Reconstructing Fair Housing 


National Council on Disability


November 6, 2001

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004-1107 

Reconstructing Fair Housing 

This report is also available in alternative formats and on NCD’s award-winning Web site 

(www.ncd.gov). 

Publication date: November 6, 2001 

202-272-2004 Voice 

202-272-2074 Text Telephone 

202-272-2022 Fax 

The views contained in the report do not necessarily represent those of the administration, as this 

document has not been subjected to the A-19 executive branch review process. 
Letter of Transmittal 

November 6, 2001 

The President 

The White House 

Washington, DC 20500 

Dear Mr. President: 

On behalf of the National Council on Disability (NCD), I am pleased to submit a report 

titled Reconstructing Fair Housing. This report is the fifth in a series of independent analyses by 

NCD of federal enforcement of civil rights laws. 

The series grew out of NCD’s 1996 national policy summit, which was attended by more 

than 300 disability community leaders from diverse backgrounds who called upon NCD to work 

with federal agencies to develop strategies for greater enforcement of existing disability civil 

rights laws. In March 1999, NCD produced its first report, Enforcing the Civil Rights of Air 

Travelers with Disabilities. The second report, Back to School on Civil Rights, on the 

enforcement of th e Individual s with Disabilities Education Act, was issued in January 20 00. In 

June 2000, NCD produced its third report, titled Promises To Keep: A Decade of Federal 

Enforcement of the Americans with Disabilities Act. The fourth report, The Accessible Future, on 

the status of enforcement of various federal laws dealing with electronic and information 

technology accessibility, was issued in June 2001. The enforcement reports to follow in this 

series will be on Section 504 of the Rehabilitation Act and the Civil Rights of Institutionalized 

Persons Act. 

Reconstructing Fair Housing looks at the Fair Housing Amendments Act of 1988 

(FHAA) and Section 504 as they relate to one key federal agency, namely, the U.S. Department 

of Housing and Urban Development (HUD). NCD’s findings reveal that while the past several 

Administrations have asserted their support for the civil rights of people with disabilities, the 

federal agency charged with enforcement and policy development under the FHAA and Section 

504 has been underfunded, understaffed, and lacking any consistent strategy and direction. 

We recognize that your Administration is committed to eradicating fair housing 

discrimination and removing barriers to community living for people with disabilities. In a 

number of instances, you have indicated your commitment to Americans with disabilities. That 

commitment is articulated in your New Freedom Initiative; in the mandate you issued under 

Executive Order No. 13217, establishing an Interagency Council on Community Living; and, in 

the work of your Fair Housing Council. 

As HUD Secretary Mel Martinez and Attorney General John Ashcroft stated so 

eloquently on April 11, 2001 (the 33rd anniversary of the Fair Housing Act): “Discrimination in 

housing simply will not be tolerated, and we will prosecute those who violate the Fair Housing 
Act.” And in signing their pledge as members of the Fair Housing Council, they indicated, “As 

members of the President’s Fair Housing Council established by Executive Order 12892, we 

pledge to administer the programs of our Department or Agency in support of the Fair Housing 

Act of 1968 as amended in 1988 and aggressively fight to end housing discrimination because of 

race, color, national origin, religion, sex, familial status, or handicap.” 

Reconstructing Fair Housing responds to the commitments of your Administration, as 

listed above, by providing a roadmap for addressing the shortcomings that have hampered FHAA 

and Section 504 compliance and enforcement until now. NCD is prepared to work with HUD and 

other stakeholders inside an d outside the go vern ment to develop that strategy. 

NCD stands ready to work on those and related matters. 

Sincere ly, 

Marca Bristo 

Chairperson 

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the 

Speaker of the U.S. House of Representatives.) 

iii 
National Council on Disability Members and Staff


Members 

Marca Bristo, Chairperson 

Hughey Walker, First Vice Chairperson 

Kate Pew Wolters, Second Vice Chairperson 

Yerker Andersson, Ph.D. 

Dave N. Brown 

Edward Correia 

John D. Kemp 

Audrey McCrimon 

Gina McDonald 

Bonnie O’Day, Ph.D. 

Lilliam Rangel-Diaz 

Debra Robinson 

Gerald S. Segal 

Ela Yazzie-King 

Staff 

Ethel D. Briggs, Executive Director 

Jeffrey T. Rosen, General Counsel and Director of Policy 

Mark S. Quigley, Director of Communications 

Kathleen A. Blank, Attorney/Advisor 

Gerrie Drake Hawkins, Ph.D., Program Specialist 

Martin Gould, Ed.D., Research Specialist 

Pamela O’Leary, Interpreter 

Allan W. Holland, Accountant Officer 

Brenda Bratton, Executive Assistant 

Stacey S. Brown, Staff Assistant 

Carla Nelson, Office Assistant 

Edward J. Heaton, Fellow 

iv 
Acknow ledgments 

This report is the product of a team effort and incorporates the work of several people. 

First and foremost, the research and interviews were conducted and a report to the National 

Council on Disability (NCD) prepared—through a contract with the National Fair Housing 

Alliance and the Bazelon Center for Mental Health Law—by Sara Pratt, Michael Allen, and 

Bonnie Milstein. 

NCD would also like to thank the people who gave of their time and agreed to participate 

in the development of this report. Special acknowledgment goes to the many staff members of 

the U.S. Department of Housing and Urban Development who not only answered many questions 

but gathered documents and shared voluminous data with the research team. In addition, they 

reviewed and commented on preliminary drafts of the contents of this document for technical 

accu racy. 
Contents


I.	 Preface . . .............................................................. 1 


II. 	 Executive Summary . . . . . . . . . . . ......................................... 3


A.	 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 3


B.	 Summary of Key Recommendations . . . . . . . . . . . . . . . . . . . . .............. 8


1. 	 Improving Enforcement of Disability Rights and Ensuring Compliance


 by Grantees . . . . ........................................... 10


2.	 Dedicating Adequate Resources to Enforcement and Compliance


Activities ................................................. 11


3.	 Improving Policy Guidance and Data Collection .................. 12


4.	 Improving Identification and Dissemination of Best Practices ........ 13


5.	 Regaining Public Trust in HUD’s Enforcement and Compliance 


Activities ................................................. 14


C.	 Future Prospects .................................................. 15


III. 	 The Fair Housing Act and Section 504: What Congress Intended ................. 18


A. 	 The Fair Housing Act .............................................. 18


1.	 Passage of the Law .......................................... 18


2.	 Legislative History of the Fair Housing Amendments Act of 1988 .... 19


3.	 Expanding the Fair Housing Act to Cover Disability


and Familial Status .......................................... 21


4.	 The Administrative Enforcement Process ........................ 24


5.	 Other Enforcement Options ................................... 25


6.	 Private Fair Housing Enforcement Agencies ...................... 26


B. 	 Section 504 of the Rehabilitation Act of 1973 ........................... 26


1.	 Initial Passage of the Law .................................... 26


2.	 Congressional Intent ........................................ 28


3.	 History of HUD’s Section 504 Regulations ....................... 29


4.	 HUD’s Final Section 504 Regulations ........................... 33


5.	 The Administrative Enforcement Process ........................ 33


C. 	 The Role of Federal, State, and Local Agencies in the Fair Housing Act


Enforcement Process .............................................. 37

1.	 Introduction ............................................... 37


2. 	 The Claims Process ......................................... 38


3. 	 HUD Conducts Its Fair Housing Act Responsibilities Through 10

Regional Offices ........................................... 40


4.	 Recent History of HUD Enforcement of Title VIII ................. 41


a.	 Devolution of Authority to HUBs ........................ 41


b.	 Hot Cases ........................................... 42


c.	 Doubling Enforcement Actions .......................... 43


5.	 State and Local Fair Housing Agencies .......................... 47


IV. 	 Enforcement of the Provisions of the Fair Housing Act ......................... 52


A.	 Introduction ..................................................... 52


B.	 Complaint Intake ................................................. 53


1.	 The Growth (or Stagnation) of Disability Complaints ............... 53


2.	 HUD Has Complicated Its Reporting by Creating a 


New Category .............................................. 55


3.	 HUD Regional Offices Vary Widely in Complaint Intake ........... 59


4.	 Growth in State and Local Agency Intake ........................ 59


5.	 Disability Is the Fastest Growing and Largest Category 


Among Housing Discrimination Complaints ...................... 60


6.	 There Are Wide Regional Variations in HUD Disability 


Complaints ................................................ 62


7.	 Disability Caseloads at State and Local Agencies .................. 65


8.	 Issues in Disability Claims and Complaints Filed with 


HUD and FHAPs ..................................... 67


 C.	 Case Outcomes ................................................... 70


1.	 Cases Administratively Closed ................................ 70


2.	 Cases Conciliated ........................................... 72


3.	 No Cause Findings .......................................... 75


4.	 Cases in Which HUD Finds Cause to Believe 


Discrimination Has Occurred .................................. 79


D.	 Case Processing Times ............................................ 87


1.	 Statutory and Regulatory Constraints ........................... 87


2.	 Actual Experience of Complaints and Claims. ................... 88


3.	 Regional Variations on Aged Cases ............................ 94


vii 
4.	 Age to Closure ............................................. 97


a.	 Age to Conciliation: ................................... 98


b.	 Age to No Cause .................................... 100


c.	 Age of Cause Cases .................................. 101


E.	 Financial and Other Relief Made Available to Victims of Discrimination .... 103


F.	 Other Enforcement Options ........................................ 113


1.	 Secretary-Initiated Complaints ................................ 113


2.	 Proceedings Before Administrative Law Judges .................. 115


V. 	 HUD’S Enforcement of Section 504 ....................................... 118


A.	 Introduction .................................................... 118


1.	 Scope of the Section 504 Discussion ........................... 118


2.	 Section 504 Provides Relief Not Available Under the Fair 


Housing Act .............................................. 119


3.	 Section 504 Emphasizes Voluntary Compliance .................. 120


B. 	 Overview of Section 504 Enforcement ............................... 121


C. 	 Data .......................................................... 123


D. 	 No Significant Section 504 Enforcement Occurred Before HUD Published Its


Final Section 504 Regulations in 1988 ............................... 135


E. 	 Budget and Staff ................................................. 137


1. 	 Budget and Staff Before Publication of Final Section 504 Regulations 137


2. 	 Budget and Staff After Publication of Section 504 Regulations ...... 140


F. FHEO Reorganizations ........................................... 145


1.	 Numbers ................................................. 148


G. Section 504 Enforcement Emphasis on Public Housing .................. 150


H. Joint Initiatives Between FHEO and Office of Public and Indian Housing .... 153


viii 
I.	 Broadening the Enforcement Agenda Through Coordination and Multistatute


Reviews ....................................................... 156


1.	 Intradepartmental Cooperation Leads to More 


Accessible Units in New York ................................ 159


2.	 Broad Array of Enforcement Tools Protects Relief in 


Pinellas County, Florida ..................................... 161


3.	 Working in Partnership with Local Advocacy Group 


Wins Broad Relief in Austin ................................. 162


J.	 HUD Has Often Failed to Enforce VCAs ............................. 164


K.	 HUD Initiates Multistatute Compliance Reviews ....................... 165


L.	 Guidance ...................................................... 167


M.	 Civil Rights Conflicts Within the Department ......................... 169


1. 	 HUD’s Narrow Definition of “Recipient” Limits Civil 


Rights Enforcement ........................................ 169


2. 	 Elders, Nonelders with Disabilities, and the Secretary’s 


Office on Disability Policy ................................... 170


3.	 HOPE VI’s Adoption of Townhouses to Replace Large


Public Housing Buildings Has Significantly Reduced the 


Number of Accessible Units in the Public Housing Inventory. ...... 175


N.	 The Most Recent Years: 1998–2001 ................................. 176


1. 	 FHEO and Departmentwide Coordination ....................... 176


O.	 Conclusion ..................................................... 180


VI. 	 Effects of Policy Decision Making, Resources, Legal Decisions, and Structure on


Delivery of Enforcement ................................................ 181


A. 	 Resources and Leadership Must Be Dedicated to Administrative 


Enforcement .................................................... 181


ix 
B. 	 Organizational Structures Must Support Enforcement and Compliance 


Activities ...................................................... 184


1.	 Overview of FHEO’S Organizational Structures That Set Enforcement and


Compliance Priorities ...................................... 184


2. 	 HUD’s Strategic Plan Has Only Limited Commitments to Improving


Enforcement and Compliance in General and 


for People with Disabilities .................................. 186


3. 	 FHEO’s Current Annual Performance Plan Lacks a Strong Enforcement


and Compliance Direction .................................. 188


4. 	 FHEO’s Business and Operating Plan Has Only Limited Application to


Enforcement and Compliance ............................... 191


5. 	 Organizational Structure and Accountability ..................... 193


6. 	 FHEO Should Improve Its New Monitoring S ystem by 


Focusing on Outcome-Oriented Performance by Field Staff ......... 195


7. 	 FHEO’s Criteria for On-Site Monitoring Should Be 


Revised to Focus on Improved Substantive Performance, 


Not Process .............................................. 197


a.	 Enforcement ........................................ 197


b.	 Compliance ........................................ 199


c.	 FHAP-Related Activities .............................. 199


d.	 FHIP-Related Activities ............................... 201


8. 	 FHEO’s Performance Requirements for Individual Employees Should


Focus on Enforcement and Compliance Outcomes ................ 202


9. 	 HUD’s Legal Guidance Should Be Compiled and Organized to Support


Enforcement and Compliance Activities ........................ 203


C. 	 Organizational Resources Supporting Enforcement and Compliance Have Not


Been Adequate .................................................. 206


1. 	 FHEO Has Not Been Adequately Staffed to Perform 


Enforcement and Compliance Activities ........................ 206


a. 	 FHEO Staffing Overall Has Dropped Significantly


During the Past 10 Years ............................. 206


b. 	 Enforcement Staffing Has Dropped ...................... 208


c. 	 Staffing of Compliance Activities Has Dropped Significantly and


Is Now Half the 1989 Level ........................... 210


x 
d. 	 Lawyers in the Field Offices of Counsel Should be Provided in


Adequate Numbers to Support 


Enforcement and Compliance Activities ................. 213


2. 	 Funding for the Two Major Programs Authorized by 


the Fair Housing Act to Address Enforcement Has Been Inconsistent and


Management Practices Problematic ............................ 215


a. 	 The Fair Housing Initiatives Program Has Not Been 


Consistently Funded by Congress ....................... 215


b. 	 FHEO’s Administratio n of the Fair Housing 


Initiatives Program Does Not Engender Confidence 


in the Program ...................................... 219


c. 	 The Fair Housing Initiatives Program Is Critical to Effective


Enforcement of the Act and Should Be Revitalized ........ 222


d. 	 Funding for the Fair Housing Assistance 


Program Has Been Increased .......................... 225


e. 	 Although FHAP Agencies Have Performed More Efficiently than


FHEO in Enforcement, Improved 


FHEO Oversight Could Improve Their Performance ........ 227


3. 	 HUD Has Not Provided Adequate Contract Funds to 


Support Enforcement and Compliance Activities ................. 230


4. 	 Funding for Travel Costs Has Not Increased over the 


Past Seven Years .......................................... 232


D. 	 FHEO Should Improve Its Policy Decision Making and Communication 


of Those Policies to Staff and to the Public ............................ 233


1. 	 Existing Procedures for Developing and Communicating Substantive


Policy Guidance Should Be Expanded ......................... 233


2. 	 FHEO’s Training Capability Is Limited Because of 


Lack of Resources, and This Lack Adversely Impacts 


Enforcement and Compliance ................................ 237


3.	 HUD Has Never Performed a National Audit of 


Discrimination Based on Disability That Could 


Contribute to Greater Understanding of the Nature and 


Extent of Such Discrimination ................................ 239


4. 	 At the Departmental Level , HUD Needs On going 

xi 
242 

Disability-Related Policy Input ............................... 240


5. 	 Increased Input from People with Disabilities and 


Their Advocates Is Needed to Inform HUD and the 


Public About the Nature and Extent of Housing 


Discrimination. ........................................... 241


6. 	 Increased Support and Leadership from the Administration, Congress, and 

HUD Leaders Are Critical to Enforcement and Compliance Improvements

VII. Conclusion ........................................................... 244


APPENDIX I: List of Findings and Recommendations ............................... 245


APPENDIX II: List of Tables and Charts ......................................... 279


APPENDIX III: List of Acronyms ............................................... 282


APPENDIX IV: Supplementary Charts and Tables ................................. 284


APPENDIX V: Technical Guidance Materials ..................................... 294


APPENDIX VI: Mission of the National Council on Disability ........................ 302


xii 
SECTION I 

Preface 

This report, part of the National Council on Disability’s (NCD’s) series “Unequal 

Protection Under Law,” examines in detail the way the U.S. Department of Housing and Urban 

Development’s (HUD’s) Office of Fair Housing and Equal Opportunity has handled complaints 

filed with it about illegal discrimination in housing and how it has used, or failed to use, its 

authority to secure compliance with the Fair Housing Act and Section 504. 

By issuing this report, NCD recognizes the importance to people with disabilities of 

enforcement of these laws. Freedom from discrimination in looking for, and living in, housing 

remains one of the cornerstones of the American dream. The ability to choose a home without 

discrimination, to live in a home without interference, to seek and be granted reasonable 

accommodations where these are necessary, and to find and acquire accessible housing—these 

are essential first steps for people with disabilities to live in the mainstream of our country. When 

discrimination intervenes, it stigmatizes, isolates, and removes free choice and the opportunity to 

live as part of the community of all Americans. 

This study describes HUD’s administrative enforcement of the Fair Housing Act and 

Section 504. It covers HUD’s enforcement and compliance work conducted under these laws, 

with particular emphasis on the rights of people with disabilities during the period roughly 

beginning with the passage of the Fair Housing Amendments Act in 1988 and ending on 

September 30, 2000. An evaluation of HUD’s many housing programs, how these programs 

affect people with disabilities, and how HUD complies—or fails to comply—with these laws is 

beyond the scope of this report. The report also does not focus on the work of other federal 

agencies, including the Department of Justice, in enforcing these civil rights laws, and it does not 

cover private enforcement of either law. 

This report is for everyone who supports effective, fair enforcement of civil rights laws. 

Certainly it is directed to leaders in the Administration and to Congress and the leaders at HUD 

who seek to improve the agency’s management and operations. 
It is for people with disabilities, so they can know more about how the government works 

to vindicate their rights and how the promise of enforcement has not yet been achieved for them 

and for others who encounter housing discrimination. 

It is for housing providers and others whose conduct is frequently regulated by these laws 

and who are equally and adversely affected when administration of the laws is not prompt, 

reliable, and fair. 

It is for the public, because the public is entitled to full, fair enforcement of civil rights 

laws, and is entitled to know the ways in which enforcement is, and is not, being effectively 

administered. 

It is for those people in HUD’s Office of Fair Housing and Equal Opportunity who 

remain committed to full, fair enforcement of the law and who recognize that, despite their best 

efforts, much work remains before the dream can be accomplished. 

2

SECTION II 

Executive Summary 

The past 12 years of civil rights enforcement by the Department of Housing and Urban 

Development (HUD) have left America, and in particular people with disabilities, needing more. 

The late 1980s were characterized by a new commitment to equal housing opportunity: Congress 

passed the Fair Housing Amendments Act of 1988 (FHAA) and HUD finally promulgated 

regulations for the enforcement of Section 504 of the 1973 Rehabilitation Act. HUD was 

empowered to investigate and adjudicate discrimination complaints and to enforce compliance by 

recipients of federal funds. By the late 1990s, however, HUD had lost control of its own 

enforcement process, with investigations taking nearly five times as long as Congress mandated 

and with scarcely 100 cases annually concluding with findings of discrimination during each of 

the past six fiscal years. 

Administrative enforcement of civil rights laws has been hampered by the failure of 

Congress and HUD to provide the level of resources that effective enforcement requires. 

Inconsistent and inadequate funding has caused some specific problems for HUD, especially 

concerning staffing and special enforcement initiatives. The bigger problem has been HUD’s 

failure to provide consistent national leadership and management of the fair housing enforcement 

process. As a result, the promises of the fair housing laws have been empty for many Americans, 

with and without disabilities. 

The primary focus of this report is the way in which HUD has conducted its 

administrative enforcement of the Fair Housing Act (FHA) and Section 504 of the 1973 

Rehabilitation Act to counter discrimination in housing, and, in particular, HUD’s record during 

the past 12 years in enforcing the rights of people with disabilities under these laws. 

A. Overview 

Housing discrimination undermines one of the fundamental premises on which our free 

society is based because it unfairly, and illegally, denies access to the accessible, affordable 

housing that people with disabilities need to live independent lives. Without effective and fair 

3
 
enforcement of civil rights laws, people who are injured by housing discrimination lack recourse 

to remedies and rights that Congress passed in an express effort to achieve a country free from 

invidious discrimination. And without effective and fair enforcement of civil rights laws tied to 

increased education about those laws, people cannot know the ways in which discrimination may 

occur so they can avoid discriminating, and those that perpetrate discrimination will not be held 

accountable for their unlawful actions. 

The absence of an effective fair housing enforcement system motivated Congress to pass 

the FHA and to invest HUD with strong authority to combat discrimination. This report 

concludes that ineffective enforcement has led to a loss of public trust that the protections of the 

FHAA and Section 504 will be enforced. When these important civil rights laws are not well 

enforced, individual victims of discrimination suffer, but the entire country also suffers as 

ignorance of, and disdain for, the laws increases. Nowhere is this more harmful than in the 

context of housing, where discrimination can have such a devastating impact on a person’s 

ability to work, to attend school, to be involved in the civic life of the community, and to pursue 

all the variations on the American dream. 

People with disabilities encounter illegal housing discrimination in many different ways: 

(1) inaccessible housing, (2) stereotypes about the ability to live independently, or (3) the 

inability to get modifications in rules or policies that have historically excluded people with 

disabilities. Housing discrimination artificially constricts the housing choice of people with 

disabilities; as a consequence, they may be forced to live in undesirable, dangerous, or 

unwelcoming neighborhoods. They may encounter harassment, intimidation, or unfair and illegal 

treatment. 

At the same time, many in the housing industry seek answers to their questions about 

discrimination. Without answers to those questions, even unintentional discrimination may 

continue. This country still needs the prompt, effective civil rights law enforcement that impelled 

Congress to pass the FHA and Section 504. 

In 1988, Congress, with strong bipartisan support, passed the Fair Housing Amendments 

Act, adding handicap and familial status (the presence of minor children in a household) as 

additional prohibited bases for discrimination and strengthening enforcement authority under the 

4
 
law. Rights of people with disabilities to be free from discrimination in housing were 

considerably expanded because the amendments provided key protections to them and offered 

them, for the first time, rights to equal treatment and to reasonable accommodations in policies, 

procedures, and practices, and rights to have newly constructed multifamily housing designed 

and constructed to be usable by people with physical disabilities. 

During the 1990s, people with disabilities increasingly filed discrimination complaints 

with HUD under the FHA, until they became the single largest group of complaints filed in fiscal 

years 1999 and 2000, amounting to nearly 42 percent of HUD complaints filed nationally. 

During the same period, however, HUD’s enforcement activities diminished. The number 

of complaints filed overall dropped dramatically, with the number of complaints in FY 2000 

amounting to only 30 percent of their level in 1992. HUD’s adoption of a new “claims” process 

designed to examine more closely potential complaints has resulted in many fewer complaints 

being filed and significant increases in the amount of time HUD takes to actually begin a 

complaint investigation. 

The length of time HUD took to investigate cases increased dramatically from 1990 to 

2000. The average age of complaints at their closure was 497 days in FY 2000, nearly five times 

the 100-day period that Congress set as a benchmark for projected case completion. There are 

significant regional variations in the duration of investigations as well. 

HUD made some progress in its efforts to reduce the number of complaints that were 

“administratively closed” without a disposition during the mid-1990s. By FY 2000, however, that 

trend was reversing; about 20 percent of filed complaints were administratively closed, up from 

15 percent in the mid-1990s. Between its claims process and its overuse of administrative 

closures, HUD is failing to deal effectively with many potential complaints. 

Conciliations or settlements of complaints amount to close to half of the case resolutions. 

Investigations with findings of discrimination and decisions to pursue enforcement action can 

take more than a year and have been decreasing in number after reaching a relatively high point 

during the mid-1990s. The number of such decisions is only a small percentage of the cases HUD 

investigates. Decisions to dismiss cases with findings of no discrimination increased during the 

1990s as well and often took longer than a decision to take enforcement action. 

5
 
Overall, complaints involving discrimination based on disability are more likely to be 

settled by HUD, less likely to result in a finding that discrimination has occurred, and less likely 

to be dismissed after investigation compared with other cases. There are, however, wide and 

troubling differences in outcomes among HUD’s various regional offices, suggesting that the 

kind of outcome a particular case reaches may be related to where a complaint is handled. 

Even more troubling are the significant and serious deficiencies in HUD’s overall history 

of enforcement. This study concludes that the devolution of case-processing responsibility 

combined with the leadership’s attitude toward management and significant shortfalls in staffing 

and resources have caused these deficiencies. The last Administration’s “hot case” and 

“doubling” enforcement action initiatives exacerbated these systemic flaws and made no 

discernable improvement in enforcement. 

HUD’s enforcement of Section 504 has been even more troubled. HUD had difficulties in 

adopting regulations implementing the law and its enforcement role. Funding has been limited 

for enforcement activities, and some significant successes in achieving compliance in individual 

situations have not been replicated. 

There are only limited and inconsistent data by which to judge HUD’s Section 504 

enforcement efforts. The data that are available, however, show that both enforcement and 

compliance efforts have been marked by long delays resulting from the diversion of limited 

resources to other activities. 

HUD has developed some important guidance, substantive and legal resources, and 

examples of good enforcement work. However, this information is not widely disseminated to 

HUD’s own enforcement staff or to HUD program areas that could benefit from the information. 

In addition, this guidance has not been made available to individuals and entities affected by the 

law. 

Good data collection systems and investigative management technology have been 

developed for FHA cases. Immediate expansion of these systems to support Section 504 

enforcement and compliance work is an important priority for HUD. 

The Fair Housing Initiatives Program (FHIP) was established by federal statute to fund 

private fair housing groups, state and local agencies, and advocates. FHIPs provide important 

6
 
services to and products for people with disabilities. Unfortunately, because of poor record 

keeping and limited financial resources, FHIPs have been unable to produce or replicate these 

efforts. 

FHIPs have raised concerns that HUD’s management of the program has resulted in 

significant delays in providing funding to qualified recipients and a lack of focus on supporting 

the enforcement and education activities external to HUD that are a critical component of 

successful law enforcement. 

Congress funds the Fair Housing Assistance Program (FHAP) to handle cases at state and 

local enforcement agencies. While regional differences exist, when compared to HUD, the 86 

FHAP agencies have lower percentages of cases admin istrative ly closed and a h igher percent age 

of complaints resulting in findings that the law has been violated. They are able to process 

complaints (including disability complaints) considerably more quickly than HUD. Despite 

reports of gaps in activity in cases and other performance issues, more effective HUD monitoring 

of FHAP could reasonably be expected to improve performance even more. Unfortunately, HUD 

has no sustained process for identifying and disseminating important lessons from the success of 

the FHAP operations. 

This study found startling inadequacies in HUD’s management operations and resources 

supporting enforcement over the past years. HUD’s Strategic Plan, Annual Performance Plan, 

and Business and Operating Plan, all of which direct the priorities and activities of the Office of 

Fair Housing and Equal Opportunity (FHEO), have been seriously deficient in addressing 

enforcement and compliance activities, FHIP and FHAP performance, and efforts to improve the 

civil rights of people with disabilities. Significant work in improving the focus and content of 

HUD’s planning is needed to drive the enforcement and compliance improvements 

recommended in this study. 

Congress has failed to give HUD adequate appropriations to fund its enforcement and 

compliance activities. FHEO was staffed at lower levels in FY 2000 than it was in 1989, and 

increases in staff-to-manager ratios have impaired effective day-to-day management activity. The 

lack of financial resources has impaired staff training, travel, the ability to support education for 

the housing industry and the public, and funding for contracts and new initiatives. 

7
 
This report concludes that HUD has a major challenge ahead of it to fulfill the promise of 

civil rights enforcement. Without staffing and funding resources, progress cannot and will not be 

made. Without strong and effective management of compliance and enforcement activities, 

combined with monitoring, training, technical assistance, and, if necessary, sanctions, progress 

cannot and will not be made. Without an organized, focused program, progress will not be made. 

The law is not the problem; the siting of enforcement activities at HUD is not the fundamental 

problem. The way in which the law is implemented is the problem confronting HUD and this 

country, and it is this problem that must be addressed now. 

B. 	 Summary of Key Recommendations 

This report makes a number of recommendations for improvement of HUD’s 

administrative enforcement and compliance activities. These recommendations can be loosely 

grouped under five major categories: 

•	 The Administration, HUD, and Congress must improve the enforcement of 

disability rights guaranteed by the FHA and Section 504 of the 

Rehabilitation Act; ensure compliance by federal grantees; and make 

enforcement of disability rights laws a priority. 

•	 The Administration, HUD, and Congress must ensure that current and 

future HUD budgets are increased so that adequate resources are provided 

for the enforcement of housing-related civil rights laws and for ensuring 

compliance by federal grantees. 

•	 HUD must provide better guidance on the meaning of housing-related 

disability civil rights laws, including the FHA and Section 504, and must 

dramatically improve its collection of data about enforcement and 

compliance activities. 

•	 HUD must improve its identification and dissemination of best practices 

concerning education, enforcement, and compliance activities. 

8
 
•	 The Administration, Congress, and HUD (including its Office of Disability 

Policy and a National Consumer Advisory Committee) must work together to 

regain public trust in governmental enforcement and compliance activities. 

Detailed recommendations are summarized in Appendix I at the end of this report. But it 

is clear that prioritization among the many recommendations made for improvement requires, 

first and foremost, increased attention to and support of enforcement activities by our country’s 

leadership. The degree of the deficiencies in many, if not most, aspects of the government’s 

enforcement of these civil rights laws is so startling and so significant that change must be led 

from the very top levels of the Federal Government. 

The next most significant group of recommendations focuses on addressing the lack of 

resources for HUD’s civil rights enforcement activities. Without adequate resources, laws will 

not be effectively enforced. The absence of adequate numbers of staff, reliable funding streams 

for two statutorily created programs designed to advance enforcement, training and support 

funds, and data and technology funds have demonstrably hampered enforcement efforts in the 

past years. 

HUD must gather, organize, and make available more information about the provisions of 

these laws and their interpretations and applications. Increased resources and funding could allow 

development of education, outreach, training, and technical assistance programs that would serve 

people protected against discrimination and particularly people with disabilities, housing 

providers, and others covered by the laws; HUD’s own staff and program operations; and the 

general public. Increased education can both prevent discriminatory practices and reach victims 

of discrimination to advise them about their rights. Old and new cases, decisions, and 

interpretations can enable more effective enforcement as well as reducing or preventing 

discrimination. 

HUD has undertaken positive enforcement and compliance activities during the period 

studied in this report, as have private fair housing groups and state and local enforcement 

agencies. The absence of effective systems to identify and replicate these best practices remains a 

major barrier to ongoing improvements in enforcement and compliance. 

9
 
While following the recommendations described above should dramatically improve 

HUD’s enforcement and compliance work, HUD must finally undertake specific actions that will 

help regain public trust in its work. The deficiencies that this report identifies have increased the 

reluctance of many to seek assistance from HUD and has helped create barriers to effective use 

of enforcement and compliance tools available to the government. The perception that HUD does 

not do its job efficiently or reliably must be dispelled, first by improved performance and then by 

affirmative steps to tell the Administration, Congress, advocates, and the public about its good 

work. 

1.	 Improving Enforcement of Disability Rights and Ensuring Compliance by 

Grantees 

The new Administration and Congress should take positive action to address the 

deficiencies that this report identifies. Leadership and attention to enhancing civil rights 

enforcement from the Administration and Congress are critical to improvements in enforcing the 

laws that are designed to correct discriminatory practices. 

Key elements to congressional and Administrative involvement include supporting—by 

funding, staffing, and management oversight—the efforts of the FHEO to enforce the laws. The 

office that has the sole responsibility for administrative enforcement of the FHA has fewer staff 

now than it did in 1989, when the FHAA was passed. It has less than half the staff dedicated to 

compliance activities that it did in 1989. The following are key recommendations in this area: 

•	 Congress and the Administration should provide enhanced oversight to assess 

major deficiencies in enforcement and compliance, including evaluating the 

reasons the absolute number of cause findings, especially those in disability cases, 

have declined so precipitously; why there are wide variations on these indicators 

among the regional offices; why so many cases have been allowed to remain so 

much longer than the 100 days Congress set as a benchmark for case conclusion; 

and the ways in which screening of complaints before they are investigated may 

deter the pursuit of valid complaints. 

10
 
•	 The Administration should request and Congress should allocate sufficient 

funding to ensure that there are adequate and qualified staff available to perform 

the tasks necessary for efficient enforcement. 

•	 Congress and the Administration should support management initiatives that will 

focus—through HUD’s Strategic Plan, Annual Performance Plan, Business and 

Operating Plan, and other management tools—on improvements in day-to-day 

oversight and management of enforcement and compliance activities. 

•	 The Secretary of HUD should act expeditiously to support each of these 

recommendations and should support expanding and strengthening the existing 

Office of Disability Policy (and include a National Consumer Advisory 

Committee) to provide input, guidance, and direction to the Secretary and to all of 

HUD’s program offices. 

•	 FHEO should develop a comprehensive and organized Section 504 compliance 

program that should include, at a minimum, short- and long-term strategies for 

enforcing Section 504, a review of the successful ways that FHEO has worked 

with other HUD program offices to accomplish Section 504 compliance goals, 

establishment of systems for communication within HUD and with consumers and 

recipients, and coordination of the work of technical assistance, enforcement, and 

compliance and development of a systematic plan for improving responses to 

Section 504 complaints. 

2. 	 Dedicating Adequate Resources to Enforcement and Compliance Activities 

This report concludes that the lack of sustained, consistent resource support has seriously 

and adversely affected HUD’s ability to enforce civil rights laws. Inadequate numbers of intake, 

investigative, and mid-managerial staff, judged by standards identified in an independent study of 

Title VIII of the Civil Rights Act of 1968 (the FHA) enforcement, have contributed to ineffective 

enforcement and serious lapses in compliance activities. Lack of funds and staff for effective 

management of the Fair Housing Initiatives Program and the Fair Housing Assistance Program 

have caused shortfalls in their intended roles. Lack of contract funds has had serious effects on 

11
 
HUD’s ability to train its own staff, to develop new enforcement initiatives, and to support even 

minimal education and outreach activities. 

The following are key recommendations: 

•	 At a minimum, HUD should staff its Office of Fair Housing and Equal 

Opportunity with enough staff to ensure that each investigator carries no more 

than 15 cases at any one time. In addition, HUD should significantly increase its 

staff with persons knowledgeable about Section 504 investigations and 

compliance to ensure that it can maintain an effective Section 504 program 

without doing harm to its FHA enforcement and vice versa. 

•	 HUD’s Office of Counsel should evaluate its staffing of the fair housing and 

Section 504 function and ensure t hat there ar e ade quate numbers of staff attorneys 

to support those functions. 

•	 As part of its comprehensive effort to more effectively enforce the FHA, HUD 

should make much more extensive use of Secretary-initiated complaints. 

•	 HUD should provide staff and other supportive resources that will enable FHEO 

to engage in monitoring of conciliation agreements and Voluntary Compliance 

Agreements. HUD should refer cases of noncompliance to the Department of 

Justice (DOJ) when compliance cannot readily be achieved. 

3. 	 Improving Policy Guidance and Data Collection 

A thorough understanding of civil rights laws is a basic requirement for fair enforcement. 

Those working to improve compliance must understand the nuances of the law, be up-to-date 

with new judicial and policy developments, and be able to apply the law consistent with its 

interpretations. This report describes serious shortfalls in HUD’s provision of guidance for its 

own staff, the absence of systematized sources for policy and legal information about interpreting 

the laws, and even the lack of basic information about when the law applies. 

In addition, HUD’s current inability to provide even basic data about the products of its 

funded programs and about its enforcement and compliance outcomes allows differing and 

inconsistent interpretations and thereby can adversely affect the public and its own operations. 

The following are key recommendations: 

12
 
•	 FHEO’s Title VIII enforcement handbook should be completed, updated, and 

treated as binding guidance for enforcement of the FHA for HUD as well as for 

state and local agencies enforcing laws that are equivalent to the FHA. 

•	 FHEO should develop a similar comprehensive manual that addresses Section 504 

enforcement and compliance. 

•	 FHEO should develop an ongoing system to gather and make generally available 

its interpretations of the FHA and Section 504. The Office of Counsel should 

undertake, in conjunction with this effort, a similar project to compile legal 

opinions, interpretative documents such as letters and memoranda, and key court 

decisions. Such a system should permit ready access to ensure consistent 

application of the law, and FHEO and the Office of Counsel should consider 

establishing a method to make t hese interpret ive deci sions available publicly. 

