development, at a meeting with representatives of private civil rights organizations, April 1968.

T2 The States to which HUD refers complaints are as follows: Alaska, California, Colorado, Connecticut, Delaware, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, Nex Mexico, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Wisconsin. In addition, referral to the States of Idaho, Iowa, Oregon, and Washington, is under study. HUD has decided not to refer complaints to Maine because it does not have an enforcement agency.

"3 Statement of Samuel J. Simmons, Assistant Secretary for Equal Opportunity, at a meeting with the members of the Committee on Compliance and Enforcement, Leadership Conference on Civil Rights, Apr. 7, 1970. As of August 1970, performance standards for determining equivalency were in the process of clearance. Romney letter, supra note 36.

74

Romney letter, supra note 36.

b. Noncomplaint Activities

While processing of complaints is only one of HUD's responsibilities under the fair housing law, the Office of Housing Opportunity has devoted itself to this aspect of its work almost to the exclusion of all others.

(1) Section 808 (d)

Section 808 (d) of the fair housing law provides:

"All executive departments and agencies shall administer their programs and activities relating to housing and urban development in a manner affirmatively to further the purposes of this title, and shall cooperate with the Secretary to further such purposes.

This provision offers HUD an opportunity to exercise a leadership position in bringing the resources of other agencies to bear on the effort to achieve an open housing market. During the first year following enactment of Title VIII, little was done to give meaning to this broad congressional mandate. Over recent months, however, HUD has begun to make significant efforts in two areas.

In May 1968, President Lyndon B. Johnson requested all Federal departments and agencies to submit reports on their current and proposed activities to further the purposes of Title VIII. More than 72 agencies did so.75 A summary of the reports was prepared by HUD, as well as tentative recommendations for ways in which current and proposed activities could be strengthened. The HUD report, however, remained in HUD files and was shared neither with the President nor with any of the departments and agencies whose activities were discussed.

In June 1968 HUD convened a meeting of representatives from departments and agencies which administer programs having a major impact on housing. According to HUD, the discussions at this meeting together with the information provided in the reports from departments and agencies pointed up the need to develop uniform Government policy in a number of areas common to various Federal programs. These areas were: mortgage lending by institutions that are federally benefited and

75 Letter from Samuel J. Simmons, Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development, to Howard A. Glickstein, Acting Staff Director, U.S. Commission on Civil Rights, Aug. 29, 1969.

supervised; site selection for Federal installations, housing programs for Federal employees; relocation of persons displaced by Government action; site selection and other problems related to Federal programs for the financing or provision of housing; and housing concerns as a part of the Federal contract compliance program.76

Despite HUD's recognition of need, little was done to develop the uniform Government policy that was called for. More than a year after the June 1968 meeting was held, HUD informed the Commission that the establishment of interagency committees to develop specific actions to implement Title VIII was still in the planning stage.""

76 Id.

"HUD reported, however, that it had worked informally with individual agencies on particular problems, such as with the Department of Defense regarding discrimination in off-base housing, the Department of Agriculture's Soil Conservation Service concerning the submission of assurances of nondiscrimination by private developers aided under that agency's program. Interview with Kenneth Holbert, Director, Office of Housing Opportunity, HUD, Feb. 18, 1970. Six months later, HUD reported the following:

"Meetings have been held with the appropriate offbase housing officers of the Department of Defense regarding problems in discrimination and processing complaints in off-base housing and also with DOD officials in charge of off-base housing programs at various bases throughout the country by regional offices. This has resulted in the expediting and the consolidation of efforts in handling such complaints. A series of meetings have been held with the Department of Agriculture (not informal) with officials of Farmers Home Administration, Soil Conservation Services, Office of their General Counsel, and the Assistant to the Secretary for Equal Opportunity at Agriculture. At the interview, representatives of the Commission were informed that Agriculture had agreed to revise their regulations in Farmers Home Administration to conform with FHA's policies regarding one and two family exemptions and racial restrictive covenants. In addition, significant progress was made in a discussion with officials of Agriculture's Soil Conservation Service by bringing to their attention the relationship of their services in soil testing in the development of watersheds, etc. to private developers who have developed lake-type communities with concurrent membership in country clubs and recreational facilities. The operation of this type of development to exclude minorities has been particularly difficult to reach because the overall contracts, while couched in words which can operate in an exclusionary manner, do not specifically use race, color, creed, or religion. The fact that these developments could be made subject to Title VI requirements in and of itself