a series of meetings with representatives of the Department of Justice and this Commission to discuss both aspects of the Commission's memorandum-action to prevent discrimination by mortgage lending institutions and action to require mortgage lending institutions to impose nondiscrimination requirements on builders and developers with whom they deal. HUD also held separate meetings with representatives of the four financial regulatory agencies. The only concrete result of the meetings with the regulatory agencies was the issuance of letters by the banking agencies advising banks of the requirements of section 805. In June 1969, HUD convened an interagency task force consisting of representatives of the Department of Justice, this Commission, and the four financial regulatory agencies. HUD prepared a list of specific recommendations for an affirmative program by the regulatory agencies to assure compliance with the requirements of section 805. Among the recommendations made by HUD were: 1. The issuance of regulations or binding instructions, requiring that each institution keep on file all loan applications, indicating the race or color of the applicant, together with other relevant information, such as the character and location of the neighborhood in which the property involved is located, and if the application is disapproved the reason why. 2. A requirement that each lending institution post a notice in its lobby stating that the institution does not discriminate in mortgage lending and informing the public that such discrimination is in violation of section 805. 3. The development of a special form of examining documents for use by examiners in checking on discriminatory lending practices covered by Title VIII. 4. Development of a data collection system designed to reveal patterns or practices of discrimination in home mortgage lending operations covered by Title VIII.221 There were no recommendations, however, 221 HUD Proposals for Affirmative Action by Federal Financial Regulatory Agencies Under Title VIII (Fair Housing) of the Civil Rights Act of 1968, June 1969. concerning the Commission's second suggestion. The regulatory agencies, agreeing to incorporate into their examinations procedures for detecting discrimination in mortgage lending, were opposed to requiring the lending institutions to maintain racial and ethnic data on loan applications. Absent such data collection, however, it was difficult to see how examiners would be in a position to detect patterns or practices of discrimination. Finally, a compromise was reached whereby the regulatory agencies agreed to send a questionnaire to all member institutions for the purpose of determining their current policies in making loans available to minorities and gauging whether discrimination was a serious problem. As of June 1970, the questionnaire was in the process of review by the Bureau of the Budget. E. Staff Resources and Potential Use Each of the four agencies employs a large number of examiners who visit member lending institutions on a regular and systematic basis to determine compliance with various laws affecting them. The Federal Home Loan Bank Board, for example, employs 600 examiners to examine its 4,800 member institutions. The Comptroller of the Currency employs 1,700 examiners to examine its 4,700 national banks. The Board of Governors of the Federal Reserve System employs 300 examiners to examine its 1,200 State member banks. The Federal Deposit Insurance Corporation employs nearly 1,000 examiners to examine its 7,500 Statechartered, nonmember, insured banks. Through this network of examiners, these agencies maintain close supervision over the activities of their member institutions. As one administrative law authority has observed: "The regulation of banking may be more intensive than the regulation of any other industry. . . 222 These examiners also represent a potential source of civil rights compliance officers. Through them, the regulatory agencies have the capacity for conducting intensive and complete compliance reviews. The examiners, however, are not being utilized to carry out the agencies' responsibilities under Title VIII. 222 Davis, Administrative Law Treatise, sec. 4.04, at 247 (1958). Without detailed racial and ethnic data on loan applications examiners can do little more than go through the motions of checking on civil rights compliance. The questionnaire that the regulatory agencies have agreed to send to their member institutions represents a commendable first step. Through it, they will, for the first time, obtain information indicating the extent to which the problem of discrimination in mortgage lending exists.223 This can be considered, however, only a first step. As in other areas of civil rights compliance, the collection of racial and ethnic data is crucial. Moreover, the questionnaire relates only to the practices of the mortgage lending institutions themselves. No formal consideration has yet been given by the regulatory agencies to the Commission's second recommendation, relating to the practices of builders and developers financed through these institutions. Strong action on both recommendations would contribute significantly to achieving the goal of equal housing opportunity, in fact, as well in legal theory. VI. THE GENERAL SERVICES As this Commission pointed out in its recent report on "Federal Installations and Equal Housing Opportunity", the leverage of the substantial economic benefits frequently generated by the location of Federal installations can be a persuasive force in opening up housing opportunities throughout metropolitan areas for lower-income and minority group families.224 223 The agencies have argued that they have received no indication that discrimination in mortgage lending is a problem at all. For example, as of March 1970, the FHLBB had received only four complaints concerning discrimination. The FDIC had received only two. The Board of Governors of the Federal Reserve System had received none. The Comptroller of the Currency office had received only one. It is doubtful, however. that these complaints reflect an accurate measure of the extent of the problem. For one thing, the agencies are largely unknown to those outside the financial communities. Therefore, it is doubtful whether people discriminated against would know to whom to complain. U.S. Commission on Civil Rights, Federal Installations and Equal Housing Opportunity at 8, 9 (1970). 