•	 Congress and HUD should fund a Civil Rights Training Academy that will 

provide basic and advanced skills training and substantive, legal, and technical 

training first for HUD staff, then for FHAP and FHIP. 

•	 HUD’s Secretary should strengthen the existing Office of Disability Policy and 

provide it with adequate staff and access to review program operations throughout 

HUD for compliance with the FHA and Section 504 and to advise the Secretary 

about corrective actions. 

•	 FHEO should reinstate its process for issuing staff and interpretative guidance 

through memos, notices, and other mechanisms about new and important civil 

rights enforcement and compliance issues and make its guidance available to the 

public. 

4. 	 Improving Identification and Dissemination of Best Practices 

As earlier recommendations are implemented, FHEO is expected to be able to collect and 

provide to others information about best practices in enforcement and compliance. Existing 

strategies that accomplish outstanding results should be recognized and honored. 

•	 FHEO should develop systems that will permit it to identify outcomes and best 

practices among its regional offices, state and local enforcement agencies, and 

13
 
private fair housing groups and make those materials and products accessible to 

its own sta ff, to other organi zations, a nd to t he pub lic, w here approp riate. In 

particular, FHEO should identify working strategies for community outreach 

(particularly to people with disabilities), intake, case processing, investigative 

strategies, and management techniques among its own staff and replicate them in 

other offices. A similar system should be developed to highlight products of state 

and local agencies and grantees. FHEO should memorialize unique enforcement 

and technical assistance efforts, compliance strategies, and other p roducts through 

distribution of materials, training, and development of national initiatives. 

•	 FHEO should identify the successful approaches it has used to address issues of 

Section 504 noncompliance and identify the resources and support necessary to 

apply those approaches to a national compliance strategy. FHEO should make its 

strategies public and use them to encourage general compliance as well as conduct 

compliance reviews. 

•	 HUD should continue to explore ways in which it can use FHIP and contract 

funds to support collaborative work between full service fair housing agencies and 

organizations representing persons with disabilities. 

•	 HUD should review and incorporate as many of the recommendations made by 

the Occupancy Task Force mandated by congressional action as are applicable to 

HUD’s current programs and activities. It should determine whether the 

recommendations should be applied to programs and initiatives that did not exist 

when the recommendations were made in 1994 and the most effective ways of 

applying them. 

5. 	 Regaining Public Trust in HUD’s Enforcement and Compliance Activities 

Without implementation of the leadership, resource, communication, and best practices 

initiatives that this report recommends, HUD will not be able to regain the trust of the public. 

With tools that can be developed to focus attention on the many significant accomplishments of 

FHEO, howev er, HUD will be abl e to hi ghlight its contribut ions t o endi ng discrimi natio n. If 

Congress provides adequate funding, HUD performs its enforcement and compliance functions 

14
 
effectively, and the systems are in place to identify successful work, HUD’s achievements will 

speak for themselves. 

•	 HUD should develop and implement a system to make its interpretations of civil 

rights laws generally available. HUD should provide adequate staffing and 

funding to support this effort. 

•	 HUD should focus its resources on securing resolution of (and compensation in) a 

broad range of fair housing complaints rather than focusing on settlement of cases 

designe d primarily to garner the most publicity for the agency. 

•	 HUD should maximize the use of its World Wide Web site to inform the public 

that HUD’s funding programs require recipients to comply with the FHA and 

Section 504. 

•	 FHIP should move expeditiously to develop a comprehensive, organized system 

to identify outcomes, information, and materials developed as a result of the 

program and to make them available to the public, especially to organizations and 

individuals who deal with fair housing issues. 

C. 	 Future Prospects 

The Administration has taken some act ions, and HUD has initiated some disabilityrelated changes since October 1, 2000, the end date for the information covered in this report, 

that suggest support for future improvements in fair housing enforcement. 

President George W. Bush, Vice President Richard Cheney, and Attorney General John 

Ashcroft have indicated support for fair housing enforcement and, in particular, for increased 

emphasis on disability rights. While it is too early to say whether this renewed support will make 

a significant difference in improving enforcement, it is a promising start. 

HUD Secretary Mel Martinez has demonstrated his recognition of the importance of 

disability rights early in his tenure by meeting with several major disability rights organizations. 

He has also taken steps to implement several key aspects of President Bush’s New Freedom 

Initiative, designed to assist Americans with disabilities by increasing access to assistive 

technologies and promoting increased access to community life. Among the President’s 

15
 
initiatives are implementation of the American Homeownership and Economic Opportunity Act 

of 2000, which provides opportunities for Section 8 voucher holders, including people with 

disabilities, to use those funds for down payment assistance in the purchase of a home. 

The lack of management focus and limited staffing and resources remain critical 

problems in fair housing enforcement. Secretary Martinez’s expressed commitments to staffing 

realignments and increases in management oversight and the use of technology to improve 

HUD’s activities show promise for future enhancements of fair housing work because they have 

the potential to address problems identified in this report. 

HUD has reported that it has engaged in a variety of initiatives to enforce the FHA’s 

design and construction requirements, including completing a review of model building codes 

and developing, with others, changes to the International Building Code to develop a stand-alone 

document that publishes access standards for housing. HUD has let a $1 million contract to 

develop a new training curriculum to provide national training on the FHA’s accessibility 

requirements to a wide audience of builders, developers, architects, and advocates consistent with 

congression al directio n in the FY 20 01 budget rep ort language. If Congress approves fundi ng, 

this project is anticipated to provide accessibility training and technical assistance in an 

organized way. HUD’s Office of Fair Housing and Equal Opportunity also reported that it has 

conducted six new training activities on a variety of accessibility issues, including a session for 

the National Association of Attorneys General on access issues and one for BANC One on tax 

credit housing, with particular emphasis on accessibility and Section 504, as well as more general 

sessions in Honolulu, Hawaii; Providence, Rhode Island; Pinellas County and Clearwater, 

Florida; and Maryland. In addition, HUD has announced that it plans to conduct a selfevaluation, as required by Section 504, in FY 2001. 

FHEO has advised NCD that it intends to revise the HUD Strategic Plan to include the 

following language: “Enhance Section 504 enforcement efforts through increased guidance and 

technical assistance to field staff; increase compliance/monitoring activities; and coordinate such 

efforts within HUD and other Federal agencies.” FHEO has also advised NCD that it intends to 

revise its FY 2002 Annual Performance Plan (APP) to provide specific measures and indicators 

to reduce housing discrimination against people with disabilities and that it will “incorporate 

16
 
compliance strategies to specifically address Title VI/Section 504 compliance reviews for people 

with disabilities in the FY 2003 APP.” 

These are worthy activities. As detailed in this report, however, much more needs to be 

done. HUD needs to work continuously with its various stakeholders to ensure that management 

and program reforms recommended in this report are implemented. HUD needs to work 

alongside NCD as part of this process. HUD also needs to ensure that its work in this regard 

incorporates the knowledge generated by the Interagency Council on Community Living, as well 

as the groundbreaking work being conducted around the Olmstead Initiative by the Department 

of Health and Human Serv ices. It is ti me to restru cture fair ho using. 

17
 
SECTIO N III


The Fair Housing Act and Section 504: W hat Congress Intended 

A.	 The Fair Housing Act 

1.	 Passage of the Law 

While Congress did not prohibit disability discrimination in housing until 1988, it is 

important to understand the genesis of the antidiscrimination effort that resulted in the passage of 

the FHA in 1968. The structure and limitations of the FHA provided important lessons to 

Congress as it substantially revised the law in 1988. 

Responding to the African-American civil rights struggle, the urban riots of 1967, and the 

release of the Kerner Commission report, the 90th Congress considered legislation that would 

extend the protections of the Civil Rights Act of 1964 to the realm of housing. The assassination 

of Dr. Martin Luther King Jr. on April 4, 1968, provided the final impetus to move the legislation 

forward. Final congressional approval came on April 11, 1968, and President Lyndon Johnson 

signed the bill into law on April 22, 1968. The FHA, also known as Title VIII of the Civil Rights 

Act of 1968, prohibited discrimination on the basis of race, color, religion, and national origin. 

The FHA provides that “[i]t is the policy of the United States to provide, within 

constitutional limitations, for fair housing throughout the United States.”1

 President Johnson 

reiterated this theme during the bill signing ceremony when he said, “Now, with this bill, the 

voice of justice speaks again. It proclaims that fair housing for all—all human beings who live in 

this country—is now part of the American way of life.” Despite this lofty prose, it would be 20 

years before Congress extended protection to people with disabilities. 

By its terms, the FHA applied to a broad range of discriminatory behavior, including the 

following: 

•	 Refusing to sell, rent, negotiate for, “or otherwise make unavailable or deny” a 

dwelling. 

1 42 U.S.C. §3601. 

18 
•	 Discriminating in the “term, conditions, or privileges of a sale or rental” of a 

dwelling or in the “provision of services or facilities in connection therewith.” 

•	 Making or publishing any discriminatory statement in regard to a sale or rental. 

•	 Misrepresenting the availabilit y of a dwelling. 

•	 Inducing a person to sell or rent any dwelling by representations about the 

presence of members of a protected class in the neighborhood. 

•	 Discriminating in the access to real estate services.


• Discriminating in housing financing or in financing-related transactions.


42 U.S.C. §3604.


But the FHA’s original enforcement scheme was weak. While HUD, state, and local


human rights agencies were given the power to hold administrative hearings, they had the power 

only to investigate and seek to conciliate differences between the parties. Private litigation was 

authorized in federal courts,2

 but the relief was limited. Parties could only receive injunctive 

relief, actual damages, and not more than $1,000 in punitive damages. An award of attorney’s 

fees was permitted only where the court determined that a plaintiff was unable to hire an 

attorney. As a consequence, individual victims of discrimination often found it difficult to stop 

discriminatory practices and to collect damages. 

2.	 Legislative History of the Fair Housing Amendments Act of 1988 

Soon after passage of the FHA, efforts began in Congress to strengthen its enforcement 

provisions and to expand its coverage to other “protected classes.” After hearing significant 

testimony about discrimination on the basis of gender, Congress amended the FHA in 1972 to 

include “sex” as a protected class. Also beginning in the early 1970s, Congressional oversight 

hearings highlighted how the FHA’s weak enforcement mechanism frustrated its lofty purposes.3 

In 1978, Congress considered legislation to give HUD greater enforcement power under 

the FHA, and in 1980, a bill toughening enforcement and expanding coverage to people with 

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). 

19 
disabilities passed in the House of Representatives, but fell prey to a filibuster in the Senate. For 

most of the next decade, the Administration and Senate leadership opposed comprehensive 

overhaul of the FHA and no legislation moved forward. 

As early as 1983, bipartisan agreement began to form that HUD needed greater powers to 

enforce the FHA. In his message transmitting fair housing legislation to the Congress, President 

Ronald Reagan said: 

Since its passage, however, a consensus has developed that the Fair 

Housing Act has delivered short of its promise because of a gap in 

its enforcement mechanism. 

The gap in enforcement is the lack of a forceful backup mechanism 

which provides an incentive to bring the parties to the conciliation 

table with serious intent to resolve the dispute then and there. 

When conciliation fails, the Secretary has no place to go. In those 

few cases where good will is absent, the exclusive reliance upon 

voluntary resolution is, in the words of former Secretary Carla 

Hills, an “invitation to intransigence.” 

Reform of the Fair Housing Act is a necessity acknowledged by 

all.4 

In early 1987, with bipartisan support, the Fair Housing Amendments Act of 1987 was 

introduced in the House (H.R. 1158) and Senate (S. 558). After hearings, the House Judiciary 

Committee approved an amended version of the legislation on April 27, 1988.5

 The chief 

obstacle to passage concerned the expansive use of HUD administrative hearings as a means of 

enforcing the rights protected under the FHA. Some scholars believed that such administrative 

hearings would deny the Seventh Amendment right to a jury trial.6 

On the House floor, Rep. Hamilton Fish (R-NY), one of the bill’s chief sponsors, offered 

a compromise on the enforcement issue that had been agreed to by civil rights leaders and the 

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. 

20 
National Association of Realtors.7

 Under the amendment, complainants and respondents in the 

HUD administrative process would have the option of removing a case to federal court, thereby 

pres ervi ng th e right t o jury trial. With this obstacle cleared, the bill passed on June 29, 1988, by a 

vote of 3 76-23. The Senate passed a similar ve rsion of the legisl ation on August 2, 1988, by a 

vote of 94-3. By September 13, 1988, with final differences reconciled, the Fair Housing 

Amendments Act was signed into law by President Reagan. 

3.	 Expanding the Fair Housing Act to Cover Disability and Familial Status 

After nearly 20 years of debate, the FHAA expanded the original law to prohibit 

discrimination on the basis of disability8 and “familial status.”9 These new “protected classes” are 

entitled to the same level of protection from discrimination as race, color, religion, national 

origin, and sex. 

The FHAA’s substantive additions are meant to protect people with disabilities from 

pervasive discriminatory practices that excluded them from large segments of the residential 

housing markets. The FHAA was “a clear pronouncement of a national commitment to end the 

unnecessary exclusion of persons with handicaps from the American mainstream.”10 

The FHAA’s definition of disability is quite broad: 

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

8

 The Fair Housing Amendments Act of 1988, PL 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; 

or 

(2)	 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). 

21 
“(h) ‘Handicap’ means, with respect to a person— 

(1) a physical or mental impairment which substantially 

limits one or more of such person’s major life activities, 

(2) a record of having such an impairment, or

(3) being regarded as having such an impairment, 

but such term does not include current, illegal use or addiction to a 

controlled substance as defined in section 802 of Title 21.” 

42 U.S.C. §3602. 

This definition includes mental illness, developmental disabilities, physical impairments, 

persons who test positive for HIV, persons who have AIDS, alcoholics, and persons recovering 

from addiction to an illegal drug as long as they are not currently using illegal drugs. 

In addition to prohibiting discrimination on the basis of disability, the FHAA imposes 

three other obligations: reasonable accommodation, reasonable modification and design, and 

construction accessibility requirements. 

The FHAA requires housing providers to make reasonable changes, or accommodations, 

in rules, policies, practices, or services so that a person with a disability will have an equal 

opportunity to use and enjoy a dwelling unit or common space. Reasonable accommodations 

may be necessary when someone is applying for housing, during tenancy, or to prevent eviction. 

An accommodation can be requested at any time and is considered reasonable if it is 

practical and feasible and granting it will not impose an undue financial and administrative 

burden on the housing provider.11 It is clear, however, that providers may have to absorb some 

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 FHA can also oblige a landlord to 

spend or forgo money. Reasonable accommodation concerning group homes can include the waiver of 

otherwise applicable zoning restrictions. 

22 
cost or administrative inconvenience in providing accommodations.12 Accommodations that 

would result in a “fundamental alteration,” however, are not required.13 

The FHAA also requires owners to permit, at the expense of the disabled person, 

reasonable modifications of existing premises occupied or to be occupied by such person if such 

modification may be necessary to afford the person full enjoyment of the premises. A landlord 

may, where it is reasonable to do so, make permission for a modification conditional on the 

renter agreeing to restore the interior of the premises to the condition that existed before the 

modification, reasonable wear and tear excepted.14 

Finally, the FHAA requires that most multifamily buildings that are first occupied after 

March 15, 1991, meet certain adaptability and accessibility requirements.15 Covered bui ldings 

(ground floor units in a building without an elevator and all units in a building served by an 

elevator) must includ e the following: 

•	 A building entrance that is wide enough for a wheelchair and accessed via a route 

without steps. 

•	 Accessible public and common-use areas. 

•	 Doors that allow passage by a person using a wheelchair. 

•	 An accessible route into and through all covered units. 

•	 Light switches, thermostats, and other environmental controls in accessible 

locations. 

•	 Reinforcements in bathroom walls for later installation of grab bars. 

•	 Kitchens and bathrooms that allow a wheelchair to maneuver about the space. 

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 that 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). 

23 
4. The Administrative Enforcement Process 

A victim can file an administrative complaint with HUD;16 these complaints must be filed 

within one year of the alleged violation. Under the FHA, HUD can delegate its enforcement 

authority to a state or local agency whose laws are “substantially equivalent” to the FHA. As a 

result, HUD refers most administrative complaints to such entities, which are also known as 

FHAPs, because they are recipients of federal enforcement funding under the Fair Housing 

Assistance Program.17 The time frames for filing complaints with FHAP agencies may be as 

short as 180 days. 

As amended in 1988, the FHA provides that any person aggrieved by a discriminatory 

housing practice may file a complaint with HUD. The HUD Secretary is required to complete an 

investigation of such complaints “within 100 days after the filing of the complaint...unless it is 

impracticable to do so.”18 Once these complaints are deemed filed and “perfected,”19 an 

investigation ensues and the complaint is processed to conclusion in one of several ways: (1) 

administrative closure; (2) pursuant to a conciliation or settlement between the complainant and 

respondent; (3) a finding that no reasonable cause existed to believe discrimination occurred 

(hereafter, a “no cause” case); or (4) a finding of reasonable cause to believe discrimination had 

occurred (hereafter, a “cause” case). 

By statute, HUD and FHAPs must attempt to bring complainants and respondents 

together in an attempt to conciliate fair housing complaints.20 Although such conciliation is 

voluntary (and either side may refuse to conciliate without prejudicing its case), many parties 

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: 

• The complaint was filed in a timely manner. 

• The complainant has “standing” or the le gal right to sue under the FHA. 

• The respondent and dwelling involved are cover ed under the FHA. 

• The issue involved and the basis of the alleged discrimination constitute illegal 

discrimination as defined by the FHA. 

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

20 42 U.S.C. §3610(b). 

24 
choose this route because it is comparatively inexpensive and quick compared with an 

administrative hearing or litigation. HUD devotes a chapter of its intake manual to the 

mechanics of conciliation.21 

If conciliation fails, HUD (or the FHAP) continues its investigation and eventually must 

determine whether there is reasonable cause to believe that discrimination has occurred. 

If HUD finds cause, the Secretary “shall...immediately issue a charge on behalf of the 

aggrieved person...,”22 who then has the option to have the matter decided by an administrative 

law judge or by a federal court. In either setting, the complainant is entitled to representation by a 

government lawyer. 

After a contested hearing (before an administrative law judge or a federal court), a 

respondent who is found liable for discrimination can be ordered to stop illegal activity, pay 

compensatory damages, and pay punitive damages (in a court proceeding) or a civil penalty of up 

to $55,000 (in a proceeding before an administrative law judge). 

5. Other Enforcement Options 

In addition to strengthening administrative enforcement by HUD and FHAPs, Congress 

provided “an improved system for civil action by private parties and the Attorney General.”23 

The FHAA extended the statute of limitations from 180 days to two years and made it clear that 

victims of discrimination were not required to go through the administrative complaint process or 

to exhaust administrative remedies. The FHAA also removed the $1,000 limit on the award of 

punitive damages because Congress “believe[d] that the limit on punitive damages served as a 

major impediment to imposing an effective deterrent on violators and a disincentive for private 

persons to bring suits under existing law.”24 

The FHAA, while continuing the Justice Department’s “pattern and practice” jurisdiction, 

also gave the Attorney General authority to commence zoning or other land-use cases referred by 

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 
HUD, to commence breach-of-conciliation cases referred by HUD, and to enforce subpoenas. 

Congress also gave the Attorney General the power to seek monetary damages for aggrieved 

parties and to seek civil penalties up to $100,000. 

6. Private Fair Housing Enforcement Agencies 

Private fair housing enforcement agencies have played an increasingly important role in 

vindicating the rights protected by the Fair Housing Act. Some, but not all, of these groups are 

supported financially through the Fair Housing Initiatives Program (FHIP), which was 

established in 1987 to provide funding to public and private entities formulating or carrying out 

programs to prevent or eliminate discriminatory housing practices. Through four distinct 

categories of funding, FHIP supports projects and activities designed to enhance compliance with 

the FHA and substantially equivalent state and local laws prohibiting housing discrimination. 

These activities include programs of enforcement, voluntary compliance, and education and 

outreach. 

The day-to-day work of private fair housing groups involves education and outreach, 

complaint intake, assessment, investigation, testing, conciliation, and, in some cases, litigation. 

The existence of such organizations and their willingness to engage in aggressive advocacy has 

been a significant factor in protecting the rights of people affected by discriminatory practices. 

One measure of their effectiveness is the amount of compensation won for victims of 

discrimination. During the 1990s, these groups secured well over $160 million in compensation 

through FHA litigation.25 

B. Section 504 of the Rehabilitation Act of 1973 

1. Initial Passage of the Law 

In 1973, Congress reenacted the Rehabilitation Act,26 which had been the federal 

legislative vehicle for providing rehabilitation services to people with disabilities. The law was 

first enacted to help veterans returning from World War I, and Congress continued to expand and 

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. 

26 
amend the law to address more than the health care needs of disabled veterans.27 People with 

disabilities had engaged in civil disobedience during the Depression; they had established selfhelp groups during the 1950s; and organizations of parents created diagnosis-identified 

organizations, such as the United Cerebral Palsy Association, and the Muscular Dystrophy 

Association, in the 1940s and 1950s. Pressure from these groups resulted in the creation of a 

Federal Bureau for the Handicapped, which, in 1970, began providing funds to train special 

education teachers.28 

During the civil rights activity of the 1960s and 1970s, disability activists adopted and 

adapted civil rights philosophy to their own lives and began an independent living movement that 

identified barriers as civil rights violations rather than medical problems. In 1973, Congress 

decided to address negative public attitudes toward people with disabilities by adding civil rights 

protections to the Rehabilitation Act. They modeled the protections on the 1964 Civil Rights 

Act.29 The notion wasn’t entirely new because, in the previous year, Senator Hubert Humphrey 

and Representative Charlie Vanik had tried to convince their colleagues to include the word 

“handicapped” in Title VI of the 1964 Civil Rights Act.30 

President Gerald Ford finally agreed to a revised version of the bill after several failed 

attempts to win support from his as well as Richard Nixon’s Administration, although he 

remained convinced that the cost of the programs would be excessive. The 1973 Rehabilitation 

Act included language that was nearly identical to that in the Civil Rights Act: “No otherwise 

qualified handicapped individual in the United States shall, solely by reason of his handicap, be 

excluded from participation in, be denied the benefits of, or be subjected to discrimination under 

any program or activity receiving federal financial assistance.” 

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. 

27 
2. Congressional Intent 

After Congress had added civil rights language to the Rehabilitation Act in 1973, it held 

hearings and amended the Act extensively in 1974. One of the most important amendments was 

to expand the definition of those covered by the law from those whose condition caused “a 

substantial handicap to employment” to a much broader definition of disability that was not 

limited to employment.31 That definition was reflected in Health, Education, and Welfare’s 

(HEW’s) regulations: 

Handicapped persons means any person who (i) has a physical or 

mental impairment which substantially limits one or more major 

life activities, (ii) has a record of such an impairment, or (iii) is 

regarded as having such an impairment.32 

Another amendment resulted from the New York City Welfare Department’s refusal to 

make its buildings and programs accessible and usable by welfare beneficiaries with disabilities. 

The Welfare Department said it had followed HEW’s advice and modeled itself on the Social 

Security Administration. Both agencies were in buildings with stairs, had no materials in braille 

or on tape, and did not provide clients with sign language interpreters. 

The Social Security Administration’s position was that Section 504 applied only to 

recipients of federal funds, not to the Federal Government itself. President Jimmy Carter 

responded by submitting legislation to Congress that resulted in the 1978 amendment to Section 

504,33 making its prohibitions equally applicable to entities that were “assisted by federal 

financial assistance” and that were “conducted by an Executive agency or by the United States 

Postal Service.” 

The 1978 amendments also responded to critics who complained that Section 504 went 

too far. As a result, the 1978 amendments preclude coverage of those whose current use of 

31 Susan Stefan, Unequal Rights: Discrimination Against People with Mental Disabilities and 

the Americans with Disabilities Act, American Psychological Association, Washington, DC, 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. 

28 
alcohol or drugs prevents the person from performing the duties of the job in question or whose 

employment would constitute a threat to the property or safety of others. 

In addition, the 1978 amendments added several sections to the Rehabilitation Act. 

Section 505 makes the enforcement provisions of Title VI of the Civil Rights Act of 1964 

applicable to Section 504. It permits attorneys’ fees in court proceedings. Section 506 makes 

technical assistance for the removal of architectural, transportation, and communication barriers 

available, as well as making federal funds available for the removal of such barriers. Section 507 

creates the Interagency Coordinating Council to oversee and coordinate federal agency activities. 

The agencies named are Education, Health and Human Services, Labor, Department of Justice, 

Office of Personnel Management, Equal Employment Opportunity Commission, and the Access 

Board. 

Congress amended Section 504 again in 1985 to clarify that, contrary to the Supreme 

Court decision in Atascadero v. Scanlon,

34 Congress did intend that states could be sued under 

the Rehabilitation Act, and that they were not protected by 11th Amendment immunity. In 1987, 

Congress amended the law once again through the Civil Rights Restoration Act.35 This 

amendment, also in response to a Supreme Court decision,36 clarified that the definition of a 

“recipient of federal funds” included more than the business offices that handled the funds; 

rather, all the offices and programs of the recipient entity had to comply with the law. Thus, a 

mayor’s Office of Housing that received federal funds would be required to comply with Section 

504 through its housing development, redevelopment, code inspection, and other activities. 

3. History of HUD’s Section 504 Regulations 

In spite of Section 504’s passage in 1973, HEW’s publication of model regulations in 

1977, and the NCD’s repeated recommendations to HUD that it issue its own Section 504 

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). 

29 
regulations,37 HUD did not issue final regulations until June 1988. HUD was the last Executive 

agency to issue final regulations, and its ability to enforce the rights of individuals with 

disabilities in the housing and community development fields was compromised by their 

absence. The history of the regulations began simply enough, but quickly became mired in 

politics and philosophical disputes. 

Pursuant to Executive Order 11914, HEW published its model Section 504 regulations in 

1977. The Executive Order not only required HEW to publish the regulations, but it required all 

federal agencies to issue their own regulations expeditiously. HUD acted quickly and published 

its proposed rule for public comment in 1978. The regulations were still in their proposed form 

when President Reagan entered office in 1980. 

One of the Reagan Administration’s first acts was to require all agencies whose Section 

504 regulations were pending to withdraw them. In July 1981, HUD published a Notice in the 

Federal Register notifying all recipients of HUD funds that they were to comply with Section 

504. Because HUD had no regulations, the Notice advised recipients to rely on HEW’s 

regulations for guidance.38 In August 1981, HUD published a Notice in the Federal Register 

announcing that it was revising the proposed rules and they would be published soon.39 HUD 

published this Notice because Paralyzed Veterans of America had sued Secretary Samuel Pierce 

for HUD’s failure to issue regulations. 

Neither of these Notices helped HUD enforce Section 504. In fact, some field offices told 

complainants that HUD could not investigate their complaints because of the absence of 

regulations, while other offices conducted investigations and negotiated relief for complainants. 

FHEO ceased conducting compliance reviews when HUD’s Office of General Counsel advised it 

not to because the Department would not enforce the findings from complaint investigations 

37 See, e.g., Toward Independence, National Council on the Handicapped, February 1986, pp. F18ff. 

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

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

30 
without final regulations.40 FHEO urged the Office of General Counsel to request an opinion 

from the Department of Justice as to HUD’s authority to enforce Section 504. By a letter dated 

February 5, 1987, the Department of Justice confirmed that HUD did have the authority to 

conduct and enforce the findings resulting from both complaint investigations and compliance 

reviews, by relying on HUD’s Title VI regulations for administrative hearings; by referring cases 

to the Department of Justice when the parties were unwilling to participate in administrative 

hearings; and by relying on the Health and Human Services (HHS, formerly HEW) Section 504 

regulations.41 

Meanwhile, HUD drafted and attempted to publish revised Section 504 regulations. On 

May 6, 1983, HUD published Interim Final 504 Regulations, which it republished on May 18, to 

become final on June 15. These regulations drew immediate and vociferous criticism for 

insulting people with disabilities, for being inconsistent with the model regulations, and for 

skirting the public comment requirements of the Administrative Procedures Act. A group of 

twenty public interest, religious, labor, and civil rights organizations met with HUD 

representatives and described the most egregious problems they found with the regulations. The 

groups also complained to the White House, and HUD announced on June 15, 1983, that the 

regulations would be treated as proposed rules and that it would accept public comments until 

September 6.42 

Of the 1,258 comments that HUD received, only 11 were favorable. HUD sent a revised 

version of the rules to the Department of Justice, where the Civil Rights Division raised further 

40 See, Abstrac t of Secretar ial Corresp ondence, To: The Secretar y, From: Antonio M onroig, 

Assistant Secretary for Fair Housing and Equal Opportunity, Subject: Action -- Implementation of 

Secretarial Decision to Plac e All Section 504 Responsibiliti es in the Office of FHEO, Action By: ASAP 

or 8/19/83; Memorandum from J udith Brachman , Assistant S ecretary, FHEO , and J. Micha el 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. 

31

questions.43 Finally, five years later, after Congress had revised the FHA to prohibit 

discrimination based on disability (among other changes) and after HUD had begun drafting 

regulations to implement the law, HUD published final Section 504 regulations on June 2, 1988. 

Among the most contentious of the proposed regulations was one that permitted housing 

providers and managers to ask medical and social service staff whether a housing applicant with 

disabilities would be likely to diminish other tenants’ enjoyment of the premises by adversely 

affecting their health, safety, or welfare or the physical environment or financial stability of the 

assisted housing. These questions did not apply to applicants without disabilities. Another 

section announced that HUD would prohibit only intentional discrimination, in spite of HEW, 

Department of Justice, and Supreme Court44 guidance that Section 504 prohibited unintentional 

discrimination as well. Finally, while HUD officials were still insisting that 5 percent 

accessibility for new construction was adequate, Congress had already required 100 percent 

adaptability in new construction in the FHA.45 

43 Toward Independence, p. F-19. 

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

45 The legislative history of the FHA describes the difference between FHA 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. 

32 
4. HUD’s Final Section 504 Regulations 

While HUD’s final Section 504 regulations differ from HEW’s model regulations, they 

are more similar than different. HUD removed many of the provisions from the proposed rule 

that caused the loudest uproar. The final regulations do not permit housing providers to 

determine if applicants or tenants are capable of “independent living.”46 Further, the regulations 

prohibit both intentional discrimination and discrimination by effect. 

Unfortunately, HUD retained the 5 percent accessibility standard for new construction 

and imposed only limited responsibility on recipients who contract with others for the provision 

of housing. Thus, for example, public housing authorities were not required to ensure that their 

rental subsidies entitle tenants in private housing to the same level of accommodation as tenants 

living in public housing property. This created an internal inconsistency in the regulation, 

because the provision that HUD adopted from the HEW model prohibited recipients, such as 

housing authorities, from entering into contracts that have the effect of “subjecting qualified 

handicapped persons to discrimination on the basis of handicap.”47 

5. The Administrative Enforcement Process 

HUD adopted the Title VI administrative enforcement process, as the HEW regulations 

had also done. Section 8.56 describes the method by which HUD may review a recipient’s 

compliance with the regulations. HUD may initiate compliance reviews without reason, on a 

periodic basis, or because of a complaint or any evidence that the recipient is not following the 

regulations. HUD must notify the recipient of the compliance review, the timing of the on-site 

visit, which programs will be reviewed, and when the recipient will have an opportunity to 

respond to any findings. In addition to FHEO investigations, Section 8.56 requires program grant 

officials to review the recipient’s compliance with Section 504 in the normal course of the grant 

management. If the compliance review is prompted by information of noncompliance, the review 

shall be con ducted promptly. 

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

47 24 CFR 84.4(b)(4). 

33 
In 1996, HUD published regulations (24 CFR Part 180) that describe the agency’s 

consolidated hearing procedures for all civil rights matters, including Section 504. Any person 

who believes that she or he has been subjected to discrimination may file a complaint or may ask 

a representative to file a complaint. Such a person is not a party in the proceeding but may file a 

motion to intervene within 50 days of the filing of a charge. Members of a class of people who 

believe they have been subjected to discrimination may file a complaint for the class. The 

complaint must be filed within 180 days of the act of discrimination, although this time limit may 

be waived for good cause, and the contents of the complaint, according to Section 8.56 8(5), may 

be minimal. Recent changes in the complaint intake system have retitled such complaints 

“claims,” and complaints will be accepted only after FHEO conducts an initial interview with the 

“claimant.” (See Fair Housing Act discussion in Section III for a fuller description of the intake 

process.) 

HUD is to notify complainants and recipients within 10 days of its receipt of the 

complaint. Twenty days thereafter, HUD is to determine whether the agency will accept the 

complaint. FHEO is to notify both the respondent and the HUD award official of the allegations, 

so that the respondent may reply within 30 days after service of the charge. Whenever possible, 

HUD officials are to attempt to resolve complaints informally. Within 120 days of the receipt of 

the complaint and failure to resolve the complaint informally, FHEO is to issue a Letter of 

Findings (LOF). The LOF must describe the violation, the remedy, a notice that the final 

investigative report is available, and a right to respond to the LOF by any party within 30 days. 

HUD is to respond to comments by parties within 20 days, and the reviewing civil rights official 

has 60 days in which to sustai n or modify the LOF. 

If neither party requests that HUD review the LOF, HUD must send a letter of 

compliance or noncompliance to the parties and to the HUD award official within 14 days after 

the respondent has been notified of his or her right to review. HUD shall continue efforts to 

resolve the complaint informally, and any agreements that this process produces shall be 

memorialized in a Voluntary Compliance Agreement (VCA). The regulations also prohibit 

retaliation and intimidation against complainants. HUD will treat complaints about either as new 

complaints. 

34

If a VCA is not possible, an administrative hearing must commence 120 days after the 

issuance of a charge. Federal rules of evidence apply at the hearing. The hearing is held before an 

administrative law judge (ALJ), who must issue his or her initial decision within 60 days of the 

hearing. An ALJ may award a range o f benefits, which include the foll owing: 

•	 Ordering the respondent to pay damages (including damages caused by 

humiliation and embarrassment). 

•	 Injunctive relief. 

•	 A civil penalty to vindicate the public interest for each separate and distinct 

discriminatory housing practice. Civil penalties may not exceed $11,000 for a first 

offense, $27,500 for a second offense, and $55,000 if the respondent has two or 

more prior offenses. 

If the ALJ finds that the respondent i s responsib le for a housing-related hate act, the ALJ 

takes this into account in favor of imposing the maximum penalty. Such an act is described in 

Section 818 of the FHA as a discriminatory housing practice that constitutes or is accompanied 

and characterized by actual violence, assault, bodily harm, or harm to property; intimidation or 

coercion that has such elements, or the threat or commission of any action intended to assist or be 

a part of any such act. Of course, if the ALJ determines that the respondent did not violate the 

law, he or she must dismiss the charge. 

The ALJ’s initial decision becomes the final agency decision if the Secretary does not 

alter it within 30 days. The Secretary may affirm, modify, or set aside in whole or in part the 

ALJ’s initial decision or remand the case for further proceedings. Any adversely affected party 

may file a motion with the Secretary asking for modification or for setting aside the ALJ’s initial 

decision within 15 days after the ALJ issues it. A statement of opposition to such a petition for 

review is due 22 days after the ALJ’s initial decision. If the Secretary chooses to remand the case, 

the ALJ must issue another initial decision on remand within 6 days of the Secretary’s remand. 

HUD must publicly disclose each final agency decision. 

If the ALJ’s initial decision provides for suspension of, termination of, refusal to grant, or 

refusal to continue federal financial assistance, it must be approved by the Secretary. Reasonable 

attorney fees and costs may be awarded to the prevailing party (except that no such award may be 

35

made to HUD if the agency is the prevailing party). Any party adversely affected by a final 

decision may file a petition for review in the U.S. Court of Appeals under 42 U.S. Code section 

3612(i) within 30 days. Termination of or refusal to grant or to continue federal financial 

assistance is subject to judicial review. 

If voluntary compliance is not possible, HUD may follow the procedures for terminating 

federal financial assistance. Other compliance methods, however, include referral to the 

Department of Justice with recommendations to proceed to litigation, initiation of debarment 

proceedings (which may result in a recipient becoming temporarily or permanently ineligible to 

receive HUD grants or contracts), and proceedings under state and local law (see Section 8.57). 

As with all other civil rights statutes dependent on a link to federal funding, HUD may 

not terminate funding before a final attempt to resolve the complaint informally is exhausted; an 

express finding is made on the record, after a hearing; the Secretary has approved the 

termination; and the Secretary has notified the relevant House and Senate committees and has 

given them 30 days to review the proposed termination of funds.48 

Special rules apply when HUD proposes to terminate Community Development Block 

Grant funds. In that case, HUD must notify the governor or the executive of the local government 

and ask him or her to attempt to secure compliance. HUD must provide this notice at least 60 

days before suspending, refusing to grant, or terminating the HUD funds. 

Either HUD or the recipient may request a hearing (see Section 8.58). Hearings will be 

held in Washington, D.C., by an ALJ. The respondent has the right to be represented by counsel. 

Title V controls the conduct of the hearing (see 29 U.S.C. Sections 554–557). Technical rules of 

evidence do not apply, but the parties may be required to produce documents, including exhibits, 

affidavits, depositions, and admissions (see 24 CFR Section 8.67). 

