ized lists of the address of each serviceman, frank discussions are the best method of discovering the reasons why, despite open housing assurances, many minority group servicemen continue to live in segregated and less adequate facilities than majority group servicemen. C. Housing Referral Services Military bases have always had a housing officer who assisted those military personnel seeking off-base housing. This officer maintains a list of facilities to which he refers those who approach him. To be included on that list, a landlord fills out a housing information sheet that provides the housing officer with all necessary information concerning the facility (e.g., number of units, price, facilities offered). In the past, however, many servicemen did not contact the housing officer, but preferred to fend for themselves. In July 1967, the Secretary of Defense ordered that a housing referral office be established at every military base taking part in the program for equal opportunity for military personnel in off-base housing.251 He directed that, at the time of arrival at the installation, all personnel requiring off-base housing should be required to clear through the office. Under the Secretary's order, the housing referral sends servicemen only to those housing facilities whose owners have completed a housing information sheet containing an assurance that the facility is open to all servicemen.252 To insure that all facilities listed with the housing referral office are operated on a nondiscriminatory basis, each office instituted a mandatory feedback system whereby personnel are required to report their experiences in obtaining housing. A card is provided each serviceman for this purpose. On it he indicates which unit he has selected. He also specifies reasons, from among several stated on the card, why other units were rejected. There is no place on the card, however, for the serviceman to indicate that he believes he has been refused housing for discriminatory reasons. Until November 1969, no money was appro priated by Congress to provide staff for the newly created housing referral offices.253 During the first 2 years of the program, the housing offices were grossly understaffed.254 Occasionally they were operated by men out of sympathy with the concept of integrated housing.255 D. Reporting Requirements In Washington, the program was initially directed and coordinated by the Office of the Coordinator of Off-Base Housing Services which was created in the Office of the Secretary of Defense. In 1969 the responsibility for the noncivil rights aspects of the program, i.e., the overall operation of the off-base housing referral offices, was transferred to the Director of Family Housing Program, Office of the Assistant Secretary of Defense (Installations and Logistics) and the equal housing aspects to the Office of the Deputy Assistant Secretary of Defense (Civil Rights). Each military installation taking part in the program was required to send a copy of its original census report to the Off-Base Housing Coordinating Office. Thereafter, each base was to send a statistical and narrative report to Washington on a monthly (later a quarterly) basis until June 1969, when the reporting re 253 Interview with Col. Charles Kane, Director, Office of the Coordinator of Off-Base Housing Services (Office of the Secretary of Defense), Apr. 15, 1970. For fiscal year 1971 Congress voted $0.4 million for the operation of the housing referral offices. Prior to that time, the operating funds had to come out of the budgets of each participating installation. To avoid the expense of hiring a full-time housing referral officer, many base commanders memely detailed a military man to the job. Id. 254 Id. Interview with Col. Charles Kane, Director, Office of the Coordinator of Off-Base Housing Services (Office of the Secretary of Defense), Apr. 15, 1970. 255 For example, Commission staff members were told by one base housing referral officer: if Negroes have trouble in finding housing, two of the reasons are that they can't afford the good housing and that they often have so many children; that Negroes claim discrimination recklessly and that Jones v. Mayer is poor law. The same housing officer indicated that there was little housing discrimination in his area, but black servicemen testified to the contrary and a review by Commission staff of the housing accommodations of a number of the black servicemen who lived off-base demonstrated that they lived in black areas and in less adequate housing than whites of equivalent rank. quirement was discontinued.256 The latest Defense Department instruction on the equal opportunity in off-base housing program reestablishes a quarterly reporting requirement beginning with the first quarter of 1970.257 The reports are similar to the reports required earlier and call for statistical information on facilities with five or more units, including whether or not they have Negro military residents. It also requests a narrative report summarizing the open housing activities and experiences of the reporting installation. According to the Department of Defense, 96.1 percent of surveyed units have signed a nondiscrimination assurance. Sanctions have been imposed against the 56,451 apartment units in multiunit facilities which refused to sign assurances. There are no reports indicating that any