224 The Federal Government, like private industry, has been locating its facilities increasingly in suburban and outlying parts of metropolitan areas.225 These typically are areas in which the supply of housing within the means of lowerincome employees either is inadequate or nonexistent. Many of these communities traditionally have also excluded minority group families, whatever their income. The relocation of Federal installations to these communities has caused hardships to lower-income and minority group employees and their families.226 Often they cannot find housing and must either commute long distances or seek new jobs. The General Services Administration is the one Federal agency possessing the greatest potential for promoting uniform policy to assure the availability of housing for lowerincome and minority group families in communities where Federal installations are located. Under Federal law, most space for Federal agencies is acquired and assigned by the GSA.227 Until March 1969 neither the General Services Administration nor any other Federal department or agency specifically considered the housing needs of lower-income or minority group employees among the criteria by which sites for Federal installations would be selected.228 In March 1969, however, GSA announced a new requirement to assure availability of lowand middle-income housing accessible to Federal installations. 229 Under this GSA policy the agency will avoid locations where three conditions exist: 227 W40 U.S.C. 490(e), (1964). Some agencies, such as the Treasury Department, the Post Office Department and the Atomic Energy Commission, have authority to acquire their own space. However, they may request that GSA acquire land for buildings and contract and supervise their construction, development, and equipment. 40 U.S.C. 490 (c), (1964). 228 For a description of past GSA policy, see Federal Installations and Equal Housing Opportunity, supra note 224, at 15-17. 229 Memorandum from William A. Schmidt to all regional administrators of GSA, Mar. 14, 1969. See, Federal Installations and Equal Housing Opportunity, supra note 224, at 17, n. 119. 1. The area is known to lack adequate housing for low- and moderate-income employees; 2. The area is known to lack such housing within a reasonable proximity; and 3. The area is not readily accessible to other areas of the urban center. This policy, while it represents a commendable step forward, leaves a good deal to be desired. First, as of April 1970, the policy had not been implemented through any GSA regulations or guidelines. Secondly, it is totally silent on the issue of availability of housing for minority group members. GSA has explained that in view of the fact that it is not responsible for providing space for all Federal agencies, it would not be appropriate ". . . to decide and publicize that our program of locating Federal agencies be used as a leverage to enhance open access to housing." 230 The Commission contended that despite jurisdictional limits, GSA should exercise leadership in promoting a policy of open access to housing.231 Nonetheless, believing that site selection policy should be uniform and applicable to all agencies whether or not served by GSA, the Commission also urged the issuance of a directive by the President.232 The Executive order recommended would establish a uniform policy of site selection governing location and expansion of all Federal installations.233 The goals of this Executive order recommended by the Commission were: 1. To expand housing opportunities for lower-income and minority group families outside areas of existing poverty and minority group concentration. 2. To facilitate employment opportunities for lower-income and minority group employees. 3. To promote the balanced economic development of central cities and suburban parts of metropolitan areas. 4. To contribute to the elimination of racial and economic separation.234 Specifically, the Commission recommended that Federal departments and agencies having responsibility for determining sites for Federal installations be directed to apply the following as prerequisite to approving any community as a site for a Federal installation: 1. The community should be required to demonstrate that there is a sufficient supply of housing within the means of lower-income families to meet the needs of present and potential employees, or that such housing will be produced within a reasonable period of time. Some ways the Commission suggested that this requirement could be satisfied were: (a) the community has taken the necessary steps involving local government approval to permit operation of the various Federal low-income housing programs; (b) the community maintains zoning ordinances, building codes, and other appropriate land use requirements that facilitate provision of lower-income housing in all sections of the community; and (c) plans for lower-income housing adopted by builders or developers have reached an appropriate point of maturity. 2. The community under consideration should be required to demonstrate that conditions exist, or will exist within a reasonable time, to facilitate housing of minority group residents within its borders on a desegregated basis. Among the ways the Commission suggested that this requirement could be satisfied were: (a) the community maintains a comprehensive, enforceable fair housing law; (b) members of the local housing and home finance industry have adopted affirmative marketing policies designed to attract minority group members to the community; and (c) steps have been taken by local government officials and by local civil groups and leaders to assure that all facilities and services in the community are open to minority group families on an equitable and desegrated basis, and that minority group members will participate fully in community life.235 On February 27, 1970, the President issued Executive Order 11512, setting forth criteria to be considered in selecting sites for Federal installations. Although the order was issued shortly after issuance of the Commission's re 235 Id., at 22-23. port and recommendations, it had been in preparation for some months prior to release of the Commission's report. The order contains two significant provisions bearing on the civil rights implications of Federal site selection policies. First, among the policies which the order directs the General Services Administration and other executive agencies to be guided by in selecting sites for their installations is "the availability of adequate low and moderate income housing . . . .” 