The ALJ issues a recommended decision to the Secretary. Either party may file objections 

to the judge’s decision with the Secretary. The Secretary then issues a final decision (see Section 

8.69). The Secretary’s final decision may require termination or denial of federal financial 

assistance or may impose other penalties. At any time, the Secretary may restore the recipient to 

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

36 
full eligibility to receive federal funds if the Secretary is satisfied that the recipient has brought or 

will bring itself into compliance (see Section 8.59). 

Subpart E of the regulations elaborates on the practice and procedure for the hearings. All 

records are to be public. The general counsel is to be a party to all proceedings. The ALJ will 

accept amicus curiae participation, but not as a party. Complainants are not allowed to be parties 

but may participate as amici curiae and may, in all events, be present at the hearing (see Section 

8.628). 

C.	 The Role of Federal, State, and Local Agencies in the Fair Housing Act 

Enforcement Process 

1.	 Introduction 

From passage of th e FHAA in 198 8 thro ugh FY 1 993, t he num ber of HUD Ti tle VIII 

complaints more than doubled, but the av erage age to closure o f HUD case s rose only slightly, 

from 96 days in FY 1989 to 113 days in FY 1993. During the next two years, even as fewer 

complaints were being received, processing times skyrocketed. By FY 1995, the average age to 

closure of a HUD case was 269 days. 

During FY 1996, HUD modified the way in which housing discrimination complaints 

were received by the agency. Acting on recommendations from PriceWaterhouse,49 the agency 

instituted a new procedure, by which it accepts “claims” of discrimination from aggrieved 

parties. These claims do not mature into “complaints” until they contain sufficient information to 

allow HUD to commence an investigation. While some claims of discrimination are determined 

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. 

37 
to be complete upon receipt, and therefore are accepted as complaints, beginning in FY 1996, the 

number of complaints received by HUD declined precipitously as the number of claims rose 

dram atically. 

In the spring of 2001, acknowledging that the claims process had failed to improve 

quality or case processing times, HUD scrapped the claims process altogether.50 In its place, 

HUD appears to be reverting to an older process of determining initial jurisdiction and 

developing allegations of discrimination into complaints.51 Because the change in policy is 

relatively new and HUD has not provided Title VIII data beyond FY 2000, it is impossible to 

gauge the effect of this new approach. 

2. The Claims Process 

In its 1996 Report to Congress, HUD described the claims process as follows: 

For purposes of this report, the key change is that FHEO no longer 

regards every inquiry made as a “complaint” triggering a fullfledged investigation....[Initially], the case is considered a “claim” 

and undergoes some preliminary investigation involving only the 

complainant and independent sources of information. Many cases 

drop out at this “claim” stage for a variety of reasons. For instance, 

the complainant may provide information indicating that the matter 

is really a landlord-tenant dispute rather than a fair housing dispute. 

Cases which survive this “claim” stage are considered 

“complaints” and receive full investigations, which result in a 

determination by FHEO as to whether there is or is not reasonable 

cause to believe the [Act] was violated.52 

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 resol ved. From FY 1996 through FY 2000, HUD 

created a category called “claims” that was not subject to the 100-day processing requirement, and many 

of these claims never received full investigations. Because HUD did away with the claims process in 

early FY 2001, a statistical “aster isk” 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 FHEO, described the new policy in this way: “ 

We are no longer processing ‘claims’ as a part of the complaint intake process. Our present policy is to 

examine allega tions when th ey come into the de partment to as certain if we have jurisdi ction to rece ive 

and process the allegation as a housing discrimination complaint.” (Interview, March 2001.) 

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

38 
The claims process was designed to streamline intake and to ensure that HUD devoted its 

scarce resources to cases that merited full investigation.53 In addition to eliminating allegations 

that weren’t covered by Title VIII, the claims process also screens out cases in which a claimant 

alleges discrimination but cannot establish one of the elements of jurisdiction.54 In its first full 

year of operation (FY 1997), the new process had a dramatic impact: 69.5 percent of all closures 

were dismissed as claims.55 That pattern has persis ted in subs equent years: fo r FY 1998 through 

FY 2000, closures of claims represented 77 percent, 74 percent, and 71 percent, respectively, of 

all HUD closures.56 

The claims procedure had the inherent possibility of delaying resolution of fair housing 

cases. Time spent processing a claim did not count toward the 100 days in which FHEO is 

53 Until early 2001, HUD maintained the On-Line Assess Process Manual, a 25-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 

PriceWaterhouse 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. 

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. After reviewing a draft of this report, HUD suggested that “[p]rior to late 

FY 1995, these claims cases wo uld have been pa rt of the HUD inve ntory...and we re 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 

“adminis trative closure s” prior to FY 1996 . However, as data l ater in t his repo rt bear o ut, the c laims 

closure rate (consistently at or above 70 percent) was nearly three times the administrative closure rate in 

FY 1994 and FY 1995. 

39 
mandated to complete its investigation.57 As a result of concerns about the timeliness issue, in 

May 1997, FHEO established a new time frame of 25 days for assessing claims and determining 

whether they would be converted to complaints or dismissed. Unfortunately, staffing and 

management reductions at FHEO have meant that many housing field offices (HUBs), or 

regional offices created by HUD, are failing to complete the assess process on time.58 

3.	 HUD Conducts Its Fair Housing Act Responsibilities Through 10 Regional 

Offices 

For purposes of administering its responsibilities under the FHA, HUD has designated 10 

HUBs, or regional offices: 

Region 1: Boston Connecticut, Maine, Massachusetts, New Hampshire, 

Rhode Island, and Vermont 

Region 2: New York New Jersey and New York 

Region 3: Philadelphia Delaware, District of Columbia, Maryland, Pennsylvania, 

Virginia, and West Virginia 

Region 4: Atlanta Alabama, Florida, Georgia, Kentucky, Mississippi, North 

Carolina, South Carolina, Tennessee, and Puerto Rico 

Region 5: Chicago Illinois, Indiana, Michigan, Minnesota, Ohio, and 

Wisconsin 

Region 6: Ft. Worth Arkansas, Louisiana, New Mexico, Oklahoma, and 

Texas 

Region 7: Kansas City Iowa, Kansas, Missouri, and Nebraska 

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 da ys and 321 days, re spectively, an d these figure s do not includ e the average of 6 2 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.” 

40 
Region 8: Denver Colorado, Montana, North Dakota, South Dakota, Utah, 

and Wyoming 

Region 9: San Francisco Arizona, California, Hawaii, and Nevada 

Region 10: Seattle Alaska, Idaho, Oregon, and Washington 

4. Recent History of HUD Enforcement of Title VIII 

Throughout the 1990s, numerous reorganizations and special initiatives at FHEO 

complicated the task of enforcing fair housing rights through the Title VIII complaint process. 

Three of these deserve special mention: (1) the devolution of decision making from Headquarters 

FHEO to HUB directors; (2) HUD’s reallocation of resources in FY 1997 and FY 1999 to 

emphasize “hot cases”; and (3) HUD’s preoccupation from FY 1997 through FY 2000 with 

“doubling enforcement actions.” 

a. Devolution of Authority to HUBs 

From FY 1989 until FY 1992, although HUBs conducted Title VIII investigations, 

HUD’s Office of General Counsel (OGC) retained the authority to make determinations about 

whether cause existed to believe that discrimination had occurred. Thereafter, authority was 

transferred to Headquarters FHEO, with OGC concurrence required for every cause finding. This 

arrangement resulted in significant tension between FHEO and OGC staff, which has existed 

almost to the present time.59 By FY 1994, HUBs were invested with authority to make 

recommendations for cause or no cause findings in most cases, but all these decisions were 

reviewed by Headquarters FHEO. 

In early FY 1996, Deputy Assistant Secretary Susan Forward began to devolve full 

authority over cause and no cause decisions to the HUBs, and the HUBs have retained this 

authority up to the present. 

In the early stages of devolution, Headquarters FHEO maintained strict performance 

standards for HUB directors. By FY 1997 and FY 1998, however, FHEO had lost some of its 

most capable managers and with them the ability to ensure quality control and a modicum of 

uniformity in practice among the 10 HUBs. As a consequence, significant differences among 

HUBs have emerged on such critical areas as numbers of complaints processed, proportion of 

59 Interviews with senior HUD staff, March 2001. 

41 
cases with cause findings, and age of cases.60 As a result of HUD’s most recent reorganization 

(See Section VI) and the general devolution of authority to the HUBs, Headquarters FHEO has 

effectively divested itself of responsibility for oversight of the HUBs. The purported benefits of 

this devolution have been outweighed by the absence of a Headquarters FHEO office charged 

with reviewing the national enforcement landscape and assessing whether individual HUBs are 

doing their part to reach the goals outlined in HUD’s Strategic Plan and Business Operation Plan 

(see Section VI). 

One of the major findings of this report is that HUD has been slow to understand the ill 

effects of devolution and even slower to attempt to remedy them. 

b. Hot Cases 

As part of its effort to raise the visibility of the agency, HUD embarked in FY 1997 on a 

campaign to identify and publicize fair housing cases where HUD intervention resulted in visible 

and newsworthy relief to victims of discrimination. As a consequence, resources in many HUBs 

and at Headquarters were diverted to such “hot cases.” Secretary Andrew Cuomo took a keen 

personal interest in this campaign, directing his staff to review HUB complaint logs regularly to 

identify hot cases and personally participating in many press conferences announcing the filing or 

settlement of complaints. During the initiative, HUB staff were required to send weekly hot case 

reports to Headquarters, to expedite investigations, and to participate in regular conference calls 

and media events. Known at Headquarters as “the drumbeat,” Secretary Cuomo’s effort resulted 

in almost daily press releases designed to portray the agency as very active in fighting 

discrimination. While most of these cases involved individuals who had been subjected to 

outrageous behavior by landlords or neighbors, a small number of the hot cases also dealt with 

systemic issues, such as alleged lending discrimination. HUD’s March 1998 settlement with 

Texas-based AccuBanc is one such example.61A principal result of the hot case initiative was the 

diversion of the most skilled intake workers and investigators from existing cases to hot cases. 

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

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. 

42 
During m ore t han three years of the cam paign, FHEO enfo rcem ent staff ac tually declined by 9 

percent,62 and the average age of HUD cases increased from 350 to 497 days.63 The hot case 

approach produced some major public victories, especially in the lending industry, which FHEO 

had not targeted before. But it also had a measurably negative impact on the routine enforcement 

business of HUD because of its decision to supplant the day-to-day enforcement rather than to 

supplement it with additional resources for hot cases. 

c. Doubling Enforcement Actions 

Beginning in FY 1997, as part of the President’s Initiative on Race, HUD committed 

itself to “doubling enforcement actions” by FY 2000.64 HUD defined enforcement actions as 

“issuance of a charge by HUD or referral by HUD to the Department of Justice for 

enforcement.”65 By early in FY 1998, HUD was actively soliciting comments about how its 

funding programs could incorporate incentives to support the doubling initiative.66 Later in the 

same year, evidence began to emerge that the enforcement strategies of FHIP-funded agencies 

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 i mprovement of thei r case proces sing and remedia l activitie s. The “stat us” of this ob jective 

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.h tml. 

65 Notice of Public M eeting a nd Reque st for Co mments on Fa ir Housi ng Initiat ives Prog ram, 

Federal Register, December 8, 1997. 62 Fed. Reg. 64594. 

66 Notice of Public M eeting a nd Reque st for Co mments on Fa ir Housi ng Initiat ives Prog ram, 

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. 

43 
were being affected by the initiative.67 HUD reported early success for the initiative.68 The 

National Council on Disability issued a cautiously optimistic note in responding to the initiative: 

Also as part of [the President’s Initiative on Race], the President 

proposed and Congress approved a significant expansion in the 

Department of Housing and Urban Development’s (HUD’s) fair 

housing enforcement budget for Fiscal Year (FY) 1999. The 

approved budget for fair housing programs was $40 million, up 

from $30 million in FY 1998. NCD commends the President and 

Congress for recognizing the need to expand fair housing 

enforcement. NCD recommends that HUD use the increase in 

appropriations for fair housing to expand its enforcement of the 

Fair Housing Act and Section 504 of the Rehabilitation Act on 

behalf of people with disabilities. To the extent that HUD will be 

doubling enforcement efforts under the Fair Housing Act, for 

example, NCD recommends that HUD’s efforts under Section 504 

also be doubled.”69 

By 1999, however, critics such as the Citizens’ Commission on Civil Rights began to 

express concern about the initiative, particularly with respect to its impact on HUD’s ability to 

process Title VIII complaints.70 

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/loc al/jkv/ jkv98_5. html.) 

69 National Coun cil on Disabi lity, National Disability Policy: A 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/news room/pub licati ons/pol icy97-98. html. 

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 

44

As part of the review of HUD’s enforcement of Title VIII, NCD requested information 

from HUD about the doubling initiative. While HUD did not provide detailed data, it supplied a 

summary chart purporting to show that the agency had not only doubled its enforcement actions 

but had actually increased them by 135 percent. On its chart, HUD displays the following 

caption: “2,922 Enforcement Actions (135 percent of goal attained) after 51 months (100 percent 

of time) as of December 31, 2000.” Chart III-1 summarizes HUD’s data from its doubling effort: 

(hereafter, CCCR 1999), the Commission said: 

“HUD has shown little improvement over the last two years in its ability to

 1.	 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 HU D has found dis crimination –has decline d precipito usly. 

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. 

231–32.) 

45 
Chart III-1 

Even a quick analysis indicates that HUD was not comparing apples to apples when it 

made its claim that it had exceeded its doub ling objective. During th e base period (FY 1993–FY 

1996), HUD counted only charges and referrals to the Department of Justice, which totaled 1,085 

“enforcement actions.” Had it used only these two categories for the comparison perio d (FY 

1997–December 31, 2000, a total of 51 months, or 3 months longer than the base period), it 

would have had only 885 enforcement actions, a reduction of 18 percent compared with the base 

period figure. 

46

Only by counting other categories, such as temporary restraining orders (TROs), 

agreements, nonclaimants, and unfiled criminal—none of which fit the agency’s initial definition 

of enforcement actions,71—could HUD have concluded that it had met or exceeded its target. 

NCD interviewed several senior HUD staff members about the effect of the doubling 

effort on routine intake and investigation of Title VIII and Section 504 complaints and 

compliance reviews. They were very frank in their response that the doubling initiative had 

diverted resources away from the agency’s core enforcement functions and that Section 504 work 

had essentially ground to a halt during the initiative.72 

5. State and Local Fair Housing Agencies 

Even before the FHAA, Congress had directed that states and localities with fair housing 

laws deemed “substantially equivalent” to the FHA, in terms of substantive coverage and 

enforcement provisions, were to handle their own administrative hearings. The Fair Housing 

Assistance Program (FHAP) is authorized by the FHA,73 which permits the Secretary to use the 

services of responsible state and local agencies in the enforcement of fair housing laws and to 

reimburse these agencies for services rendered to assist HUD in carrying out the FHA. 

Eligible grantees are state and local enforcement agencies administering statutes that 

HUD has certified as substantially equivalent to the federal statute. Funding is provided to 

substantially equivalent state and local agencies under FHAP to assist them in carrying out 

activities related to the administration and enforcement of their fair housing laws and ordinances. 

Such activities include complaint processing, training, implementation of data and information 

systems, and other special projects specifically designed to enhance the agency’s administration 

and enforcement of its fair housing law or ordinance. 

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

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

73 42 U.S.C. §3610. 

47 
When Congress amended the FHA in 1988, 36 states and 76 local agencies had been 

certified by HUD as being “substantially equivalent.”74 Recognizing that a transition period was 

necessary to allow these jurisdictions to amend their laws to conform to the FHAA changes, 

Congress extended the authority of then-certified agencies to continue to handle housing 

discrimination complaints, but Congress directed HUD to retain jurisdiction over complaints 

involving handicap and familial status where state and local laws did not provide protection on 

those bases. By September 13,1992, the end of the transition period, the number of certified 

agencies declined dramatically, as states and localities failed or refused to modify their laws to 

conform to the FHAA.75 As of March 2001, HUD had certified 32 states,76 the District of 

Columbia, and 53 localities77 as having substantially equivalent laws. 

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 or entered into improvement plans. (Source: HUD correspondence, December 22, 2000). 

75 Schill and Friedman, note 6: “In 1992, 7 states and 12 local ities 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, titled “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, titled “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 

(Nebras ka), Oran ge County ( North Ca rolina ), Orlan do (Flor ida), Pa lm Beach Co unty (Flo rida), Parma 

48

Since FY 1980, HUD has provided financial assistance to state and local “substantially 

equivalent” agencies through FHAP to support complaint processing, training, technical 

assistance, data, and information systems and to provide incentives for states and localities to 

assume greater responsibility for administering fair housing laws. State and local agencies (often 

referred to as FHAPs) are reimbursed on a formula based on the number of fair housing 

complaints they handle.78 

Except under unusual circumstances,79 a complaint filed with HUD will be routinely 

referred to a state or local agency that HUD has certified as substantially equivalent. A 

complainant has little or no influence over this decision, and his or her complaint is effectively 

confined within the state or local FHAP system, with all the advantages and disadvantages of the 

track record of that particular FHAP agency. In states or localities that do not have FHAPs, HUD 

retains responsibility for processing claims and complaints. 

Table III-1 provides infor matio n abou t where a complain t is likely to be processed. It 

demonstrates that FHAP agencies have processing authority for complaints in states and 

localities covering roughly 79 percent of the U.S. population and that HUD has processing 

authority over approximately 21 percent. These relative responsibilities should be borne in mind 

as the reader reviews the data, findings, and recommendations in this report. 

(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. 

49 
Table III-1: FHAP Regional Agencies 

Region FHAP Agencies 

[STATEWIDE AGENCIES IN 

Population 

Served by 

States in Region 

Without a 

Population 

Served by 

CAPS; Local Agencies in Initial FHAPs Statewide Fair HUD (2000 

Caps] (2000 Housing Agency Census) 

(as of March 2001) CENSUS) 

1 CONNECTICUT 11,411,808 MAINE 2,510,709 

Boston MASSACHUSETTS: Boston, 

Cambridge 

RHODE ISLAND 

NEW 

HAMPSHIRE 

VERMONT 

2 NEW YORK: Rockland County 18,976,457 NEW JERSEY 8,414,350 

New 

York 

3 

Philadelphia 

MARYLAND 

DELAWARE 

DISTRICT OF COLUMBIA 

PENNSYLVANIA: Pittsburgh, 

Reading, York 

VIRGINIA 

WEST VIRGINIA: Charleston, 

Huntington 

27,036,458 

4 

Atlanta 

FLORIDA: Hillsborough County, 

Jacksonville, Orlando, Palm 

45,961,208 ALABAMA 

MISSISSIPPI 

11,100,368 

Beach County, Pi nellas Count y, 

St. Petersburg, Tampa 

PUERTO RICO 

GEORGIA 

KENTUCKY: Lexington/Fayette 

County, Louisville/Jefferson 

County 

NORTH CAROLINA: 

Asheville/Buncombe County, 

Charlotte/ Mecklenburg Co unty, 

Durham, Greensboro, New 

Hanover County, Or ange County, 

Winsto n-Salem 

SOUTH CAROLINA 

TENNESSEE: Knoxville 

50

Region FHAP Agencies 

[STATEWIDE AGENCIES IN 

CAPS; Local Agencies in Initial 

Caps] 

Population 

Served by 

FHAPs 

(2000 

States in Region 

Without a 

Statewide Fair 

Housing Agency 

Population 

Served by 

HUD (2000 

Census) 

(as of March 2001) CENSUS) 

5 

Chicago 

ILLINOIS: Springfield 

INDIANA: Elkhart, Fort Wayne, 

Gary, Hammond, South Bend 

MICHIGAN 

27,499,945 ILLINOIS 

MINNESOTA 

WISCONSIN 

22,574,571 

OHIO: Dayton, Parma, Shaker 

Heights 

6 LOUISIANA 28,771,450 ARKANSAS 4,492,446 

Ft. OKLAHOMA NEW MEXICO 

Worth TEXAS: Austin, Dallas, Fort 

Worth, Garland 

7 IOWA: Cedar Rapids, Davenport, 10,451,537 

Kansas Des Moines, Dubuque, Mason 

City City, Waterloo 

MISSOURI: Kansas City 

NEBRASKA: Omaha KANSAS 

2,469,679 

Lawrence, Olathe, Salina (all in 

Kansas) 

8 

Denver 

COLORADO 

NORTH DAKOTA 

UTAH 

7,176,630 MONTANA 

SOUTH DAKOTA 

WYOMING 

2,150,821 

9 

San 

Francisco 

ARIZONA: Phoenix 

CALIFORNIA 

HAWAII 

40,213,817 NEVADA 1,988,257 

10 WASHINGTON: Kin g County, 5,894,121 ALASKA 5,342,284 

Seattle Seattle, Tacoma IDAHO 

OREGON 

United 223,393,431 61,043,485 

States 

51

SECTIO N IV 

Enforcement of the Provisions of the Fair Housing Act 

A.	 Introduction 

At the request of the NCD, HUD supplied data concerning Title VIII (Fair Housing Act) 

complaints received by the agency and by state and local FHAPs. From this information, this 

report draws a number of general conclusions about HUD and FHAP processing of complaints, 

but also takes a closer look at how complaints of disability discrimination are handled as 

compared to other claims. 

The efficacy of HUD’s enforcement of the FHA can be measured in a number of ways. 

This section analyzes quantitative data concerning FHA complaints filed between FY 1989 and 

FY 2000 (the last year for which complete data are available). Five distinct subsections look at 

the data in different ways: 

•	 The Complaint Intake subsection considers the raw number of complaints filed 

with HUD and with state and local fair housing enforcement agencies during the 

12-year period. 

•	 The subsection on Case Outcomes documents the way in which fair housing 

complaints are processed and provides details about how cases are closed. 

Specific attention is given to the number of cases closed by conciliation and by 

findings of “cause” and “no cause” to believe discrimination has occurred. 

•	 The Case Processing Times subsection compares the actual experience of fair 

housing complainants with specific time benchmarks crafted by Congress when it 

passed the FHAA. 

•	 A fourth subsection, dealing with monetary compensation, analyzes the monetary 

damages made available through conciliation of FHA complaints. 

•	 A final subsection rev iews the use of Secretary-initiated complaints and hearings 

before HUD administrative law judges in an effort to measure whether HUD has 

used the tools made available to it in the FHAA. 

52

The use of these quantitative benchmarks, and the annual snapshots conveyed by the data, 

make possi ble an asses sment of HUD’s enforcem ent of the FHA over the past 12 years. Findings 

and recommendations derived from this data are provided throughout the body of this report and 

summarized in Section II. 

This report evaluates the trends in enforcement activity overall and compares the handling 

of disability complaints to others based on race, color, religion, national origin, sex, and familial 

status. The report also analyzes regional differences among HUD enforcement offices and among 

FHAP agencies. 

B. Complaint Intake 

1. The Growth (or Stagnation) of Disability Complaints 

The number of housing discrimination complaints filed with HUD and FHAP agencies 

has grown fairly steadily since passage of the FHAA (See Chart IV-1). 

53

Given the clear evidence that housing discrimination is widespread,80 it is surprising that 

complaints of housing discrimination have barely exceeded 11,000 nationally in any year since 

1988. 

Finding IV.B.1: The number of discrimination allegations filed with HUD and 

state and local fair housing enforcement agencies is very low, 

given statistical and anecdotal evidence that housing 

discrimination is widespread. 

Historically, FHAP agencies have handled roughly 40 percent of the fair housing cases 

filed (see Chart IV-2). 

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. 

54 
2.	 HUD Has Complicated Its Reporting by Creating a New Category 

HUD’s case intake procedure (and the raw numbers in Charts IV-1 and IV-2) must be 

further explained. Prior to FY 1996, HUD accepted complaints of housing discrimination and 

investigated all of them. Beginning in FY 1996, HUD adopted a new approach, under which 

allegations of discrimination filed with the agency typically were considered “claims,” which 

were assessed to determin e whether they were likely to constitute valid complaints. Bet ween FY 

1996 and FY 2000, the vast majority (roughly 75 percent) of these claims were closed without 

full investigation.81 HUD, however, continued to report these claims to Congress and to the 

public as part of its workload. 

Finding IV.B.2.a: Three-quarters of all claims (4,210 of 5,924 in FY 2000) are 

dismissed without being converted to complaints and therefore 

are not subjected to full investigation. 

The difference between a claim and a complaint is outlined in Table IV-1. 

Table IV-1: Characteristics of “Claims” and “Complaints” 

Claim Complaint 

An allegation of 

HUD that must undergo preliminary investigation 

Definition An allegation of housing discrimination filed with 

discrimination filed with 

involving only the complainant and independent HUD or an FHAP that 

sources of information. A claim will be converted contains all four 

to a complaint if this investigation establishes four jurisdictional elements.82 

“jurisdictional elements”: 

•	 It was filed within one year of the alleged 

discriminatory act. 

•	 The complainant has been or is about to be 

harmed by a discriminatory act. 

•	 The dwelling and respondent in question 

are covered by the FHA. 

•	 The discrimination complained of is


prohibited under the FHA.


81 See Appendix IV-1. 

82 Prior to FY 1996, complaints that lacked one or more essential elements to be treated as a 

potential violation of the FHA typically were disposed of as “administrative closures.” 

55 
Claim Complaint 

Processing 

Time 

HUD established processing benchmarks that 

require claims to be assessed within 25 days, 

By statute, agency must 

complete investigation 

which did not count toward the 100 days in which within 100 days after 

HUD must complete investigations on complaints. filing “unless it is 

impracticable to do so.” 

Disposition If a claim fails to meet any of the four 

jurisdictional elements, or if the complainant or 

respondent cannot be found, it will be closed. 

Following investigation, 

agency determines 

whether there is cause to 

believe discrimination has 

occurred. 

Period of FY 1996 through FY 2000 1968 through present 

Use 

On first examinatio n, HUD’s caseload appears to have stayed relatively level since FY 

1991, but it is the growth of “claims” filed with HUD that has accounted for continued growth in 

HUD receipts. By this method, HUD was able to report an increasing caseload even as the 

absolute number of cases it was actually investigating dropped dramatically. 

Complaints filed with the agency have declined from a high of 6,214 in FY 1993 (prior to 

HUD’s adoption of the claim/complaint dichotomy) to 784 in FY 1996 (the first full fiscal year 

during which “claims” were accepted) to 274 in FY 2000 (see Chart IV-3). 

56

 Finding IV.B.2.b:	 From FY 1996 through FY 2000, HUD reported both 

complaints and claims (whether dismissed or maturing into 

complaints) to Congress and the public. It is only through 

creative arithmetic that HUD has made it appear that fair 

housing receipts have not declined. 

Recommendation IV.B.2.a: In reporting to Congress and the public, HUD should be 

required to distinguish between fair housing complaints and 

other receipts, such as claims or inquiries, so that a fair 

assessment of the agency’s success can be made. 

The dichotomy between claims and complaints can be confusing. It is more instructive to 

review the number of cases subjected to full-fledged investigation. After reaching a high of 6,578 

in FY 1992, total HUD complaints investigated in FY 2000 fell to 1,988, or 30 percent of the FY 

1992 level (see Chart IV-4). 

After reviewing a draft of this report, HUD suggested that such a head-to-head 

comparison of complaints was not fair, because the agency had changed the criteria for what 

constitut ed a complai nt. In essence , HUD said t hat cases th at never got p ast the clai ms stage 

between FY 1996 and FY 2000 were cases it would previously have counted as complaints but 

that were closed administratively. There are two flaws in that logic, however. First , since FY 

1994, administrative closures have not exceeded 29 percent (see Appendix IV-3), and have never 

approached the 75 percent rate at which claims have been closed (See Appendix IV-1). Second, 

the percentage of administrative closures of matured complaints remained between 15 percent 

and 21 percent throughout the five fiscal years HUD employed the claims process, demonstrating 

that the creation of the claims category did not significantly affect the administrative closure rate. 

57

Finding IV.B.2.c: After HUD adopted a new intake process in FY 1996, 

emphasizing the assessment of claims to determine whether 

they warranted full investigation, the number of HUD 

complaints filed dropped even further. By FY 2000, complaints 

(N = 1,988) were at 30 percent of their FY 1992 level. 

Finding IV.B.2.d: On February 1, 2001, HUD abandoned its claims assessment 

process in favor of a system that gives investigators 20 days to 

process an inquiry to determine whether it will be filed as a 

complaint. HUD did not supply data by which the effectiveness 

of this new approach can be gauged. 

Recommendation IV.B.2.b: Congress should closely monitor HUD’s new intake protocol to 

ensure that it does not inappropriately discourage the filing of 

fair housing complaints and does not inappropriately prevent 

the conversion of inquiries into complaints. 

58

3. HUD Regional Offices Vary Widely in Complaint Intake 

Beneath the raw numbers provided by HUD are significant variations in regional offices, 

or HUBs (see Table IV-2). 

Table IV-2: HUD Complaints Filed, by HUB 

FY 90 FY 91 FY 92 FY 93 FY 94 FY 95 FY 96 FY 97 FY 98 FY 99 FY 00 

HQ 0 0 0 0 0 0 2 5 2 30 4 

1. Boston 244 232 289 139 123 119 101 107 80 57 79 

2. New York 140 362 404 449 516 311 253 239 238 212 103 

3. Philadelphia 273 430 590 540 299 84 71 59 52 69 62 

4. Atlanta 452 766 558 373 475 257 160 161 109 331 431 

5. Chicago 903 1061 893 806 642 519 342 348 408 382 372 

6. Ft. Worth 688 943 1198 1047 803 555 331 197 222 291 164 

7. Kansas City 304 468 636 462 403 434 162 185 349 396 281 

8. Denver 225 292 381 300 355 198 147 99 77 107 103 

9. San Francisco 808 950 1074 1440 961 271 220 227 303 163 97 

10. Seattle 249 332 555 658 429 386 267 176 145 175 292 

NATIONAL 4,286 5,836 6,578 6,214 5,006 3,134 2,056 1,803 1,985 2,213 1,988 

The Chicago HUB has consistently filed large numbers of complaints, perhaps in part 

because it covers three very populous statues without FHAP agencies whose combined population 

is twice the size served by the next largest HUB. Since the certification of the New York FHAP in 

2000, complaints filed by the New York HUB have been cut in half. All the states in the 

Philadelphia region have FHAPs, so the number of complaints processed by HUD has been very 

low since FY 1995, comprising primarily cases involving a public housing authority or complicated 

issues. In addition, Secretary-initiated complaints (see Section IV.F.1, below) are included as part of 

the Philadelphia HUB’s caseload. 

4. Growth in State and Local Agency Intake 

FHAP agencies experienced steady growth in complaints from FY 1989 through FY 1995, 

notwithstanding the fact that many fewer agencies were deemed substantially equivalent between 

September 1992 and Sep tember 1995. Complai nts to FHAP agencies droppe d 23 percent from FY 

59

1995 to FY 1999, in part because of the fact that the HUD claims process was eliminating cases that 

previously would have been referred to FHAPs as complaints (see Chart IV-5). 

The certification of the New York State Division of Human Rights as a “substantially 

equivalent” agency in FY 2000 and its assumption of complaints previously handled by HUD may 

account, in part, for the 25 percent increase in FHAP complaints from the previous year. 

5.	 Disability Is the Fastest Growing and Largest Category Among Housing 

Discrimination Complaints 

HUD assumed responsibility for enforcing the disability provisions of the FHAA in March 

1989, roughly halfway through FY 1989. That year, 489 complaints filed by the agency cited 

“handicap” as a basis of discrimination. That number grew each year through FY 1992. For the first 

time, in FY 1999 and FY 2000, disability complaints topped all others, followed by race and 

familial status. During those two fiscal years, allegations of disability discrimination appear in 42 

percent of complaints filed with HUD (see Table IV-3). 

60

Table IV-3: Complaints Filed with HUD, by Protected Class 

Protected FY89 FY90 FY91 FY92 FY93 FY94 FY95 FY96 FY97 FY98 FY99 FY00 

Class 

Race 903 1,437 2,212 2,805 2,861 2,348 1,443 872 779 924 818 793 

Sex 310 470 577 862 886 670 478 214 205 214 158 177 

Color 131 151 261 225 86 93 98 115 142 154 173 56 

National O rigin 167 318 457 648 799 600 347 286 257 240 221 222 

Handicap 489 1,053 1,447 1,608 1,509 1,395 967 621 651 724 911 828 

Familial Status 1,497 1,959 2,330 2,071 1,629 1,130 704 472 324 304 429 322 

Religion 45 76 200 148 169 147 62 29 39 31 70 37 

The growth of disability complaints cannot be attributed to a single cause, but is 

undoubtedly influenced by the growing recognition that people with disabilities are entitled to 

equal housing opportunity under the FHA. HUD has contributed to this effort through its support 

of private fair housing enforcement agencies under the FHIP program, awarding FHIP grants 

both to full-service enforcement agencies handling disability complaints and to other advocacy 

groups focused exclusively on education about, outreach to, and enforcement of the rights of 

people with disabilities. (See Section VI.) Over the past decade, the country has also experienced 

a measure of “cultural maturation” concerning disability rights. Increasing acknowledgment of 

the legitimacy of these rights, especially the right to reasonable accommodation under the FHA, 

may also have fueled the dramatic increase in disability complaints. 

Finding IV.B.5.a: Disability complaints now compose the largest percentage of 

HUD complaints. Complaints of disability discrimination have 

composed a growing percentage of HUD and FHAP receipts. 

In FY 1999 and FY 2000, nearly 42 percent of all HUD 

complaints included allegations of disability discrimination, 

more than any other protected class. 

Finding IV.B.5.b: The growth of disability complaints cannot be attributed to a 

single cause but is undoubtedly influenced by the growing 

recognition that people with disabilities are entitled to equal 

housing opportunity under the FHA. 

61

Finding IV.B.5.c: HUD has contributed to the growth in disability complaints 

through its support of private fair housing enforcement 

agencies under FHIP. HUD has awarded FHIP grants to fullservice enforcement agencies handling disability complaints 

and to other advocacy groups focused exclusively on education 

about, outreach to, and enforcement of the rights of people 

with disabilities. 

Recommendation IV.B.5: HUD should continue to explore ways that it can use FHIP and 

contract funds to support collaborative work between fullservice fair housing agencies and organizations representing 

people with disabilities. 

6. There Are Wide Regional Variations in HUD Disability Complaints 

There are significant differences between the HUBs with respect to the percentage of 

Title VIII complaints alleging disability discrimination (see Table IV-4). The best consistent 

performers have been the Boston, New York, and Denver HUBs, which have consistently higher 

percentages of disability complaints than the national average. The Seattle and San Francisco 

HUBs rebounded strongly in the past three fiscal years and are now among the leaders in 

percentage of disability complaints. 

Table IV-4: Percentage of HUD Title VIII Complaints That Allege Disability, 

by HUB and Fiscal Year

 (Shading in dicates bel ow national average) 

HUB 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 

1. Boston N/A 48 34.1 40.8 33.1 38.2 37 31.7 60.7 58.8 47.4 67.1 

2. New York N/A 45.7 24.6 35.6 30.1 34.5 38.9 43.5 43.5 40.3 41.5 42.7 

3. Philadelphia N/A 37 41.4 30 28.5 33.8 27.4 25.4 30.5 17.3 39.1 29 

4. Atlanta N/A 22.3 21 17.2 21.7 27.8 26.8 29.4 35.4 34.9 48.3 33.2 

5. Chicago N/A 22.9 20.5 23.1 22.6 27.9 30.8 25.7 31 30.9 30.1 30.6 

6. Ft. Worth N/A 14 17.5 15.9 21.1 22.4 23.8 29 30.5 31.5 57.4 45.7 

7. Kansas City N/A 30.3 36.3 26.4 24.7 32.3 28.3 25.9 34.6 32.1 31.6 34.5 

8. Denver N/A 26.2 31.2 33.3 34.3 42.5 47 36.7 46.5 40.3 33.6 48.5 

62

HUB 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 

9. San Francisco N/A 18.8 22.3 24.1 23 21.1 36.2 30.9 35.7 42.2 46 64.9 

10. Seattle N/A 25.7 25.6 22.2 21.6 21.9 26.9 24.7 26.7 47.6 54.3 57.9 

Nat’l Avg. N/A 24.6 24.8 24.4 24.3 27.9 30.9 30.3 36.1 36.6 41.5 41.6 

While nearly every HUB has fallen below the national average in this category during at 

least one fiscal year, five of the HUBs are consistently below the national norm, giving rise to a 

concern that disability issues may not be getting appropriate attention. Despite leading the nation 

in overall complaints filed, the Chicago HUB has been at or below average for the past 11 fiscal 

years in terms of disability complaints. Atlanta and Ft. Worth have been below the national 

average nearly every year. Kansas City had above average disability caseloads in the early 1990s, 

but has been consistently (and significantly) below average for each of the past six fiscal years. 

Philadelphia’s performance must be explained, in part, by the fact that FHAP agencies serve all 

the jurisdictions in its region. 