sanctions have been imposed on facilities with fewer than five units. Sanctions rarely have been imposed other than in cases involving refusal to sign assurances.258 The list of sanctioned facilities has been shared with HUD and with the Department of Justice. VIII. SUMMARY Fair housing is the law of the land. All three branches of the Federal Government have acted to assure that housing is open to all without discrimination. The executive branch acted first, through issuance of the Executive order on equal opportunity in housing in November 1962, to prohibit discrimination in federally assisted housing. Congress, in 1964, added the support of the legislative branch by enacting Title VI of the Civil Rights Act of 1964, proscribing discrimination in programs of activities receiving Federal financial assistance. Four yours later, Congress passed the Civil Rights Act of 1968, including a Federal fair housing law (Title VIII), which prohibits discrimination in most of the Nation's housing. And later that year, the Supreme Court of the United States, in Jones v. Mayer and Co., relying on an 1866 civil rights law enacted DSD Apr. 11, 1967 memorandum, supra note 243. "DOD Instruction 1338.15, Equal Opportunity for Military Personnel in Off-Base Housing Program, Sept. 24, 1969. Kane interview, supra note 254. Colonel Kane recalled six instances in which sanctions had been imposed for actual discrimination. under the authority of the 13th amendment, ruled that racial discrimination is prohibited in all housing, private as well as public. Under Title VIII and the Jones decision equal housing opportunity is a broadly protected legal right. Fair housing, however, like other legal civil rights, is not self-enforcing. In an area where, for decades, racial discrimination has been operating industry practice and where residential segregation has become firmly entrenched, vigorous enforcement and creative administration of fair housing laws are necessary if the rights that are legally secured are to be achieved in fact. Under Title VIII and Jones the tools provided for enforcement of Justice may bring lawsuits under Title reliance is on litigation, with the principal burden for instituting it placed on the person discriminated against. In addition, the Department of Justice may bring lawsuits under title VIII in cases of patterns or practices of discrimination. The Department of Housing and Urban Development (HUD) is given primary responsibility for enforcement and administration of the fair housing law, but the only enforcement weapons specifically placed at its command are "informal methods of conference, conciliation, and persuasion". HUD is not authorized to issue cease and desist orders, nor may it institute litigation itself. Despite the relative weakness of the enforcement machinery specifically provided under Title VIII, other mechanisms are available to assist in assuring compliance. Title VI and the Executive order on equal opportunity in housing, for example, both authorize use of the substantial leverage provided by Federal assistance to housing as a means of achieving an open housing market. In addition, Title VIII, itself, specifically directs HUD and all other executive departments and agencies to administer their programs and activities relating to housing and urban development in a manner which affirmatively furthers the purposes of fair housing. Title VIII also authorizes HUD to use techniques in addition to those strictly concerned with enforcement to promote the goals of fair housing. On the basis of the Commission's examination of the activities of HUD and other agencies which can play a key role in the effort to achieve an open housing market, the results after 2 years of experience under Title VIII are disappointing. Few agencies have undertaken the kind of affirmative program necessary to carry out their fair housing responsibilities effectively. Most have not even fully recognized what their responsibilities are. Their activities have been characterized by a narrow view of the goals of fair housing and a failure to attune their programs to achieve them. Department of Housing and Urban Development HUD is the key Federal agency in the fair housing effort. Title VIII places principal enforcement responsibility in HUD and the agency has the major fair housing responsibility under Title VI and the Executive order on equal opportunity in housing. The Department's performance in carrying out its responsibilities under the various Federal fair housing laws has not been such as to fulfill their potential. To some extent, its failure can be attributed to impediments inherent in the laws themselves, such as the lack of enforcement powers just discussed. HUD also suffers from restrictions in financial and staff resources for civil rights common to nearly all agencies. The Department, however, has not made maximum use of the enforcement tools at its command nor has it made the best disposition of the available resources. Its activities have reflected a narrow approach toward achieving fair housing goals. Under Title VIII, the Department has emphasized complaint processing almost to the exclusion of other, potentially more effective, means of furthering the cause of fair housing. Under Title VI and the Executive order, there has been almost no activity at all. As of April 1970, the Department had not yet even taken