286 Second, the order directs that: "Consideration shall be given in the selection of sites for Federal facilities to . . . the impact a selection will have on improving social and economic conditions in the area.” 237 Thus the order, in effect, incorporates the GSA policy on availability of lower-income housing as a uniform Federal policy, applying to all Federal departments and agencies. In addition, it goes beyond GSA policy to assure that consideration of the social and economic welfare of the area also will be uniform Federal site selection policy. While the order specifies that these are among the policies by which departments and agencies are to be guided, it is not clear what priority is to be accorded them in relation to other, and perhaps conflicting, policies, such as "efficient performance" 238 and "adequacy of parking" 239 Further, the order is silent on the matter of racial discrimination. In March 1970, HUD initiated a series of meetings with major departments and agencies that maintain installations in the Washington, D.C. metropolitan area. The purpose of the meetings is to strengthen the site selection policy for Federal installations to assure that adequate housing is available for lower-income employees and to assure that it is available on an equal opportunity basis. HUD presented detailed recommendations for criteria that would achieve these ends.240 One of the important considerations has been how a uniform policy, if agreed upon, would be enforced-by what authority individual departments and agencies could be required to adhere strictly to the criteria decided upon. One means suggested would be through a new Executive order by the President incorporating these criteria into the recent, but limited, order on this subject. VII. THE DEPARTMENT OF DEFENSE AND OFF-BASE HOUSING A. Purpose and Aims of the Off-Base Housing Program A 1963 Defense Department directive 241 stated in part: Discriminatory practices directed against Armed Forces members, all of whom lack a civilian's freedom of choice in where to live, to work, to travel and to spend his off-duty hours, are harmful to military effectiveness. Therefore, all members of the Department of Defense should oppose such practices on every occasion, while fostering equal opportunity for servicemen and their families, on and off-base. Base commanders were charged with the responsibility of opposing discriminatory practices affecting their men and were given the authority, subject to the prior approval of the appropriate Service Secretary, to use the "offlimits" sanction to combat such discrimination. However, sanctions were not imposed on any housing units because of their refusal to rent on a desegregated basis. This voluntary program did not produce much change in the Nation's segregated housing patterns, for in July of 1967 only 41 percent of the housing around military bases in the South and 60 percent of the off-base housing nationwide were reported by base commanders as being available to Negro servicemen.242 A new program was announced in April 1967 by Cyrus Vance,243 then Deputy Secretary. B. Mechanics of the DOD Program The first phase of the new program consisted of a survey of multiple-unit rental facilities in the vicinity of each military base in the continental United States with 500 or more military personnel.244 It included a determination of which facilities were to be surveyed, personal contact with each facility owner or manager to ascertain his rental policy,245 and a report of the results to the Service Secretaries. The instructions were silent with regard to the inclusion of substandard housing. Each base commander was responsible for carrying out all parts of this phase by July 15, 1967.246 The second phase consisted of a mobilization of community support for the DOD housing program and a continuous updating of the statistics gathered in Phase I. The base commanders were required to enlist the assistance and support of all interested parties in and attempt to change the policy of those facilities that were closed to Negro servicemen.247 To accomplish this end, wide discretion was vested in each military commander. This phase was scheduled to end on August 31, 1968, but was subsequently extended indefinitely. 245 "DSD Apr. 11, 1967 memorandum, supra note 243. ASD(M) multiaddressee memorandum, Equal Opportunity for Military Personnel in Rental of Off-Base Housing, Apr. 22, 1967. Housing that was to be surveyed consisted of apartment buildings, housing developments and trailer courts, with five or more rental units, that were within the "normal commuting distance of the base." In order to obtain the necessary survey information, the base commander or a senior staff representative was to contact the owner of each facility in person. If this proved to be impossible, contact was to be made in writing. In a case where the commander had satisfactory evidence, which could be documented, that a facility was in fact operated on a nondiscriminatory basis, the necessity for personal contact was waived. 246 Id. 247 ASD(M) multiaddressee memorandum, Equal Opportunity for Military Personnel in Rental of Off-Base Housing: Phase II Guidance, July 17, 1967. A department directive, in setting guidelines for installation commanders to follow in their affirmative action phase of the program, indicates that each commander was to determine the most effective approaches to achieve open housing for military personnel. The commander is warned, however, that "in some communities, a proposal for open housing evokes unjustified and emotional fear and antagonisms. . . .” 248 In addition, the commander is informed that "[T]he importance of seeking, obtaining, and mobilizing the cooperation and support of local leaders— elected, civic, business and religious-cannot be overemphasized. It should be made clear to owners and managers that they are not being asked to lower their standards of tenant acceptability. . . .” 249 The directive further indicates that where there is reason to believe that a facility, which has signed an open-housing assurance, has discriminated against Negro servicemen, the commander should check on the sincerity of the assurance "through appropriate means" but the commander is specifically directed not to test the policy of facility owners "by utilizing individuals who purport to be prospective tenants when in fact they are not." 250 Nowhere in the directive is contact with civil rights or open housing groups mentioned and although "testing" is forbidden, no alternative method of checking the sincerity of an owner's assurance is suggested. Furthermore, the directive does not advocate or even mention direct contact between command officials and minority group servicemen. Yet, if the command, which is usually all-white, is to develop a real understanding and appreciation of the problems faced by minority servicemen, open discussion must take place. This is especially true because many black and Spanish surnamed American servicemen will not report incidents in which they were discriminated against and, in some cases, they will not even know if they were refused a rental because of their race or ethnic background. Since military installations do not maintain central |