¹ 42 U.S.C. § 3601.

² In addition, the Attorney General was given authority to file lawsuits to halt any "pattern and practice" of discrimination, but this authority was used rarely prior to 1988.

³ See Federal Government's Role in the Achievement of Equal Opportunity in Housing: Hearings before the Civil Rights Oversight Subcommittee of the House Committee on the Judiciary, 92nd Cong., 1st and 2nd Sess. (1972).

⁴ U.S. House of Representatives, Committee on the Judiciary, Report 100-711: The Fair Housing Amendments Act of 1988, 100th Cong., 2nd Sess. (1988) (hereafter, House Report) reprinted at 1988 U.S. Code Cong. & Admin. News 2173, 2177-78, quoting Message from President Reagan transmitting the Proposed Fair Housing Amendments Act of 1983, July 12, 1983.

⁵ The most authoritative source of legislative history of the FHAA is the House Report.

⁶ See House Report, p. 2206.

⁷ See 134 Cong. Rec. H4605-06, H4675-79 (1988).

⁸ The Fair Housing Amendments Act of 1988, P.L. 100-430, codified at 42 U.S.C. §3601 et seq., prohibits, inter alia, discrimination on the basis of "handicap." Other disability rights laws, such as the Rehabilitation Act of 1973 and the Americans with Disabilities Act, use this same definition for the term "disability." Because of the expressed preference of people with disabilities for this latter term, this report will use "disability" instead of "handicap," except where quoting directly from a statute, regulation, or court decision.

⁹ Congress provided the following definition: "'Familial status' means one or more individuals (who have not attained the age of 18 years) being domiciled with--

1. a parent or another person having legal custody of such individual or individuals;
2. or the designee of such parent or other person having such custody, with the written permission of such parent or other person." 42 U.S.C. §3602(k).

¹⁰ Helen L. v. DiDario, 46 F.3rd 325, 333 n. 14 (3rd Cir.1995) (quoting House Report, p. 2179).

¹¹ As a reasonable accommodation for people with disabilities, courts have required waivers in leases, contracts, rules, ordinances, restrictive covenants, zoning codes, and otherwise reasonable rules of many types when necessary to accommodate a disability. Examples of lease rules that courts have waived include: the first-come, first-served rule for assignment of parking spaces; rule against pets; and lease provisions for charges and penalties. In requiring a waiver of rules, the FHAFair Housing Act can also oblige a landlord to spend or forego money. Reasonable accommodation concerning group homes can include the waiver of otherwise applicable zoning restrictions.

¹² See, e.g., United States v. California Mobile Home Park, 29 F.3rd 1413 (9th Cir. 1993); Shapiro v. Cadman Towers, 51 F.3rd 328 (2nd Cir. 1995).

¹³ A housing provider can also defend against an accommodation thatwhich would result in a "fundamental alteration" of the provider's business. For instance, the FHAA would probably not require a landlord to pay for a social worker or home- care worker to help a tenant live independently if the housing does not normally provide such assistance.

¹⁴ 42 U.S.C. §3604(f)(3)(A).

¹⁵ 42 U.S.C. §3604(f)(3)(C).

¹⁶ 42 U.S.C. §3612.

¹⁷ See Table III-1 for states and localities with substantially equivalent agencies.

¹⁸ 42 U.S.C. §3610(a)(1)(B)(iv).

¹⁹ Before HUD begins to investigate a case, it must make the following determinations that:

• The complaint was filed in a timely manner.;
• The complainant has "standing" or the legal right to sue under the Act;FHA.
• The respondent and dwelling involved are covered under the Act; andFHA.
• The issue involved and the basis of the alleged discrimination constitute illegal discrimination as defined by the FHA.Act

Title VIII Complaint Intake, Investigation, and Conciliation Handbook (8024.1), Chapter 3.

²⁰ 42 U.S.C. §3610(b).

²¹ Title VIII Intake, Investigation, and Conciliation Handbook (8024.1), Chapter 11.

²² 42 U.S.C. §3610(g)(2)(A).

²³ House Report, p. 2194.

²⁴ House Report, p. 2201 (citation omitted).

²⁵ National Fair Housing Alliance and Fair Housing Center of Metropolitan Detroit, $160,000,000 and Counting, June 24, 2000.

²⁶ 29 U.S.C. §794.

²⁷ Joseph P. Shapiro, No Pity, Times Books, New York: 1993, pp. 61ff.

²⁸ Ibid., p. 64.

²⁹ Richard Scotch, From Goodwill to Civil Rights, p. 51. Temple University Press, Philadelphia, 1984.

³⁰ Edward D. Berkowitz, Disabled Policy: America's Programs for the Handicapped, Cambridge University Press, New York, 1987, p. 212.

³¹ Susan Stefan, Unequal Rights: Discrimination Against People with Mental Disabilities and the Americans with Disabilities Act, American Psychological Association, Washington, D.C., 2001, pp. 86.

³² 45 CFR 84.3(j).

³³ See HUD memorandum from Robert Kenison to Lawrence Simons, Request for Opinion on 1978 Rehabilitation Act Amendments, March 13, 1980.

³⁴ 473 U.S. 234 (1985).

³⁵ 29 U.S.C. 794(b)(1).

³⁶ Grove City College v. Bell, 465 U.S. 555 (1984).

³⁷ See, e.g., Toward Independence, National Council on the Handicapped, February 1986, pp. F-18ff.

³⁸ 46 Fed. Reg. 37088 (July 17, 1981).

³⁹ 46 Fed. Reg. 41716 (August 17, 1981).

⁴⁰ See, Abstract of Secretarial Correspondence, To: The Secretary, From: Antonio Monroig, Assistant Secretary for Fair Housing and Equal Opportunity, Subject: Action -- Implementation of Secretarial Decision to Place All Section 504 Responsibilities in the Office of FHEO, Action By: ASAP or 8/19/83; Memorandum from Judith Brachman, Assistant Secretary, FHEO, and J. Michael Dorsey, General Counsel, For: All Regional Directors, OFHEO and All Regional Counsel, Subject: Section 504 of the Rehabilitation Act of 1973, (undated, probably March 1987); and Memorandum from Alan Greenwald, Deputy Under Secretary for Intergovernmental Relations, For: J. Michael Dorsey, General Counsel, Subject: Section 504 Analysis and Comment, May 22, 1987.

⁴¹ Letter from William Bradford Reynolds, Assistant Attorney General, Department of Justice, to Stuart Sloame, Deputy General Counsel, HUD, February 5, 1987.

⁴² Memorandum from Laurence D. Pearl, Director, Office of Compliance, to William Wynn, Deputy Assistant Secretary, FHEO, "Section 504 in FHEO--Past, Present and Future," July 22, 1983.

⁴³ Toward Independence, p. F-19.

⁴⁴ Alexander v. Choate, 105 S.Ct. 712 (1985).

⁴⁵ The legislative history of the FHAFair Housing Act describes the difference between FHAFair Housing Act accessibility requirements and those of Section 504 as follows:

Accessibility requirements can vary across a wide range. A standard of total accessibility would require that every entrance, doorway, bathroom, parking space, and portion of buildings and grounds be accessible . . . . The Committee does not intend to impose such a standard. Rather, the Committee intends to use a standard of "adaptable" design, a standard developed in recent years by the building industry and by advocates for handicapped individuals to provide usable housing for handicapped persons without necessarily being significantly different from conventional housing. This subsection [840(f)(C)] sets forth certain features of adaptive design to be incorporated in new multifamily housing construction. Housing Committee on the Judiciary, Report 100-117, June 17, 1988, p. 26.

⁴⁶ HUD 504 Regulations, Preamble, 53 Fed. Reg. 20216, 20218.

⁴⁷ 24 CFR 84.4(b)(4).

⁴⁸ 24 CFR 180.680(c), referring to 24 CFR 1.8(c).

