During recent months, HUD has accelerated its efforts under section 808 (d). Beginning in the fall of 1968, the Department held a series of meetings with Federal financial regulatory agencies, the Department of Justice, and the Commission on Civil Rights, to develop procedures for implementing the prohibitions contained in Title VIII against discrimination in the financing of housing." Among other efforts, HUD has urged the Federal financial regulatory agencies to require the lending institutions they supervise to maintain records by race and ethnic origin of all loan applicants.

Establishment of uniform site selection criteria for the location of Federal installations is another major area in which HUD has attempted to assume a leadership position among relevant Federal departments and agencies. Beginning in March 1970 it convened a series of meetings attended by the major departments and agencies having installations in the Washington Metropolitan Area, the General Services Administration, [the agency responsible for acquiring space for most Federal departments and agencies], and this Commission."9

indicates significant progress because over the years prior to Title VIII when they openly advertised for white only, the Department could not reach them because financing was generally private and not through any of HUD's programs. In addition, HUD has been working with VA to develop a coordinated approach to mutual problems in the implementation of Title VIII." Romney letter, supra note 36.

78

Sec. 805. The Federal financial regulatory agencies are the Federal Home Loan Bank Board, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation. In June 1968, this Commission forwarded a memorandum to each of these agencies, as well as to HUD and Justice, calling attention to the fact that under the fair housing law and the Financial Institutions Supervisory Act of 1966, the Federal financial regulatory agencies had a statutory obligation to take action to assure against discrimination by the institutions they supervised. See discussion of Federal financial regulatory agencies, sec. V, infra.

" This Commission, in its recent report, Federal Installations and Equal Housing Opportunity (1970), recommended an Executive order by the President to assure that before Federal installations locate in any community, especially a suburban community, the community demonstrate that there is a sufficient supply of lower-income housing to meet the current and projected needs of the agency's employees and that the community in fact be open to all without discrimination. For a

Although there are many other areas requiring coordinated Federal policy with HUD leadership to which the Department has not yet addressed itself,80 the actions that it has begun to take to carry out its mandate under section 808 (d) show promise.

(2) Section 808 (e) (5)

Section 808 (e) (5) provides as follows:

The Secretary of Housing and Urban Development shall administer the programs and activities relating to housing and urban development in a manner affirmative to further the policy of this title.

If HUD has begun to take affirmative action to prod other departments and agencies to administer their programs and activities to further the purposes of Title VIII, it has been slow to do the same with respect to its own programs. For example, while urging the Federal financial regulatory agencies to require mortgage lending institutions to collect racial and ethnic data, HUD has shown reluctance to collect such data with respect to its own programs.

In August 1969, the Veterans' Administration proposed to collect data on racial and ethnic participation in a number of its programs, including the loan guaranty program which is similar in function to the Federal Housing Administration mortgage insurance program. This Commission, in response to a request from the Bureau of the Budget for comments on the Veterans Administration's proposal, strongly supported it and urged that HUD adopt similar procedures, particularly with respect to FHA mortgage insurance programs.81 The Commission pointed out that HUD had urged the Federal financial regulatory agencies to require collection of racial and ethnic data and it observed that for HUD to refuse to collect these data with respect to its own programs would place the Department in the position of urging a higher standard on other agencies than it was willing to impose upon itself,82

It was not until April 1970 that the decision

was made to collect racial and ethnic data for all HUD programs.83 The actual collection of these data, however, has not yet been undertaken.84 As of August 1970 Mr. Simmons was chairing a task force within HUD to work out problems of implementation.

It will also be recalled that HUD has convened meetings aimed at establishing uniform site selection criteria governing the location of Federal installations which would promote the purposes of Title VIII. As of June 1970, while these meetings were proceeding, HUD had not yet developed uniform site selection criteria governing its own programs. Such criteria were in force only with respect to the public housing program. Other lower-income housing programs, administered by the Federal Housing Administration, such as rent supplements, section 235 (home ownership for lower-income families), section 236 (rental housing for lower-income families), and section 221 (d(3) (rental housing for moderate-income families), operated with no site selection criteria relating to equal opportunity.85

In fact, HUD claims very little in the way of positive accomplishment in carrying out its mandate under section 808 (e) (5). In August 1969 in response to a Commission questionnaire concerning changes in program operation pursuant to this statutory provision, Mr. Simmons replied as follows:

A series of Equal Opportunity task forces will soon commence an examination of each HUD program to determine what additional Equal Opportunity requirements should be adopted in the light of Title VIII." (Italic added.)