HUD has suggested that this variation among its regional offices may reflect the 

geograph ic distribution of peo ple with disabilities acr oss the country.83 Data from the 1990 

Census (summarized in Appendix IV-2), however, suggest that this may be a factor for only two 

HUBs . Accord ing t o the Census, 10.4 perc ent of Americans report having a s erious disability.84 

The Chicago HUB handles complaints from Illinois (9.3 percent of population reports a 

disability), Minnesota (8.6 percent), and Wisconsin (8.6 percent), all of which report lower than 

average incidences of disability. The Kansas City HUB serves a region where 8.7 percent of the 

population reports having a disability. However, the other two poor performers—Atlanta and Ft. 

Worth—serve populations that report rates of disability significantly above the national average. 

83 HUD also suggested that other “regional differences” may affect the receipt of disability 

complaints bu t provided no det ail on wh at those differ ences may b e and no da ta to ass ess 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/hh es/www/ disabl e/cens us/tab les/ta b1us.ht ml. 

63 
Finding IV.B.6.a: Throughout the 1990s, HUD devolved substantial authority to 

its HUBs and allowed them great autonomy to structure 

intake, complaint processing, investigation, and cause 

determinations. 

Finding IV.B.6.b: In the mid- and late 1990s, Headquarters FHEO ceased its 

close oversight of HUB operations, opting instead for “remote 

monitoring.” The result has been significant differences in 

practice among HUBs, including markedly different treatment 

of disability complaints. 

Finding IV.B.6.c: There is great variability in numbers of complaints (overall 

and on the basis of disability) filed by HUD’s 10 HUBs and by 

FHAPs that is not adequately explained by differences in 

populations served by each HUB. 

Finding IV.B.6.d: The management style currently employed by Headquarters 

FHEO tends to reinforce significant regional variations in 

enforcement practice, resulting in different treatment of 

disability (and other) complaints depending on the state in 

which a complainant lives and whether the complaint is 

handled by HUD or by an FHAP. 

Recommendation IV.B.6.a: HUD should assess the intake process at each HUB and at each 

FHAP to determine whether the historically low number of 

complaints (overall or on the basis of disability) reflects 

impediments for victims of discrimination in using the Title 

VIII administrative complaint system. 

64

Recommendation IV.B.6.b: HUD shoul d identif y best practices among H UBs and FHA Ps 

concerning community outreach, intake, case processing, 

investigation, and cause determination and require HUBs and 

FHAPs that do not alread y do so to u se them. 

Recommendation IV.B.6.c: Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not 

depend on place of residence, or should assume greater central 

authority over the Title VIII complaint process. 

7. Disability Caseloads at State and Local Agencies 

Disability claims have represented a somewhat smaller percentage of the caseload of state 

and local FHAPs, as demonstrated by Chart IV-6.85 

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 

65

While no single factor can explain why a smaller percentage of disability complaints is 

filed with FHAPs than with HUD, NCD believes that a relatively high number of disability 

complaints are filed against public housing authorities and other entities governed by Section 504 

of the Rehabilitation Act, making it more likely that complaints are dually filed as Title VIII and 

Section 504 complaints, and are therefore more likely to be retained by HUD for investigation 

under both statutes. 

As with HUD, the performance of FHAPs differs widely by region.86 From FY 1990 

through FY 2000, the strongest performers were San Francisco, Atlanta, and Chicago. This may 

be explained by the fact that these regions have the largest populations served by FHAPs. The Ft. 

Worth and Philadelphia FHAP regions have populations with higher than average rates of 

disability in the population, but similar to their HUD regional counterparts, they have subpar 

records in terms of disability complaints. The New York region did not have a certified FHAP 

prior to FY 2000 and represents a relatively small proportion of disability complaints over the 

11-year period. The Denver and Seattle regions have the lowest percentage of disability 

complaints, but also the smallest populations served by FHAPs. 

Finding IV.B.7:	 There are significant differences between the HUBs with 

respect to the percentage of Title VIII complaints alleging 

disability discrimination. Five of the HUBs (Chicago, Atlanta, 

Ft. Worth, Philadelphia, and Kansas City) are consistently 

below the national norm, giving rise to a concern that disability 

issues may not be getting appropriate attention. The Chicago 

HUB, which historically files the greatest number of overall 

fair housing complaints, has been at or below average for 

disability complaints every year since the FHAA was passed. 

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. 

66 
Recommendation IV.B.7.a: HUD should assess the intake process at each HUB and at each 

FHAP to determine whether the historically low number of 

complaints (overall or on the basis of disability) reflects 

impediments for victims of discrimination in using the Title 

VIII admin istrative c omplaint s ystem. 

Recommendation IV.B.7.b: Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not 

depend on place of residence, or should assume greater central 

authority over the Title VIII complaint process. 

8. Issues in Disabili ty Claims an d Complain ts Filed wi th HUD and FHAPs 

Since the passage of the Civil Rights Act of 1968, HUD has kept data on “issues” in 

discrimination cases. In its current form (in place since at least 1988), HUD has used a three-digit 

code and a brief descriptive phrase to classify issues raised in complaints. Obviously, more than 

one issue may arise in a given complaint or claim. HUD and FHAP staff are asked to code each 

case with one or more issues (see Table IV-5). 

Table IV-5: HUD Case Issue Codes 

Code Issue Code Issue Code Issue 

300 Sales 380 Service/Facilities 450 Coercion/818 

310 Rental 390 Poster 460 Zoning/Land Use 

320 Advertisement 400 Refusing Insurance 470 Design/ 

Construction 

330 False 

Representation 

410 Steering 480 Criminal/901 

340 Blockbusting 420 Redlining 490 Familial Status 

350 Financing 430 Otherwise Deny 

Housing 

500 Reasonable 

Modification 

360 Brokerage 440 Other 510 Reasonable 

Accommodation 

67

Allegations of disability discrimination come in many different forms, some of which are 

similar to other discrimination claims and some of which are unique to disability. In the former 

category are such frequently cited issues as refusal to rent or sell (Code 300 or 310 below); 

discrimination in the “terms, conditions or privileges of sale or rental of a dwelling, or in the 

provisions of services and facilities in connection therewith” (Code 380); or 

coercion/intimidation (Code 450). As with discrimination on other bases, these allegations can be 

proven with evidence of intentional discrimination or of disparate impact on a protected class. 

With the passage of the FHAA, however, people with disabilities also enjoy protection 

against other acts and omissions that are specific to disability status. Beginning in 1990, HUD 

purported to track three categories that are virtually unique to disability: (1) noncompliance with 

design and construction requirements (handicap)(Code 470); (2) failure to permit reasonable 

modification (Code 500); and (3) failure to make reasonable accommodation (Code 510). These 

do not require proof of intentional discrimination or disparate impact and are therefore arguably 

less complicated to investigate. HUD also uses a fourth category–“Using ordinances to 

discriminate in zoning and land use” (Code 460)–that often but not always involves disputes 

affecting group homes for people with disabilities. 

Before FY 1996, because of the insufficiency of HUD’s data collection systems and lack 

of oversight concerning how cases were coded at intake, these disability-specific categories were 

not often cited. Pursuant to HUD guidance, beginning in FY 1996, HUD and FHAPs made 

greater use of disability-specific categories. It is possible, therefore, to analyze in greater detail 

the specific types of discrimination claims embedded in these complaints. After HUD adopted its 

current data collection system–the Title VIII Paperless Office Tracking System (TEAPOTS)–and 

provided technical assistance and oversight concerning its use, frontline intake staff at HUD and 

at FHAPs have made much greater use of the disability-specific categories.87 

The distribution of HUD cases across issue codes is displayed in Table IV-6. 

87 As expected, these developments have been accompanied by significant declines in the use of 

Codes 310, 380, and 450, mentioned in the text. 

68 
Table IV-6: HUD Cases Involving Disability Claims 

FY 1996 FY 1997 FY 1998 FY 1999 FY 2000 

Total Complaints Alleging 

Disability Discrimination 

622 650 727 919 828 

Zoning 42 37 51 38 69 

6.7% 5.6% 7.0% 4.1% 8.3% 

Design and Construction 27 81 137 203 76 

4.3% 12.4% 18.8% 22.0% 9.1% 

Reasonable Modification 0 10 17 36 30 

0% 1.5% 2.3% 3.9% 3.6% 

Reasonable 11 100 236 317 345 

Accommodation 1.7% 15.3% 32.4% 34.4% 41.6% 

Similar changes in FHAP record keeping have yielded similar results, as shown in Table 

IV-7. 

Table IV-7: FHAP Cases Involving Disability Claims 

FY 1996 FY 1997 FY 1998 FY 1999 FY 2000 

Total Complaints Alleging 

Disability Discrimination 

956 1,091 1,038 1,155 1,541 

Zoning 2 4 3 3 14 

* * * * 1.0% 

Design and Construction 28 45 78 73 139 

2.9% 4.1% 7.5% 6.3% 8.8% 

Reasonable Modification 0 5 11 29 57 

0% * 1.0% 2.5% 3.6% 

Reasonable 0 41 113 315 594 

Accommodation 0% 3.7% 10.8% 27.2% 38.5% 

*–negligible in percentage terms 

69 
The sudden upsurge in reasonable accommodation claims between FY 1996 and FY 2000 

might be attributable to more widespread use of TEAPOTS, closer attention by HUD and FHAP 

supervisory staff to properly classifying such claims, or the fact that more people with disabilities 

are effectively articulating requests for reasonable accommodation. 

Finding IV.B.8:	 Among HUD and FHAP disability complaints, reasonable 

accommodation is the most frequent issue, representing 41.6 

percent of HUD cases an d 38.5 percent of FHAP cases in FY 

2000. Design and construction accessibility issues rank next 

(9.1 percent of HUD cases and 8.8 percent of FHAP cases).

C. Case Outcomes 

HUD and FHAPs use four primary methods of closing fair housing complaints: (1) 

administrative clos ure, (2) conciliation, (3) no cause finding, an d (4) cause fi nding.88 The 

following sections analyze HUD data with respect to each type of case outcome. 

1. Cases Administratively Closed 

Through FY 1993, more than 40 percent of all HUD complaints were ended by 

administrative closure, a catch-all category used by investigators when they could not complete 

the investigation of a case. HUD became concerned about the frequent use of this category and in 

September 1994 issued very explicit guidance discouraging the use of administrative closures.89 

FHEO subsequently incorporated this guidance into HUD’s Title VIII Complaint Intake, 

Investigation, and Conciliation Handbook (8024.01), which cautions investigators and 

supervisor s as follows : “Administrative closures shoul d be used neither casually nor routinely. It 

is critical that cases not be closed administratively except under specific circumstances” (Chapter 

9, Section 9-1). Those limited circumstances include only situations in which an investigation 

88 In cases where a cause finding is made, HUD and the FHAPs provide additional closing codes 

that 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). 

70

cannot be completed because the complainant cannot be located or will not cooperate, where the 

complainant has decided not to proceed, or when a trial has commenced. 

HUD reinforced this guidance by incorporating performance measures for rating FHEO 

managers and supervisors. From 1995 to 1996, supervisory personnel whose offices exceeded an 

administrative closure rate of 15 percent received lower scores on their performance appraisals. 

In FY 1997, the target rate dropped to 13 percent.90 By enforcing accountability, HUD was able 

to reduce agencywide administrative closure rates from 48 percent in FY 1993 to 15 percent in 

FY 1997.91 When the performance measures were deleted from appraisals in FY 1998, the 

administrative clos ure rate went back up to 19 percent. In FY 1999 it was 20 percent and in FY 

2000, it had gone up to 21 percent. Throughout the study period, disability complaints are 

somewhat less likely than other HUD complaints to be coded as administrative closures.92 

Staffing, management, and morale problems, which are described in greater detail in 

Section VI of this report, are the most likely cause of this upsurge in administrative closures. 

Understaffing also has exacerbated the “aged cases problem”; as cases age, they become more 

difficult to investigate and are more likely to be closed administratively. 

Finding IV.C.1:	 By enforcing accountability, HUD was able to reduce 

agencywi de adminis trative clo sure rates f rom 48 percen t in FY 

1993 to 15 percent in FY 1997. When the performance 

measures were deleted from appraisals in FY 1998, the 

administra tive closu re rate went back up to 19 percent. In FY 

1999, it was 20 percent, and in FY 2000, it had gone up to 21 

percent. 

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. 

71 
Recommendation IV.C.1:	 HUD should establish and enforce accountability and job 

performance standard s modeled on those in place durin g FY 

1995 through FY 1997 to ensure that the administrative closure 

method is not overused. 

During the first two fiscal years (FY 1991 and FY 1992) that FHAP agencies handled 

disability complaints in appreciable numbers,93 these complaints experienced a significantly 

higher rate of administrative closure than the typical FHAP complaint. FHAPs have been 

somewhat more successful than HUD in the past three fiscal years in reducing the percentage of 

cases closed administratively.94 Since FY 1993, FHAPs have used administrative closure less 

often for disability cases than for cases in general, mirroring the practice at HUD. 

2. Cases Conciliated 

Prior to 1989, conciliation of housing discrimination complaints was one of the very few 

techniques available to HUD and FHAP agencies.95 After passage of the FHAA—and the 

expansion of enforcement options—conciliation remains the most frequently used method of 

resolving complaints. By statute, HUD and FHAPs must attempt to bring complainants and 

respondent s together t o try to concil iate fair ho using compl aints (42 U .S.C. §36 10(b)). Alt hough 

such conciliation is voluntary (and either side may refuse to conciliate without prejudicing its 

case), many parties choose this route because it is comparatively inexpensive and quick 

compared with an administrative hearing or litigation.96 HUD devotes a chapter of its intake 

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 

72

manual to the mechanics of conciliation.97 If conciliation fails, HUD (or the FHAP) continues its 

investigation and eventually must determine whether there is reasonable cause to believe that 

discrimination has occurred. 

Chart IV-7 illustrates the extent to which HUD complaints have been closed through 

conciliation agreements. 

In FY 1989, more than half of all HUD complaints were resolved through 

conciliation. Conci liation as a means of clo sing HUD cases dropped below 35 percent in FY 

1991, FY 1992, and FY 1993 before rising dramatically in FY 1994 (to 42 percent) and FY 1995 

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, Headquarter s Office Dire ctors, and Off ice of Investigat ions, from Rober ta Achtenber g, 

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. 

73 
(to 52 percent). During every year since FY 1989, disability cases have been more likely than 

other cases to be closed by conciliation. During many years, the conciliation rate for disability 

cases is a full 10 percentage points higher than for all other protected classes. 

There is no discernible historical trend showing divergence in conciliation rates among 

the HUBs. With respect to disability, the San Francisco and Chicago HUBs have had the largest 

number of conciliated complaints resulting in monetary compensation. 

Conciliation is used somewhat less often by FHAPs (inching above 40 percent of all 

closures only in FY 1994). While FHAP disability complaints are more likely than FHAP 

nondisability complaints to be resolved by conciliation, FHAPs appear to rely on conciliation 

somewhat less than HUD, both in terms of disability cases and other cases (see Chart IV-8). 

It is not possible to isolate a single explanation for the greater use of conciliation in 

disability cases compared with all other cases. It may be that a greater percentage of disability 

cases involve single issues or a misunderstanding between home seekers with disabilities and 

housing providers over the scope of the FHA. Where such misunderstandings result in a 

74

complaint being filed, conciliation may be the most effective way to educate both parties and 

resolve disputes quickly and cheaply. 

Alternatively, the phenomenon may be explained by the availability of more sophisticated 

disability advocates who help people with disabilities use the conciliation process to achieve 

positive solutions to disputes. This theory is borne out in part by reviewing data on conciliated 

disability complaints that involve monetary compensation to complainants. Aggregating HUD 

and FHAP complaints demonstrates that the Chicago and San Francisco regions had the highest 

number of such cases. These regions have large numbers of sophisticated disability advocates. 

The Kansas City and Ft. Worth regions also have strong disability advocates and a reasonably 

large number of conciliated disability complaints with monetary compensation but low levels of 

per-case compensation.98 Further investigation of this phenomenon is warranted but is beyond the 

scope of this report. 

Finding IV.C.2: During every year since FY 1989, disability cases have been 

significantly more likely than other cases to be closed by 

conciliation. While FHAP disability complaints are more likely 

than FHAP nondisability complaints to be resolved by 

conciliation, FHAPs appear to rely on conciliation somewhat 

less than HUD, in terms of both disability cases and other 

cases. 

3. No Cause Findings 

If an allegation survived HUD’s claims assessment process and matured into a complaint, 

it was investigated pursuant to the FHA. If conciliation fails and reasonable cause is found to 

believe that a violation of the FHA has occurred, HUD (or the FHAP) is required to issue a 

formal charge of discrimination.99 If reasonable cause is not found, the complaint must be 

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-thirds of the 

national average, and Ft. Worth awards are approximately 20 percent of the national average. 

99 42 U.S.C. §3610(g)(2). 

75 
dismissed, and HUD is required to issue a public notification of the dismissal.100 Despite the 

dismissal, the complainant retains his or her right to pursue the dispute through private litigation, 

but at substantially greater difficulty and expense than if the agency finds reasonable cause. 

Chart IV-9 shows the percentage of “no cause” cases for HUD from FY 1989 through FY 

2000, comparing all HUD complaints to disability complaints. 

For the first several years after passage of the FHAA, HUD no cause findings did not 

exceed 20 percent of all closures. Then they reached 27 percent in FY 1994 and 23 percent in FY 

100 42 U.S.C. §3610(g)(3). 

76 
1995. In FY 1996—the very year HUD adopted its claim/complaint dichotomy—no cause 

findings spiked to 45 percent of all closures, and they remained at 43 percent in FY 1997. This 

result is counterintuitive, as the claims process was designed to weed out allegations of 

discrimination that could not be fully documented. One would have expected that weeding out 

weaker cases would have led to a decline in the percentage of no cause findings. Rather, while 

HUD complaints dropped dramatically from FY 1995 to FY 1996 (from 3,134 to 2,056), the 

percentage of no cause closures nearly doubled (from 23 percent to 45 percent). 

Two major factors expl ain the dramatic rise in no cause findings in FY 199 6 and FY 

1997. First, it was during those fiscal years that the effect of HUD’s strict guidance (and related 

performance measures) concerning administrative closures was first implemented and closely 

monitored. Investigators could no longer close large numbers of cases under the old method and 

were required to determine whether cause existed. Second, as the number of FHEO enforcement 

staff has decreased,101 the average age of HUD cases has increased dramatically, to nearly 500 

days.102 As cases age, it becomes harder to marshal the evidence necessary to support a cause 

finding. As a result of these two pressures, it is likely that FHEO accepted the spike in no cause 

findings as a way to clear out its inventory of old cases. 

Since FY 1989, disability complaints at HUD have been somewhat less likely than the 

average complaint to be dismissed as having no cause. That may result from the fact that HUD 

disability complaints are more lik ely to be resolv ed earlier in the proces s, especial ly through 

conciliation, and that fewer nonmeritorious cases are left at the cause/no cause decision point. 

FHAPs have had a very different history with respect to no cause findings. From FY 1989 

through FY 1992, FHAPs “no caused” more than 45 percent of all cases. The percentage dropped 

dramatically in the FY 1993 (to 28 percent), but has continued to rise each year since, reaching 

more than 50 percent during FY 2000 (see Chart IV-10). For some of the reasons discussed 

above, disability complaints are somewhat less likely than the average complaint to be closed 

101 See Secti on VI. 

102 See Chart IV-14. 

77 
with a no cause finding. By comparison, HUD closes a significantly smaller percentage of 

complaints with no cause. 

Finding IV.C.3.a: Since FY 1996, HUD has closed at least one-third of its 

complaints (and FHAPs have closed at least 41 percent) with a 

finding that no cause existed to believe discrimination had 

occurred. 

Finding IV.C.3.b: Since FY 1996, disability complaints were closed with a finding 

of no cause at a slightly lower rate. This may result from the 

fact that HUD disability complaints are more likely to be 

resolved earlier in the process, especially through conciliation, 

and that fewer nonmeritorious cases are left at the cause/no 

cause decision point. 

78

4. Cases in Which HUD Finds Cause to Believe Discrimination Has Occurred 

HUD may, after conducting an investigation of a fair housing complaint, find reasonable 

cause to believe that discrimination has occurred. This threshold finding does not determine 

liability on the part of the respondent; rather, it invests the complainant with a set of rights to 

participate in an administrative or judicial hearing to determine liability (and, if relevant, to 

award monetary damages and other relief). The decision of whether to issue a charge is of critical 

importance to the complainant. It determines whether the case will proceed to trial or will be 

dismissed. The number of charges filed also serves as a barometer of HUD’s willingness to find 

and prosecute discrimination. 

Chart IV-11 graphically displays the gradual decline in overall cause findings by HUD 

and FHAPs since FY 1990. 

The absolute number of charges in all HUD cases declined from 213 in FY 1995 to 74 in 

FY 1997. The number went up to 82 in FY 1998 and to 115 in FY 1999 before declining to 96 in 

FY 2000. 

79

For a number of years, outside observers have criticized the small number of cause 

determinations issuing from HUD.103 One commentator has said: 

What is most remarkable about the surge in complaints received by 

HUD from 1995 to 1997 is that it has been accompanied by a 

decrease in the nu mber and percentage of cause findings. ... It 

appears that HUD investigators and regional counsel have 

inexplicably raised the bar for complainants to have their case 

heard by a fact finder, whether it be an administrative law judge or 

a fed eral jury.104 

This finding is supported by Chart IV-12. 

During the year immediately following passage of the FHAA, HUD found cause in just 1 

percent of all cases and in just under 1 percent of disability cases. Since then, disability 

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. 

80 
complaints have lagged significantly behind the average HUD case in probability of cause 

finding. 

Finding IV.C.4.a: Since FY 1990, complaints of disability discrimination have 

lagged significantly behind the average HUD case in 

probability of cause finding. 

Finding IV.C.4.b: Of the 12,017 disability complaints filed with HUD from 1990 

through 2000, the agency found reasonable cause to believe 

discrimination had occurred in just 284 cases, or 2.4 percent of 

all cases. 

Finding IV.C.4.c: When HUD finds cause in only 1 out of 40 disability cases, it 

may be sending a message to the disability community that 

victims of disability discrimination are unlikely to secure relief 

through filing a HUD complaint. 

Recommendation IV.C.4.a: HUD should take steps to improve its credibility with disability 

groups and advocates by aggressively pursuing disability 

discrimination complaints and widely publicizing favorable 

results. 

The number of cause findings varies dramatically from region to region.105 Table IV-8 

demonstrates that variance during the past three fiscal years. 

105 CCCR 1997, note 104, pp. 221, 224: “There remains enormous variat ion between the HUD 

enforcement r egions in the pr ocessing of co mplaints–th e percentage o f charge and no c harge 

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 and in the administration of the fair housing 

complaint process generally.” 

81 
1

2

3

4

5

6

Table IV-8: HUD Cause Findings, All Cases, Fiscal Years 1998–2000 

FY 1 2 3 4 5 6 7 8 9 10 Total 

1998 1 13 7 2 14 8 11 2 4 20 82 

1999 12 24 2 8 23 3 7 20 0 16 115 

2000 3 28 1 6 17 3 6 9 15 8 96 

Even with the transfer of New York State’s Title VIII complaints to the New York FHAP, 

the New York HUB has consi stently charged more cases than any other HUB. The Chicago 

HUB, despite the fact that most of its region is served by FHAPs, has also consistently charged a 

large number of complaints. One would expect the Philadelphia HUB to be low because the 

region is entirely served by FHAPs. The most troubling findings are with respect to the Boston, 

Atlanta, Ft. Worth, and San Francisco HUBs, all with very few cause findings. Among other 

examples, during FY 1999, the San Francisco HUB did not find cause in a single case, and Ft. 

Worth “caused” only three cases. During FY 2000, the Boston and Ft. Worth HUBs found cause 

in only three cases each. 

Finding IV.C.4.d:	 HUD cause findings have declined dramatically, from 325 in 

FY 1994 to 96 in FY 2000. 

There are also significant differences among HUBs concerning the number of disability 

complaints and the percentage of cause findings in disability cases since the passage of the 

FHAA (see Table IV-9). 

Table IV-9: HUD Disability Complaints and Cause 

Determinations Thereon (1990–2000) 

HUB Complaints Cause Findings Cause as % of Complaints

 675 15 2.2 

1,173 57 4.9 

1,124 12 1.0 

1,085 30 2.8 

1,702 42 2.5 

1,452 22 1.5 

82

HUB Complaints Cause Findings Cause as % of Complaints 

7 1,237 11 0.9 

8 841 18 2.1 

9 1,670 54 3.2 

10 1,058 23 2.2 

National 12,017 284 2.4 

In absolute numbers and in terms of percentage of caseload, the New York HUB ranked 

highest in disability complaints with cause findings (57 cause findings, or 4.9 percent of cases) 

and the Kansas City HUB ranked lowest (11 cause findings, or 0.9 percent of cases). 

Finding IV.C.4.e:	 There are significant differences among HUBs concerning the 

overall number of disability complaints and the percentage of 

cause findings in disability cases since FY 1990. In absolute 

numbers and in terms of percentage of caseload, the New York 

HUB ranked highest in disability complaints with cause 

findings over the 11-year period (57 cause findings, or 4.9 

percent of its disability cases) and the Kansas City HUB 

ranked lowest (11 cause findings, or 0.9 percent of its disability 

cases). 

Finding IV.C.4.f:	 Such regional variations are attributable to cultural 

differences between regions of the country and personnel 

assigned to the respective HUBs. The management style 

currently employed by Headquarters FHEO tends to reinforce 

significant regional variations in enforcement practice, 

resulting in different treatment of disability (and other) 

complaints depending on the state in which a complainant lives 

and wheth er the complaint is han dled by HU D or by an FHA P. 

83

Finding IV.C.4.g:	 Victims of discrimination are discouraged from using the Title 

VIII administrative process at HUD and FHAPs for a variety 

of reasons, including an unwelcoming intake process, 

inordinate delays in assessing and investigating claims, 

relatively small monetary awards achieved through HUD and 

FHAP conciliation, and a generalized sense that the 

administrative process rarely achieves results that outweigh 

the personal costs of filing a claim or complaint. 

Recommendation IV.C.4.b: Congress should require HUD to conduct a study to determine 

why the absolute number and percentage of cause findings 

(especially those in disability cases) have declined so 

precipitously, and why there are such wide variations on these 

indicators among the HUBs. 

Recommendation IV.C.4.c: Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not 

depend on place of residence, or should assume greater central 

authority over the Title VIII complaint process. 

As noted, FHAPs essenti ally handled no disability claims prior to FY 1992. From FY 

1992 through FY 2000, FHAPs charged 347 of the 8,683 disability cases they handled, or 4 

percent of total complaints (see Chart IV-13). This rate is considerably higher than the 2.4 

percent rate for HUD-processed disability complaints for the same period. As shown in Chart IV13, disability complaints experience a greater relative likelihood of being cause cases at FHAPs 

than at HUD. 

84

Finding IV.C.4.g: FHAP cause findings have declined from 545 in FY 1990 to 158 

in FY 2000. 

Finding IV.C.4.h: From FY 1992 through FY 2000, FHAPs charged 347 of the 

8,683 disability cases they handled, or 4 percent of total 

complaints. This rate is 40 percent higher than the rate for 

HUD-processed disability complaints for the same period. 

Recommendation IV.C.4.d: HUD should conduct an analysis to determine why FHAPs, on 

average, charge 40 percent more of the disability complaints they 

handle. HUD should identify and distill the practices that have 

led to this success and require their use by HUDs and FHAPs that 

do not alre ady employ t hem. 

This 40 percent figure, however, masks wide variations from region to region. For instance, 

FHAPs in the Boston region found cause in 8.7 percent of disability complaints, and Philadelphia 

85

area FHAPs found cause in 8.0 percent. By contrast, Ft. Worth area FHAPs found cause in just 0.6 

percent of all disability complaints, and those in the Seattle and Denver regions found cause in 2.5 

percent and 2.7 percent of all disability cases, respectively, as shown in Table IV-10. 

Table IV-10: FHAP Disability Complaints and Cause 

Determinations Thereon (1990–2000)

 HUB Complaints Cause Findings % of Cause Findings 

1 790 69 8.7 

2 145 7 4.8 

3 912 35 3.8 

4 1,412 33 8.0 

5 1,224 85 6.9 

6 907 6 0.6 

7 840 34 4.0 

8 515 14 2.7 

9 1,541 54 3.5 

10 397 10 2.5 

National Total 8,683 347 4.0 

Finding IV.C.4.i:	 There are wide and troubling variations from region to region 

among the FHAPs. For instance, Boston region FHAPs found 

cause in 8.7 percent of disability complaints, and Philadelphia 

area FHAPs found cause in 8.0 percent. By contrast, Ft. Worth 

area FHAPs found cause in 0.6 percent of all disability 

complaints, and those in the Seattle and Denver regions found 

cause in 2.5 and 2.7 percent of all disability cases, respectively. 

Recommendation IV.C.4.e: Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not 

depend on place of residence. Alternatively, Headquarters 

should assume greater central authority over the Title VIII 

complaint process. 

86

D. Case Processing Times 

1. Statutory and Regulatory Constraints 

The FHA requires HUD to complete its investigation of fair housing complaints “within 

100 days after the filing of the complaint...unless it is impracticable to do so” (42 U.S.C. 

§3610(a)(1)(B)(iv)). HUD implemented its claims process in FY 1996, apparently in order to 

ensure better front-end assessment of allegations of discrimination and more efficient use of 

resources devoted to investigating jurisdictional complaints. In order to work properly, the claims 

process must adhere to strict time lines, both to ensure that complainants don’t have their cases 

delayed and to achieve the efficiencies HUD sought in the first place. 

The claims process was designed to streamline the investigative process and ensure that 

HUD devoted its scarce resources to cases that merited full investigation. In its first year of 

operation (FY 1997), the new process had a dramatic impact: 69.5 percent of all closures were 

dismissed as claims.106 That pattern has persisted in subsequent years: for FY 1998 through FY 

2000, the fi gures are 77 perc ent, 74 perc ent, and 71 perc ent, res pect ively.107 

The adoption of the claims procedure has the inherent possibility of delaying resolution of 

fair housing cases. FHEO makes it clear that time spent processing a claim does not count toward 

the 100 days in which FHEO is mandated to complete its investigation. As a result of concerns 

about the timeliness issue, FHEO established a new time frame in May 1997 of 25 days for 

assessing claims and determining whether they would be converted to complaints or dismissed. 

Unfortunately, staffing and management reductions at FHEO have meant that many HUBs are 

failing to complete the assessment process on time.108 

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. 

87 
Congress intended the administrative process under the FHA to be “economical and 

efficient,” and to provide unrepresented victims of discrimination with a speedy and 

compreh ensive remedy.109 In fact, many claimants and complainants experience the system as 

hostile an d unwelcoming.110 

In 1998, HUD’s inspector general reported on an audit of cases in three HUBs and three 

FHAPs. The audit sampled 117 complaints (all of which had matured from claims) and found 

that in 31 percent of cases, the 25-day assess deadline was not met. In 17 percent of cases, HUD 

had not mailed a perfected complaint to the complainant for signature with 50 days from 

receipt.111 At the close of FY 1997, the inspector general found that the HUBs had 856 open 

claims with an average age of 62 days and noted that this “inordinate delay” does not even count 

toward the statutory requirement that HUD make a cause determination within 100 days of 

filing.112 

Problems with the claims assessment process and with investigation of complaints have 

arisen, in part, because FHEO has lacked sufficient enforcement staffing and has not replaced the 

expertise it has lost through retirement and resignations.113 

2. Actual Exp erience of C omplaints and Claims 

Significantly, HUD met the 100-day statutory processing goal only in FY 1989, the first 

year after passage of the FHAA. It came close to meeting the goal in FY 1993, but processing 

times have climbed ex ponentially since then, with compl aints duri ng FY 2000 tak ing an average 

of 500 days to reach closure or cause determinations. The U.S. Commission on Civil Rights 

identified “aged cases” (those that have exceeded the 100-day threshold) as a significant problem 

109 House Report, p. 2,178. 

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

111 OIG, pp. 10–11. 

112 Ibid. 

113 See Secti on VI. 

88 
as early as FY 1991.114 The HUD inspector general noted that delays in investigating cases 

caused serious, and perhaps irreparable, harm to complainants and respondents.115 In 1999, the 

Citizens’ Commission on Civil Rights again drew public attention to the aged case problem.116 

HUD data express the time it has taken the agency to process complaints of housing 

discrimination. Table IV-11 shows the average age of open disability complaints at the end of 

each fiscal year since passage of the FHAA. 

Table IV-11: Average Age (in Days) of Open HUD Disability 

Complaints, by Year 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 

National 

Average 

70 153 116 132 154 197 262 318 336 349 374 390 

Finding IV.D.2.a:	 At the end of FY 2000, a victim of disability discrimination 

could expect to have waited 13 months since the filing of a 

complaint and to have no clear indication how soon the 

complaint might come to a hearing or otherwise be resolved. 

The average age of open complaints may vary somewhat from the age of cases that have 

been closed, especially when the agency has directed its efforts at closing some of the oldest 

cases in its inventory. The data and charts on the following pages use “closed case” data to 

demonstrate the growing problem with aged cases. Closed case data from HUD data through FY 

2000 indicate that the aged case problem is accelerating (see Chart IV-14). 

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 compla ints, leavin g a backlog at the en d of 1996 of 1,45 9 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.” 

89 
HUD responded to this issue by stating that “everywhere that average age is discussed, 

the direct negative impact of the claims on the age of remaining HUD complaints is not 

addressed. The report simply states that the average time has increased dramatically; however, if 

claims were averaged in, the overall case age would be much less. Comparing average age during 

the claims years to preclaims years is a comparison of apples and oranges, and there is no 

recognition of this. Additionally, the explanation of not including claims time in complaints 

aging has never been included in discussions” (FHEO staff comments on National Council on 

Disability draft report, “Comments Regarding Data,” p. 3). The exclusion of claims (also known 

as “short cases” because they are typically closed before they are considered complaints) would 

drive up average case processing t ime, but the brunt of t hat change would have been felt in FY 

1996, the first year the claims process was used and therefore the first year the average would 

have been inflated by the exclusion of short cases. After the institution of the claims process, 

average processing time went from 377 days to 497 days, an increase of 30 percent, calling into 

question HUD’s explanation. 

Finding IV.D.2.b: The average age of HUD complaints, measured from filing to 

date of closure, has risen from 96 days in FY 1989 to 137 days 

in FY 1992 to 497 days in FY 2000. 

Finding IV.D.2.c: The aging of complaints has occurred as the number of 

complaints investigated by HUD has declined by 70 percent. 

90

Recommendation IV.D.2: HUD should analyze its management practices to determine 

why case handling has become so inefficient, and should report 

its findings to Congress and the public. 

As borne out by Chart IV-13, disability claims, on average, have reached closure or cause 

determinations somewhat faster during each of the past 12 fiscal years. Even so, during the past 

four fiscal years, HUD has taken roughly 300 days to investigate such claims, or three times 

longer than prescribed by Congress. 

HUD’s Office of Inspector General (OIG) has pointedly said that “FHEO has not 

achieved its mission under the Fair Housing Act (Act) to investigate and resolve complaints of 

discrimination promptly.”117 The same report went on to make detailed findings about this 

phenomenon and its causes: 

Insufficient supervisory oversight of its investigators and 

inadequate and inconsistent use of its management systems were 

the primary reasons that FHEO was unable to fully achieve its 

mission to promptly investigate and resolve discrimination 

complaints. ... FHEO has not taken sufficient action to assess failed 

controls that have allowed at least 70 percent of the [HUB] and 

FHAP investigations closed in the past two years to exceed 100 

days.118 

In 1997, the Citizens’ Commission on Civil Rights spelled out how a dysfunctional 

enforcement system undermines public confidence in the Fair Housing Act: 

HUD’s backlog is again growing....[The backlog] serves as an 

important indicator to complainants and fair housing advocates of 

the likelihood of a prompt adjudication of the complainant’s 

grievance. This, in turn, may well determine whether the 

complainant will decide to make use of the federal enforcement 

process.119 

Two years later, concluding that “...the real problem is HUD’s investigators’ inability to 

identify relevant facts, analyze evidence, and apply the law in a reasonably expeditious 

117 OIG, p. 6. 

118 OIG, p. 13. 

119 CCCR 1997, p. 221–22. 

91 
fashion,”120 the Citizens’ Commission on Civil Rights describes the effect of an administrative 

enforcement system that is not functioning within the time frames mandated by Congress: 

These [aged case] data are significant, for they serve as an 

important indicator of the likelihood that a complainant will 

receive a prompt adjudication. A complainant is entitled to know 

this information before deciding whether to use the government 

enforcement process or pursue a Fair Housing Act claim in federal 

or state court....[S]ince 1988, HUD has routinely allowed 

complaints to stagnate–many times for as much as a year past the 

100-day limit. These delays are devastating. Witnesses disappear or 

die, memories become hazy, complainants lost heart, and 

defendants complain loudly at trial about the lack of a speedy and 

fair adjudicatory process.”121 

Finding IV.D.2.d: The aged case backlog serves as an important indicator to 

complainants and fair housing advocates of the likelihood of a 

prompt adjudication of the complainant’s grievance. This, in 

turn, may well determine whether the complainant will decide 

to make use of the federal enforcement process. 