⁴⁹ Seven years after the FHAA became effective, and FHEO had some experience with handling fair housing complaints, Assistant Secretary Roberta Achtenberg commissioned a PriceWaterhouse "business process redesign" of the Title VIII investigation process. A team of senior FHEO staff, composed of Headquarters and HUB (regional HUD office) staff, worked closely with PriceWaterhouse to describe existing practices and conduct a "gap analysis" to determine what steps had to be taken to improve the complaint processing and investigation system.. The resulting report, Focused Enforcement: The Business Process Redesign of the Title VIII Housing Discrimination Investigation Process, was submitted to HUD on March 8, 1996. Many of its recommendations, discussed in this report, were adopted by HUD, including the claims process. Many others--including staffing recommendations, caseload limits and processing deadlines--were not. The authors believe that the PriceWaterhouse report, although it is five years old, continues to provide important insights about inefficiencies in HUD's processing and investigation of fair housing complaints, and that its recommendations are an important foundation upon which to rebuild public trust in FHEO's enforcement efforts.

⁵⁰ Because of this on-again, off-again approach, comparison of complaint intake numbers from year to year is somewhat more difficult. From FY 1989 through FY 1995, HUD reported the number of complaints received, and the means by which each was resolved. From FY 1996 through FY 2000, HUD created a category called "claims," thatwhich were was not subject to the 100100-day processing requirement, and many of these claimswhich never received full investigations. Because HUD did away with the claims process in early FY 2001, a statistical "asterisk" is necessary to explain the impact of the claims process on HUD caseloads during the intervening period.

⁵¹ Floyd O. May, Acting Assistant Secretary for FHEOFair Housing and Equal Opportunity, described the new policy in this way: " wWe are no longer processing 'claims' as a part of the complaint intake process. Our present policy is to examine allegations when they come into the department to ascertain if we have jurisdiction to receive and process the allegation as a housing discrimination complaint." (Interview, March 2001.)

⁵² 1996 Annual Report to Congress on Fair Housing Programs, p. 2.

⁵³ Until early 2001, HUD maintained the On-Line Assess Process Manual, a 2525-page guide designed to walk the intake worker through the steps of the claims assessment process. The Manual says: "The Assess process requires a more comprehensive development of facts from a potential complainant and from nonrespondent sources than previously obtained. The BPR study performed by Price Waterhouse noted the importance to effective enforcement of gathering information as early in the process as possible and of reducing the number of nonjurisdictional or nonmeritorious complaints so that limited investigative resources can be devoted to complaints that genuinely reflect a Fair Housing Act claim. This process should include not only an interview or interviews of a potential complainant but may include collection and analysis of documents from the complainant, gathering public information about a potential respondent without contacting the respondent, interviewing the complainant's witnesses and documenting those interviews, and so forth. It frequently, but not always, should include consultation with counsel. Essentially, it is like a mini- and preliminary investigation." Manual, p. 2.

⁵⁴ See Table IV-1, below.

⁵⁵ Michael H. Schill and Samantha Friedman, "The Fair Housing Amendments Act of 1988: The First Decade," Cityscape, Vol. 4(3)(1997), p. 65.

⁵⁶ See Appendix IV-1, below. After reviewing a draft of this report, HUD suggested that "[p]rior to late FY 1995, these claims cases would have been part of the HUD inventory...and were valid cases just like complaints....The growth of claims is simply because HUD stopped screening out cases and tracked all potential complaints, with many remaining as claims instead of complaints." The implication of this statement is that there is some numerical congruence between claims closed after FY 1996 and "administrative closures" prior to FY 1996. However, as data later in this report bear out, the claims closure rate (consistently at or above 70 percent) was nearly three times the administrative closure rate in FY 1994 and FY 1995.

⁵⁷ Audit Report, HUD Office of Inspector General, Report 98-SF-174-0002 (hereafter OIG), p. 11: "...the average age of 2,248 open [HUB] and 3,996 open FHAP investigations as of September 30, 1997, was 384 days and 321 days, respectively, and these figures do not include the average of 62 days that it takes to accept a claim.."

⁵⁸ OIG, n. 57, pp. 10-11: "In 36 of 117 cases we reviewed, however, the delay between receipt of the claim and mailing of a perfected complaint to the complainant for signature was more than 25 days. In 20 cases this initial delay was more than 50 days. Further, we found that as of September 30, 1997, FHEO's 10 [HUBs] had 856 claims that had been open an average of 62 days. This inordinate delay does not count toward meeting the 100-day requirement under the Act. Forty percent (343 of 856) of these claims had been open more than 50 days. The Boston, Fort Worth, and San Francisco [HUBs] alone had 583 open claims with 392 (67 percent) over 50 days old."

⁵⁹ Interviews with senior HUD staff, March 2001.

⁶⁰ See Sections IV.B, IV.C, and IV.D, below.

⁶¹ The conciliation agreement signed by AccuBanc Mortgage Corporation targets $2.1 billion in mortgages over three years to minorities and low- and moderate-income families to enable them to become homeowners.

⁶² See Charts VI-2 and VI-3.

⁶³ See Chart IV-14.

⁶⁴ In support of its goal to "[r]educe the incidence of discrimination based on race, national origin or disability," FHEO called for increasing the number of substantially equivalent state and local agencies and improvement of their case processing and remedial activities. The "status" of this of this objective was described as follows: "Lack of resources, combined with national implementation of a new case processing system, have impeded this initiative, which requires additional discretionary resources not available. New doubling enforcement initiative expected to accomplish significantly increased results." FHEO's Management Plan for FY 1997, available at http://www.hud.gov/gpra/fheo.html.

⁶⁵ Notice of Public Meeting and Request for Comments on Fair Housing Initiatives Program, Federal Register, December 8, 1997. 62 Fed. Reg. 64594.

⁶⁶ Notice of Public Meeting and Request for Comments on Fair Housing Initiatives Program, Federal Register, December 8, 1997: "The Department is also interested in suggestions regarding criteria and/or incentives to include in the FY 1998 FHIP Notice of Funding Availability (NOFA) to assist the Department in its efforts to double enforcement actions under the Fair Housing Act." Enforcement actions are defined as issuance of a charge by HUD or referral by HUD to the Department of Justice for enforcement. The Department will consider the comments received in response to this Notice when formulating plans for the disposition of funds appropriated for Fiscal Year 1998.

⁶⁷ The Fair Housing Council of Orange County, California recounting its decision to pursue relief for multiple victims of familial status, race, and national origin discrimination, said: "Rather than proceeding with a lawsuit in federal court, Fair Housing decided to file with HUD, given HUD Secretary Andrew Cuomo''s stated objective of doubling housing discrimination enforcement by his department. The announcement of the filing and the initiation of HUD's investigation took place at a HUD-organized press conference on January 15, 1998, the 69th anniversary of Dr. Martin Luther King Jr.'s birth. Secretary Cuomo participated in the press conference via satellite." (Press release, February 7, 2000.)

⁶⁸ A 1998 HUD press release said, in pertinent part, "As part of his One America Initiative, President Clinton also directed Cuomo to double enforcement actions brought against perpetrators of housing discrimination by the year 2000. HUD is now doubling its enforcement actions at a rate of 60 to 70 enforcement actions a month, compared with 25 to 30 enforcement actions during the Clinton Administration's first term. (Source: HUD press release, Cuomo Announces Groundbreaking Nationwide Audit of Housing Discrimination around Nation, http://www.hud.gov/local/jkv/jkv98_5.html.)

⁶⁹ National Council on Disability, National Disability Policy: aA Progress Report, (November 1, 1997-October 31, 1998), Section B.3.b. The full text of the report can be found at http://www.ncd.gov/newsroom/publications/1998/policy97-98.htm.

⁷⁰ The Citizens' Commission on Civil Rights publishes biannual reports on the state of civil rights enforcement. In its 1999 report, The Test of Our Progress: The Clinton Record on Civil Rights (hereafter, CCCR 1999), the Commission said:

"HUD has shown little improvement over the last two years in its ability to process fair housing complaints effectively and expeditiously. While the number of complaints filed with HUD has risen, the percentage of cases charged-that is, cases where HUD has found discrimination-has declined precipitously. Surprisingly, this development has come in the face of President Clinton's public challenge to HUD to double the number of fair housing enforcement actions. Depressed levels of cause findings have resulted in an underutilization of the HUD administrative law judge process, and a steep decline in referral or 'election' cases filed by the Justice Department. Equally important, the backlog of over-age cases has remained largely unchanged despite efforts at management reform and attempts to improve the agency's computer and data systems....[F]unding is only effective in fighting discrimination if the enforcement mechanism and procedures of the agency work efficiently." (pp.Id. at 231-32.)