the basic step of establishing complaint procedures. Although the Department has begun to assume a leadership position in attempting to focus the entire Federal housing effort toward promoting equal housing opportunity, it has been less vigorous in shaping its own programs to that end. Decisions in such key areas as site selection and tenant selection have not yet been made. It was not until April of this year that the decision to collect data on racial and ethnic participation in HUD programs was made and as of August 1970, data had not yet been collected. Confusion still exists as to the assignment of responsibility for Title VI among the various units of the Department and there is little coordination between equal opportunity staff and staff which administers the Department's substantive programs. A number of the problems have been recognized by the Assistant Secretary for Equal Opportunity and efforts are being made to correct many of the deficiencies. In view of the fact that more than 2 years have elapsed since the Federal fair housing law was enacted, however, the fact that these deficiences persist is a cause of major concern. Department of Justice The Department of Justice is one of the few Federal agencies with fair housing responsibilities that has attempted to carry them out vigorously and aggressively. Under Title VIII, the Department of Justice has the authority to bring lawsuits in cases involving a "pattern or practice" of Title VIII violations. This responsibility is carried out by the housing section of the Civil Rights Division. Despite staff restrictions, the housing section has undertaken an aggressive program of litigation under title VIII. It has instituted sensible priorities to govern its activities and has attempted to bring wide publicity to the lawsuits it institutes to inform as many people as possible of their rights under Title VIII and to make it known that the law is being enforced. The section also has been conscientiously seeking to establish a close working relationship with HUD HUD to assure effective coordination of the activities of the two Departments. Unless the size of its staff is substantially increased, however, it will be unable to maintain the current pace of activities. The section has filed a number of cases. Soon, many of these will be coming up for trial and the lawyers will be required to devote their time to them. It then will be impossible to do the work necessary to file additional cases. The section must also expand its activities to include more cases involving discrimination against such minority groups as Mexican Americans, Puerto Ricans, and American Indians. Veterans Administration The Veterans Administration loan guaranty program, together with the FHA mortgage insurance program, represent the major direct Government involvement in the private housing market. The VA program, which uses the Government guaranty against loss as a means of inducing private lenders to make home loans to veterans under favorable terms, is covered both by the Executive order on equal opportunity in housing and Title VIII. VA rarely has assumed an aggressive posture in carrying out its civil rights responsibilities. Usually, it has followed the lead of its sister agency, FHA, in adopting civil rights requirements and procedures. Sometimes it has failed to go along with even the minimal steps taken by FHA. For example, in June 1969, FHA, in light of the enactment of Title VIII and the Supreme Court's decision in Jones v. Mayer and Co., prohibiting racial discrimination in all housing, eliminated its exception of one- and twofamily, owner-occupied housing from coverage under the Executive order. As of April 1970 VA still retained that exception. Similarly, VA's policy on guaranteeing loans on property carrying racially restrictive convenants lags behind that of FHA in terms of promoting the cause of equal housing opportunity. It moved ahead of FHA in 1968 by beginning to collect data on minority group participation in the sale of VA-acquired properties. As of April 1970, FHA still did not collect these data. Further, in August 1969, VA proposed to collect data on racial and ethnic participation with respect to the loan guarantee programs. Collection of these data was held up pending HUD concurrence. In April 1970, HUD announced a decision to collect racial and ethnic data on all its programs, but as of August 1970, it was still in the process of resolving problems of implementation. Presumably, when problems of implementation are worked out by HUD, the VA proposal will be put into effect. VA has done little in carrying out its responsibilities to assure compliance with nondiscrimination requirements. Other than requiring a nondiscrimination certification from builders, the only compliance reviews conducted by VA are through complaint investi gations. The agency has received relatively few complaints and has been of assistance to minority group veterans in only a handful of cases brought to its attention. Further, any builder found guilty of discrimination is reinstated by VA once he agrees to make the dwelling unit available to the minority group veteran. No requirements are imposed upon such a builder other than to agree to sell to all persons without discrimination. This, of course, is precisely the agreement the builder originally made and subsequently violated. Federal