Finding IV.D.2.e: At the close of FY 1998, 69 percent of HUD’s pending 

complaints had exceeded the statutory 100-day maximum for 

investigation and d etermination of cause. At the close of FY 

1998, 78 percent of HUD’s pending complaints had gone past 

100 days. At the close of FY 1998, 68 percent of HUD’s pending 

complaints had surpassed the deadline. During these three 

fiscal years, the Denver HUB was the worst performer (81 

percent of cases older than 100 days) and Kansas City was the 

best (44 percent of cases older than 100 days). 

Finding IV.D.2.f: FHAP processing time to closure for all complaints came close 

to meeting the 100-day mandate during FY 1989 and remained 

below 140 days through FY 1993. Processing times rose 

120 CCCR 1999, p. 237. 

121 Ibid., pp. 233, 234. 

92 
steadily through FY 1997 (when they reached 317 days). 

Thereafte r, they hav e declined nearly 30 p ercent; dur ing FY 

2000, FHAP complaints took an average of 220 days from 

filing to closure or cause determination. 

FHAPs seem to be doing a better job concerning case processing times, but still have 

routinely exceeded the 100-day maximum since FY 1993 (see Chart IV-15). 

The 1998 Audit Report of the Inspector General also found that inadequate oversight of 

FHAP agencies contributes to the aged case problem: 

We found gaps of inactivity in about 70 percent of these cases 

where no investigative work was being done....The FHAP agency 

in California routinely sets investigations aside and would not do 

any investigative work until just weeks prior to reaching the one 

year statute of limitations for issuing accusations against 

respondents.122 

Finding IV.D.2.g:	 FHAPs have been able to process fair housing complaints more 

quickly than HUD. In the last four years for which data are 

available, FHAPs have investigated and closed cases about 100 

days faster than HUD. With respect to disability claims, 

122 OIG, p. 17. 

93 
FHAPs work more quickly as well, averaging 75 fewer days 

than HUD per disability complaint. 

During August 2001, well after the close of the period analyzed in this report, NCD 

became aware of a concerted effort by HUD to close out aged cases in the HUD and FHAP 

inventories as quickly as possible.123 While applauding the spirit of this effort, NCD cautions that 

care should be taken in closing such cases in a manner that fully respects the rights of 

complainants and that cases should not arbitrarily be assigned an administrative closure or no 

cause determination simply to close them out. Although no clear guidance has been given to the 

field on these matters, NCD expects that it will be forthcoming so that no victim of housing 

discrimination has his or her rights extinguished. 

3. Regional Variations on Aged Cases 

HUBs are required to provide information on the number of complaints that have not 

been investigated within the 100-day time frame mandated by Congress. The charts in Appendix 

IV-3 demonstrate that the Chicago HUB has consistent problems in meeting the deadline, while 

the Atlanta and Ft. Worth HUBs have had intermittent problems. 

Table IV-12 provides another measure of HUD’s aged case problem, by HUB and by 

fiscal year. 

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 titled “Effective Case Management Techniques 

and Dealing with Aged Cases,” on August 9, 2001. 

94 
Table IV-12: Average Age of Open HUD Disability Complaints, 

by HUB and by Year 

HUB 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 

1 52 125 84 135 250 226 96 119 160 296 397 179 

2 65 156 102 100 162 159 303 263 317 422 470 571 

3 68 179 72 80 190 347 477 508 508 471 212 255 

4 60 179 199 232 113 145 291 364 373 403 291 312 

5 82 174 150 239 167 169 186 289 355 331 364 414 

6 85 140 90 131 171 205 231 260 268 192 209 293 

7 66 101 76 90 89 96 163 233 260 145 153 183 

8 60 114 144 117 121 137 300 407 403 568 558 678 

9 70 142 82 104 145 268 263 328 331 342 555 669 

10 70 180 177 126 174 268 293 330 398 334 373 279 

National 

Average 

70 153 116 132 154 197 262 318 336 349 374 390 

FHAP processing time to closure or cause for all complaints came close to meeting the 

100-day mandate during FY 1989 and remained below 140 days through FY 1993. Processing 

times rose steadily through FY 1997 (reaching 317 days). Thereafter, they have declined nearly 

30 percent; during FY 2000, FHAP complaints took an average of 220 days from filing to closure 

or cause determination. 

HUD suggests that “[t]he FHAPs’ average age of complaints and its ability to close 

complaints more quickly is directly related to HUD’s handling the intake process on all cases 

referred to the agencies. In FY 2000, of the 11,211 cases received, HUD received 8,231 (73 

percent) and FHAP agencies received 2,980. FHAP agencies processed 2,980 complaints because 

1,990 of the cases that HUD received (and on which it did intake) were then referred to the 

agencies for completion” (FHEO staff comments on National Council on Disability draft report, 

“Comments Regarding Data,” p. 8). Other data in this report show that FHAPs received 4,914 

cases during FY 2000, roughly approximating the figures above (2,980 + 1,990 = 4,970). In other 

words, 40 percent of the complaints received by FHAPs were initially processed by HUD, 

presumably from what would have been considered claims. FHAPs undoubtedly benefited from 

this practice, because they could begin processing the merits of the complaint without having to 

establish the initial jurisdictional elements. But because HUD also processed its own claims 

95

before considering them complaints (and did not count this initial time toward the 100-day limit), 

it had the same advantage as the FHAPs with respect to case processing times. 

With the exception of FY 2000, FHAP disability complaints have been processed 

somewhat faster to closure or cause determination (see Table IV-13). 

Table IV-13: Average Age of Open FHAP Disability Complaints, 

by HUB and by Year 

Region 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 

1 0 0 0 9 56 93 124 165 162 168 178 241 

2 0 0 0 0 0 0 0 0 0 0 0 58 

3 0 0 0 0 157 277 338 417 437 427 332 284 

4 0 0 86 77 195 223 212 214 225 284 375 367 

5 0 228 0 55 125 127 242 338 255 305 292 38 

6 0 0 11 48 104 144 94 114 135 103 139 125 

7 0 0 0 53 80 185 359 419 355 312 303 303 

8 0 0 0 6 110 123 136 222 193 188 176 524 

9 0 0 0 55 118 138 128 156 171 197 200 272 

10 0 0 0 0 0 32 137 283 348 421 288 230 

National 

Average 

0 228 72 58 129 179 224 281 262 268 271 287 

Congress has recently taken a renewed interest in dealing with the problem of aged cases 

at FHAPs. In making recommendations for funding of FHAPs, the House Appropriations 

Committee wrote: “Funding has been provided above the request for case processing and related 

activities to enable FHAP agencies to continue to make progress in reducing the backlog of 

existing cases which remain unsolved for over 100 days.”124 This congressional attention and 

additional funding are remarkable, given that FHAPs in FY 2000 are taking an average of only 

220 days from filing to resolve complaints. It is almost as if Congress is unaware that HUD’s 

aged case problem—at 497 days from filing to closure—is much more critical. 

Finding IV.D.3: Congress appears to be unaware of the scope of HUD’s aged 

case problem and the effect it has on complainants and public 

confiden ce in the ad ministrative enforcement system. 

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

96 
Recommendation IV.D.3:	 Congress should closely scrutinize HUD’s aged case portfolio 

and provide oversight and funding to correct it. 

4. Age to Closure 

As previously mentioned, HUD and the FHAPs use four primary methods of closing fair 

housing complaints: (1) administrative closure, (2) conciliation, (3) no cause finding, and (4) 

cause finding. The following pages analyze case processing times for the last three of these 

categories. At every stage of the process, HUD and the FHAPs are failing to meet the time lines 

set out in the FHA. The 100-day letters referred to tell only a part of the story; once a case 

exceeds 100 days from filing, there are no ongoing requirements that HUD or a FHAP report to 

complainants or respondents about the status of the case. Often, when investigations take more 

than 500 days, the dearth of communication with the parties effectively sends the message that no 

work is being done toward resolving the underlying complaint. 

Finding IV.D.4.a:	 Congress required the HUD Secretary to send the 100-day 

letters only where it was “impracticable” to complete an 

investigation within 100 days, but the drafters of the FHAA did 

not anticipate that such a large percentage of the inventory 

would exceed the statutory deadlines. At present, the 100-day 

letters are the rule, rather than the rare exception Congress 

intended. In essence, the letters have become a formality 

observed in almost every case. HUD’s intermittent reporting of 

these facts to Congress may have made it more difficult for the 

oversight committees to understand and respond to the aged 

case crisis. 

Finding IV.D.4.b:	 At every stage of the process, HUD and the FHAPs are failing 

to meet the time lines set out in the FHA. The 100-day letters 

tell only a part of the story; once a case exceeds 100 days from 

filing, there are no ongoing requirements that HUD or an 

FHAP report to complainants or respondents about the status 

of a case. Often, when investigations take more than 500 days, 

the dearth of communication with the parties effectively sends 

97

the message that no work is being done toward resolving the 

underlying complaint. 

a. Age to Conciliation 

Even the simplest kind of case, in which both complainant and respondent agree to 

conciliate their differences, has historically taken HUD much longer than 100 days. In fact, the 

use of the claims process—which was supposed to weed out weaker cases and leave more staff 

time to deal with cases that had some merit—caused average conciliation time to swell from 172 

days in FY 1995 (pre-claims process) to 314 days in FY 2000 (see Chart IV-16). 

Through FY 1994, HUD was able to conciliate cases in 150 days or fewer. Beginning in 

FY 1995, the time it took to resolve complaints began to increase dramatically, finally reaching 

314 days in FY 2000. There appears to be no clear correlation between the prevalence of 

conciliations and the time expended to close a conciliated case. For example, in FY 1992, HUD 

successfully conciliated 2,058 cases, or 32 percent of all complaints (582 of these cases alleged 

disability discrimination, representing 33 percent of all such cases). That year, the average age of 

all conciliated cases was less than 100 days. This was accomplished at a time when FHEO had 

309 full-time equivalents (FTEs) devoted to enforcement. In FY 2000, HUD conciliated only 904 

cases, or 41 percent of all complaints (324 of these complaints alleged disability discrimination, 

representing 48 percent of all conciliated cases). The FY 2000 average age of conciliated cases 

was 314 days at a time when HUD had 319 FTEs devoted to enforcement. 

98

During the past two fiscal years, FHAPs have been able to conciliate cases four to five 

months faster than HUD (see Chart IV-17). 

Finding IV.D.4.c: Through FY 1994, HUD was able to conciliate cases in 150 

days or fewer. Beginning in FY 1995, the time it took to resolve 

complaints began to increase dramatically, finally reaching 314 

days in FY 2000. There appears to be no clear correlation 

between the prevalence of conciliations and the time expended 

to close a conciliated case. For example, in FY 1992, HUD 

successfully conciliated 2,058 cases, or 32 percent of all 

complaints (582 of these cases alleged disability discrimination, 

representing 33 percent of all conciliated cases). That year, the 

average age of all conciliated cases was less than 100 days. This 

was accomplished at a time when FHEO had 309 FTEs devoted 

to enforcement. In FY 2000, HUD conciliated only 904 cases, or 

41 percent of all complaints (324 of these complaints alleged 

disability discrimination, representing 48 percent of all 

conciliated cases). The FY 2000 average age of conciliated cases 

was 314 days, at a time when HUD had 319 FTEs devoted to 

enforcement. 

99

Finding IV.D.4.d: During the past two fiscal years, FHAPs have been able to 

conciliate cases four to five months faster than HUD. 

Recommendation IV.D.4.a: HUD should analyze its management practices to determine 

why case handling has become so inefficient and should report 

its findings to Congress and the public. 

Recommendation IV.D.4.b: HUD shoul d identif y best practices among H UBs and FHA Ps 

concerning the rapid conciliation of cases (especially disability 

cases) and require HUBs and FHAPs that do not already do so 

to use these practices. 

b. Age to No Cause 

As with conciliated cases, HUD has taken longer and longer to close complaints with 

findings of no cause. In order to make a no cause finding, HUD has to fully investigate a 

complaint and conclude that no reasonable person could determine that there was probable cause 

to believe discrimination had occurred. 

The time HUD has taken to make no cause determinations has skyrocketed in recent 

years. In FY 2000, it took HUD 656 days to “no cause” a case, inexplicably 30 percent longer 

than it took to find cause,125 even though both findings are predicated on the same kind of 

investigation (see Chart IV-18). 

125 See Chart IV-19. 

100 
The claims p rocess appears not to have helped H UD reach no cause decisi ons faster. In 

fact, at the end of the five-year claims period, no cause decisions took 35 percent longer than 

during the first year. 

Finding IV.D.4.e: In FY 2000, with 319 enforcement FTEs, it took HUD more 

than 650 days on average, and about 570 days for a disability 

case, to reach a finding of no cause. 

Finding IV.D.4.f: By contrast, over the past four fiscal years, FHAPs have 

actually brought down the average time to reach a finding of 

no cause to 258 days, or more than a year faster than HUD in 

FY 2000. 

Finding IV.D.4.g:	 The aging of cases amounts to a self-inflicted wound: The 

longer it takes HUD to process a case, the more likely witnesses 

and evidence will evaporate, the more likely a case will remain 

idle in HUD’s inventory, and the more likely HUD will have to 

consign it to administrative closure or terminate it as a no 

cause case. 

Recommendation IV.D.4.c: HUD should determine how FHAPs have been able to reach 

determinations of no cause in less than half the time it takes 

101

HUD and should implement practices to ensure that HUD 

cases are treated as expeditiously. 

Recommendation IV.D.4.d: Congress should earmark funding for HUD to substantially 

reduce its aged case portfolio and to ensure that the problem 

does not recur. 

c. Age of Cause Cases 

HUD takes five times as long to make cause determinations as Congress intended when it 

passed the FHAA, although they require at least the same level of investigation as no cause cases. 

In FY 2000, HUD made cause determinations about 150 days faster on average (and 75 days 

faster on average for disability complaints). 

Chart IV-19 demonstrates that it has consistently taken HUD a long time to reach a cause 

determination. 

As indicated, FHAPs have been able to process fair housing complaints more quickly 

than HUD. In the last four years for which data are available, FHAPs have investigated and 

closed cases about 100 days faster than HUD. With respect to disability claims, FHAPs work 

more quickly as well, averaging 75 fewer days than HUD per disability complaint. Like HUD in 

FY 2000, FHAPs appear to be making cause determinations slightly faster than no cause 

determinations (see Appendix IV-4). 

102

Finding IV.D.4.h:	 HUD takes five times as long to make cause determinations as 

Congress intended when it passed the FHAA, although they 

require at least the same level of investigation as no cause 

cases. In FY 2000, HUD made cause determinations about 150 

days faster on average (and 75 days faster on average for 

disability complaints). 

Recommendation IV.D.4.e: HUD should analyze the success of FHAPs in reaching cause 

determinations more quickly than the HUBs and should 

require HUBs to incorporate these best practices. 

Recommendation IV.D.4.f: Congress should require HUD to take immediate steps to assess 

the reasons for the aged case problem at HUBs and FHAPs. 

Congress should then provide adequate funding to support a 

corrective plan to ensure that investigations and cause or no 

cause determinations are made within 100 days of a complaint 

being filed. 

E. Financial and Other Relief Made Available to Victims of Discrimination 

The following tables reflect only HUD- and FHAP-conciliated cases, which are the only 

cases for which HUD supplied data. The tables do reflect monetary and other relief secured 

through ALJ proceedings or representation in court by the Department of Justice. While total 

compensation in fair housing cases has gone up (see Table IV-14), it appears to be going to fewer 

and fewer people (see Table IV-15). 

Further analysis of the data suggest that a very small number of cases are resulting in 

significant monetary awards. When a handful of very large settlements between FY 1997 and FY 

2000 are excluded (including a single fair lending settlement that yielded $21 million in 

monetary relief), the average award per case is exceedingly modest (see Table IV-16). 

Over the past 12 years, the average conciliated disability case has brought very modest 

monetary relief to complainants. HUD conciliations have yielded an average of $6,732 per case; 

FHAP conciliations have resulted in average compensation of $3,932 (see Table IV-17). 

103

Table IV-14: Total Monetary Compensation, by Year 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 1990–2000 

HUD N/A 1,601,480 1,800,530 2,261,365 2,267,044 1,951,853 2,429,975 4,407,300 9,679,627 6,512,145 6,206,601 23,883,090 63,001,010 

FHAP N/A 362,477 491,628 579,441 557,363 1,004,242 1,845,421 3,973,947 3,227,795 3,863,689 2,565,150 1,514,056 19,985,209 

National 

Total 

1,963,957 2,292,158 2,840,806 2,824,407 2,956,095 4,275,396 8,381,247 12,907,422 10,375,834 8,771,751 25,397,146 82,986,219 

Table IV-15: Number of Cases with Monetary Compensation, by Year 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 1989–2000 

HUD 218 828 920 997 951 883 758 632 471 349 461 400 7868 

FHAP 229 401 438 544 421 611 987 1067 1042 893 652 590 7875 

National Total 447 1229 1358 1541 1372 1494 1745 1699 1513 1242 1113 990 15743 

104

Table IV-16: Average Compensation in Conciliated Cases (in dollars) 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 

Race/HUD 2,697 2,905 3,106 4,314 2,908 2,022 4,603 14,940 57,416 25,371 8,929 7,277 

Race/FHAPs 1,310 1,207 1,570 1,235 1,932 2,240 2,354 2,552 6,060 2,085 4,903 3,008 

Sex/HUD 780 1,354 3,058 2,393 2,447 2,784 4,736 17,710 4,534 3,156 17,553 7,337 

Sex/FHAPs 1,632 1,205 672 1,284 1,284 1,521 1,551 1,326 2,118 1,716 2,067 1,998 

Color/HUD 925 1,206 4,339 971 1,249 1,773 3,483 58,189 7,958 112,708 10,370 13,587 

Color/FHAPs 1,880 1,624 1,698 1,652 4,046 1,860 5,076 1,807 19,796 4,205 2,264 2,266 

Origin/HUD 7,544 1,308 1,327 1,276 1,976 2,278 5,763 29,748 160,683 74,552 91,081 781,366 

Origin/FHAPs 1,582 588 941 2,402 701 2,521 1,768 1,429 16,625 3,175 1,936 1,034 

Handicap/HUD 799 2,738 1,732 2,550 3,304 2,696 4,604 21,344 11,975 15,727 6,741 10,112 

Handicap/FHAPs 0 0 0 228 1,707 860 3,737 1,556 2,381 10,588 4,742 2,518 

Familial Status/HUD 1,564 2,057 2,512 2,221 3,483 3,183 2,381 2,200 3,141 3,524 2,740 3,934 

Familial Status/FHAPs 0 0 514 1,326 1,542 2,087 1,480 8,051 1,920 2,251 2,510 1,924 

Religion/HUD 0 433 1,452 3,308 1,621 1,250 1,003 941 1,458 2,686 7,250 1,700 

Religion/FHAPs 2,874 569 800 1,329 422 317 2,659 1,052 1,672 1,851 1,051 1,063 

105

Table IV-17: Average Compensation per Conciliated Case, 1989–2000 

(in dollars) 

Basis/Processing Authority Compensation Per Case 

Race/HUD 9,191 

Race/FHAPs 2,638 

Sex/HUD 5,234 

Sex/FHAPs 1,518 

Color/HUD 18,492 

Color/FHAPs 4,329 

Origin/HUD 68,006 

Origin/FHAPs 3,298 

Handicap/HUD 6,732 

Handicap/FHAPs 3,932 

Familial Status/HUD 2,587 

Familial Status/FHAPs 3,033 

Religion/HUD 1,637 

Religion/FHAPs 1,520 

Finding IV.E.1: With respect to monetary compensation to victims of 

discrimination, total compensation and average compensation 

have increased, but largely because of a small number of large 

settlements in fair lending and design and construction cases. 

Excluding a single lending settlement in FY 2000, total 

compensation and average compensation per HUD case would 

have fallen to historic lows. 

Finding IV.E.2: Monetary compensation seems to be benefiting fewer and 

fewer complainants, declining from a high of 997 HUD cases in 

FY 1992 to only 400 HUD cases in FY 2000. FHAPs followed a 

similar path, from a high of 1,067 cases in FY 1996 to only 590 

cases in FY 2000. 

Finding IV.E.3: Among HUD-processed complaints since 1989, average 

disability compensation ($6,732 per conciliated case) ranks 

106

fourth be hind nat ional ori gin, color, and race. Among FHAPprocessed complaints since 1989, average disability 

compensation ($3,932 per conciliated case) ranks second 

behind color. 

Recommendation IV.E.1:	 HUD should focus its resources on securing resolution of (and 

compensation in) a broad range of fair housing complaints 

rather than focusing on settlement of cases designed primarily 

to garner the most publicity for the agency. 

Recommendation IV.E.2:	 HUD should identify best practices in each area above and 

attempt to replicate these practices across its enforcement 

programs. For example, if a region or FHAP is doing a 

particularly good job regarding quick processing or good 

conciliations or high levels of monetary compensation or good 

disability outreach, HUD should try to bottle it and make it 

available to the entire fair housing community, beginning with 

HUBs and FHAPs but including FHIPs and other advocates. 

As with other indices, compensation in conciliated cases varies dramatically from HUB to 

HUB (see Table IV-18). The highest average awards have come from Atlanta, Denver, and 

Chicago. These averages appear to be higher because of the settlement of four design and 

construction cases credited to Atlanta (FY 1996 and FY 1997), Denver (FY 1998), an d Chicago 

(FY 1996). Without these, average awards would have been significantly lower. 

FHAPs experience similar variations (see Table IV-19). FHAPs in the Atlanta region 

have the highest cumulative av erage fro m FY 1989 through FY 2000, influenced i n part by a 

design and construction settlement in FY 1998. 

In response to a draft of this report, HUD suggested that the performance of HUBs and 

FHAP regions might be influenced by the geographic location of strong disability advocacy 

organizations. While NCD did not have sufficient data to determine the validity of this 

hypothesis, it attempted to test it in light of its own knowledge that there were such advocacy 

107

organizations in Chicago, Denver, and Philadelphia. If the hypothesis were correct, one might 

expect to see larger numbers of disability complaints and higher monetary compensation per case 

at both HUD and FHAPs in those regions, which is not the case (Table IV-20). 

108

Table IV-18: Monetary Compensation in HUD Conciliated Disability Cases, by Year, by HUB 

(Average Compensation per Case) 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Cumulative 

Average 

1989–2001 

Boston 798 796 6,190 1,313 1,487 950 15,732 6,975 2,022 11,010 2,775 1,944 3,933 

New York 0 1,597 957 7,924 1,376 17,000 1,523 1,871 2,834 5,805 13,544 1,978 4,706 

Philadelphia 0 709 1,581 9,768 7,512 5,623 7,992 23,026 6,300 30,937 9,193 0 7,975 

Atlanta 650 347 2,597 2,625 574 4,113 2,768 113,456 154,370 3,000 7,884 5,418 17,931 

Chicago 322 2,217 768 1,780 1,514 1,725 3,074 68,441 6,439 9,972 4,830 4,300 8,731 

Ft. Worth 500 1,150 1,161 685 333 1,081 2,417 2,066 845 930 3,265 1,550 1,493 

Kansas City 847 7,693 1,306 4,072 3,111 943 2,390 576 7,005 17,353 6,745 6,837 4,251 

Denver 68 293 624 827 1,859 1,745 1,215 2,903 2,616 57,455 4,751 30,042 9,175 

San Francisco 963 6,808 1,960 808 1,927 5,533 18,424 2,526 11,119 9,075 14,207 15,337 8,468 

Seattle 1,685 1,702 490 2,635 12,895 1,053 2,146 2,624 5,937 1,969 5,410 3,237 3,633 

National 799 2,738 1,732 2,550 3,304 2,696 4,604 21,344 11,975 15,727 6,741 10,112 6,732 

109

Table IV-19: Monetary Compensation in FHAP Conciliated Disability Cases, by Year, by HUB 

(Average Compensation per Case) 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Cumulative Average 

1989–2001 

Boston 0 0 0 0 1,175 1,604 2,853 2,461 1,992 2,060 4,321 6,368 3,212 

New York 0 0 0 0 0 0 0 0 0 0 0 795 795 

Philadelp hia 0 0 0 0 381 1,519 9,731 2,281 5,720 4,762 12,114 1,098 5,346 

Atlanta 0 0 0 0 1,642 946 1,342 671 1,215 74,367 19,279 1,637 16,451 

Chicago 0 0 0 233 5,013 609 1,264 1,462 1,318 1,181 1,799 1,148 1,319 

Ft. Wo rth 0 0 0 226 181 286 853 1,475 268 1,280 2,462 982 1,154 

Kansas C ity 0 0 0 0 263 595 332 650 684 827 2,770 1,287 1,261 

Denver 0 0 0 0 375 391 1,407 971 1,090 1,985 2,783 1,827 1,260 

San Francisco 0 0 0 0 7,948 1,870 7,623 1,551 4,531 5,756 1,814 3,205 3,840 

Seattle 0 0 0 0 0 0 876 2,849 1,338 1,066 6,18 1,397 1,439 

National 0 0 0 228 1,707 860 3,737 1,556 2,381 10,588 4,742 2,518 3,932

 Note: Until recently, the New York and Seattle regions had few, if any, FHAPS. Also, prior to FY 1992, conciliation of all 

disability cases was handled by HUD. 

110

Table IV-20: Comparison of HUD and FHAP Regions with Respect to Monetary Compensation 

HUD CONCILIATED DISABILITY CASES FHAP CONCILIATED DISABILITY CASES 

HUB/ # CASES WITH TOTAL AVERAGE # CASES WITH TOTAL AVERAGE 

REGION MONETARY COMPENSATION COMPENSATION MONETARY COMPENSATION COMPENSATION 

COMPENSATION FY 1989–2000 FY 1989–2000 COMPENSATION FY 1989–2000 FY 1989–2000 

FY 1989–2000 FY 1989–2000 

Boston 95 $373,629 $3,933 71 $228,045 $3,212 

New York 75 352,981 4,706 3 2,385 795 

Philadelphia 86 685,832 7,975 86 459,725 5,346 

Atlanta 92 1,649,687 17,931 100 1,645,155 16,451 

Chicago 207 1,807,323 8,731 120 158,220 1,319 

Ft. Worth 133 198,596 1,493 126 145,341 1,154 

Kansas City 216 918,225 4,251 89 112,196 1,261 

Denver 139 1,275,355 9,175 87 109,604 1,260 

San 

Francisco 

135 1,143,164 8,468 212 814,231 3,840 

Seattle 153 555,585 3,633 64 92,112 1,439 

NATIONAL 1,331 $8,960,650 $6,732 958 $3,767,014 $3,932 

111

No clear pattern emerged from this analysis. The Kansas City HUB had the highest raw 

number of disability conciliations, but its per-case monetary relief was well below the national 

average. Chicago, with the largest HUD-served population of any HUB, had the second highest 

number of cases and a per-case amount above the national average. Denver had a moderate 

number of cases, but its conciliation awards were higher than any other HUB except Atlanta 

(which had two large design and construction settlements). Philadelphia had fairly few HUD 

disability conciliations (as would be expected, given that every state in its service area has an 

FHAP) but monetary compensation above the national average. On the FHAP side, San 

Francisco, Ft. Worth, and Chicago led in terms of complaints filed, but Atlanta, Philadelphia, and 

San Francisco had the highest per-case compensation. 

Neither Illinois nor Chicago has substantially equivalent agencies, so it is not surprising 

that FHAPs in the Chicago region have very few disability conciliations and very low settlement 

awards. Colorado and Pennsylvania, however, do have FHAPs, so one would expect the 

existence of strong disability groups in Denver and Philadelphia to move these FHAPs to the top 

of the list. In fact, FHAPs in the Philadelphia region have a fairly small number of these cases, 

with monetary compensation well above the national average. FHAPs in the Denver region have 

few disability conciliations and very small monetary settlements.126 

In addition to monetary relief, HUD also keeps data on the number of cases in which 

complainants use conciliation to get “housing relief,” typically defined as getting a rental unit or 

being able to purchase a home as a result of the conciliation. The number of cases in which 

complainants in the HUD system are getting housing relief has gone down dramatically since FY 

1992 (see Appendix IV-5). 

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. 

112 
F. Other Enforcement Options 

1. Secretary-Initiated Complaints 

As part of its design to strengthen the ability of HUD to eradicate housing discrimination, 

Congress authorized fair housing complaints initiated by the Secretary. The FHAA provides: 

The Secretary may also investigate housing practices to determine 

whether a complaint should be brought under this section.127 

This authority is particularly important in cases where a bona fide complainant is unlikely 

to come forward, either because of the personal peril involved or because a discriminatory 

practice harms a fairly large number of individuals but the damages to each may be difficult to 

calculate. In this latter sense, the Secretary-initiated complaint parallels the “pattern and practice” 

jurisdiction that has been available to the Department of Justice since 1968. 

FHEO recognized the appropriateness of a Secretary-initiated complaint in at least one 

other context: the request by a complainant to withdraw a complaint based on a private 

settlement. In 1994 guidance, FHEO noted its disfavor toward such settlements entered into 

without HUD supervision, especially with respect to discriminatory practices that may affect the 

public interest rather than the interest of just one individual. In such instances, 

If the relief for the complainant is as good as relief which could 

have been accomplished through the conciliation process, the 

complaint may be closed. However, consideration of whether or 

not systemic relief should have been provided should also occur. ... 

A Secretary-initiated complaint to address policy or practice issues 

unresolved by the individual settlement may be recommended as a 

result of this review. ... If the relief for the complainant appears to 

be inadequate, the agreement should be evaluated also to determine 

whether it contains provisions by which the complainant gives up 

legal rights to pursue an administrative complaint. If the agreement 

contains such a provision, and if it is worded broadly enough to 

cover the events that are the subject of the complaint, it may bar 

further action even if the relief is clearly inadequate, unless it was 

fraudulently or illegally induced. Consult with counsel if there is 

any question regarding the effect of particular language. If the 

127 42 U.S.C. §3610(a)(1)(A)(iii). 

113 
language serves as a bar, the case should be closed, using the same 

considerations described regarding withdrawals without resolution, 

including, specifically, the assessment of the case to determine 

whether a Secretary-initiated complaint may be appropriate to 

address matters that involve the public interest.128 

In its FY 1997 Management Plan, FHEO explicitly endorsed the expanded use of 

Secretary-initiated complaints. One of its action plans reads as follows: 

Reduce the incidence of discrimination based on race, national 

origin or disability by initiating at least 10 Secretary-initiated 

complaints or systemic investigations designed to address 

homeownership or low income rental housing issues.129 

Despite the ava ilability of this enforcem ent tool, there have been only two Secret aryinitiated complaints in the field of disability since 1988, both design and construction cases that 

were settled after issuance of charges of discrimination.130 No action was taken to pursue the 

action plan described in FHEO’s FY 1997 Management Plan. In fact, FHEO operated as if it 

lacked the authority altogether.131 

Finding IV.F.1:	 Despite clear authority in the FHAA, HUD has used the 

Secretary-initiated complaint option on only two occasions. 

Recommendation IV.F.1:	 As part of its comprehensive effort to more effectively enforce 

the FHA, HUD should make much more extensive use of 

Secretary-initiated complaints. 

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.h tml. 

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 tha t there were f our open Secre taryinitiated 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. 

114

2. Proceedings Before Administrative Law Judges 

While Congress was very concerned about the constitutional issues related to 

administrative hearings for fair housing complaints, very few cases have actually been 

adjudicated by ALJs.132 HUD reports that ALJs have handled a total of 508 cases from FY 1989 

through FY 2000. Of this number, 375 were resolved by consent order and 35 were dismissed by 

the ALJ. Of the remaining 98 cases133 that received full ALJ hearings, discrimination was found 

to have occurred in 80, and a finding of no discrimination was made in 18. 

The underuse of the ALJ system has troubled commentators. In its 1999 report, the 

Citizens’ Commission on Civil Rights found: 

The number of cases tried to decision before HUD administrative 

law judges (ALJs) decreased substantially over the last two years. 

This decline was due to a decrease in the number of cases charged 

and an increase in the number of complainants and respondents 

electing to have charged cases prosecuted by the Department of 

Justice. In 1996, parties elected to have 70 percent of charged cases 

handled by the Justice Department. In 1997, the election rate 

decreased slightly, but still remained at the surprisingly high rate of 

61 percent. The end result has been an underutilization of the HUD 

administrative law judge hearing process that in recent months has, 

sadly, left HUD’s highly competent and skilled ALJs all but 

looking for more work.134 

Those cases that were heard by ALJs “were more likely to be resolved on the merits; 

almost one in five were decided in favor of the complainant; and 3.5 percent were decided for the 

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 Web site, at http://www.hud.gov/alj/aljalpha.cfm, says that 102 AL J decision s have 

been rendered, while HUD statistical data supplied to the authors indicate that there have been 98. 

134 CCCR 1999, p. 234. 

115 
respondent. ... Rates of settlement ... [were] 67.7 percent of the cases that remained within the 

jurisdiction of the ALJs in HUD.”135 

HUD reports that 72 of its 508 ALJ cases (roughly 14 percent) involved allegations of 

disability discrimination . Of this num ber, 55 were resolved by co nsent order, 8 resulted in ALJ 

dismissals, 9 in findings of discrimination, and none in findings of no discrimination. While 

consent orders are public documents, they are not generally available, and review of them was 

beyond the scope of this report. HUD lists only 13 disability ALJ decisions on its Web site: 

http://www.hud.gov/alj/aljhandi.cfm. Ten of these resulted in findings that discrimination had 

occurred, and two resulted in dismissals by the ALJ. There were no reported ALJ decisions in 

disability cases during 1989, 1990, 1996 and 1999. 

Table IV-21 provides details on the outcomes of those 12 cases. 

Table IV-21: Outcomes in ALJ Disability Cases 

Fiscal 

Year 

Case Name (Decision Date) Outcome Damages Civil 

Penalty 

1991 Secretary v. George (8/16/91) Discrimination $1,000 $500 

1991 Secretary v. Williams (3/22/91) Discrimination $1,000 $500 

1992 Secretary v. Dedham Housing Authority 

(11/15/91) 

Discrimination $12,100 $10,000 

1993 Secretary v. Mercantile-Safe Deposit & 

Trust Co. (6/10/93) 

Dismissed N/A N/A 

1993 Secretary v. Ocean Sands (9/3/93) Discrimination $19,871 $3,500 

1994 Secretary v. Burns (6/17/94) Discrimination $81,556 $1,600 

1994 Secretary v. Riverbay (9/8/94) Discrimination $2,500 $5,000 

1995 Secretary v. Jankowski & Lee 

Associates (6/30/95) 

Discrimination $2,500 $2,500 

1997 Secretary v. Dutra (11/12/96) Discrimination $5,659 $5,000 

135 Schill and Friedman, p. 72. 

116 
Fiscal 

Year 

Case Name (Decision Date) Outcome Damages Civil 

Penalty 

1997 Secretary v. Pheasant Ridge (10/25/96) Discrimination $50,452 $20,000 

1998 Secretary v. Perland (3/30/98) Discrimination $15,916* $3,000 

2000 Secretary v. Blue Meadows Limited 

Partnership (7/5/00) 

Dismissed N/A N/A 

* Includes a contingent retrofit fund of $10,000.

Finding IV.F.2.a: The relative dearth of cause findings has meant that few 

complaints ever reach an ALJ hearing. 

Finding IV.F.2.b: Because of the low caseloads, the expertise of HUD ALJs is 

drastically underused. 

Recommendation IV.F.2: As part of a comprehensive plan to more effectively enforce the 

FHA, HUD should strive to increase its use of ALJs by 

processing cases more quickly and issuing charges in a greater 

percentage of cases. 

117

SECTION V 

HUD’s Enforcement of Section 504 

A. Introduction 

1. Scope of the Section 504 Discussion 

The U.S. Department of Housing and Urban Development has multiple Section 504 

responsibilities that affect the grants and contracts that it awards. The Offices of Public and 

Indian Housing, Single Family Housing, Multifamily Housing, and Community Planning and 

Development have issued regulations, notices, and handbooks that address civil rights issues, and 

each is responsible for coordinating its civil rights obligations with HUD’s FHEO. FHEO has 

primary responsibility for enforcing the FHAA, Section 504, and the other civil rights laws that 

apply to recipients of federal funds. 

This report is limited to FHEO’s operations, and this section focuses on FHEO’s Section 

504 complaint investigations and its Section 504 post-grant award compliance reviews. It is 

important to note that FHEO’s Section 504 responsibilities, however, are much more extensive. 

Since its creation, FHEO has been responsible for providing civil rights guidance to the entire 

agency and to HUD’s thousands of grant recipients. It has done so by reviewing proposed 

regulations and handbooks, describing the civil rights implications of internal and external 

program guidance and proposed legislation, and reviewing thousands of responses to HUD’s 

annual Notices of Funding Availability. This report will address those actions as they relate to 

FHEO’s external enforcement responsibilities. 