⁷¹ See note 66, above re: Notice of Public Meeting, December 8, 1997.

⁷² Interview with senior HUD/FHEO staff member, March 2001.

⁷³ 42 U.S.C. §3610.

⁷⁴ HUD has promulgated regulations for certification of substantially equivalent agencies, appearing at 24 CFR, Part 115. Performance standards are specified at 24 CFR _115.203. Pursuant to these standards, the following agencies have been denied certification: Elgin (Illinois) and Evanston (Illinois). These agencies have been denied but subsequently reinstated: Knoxville (Tennessee) and Hillsborough (Florida). Montana and Clearwater (Florida) amended their fair housing laws and, as a result, equivalency was terminated.. Illinois and Kansas opted out of substantial equivalency. At various times since 1989, statewide agencies in Georgia, Indiana, Massachusetts, and Oklahoma had performance deficiencies and/or entered into improvement plans. (Source: HUD correspondence, December 22, 2000).

⁷⁵ Schill and Friedman, note 6: "In 1992, 7 states and 12 localities were certified as having laws substantially equivalent to the Fair Housing Act. By 1995 these numbers had increased to 38 States and 29 localities."

⁷⁶ FHEO supplied researchers a document on March 9, 2001, entitled "FHAP Agency Names and Addresses," according to which the following states had been certified: Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Missouri, Nebraska, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and West Virginia.

⁷⁷ FHEO supplied researchers with a document on March 9, 2001, entitled "FHAP Agency Names and Addresses," according to which the following localities had been certified: Asheville/Buncombe County (North Carolina), Austin (Texas), Boston (Massachusetts), Cambridge (Massachusetts), Cedar Rapids (Iowa), Charleston (West Virginia), Charlotte/Mecklenburg County (North Carolina), Dallas (Texas), Davenport (Iowa), Dayton (Ohio), Des Moines (Iowa), Dubuque (Iowa), Durham (North Carolina), Elkhart (Indiana), Fort Worth (Texas), Fort Wayne (Indiana), Garland (Texas), Gary (Indiana), Greensboro (North Carolina), Hammond (Indiana), Hillsborough County (Florida), Huntington (West Virginia), Jacksonville (Florida), Kansas City (Missouri), King County (Washington), Knoxville (Tennessee), Lawrence (Kansas), Lexington/Fayette County (Kentucky), Louisville/Jefferson County (Kentucky), Mason City (Iowa), New Hanover County (North Carolina), Olathe (Kansas), Omaha (Nebraska), Orange County (North Carolina), Orlando (Florida), Palm Beach County (Florida), Parma (Ohio), Phoenix (Arizona), Pinellas County (Florida), Pittsburgh (Pennsylvania), Reading (Pennsylvania), Rockland County (New York), Salina (Kansas), Seattle (Washington), Shaker Heights (Ohio), South Bend (Indiana), Springfield (Illinois), St. Petersburg (Florida), Tacoma (Washington), Tampa (Florida), Waterloo (Iowa), Winston-Salem (North Carolina), York (Pennsylvania).

⁷⁸ See note 305 and accompanying text.

⁷⁹ HUD will typically retain jurisdiction over complaints against recipients of federal funds where it is simultaneously investigating whether the recipient has violated Section 504.

⁸⁰ See, e.g., U.S. Commission on Civil Rights, The Fair Housing Act of 1988: The Enforcement Report (1994), pp. 1-4, and sources cited therein; Massey, Douglas S., and Nancy A. Denton, American Apartheid (Cambridge, MA: Harvard University Press, 1993). See also House Report 100-711, reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2176 (1988), referring to a 1985 estimate that "2 million instances of housing discrimination occur each year," and other sources documenting widespread discrimination.

⁸¹ See Appendix IV-1.

⁸² Prior to FY 1996, complaints thatwhich lacked one or more essential elements to be treated as a potential violation of the FHAAct were typically were disposed of as "administrative closures."

⁸³ HUD also suggested that other "regional differences" may affect the receipt of disability complaints but provided no detail on what those differences may be and no data to assess this claim. Advocates have suggested that one explanation for low disability rates is that people with disabilities have had a poor experience with the administrative enforcement process and have bypassed it in favor of federal court.

⁸⁴ http://www.census.gov/hhes/www/disable/census/tables/tab1us.html.

⁸⁵ During FY 1989 and FY 1990 (the two years following enactment of the FHAA), most FHAPs did not handle disability and familial status complaints, either because state or local law did not provide for coverage of these two new categories or because they had not developed the expertise or enforcement capacity to handle them. For those two fiscal years, FHAPs contracted with HUD to handle disability and familial status claims. For that reason, complaints in these categories are reported as HUD cases rather than as FHAP cases.

⁸⁶ HUD made regional data available for FHAPs but not data on individual agencies, because analysis of individual FHAPs is beyond the scope of this report.

⁸⁷ As expected, these developments have been accompanied by significant declines in the use of Codes 310, 380, and 450, mentioned in the text.

⁸⁸ In cases where a cause finding is made, HUD and the FHAPs provide additional closing codes thatwhich are not immediately relevant to this analysis.

⁸⁹ Notice to Field Office Directors, Headquarters Office Directors, and Office of Investigations, from Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity, Concerning Administrative Closures of Cases Under the Fair Housing Act. Notice 94-1 (issued September 6, 1994).

⁹⁰ Interview with Sara Pratt, former (1993-1999) Director of the Office of Enforcement, FHEO May 31, 2001.

⁹¹ In its response to an earlier draft of this report, HUD wrote the following: "What HUD did in FY 1995 and FY 1996 to reduce the administrative closures was first to pre-screen such cases (not logical, since it actually hid part of HUD's legitimate workload), then to establish the Claims category." (FHEO staff comments on National Council on Disability draft report, "Comments Regarding Data," p. 6).

⁹² See Appendix IV-3.

⁹³ See note 87 and accompanying text.

⁹⁴ See Appendix IV-3. The decline in administrative closures can be explained, in part, by the fact that between FY 1996 and FY 2000, HUD screened all claims, and forwarded only complaints to the FHAPs.

⁹⁵ House Report, p. 2177 (noting that before 1988 HUD "lack[ed] power even to bring parties to the conciliation table").

⁹⁶ Formal conciliation of fair housing complaints is different from private settlement of disputes that occur outside the HUD or FHAP conciliation process. Under conciliation, HUD or the relevant FHAP brings the parties together and, if they are successful in compromising their differences, the agency supervises the entry of a conciliation agreement. Private settlements entered into outside the administrative process may not have the force of law, and parties may be relegated to contract actions in state court to enforce their provisions. For this reason, HUD issued guidance in 1994 discouraging its investigators and conciliators from using or suggesting private settlements. See Notice to Field Office Directors, Headquarters Office Directors, and Office of Investigations, from Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity, Concerning Administrative Closures of Cases Under the Fair Housing Act. Notice 94-1 (issued September 6, 1994).

⁹⁷ Title VIII Intake, Investigation and Conciliation Handbook (8024.1), Chapter 11.

⁹⁸ See Table IV-20. Cross-referencing for average compensation in such cases, Chicago and San Francisco are consistently higher than the national average. Kansas City awards are two-thirds2/3 of the national average, and Ft. Worth awards are approximately 20 percent of the national average.

⁹⁹ 42 U.S.C. §3610(g)(2).

¹⁰⁰ 42 U.S.C. §3610(g)(3).

¹⁰¹ See Section VI, below.

¹⁰² See Chart IV-14.

¹⁰³ See, e.g., Christine Robitscher Ladd, "Federal Fair Housing Enforcement: The Clinton Record at the End of the First Term," in Citizens' Commission on Civil Rights, The Continuing Struggle: Civil Rights and the Clinton Administration (1997) (hereafter CCCR 1997), p. 224.