In April 1970, the examination of HUD programs had begun, but the Assistant Secretary was still discussing program changes in terms of future steps.87

C. Other Activities Under Title VIII Title VIII authorizes HUD to engage in a number of nonenforcement activities, which nonetheless can further the purposes of Title VIII. For example, HUD is directed to make studies on the nature and extent of discriminatory housing practices in representative communities.88 Because of limited funds, the Office of Equal Opportunity has undertaken no studies of its own. Funds from the Department's research and technology program, however, have been used to finance three private studies along this line.s9

HUD is also directed to publish and disseminate reports, recommendations, and information derived from its studies. The only publications HUD has issued are three pamphlets explaining the rights protected by Title VIII. Although HUD intends to do so, it has not yet translated these publications or its complaint form into Spanish.

Under section 808 (e) (3), HUD is directed to cooperate with and give technical assistance to public and private agencies which are conducting programs aimed at preventing housing discrimination. According to Mr. Simmons, HUD has conducted training programs for Federal Executive Boards.91 There is little indication, however, of a systematic effort to carry out the technical assistance directive.92 adopted by September 1970, concerning the following subject areas: Site selection, tenant selection, citizen participation, relocation, new towns, and planning.

8 Holbert interview, supra note 48. One study is being conducted by the Washington Center for Metropolitan Studies, in the Washington Metropolitan Area; another by the Leadership Council for Metropolitan Open Communities, in the Chicago area; and the third by the National Committee Against Discrimination in Housing, in the Bay Area of California. Id.

90 Sec. 808(e)(2).

01 Interview with Samuel J. Simmons, Assistant Secretary for Equal Opportunity, Mar. 6, 1970.

92 This is true unless the term technical assistance is interpreted very broadly. For example, according to HUD, the Atlanta regional office maintains a speakers bureau which sends staff members to speak to private housing groups. Further, the Atlanta and Fort Worth offices both have discussed housing problems with private attorneys. Interview with Mrs. Laura Spencer, Deputy Director, Office of Housing Opportunity, Department of Housing and Urban Development, Feb. 18, 1970. In addition, HUD informed the Commission that data prepared for its fiscal year 1971 budget show

In fact, HUD, which previously maintained a technical assistance office under the Assistant Secretary for Equal Opportunity in Washington and a technical assistance division in each regional office, has abolished such offices as formal equal opportunity units.93 Regarding cooperation with private groups, HUD informed the Commission in February 1970 that when such groups request assistance on individual projects HUD offers its advice." HUD later informed the Commission that it works with these groups in planning programs and supplies HUD resources.95

HUD also is directed to cooperate with and give technical assistance to the Community Relations Service to eliminate discriminatory housing practices.96 As of March 1970 according to one HUD official, no formal contact

a total of 480 conferences, speeches, and joint programs with State and local fair housing commissions, as well as approximately the same number of contacts with private housing groups and private agencies and about 250 other affirmative action contacts. There were also 50 press conferences and television appearances. Romney letter, supra note 36. The extent to which these conferences, speeches, joint programs, and contacts represent technical assistance is not clear.

93 The function of technical assistance has been transferred to the program units. Romney letter, supra note 36.

94

Spencer interview, supra note 92.

"Romney letter, supra note 36. One recent project, according to HUD, was a fair housing conference held in Toledo, Ohio. The HUD Chicago regional office and its central office supplied the technical assistance and speakers for the program. Continued help is being furnished to this group in implementing the program adopted at the meeting. In addition, two staff members spent two days in Greensboro, N.C., at the invitation of the Greensboro Chamber of Commerce to participate in various activities of the Chamber concerned with the elimination of discrimination in housing and the development of a community approach to the problem. The Housing Opportunity Division has assisted the NAACP Housing Office in planning and conducting conferences and seminars relating to problems in housing. Speakers were supplied to the "Commitment to Build" meetings sponsored by the National Association of Home Builders, National Association of Real Estate Brokers, and other private groups at 10 meetings across the country in March and April 1970. Most regions have had discussions with and presentations for civil rights attorneys. The New York Office has conducted research on informing the Cuban population of its rights under Title VIII and has prepared a report indicating some solutions to this problem. Id.