This report will not analyze how HUD’s programs, practices, and policies have shaped 

and affected disability discrimination in the real estate and community development industries. 

HUD awards grants, contracts, and mortgages worth trillions of taxpayer dollars every year. 

HUD’s influence is enormous, and it is critical to understand how its policies and practices affect 

the housing choices of people with disabilities. Another report that addresses those issues would 

118

provide an important context for this focused report on FHEO’s enforcement of the disability 

rights laws. 

2. Section 504 Provides Relief Not Available Under the Fair Housing Act 

Why is Section 504 important if the FHA also prohibits disability discrimination? While 

the FHA applies to all housing, including housing subsidized with federal funds, Section 504 

adds requirements to the use of its funds that the FHA does not. Except for the accessibility 

requirements that the FHA applies to new multifamily housing, the FHA describes prohibited 

conduct, but it does not prescribe specific steps that must be followed. 

Section 504’s regulations do prescribe specific steps, and they impose specific 

requirements on the housing providers and political entities that accept federal funds. For 

example, recipients are required to conduct self-evaluations of their programs and make existing 

properties accessible. Section 504 regulations also require recipients to pay for the modifications 

and accommodations their tenants and beneficiaries require. 

Because Section 504 requires HUD to ensure that its funds are being spent in 

nondiscriminatory ways , it does not have to wait for a complaint to be filed. Instead, it may 

initiate its own post-award reviews, called compliance reviews, that may lead the agency and the 

subject of the review to sign a Voluntary Compliance Agreement (VCA), through which the 

recipient agrees to specific actions, within specified time limits, to bring itself into compliance 

with Section 504. 

Section 504 also gives HUD enforcement options that the FHA does not. For example, 

HUD may condition the receipt of any further funds; it may sue the recipient for specific 

performance; it may assign the recipient to a suspended or limited denial of participation status; it 

may initiate binding arbitration proceedings; it may initiate administrative proceedings before an 

ALJ; and it may, as its ultimate power, suspend or terminate the recipient’s HUD funds. Thus, 

Section 504 is as important as and is potentially a more powerful civil rights tool than the FHA. 

119

3. Section 504 Emphasizes Voluntary Compliance 

Unlike the FHA, Section 504 applies only to those who receive federal funds. This 

difference has had a major impact on the structure of HUD’s Section 504 enforcement program. 

Every federal agency has the authority to terminate the receipt of federal funds if the agency finds 

that the recipient has violated Section 504. To ensure that agencies use that remedy as a last 

resort, Congress has required them to give recipients extensive opportunities to correct the 

violation, even after a full hearing and an adverse decision.136 Congress further requires that the 

Secretary notify the appropriate House and Senate committees before terminating any funds. 

HUD provided NCD with no document indicating that HUD has ever terminated federal funds on 

the basis of Section 504. In that regard, HUD’s record is consistent with those of other executive 

agencies.137 

Section 504’s emphasis on voluntary compliance has led HUD to be very deferential in its 

Section 504 enforcement activities. With the FHA, if the parties do not agree to conciliation and 

resolutions and voluntary compliance:

136 42 U.S.C. 2000d-1(1988). Section 8.59(j) reflects HUD’s emphasis on informal

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 Federal 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. 

120 
HUD’s investigation uncovers sufficient evidence to prove that the law was violated, the statute 

requires the agency to proceed to enforcement and spells out the remedies available to the fact 

finder. Under Section 504, if HUD determines that a violation has occurred, the ultimate remedy 

available is to withhold the violator’s federal funds–a remedy fraught with so many hurdles that 

it has never been used. 

The emphasis on voluntary compliance has affected not simply the conduct of complaint 

investigations and compliance reviews but also HUD’s pre-award enforcement program. These 

“front-end reviews” involve FHEO staff determinations as to the grant applicant’s civil rights 

compliance status. They are usually desk audits but may include on-site visits, and they have 

provided FHEO offices with valuable information about cities, housing developers, and other 

recipients of HUD funds. 

A thorough analysis of this part of HUD’s enforcement program was beyond the scope of 

this project. HUD did not provide any document to indicate that enforcement action resulted 

from these reviews, however, and HUD’s discussion of actions regarding the reviews spoke 

instead of the value of technical assistance and voluntary compliance. This was consistent with 

both the statutory provisions for informal resolutions of adverse civil rights findings and the 

emphasis that HUD has placed on voluntary compliance throughout its Section 504 program. 

B. 	 Overview of Section 504 Enforcement 

Until 1988, when HUD published its Section 504 rules, race discrimination accounted for 

the majority of its work, through Title VI of the Civil Rights Act of 1964, Section 109 of the 

Community Development Block Grant of 1974, and the FHA of 1968. When Congress enacted 

the FHAA in 1988, it added people with disabilities to the protected classes. HUD published its 

Section 504 regulations the same year, and its responsibilities for training its staff, publishing 

guid ance , and providing technical assistance in and outside the agency increa sed dram atically. 

By the mid-1990s, HUD had gained some experience in enforcing the disability rights 

laws, but it continued to face difficult resource and management issues. Not only was the FHA 

generating more than five times the number of Section 504 complaints it had been since 1988, 

but Congress was eliminating more and more of the funding for affordable housing. This 

121

permitted cities and housing providers to blame tighter housing markets rather than 

discrimination for rising rates of homelessness among people with disabilities and families with 

children.138 In 1994, FHEO reached its highest staffing and resource levels. It created a separate 

Disability Rights Division, and it expanded and reorganized its Fair Housing and Section 504 

enforcement programs in the field and in Headquarters. 

In 1995, HUD created an Office of Disability Policy at the secretarial level. Its purpose 

was to raise the visibility of disability rights throughout HUD. Its goals were to make HUD’s 

funding policies consistent with the civil rights laws and to press the agency to require recipients 

of HUD funds to do the same. 

In 1997, FHEO began its campaign to double its enforcement of the FHA. This effort 

resulted in an emphasis on FHA complaints, to the detriment of Section 504 staff and resources. 

Almost all complaint investigations slowed to a crawl, and staff that would have worked on 

Section 504 complaints and compliance reviews were drafted into the doubling effort. 

Once the doubling effort ended in 2000, FHEO initiated a number of Section 504 

enforcement training and departmentwide coordination efforts. It took these actions with reduced 

numbers of staff as HUD responded to the Administration’s governmentwide downsizing 

initiative. FHEO moved the pre-award civil rights reviews of funding applicants out of FHEO to 

other HUD offices in an effort to focus its limited resources on enforcement efforts.139 It joined 

with DOJ to combine training with a limited number of compliance reviews, and it began to 

focus on creating a credible data collection system. FHEO’s staffing levels are lower now than 

they were 10 years ago, and the Administration had not named an Assistant Secretary for FHEO 

as of August 2001. The future direction of HUD’s Section 504 enforcement program therefore 

remains uncertain. 

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. 

122 
C. 	 Data 

Unlike the previous section, which described HUD’s enforcement of the FHA, this 

section is not replete with graphs and charts. In order to compare staffing ratios with numbers of 

complaints, to decipher enforcement trends, and to measure success in terms of numbers of 

beneficiaries helped, it is necessary to have data. The data must be reliable, consistent, and 

retrievable. 

HUD has created the Title Eight Automated Paperless Office Tracking System 

(TEAPOTS) system to measure its enforcement of the FHA. TEAPOTS did not exist in 1988, 

when the FHAA was first enacted, and it took many years before a combination of leadership 

support, the assistance of an independent consultant, sustained and excellent staff work, and 

sufficient resources enabled FHEO to create its current fair housing data system. In contrast, 

HUD’s enforcement of its Section 504 responsibilities is not reflected in a reliable, usable, and 

adequately funded data collection system. 

FHEO did provide NCD with Section 504 data, and it is possible to glean some 

information from that data. But it is revealing that FHEO produced the data originally in response 

to external requests. It did not indicate that it used the data as a method of obtaining information 

about its own efforts to enforce Section 504. It did not provide any documentation to show that it 

used the data to plan compliance reviews or to correct under- or overemphasis on a particular set 

of recipients or for training, budgeting, or coordinating Section 504 and other civil rights efforts. 

The failure to collect, maintain, and benefit from effective data was evident when FHEO 

and the Office of Public and Indian Housing undertook a joint enforcement effort in 1994. The 

goal was to help all of the 3,338 public housing authorities make their housing and programs 

accessible to and usable by tenants with disabilities. (This effort is described more fully later in 

this section.) Because FHEO had no existing method of collecting the results of the effort, it 

crea ted a specific data col lection survey. 140 The survey was staffed by a single person who, 

without sufficient resources or support, was unable to obtain responses from each of the field 

140 See footnote 197 and associated text. 

123 
offices. The report was never disseminated to the field; it was never shared with FHEO’s 

enforcement offices; and its findings were not made part of FHEO’s planning activities. 

Shortly before HUD published the Section 504 regulations, FHEO established the Section 

504 Complaints Computer Tracking System (TRACE). Assistant Secretary Judith Brachman sent a 

memo instructing all regional directors to enter all Section 504 complaint data into the system.141 

Three months later, Headquarters sent another memo to the field, this time to the Section 504 

coordinators, advising them that the computer system for tracking Section 504 complaints was 

called MCATS—Management and Complaint Automated Tracking System—and that all Section 

504 complaint and compliance data were to be entered into this system.142 

Unfortunately, neither TRACE nor MCATS was user-friendly. FHEO staff in 

Headquarters and the field were frequently frustrated by their efforts to enter data into the 

systems. One of their many problems was that no matter how much data had been entered, if it 

was necessary to correct a mistake, all of the data had to be reentered.143 The information 

technology staff was too small to be able to provide the support necessary to maintain the 

systems, and in the mid-1990s, Headquarters scrapped them. Data maintenance had always been 

inconsistent and unreliable, but it was not until the TEAPOTS system for fair housing complaints 

had been in use for several years (see Section IV) that FHEO began, in FY 2001, to incorporate 

Section 504 data into the TEAPOTS system. Even now, TEAPOTS collects complaint 

information only, when it could also collect compliance review data. 

Finding V.C.1: TEAPOTS does not include enough information about Section 

504 complaints and compliance reviews to permit it to be used 

as a planning and evaluation document. FHEO has just begun 

to add Section 504 to TEAPOTS. TEAPOTS may need to be 

expanded to include data about Section 504 compliance 

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. 

124 
reviews f or it to be a f ully eff ective data collection system. 

FHEO has not had sufficient resources to create effective data 

collection systems or to provide adequate IT support services 

to FHEO staff to enable them to provide reliable, consistent 

data or to use FHEO’s data systems effectively. 

Recommendation V.C.1: FHEO should make its data systems a priority. HUD should 

fund FHEO’s data systems and resources adequately. FHEO 

should determine whether to add fields to TEAPOTS that 

would make it as effective a data system as possible for 

planning, coordinating, and evaluating purposes. 

Instead of relying on TRACE and MCATS, FHEO’s Section 504 enforcement data 

appears to have been generated from salary and expense reports developed as part of HUD’s 

budget requests to Congress, civil rights implementation reports to the Office of Coordination 

and Review of the DOJ, Annual Reports to Congress pursuant to FHA requirements, and annual 

reports to the U.S. Commission on Civil Rights. Unfortunately, the data are not consistent from 

one report to the next. For example, one year’s report may show complaints received while the 

next year’s report tracks complaints investigated.144 Nor has FHEO systematized its data 

collection in a way that controls for the variables that result when Headquarters staff ask for 

information at different times of the year, from different staff, in offices with varying levels of 

resources to devote to data collection. The differences among the various data sets is apparent 

from Tables V-1 and V-2, and they were too inconsistent to be used as the basis for any but the 

most general conclusions. 

For some years, the salaries and expenses reports reflect the number of complainants 

assisted; in other years, the reports reflect the number of complaints received or the number of 

complaint s investigated. For still other years , Section 5 04 complaints are listed as 504/age 

discrimination complaints or 504 complaint/compliance reviews, or simply as 504 complaints, 

144 Ibid. 

125 
with no indication as to whether the reported figure represents the number of complaints 

received, investigated, closed, or held over from the previous year. 

It is also difficult to compare the number of complaints reflected in the salaries and 

expenses reports with the civil rights implementation reports that HUD transmitted to the DOJ 

Office of Coordination and Review annually. The numbers reported in the implementation 

reports vary from the numbers in the salaries and expenses reports and are themselves internally 

inconsistent. Some years, the numbers are simply estimates. 

With sufficient time and resources, it may be possible to reconstruct the number of 

Section 504 complaints that FHEO received, the number that it investigated, and the number that 

it charged. It would then be possible to identify trends and compare hours of staff time with 

budget amounts and numbers of cases. Based on the data that FHEO supplied, however, it is not 

possible to provide that information in this report. The charts reproduced below, therefore, are 

subject to many interpretations. 

HUD’s annual reports to Congress, titled The State of Fair Housing, provide baseline 

information on complaints and compliance reviews (see Tables V-1 and V-2). 

126

Table V-1: State of Fair Housing–Complaints 

Category FY FY FY FY FY FY FY FY FY

1990* 1991 1992 1993 1994 1995** 1996 1997 1998 

504 Complaints 212 146 (rec’d) 

200 (closed) 

568 (rec’d) 228 (accepted) 206 207 

Title VI 

Complaints 

113 248 (rec’d) 

276 (closed) 

251(accepted) 143 (accepted) 74 105 

109 Complaints 27 13 (rec’d) 51 100 (accepted) 

109/ Title VI 141 153 

Complaints 

Age Complaints 102 (accepted) 

ADA Complaints 9 (accepted) 4 4 

ADA/504 62 134 

Complaints

Total Complaints 547 (rec’d) 513 (rec’d) 870 (accepted) no data 582 (accepted) 487 613 

279 (closed) 453 (closed) available (accept 

ed) 

* 1990 figures are for complaints that were investigated and resolved. ** Only Title VIII data reported in 1995. HUD reports that 

417 investigations were completed in FY 1994 but does not specify the category of the complaints. 

Table V-2: State of Fair Housing–Compliance Reviews 

127

Category FY 

1990* 

FY 

1991 

FY 

1992 

FY 

1993 

FY 

1994 

FY 

1995** 

FY 

1996 

FY 

1997 

FY 

1998 

504 

Compliance 

Reviews

 12 22 (initiated)

 17 (closed)

 32 (initiated) 

Title VI 

Compliance 

Reviews

 68 55 (initiated)

 37 (closed) 

53 (initiated) 

109 

Compliance 

Reviews

 1 (initiated)

 2 (closed)

 3 (initiated) 

Total 

Compliance 

Reviews 

(not by statute) 

131 126 126 

* 1990 figures are for complaints that were investigated and resolved. 

** Only Title VIII data reported in 1995. 

128 
Table V-3 combines data from HUD annual budget submissions to Congress and data 

reported to the U.S. Commission on Civil Rights, yielding perhaps the most complete (and most 

accurate) information about the number of complaints and compliance reviews that FHEO 

handled from 1989 through 1999. Unlike Tables V-1 and V-2, this table does not show a 

remarkable rise in complaints in 1994. Instead, Table V-3 reflects half as many Section 504 

complaints and either half as many Section 504 compliance reviews or an increase of two, 

depending on the data source. On the other hand, 1995 shows the highest number of Section 504 

complaints and compliance reviews for the 10-year period (380 complaints and 155 compliance 

reviews). The Section 504 numbers continue to be higher for both complaints and compliance 

reviews from 1995 through 1999. 

The other interesting data in Table V-3 reflect the generally increasing numbers of ADA 

complaints and compliance reviews. The table reflects none until HUD reports receiving 42 

ADA complaints (and no compliance reviews) in 1994, 17 complaints in 1995, 107 in 1996, 150 

in 1997, down to 62 in 1998, and 64 in 1999. 

Since HUD’s ADA responsibility is to enforce Title II, which concerns cities and other 

political entities, one would expect to see a rise in Section 109 complaints and compliance 

reviews for the same years that ADA activity increased. The table does seem to reflect that fact, 

although logic may not be the source of the coincident rise in numbers. By 1996, the largest 

number of Section 109 compliance reviews that HUD reports it conducted was six. Yet the 

number jumps to 30 in 1997, is 30 again in 1998, but drops to 3 in 1999. 

129

Table V-3: FHEO Salaries and Expenses Documents and 

October 2000 U.S. Commission on Civil Rights Draft Report 

Category FY FY FY FY FY FY FY FY FY FY FY 

198 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 

9 

504/Age Complaints 227 228 117 281 285 285 380 218 250 206 225 

Title VI/109 

Complaints

 32 92 267 270 147 228 193 143 175 

74 

144 

109 Complaints 48 38 103 175 67 21 

504/Age Compliance 

Reviews

 12 9 14 2 21 

34 

155

 * 

121

 * 

150 150 38 

VI/109 Compliance 72 0 

Reviews

VI Compliance 

Reviews

 25 36 10 7 7 

21 

12 51 100 100 39 

109 Compliance 

Reviews

 0 0 2 2 6 30 30 3 

ADA Complaints 0 0 42 17 107 150 62 64 

ADA Compliance 

Reviews

 0 0 

10**

 40 40 32 

504 285 

Complaints/Complia 

nce Reviews 

* 	 Includes 100 reviews conducted of Voluntary Compliance Agreements signed with 

housing authorities that had failed to imple- ment needs assessments and transition plans 

as requested by 24 CFR 8.25(c), and includes 41 reviews for approval or dis-approval of 

designated housing allocation plans, submitted pursuant to the 1992 Housing and 

Community Development Act. 

** 	 Includes compliance reviews res ulting from the accessibi lity campaign launched in FY 

1996.

 504 only Title VI only USCCR Started 

Note: Beginning in 1996, each reported incident of discrimination is investigated under all 

applicable statutes. This will result in some incidents under investigation being counted under 

more than one category of complaint received or review conducted. 

130

Table V-4 reflects HUD’s implementation reports filed with DOJ. On the one hand, too 

much information is missing to be able to draw any conclusions from the numbers in this table. 

On the other hand, the data do reflect two important facts. First, for 1993, it appears that FHEO 

sent two implementation reports to DOJ a month apart, and the numbers differ. The February 

1994 report indicates that HUD received a total of 492 complaints; the March 1994 report 

indicates that the number is 551. Both numbers were for 1993 and a year old. The reason for the 

discrepancy is unexplained but not unusual. 

Second, the report consists of answers to detailed questions that DOJ asks of all 

Executive agencies responsible for enforcing program-related civil rights statutes. The questions 

ask for the number of unresolved complaints at the beginning and end of the fiscal year; the 

reasons for closing complaints; the number of complaints closed before investigation, after 

investigation, and with and without findings; the resulting enforcement actions; the number of 

findings for action that was and wasn’t taken; the number of pre- and post-award reviews and 

their results; the number of housing uni ts that were the subject of FHEO actions; and salary, 

expense, and workload data. 

If it were possible to obtain implementation reports for each year from 1989 through 2000 

and to confirm the accuracy of the answers that HUD provided to DOJ, it would be possible to 

create a detailed picture of HUD’s program-related civil rights enforcement efforts for the past 

decade. Unfortunately, DOJ was not able to provide us with a complete set of documents, and the 

unreliability and inconsistency of the data would continue to pose serious research problems. 

131

Table V-4: Implementation Reports (E.O. 12250) 

Category of Complaint 

Received 

FY 

1989 

FY 

1990 

FY 

1991 

FY 

1992 

FY 

1993 

FY 

1994 

FY 

1995 

FY 

1996 

FY 

1997 

FY 

1998 

FY 

1999 

Section 504 286 472 253* 356* 

325** 

218 225 

Title VI 3 430 157* 161* 

141** 

143 144 

Section 109 12 N/R* 

26**

 2 1 

Total Complaints 315* 551* 

492** 

582 487 431 730 

Title VI and 109 101 164 

Age 10 

504 & ADA 102 286 

ADA 5* 34* 5 3 

* From March 1994 implementation report, p. 46 

** From 2/94 implementation report

 Investigated


 Field reports only


132

In 1998, FHEO created a system for collecting information about compliance reviews. 

The first report, issued on December 21, 1998,145 provided the case number, the recipient’s name, 

the jurisdiction of the review, the date it was initiated, the dates of the letters of finding, letters of 

determination, and Voluntary Compliance Agreements. It also included a column for 

“status/concerns.” FHEO produced only this one report, and it is unclear if other reports exist. 

In fiscal year 2000, FHEO began maintaining a List of Voluntary Compliance 

Agreements. These lists are arranged by HUB and identify the name and location of the recipient, 

the jurisdictional basis of the VCA, its expected date of expiration, whether Headquarters has a 

copy of the VCA, and whether the VCA resulted from a complaint or compliance review. 

A review of FHEO’s April 20, 2000, VCA list provides a snapshot of compliance 

activity around the cou ntry.146 All of Seattle’s VCAs are based on compliance reviews, while all 

of San Francisco’s are based on Section 504 or Title VI complaints. Texas has many more VCAs 

than any other office, and the Colorado HUB has none. The Philadelphia office has VCAs with 

housing authorities, assisted housing providers, redevelopment agencies, and cities, while the 

Fort Worth and Kansas City HUBs have entered into VCAs only with housing authorities. 

The February 1, 2001, list reflects the following information: 

Boston HUB – Twenty-two VCAs; 21 based on complaints; 1 on compliance review of a housing 

authority. Twenty are Section 504 or Section 504 and Title VIII VCAs. 

New York HUB – Six VCAs, all based on compliance reviews; 3 signed with housing 

authorities; 3 signed with assisted housing providers. Five are Section 504 VCAs. 

Philadelphia HUB – Twenty VCAs; 14 based on housing authority reviews and 6 based on 

complaints. Seventeen are Section 504 VCAs and most are Section 504 and ADA. 

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. 

133 
Atlanta HUB – Six VCAs; 4 based on reviews of housing authorities; 2 based on complaints. 

Two are Section 504 VCAs. 

Chicago HUB – Sixteen VCAs; 5 based on reviews of housing authorities, 11 based on 

complaints. Fifteen are Section 504 VCAs. 

Ft. Worth HUB – Twelve VCAs; 6 based on housing authority reviews, 6 on complaints. Seven 

are Section 504 VCAs. 

East Texas O ffice – Fifty-two VCAs; all are Section 50 4, Tit le VI, and Tit le VIII. 

Denver HUB – No active VCAs. 

San Francisco HUB – Seventy-six VCAs (27 of which are with the Riverside, California, 

Department of Building and Safety),147 all based on complaints. Forty-two are Section 504 

VCAs; several are combined with Title VIII or ADA. 

Seattle – Eleven VCAs; 6 based on reviews of housing authorities, 3 reviews of assisted housing 

providers, 1 cooperative, and 1 housing and community development council. All are Section 

504 or Section 504 and Title VI VCAs. 

Finding V.C.2: FHEO has not developed an adequate, consistent, and reliable 

data system for its Section 504 enforcement actions. As a 

result, it has not been able to learn from its successes or its 

mistakes, make the best arguments for adequate funding, plan 

or allocate resources in a reasonable way, or justify the actions 

that it has taken or proposes to take. 

Recommendation V.C.2: FHEO should add the same Section 504 complaint and 

compliance review data to the data system it currently 

147 These VCAs result from a HUD investigation of complaints that Riverside County was 

selectively prosecuting building code violations against predominantly Latino trailer home parks. 

134

maintains to track its enforcement of the FHA. In addition, 

FHEO should systematize the requests, timing, and storage of 

data that it must collect for its annual reports to Congress, to 

the Department of Justice, and to the U.S. Commission on Civil 

Rights. 

Recommendation V.C.3: FHEO should review the data collection system that the Office 

of Coordination and Review uses to collect governmentwide 

Section 504 data from all federal agencies and consider how 

best to collect, maintain, and use the HUD data and make it 

available to the public. FHEO should provide adequate 

resources to its data collection system and to the IT staff that 

support it. 

Recommendation V.C.4: Headquarters should involve field staff in solving the data 

collection and data maintenance problems. The data system 

should be able to identify common enforcement problems and 

discrimination trends to enable FHEO and HUD to target 

enforcement activities. 

D. 	 No Significant Section 504 Enforcement Occurred Before HUD Published 

Its Final Section 504 Regulations in 1988 

Congress enacted Section 504 in 1973. However, HUD did not publish regulations until 

1988. While some department officials believed that HUD had the authority and the 

responsibility to enforce the statute, others believed that it could not do so until HUD issued 

regulations. It was not a period of strong disability rights enforcement. 

In 1976, the White House issued an Executive Order requiring the U.S. Department of 

Health, Education and Welfare (HEW) to issue general standards for other departments and 

agencies of the Federal Government to follow in developing their own regulations.148 HEW did 

so in 1977. The following year, HUD published a proposed set of Section 504 regulations. Ten 

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

135 
years later, in June 1988, HUD issued final Section 504 regulations. (See Section III. B. for a 

discussion of the history of the regulations.) 

Until HUD published its final Section 504 regulations, regional office responses to 

complaints were inconsistent and agency officials took few actions to enforce the statute, 

believing they could not do so until HUD had issued its own Section 504 regulations. In 1980, 

Paralyzed Veterans of America (PVA) sued HUD and other agencies149 that had taken a similar 

position. The court agreed with PVA’s argument and required the agencies to publish a notice in 

the Federal Register advising all of their recipients that they were required to comply with 

Section 504 and that they were to rely on HEW’s model regulations for guidance.150 HUD 

published the notice in 1981.151 

Thereafter, HUD accepted and investigated Section 504 complaints. Pursuant to advice 

from the Off ice of General Council (OGC), howe ver, FHEO did not enforc e any findings 

resulting from its investigations. Instead, when an investigation resulted in findings that the 

recipient had violated the statute, HUD referred the case to DOJ. Furthermore, the OGC 

interpreted the Paralyzed Veterans decision as applying only to complaints that individuals had 

filed with FHEO. It therefore advised FHEO not to initiate compliance reviews, saying that 

neither the agency nor the recipients had sufficient guidance as to what would constitute a 

violation of the statute and the model regulations.152 

FHEO disagreed with the OGC’s opinion and urged counsel to seek guidance from DOJ 

asking whether HUD had the authority not only to investigate complaints but to make and 

enforce Section 504 findings of noncompliance and to initiate compliance reviews in the absence 

of departmental regulations.153 DOJ assured HUD that it did have enforcement authority. DOJ 

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. 

136 
recommended that HUD and its recipients rely on the model regulations as of 1981 and Section 

504 case law before that.154 In spite of the response, FHEO did not begin to conduct compliance 

reviews until two years later, after it had issued Section 504 regulations and had published a 

compliance review manual.155 

E. Budget and Staff 

1. Budget and Staff Before Publication of Final Section 504 Regulations 

Lack of money, lack of staff, and lack of interest in Section 504 at the secretarial level 

contributed to the difficulty that FHEO faced in administering any Section 504 activities before 

1989. NCD received no information from HUD indicating whether any funds were used to 

enforce Section 504 before 1981. In 1981, Congress appropriated $900,000 for HUD to spend on 

Section 504 implementation activities, but HUD re turned it all to the Tre asury.156

 In 1982, Congress again allocated $900,000 for HUD’s Section 504 enforcement and 

related independent living activities. HUD returned all but $9,000 and announced that it 

intended to use the much smaller amount to produce a public service film starring Kermit the 

Frog and Miss Piggy, popular puppets from a children’s television program. HUD abandoned its 

plan aft er ne gati ve re sponses from members of Congress and the disability community.157 

From 1981 through 1983, the Undersecretary for Intergovernmental Relations was 

responsible for “all advocacy and policy activity concerning the handicapped, including 

chronically mentally ill, alcoholics, and drug addicts, should they be included in that 

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. 

137

definition.”158 FHEO was responsible for “assisting on issues of discrimination,” and the Office 

of Housing was to draft the Section 504 regulations. It wasn’t until 1984 that Section 504 “policy 

and advocacy activity” was placed in FHEO.159 

Headquarters was to review and return all compliance review findings of Section 504 

violations in an average of six months and all complaint findings of Section 504 violations in an 

average of three months.160 FHEO Headquarters failed to meet those deadlines every year until it 

changed the policy in the mid-1990s to permit the field to make its own noncompliance findings. 

Until that happened, many noncompliance findings remained at Headquarters for years in 

suspended states of investigation and review.161 

From 1984 through 1987, FHEO’s Section 504 implementation and enforcement budget, 

not including salaries, was $100,000 annually. Two full-time staff in Headquarters managed all 

Section 504 activities, and each of the 10 regional offices was allotted one half-time professional 

slot for this purpose. During that period, staff conducted investigations, but did not initiate any 

enforcement actions.162 Instead, the field staff referred all noncompliance findings to the two staff 

in Headquarters for review and potential referral to DOJ. The two were also responsible for 

responding to all congressional and public inquiries about Section 504, technical assistance to 

HUD programs, Architectural Barriers Act complaints, proposed legislation, program guidance, 

and internal disability employment matters. They had no secretarial support.163 

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 Corres pondence 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 Accomplishme nts and Activi ties, 1984 & 198 5,” for descr iptions of t he 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. 

138 
In an effort to establish some Section 504 expertise in the regional and field offices, 

FHEO Assistant Secretary Antonio Monroig issued a memorandum August 1984 instructing 

regional field directors to designate a current staff person in each regional and field office as a 

Section 504 coordinator.164 The memorandum listed the coordinators’ duties as being the regional 

liaison with constituency groups; collecting information on complaints, compliance agreements, 

and outreach activities; providing technical assistance; coordinating all disability rights issues; 

and providing training. It states, “We anticipate that the Section 504 coordinators’ 

responsibilities will not be time-consuming or burdensome.”165 

Three years later, Monroig’s successor, Judith Brachman, sent another memo to the 

regional directors, saying, “It has come to our attention, through performance reviews and 

conversation with regional staff, that this system has not been as effective as it must be if we are 

to have a successful Section 504 compliance program.”166 The memorandum requested the names 

of the coordinators and provided a new list of their responsibilities. 

Conversations with various FHEO staff indicate that Headquarters lent minimal attention 

to the function and role of the coordinators, and their value in implementing the Section 504 

enforcement program varied widely. In January 1988, FHEO headquarters staff used the 

proposed Section 504 regulation as the basis for training the 10 Section 504 coordinators on 

disability issues. Thereafter, most regional directors relied on the coordinators as resource staff 

for providing technical assistance to HUD staff and to the public, if the coordinators had the 

time, given their other responsibilities. In some offices, the coordinator had significant 

responsibility for shaping the Section 504 program; in others, the coordinator was criticized for 

working on disability at all.167 

2. Budget and Staff After Publication of the Section 504 Regulations 

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. 

139 
Although Section 504 had been enacted in 1973, the Section 504 regulations and the 

FHAA regulations appeared in 1988 and 1989 within six months of each other. The resulting 

attention and willingness on the part of HUD to enforce its two sets of regulations produced 

twice the funding for Section 504 “implementation services,” from $100,000 in FY 1987 to 

$196,000 in FY 1988 and 1989, and $532,000 in FY 1990. FHEO had to stretch that funding to 

cover a significant share of HUD’s Architectural Barriers Act responsibilities, internal Section 

504 training, training and technical assistance to HUD recipients, policy development, an internal 

Section 50 4 self-asse ssment, internal emp loyment issu es, and mana gement train ing.168 

According to HUD’s February 1989 Implementation report to DOJ, FHEO’s Section 504 

goal was to conduct two public housing compliance reviews per region, process Section 504 

complaints, provide training to HUD staff on Section 504 requirements, and conduct a public 

information campaign through town meetings. The change from “a minimally acceptable level of 

activity”169 to a credible Section 504 enforcement program resulted in part from HUD’s having 

finally issued Section 504 regulations. It also resulted from the increased attention that the FHAA 

brought from Congress and the civil rights community to HUD. 

Unfortunately, it has been impossible to draw many conclusions from the Section 504 

data that HUD produced. From 1988 to 2000, HUD has not had one consistent data collection 

system. For example, starting in 1991, FHEO salaries and expenses data no longer used the term 

“implementation services” and instead listed the amount of funds received for “Section 504 

technical assistance.” The funds budgeted for 1991 are listed at $271,000 and, for succeeding 

years, $94,000 (1993), and $20,000 (1994). FHEO did not provide data that listed funding for 

Section 504–specific “implementation services” or “technical assistance” after 1994. The 1994 

figure represented “contracts to provide the support needed to address in-house complaint 

investigations and provide technical expertise on more complex issues.”170 It is not possible to 

determine what the Section 504 expenditures were for or how much HUD spent on Section 504 

enforcement activities. Nor do the salaries and expenses reports break out either the number of 

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. 

170 Salaries and Expenses, FHEO, Budget Activity 6, Actual [Budget]1994, Budget Estimate 

1995, p. U-11. 

140 
dollars dedicated to or staff assigned to Section 504 enforcement activities. What does seem to be 

clear is that every field office, as well as Headquarters FHEO, has carried a backlog of Section 

504 complaints since the issuance of the regulations.171 

To ensure that Section 504 received at least some resources after the publication of the 

regulations, FHEO established a Section 504 Unit in its Headquarters Office of Program 

Compliance in 1988. The two full-time staff dedicated to Section 504 activities from 1984 

through 1987 were joined by two more full-time employees, one full-time temporary, one 

contract interpreter, and one student intern.172 Unfortunately, the Section 504 Unit was assigned 

many more tasks than Section 504 enforcement. These included responding to Architectural 

Barriers Act complaints and complaints filed under Section 109 of the Community Development 

Block Grant Act, coordinating the Section 504 town meetings, providing technical assistance to 

the field and Headquarters on pre-award reviews, reviewing all departmental policies and 

regulations from a Section 504 perspective, responding to congressional inquiries, developing 

and providing Section 504 training for FHEO managers and staff, and creating a Section 504 

federally conducted program.173 

In spite of the small size of the unit, FHEO succeeded in meeting its goal of conducting 

13 three-day town meetings around the country from 1989 through 1991, as well as developing 

desk guides for Section 504 complaint investigations and compliance reviews, conducting 

training for managers on their Section 504 responsibilities and training for the Section 504 

coordinators, producing training manuals, monitoring contracts for the production of technical 

guidance for specific HUD programs, and sponsoring a joint Public and Indian Housing/FHEO 

conference on the housing rights of individuals with mental disabilities.174

 Headquarters Section 504 staff were frequently reassigned to work on nonenforcement 

matters that were of urgent concern to the Secretary and the Administration. Thus, for example, 

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

172 HUD Civil Rights Implementation Updates, FY 1988 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. 

141 
the National Association of Home Builders pressured HUD to clarify the accessibility 

requirements of the FHAA. The FHEO staff who were most familiar with accessibility issues 

were also the Section 504 staff. On June 15, 1990, HUD published proposed fair housing 

accessibility guidelines, and on March 6, 1991, it published the final guidelines. For most of the 

period leading up to the publication of the proposed guidelines until well after their publication 

in final form, at least one and sometimes two of the four-person Section 504 staff worked full 

time on them. The same staff have continued to act as resources for ongoing structural 

accessibility interpretations, and FHEO has not assigned or hired additional staff to address the 

unmet Section 504 enforcement work. 

HUD issued its Section 504 regulations in 1994. (These regulations implemented 

Congress’s 1978 amendment of Section 504. The amendment required federal agencies to 

conduct their own operations according to the same Section 504 mandates they applied to the 

recipients of their funds.) The same FHEO staff who were charged with providing guidance and 

support to field operations were also responsible for the drafting, publication, and 

implementation of these regulations. Information indicating how HUD has enforced these rules 

or how much FHEO time they have absorbed is limited to the data appearing in FHEO’s 

implementation reports to DOJ. It seems clear from the documents that FHEO did not receive an 

increase in staff or other resources to enforce the new Section 504 regulations. 

Recently, FHEO has tried to increase the number of investigators who enforce Section 

504, while not losing any FHA staff. First, FHEO abandoned the specialist model in favor of 

training staff to be generalists. As one HUD official explained, “We got what we got. We do the 

best with what we got.” Thus, all investigators are expected to be as comfortable conducting 

Section 504 compliance reviews as FHA complaint investigations. 

To reinforce the generalist approach, Headquarters has undertaken several actions. It has 

initiated the creative concept of combining training and compliance reviews by walking trainees 

through actual compliance reviews. To enable FHEO staff to expand compliance reviews beyond 

housing authorities, it has published a draft manual on investigating private housing providers 

who receive HUD funds. 

Headquarters’ decision to work with field staff on specific compliance reviews and to add 

a training component to the effort was reinforced by DOJ in 1998. The DOJ Office of 

Coordination and Review published a massive Investigation Procedures Manual for the 

142

Investigation and Resolution of Complaints Alleging Violations of Title VI and Other 

Nondiscrimination Statutes in September 1998. FHEO and DOJ staff developed a training and 

compliance review schedule that resulted in FHEO’s initiating compliance reviews in several 

different locations that field staff subseq uently and quickly completed , with lett ers of findi ngs 

and voluntary compliance agreements. 

In recent interviews, FHEO officials in Headquarters spoke enthusiastically about 

continuing to combine training with investigations. They indicated that field staff are supportive 

of the training and investigation approach but complained about the time constraints being too 

limiting. For these compliance reviews, on-site time has been limited to a single day, with FHEO 

emphasizing quick investigations and timely issuance of findings. The current theory is that some 

findings resulting in some relief for some complainants soon after the initiation of the 

compliance review is a better result than well-developed findings that are issued years after the 

on-site review. 