¹⁰⁴ CCCR 1999, note 70, p. 233.

¹⁰⁵ CCCR 1997, note 104, pp. 221, 224: "There remains enormous variation between the HUD enforcement regions in the processing of complaints-the percentage of charge and no charge determinations and the percentage of cases conciliated or administratively closed vary widely between, and even within, regions from year to year. ... Such great variation between regions appears to indicate inconsistency in the evaluation of fair housing complaints antd in the administration of the fair housing complaint process generally."

¹⁰⁶ Schill and Friedman, p. 65.

¹⁰⁷ See Appendix IV-1.

¹⁰⁸ OIG, note 57, pp. 10-11: "In 36 of 117 cases we reviewed, however, the delay between receipt of the claim and mailing of a perfected complaint to the complainant for signature was more than 25 days. In 20 cases this initial delay was more than 50 days. Further, we found that as of September 30, 1997, FHEO's ten [HUBs] had 856 claims that had been open an average of 62 days. This inordinate delay does not count toward meeting the 100-day requirement under the Act. Forty percent (343 of 856) of these claims had been open more than 50 days. The Boston, Fort Worth, and San Francisco [HUBs] alone had 583 open claims with 392 (67 percent) over 50 days old." It appears that the OIG selected these three HUBs at random.

¹⁰⁹ House Report, p. 2,178.

¹¹⁰ OIG, p. 15 (referring to customer satisfaction measures).

¹¹¹ OIG, pp. 10-11.

¹¹² Ibid.

¹¹³ See Section VI, below.

¹¹⁴ United States Commission on Civil Rights, The Fair Housing Amendments Act of 1988: The Enforcement Report (September 1994), pp. 83-89.

¹¹⁵ OIG, p. 14.

¹¹⁶ CCCR 1999, p. 234: "The most recent data indicate that over-age cases remain a major problem. Overall, there has been little reduction in the backlog of over-age cases over the last two years. In 1996, HUD closed 2,660 over-age complaints, leaving a backlog at the end of 1996 of 1,459 over-age complaints. In 1997, HUD closed only 1,512 over-age complaints, leaving an inventory at the close of 1997 of 1,414 of these older complaints."

¹¹⁷ OIG, p. 6.

¹¹⁸ OIG, p. 13.

¹¹⁹ CCCR 1997, p. 221-22.

¹²⁰ CCCR 1999, p. 237.

¹²¹ Ibid., pp. 233, 234.

¹²² OIG, p. 17.

¹²³ This direction was provided by Floyd May, Deputy Assistant Secretary for Operations and Management, FHEO, to HUD and FHAP personnel from Regions 1, 2, 3, and 4 at the Quad Regional Conference in Philadelphia, Pennsylvania, at a workshop entitled "Effective Case Management Techniques and Dealing with Aged Cases," on August 9, 2001.

¹²⁴ House Report 107-159, p. 40 (filed July 25, 2001).

¹²⁵ See Chart IV-19.

¹²⁶ Private fair housing groups in the Philadelphia region have litigated a significant number of disability cases, with monetary awards ranging from $1,500 to $525,000. The Denver region has seen much less involvement in disability litigation. See National Fair Housing Alliance and Fair Housing Center of Metropolitan Detroit, $160,000,000 and Counting (June 24, 2000), pp. 45, 46, 57, 80, 89-90, and 92.

¹²⁷ 42 U.S.C. §3610(a)(1)(A)(iii).

¹²⁸ Memorandum from Roberta Achtenberg, Assistant Secretary for Fair Housing and Equal Opportunity, Administrative Closures of Cases under the Fair Housing Act, September 6, 1994.

¹²⁹ FHEO's Management Plan for FY 1997, available at http://www.hud.gov/gpra/fheo.html.

¹³⁰ Mansfield v. Sundial Apartments, HUD No. 10-92-0340-8 (HUD Secretary May 19, 1992) and Mansfield v. Shawntana Development Corp., HUD No. 09-91-2048-3 (HUD Secretary September 26, 1991).

¹³¹ At a July 25, 2001, meeting with NCD, FHEO claimed that that there were four open Secretary-initiated complaints, one of which involved a design and construction matter. FHEO declined to identify these cases, even by name, and declined to provide redacted versions of the complaints themselves.

¹³² In the January 27, 2000, Federal Register, HUD published a final rule concerning Civil Penalties for Fair Housing Act Violations. In that rule, HUD said: "To date, the number of entities who actually become respondents in Fair Housing Act cases before ALJs is extremely small. ... For example, in FY 1994, the year when the most administrative fair housing cases (through 1997) were docketed, of the 325 cases HUD charged, 220 elected to be heard in federal court, leaving only 115 to be heard by the ALJs. Of these cases, civil penalties were only assessed against an even fewer number: after hearings in 15 cases, and as part of a consent order in another 12 cases, for a total of 27 cases, or 8.3 percent of the cases docketed. The average civil penalty was $3,727.77."

¹³³ HUD's wWeb site, at http://www.hud.gov/alj/aljalpha.cfm, says that 102 ALJ decisions have been rendered, while HUD statistical data supplied to the authors indicate that there have been 98.

¹³⁴ CCCR 1999, p. 234.

¹³⁵ Schill and Friedman, p. 72.

¹³⁶ 42 U.S.C. 2000d-1(1988). Section 8.59(j) reflects HUD's emphasis on informal resolutions and voluntary compliance:

It is the policy of the Department to encourage the informal resolution of matters. The responsible civil rights official may attempt to resolve a matter through informal means at any stage of processing. A matter may be resolved by informal means at any time. If a letter of findings making a preliminary finding of noncompliance is issued, the responsible civil rights official shall attempt to resolve the matter by informal means.

¹³⁷ Reviewing the fFederal Government's enforcement of Title VI, Section 504's model, the U.S. Commission on Civil Rights said:

Although the use of voluntary agreements is an important tool for effecting compliance under Title VI, total reliance on this mechanism by the Federal agencies, to the exclusion of administrative sanctions, appears to have seriously diminished their overall enforcement effectiveness and credibility.

Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, A Report of the U.S. Commission on Civil Rights, 1996, p.175.

¹³⁸ See, e.g., HUD's annual reports to Congress on worst-case housing needs. Also see, Priced Out in 2000: The Crisis Continues, Technical Assistance Collaborative and Consortium for Citizens with Disabilities, Boston, MA, June, 2001; and Out of Reach, National Low Income Housing Coalition, Washington, DC, September, 2000.

¹³⁹ "An Evaluation of the Fiscal Year 2000 Civil Rights Front-End and Limited Monitoring Review Process," May 2001, attached to a letter from David Enzel, FHEO, to Merrily Friedlander, DOJ, June 15, 2001.

¹⁴⁰ See footnote 197 and associated text.

¹⁴¹ TAG 88-1: Section 504 Complaints Computer Tracking System (TRACE) 10/16/87.

¹⁴² Memorandum, Peter Kaplan to Section 504 Regional Coordinators, "Section 504 Complaint System," January 27, 1988; Peter Kaplan to All FHEO Regional Directors, "Section 504 Management and Complaint Automated Tracking System (TRACE)," August 24, 1988.

¹⁴³ Interviews with HUD staff between December, 2000 and May, 2001.

¹⁴⁴ Ibid.

¹⁴⁵ Memorandum from Cheryl D. Kent, Director, Program Compliance and Disability Rights Support Division, to Sara K. Pratt, Director, Office of Enforcement, re: Compliance Review Data, December 21, 1998.

¹⁴⁶ See Appendix for detailed data. The relatively large number of VCAs in Texas stems from the Young v. Martinez litigation discussed later in this section.

¹⁴⁷ These VCAs result from a HUDDepartment investigation of complaints that Riverside County was selectively prosecuting building code violations against predominantly Latino trailer home parks.

¹⁴⁸ Executive Order 11914 (41 Fed. Reg. 17871, April 28, 1976).