* Sec. 808(e) (4).

between the two agencies had yet been initiated.97

Among other nonenforcement activities of HUD is an advertising campaign undertaken by the Department early in 1969 and extending through the calendar year. This campaign included spot announcements on television, tape and radio broadcasts, and newspaper announcements of the Title VIII program and the individual's rights available under the title. A contract was let in June 1970 for a new advertising campaign based on the experience of the previous campaign.98 In addition, in June 1969, HUD conducted training sessions for its personnel concerning investigations, conciliation, and case reporting as well as an overall presentation of the law and history of discrimination. The discussions were led by HUD personnel as well as representatives of the Department of Justice, the EEOC, and experts from the private sector. These training sessions were followed by training at the regional offices. Training activities also have begun with State civil rights commissions.99

D. Activities Under Title VI and
Executive Order 11063

In addition to the requirements of Title VIII, all HUD programs are subject either to the requirements of Title VI of the Civil Rights Act of 1964 or Executive Order 11063. Thus, FHA housing programs which provide assistance solely in the form of mortgage insurance, while excluded from coverage under Title VI, are subject to the requirements of the Executive order.100 Other FHA programs, however,

"Spencer interview, supra note 92. According to Mrs. Spencer there has been some cooperation in the field between HUD and CRS. For example, CRS was present at conciliation sessions in one case in the Fort Worth region. HUD later advised this Commission that formal contact had in fact been initiated prior to March 1970, but that no meeting had yet been held because CRS was studying its responsibilities under Title VIII and wished to complete the study prior to formal conversations. Romney letter, supra note 36. Romney letter, supra note 36.

98

3 Id.

100 Section 602 of Title VI excludes from coverage "a contract of insurance or guaranty." The principal programs excluded from Title VI but included under the Executive order are its single-family, market-price

which provide assistance both through mortgage insurance and subsidies in the form of assistance payments-the lower-income housing programs administered by FHA-are inIcluded within the scope of Title VI by virtue of the subsidies provided.101 Other major HUD programs which provide assistance through loans and grants, such as urban renewal, public housing, model cities, and various metropolitan development programs (e.g., grants for water and sewer facilities and planning), also are covered by Title VI.102

Both Title VI and the Executive order, through the leverage of financial assistance provided under the covered programs, can be of substantial help in overcoming the enforcement weaknesses of Title VIII. Further, the programs themselves necessarily have significant impact on the development of housing patterns throughout the country. Depending upon how they are administered and the standards governing their operation, they either contribute to eliminating patterns of racial residential segregation or to maintaining and intensifying segregated housing patterns and perpetuating a restricted housing market.

Many of these programs have been in operation for a number of years-in some cases for decades. For example, FHA programs were established in 1934, low-rent public housing in 1937, and urban renewal in 1949. The past civil rights experience under many of these programs has been unfortunate. The opportunities for utilizing them as a force for a unified society have not been taken. As previously noted, discrimination and exclusion of minority group members have been common.

For example, FHA mortgage insurance programs, through enlightened policies at a time when the agency was a major force in the private housing market, could have done much to promote open housing. Instead, FHA, in its early years, openly encouraged racial separation in housing, going so far as to recommend a model racially restrictive covenant to be used housing program (sec. 203) and its multifamily, market-rent housing program (sec. 207).

101 These programs are rent supplements, section 235, section 236, and FHA 221(d) (3) (below-market-interest rate).

on property receiving the benefits of FHA mortgage insurance. Later it acquiesced willingly to the continuation of housing discrimination by builders receiving its aid.103 Thus, FHA was a major factor in the development of the segregated housing patterns that exist today.

Over the last decade, FHA has been charged with the responsibility for administering housing programs for lower-income families, as well as for those that serve the more affluent. In the operation of these programs, decisions on site selection and tenant selection are of critical importance in determining whether they contribute to reversing the trend toward racial residential segregation or to perpetuating it.

Public housing, which for more than three decades has been the major program serving low-income families, is also of prime importance in determining patterns of racial residence. Here, too, standards and decisions on site selection and tenant selection are keys to determining the range of housing choice for minority group families. Until recent years, these decisions almost invariably had the effect of intensifying racial and poverty concentrations in central cities.