The draft Assisted Housing Provider Compliance Review Manual that FHEO staff 

published on May 25, 2000, has been a useful component of FHEO’s new coordinated training 

and investigation approach. The majority of compliance reviews, as this section discusses later, 

have focused on housing authorities and not on private owners of assisted housing. Because the 

number of assisted housing units dwarfs the number of public housing units, both should be 

monitored for civil rights compliance. 

This manual is notable for its detailed and user-friendly approach. It is arranged in steps 

rather than chapters and includes forms that help the investigator understand the timing and 

relationship of the data while collecting it. The manual makes it clear that disability, race, and 

national origin data are to be collected. Simultaneously, this guidance reflects the multistatute 

policy that FHEO adopted in the mid-1990’s, which is more fully described later in this section. 

The advantages of reviewing all of a recipient’s civil rights responsibilities during one 

compliance review has made the reviews much more effective compliance and enforcement 

tools. The manual has translated the policy into easily understood tasks. It constitutes an 

important part of the training/investigation method that had been missing. 

Finding V.E.2.a: FHEO has drafted an Assisted Housing Provider Compliance 

Review Manual that provides a detailed approach, is easy to 

follow, and has been effectively combined with on-site 

143 
Recommendation V.E.2.a: 

Recommendation V.E.2.b: 

compliance reviews. FHEO has not finalized the manual, nor 

has it developed similar manuals for reviews of other 

recipients, such as states, cities, and agencies that receive 

funding from the Office of Community Planning and 

Development. FHEO has combined compliance reviews with 

training. 

FHEO should finalize the Assisted Housing Provider 

Compliance Review Manual and should publish similar 

manuals for each type of recipient. The development of the 

manuals should accompany increased resources for continued 

training and compliance reviews. The manuals should contain 

instructions on contacting local advocacy groups, tenant 

organizations, and any other local group that has experience 

with the recipient; inviting the contacts to submit information 

before the compliance review or meeting with the compliance 

team before the review; and obtaining information from 

FHEO after the compliance review, for the purpose of 

developing methods of encouraging and helping the recipient 

to comply with Section 504. 

FHEO should continue to combine training with compliance 

reviews. It should review the merits and problems of the 

approach and address them both. Some of the issues to review 

are the amount of on-site time; the number of FHEO staff 

involved; coordination and staff from field and Headquarters 

program offices, and inclusion of general or regional counsel 

staff, Department of Justice staff, or staff from other federal or 

state agencies, such as the Environmental Protection Agency 

and the Departments of Education and Transportation. 

144

Recommendation V.E.2.c: FHEO should continue to target its compliance reviews based 

on number of complaints, input from advocates and recipients, 

news articles, and current Department of Justice guidance. 

Finding V.E.2.b:	 The Section 504 enforcement program has never been 

adequately staffed in Headquarters or in the field, nor has it 

been provided with adequate resources. 

Recommendation V.E.2.d:	The Section 504 enforcement program must be fully staffed in 

Headquarters and in the field, and should be adequately 

funded to support a departmentwide Section 504 enforcement 

program. 

F. 	 FHEO Reorganizations 

During the mid-1990s, HUD twice reorganized FHEO. Both actions had major impacts 

on the enforcement of Section 504. As we noted earlier, when HUD published its Section 504 

and FHAA regu latio ns in 1 988 an d 1989 , FHEO created a Fai r Hous ing Enforcement Office. It 

conducted a ll of its o ther civil rights resp onsibili ties, incl uding Secti on 504 enfor cement, through 

the Offices of Program Compliance, Program Standards and Evaluation, and later, in the early 

1990s, the Office of Quality Assurance. In the field, one director was responsible for all 

enforcement and compliance work under all of HUD’s civil rights laws. 

The 1994 reorganization separated enforcement of the FHA from enforcement of the 

other civil rights laws. In Headquarters, the change resulted in the creation of the Program 

Compliance and Disability Rights Office, which included an office devoted entirely to disability 

rights.175 In the field, the change was even more significant. For the first time, FHEO placed two 

directors in each field and regional office: one for fair housing enforcement (Fair Housing 

Enforcement Center) and the other for program compliance (Program Operations Compliance 

Center). The new organization resulted in 10 Fair Housing Enforcement Centers, 10 Program 

Operations and Compliance Centers, and 28 smaller Program Operations and Compliance 

175 Federal Title VI Enforcement to Ensu re Nondiscrimination in Federal ly Assisted Programs, 

A Report of the U.S. Commission on Civil Rights (June 1996), p. 328 ff., citing a lette r from R. 

Achtenberg, Assistant Secretary, FHEO to F. Isler, Acting Assistant Staff Director, U.S. Commission on 

Civil Rights, November 10, 1994. 

145 
Centers. The staff of all the offices were no longer required to report to the HUD regional 

directors, reporting instead directly to FHEO. 

Similar to Headquarters, the larger Program Operations Compliance Centers were divided 

again into compliance and enforcement divisions. Each compliance center conducted post-award 

compliance reviews and monitored VCAs. The Operations Division monitored program 

compliance with the civil rights laws through pre-award reviews, provided technical assistance 

to grantees, reviewed program applications, and reviewed the work of FHIPs. 

The U.S. Civil Rights Commission criticized the reorganization for being too fragmented 

and to o comp lex, especially with re gard to coordinat ing enforcement o f Titl e VI.176 Nonetheless, 

FHEO adopted this reorganization for a variety of reasons. First, because the FHAA and the 

Section 504 regulations had been issued within six months of each other, some method was 

necessary to keep all of FHEO’s Section 504 and other program-related civil rights enforcement 

resources from being swallowed by the much larger number of fair housing complaints. 

Second, a variety of pressures convinced HUD to give increased attention to programrelated civil rights enforcement. These pressures included HUD’s efforts to resolve nearly 20 

race discrimination lawsuits—some of them decades old—for establishing or maintaining 

racially segregated public housing around the country; the White House’s promotion of 

“customer-friendly” government actions that required more effective working relationships 

between agencies and their constituencies; and increased publicity and pressure from civil rights 

advocates, especially disability rights activists and housing providers serving low-income and 

homeless families, making the heightened attention to program-related civil rights enforcement 

appropriate.

 FHEO was not able to staff the Program Operations Compliance Centers at their 

promised levels. At least from 1994 to 1996, however, FHEO and HUD leadership gave Section 

504 enforcement enough backing and support to enable its staff to generate some model and 

replicable enforcement actions. These included coordinated and complex compliance reviews 

that resol ved long-st anding inte rpretation conflicts and correcti ve relief fro m at least o ne large 

city that had never complied with several Section 504 requirements.177 

176 Federal Title VI Enforcement to Ensu re Nondiscrimination in Federal ly Assisted Programs, 

U.S. Commission on Civil Rights, Washington, DC, June 1996. 

177	 See footnotes 205–207 and associated text.


146

In 1997, the White House had begun to pressure HUD to double its FHA enforcement 

efforts and simultaneously required it to reduce its staff. HUD reorganized FHEO’s structure by 

eliminating the Program Operations Compliance Centers; returning to a single, regional 

enforcement director; cutting staff; and requiring all staff to be responsible for investigating all of 

FHEO’s statutes. The plan’s “reorganizational statement” describes the change: 

Under the proposed structure, for the first time, field FHEO 

components will perform all core functions at the lowest 

organizational levels, thereby empowering field managers to 

choose from a range of civil rights actions when responding to 

local needs. All functions and services will now be conducted 

wherever FHEO has a presence. This creates a multidisciplinary 

service unit which will enable FHEO to deliver all of the program 

and statutory elements related to fair housing when it deals with 

housing providers and HUD program participants.178 

In fact, Headquarters devoted significantly fewer resources to Section 504 enforcement 

after the 1997 reorganization.179 FHEO described the reorganization as a necessary response to 

the White House request that it double its fair housing enforcement effort. Headquarters staff 

who had been working with field staff on investigations stopped most of their Section 504 

enforcement work. As one FHEO official said, “The doubling effort affected everything. We had 

to pull back on compliance reviews, monitoring, everything. It did have the effect of raising the 

Secretary’s knowledge of fair housing cases, however.”180 

Because of the pressure to double the enforcement numbers, many FHA complaints 

against recipients of HUD funds were resolved for the individual complainants but did not trigger 

the more time-consuming development of VCAs. Such agreements could have resulted in 

changes to the recipients’ overall programs, policies, and practices. Some offices tried to meet 

the doubling effort while also generating VCAs, but the results were mixed.181 It was only when 

the doubling effort ended, in January 2001, that FHEO staff in Headquarters and the field began 

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. 

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

181 Ibid. 

147 
to devote attention to Section 504 again, this time to aged Section 504 complaints and to 

compliance reviews assisted by Headquarters staff. 

1. Numbers 

FHEO’s data reflect what FHEO staff said: During the doubling effort, from 1997 to 

2001, the resources available to Section 504 complaint investigation and compliance reviews 

were shifted to fair housing complaint investigations. In 1995, FHEO reported processing 380 

Section 504 complaints. The number for 1999 was 225.182 HUD’s October 6, 2000, TEAPOTS 

report showed 964 open Section 504 complaints. 

The fact that FHEO reports a 400 percent increase in Section 504 complaints from 1999 

to 2000 may be an accurate count of the number of aged Section 504 cases that accumulated 

while the doubling effort lasted, and the lower number may reflect the number of Section 504 

complaints that FHEO received in 1999. 

The compliance work that did continue during the doubling effort placed an emphasis on 

conducting a small number of joint Title VI and Section 504 compliance reviews, and were 

initiated by Headquarters staff. While some reviews resulted in monetary damages to remedy 

Title VI problems, the compliance reviews yielded policy and practice changes through VCAs for 

Section 504 violations but no monetary damages. FHEO’s failure to assess recipients for 

monetary damages is puzzling. The regulations clearly authorize HUD to seek damages to make 

victims of discrimination whole,183 and DOJ confirmed HUD’s authority to seek damages under 

Section 504 when HUD’s General Counsel was skeptical.184 

Even where Headquarters initiated and lent staff to specific reviews, FHEO devoted too 

few resources to this effort to make an impact with more than a few recipients. That is, when the 

office identified enforcement problems or opportunities, it would develop a plan, take action, and 

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 discrimin ated against persons in a pr ogram or activit y funded under t his part, the recipient mus t take 

remedial action to make whole all identifiable victims.” 

148 
then fail to sustain the action or the necessary support. FHEO’s limited staff, the short turnaround 

time for pre-award reviews, and the demand for higher numbers of FHA enforcement actions 

made it very difficult for FHEO to sustain, much less expand or monitor, its earlier Section 504 

enforcement efforts. 

Only in East Texas, when the plaintiffs in Young v. Pierce185 brought HUD back into 

court for having failed to conduct Title VI compliance reviews of the 70 housing authorities in 

the lawsuit, was FHEO ab le to compl ete a signifi cant number of compliance reviews. Although 

the case focused on race and Title VI, HUD applied its multistatute investigation policy. As a 

result, FHEO was able to identify and correct Section 504 violations as well. 

Finding V.F.1:	 HUD has not coordinated its Section 504 enforcement 

responsibilities to take advantage of critical program or 

departmental efforts. It does not have a method for conducting 

ongoing discussions about the impact of departmental actions 

and policies on Section 504 enforcement. It does not work with 

other federal or state agencies or with the Justice Department 

Office of Coordination and Review. It does not communicate 

regularly and effectively with consumers or their 

representatives or with the agencies and advocates who 

represent them on their discrimination, housing, or community 

development issues. 

Recommendation V.F.1:	 FHEO should develop a Section 504 program that includes 

short-term and long-term strategies and goals for enforcing 

Section 504; a review of the successful ways FHEO has 

coordinat ed with ot her HUD off ices; estab lishment of systems 

for communicating within HUD and with consumers and 

recipients; evaluation methods; coordination of its technical 

assistance branch, its FHA branch, and its Section 504 

enforcement branch; review, evaluation, and plans for 

improving responses to, investigations of, and enforcement of 

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

149 
Section 504 complaints; review of, evaluation of, and plans for 

a compliance program that results in rational and effective use 

of compliance reviews; and sufficient resources to implement a 

Section 50 4 program. 

G. Section 504 Enforcement Emphasis on Public Housing 

HUD’s civil rights laws apply to all of the recipients of its grant and contract funds. The 

recipients include city agencies, nursing homes, for-profit and nonprofit housing developments, 

retirement communities, and state housing finance agencies, among many others. Yet, in the past 

decade, HUD has predominantly focused its enforcement of recipients’ civil rights obligations on 

public housing authorities. Many housing authorities receive all their funding from HUD, making 

them appropriate targets for investigation. This singular focus, however, has resulted in an overly 

limited Section 504 enforcement program. 

The many reasons for and implications of HUD’s enforcement emphasis on public 

housing authorities are beyond the scope of this report. One of the reasons for the emphasis, 

however, was the Young v. Pierce (now Young v. Martinez) litigation that was filed in 1980,186 

alleging that HUD was responsible for the racial segregation of public housing in East Texas. 

HUD allocated substantial staff and resources to defending the litigation and responding to court 

orders. HUD’s desire to avoid similar lawsuits was one reason it chose to focus its enforcement 

on public housing authorities. 

While federal agencies have broad discretion in selecting recipients and subrecipients for 

compliance reviews, they may not select only one type of recipient, such as housing authorities. 

According to DOJ regulations, federal agencies are required to maintain “an effective program of 

post-award reviews.”187 DOJ suggests specific criteria for agencies to consider for their 

compliance review program: 

• Issues targeted in your agency’s strategic plan. 

• Issues frequently identified as problems faced by program beneficiaries. 

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]). 

150 
•	 Geographical areas you wish to target because of the many problems you know 

beneficiaries are experiencing or because your agency has not had a “presence” 

there for some time. 

•	 Issues raised in a complaint or identified during a complaint investigation that 

could not be covered within the scope of the complaint investigation. 

•	 Problems identified to your agency by community organizations or advocacy 

groups that are familiar with actual incidents to support their concerns. 

•	 Problems identified to your agency by its block grant recipients. 

•	 Problems identified to your agency by other federal, state, or local civil rights 

agencies.188 

Several of FHEO’s field offices have used some of these criteria to plan their compliance 

reviews. Because HUD has focused almost exclusively on housing authorities, however, FHEO 

has not applied these criteria in an effective compliance program for other HUD recipients. 

Furthermore, HUD has selected different criteria for identifying targets of compliance reviews 

than those recommended by DOJ. HUD did not provide NCD with data to explain its more 

limited criteria or to indicate any communication between HUD and DOJ on this matter.189 

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. 

151 
Finding V.G.1:	 FHEO has not developed a standardized system for 

determining when compliance reviews of HUD recipients 

would advance FHEO’s and HUD’s civil rights goals. HUD 

and DOJ criteria for identifying targets of compliance reviews 

have not been used consistently by field offices and have not 

been used at all by field offices that have not conducted 

compliance reviews or have targeted only housing authorities. 

Recommendation V.G.1:	 HUD’s compliance program should include all HUD recipients 

and should be an integral part of its goal of affirmatively 

furthering fair housing. FHEO’s compliance program must be 

based on articulated criteria that can be measured and 

communicated within FHEO and HUD and to recipients and 

the public. HUD must ensure that each of its program offices 

provides FHEO with relevant information about the 

compliance of its recipients and cooperates with FHEO in its 

compliance program. 

Nonetheless, FHEO’s emphasis on housing authorities has yielded important benefits for 

the Section 504 and fair housing enforcement programs. Through years of interaction with the 

Office of Public and Indian Housing (PIH), that off ice has achieved the mos t thorough 

understanding of its recipients’ Section 504 obligations and a closer working relationship with 

FHEO. As we discuss later in this section, PIH and FHEO published joint guidance, issued joint 

notices, and initiated enforcement actions together. Rarely was FHEO successful in achieving 

this level of cooperation with other HUD programs. 

Soon after HUD published the Section 504 regulations, FHEO’s first significant 

interoffice cooperative publication resulted from a 1990 Federal District Court decision. In the 

Northern District of New York, the court relied on the Section 504 regulations to find that the 

Rochester housing authority had violated the law when it required applicants to meet a “capable 

of independent living” standard. The housing authority’s defense rested on HUD’s Public 

Housing Handbook, which conflicted with the Section 504 regulations. Secretary Jack Kemp 

publicly supported the Section 504 regulations on a radio broadcast, which resulted in 

152

widespread publicity. Further, FHEO and PIH issued a joint memorandum to their staff to follow 

the Section 504 requirements, and PIH published a notice for public housing agencies about its 

correction of its handbook.190 

H. Joint Initiatives Between FHEO and Office of Public and Indian Housing 

When each of the agencies issued Section 504 regulations, they understood that both 

technical assistance and time would be necessary before recipients could bring their facilities and 

programs into compliance with Section 504. HUD’s regulations thus required that each recipient 

conduct a self-evaluation within a year of the date the regulations were published and correct any 

programmatic problems that it found.191 The rule also required recipients to evaluate their 

buildings and make any structural changes necessary to make them accessible.192 Public housing 

authorities were required to determine whether the needs of their tenants and applicants for 

accessible housing had been met and, if they had not, how to meet those needs by 1992.193 

FHEO continued its relatively successful relationship with PIH by publishing a Joint 

Notice to Housing Authorities about their Section 504–mandated self-evaluation, needs 

assessment, and transition plan responsibilities. The notice was published on August 15, 1994.194 

The goal of the PIH/FHEO Notice was to ensure that housing authorities had met these 

requirements or that they take immediate action to comply with Section 504. For housing 

authorities that had not yet complied, the notice advised that they had missed the deadline and 

could obtain a final extension until July 11, based on “extraordinary circumstances,” if the 

Secretary granted it.

 HUD notified all 3,338 housing authorities that they were required to meet the extension 

requirements of the notice if they had not already met their Section 504 responsibilities. Those 

who had not met their obligations were required to sign corrective action orders with PIH, and 

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. 

153 
VCAs with FHEO. The corrective action orders made explicit the requirement that if a housing 

authority applied for modernization funding, it could use the funding only for work that was 

necessary to complete Section 504 structural changes. The number of Section 504 compliance 

reviews increased substantially from 21 in 1993 to 155 in 1994 (see Table V-3 for Section 504). 

The VCAs gave FHEO a basis for enforcing the regulatory requirements. That is, if the housing 

authority violated the terms of its VCA, FHEO was authorized to refer the authority to DOJ for 

having breached its agreement. 

FHEO concluded that 66 percent, or 2,217 housing authorities, had completed the Section 

504 process. Of these, 104 signed VCAs, but the field offices “closely followed” only 17 of the 

VCAs.195 According to HUD data, HUD did not refer a single housing authority to DOJ, even 

when a housing authority breached its VCA. 

FHEO was also not able to collect accurate data on this effort. When FHEO attempted to 

determine the outcome of its joint work with PIH by conducting a survey of the field offices in 

1997, it received no information from FHEO field offices concerning 22 percent of the housing 

authorities. Nor were the data that were collected reliable. For example, data from all of Region I 

are mi ssing, possibly because the office failed to respond to the survey quest ionnaire. Region II 

data were included in the report, but the VCA that office signed with the New York City Housing 

Authority in December 1996 was missing. Finally, by the time Headquarters collected the data, 

FHEO was already under a mandate to shift its focus, resources, and staff away from Section 504 

and other federally assisted civil rights acts to enforcement of the FHAA. FHEO data do not 

reflect that it conducted any further study of the 1994 PIH/FHEO Notice. 

The Joint Notice was an efficient way to communicate with recipients. It brought the 

program and enforcement offices together for the purpose of determining how well housing 

authorities understood their Section 504 responsibilities and how closely they were following 

them. It allowed PIH and FHEO to resolve problems of interpretation and implementation in the 

context of specific housing authority responses. It could have resulted in effective enforcement 

actions. It could have formed the basis for continuing PIH-FHEO implementation of the Section 

504 regulations. It could have resulted in the creation of an invaluable body of data about every 

195 FHEO, Office of Program Operations and Standards, Status Report on Public Housing 

Section 504 Needs Assessment Transition Plans Rehabilitation, June 1997. 

154 
housing authority in the country. It could have formed one of the pillars of an organized Section 

504 enforcement program. It did not.196 

Finding V.H.1:	 FHEO and PIH have conducted joint ventures that have not 

been documented. Their results are therefore not available for 

planning, budgeting, technical assistance, or further joint 

ventures. 

Recommendation V.H.1:	 FHEO and its departmental partners should document and 

evaluate their joint efforts. FHEO and PIH should make their 

joint report available within HUD and to the public. To the 

extent possible, FHEO and PIH should issue documents 

reflecting past coordinated efforts. Both offices should institute 

a system to ensure that future efforts are similarly recorded 

and made public. 

Finding V.H.2:	 Enforcement of Section 504 is a departmental responsibility. 

Without the support of HUD leadership and the cooperation of 

HUD’s program offices, FHEO has limited ability to ensure the 

law’s enforcement. 

Recommendation V.H.2:	 HUD should establish a secretarial-level office whose 

responsibility is to conduct a “civil rights impact statement” 

for each of its initiatives. Similar to an environmental or 

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 Joint 

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, multistory apartment buildings. 

Unfortunately, HUD’s FHA regulations exempt townhouses from accessibility requirements, a problem 

that HUD 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. 

155 
business impact statement, the civil rights analysis will clarify 

whether a funding program’s decision, action, or 

interpretation will affect its civil rights program and whether it 

will promote, hinder, or have no impact on the accomplishment 

of HUD’s civil rights goals. 

I.	 Broadening the Enforcement Agenda Through Coordination and 

Multistatute Reviews 

During the mid-1990s, FHEO made a concerted effort to reach out to other departmental 

offices to resolve policy inconsistencies, generate departmentwide strategies, and incorporate fair 

housing goals in grant-making programs.197 FHEO first tried to make its own program 

compliance enforcement strategy more efficient. Headquarters issued uniform procedures for 

reviewing Section 504 Letters of Determination; developed and conducted sessions on Advanced 

Disability Training, building on the training that had preceded it; and obtained the assistance of 

the OGC on a variety of legal and statutory issues198 in order to buttress the broader scope that 

Congress returned to civil rights agencies through the Civil Rights Restoration Act of 1987. 

Headquarters also consulted with various field offices before it issued guidance on conducting 

multistatute complaint investigations and on identifying targets for compliance reviews. FHEO 

issued the latter guidance in 1995 and the multistatute guidance in 1996.199 

The intent of the guidance was to signal a change in the direction that compliance reviews 

had taken. Beginning with the publication of the Section 504 regulations, FHEO had focused on 

housing authorities and their compliance with either 504 or Title VI. The new guidance and 

assistance from Headquarters were intended to yield multijurisdictional compliance reviews. The 

intent was also to help the field initiate compliance reviews based on current complaints and 

information from FHEO reviews of funding applicants’ and recipients’ civil rights compliance. 

For example, the field offices of Community Planning and Development (CPD) waited for 

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

198 Notice, FHEO 96-1: Multijurisdictional Complaints. 

199 Memorandum for Al l Directors , FHEO, from Robert a Achtenberg, As sistant Sec retary, 

FHEO, re: Compliance Reviews for 1995, January 1995. 

156 
FHEO to certify that cities, states, and other recipients were in compliance with the civil rights 

laws. Without the certification, CPD would not approve entitlement grants, such as Community 

Development Block Grant (CDBG) funds, or competitive grants, such as (Housing for People 

with AIDS) HOPWA funds. 

FHEO always provided the certifications and CPD always released the funds, certainly 

for the enti tlement fu nds. But many field office s conducted time-cons uming and th orough 

reviews of the recipients and provided valuable technical assistance to them explaining how they 

were violating the civil rights laws and suggesting corrective action. Often FHEO staff would tell 

CPD staff of their findings and their recommendations and would base their compliance 

certifications on the city’s agreement to adopt corrective action. The same CPD staff and the 

same FHEO staffer often worked with the same recipients year after year, so that corrective 

action that wasn’t taken in one year would be recommended again for the next.200 

Surprisingly, this information was more freely shared between FHEO and CPD than 

between FHEO staff conducting pre-grant award reviews and FHEO enforcement staff. As a 

result, FHEO lost valuable enforcement opportunities to focus compliance reviews on data 

FHEO had already collected and often serious but complex civil rights violations that had already 

been identified. This problem was one of the reasons for the creation of the Program Operations 

Compliance Centers. With sufficient staff reporting to a director whose only responsibility was 

funding related civil rights laws, the theory was that he or she would be able to implement an 

enforcement program that took advantage of all available information, whether it was collected 

during front-end reviews or complaint investigations, and that could be coordinated with the 

FHA enforcement staff as well. 

Many field offices believed that the correct goal was to conduct a compliance review of 

every housing authority in their jurisdiction, regardless of its size, its remoteness, its resources, or 

specific complaints and allegations about other recipients’ civil rights violations. The new 

guidance alone was not enough to change that belief, but it was a necessary first step whose 

impact might have been greater if FHEO had the time and resources to follow through. Instead, at 

the end of 1996 and beginning of 1997, the effort to double the number of fair housing cases 

drew the majority of FHEO’s enforcement resources. 

200 Discussions with HUD staff. 

157 
For a brief time before the doubling effort, FHEO conducted a limited version of such a 

compliance review program that reflected its 1995 and 1996 guidance on targeting compliance 

reviews and conducting multistatute reviews. It began with Headquarters program compliance 

staff identifying recipients, typically housing authorities, that were the focus of litigation, a 

serious complaint, or a number of serious complaints. Headquarters staff contacted the lead 

office in the field and designed the compliance review with them. Headquarters staff assembled 

teams consisting of knowledgeable and productive investigators from around the country, added 

them to the local staff, created the schedule, identified the tasks for each part of the schedule, and 

joined in the investigation. 

The goals of these compliance reviews were to make them multijurisdictional, if possible, 

expeditious, accurate, and responsive to the complaints. While the number of these compliance 

reviews was not large, they did accomplish their goals and reflected much better results, for 

several regions, than those generally conducted without Headquarters support and assistance. For 

example, a 1998 HUD Inspector General review of 33 compliance reviews in four field offices 

that did not follow the new model found that 17 remained incomplete “for long periods of time,” 

that “FHEO did not ensure that corrective action was actually taken,” that management and data 

collection systems “were lacking,” and that the compliance reviews were inefficient because they 

“did not result in resolving known discriminatory practices by program participants.”201 

Headquarters resumed this approach to compliance reviews after the doubling effort 

ended. Although the number of Headquarters- and field-coordinated reviews has remained small 

and the effort has been understaffed, FHEO has initiated a number of creative approaches to 

maximizing the resources that it does have. 

Finding V.I.1.a:	 FHEO limited compliance reviews to housing authorities for 

many years. It investigated only Title VI or Section 504 

compliance when it could have investigated both 

simultaneously. When FHEO adopted its multistatute 

approach and issued multijurisdictional guidance, compliance 

reviews became more efficient. Except for a brief period, 

FHEO’s compliance review strategy in many field offices was 

to review every housing authority and to review every one 

201 OIG, note 57. 

158 
again. FHEO’s efforts to create a compliance review strategy 

that used reviews to focus on known civil rights problems was 

logical and effective. The effort ended when FHEO staffing 

levels were reduced and remaining staff and resources for 

compliance reviews were diverted to FHA complaint 

investigations. 

Recommendation V.I.1.a:	 FHEO should adopt an expanded version of its previously 

successful compliance review strategy as part of its Section 504 

program. It should target its compliance reviews according to 

enforcement strategies that have had the greatest likelihood of 

accomplishing specific programmatic goals, and it should 

conduct multistatute reviews. The goals should include 

expanding recipients’ understanding of and compliance with 

Section 504 requirements; coordinating with HUD program 

offices and expanding their ability to ensure recipients’ 

compliance with Section 504; and increasing the public’s 

knowledge of and support for Section 504 and related civil 

rights laws. 

1. Intradepartmental Cooperation Leads to More Accessible Units in New York 

Under the aegis of the Program Operations Compliance Center organization, FHEO 

succeeded in identifying and addressing some of the most complex issues in its Section 504 

enforcement history during this period. One of them was the New York City Housing Authority’s 

(NYCHA’s) compliance with Section 504. A group of public interest organizations had sued 

NYCHA on behalf of tenants and applicants with disabilities. Although HUD was not a party to 

the suit, FHEO, PIH, and General Counsel staff formed a Headquarters team to address the 

numerous and fundamental issues that the NYCHA litigation presented. 

The housing authority disputed the regulatory requirement that at least 5 percent of its 

apartments be accessible to people with mobility impairments and that an additional 2 percent be 

159

usable by tenants with vision and hearing impairments.202 NYCHA contended that the number of 

tenants with disabilities, people with disabilities on the waiting list, and people with disabilities 

among the eligible population didn’t justify the 5 percent and 2 percent thresholds. They insisted 

that enough of their 181,000 u nits were accessible to meet the need and that th e New York PIH 

and FHEO offices had giv en them many waivers beca use of the age of t he buildings. F inally, 

NYCHA had an undisputed backlog of more than 13,000 requests for reasonable 

accommodations from current tenants. 

Although PIH and FHEO had coordinated on several Section 504 guidance and 

enforcement matters before, the OGC had never taken as active a role. With its assistance, it was 

possible to add a statistician from the Office of Policy, Development and Research to the team. 

He and NYCHA conducted simultaneous analyses that convinced both HUD and the housing 

authority tha t it needed a minimum of 9,000 fully accessible apartment s. The age of t he buildin gs 

and the size of the elevators led to more disputes that required a specific elevator accessibility 

study. The results of the study led to NYCHA’s agreement to expand the number of accessible 

units in nearby buildings when the original buildings were too old or too narrow to generate the 

required 5 percent. 

Similar issues arose during the course of nearly a year of negotiation, study, surveys, and 

policy clearance within HUD. The effort resulted in a VCA that put NYCHA on firm 

management reform and construction/rehabilitation schedules, and that included modification 

and accommodation tenant request forms that other housing authorities have since adopted.203 

The members of HUD’s NYCHA team hoped that they would be able to replicate their 

successful team approach that included FHEO, OGC, the Office of Policy, Development and 

Research, and the appropriate program office. Unfortunately, changes in Administration internal 

leadership and HUD’s downsizing did not result in systematizing this approach. 

Finding V.I.1.b:	 FHEO successfully obtained one of the most extensive VCAs in 

its history by working in conjunction with OGC and PIH. The 

team received full support from departmental and program 

leadership. Without that support, the team would not have had 

202 24 CFR 8.32. 

203 Voluntary Compliance Agreement between the New York Housing Authorit y and HUD, 

December 6, 1996. 

160 
the time, the resources, or the authority to develop solutions to 

enforcement and program interpretation problems that had 

prevented earlier compliance efforts. The NYCHA approach 

could have been replicated with other housing authorities, but 

HUD did not provide the necessary resources to do so. 

Recommendation V.I.1.b: FHEO should review the approach that resulted in the 

NYCHA VCA and determine what resources and support 

would be necessary to apply it to other recipients. FHEO 

should also publish its evaluation of the NYCHA approach and 

use it to further its training, technical assistance, and 

enforcement efforts. 

2.	 Broad Array of Enforcement Tools Protects Relief in Pinellas County, 

Florida 

A more recent example of effective intradepartmental coordination was the compliance 

review and extensive VCA that FHEO and PIH developed for the Pinellas, Florida, Housing 

Authority in 1997. FHEO had received complaints that the housing authority awarded Section 8 

vouchers on the basis of race; failed to provide the same maintenance services to its AfricanAmerican tenants as its white tenants; failed to respond to requests for reasonable 

accommodations; required tenants with disabilities to pay for necessary accessibility 

modifications of housing authority property, including the purchase and installation of ramps and 

grab bars; and had not conducted the transition plan that the Section 504 regulations required. 

The VCA was creative and extensive. HUD withheld the Comprehensive Grant funds 

from the housing authority until it conducted its accessibility survey and submitted a report to 

HUD indicating how it planned to meet the Title VI and Section 504 requirements of the VCA, 

with specific time deadlines. It required the housing authority to employ an “agreement monitor” 

to notify all tenants and Section 8 participants of the VCA as well as of the new policies the 

VCA required the housing authority to generate, and to invite members of the African-American 

and disabled communities to open meetings of the housing authority and to participate in its 

VCA activities. Finally, the VCA was unique in listing a much broader array of enforcement 

options available to HUD if the housing authority failed to comply with the terms of the 

161

agreement. The options included binding arbitration, referring the housing authority to DOJ for 

violating its annual contributions contract with HUD or for civil rights violations or to seek 

specific performance of the agreement’s terms; and withholding the housing authority’s funds. 

HUD did not provide NCD with documents indicating whether the housing authority 

complied with the agreement or whether the local HUD office fulfilled its monitoring 

responsibilities. If the housing authority did not comply, HUD also did not provide 

documentation indicating whether it invoked any of the enforcement mechanisms that it listed in 

the agreement. Because HUD could have referred the housing authority to DOJ for having failed 

to conduct the self-evaluation and needs assessment required by Section 504 (discussed earlier in 

this chapter), rather than developing a Voluntary Compliance Agreement, HUD probably decided 

that another VCA was as likely as a court order—and certainly easier to develop—to compel the 

housing authority to end decades of civil rights violations. 

3.	 Working in Partnership with Local Advocacy Group Wins Broad Relief in 

Austin 

Another highly effective but unreplicated VCA signed during this period followed a 

complaint about the failure of the city of Austin, Texas, to comply with its Section 504 

obligations. The disability rights advocacy group Americans Disabled for Attendant Programs 

Today (ADAPT), located in Austin, filed its complaint in 1995. Two years later, after an 

investigation and lengthy negotiations with the city, FHEO and Austin signed a VCA. The city 

agreed to amend its Consolidated Plan to make housing needs for persons with disabilities a 

priority; to deny funding to housing projects that could not be made accessible; to develop 

incentives for city contractors to build or rehabilitate housing that contains more than 5 percent 

accessible units; and to provide Section 504 training to all management staff, among other 

provisions. 

According to the city’s May 15, 2000, Summary Report, the city complied with all of 

these requirements. In addition, it enacted a visitability ordinance requiring the entrance and one 

bathroom in newly built homes be usable by individuals with mobility impairments; contracted 

with an accessibility expert to ensure that current and future multifamily rental housing complies 

with the FHA and Section 504; established a barrier-removal fund for existing single-family 

homes; and established the SMART Housing Initiative. As the report explains, 

162

SMART stands for Safe, Mixed-income, Accessible, Reasonably 

priced, and Transit-oriented. The Mixed Income component will 

provide incentives to projects that may provide upwards of 10 

percent SMART Housing, bringing Visitability and Accessibility 

to units that receive no federal funding. This will expand 

accessibility beyond those projects receiving CDBG and HOME 

funds, particularly to single-family projects and multifamily 

projects that are not regulated by Section 504 standards. 

HUD did not provide documentation indicating that it has required any other city to 

comply with Section 504 in similar ways. FHEO’s efforts with Austin were successful because it 

worked with a strong local advocacy group, the field office received continuous support for its 

efforts from Headquarters, and the city was willing to work with both HUD and the local 

advocacy agency. 

Finding V.I.3.a: FHEO’s Austin VCA is replicable, but no other FHEO 

agreement with a city accomplishes as much. The probable 

reasons for the breadth of the VCA and its successful 

implementation are a combination of Headquarters support, 

dedicated field staff, willing city officials, and, possibly most 

important, a local advocacy group that knew the city, 

understood Section 504 and the FHA, and persisted with both 

FHEO and the city until it achieved the goals of its complaint. 

Recommendation V.I.3.a: FHEO should replicate the resources and sustained support 

that were necessary to bring the city of Austin into compliance 

with Section 504. FHEO should encourage staff to work with 

local agencies and advocacy groups in identifying 

discrimination issues, forging solutions, and monitoring 

agreements. 

Recommendation V.I.3.b: HUD should enforce the Section 504 responsibilities of cities, 

counties, and states to ensure that all of their programs and 

activities meet the regulatory requirements. For example, every 

city should ensure that 5 percent of the city’s housing program 

is fully accessible to residents with mobility impairments. See, 

163

for example, the city of Austin’s program. Every state should 

ensure that all its programs promote the ability of individuals 

with cognitive and mental disabilities to gain access to the same 

benefits and services as all other state residents. 

J.	 HUD Has Often Failed to Enforce VCAs 

In spite of the focus on housing authorities, FHEO did not refer any of them, or any other 

recipients who had signed VCAs, to DOJ for having failed to comply with the terms of the VCA. 