¹⁴⁹ In addition to HUD, the Executive Order applied to the Departments of Defense, Commerce, Interior, and Agriculture, and to the General Services Administration, National Endowment for the Humanities, Civil Aeronautics Board, and National Science Foundation.

¹⁵⁰ Paralyzed Veterans of America v. Smith, 1981 WL 284 (C.D. Cal. June 17, 1981).

¹⁵¹ 46 Fed. Reg. 37088 (July 17, 1981).

¹⁵² Abstract of Secretarial Correspondence, Antonio Monroig to the Secretary, re: Action--Implementation of Secretarial Decision to Place All Section 504 Responsibilities in the Office of FH&EO, August 19, 1983.

¹⁵³ Letter from Stuart Sloame, Deputy General Counsel, to William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, Department of Justice, October 9, 1986.

¹⁵⁴ Letter from William Bradford Reynolds, Assistant Attorney General, Civil Rights Division, Department of Justice, to Stuart C. Sloame, Deputy General Counsel, HUD, February 5, 1987.

¹⁵⁵ FHEO Civil Rights Implementation Updates for FY 1988 and FY 1989, transmitted by letter from Judith Brachman, Assistant Secretary, FHEO, to Stewart B. Oneglia, Chief, Coordination and Review Section, Civil Rights Division, Department of Justice, February 7, 1989. Ms. Brachman describes HUD's 504 enforcement before 1988 as "minimally acceptable." (Introduction.)

¹⁵⁶ Memorandum from Laurence Pearl to William Wynn, re: Section 504 in FHEO: Past, Present, and Future, July 22, 1983.

¹⁵⁷ According to HUD Public Affairs staff at the time, the film was to be broadcast on the Christian Broadcasting Network. See Citizens' Commission on Civil Rights, One Nation, Indivisible: The Civil Rights Challenge for the 1990's, Govan and Taylor, editors, Washington, DC, 1989, p. 485.

¹⁵⁸ Memorandum from Philip Abrams, Assistant Secretary for Housing, to Dr. June Koch, Undersecretary for Intergovernmental Relations, re: Proposed Handicapped Program Regulations, July 7, 1981.

¹⁵⁹ Abstract of Secretarial Correspondence from Antonio Monroig, Assistant Secretary, FHEO, re: Implementation of Secretarial Decision to Place All Section 504 Responsibilities in the Office of FHEO, August 19, 1983.

¹⁶⁰ Ibid., p.23.

¹⁶¹ Interviews with HUD staff between December, 2000 and May, 2001.

¹⁶² See "Program Compliance Accomplishments in Section 504, July 1981-July 1983," and "OFHEO Section 504 Accomplishments and Activities, 1984 & 1985," for descriptions of the training, technical assistance, policy development, and grant award activities. HUD did not provide NCD with enforcement data.

¹⁶³ Memorandum from Peter Kaplan to Judith Brachman, Implementation of Section 504 Program, Request for Staff Support for the Section 504 Unit, September 12, 1988.

¹⁶⁴ Memorandum for Regional Administrators, from Antonio Monroig, re: Designation of Section Coordinators, August 8, 1984.

¹⁶⁵ Ibid.

¹⁶⁶ Memorandum from Peter Kaplan through Judith Brachman, Assistant Sec. for FHEO, to Regional Directors, TAG 87-10: Responsibilities of Regional Section 504 Coordinators, June 29, 1987.

¹⁶⁷ Interviews with HUD staff between December, 2000 and May, 2001.

¹⁶⁸ R. Govan, W.L. Taylor, Report of the Citizens Commission on Civil Rights, One Nation Indivisible: The Civil Rights Challenge for the 1990's, Washington, D.C., 1989.

¹⁶⁹ See note 158, supra.

¹⁷⁰ Salaries and Expenses, FHEO, Budget Activity 6, Actual [Budget]1994, Budget Estimate 1995, p. U-11.

¹⁷¹ See Implementation Reports to the Department of Justice, 1988 through 2000.

¹⁷² HUD Civil Rights Implementation Updates, FY 19'88 and FY '1989, February 7, 1989.

¹⁷³ FY 1988 and 1989 Implementation Plan Updates from Judith Brachman, FHEO Assistant Secretary, to Stewart Oneglia, Chief, Coordination and Review Section, Department of Justice, February 7, 1989, pp. 24-27, and conversations with HUD staff.

¹⁷⁴ FY 1988 and FY 1980 Implementation Updates, February 7, 1989; FY 1990 through- FY 1993 Implementation Plan Update.

¹⁷⁵ Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, A Report of the U.S. Commission on Civil Rights (June 1996), p. 328 ff., citing a letter from R. Achtenberg, Assistant Secretary, FHEO to F. Isler, Acting Assistant Staff Director, U.S. Commission on Civil Rights, November 10, 1994.

¹⁷⁶ Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs, U.S. Commission on Civil Rights, Washington, DC, June 1996.

¹⁷⁷ See infra at footnotes 205-207 and associated text.

¹⁷⁸ Susan M. Forward, General Deputy Assistant Secretary, FHEO, Memorandum for The Secretary: Proposed 2020 Management Reform Plan for the OFHEO, September 17, 1997.

¹⁷⁹ See Chart VI-4, infra.

¹⁸⁰ Interviews with HUD staff between December, 2000 and May, 2001.

¹⁸¹ Ibid.

¹⁸² U.S. Commission on Civil Rights, Draft Report on Funding Federal Civil Rights Enforcement, October 6, 2000.

¹⁸³ 24 CFR 8.52 and 8.58(j).

¹⁸⁴ Letter from William Bradford Reynolds, Department of Justice, to Peter Kaplan, FHEO/HUD, July 24, 1987, and letter from William Bradford Reynolds to Robert Kenison, Associate General Counsel, HUD, July 25,1987, recommending the following regulatory language: "If a recipient has discriminated against persons in a program or activity funded under this part, the recipient must take remedial action to make whole all identifiable victims."

¹⁸⁵ Young v. Pierce, 685 F. Supp. 975 (E.D. Tex. 1988), discussed later in section.

¹⁸⁶ FY 1988 and 1989 Implementation Plan Update, p. 1.

¹⁸⁷ Department of Justice Civil Rights Division Coordination and Review Section, Investigation Procedures Manual for the Investigation and Resolution of Complaints Alleging Violations of Title VI and Other Nondiscrimination Statutes, Washington, DC, September 1998, p. 174 (citing 28 CFR Sec. 42.407[c]).

¹⁸⁸ Ibid., p. 176.

¹⁸⁹ In response to the draft of this report, HUD provided NCD with the following information:

Increasing/Expanding Section 504 Compliance Reviews: In FY 2001, FHEO will increase the number of compliance reviews conducted by 25 percent over the previous fiscal year. Also, FHEO will expand the universe of recipients for Section 504 compliance reviews beyond public housing authorities to include HUD assisted-housing recipients. These reviews will examine whether HUD recipients have designated a Section 504 Coordinator; have completed their Transition Plan; have made structural changes to achieve program accessibility; are providing reasonable accommodations; and have complied with other applicable provisions of Section 504. Where violations of Section 504 are found, HUD will take appropriate and necessary steps under Section 504 to effect voluntary compliance. If voluntary compliance cannot be achieved, appropriate enforcement action will be taken. FHEO anticipates including a similar goal in future Business Operating Plans that would increase the number and scope of such reviews.

Identification of Recipients for Reviews: FHEO Field Offices will select recipients for compliance reviews based on risk factors such as (1) number of claims or complaints received; (2) inspection scores from the Real Estate Assessment Center; (3) evidence of property rehabilitation; (4) newspaper articles; and (5) any other information.

¹⁹⁰ Handbook 7465.1, REV-2, Public Housing Occupancy: Admission, July 1991.

¹⁹¹ 24 CFR 8.51.

¹⁹² 24 CFR 8.21, 8.23, 8.24, 8.25.

¹⁹³ 24 CFR 8.25.

¹⁹⁴ HUD Notice, PIH 94-56, Section 504 Compliance and Extensions for Extraordinary Circumstances, August 15, 1994.