Financial Regulatory Agencies The great majority of the Nation's housing is financed through conventional (non-FHA or VA) loans by mortgage lending institutions supervised and benefited by Federal agencies. The institutions are savings and loan associations, almost all of which are insured by the Federal Savings and Loan Insurance Corporation (FSLIC) and regulated by the Federal Home Loan Bank (FHLBB), and commercial and mutual savings banks, nearly all of whose deposits are insured by the Federal Deposit Insurance Corporation (FDIC) and regulated either by the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, or FDIC. These institutions are prohibited under section 805 of Title VIII from discriminating in the financing of housing. Further, in view of their central role in the housing market, a requirement of nondiscrimination imposed by them on builders and developers with whom they deal could be a major factor in achieving the goals of fair housing. 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 lending institutions, in turn, are required to keep written records so that examiners can determine instances or patterns of noncompliance. With this network of compliance officers, these agencies have the capacity for conducting intensive and complete compliance reviews. This network of compliance, however, is not being utilized to carry out the agencies' responsibilities under Title VIII. Adequate records to permit examiners to determine compliance with the requirements of section 805 are not kept. The agencies have agreed only to send a questionnaire to their member institutions to determine the extent to which the problem of discrimination in mortgage lending exists. This can only be considered a first step. As in other areas of civil rights compliance, the required collection of racial and ethnic data is crucial. Further, the agencies have taken no steps with respect to the practices of builders and developers financed through these institutions. The General Services Administration and Site Selection For Federal Installations The economic benefits frequently generated by the location of Federal installations can be a persuasive force in opening up housing opportunities throughout metropolitan areas and furthering the purposes of fair housing. Increasingly, major Federal installations have been locating or relocating outside central cities in suburban and outlying parts of metropolitan areas. Until recently, the housing needs of lower-income employees and minority group employees were not specifically among the considerations taken into account in the site decision. The General Services Administration, responsible for acquiring space for most Federal agencies, possesses the greatest potential for promoting uniform policy to assure the availability of housing for lower-income and minority group families in communities where Federal installations locate. In March 1969 GSA took a significant forward step by announcing a policy to avoid locations lacking adequate low- and moderate-income housing in reasonable proximity. This policy has not yet fully been implemented. Further, neither GSA nor other Federal agencies yet have adopted policies aimed at assuring access to housing for minority group members. In its report on "Federal Installations and Equal Housing Opportunity," this Commission recommended a detailed Executive order aimed at both aspects of the problem. Shortly after the Commission's report was issued, the Presi dent issued an Executive order setting forth criteria to be considered in selecting sites for Federal installations. Although the order specified, as one of the criteria, availability of adequate low- and moderate-income housing, it, too, was silent on the matter of racial discrimination. In March 1970 HUD initiated a series of meetings with major departments and agencies aimed at establishing a uniform site selection policy for Federal installations dealing both with the matter of housing for lowerincome families and for minority group families. As of April 1970 these meetings were continuing. The Department of Defense and The program of equal opportunity for military personnel in off-base housing was initiated by the Department of Defense prior to the passage of the Federal fair housing law and the Jones v. Mayer decision. This early action by the Defense Department marked significant progress. The program has substantially improved the open housing situation in areas around the participating military installations. For example, only 22 percent of the surveyed facilities in July 1967, before the program was started, were open to Negro servicemen. As of June 1969 the owners of 96 percent of the surveyed housing units had signed an assurance of open housing. In Maryland and northern Virginia, where many large military installations are located, the percentage of open housing rose from 27 percent and 36 percent respectively to well over 90 percent. However, the problems have not disappeared entirely. The percentage in Louisiana, for example, is still below 70 percent. It is also clear that many landlords sign assurances intending never to rent to minority servicemen. The Department is now first gathering rough statistics on the number of open facilities which are actually integrated. A review of the incomplete returns indicates that the degree of integration is still low. |