In urban renewal, which typically involves clearance of designated areas and reuse of the cleared land for purposes of revitalizing cities, the important decisions are: which areas will be selected for clearance; what reuse will be made of the cleared land; and what opportunities will be made available to families who are displaced? In the past, these decisions frequently have worked to the detriment of minority group families. In most cases, it is their homes that have been selected for razing, the new housing provided on the cleared land has often been beyond their means, and inadequate attention has been paid to provision of opportunities to relocate satisfactorily. It is with considerable justification that minority group members have viewed urban renewal with distrust and bitterness.104

103 For a description of the history of FHA policy, see 1961 Commission Report, ch. 2.

104 HUD concedes that the effect of urban renewal on minorities has obviously been harmful in the past. According to HUD, some past projects appear to have aimed at nothing more than Negro removal. Others have swept through minority neighborhoods because

In each of these important programs the key decisions are made by parties other than HUD. In FHA programs, for example, private builders and developers determine where the housing will be located and who will buy or rent it. Further, private mortgage lending institutions decide which housing they will finance and which loan applicants they will approve. In public housing, the decisions on site selection and tenant selection are made by local housing authorities which are State agencies. In urban renewal, responsibility for selecting areas for clearance and for assuring adequate relocation for displaced families rests with local urban renewal authorities [local public agencies], which also are State agencies. Local urban renewal agencies also determine the reuse of the urban renewal land after clearance. Once the land is disposed of to private redevelopers, it is they who determine who will occupy the housing provided on it.

Although the key decisions are made by parties other than HUD, the Department is not without authority to assure that these decisions serve to further and not to thwart the purposes of fair housing. HUD has responsibility under Title VIII, Title VI, and the Executive order, as well as under the statutes governing its substantive programs, to establish standards and criteria that will promote equal opportunity, and to undertake the kind of compliance reviews that will assure adherence to these standards by the parties with whom it deals (private builders and mortgage lending institutions, local housing authorities, and local urban renewal authorities).

1. OFFICE OF ASSISTED PROGRAMS

Responsibility within the Office of the Assistant Secretary for Equal Opportunity for enforcement of regulations and other requirements under Title VI and the Executive order rests with the Office of Assisted Programs.

the residents were poor and powerless and because local officials either did not care or were unable to perceive the magnitude of the changes being forced on disadvantaged citizens. Romney letter, supra note 36. HUD states, however, that new legislation and HUD regulations have attempted to minimize that harmful aspects of urban renewal on project area residents. Requirements for low- and moderate-income housing in residential projects, new fair housing legislation, cash payments to homeowners, and the like, have improved the lot of persons displaced. Id.

There is some question, however, as to the extent of Mr. Simmons' authority. According to the HUD organization, he is responsible for administering the Department's responsibilities under Title VI and the Executive order.105 Under the Department's Title VI regulations, however, these responsibilities rest with the program administrators, not the Assistant Secretary for Equal Opportunity.106 Indeed, Mr. Simmons confirmed to the Commission that he is not responsible for effecting compliance with Title VI.107 In at least one important instance responsibility apparently is exercised neither by the Assistant Secretary for Equal Opportunity nor by the Program Assistant Secretary. William B. Ross, then Acting Assistant Secretary for Mortgage Credit, informed the Commission in August 1969 that compliance reviews are the responsibility of the Office of the Assistant Secretary for Equal Opportunity.108 According to the HUD Title VI regulations, however, compliance reviews are supposed to be the responsibility of the program administrator which, in the case of FHA programs, is the Assistant Secretary for Mortgage Credit.109 Mr. Simmons confirmed this and added that the Program Assistant Secretaries were not conducting compliance reviews.110 The confusion apparently is caused by the fact that the original HUD Title VI regulations, which assigned responsibility to Program Assistant Secretaries, have not been revised since the position of Assistant Secretary for Equal Opportunity was created. As of April 1970, the regulations were in the process of revision to transfer authority from program assistant secretaries to the Secretary himself, who, in turn, will delegate the respon

105 HUD Handbook No. 1160.1A, “Organizations: Assistant Secretary of Equal Opportunity", September 1969, at 1.