¹⁹⁵ FHEO, Office of Program Operations and Standards, Status Report on Public Housing Section 504 Needs Assessment Transition Plans Rehabilitation, June 1997.

¹⁹⁶ As a result, newer HUD programs, such as HOPE VI, 42 U.S.C. 1437(f), are operating without information as to how many accessible public housing units were created because of the jJoint Notice, and are being lost and not replaced. The goal of HOPE VI was to raze "severely distressed" public housing. HUD promoted the use of townhouses to replace large, multi-story apartment buildings. Unfortunately, HUD's FHAFair Housing Act regulations exempt townhouses from accessibility requirements, a problem that HUDthe Department apparently ignored. According to PIH Notice 95-10, "HUD intends for HOPE VI to be the laboratory for the reinvention of public housing . . . by blending public housing units into more diverse and mixed-income communities." HOPE VI could have provided a perfect opportunity for HUD to expand the supply of affordable, accessible housing. Instead, HUD appears to have no idea how many accessible units it destroyed; how many of those were created as a result of PIH's and FHEO's cooperative efforts in 1994-1995 to encourage housing authorities to meet their Section 504 responsibilities; and how many tenants with disabilities have been permanently displaced because of the loss of accessible units. Like many private developers, HUD is now making limited efforts to correct its error. See footnote 226 and associated text.

¹⁹⁷ See 1994 and 1995 Annual Reports to Congress on Fair Housing Programs.

¹⁹⁸ Notice, FHEO 96-1: Multijurisdictional Complaints.

¹⁹⁹ Memorandum for All Directors, FHEO, from Roberta Achtenberg, Assistant Secretary, FHEO, re: Compliance Reviews for 1995, January 1995.

²⁰⁰ Discussions with HUD staff.

²⁰¹ OIG, note 57.

²⁰² 24 CFR 8.32.

²⁰³ Voluntary Compliance Agreement between the New York Housing Authority and HUD, December 6, 1996.

²⁰⁴ HUD FY 1997 Accountability Report, p. 44, March 27, 1998.

²⁰⁵ Conversation with FHEO staff, May 9, 2001.

²⁰⁶ HUD, FY 1997 Accountability Report, pp. 44-45.

²⁰⁷ See Appendix V-1 for a complete list of guidance memoranda.

²⁰⁸ See Appendix V-1.

²⁰⁹ See TAGs 86-9, 87-11, and 88-5.

²¹⁰ Corporation for Supportive Housing, Between the Lines: A Question and Answer Guide on Legal Issues in Supportive Housing, Oakland, CA, 2000.

²¹¹ See, e.g., Citizens Commission on Civil Rights, Lost Opportunities: The Civil Rights Record of the Bush Administration Mid-Term, Chap. XXI and passim, Washington, DC, 1991.

²¹² See, e.g., Section 202 Housing, 12 USC 1701q; 24 CFR 885.1.

²¹³ HUD, Office of Policy Development and Research, Worst-Case Housing Needs, Reports to Congress, 1980-1990; statement of Barry Zigas, President, National Low-Income Housing Coalition, before the House Subcommittee on Housing and Community Development, March 31, 1992; and annual NLIHC reports.

²¹⁴ Brecker v. Queens B'nai Brith Housing Development Fund, 798 F.2d 52 (2d Cir. 1986).

²¹⁵ Cranston-Gonzalez National Affordable Housing Act of 1990, Public Law 101-625.

²¹⁶ Housing and Community Development Act of 1992, Public Law 102-550.

²¹⁷ 24 CFR 891.410(c)(2)(ii).

²¹⁸ Report to Congress, Assessment of the Loss of Housing for Non-Elderly People with Disabilities, prepared for HUD by Abt Associates, Cambridge, MA, December, 2000.

²¹⁹ Ibid.

²²⁰ See, e.g., Technical Assistance Collaborative, Priced Out in 2000, Boston, MA, June 2001.

²²¹ FHEO conducted two-day training sessions in 11 cities that incorporated many of the Occupancy Task Force recommendations that the Office of Public Housing had adopted. FHEO was unable to mount a similar training effort with the Offices of Housing and Community Planning and Development because these offices did not respond to the Occupancy Task Force recommendations.

²²² For example, HUD Notice H 98-29, June 10, 1998, gives five5 bonus points to applicants for Section 811 funding if at least 51 percent of their boards are individuals with disabilities. (p. 4). Also see notefootnote 236, infra, for more examples.

²²³ Strategies for Providing Accessibility and Visitability for HOPE VI and Mixed Finance Homeownership, Urban Design Associates, prepared for HUD's Office of Public Housing Investments, Public and Indian Housing, January 2000.

²²⁴ Ibid., p. 1.

²²⁵ Ibid., p. 2.

²²⁶ 65 Fed. Reg. 76660, HUD-CPD Formula Programs: Assisting Persons with Disabilities-- Recipients' Affirmatively Furthering Fair Housing Responsibilities and Involvement of Persons with Disabilities in Planning Actions, December 7, 2000.

²²⁷ Notice CPD-00-09, December 26, 2000, "Accessibility Notice: Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act and their applicability to housing programs funded by the HOME Investment Partnerships Program and the Community Development Block Grant Program"; Notice CPD-00-10, December 26, 2000, "Accessibility for Persons with Disabilities to Non-Housing Programs funded by Community Development Block Grant Funds - Section 504 of the Rehabilitation Act of 1973, the Americans Wwith Disabilities Act, and the Architectural Barriers Act." The Office of Public and Indian Housing issued a similar notice in 1999, Notice PIH 99-52: "Accessibility Notice: Section 504 of the Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Architectural Barriers Act of 1968; and the Fair Housing Act of 1988."

²²⁸ Notice H 01-02, 2/06/01, "Compliance with Section 504 of the Rehabilitation Act of 1973 and the Disability/Accessibility Provisions of the Fair Housing Act of 1988."

²²⁹ Memorandum from Bill Lann Lee, Acting Assistant Attorney General, Civil Rights Division, DOJ, to Executive Agency Civil Rights Directors, re: Policy Guidance Document: Enforcement of Title VI of the Civil Rights Act of 1964 and Related Statutes in Block Grant-Type Programs, January 28, 1999.

²³⁰ Fair Housing Performance Standards for Acceptance of Consolidated Plan Certifications and Compliance With Community Development Block Grant Performance Review Criteria, Proposed Rule, 63 Fed. Reg. 57882 (October 28, 1998).

²³¹ In a December 16, 1998, letter to Sally Katzen, Office of Management and Budget, Frank Shafroth, on behalf of the League, the Conference of Mayors, the Council of State Legislators, and the National Governors' Association, complained that "this proposed rule would grant HUD the unilateral, unbridled, and unchecked authority to determine whether a city or state has cured impediments to fair housing, both within and outside of its control. ... and would allow the agency to withhold critical block grants." HUD has never issued regulations that specifically implement the 1974 law's requirement that CDBG funds be used "to affirmatively further fair housing."

²³² In the Foreword to the 1999 Connecting with Communities: A User's Guide to HUD Programs and the 1999 SuperNOFA Process, Secretary Cuomo described the SuperNOFA as a single application containing "in one place, all of HUD's competitive grant programs in three areas: housing and community development, economic empowerment, and targeted housing and homeless assistance. That's a total of more than $2.4 billion in available funds."

²³³ See, e.g., HUD's FY 2000 Continuum of Care and HOPWA [Housing Opportunities for Persons with Aids] Application. Providers had mistakenly required tenants in Safe Havens programs to participate in the provider's services program. The Aapplication addressed this issue saying, "Safe havens do not require participation in services and referrals as a condition of occupancy." (p.15). Even in the Supportive Housing Program description, the NOFA reverses years of contrary advice from the Office of Housing, saying, "to the extent possible [in the Supportive Housing Program], HUD encourages providers to develop housing programs which do not require participation in specific services as part of their tenancy requirements.." (ibid.). Also see, Questions and Answers: A Supplement to the 2000 Continuum of Care Homeless Assistance NOFA and Application, in the same Aapplication package, for more examples of regulatory interpretation and guidance.

In the 1998 SuperNOFA for the same grants, HUD introduced the concept of "visitability," encouraging applicants to build and rehabilitate housing with an entrance at grade and with doors wide enough for wheelchair passage. 63 Fed. Reg. 23988, 23995 (April 30, 1998).

²³⁴ Some of the documents are likely to be available only through Freedom of Information Act requests. Others have been widely circulated in specific communities, however, and have become part of the "public" domain; they could easily could serve a wider audience through publication on the wWeb or in the Federal Register. The "Questions and Answers Regarding Admissions and Evictions in Light of Section 504 and the Fair Housing Amendments Act of 1988" that FHEO included in its September 5, 1990, conference on mental disabilities is one such document.

²³⁵ HUD's Office of Fair Housing and Equal Opportunity (FHEO) has many additional obligations as well. Evaluation of those activities is beyond the scope of this report. Among the activities are the enforcement of other civil rights laws, including Title VI of the 1964 Civil Rights Act, Section 109 of the Housing and Community Development Act, Title II of the Americans with Disabilities Act, the Architectural Barriers Act, Section 3 of the Housing and Urban Development Act of 1968, and various eExecutive oOrders. FHEO must lead the government in ensuring that ffederal agencies affirmatively further fair housing. In addition, FHEO has responsibilities for oversight of the Government Sponsored Enterprises,; responsibility for civil rights compliance of HUD's program and policy activities, including front- end reviews of applications for HUD funding,; and it has obligations to respond to inquiries from the White House, members of Congress, industry representatives, and members of the general public.

²³⁶ 5 U.S.C. Sec. 306 et seq.

²³⁷ 5 U.S.C. Sec. 306(a).

²³⁸ Interviews with FHEO senior staff, March and April, 2001.

²³⁹ HUD's Strategic Plan, 2000-2006, available at www.hud.gov/reform/strpln.cfm.

²⁴⁰ Ibid., pp. 35-46.

²⁴¹ Ibid., pp. 41-42.

²⁴² Ibid., p. 41.

²⁴³ Ibid., p. 42.

²⁴⁴ The General Accounting Office has recently described HUD's FY 2000 performance report as "an improvement" over the previous year's efforts, but said that the agency "is still struggling to articulate and accomplish its mission." HUD overall was criticized for failing to demonstrate how specific agency programs contributed to successful outcomes. Department of Housing and Urban Development: Status of Achieving Key Outcomes and Addressing Major Management Challenges, General Accounting Office Report 01-833.

²⁴⁵ HUD's 1999-2003 Strategic Plan is found at www.hud.gov/reform/sptoc.cfm. The performance measures are located in Appendix 1, www.hud.gov/reform/spappend.cfm.

²⁴⁶ Ibid., Performance Objective 7.

²⁴⁷ Program Fiscal Year 2001 Annual Performance Plan, accessible at www.hud.gov/app2001.pdf, p. ii.

²⁴⁸ Ibid.

²⁴⁹ Ibid., p. 152.

²⁵⁰ Ibid., pp. 160-161.

²⁵¹ Congress required HUD, in R"report" language associated with its FY 2001 budget, to work with fair housing advocates, advocates for the disabled, and users and providers of multifamily housing, to develop a plan for educating housing users and providers about accessible housing. This component in the APP appears directly related to this requirement.

²⁵² See, e.g., text at footnotes 185-189, supra.

²⁵³ The FYFiscal year 2000 BOP was the latest BOP available for this review.

²⁵⁴ See discussion at footnotes. 64-72, infra.

²⁵⁵ It is not clear the extent to which the strategies set in the FY 2000 BOP overlap the strategic objectives in the FY 2001 APP. For example, the APP seeks the reduction of aged cases in the HUD inventory by 33 percent rather than 30 percent and the reduction of aged cases in the FHAP inventory by 15 percent rather than the 10 percent set in the BOP.

²⁵⁶ FHEO reported that it had met its FY 2000 BOP goals. It reported that it accomplished 758 enforcement actions, resulting in 553 percent of its goal. But see earlier discussion of this issue infra. FHEOIt reported that FHAP grantees increased their enforcement actions by 31, exceeding the national goal of 21. (Hhowever, an increase of 31 enforcement actions by FHAPs nationally is not a significant increase in comparison to the other FHAP accomplishments detailed elsewhere in this report.). FHEO reported that it exceeded its goal of closing aged cases by closing 1,620 aged cases and that FHAPs had reduced their aged cases by 1828 cases. However, aAgain reflecting confusion in the goals, however, FHEO's report claimed that the FHAP goal was to decrease itstheir aged inventory by 20 percent while the APP indicated that the goal was a 15 percent reduction and the BOP standard described a 10 percent reduction. See December 21, 2000, Memorandum from Eva Plaza, Assistant Secretary for Fair Housing and Equal Opportunity, to Frank Davis, Director, Office of Departmental Operations and Coordination, and discussion at footnote 258.

²⁵⁷ Before this reorganization, HUB directors reported to the Director of the Office of Enforcement (previously the Office of Investigations) on the performance of enforcement and compliance functions, and on their oversight of FHIP and FHAP. This approach meant that compliance with substantive legal and policy guidance was directly managed by substantive experts. As a result of the 1997 reorganization, Ffield Ooversight Sstaff, using the BOP requirements, oversee substantive performance of all of the field operations. This office includes some individuals with substantive knowledge but limited investigative and supervisory experience.

²⁵⁸ Memorandum from Susan M. Forward, General Deputy Assistant Secretary for Fair Housing and Equal Opportunity, to the Secretary, September 17, 1997.

²⁵⁹ Ibid.

²⁶⁰ Ibid.

²⁶¹ OIG, note 57, p. 13.

²⁶² Floyd May Interview, April 2001.

²⁶³ "Focused Enforcement: The Business Process Redesign of the Title VIII Housing Discrimination Investigation Process," PriceWaterhouse, March 8, 1996, p. IX-7.

²⁶⁴ Interview with Harry Carey, senior HUD staff, April 2001.

²⁶⁵ DOJDepartment of Justice makes available information about its lawsuits and amicus involvement in fair housing cases at www.usdoj.gov/crt/housing/caselist.htm. It lists 27 cases relating to disability -based discrimination in the housing area.

²⁶⁶ See, e.g., 42 U.S.C. 3612(b)(4), conciliation agreements to be made public.

²⁶⁷ Web sites hosted by fFederal Government agencies should consider the requirements of Section 504. Because Section 508 of the Rehabilitation Act also covers ffederal agencies, the information that they make available to the public should include accessible features and alternative forms of access for people with disabilities.

²⁶⁸ Development of this database was initially funded through FHIPFair Housing Initiatives Program. It is located at www.fairhousing.com.

²⁶⁹ Senior HUD staff member interview, April 2001.

²⁷⁰ HUD's proposed budget for 2002 identifies another issue likely to have an impact on fair housing staffing. The proposed budget indicates that HUD is working to develop a long-term staffing strategy to meet an expected increase in retirements because ofdue to the high number of older workers in the HUD workforce. Because of the expertise drain that has already adversely affected FHEO, further retirements are likely to have a significant impact on the quality of its work.

²⁷¹ HUD Staffing Status, November 17, 1999.

²⁷² "Focused Enforcement: The Business Process Redesign of the Title VIII Housing Discrimination Investigation Process," PriceWaterhouse LLP., March 8, 1996, p. VIII-8.

²⁷³ In addition, HUD has recently been criticized by Congress for lacking a staff plan that matches staffing requirements with programmatic responsibilities, citing a study by the National Academy of Public Administration finding that top management does not "know whether ... staff levels in individual offices and overall are adequate to accomplish the department's mission."

²⁷⁴ "Focused Enforcement: The Business Process Redesign of the Title VIII Housing Discrimination Investigation Process," PriceWaterhouse LLP., March 8, 1996, PriceWaterhouse, supra, p. VIII-7.

²⁷⁵ Ibid., Appendix B, forward memorandum to the Secretary, September 17, 1997.

²⁷⁶ OIG, note 57, p. 20.

²⁷⁷ Ibid., p. 26.

²⁷⁸ Ibid..

²⁷⁹ Senior HUD staff member interview, April, 2001.

²⁸⁰ Senior HUD staff member interview, April 2001. In particular, senior staff attribute the lack of compliance activity to diversion of staff resources to support HUD's doubling of its enforcement efforts during the past four years.

²⁸¹ 42 U.S.C. Sec. 3616a (a).

²⁸² 42 U.S.C. Sec. 3616a (a) (1) and (2).

²⁸³ Some advocates have argued that FHIP loses many benefits and is delayed unnecessarily by operating as a competitive program. Instead, they argue, that it should be administered as a basic grant program for eligible entities, somewhat as HUD administers its Fair Housing Assistance Program (FHAP), with a higher degree of emphasis on training, technical assistance, and quality assurance, and less emphasis on administration of a competitive grant program.

²⁸⁴ GAO Report Number GAO/RCED-00-160R Fair Housing Accessibility Provisions, June 30, 2000.

²⁸⁵ Testing has been sanctioned by many court decisions, including, most notably, the United States Supreme Court, in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).

²⁸⁶ For FYfiscal years 1999, FY 2000, and FY 2001, Congress funded FHIP at higher levels, but HUD allocated a total of $22 million of FHIP funds over the three years for a fair housing audit that was not competed through FHIP. This expenditure by HUD has been the subject of controversy among FHIP recipients who sought to have all of the funds available for FHIP-eligible projects. Some advocates argued that the audit expenditure was not authorized by the FHIP statute because the funding was to be used neither for enforcement nor for education and outreach. HUD's proposed budget for FYFiscal year 2002 isproposes $23 million for FHIP and indicates that it expects that this funding level will fund only 72 percent of eligible applicants. Its FYfiscal year 2000 allocation funded only 42 percent of the eligible applicants.

²⁸⁷ See discussion at footnote 286. This chart represents the actual funding level available for FHIP activities.

²⁸⁸ Compiled from data provided by the Fair Housing Initiatives Program, December 27, 2000. 55 Fed Reg. 50890, December 11, 1990;, Fed. Reg. 29741, July 6, 1992;, 58 Fed. Reg. 13068, March 9, 1993;, 59 Fed. Reg. 35945, July 14, 1994;, 59 Fed. Reg. 63369, December 8, 1994;, 61 Fed. Reg. 5013, February 9, 1996;, 62 Fed. Reg. 24965;, 63 Fed. Reg. 8465, February 19, 1998.

²⁸⁹ 1998 Audit Report, supra, p. iv.

²⁹⁰ Ibid., p. 27.

²⁹¹ Audit Report, Office of District Inspector General for Audit, Capital District, February 13, 2001, Audit Memorandum No. 2001-AO-0801 (hereafter 2001 Audit Report).

²⁹² Audit Report, Office of District Inspector General for Audit, Capital District, July 6, 2000, Audit Memorandum No. 00-AO-174-0801 (hereafter 2000 Audit Report). FHEO noted in its comments on the draft of this report that it did not fund the Boston Housing Authority, because the matter was corrected before funds were dispersed. The matter was corrected following a complaint to the OIGOffice of the Inspector General.

²⁹³ See discussion in footnote 292.

²⁹⁴ House Conference Report, H. Rpt. 106-674, June 7, 2000.

²⁹⁵ One organization reported that a previous FHIP contract expired in September 1999. The Notice of Funding Availability for new funds was issued in June, but the group was not notified that it was funded until December 1999. A contract was negotiated with a promised start date of February 15. The contract was not issued until May. This organization, with a consistent record of funding eligibility and of strong enforcement capability, went without FHIP funding from September 30, 1999, until late May 2000.

²⁹⁶ Interview with senior HUD staff members, April 2001.

²⁹⁷ In its comments on the draft of this report, FHEO noted that FHIP recipients are required to file all complaints with HUD or with an FHAP agency, and that case-related data are thus trackable through FHEO's complaint-tracking system, TEAPOTS. This comment misses two important points: (1) one, FHIP recipients engage in extensive activity in matters that may not become complaints and which are not captured by government case-tracking systems., and, more important, (2) Second, and more importantly, the existing systems do not have great utility for monitoring the activities of the FHIP recipient itself, which is important for purposes of monitoring how FHIP grant funds are being used.

²⁹⁸ This subject was discussed, with complete consensus, by the FHIP recipient audience, with Deputy Assistant Secretary David Enzel at a workshop held at the bi-annual HUD-FHAP-FHIP Conference in San Antonio, Texas, in July 2000 and has repeatedly been raised in working group discussions that FHEO routinely holds with FHIP recipients.

²⁹⁹ See, e.g., 24 CFR 115.303.

³⁰⁰ 42 U.S.C. Sec. 3608.

³⁰¹ 24 CFR 115.

³⁰² 24 CFR 115.

³⁰³ Ibid.

³⁰⁴ FHEO states that it has taken action to deny substantial equivalency status to a number of jurisdictions. The state of Montana and city of Clearwater, Florida, lost equivalency status after their laws were amended or repealed. The state of Illinois and other jurisdictions are no longer equivalent because of due to performance issues, and the state of Tennessee lost its equivalency status for a time because ofdue to performance issues. However, FHEO's significant activity in challenging equivalency occurred in the mid-1990s. No significant actions have been taken since 1997.

³⁰⁵ For example, the National Fair Housing Alliance and its members have communicated with FHEO on numerous occasions about substantially equivalent agencies that have deficiencies in their laws or performance. Among the issues raised arehave included: provisions in Pennsylvania and Nebraska state law affecting equivalency, judicial decisions in Indiana and Virginia affecting equivalency, and significant performance problems in Louisiana and Virginia, including the failure of Louisiana to issue a charge in seven years of operation. FHEO has not provided substantive responses to the National Fair Housing Alliance on any of these issues, despite the fact that these deficiencies are representative of performance standards to obtain and maintain equivalency status. See, e.g., 24 CFR 115.203 and 115.211.

³⁰⁶ HUD's proposed budget for FY 2002 indicates that it will seek $23 million for FHAP program and that it will also seek to use additional FHIP funding to benefit substantially equivalent state and local agencies.

³⁰⁷ See House Appropriations Committee Report, H. Rpt. 106-674, June 7, 2000 .

³⁰⁸ 24 CFR 115.305.

³⁰⁹ 24 CFR 115.305 (a)(1)-(6).

³¹⁰ Interview with Floyd May, senior HUD staff, April 2001.

³¹¹ The absence of adequate contract funds in FY 1997 caused FHEO to shut down a fair housing clearinghouse service that was designed to provide fair housing support materials to the public.

³¹² Senior HUD staff member interview, April 2000.

³¹³ 24 CFR 100 et seq. For some years, HUD also published the Preamble to the Fair Housing Act regulations, containing considerable substantive interpretative guidance as an Appendix to its FHAFair Housing Act regulations. However, this information is no longer published in the annual Code of Federal Regulations. For a discussion of HUD's lack of guidance on Section 504 interpretations, see Section V.L., above

³¹⁴ HUD issued regulations on design and construction requirements specifically; it also has issued, and published in the Federal Register, questions and answers on design and construction issues and a detailed design manual.

³¹⁵ Each of these Nnotices and other public documents interpreting aspects of FHEO's policies or activities can be found online at www.fairhousing.com, under HUD resources. HUD's usual way of disseminating guidance to the public on program issues is through Nnotices and Hhandbooks, each of which goes through an internal clearance process and then is made available publicly. All of HUD's Nnotices and Hhandbooks are available online at www.hudclips.org.

³¹⁶ FR-4405-N-01, December 17, 1998.

³¹⁷ HUD Handbook Number 8024.1, available at www.hudclips.org.

³¹⁸ Ibid., Chapter 8, Analysis of Specific Cases, Sections 8-8 and 8-9.

³¹⁹ See Chart IV-3.

³²⁰ Although it is clear that the Olmstead decision, by its very nature, requires significant levels of HUD involvement as it relates to housing opportunities for people with disabilities, there was no evidence of activities related to implementation of the Olmstead decision in the materials provided by FHEO for this report.