When recipients violate VCAs, FHEO’s response has been to “work with” the recipient and, if 

necessary, to draft a second VCA. FHEO staff are not trained, however, to treat VCAs as 

contracts t hat, once br eached, may be th e basis for a dministr ative actio n, such as l imiting, 

conditioning, or terminating further financial assistance, and for referral to DOJ. Instead, as the 

1997 Accountability Report explains, “[a]s a result of [compliance] reviews, a large portion of 

HUD recipients are better informed about Title VI and 504, thus increasing the likelihood for 

increased compliance under these laws in the future with regard to the provision of accessible 

and desegregated housing.”204 

As this report indicated earlier, FHEO’s failure to enforce VCAs results from several 

factors. Section 504 emphasizes voluntary compliance and negotiated settlements. In addition, 

disagreements between FHEO staff and regional counsel and the absence of good working 

relationships among many offices contributes to the problem (see Section IV for a discussion of 

this issue). Finally, enforcing VCAs requires a diversion of significant time and resources that, in 

an agency strapped for both, has been difficult to muster. 

Finding V.J.1: When recipients violate VCAs, HUD does not take enforcement 

action against them. HUD treats VCAs as “educational 

documents” and the compliance review process as an 

“educational process” rather than as a means of enforcing civil 

rights laws. 

Recommendation V.J.1: All VCAs must be enforced after their time limits expire and 

the recipient has not fulfilled the VCA’s terms. FHEO shall 

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

164 
immediately forward the VCA to the Office of General Counsel 

for enforcement. The OGC shall initiate administrative 

proceedings within two months of receiving the referral from 

FHEO. OGC and FHEO shall give the recipient one month to 

comply with the terms of the VCA before initiating 

enforcement actions. 

Recommendation V.J.2: FHEO must develop protocols with the grant-award program 

to ensure that if funds are granted they be conditioned upon 

the recipient’s correcting the violations according to an 

existing VCA. HUD should make clear that failure to comply 

with the terms of the VCA shall result in enforcement and 

temporary denial of all future funds to the recipient, including 

funds that have been approved but are awarded on a periodic 

basis. 

Recommendation V.J.3: HUD should publish all VCAs on the HUD Web site and 

include the name of the FHEO contact for questions from the 

public and other recipients. 

K.	 HUD Initiates Multistatute Compliance Reviews

 FHEO also initiated a multistatute approach to its enforcement activities. Because 

investigators had to go on-site to investigate claims of racial discrimination, FHEO leadership 

saw the benefit of combining Title VI and FHA investigations with Section 504 investigations. 

This approach was successful in another major FHEO-PIH initiative that addressed race 

discrimination litigation in Texas. The Young v. Pierce [685 F. Supp. 975 (E.D. Tex. 1988)] case 

accused HUD of establishing and maintaining racially segregated public housing in East Texas. 

HUD decided to open a separate office in Beaumont, Texas, to work only with the East Texas 

housing authorities. Both FHEO and PIH staffed the office. 

From 1998 to 2001, FHEO and PIH completed their investigations of the 70 housing 

authorities covered by the litigation. The housing authority properties ranged in size from 10 to 

165

568 units. Although the litigation raised only Title VI claims, FHEO and PIH decided to 

investigate the housing authorities’ compliance with Section 504. After issuing 54 Letters of 

Findings and executing 16 VCAs, the FHEO Beaumont office found 90 percent of the housing 

authorities had Section 504 violations, ranging from the absence of accessible units to debris 

making accessible paths non-navigable.205 There is no reason to believe that the East Texas 

housing authorities are not representative of Section 504 compliance by housing authorities 

nationwide. 

Finding V.K.1: FHEO has successfully operated under the multistatute 

guidance for several years. The results of investigating a 

recipient’s compliance with two or more civil rights laws 

simultaneously has had obvious efficiency benefits for the 

recipient, the beneficiaries, and HUD. 

Recommendation V.K.1: HUD should continue to follow the multistatute guidance. The 

agency should conduct an evaluation of how the field offices 

use the guidance, identify any differences, and develop 

guidance to address gaps and to reinforce successful outcomes. 

HUD should also define successful outcomes in terms of 

numbers of beneficiaries assisted, timeliness of the operation, 

satisfaction of the parties involved, funds and time spent, and 

replicability of the effort. 

Beyond the obvious enforcement benefits of the East Texas reviews, the approach helped 

FHEO and the new Beaumont Office accomplish important internal goals. It gave them an 

opportunity both to obtain baseline measures of racial and disability integration in its housing 

authorities and to apply the disability rights laws consistently over a specific geographic area, and 

it proved that the fair housing doubling effort could include Title VI and Section 504 compliance 

reviews as well as FHA complaint investigations. 

HUD’s 1997 Accountability Report indicates that 90 VCAs that had resulted from 

combined Section 504 and Title VI compliance reviews were signed in 1997, although the report 

205 Conversation with FHEO staff, May 9, 2001. 

166 
does not indicate how many of those were signed with East Texas housing authorities.206 Because 

FHEO’s data collection systems for compliance reviews, VCAs, and Section 504 enforcement 

genera lly has been incons isten t, it is difficult to draw any concl usion s from these numbe rs. It 

seems fairly safe, however, to conclude that most of the Section 504 compliance reviews and 

VCAs concluded in the mid-1990s resulted from joint PIH-FHEO coordination. The other major 

program funding offices, Community Planning and Development and Housing, did not play 

significant roles in supporting or promoting HUD’s fair housing or Section 504 regulations, 

according to HUD data. 

Thus, apart from the two HUBs that are not conducting compliance reviews, six of the 

remaining eight HUBs continue to review only housing authorities, in spite of receiving 

compl aints about city agencies , assi sted h ousin g providers , and o ther recipi ents of HUD funds. It 

is encouraging that two of the HUBs and Headquarters have initiated compliance reviews of 

recipients other than housing authorities. It is hoped that Headquarters will not only continue to 

collect this data from the field but will use it to further a compliance review program that is more 

closely connected with HUD’s continuing devolution of discretion to its field offices. 

L.	 Guidance 

FHEO issued a fair number of technical assistance guidance (TAG) memoranda before 

HUD adopted Section 504 regulations. Some were published in the Federal Register, but the 

majority were guidance memoranda that Headquarters issued to the field. Of these, about half 

answered enforcement questions and the other half reflected either court decisions or legal 

analyses and conclusions that interpreted Section 504.207 

After the publication of the Section 504 regulations, FHEO continued to publish TAGs, 

but instead of increas ing, the number o f TAGs decreased substantially.208 The last TAG that 

FHEO provided was dated October 10, 1991. FHEO continued to provide guidance within HUD 

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. 

167 
and between Headquarters and field offices, but in different venues and for different audiences. 

HUD did not replace TAGs with an alternative system of cataloging policy interpretations of 

Section 504. Moreover, the TAGs were never maintained, indexed, or cataloged to enable HUD 

staff or the public to use them to solve recurring or new problems. As a result, many of HUD’s 

decisions, especially those that have not been published in the Federal Register, are not 

retrievable by HUD staff or by the public. 

Having operated without a unified or retrievable guidance system, HUD staff throughout 

the department have addressed and solved some of the same issues over and over again, without 

knowing how the department addressed the issue before and without any guarantee that one 

office’s solution was consistent with another’s. For example, in 1986 and 1987, FHEO issued 

TAGs addressing the interface of Section 504 and the Section 202 Program for the Elderly and 

Handicapped.209 In spite of this guidance, and because it was not easily accessible, FHEO staff 

around the country and in Headquarters continued trying to balance Section 202 program 

requirements with Section 504 requirements. 

When the Corporation for Supportive Housing tried unsuccessfully to get the Office of 

Community Planning and Development and FHEO to explain apparent contradictions between 

the civil rights laws and Section 202 and other assisted housing programs, the HUD offices 

declined to provide any answers in writing. Instead, all of the San Francisco regional office 

directors reviewed and commented upon the corporation’s responses to its own questions.210 

Copies of the book are circulating within HUD, and it has become very popular among 

supportive housing providers around the country. 

Finding V.L.1: 	 FHEO has not maintained in any systematic way the Section 

504 guidance that it has issued. It has not maintained the 

systems that once existed, and it has not created a system for 

maintaining such guidance now. It is critical that the source for 

policy decisions, the decisions themselves, and the resulting 

guidance be continually available to HUD staff and to the 

public. 

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. 

168 
Recommendation V.L.1: 	 FHEO should create a method as soon as possible for collecting 

all Section 504 policies, guidance, notices, and interpretive 

materials in a single location. Each of the documents should be 

identified by issuance date, location (i.e., where it first 

appeared), history, and current force. FHEO should allocate 

sufficient resources to this project so that a system of locating 

and maintaining such information can be established and 

maintained. FHEO should make these historical documents 

and future documents available to HUD staff and to the public 

in a user-friendly format that is searchable by word or 

concept. 

M. Civil Rights Conflicts Within the Department 

1. HUD’s Narrow Definition of “Recipient” Limits Civil Rights Enforcement 

HUD has adopted policies that limit its ability to investigate recipients other than housing 

authorities. For example, when HUD defined “recipients” in its Section 504 regulations, it 

concluded that housing providers who accepted federal rent subsidies were not “recipients of 

federal funds.” Instead, HUD adopted the position that the housing authorities responsible for 

administering rental certificate programs were the only recipients. Private and assisted housing 

providers who accepted the subsidies were contractors with the housing authorities (see 24 CFR 

8.28). As a result of this decision, FHEO rarely conducted compliance reviews of any recipients 

other than housing authorities, in spite of information that HUD received and data that it 

collected that reflected ongoing violations of disability rights and race discrimination by private 

and assisted housing providers.211 HUD’s protection of private, subsidized housing providers has 

led directly to the decreasing supply of affordable housing for which individuals with disabilities 

are eligible. 

Finding V.M.1: HUD has too narrowly defined “recipient” to exclude housing 

providers who benefit from federal financial assistance. HUD’s 

assigning housing authorities with the responsibility of 

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. 

169 
monitoring private housing providers’ compliance with the 

civil rights laws has been unworkable. 

Recommendation V.M.1: HUD should review its policy decision and issue an 

interpretation of the responsibilities of federally subsidized 

private housing providers that is effective and enforceable. 

2.	 Elders, Nonelders with Disabilities, and the Secretary’s Office on Disability 

Policy 

As with all Executive agencies, HUD has faced the difficult problems of coordinating its 

civil rights enforcement policies with its grant-making responsibilities. This issue has been 

exacerbated in HUD by a number of conflicting public policy goals. One of these has been the 

integration mandate of the civil rights laws and the mandate that public agencies ensure the 

safety of “vulnerable populations.” This conflict attained national attention, beginning in the 

1980s, in the context of HUD’s housing programs for “the elderly and the handicapped.”212 The 

conflict led to statutory, regulatory, advisory, and enforcement issues that have yet to be resolved. 

During the 1980s, the numbers of nonelderly tenants with disabilities increased in 

housing that Congress had created for them and for tenants 62 and older. As funding decreased 

for low-income housing and as more and more individuals with disabilities sought affordable 

housing, the number of housing units available to accommodate low-income applicants dropped 

to one-third of the need.213 The press carried sensational stories of elders threatened by 

individuals with disabilities and Congress’s forsaking its promises of the 1970s to house lowincome elders. In addition, a number of federal court decisions, beginning with Brecker v. B’nai 

Brith Housing Development Fund,

214 adopted HUD’s argument that those who housed 

individuals with disabilities needed specific expertise for different kinds of disabilities. 

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). 

170 
HUD’s position directly contradicted its own Section 504 regulations. The regulations 

prohibit limiting tenants with disabilities to programs created specifically for them (24 CFR 

Sec.8.4(b)(viii)(3)); denying a dwelling to a tenant because of a disability, which occurred in 

housing programs limited to people with specific types of disabilities (Sec. 8.4(b)(vii)); and 

providing different or separate housing to tenants or to a class of tenants without proof that doing 

so is “necessary” (Sec. 8.4(b)(iv)). Most important, Section 8.4(c)(1) permits individuals and 

classes of i ndividual s with dis abilities to be exclu ded from hou sing only if federal law or a 

presidential Executive Order limits the housing to a different class of individuals. An example of 

such a program is Housing Opportunities for Persons with AIDS (HOPWA), in which applicants 

with disab ilities o ther than AIDS may be denied housing. 

The impact of this position on FHEO’s ability to enforce the Section 504 regulations was 

significant. If HUD had not taken this position, FHEO could have investigated complaints and 

helped HUD resolve internal policy and regulatory conflicts on the basis of objective and 

verifiable data. HUD could have developed a body of law that would have enhanced the civil 

rights protections of its beneficiaries and provided valuable guidance to its recipients. 

Unfortunately, confusion and misinformation persist within HUD and among recipients, 

providers, and beneficiaries. 

The confluence of these issues led to changes that affected, and continue to affect, 

FHEO’s ability to enforce the disability rights laws, especially against assisted housing providers. 

In 1990, with HUD and the Administration’s support, Congress changed the definition of elderly 

to eliminate nonelders with disabilities from housing programs that had previously housed both 

populations.215 Two years later, Congress amended the Section 202 program to eliminate the 

eligibility of nonelders with disabilities, and created the Section 811 program.216 The new 

program provides funding for rental subsidies and for assisted housing for people with 

disabilities only. Consistent with the disability rights laws, the legislation does not allow 

providers to distinguish among disabilities in their application process unless they receive 

specific permission to do so.217 Yet, across the country, HUD offices of housing are advising the 

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). 

171 
811 providers that they are to follow pre-1990 Section 202 rules. As a result, housing for 

applicants with specific disabilities are the norm rather than the exception. 

Having hobbled its own Section 504 enforcement program, HUD continued to 

recommend legislation that undermined those regulations. For example, HUD strongly 

supported, and Congress enacted, more changes in the Housing and Community Development 

Act of 1992 that have diminished the availability of housing for and the rights of nonelders with 

disabilities. Public housing authorities were permitted to designate their elderly housing as 

elderly only if HUD approved their plans to do so. Private housing providers who received HUD 

subsidies were given even more leeway and were permitted to cease accepting any but elderly 

tenants. They did not need HUD’s approval to do so. Although the legislation required HUD to 

issue guidance for private housing providers, HUD never did so. As a result, HUD’s Office of 

Housing did not enforce protections for low-income tenants, and FHEO and the Office of 

Housing gave private housing providers conflicting information as to their responsibilities.218 

Several studies have been commissioned to study the impact of these changes. The most 

recent concluded that housing providers accepted nonelders with disabilities most frequently in 

poor neighborhoods and into troubled housing. Elders, in contrast, were the exclusive tenants in 

good neighborhoods, in well-maintained housing, regardless of the laws and regulations and with 

little HUD oversight.219 This practice has civil rights implications; yet, in spite of repeated 

requests to do so, HUD has never effectively reviewed and addressed or acknowledged the 

impact of its interpretations on HUD’s own civil rights enforcement program and regulations or 

on the worsening housing crisis for low-income renters protected by the civil rights laws.220 

The 1992 law also resulted in HUD’s creation of the Occupancy Task Force. Congress 

required that the members of the task force represent elders, individuals with disabilities, public 

and assisted housing providers, HUD officials, and others who had been involved in the elderdisability debates. The task force issued consensus recommendations as to how HUD might 

conform its program and civil rights regulations and policies. The Office of Public Housing 

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. 

172 
adopted many of the recommendations, while the Offices of Housing and Community Planning 

and Development did not.221 

The task force recommended that both the public housing and the assisted private housing 

offices require landlords to develop written procedures for providing reasonable accommodations 

to tenants. It recommended that the Community Planning and Development Office condition the 

grant of funds on the community’s submission of a credible fair housing plan and compliance 

with it. It recommended that all of HUD’s program offices provide housing recipients with the 

marketing techniques developed by the task force to ensure that accessible units would be 

occupied by families with mobility impairments. 

Finding V.M.2.a:	 HUD’s Occupancy Task Force issued numerous 

recommendations in 1994 as to how the funding programs 

could incorporate disability rights requirements into their 

operations. The Offices of Housing and Community Planning 

and Development did not adopt the majority of the 

recommendations. The recommendations resulted from 

agreement among public and private housing providers, 

advocates for elders and people with disabilities, and 

management organizations. 

Recommendation V.M.2.a: HUD should review and incorporate as many of the Occupancy 

Task Force recommendations as are applicable to HUD’s 

current Housing and Community Planning and Development 

programs. It should determine whether the recommendations 

can be applied to programs and initiatives that did not exist in 

1994 and the most effective ways of applying them. 

These conflicts focused the disability community’s attention on housing issues in several 

ways. In addition to the work that FHEO and PIH accomplished, HUD established the 

Secretary’s Office on Disability Policy. Created in 1995, it was the first secretarial-level office in 

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. 

173

HUD’s history to focus on the rights of individuals with disabilities. While it did not address 

enforcement issues per se, it brought disability advocates into regular meetings with Secretaries 

Henry Cisneros and Andrew Cuomo. The meetings alone raised the visibility of the disability 

focus on HUD’s programs. The office was also able to resolve some of the rights-program 

conflicts and succeeded in incorporating disability rights goals into both HUD staff performance 

revi ews and Notices of Funding Availability.222 

Finding V.M.2.b:	 The Secretary’s Office on Disability Policy brought Section 504 

and fair housing disability issues to the attention of HUD’s 

leadership. It encouraged the Secretary and his staff to meet 

with disability rights advocates, and it resulted in greater 

recognition among program staff of the implications of 

program regulations and guidance for individuals with 

disabilities. 

Recommendation V.M.2.b: HUD should maintain the Secretary’s Office on Disability 

Policy. HUD should assign it joint oversight with the Office of 

Administration, FHEO, and the Office of General Counsel for 

HUD’s Section 504 federally conducted responsibilities insofar 

as necessary to ensure that no HUD program operates in 

inaccessible buildings; that HUD conducts an effective selfevaluation of its policies, regulations, guidance, and practices; 

and that HUD drafts an employment needs assessment, 

develops a transition plan to correct deficiencies, and secures 

sufficient funding to implement the recommendations from its 

assessments and evaluations. 

Recommendation V.M.2.c: The Office on Disability Policy should have a director with 

experience in disability rights. The director should have at 

least one staff person for each of HUD’s offices, including 

FHEO. Each staff person shall be familiar with the operations 

222 For example, HUD Notice H 98-29, June 10, 1998, gives five bonus points to applicants for 

Section 811 funding if at least 51 percent of their boards are individuals with disabilities (p. 4). Also see 

note 236 for more examples. 

174 
and statutory responsibilities of the particular office. The staff 

person responsible for FHEO shall maintain continuing 

communication with the Assistant Secretary of FHEO and 

shall ensure that the two offices coordinate their activities. The 

office shall be responsible for conducting a “disability impact 

study” of HUD’s major initiatives, which will include specific 

recommendations for changes, expansions, and consultation 

with the civil rights community. 

3.	 HOPE VI’s Adoption of Townhouses to Replace Large Public Housing 

Buildings Has Significantly Reduced the Number of Accessible Units in the 

Public Housing Inventory. 

Congress created the HOPE VI program for the purpose of “transforming public housing 

projects into mixed income, diverse, and stable neighborhoods.”223 Unfortunately, HUD did not 

include individuals with disabilities in the design process, nor did it consider the impact of 

promoting the use of townhouses as the major design style to replace large, multifamily 

structures. Instead, HUD decided to replicate “the most stable and admired traditional 

neighborhoods,” or neighborhoods consisting “largely of two-story houses, often with raised 

front porches, which have been a barrier to people with mobility impairments.”224 

As a result of the work of the Secretary’s Office on Disability Policy and pressure from 

disability advocacy groups, HUD is now recommending, but not requiring, that HOPE VI 

projects include modified single-story homes; condominiums; co-ops with first-floor accessible 

flats; and two-story homes with elevators or lifts.225 

N.	 The Most Recent Years: 1998–2001 

1.	 FHEO and Departmentwide Coordination 

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. 

175 
The loss of resources and staff to the doubling campaign was only one of the pressures 

that forced FHEO to rethink its Section 504 enforcement efforts. The second source of pressure 

came from the disability community. Through FHEO directly and through the Secretary’s Office 

on Disability Policy, the disability community was able to communicate its demands for more 

effective enforcement of the civil rights laws throughout HUD. While the community received 

far less than it requested, FHEO and HUD did make some changes. 

FHEO joined the Offices of Housing and Community Planning and Development to issue 

notices to their recipients reminding them of their civil rights responsibilities. The first notice 

addresses recipients’ responsibilities to “affirmatively further fair housing.”226 The notice 

requires compliance with the new construction requirements of the FHA and warns recipients 

that if they fail to conduct an Analysis of Impediments to Fair Housing Choice and to take 

appropriate actions to address the findings of the analysis, HUD “may...reject the Consolidated 

Plan.” Presumably, HUD will not award funds to a recipients whose plans have been rejected. 

HUD does not make that clear in the notice, nor does it explain the process it will adopt to deny 

funds to recipients. Because recipients include cities whose size entitles them, by statute, to 

Community Development Block Grant and other HUD funds, the notice’s silence with regard to 

the procedure it will adopt or the weight of evidence that it will require to reject a city’s 

Consolidated Plan undermines the credibility of the threat. It would be encouraging if either the 

offices of CPD or FHEO are permitted to hire staff to enforce the notice. Nonetheless, the 

message is welcome and long requested by civil rights advocates. The notice also responds to 

House Appropriations language by encouraging recipient cities and states to adopt building codes 

that incorporate the accessibility provisions of the FHA. That, too, is welcome. 

The Office of Community Planning and Development recently issued two additional 

notices.227 Both address accessibility and program requirements of Section 504, the FHA, and the 

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 NonHousing Programs funded by Community Development Block Grant Funds – Section 504 of the 

Rehabilitation Act of 1973, the Americans with 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 

176

Americans with Disabilities Act (ADA). Because CPD grant recipients communicate most 

frequently with CPD staff and read CPD documents, HUD’s inclusion of civil rights information 

in these notices is appropriate and may be effective if the offices are adequately staffed to, if 

necessary, monitor compliance, answer recipients’ questions, provide technical assistance, and 

initiate enforcement actions. 

These noti ces, along wi th a similar notice is sued by the Office of Housin g,228 follow DOJ 

guidance from January 28, 1999, to enlist recipients of block grant funding in civil rights 

enforcement efforts.229 The year before, HUD proposed rules pursuant to the FHA as to how 

recipients of CDBG funds could “affirmatively further fair housing.”230 HUD withdrew the rules 

after a sustained negative response from CDBG fund recipients, led by the National League of 

Cities.231 It is hoped that the current Administration will embrace DOJ’s guidance and assist 

FHEO in enforcing these recent notices. 

HUD has also begun to include civil rights guidance in its funding publications. For 

example, HUD created the SuperNOFA (Notice of Funding Availability) in 1998 for the purpose 

of consolidating the application process of dozens of grant programs.232 Both FHEO and the 

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 

177

Secretary’s Office on Disability Policy successfully encouraged HUD to incorporate civil rights 

guidance in the NOFAs. 

This change had the salutary effect of notifying applicants for HUD funds of disability 

and other civil rights requirements in a way that was directly connected to the funding system.233 

The drawback to this approach was that only those who applied for specific HUD grants in the 

specific year learned of HUD’s policy. Had the policy been systematically codified, as TAGs had 

been in the 1980s, posted on the Web, or published in the Federal Register, the public and HUD 

staff would have been better served. 

Finding V.N.1.a:	 HUD has, for the past three years, included specific civil rights 

information in its Notices of Funding Availability (NOFAs). 

The information is limited and is not preserved in any form 

other than NOFAs. It has also issued notices to program 

recipients about civil rights obligations in the context of 

specific HUD grant programs. 

Recommendation V.N.1.a:	 HUD should continue to include civil rights requirements, 

especially Section 504 and other funding-related requirements, 

in NOFAs and other communications with recipients. HUD 

should maintain the information in a retrievable system for 

recipients and the public. HUD should assign sufficient staff 

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 application 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 application 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). 

178 
and resources to the grant programs and to FHEO, both to 

provide adequate technical assistance for voluntary compliance 

and to make the enforcement warnings credible. 

Both before and after HUD issued policy guidance through the SuperNOFAs, various 

HUD offices, including FHEO, used a variety of different vehicles to construe the application of 

Section 504: letters from FHEO and from the Office of General Counsel in response to questions, 

notices circulated internally and published in the Federal Register, internal memoranda, guidance 

documents in Q&A format, training materials, and correspondence with other agencies.234 These 

materials, however, are not collected in one place, are not cross-indexed, and are not searchable. 

In 2001, HUD established a Section 504 Web site on HUD’s Web page: 

www.hud.gov/fhe/504/sect504.html. In a press release issued January 19, 2001, Secretary Cuomo 

described the site as providing valuable information for recipients of HUD funds and for 

consumers with disabilities. In fact, the site provides basic information, an FHEO complaint 

form, the means to file a complaint online, links to Section 504 handbooks and regulations, and a 

useful Q&A. The site does not provide the links to HUD’s funding program regulations and 

handbooks or to non-FHEO policy guidance that would make it much more useful. The site is 

also difficult to find, requires searching though FHEO links, and is not identified by name on 

either the HUD or FHEO Web page. Nonetheless, this is a useful start. 

Finding V.N.1.b: FHEO and HUD have begun to use the Web to provide 

information to the public about programs, regulations, notices, 

and related sources of information and assistance. The FHEO 

Web page is promising but is difficult to navigate and does not 

include all of HUD’s past and current civil rights information 

and documents. 

Recommendation V.N.1.b:	HUD and FHEO should maximize their use of their Web sites. 

All HUD and FHEO information, guidance, and requirements 

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 easily could serve a wider audience through publication on the Web 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. 

179 
related to civil rights compliance and enforcement should be 

on the Web sites. In particular, information that is not 

retrievable in any other way should be on the Web sites. This 

includes information in grant documents, such as the 

SuperNOFA, that defines eligib ility for HUD funding in terms 

of civil rights compliance. 

O.	 Conclusion 

The history of Section 504 enforcement at HUD has been replete with good intentions, 

hard work, and partially fulfilled promises. It is discouraging to hear FHEO promise to conduct 

the same number of post-award compliance reviews in 2001 as it promised in 1989. The current 

Administration has the opportunity to provide strong support for meaningful enforcement of 

Section 504 and make Section 504 enforcement an effective tool in the mandate to make it 

possible for individuals with disabilities to live in the communities of their choice. 

180

SECTION VI


Effects of Policy Decision Making, Resources, Legal Decisions, and


Structure on Delivery of Enforcement 

A.	 Resources and Leadership Must Be Dedicated to Administrative 

Enforcement 

When rights are established by law and the enforcement of those rights is dependent on 

government resources, effective enforcement requires that strong organizational structures, 

resources, and policy leadership be dedicated to ensure that enforcement is prompt, effective, and 

thorough. Passage of a strong law is not enough to preserve rights; without resources and 

leadership for enforcement, rights will not be protected effectively. 

Organizational structures must produce consistent, reliable, impartial outcomes and must 

do so within reasonable time frames. 

Adequate resources must include sufficient staffing to perform statutory obligations and 

support training, education, and outreach activities, as well as permitting discretionary activities 

that are necessary to launch new initiatives. Resources also include substantive support to 

provide expert guidance and legal assistance both internally and externally. 

And leadership requirements must include commitments from Congress, from the 

Department of Housing and Urban Development, and from the Office of Fair Housing and Equal 

Opportunity to ensure fair and effective enforcement of a major piece of civil rights legislation 

that passed Congress with strong bipartisan support. 

The Office of Fair Housing and Equal Opportunity (FHEO), within HUD, is the only 

administrative entity with enforcement authority over FHA complaints. It has additional 

responsibilities for enforcing Section 504 of the 1973 Rehabilitation Act with respect to 

programs and operations funded with HUD financial assistance. Because it has such significant 

authority. It must effectively carry out a wide of range of duties: 

•	 It must assist people who believe they have been the victims of discrimination, 

through education, counseling, technical assistance, and, where appropriate, 

through the administrative complaint process. 

181

•	 It must help housing providers and housing-related industries to understand their 

obligations and rights under the law. 

•	 It must determine whether the government has jurisdiction over complaints. 

•	 It should refer those who feel that they have been discriminated against but who 

do not have complaints that are within FHEO’s jurisdiction to another avenue for 

assistance if one exists. 

•	 It must conduct fair and impartial investigations and make decisions in cases, in 

policies, and in guidance that are consistent with the enabling statutes and with 

judicial decisions that interpret and apply the law. 

•	 It must engage in efforts to resolve complaints through conciliation and 

settlement. 

•	 It must understand and interpret HUD program requirements consistent with the 

civil rights laws it enforces. 

•	 It must review factual and legal circumstances that range from the most simple 

manifestations of egregious discrimination to extraordinarily complex cases 

raising many factual issues and difficult legal interpretations. 

•	 It must reach conclusions promptly, fairly, and consistently, and it must protect 

the rights of those who file complaints and those against whom complaints are 

filed. 

•	 It must do its work quickly, reliably, and effectively. 

•	 When cases cannot be resolved voluntarily among the parties, it must move 

quickly to a disposition of the complaint, as directed by Congress. 

•	 It must ensure that cases involving criminal activities, those requiring injunctive 

relief, those involving the violation of a conciliation agreement or a Voluntary 

Compliance Agreement, those involving a pattern and practice of discrimination, 

and those under the FHA are referred promptly and with an adequate record to 

DOJ for further enforcement. 

•	 It must review the operations of recipients of financial assistance from HUD and 

ensure that federal funds are not being spent in a way that is inconsistent with 

congressionally imposed civil rights obligations. In doing so, it must engage in a 

182

variety of activities, from complaint investigations and compliance reviews to 

technical guidance and interpretations that will advance compliance with the law 

to invoking program sanctions when noncompliance with statutory and regulatory 

obligations exists. 

•	 It must have the resources and the time to identify civil rights issues where no 

complaint has been filed and address those issues, whether through a Section 504 

compliance review or through a Secretary-initiated complaint investigation. 

•	 It must effectively administer two programs authorized by the FHA itself—the 

Fair Housing Initiatives Program (FHIP) and the Fair Housing Assistance 

Program (FHAP)—in order to advance the purposes of the FHA. 

•	 It must undertake new initiatives to address and resolve civil rights issues that 

emerge as it engages in its civil rights enforcement and compliance activities.235 

A well-managed national civil rights enforcement effort requires an organizational 

structure that delivers and directs enforcement and compliance functions that are consistent, that 

comply with statutory obligations, and that are directed by substantive interpretations of the law. 

It requires goals and measures for performance that focus on effective performance within 

established parameters and that are based on key outcome-based measurements, including 

prompt investigation or resolution of complaints. It requires monitoring of the activities of field 

staff assigned to enforcement and compliance tasks to ensure that the projected actions are, in 

fact, occurring. It requires an adequate number of staff to perform the functions. It requires staff 

with adequate skills and training to be able to handle a variety of enforcement- and compliancerelated tasks effectively and reliably. It requires access to information, guidance, and other 

mechanisms, including the use of technology, that will ensure that case outcomes are reliable and 

235 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 1 964 Civil Rights Ac t, Secti on 109 of t he Housi ng and Commun ity Devel opment Ac t, Titl e II 

of the Americans with Disabilities Act, the Architectural Barriers Act, Section 3 of the Housing and 

Urban Development Act of 1968, and various Executive Orders. FHEO must lead the government in 

ensuring that federal 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 

obligations to respond to inquiries from the White House, members of Congress, industry representatives, 

and members of the general public. 

183 
consistent nationally. It requires the preparation and provision of sound guidance to enforcers, to 

housing providers and others covered by civil rights laws, and to the public. 

An effective national civil rights enforcement effort also needs funding—consistent, 

adequate funding for effective day-to-day operations, such as funding within HUD’s own budget 

for unusual or special projects that will advance enforcement, for the two special programs that 

deliver fair housing and civil rights enforcement-related activities outside HUD, and for travel 

budgets that are sufficient to permit on-site investigations when and where necessary. 

Finally, a national civil rights enforcement office needs substantive legal and interpretive 

guidance to its staff that provides the context for enforcement and compliance activities. It also 

needs strong substantive leadership to ensure that policy and case decision making are reliable 

and consistent and that all stakeholders have adequate notice of their responsibilities under the 

law. 

All these requirements must be provided in the context of congressional and departmental 

leadership. Without congressional leadership and a concurrent commitment from HUD’s 

leadership, civil rights enforcement efforts cannot be successful. 

B. 	 Organizational Structures Must Support Enforcement and Compliance 

Activities 

1.	 Overview of FHEO’S Organizational Structures That Set Enforcement and 

Compliance Priorities 

Management is a key factor in directing civil rights work. Leadership and direction of 

organizati onal activities occurs within F HEO in sever al ways. First, prioritie s are set thr ough 

governmentwide and agencywide structures, including a Strategic Plan and an Annual 

Performance Plan. Performance requirements for field operations are established through a 

Business and Operating Plan (BOP). 

Federal agencies have a governmentwide obligation to establish strategic plans, as 

required by the Government Performance and Results Act of 1993 (GPRA).236 GPRA requires 

each federal agency to prepare a strategic plan for its operations and submit it to the Office of 

Management and Budget and to Congress. The plans are required to include a broad mission 

236 5 U.S.C. Sec. 306 et seq. 

184 
statement, general goals and objectives, a description of how the goals are to be achieved, and 

performance goals, which are also required by federal law.237 

GPRA requires agencies to prepare five-year plans and to update them at least every three 

years. The first such plan had to be submitted by September 30, 1997. Political appointees, 

including the Secretary of HUD and the Assistant Secretary for FHEO, set priorities consistent 

with directions set by the President and Congress through the Strategic Plan. How those priorities 

are to be implemented are described in each agency’s Annual Performance Plan and implemented 

on a day-to-day basis through a BOP. 

Management and accountability occur through the day-to-day leadership by managers, 

both in Headquarters and in field offices, including the 10 regional HUB offices, through which 

most enforcement and compliance activities are conducted. Field offices report to Headquarters 

about their activities and, in particular, are required to report on their activities as described in the 

BOP. The BOP does not cover most, or even many, of the day-to-day operations of FHEO, and 

many of the directions, much of the guidance, and much decision making affecting operations are 

conveyed through FHEO’s Office of Field Management and Oversight through conference calls; 

through issuance of written guidance on particular issues; and through training, meetings of HUB 

directors, and informally. While some substantive limitations on conduct relating to enforcement 

and compliance occur through application of judicial and administrative precedent, many 

decisions are made on a situation-by-situation basis.238 

Accountability is also structured through position descriptions and elements that describe 

the performance criteria that are expected for each employee. Because elements describe the 

actual outcomes that are valued by the office, performance is expected to mimic the expectations 

described in the elements. Position descriptions and elements applicable to individual employees 

have a direct impact on performance to the extent that annual performance and subsequent pay 

increases are tied to these elements. 

237 5 U.S.C. Sec. 306(a). 

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

185 
2. 	 HUD’s Strategic Plan Has Only Limited Commitments to Improving 

Enforcement and Compliance in General and for People with Disabilities 

HUD’s current Strategic Plan covers the years 2000 to 2006. It has five Strategic Goals: 

•	 Increase the availability of decent, safe, and affordable housing in American 

communities. 

•	 Ensure equal opportunity in housing for all Americans. 

•	 Promote housing stability, self-sufficiency, and asset development of families and 

individuals. 

•	 Improve community quality of life an d eco nomic vitality. 

•	 Ensure public trust in HUD.239 

The strategic goal that addresses civil rights concerns is HUD’s goal to “ensure equal 

opportunity in housing for all Americans.” There are three strategic objectives under this goal: 

1. 	 Housing discrimination is reduced. 

2. 	 Minorities and low-income people are not isolated geographically in America. 

3. 	 Disparities in home ownership rates are reduced among groups defined by race, 

ethnicity, and disability status.240 

HUD’s strategic goals and their associated strategies and performance measures fail to 

focus on improving enforcement of civil rights laws. In particular, the objectives and measures 

do not address discrimination against people with disabilities. Under its objective describing 

HUD’s efforts to reduce housing discrimination, HUD presents only this performance measure: 

“Disparate treatment of racial and ethnic minorities in the home purchase market and in the rental 

market will decrease substantially as measured by a housing discrimination study.” 

This m easure does not at all address discrimination against people with disabil ities . It 

does not provide any measure for reducing discrimination in housing. It does not address 

enforcement activities or the significant ways in which discrimination occurs in ways other than 

disparate treatment, including denials or reasonable accommodations or modifications or failing 

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

240 Ibid., pp. 35–46. 

186 
to design and construct housing that is accessible. It proposes to assess perf ormance only by a 

study that it predicts will find substantial decreases in certain kinds of discrimination.241 

The text for this objective d oes me ntion disc rimin ation against peo ple wi th disabil ities . It 

says that HUD will toughen enforcement against discriminatory behavior, strive for more rapid 

responses to initial complaints of discrimination, increase the number of complaints referred for 

criminal prosecution, and “continue to fight discrimination on the basis of disability.”242 HUD 

also states that it will address the issue of accessible rental housing for people with disabilities, 

including conducting a major education campaign to inform state and local officials about 

accessibility provisions of the FHA and conducting a “baseline study of accessibility compliance 

in newly constructed multifamily housing developments.”243 There are no measures for 

performance addressing these laudable concepts, so there is no assurance that these activities 

will, in fact, occur. There is also no way to assess progress toward achieving them. HUD’s 

strategic objective that “minorities and low-income people are not isolated geographically in 

America” and its performance measure that “segregation of racial and ethnic minorities and lowincome households will decline” address neither enforcement nor compliance activities, and they 

do not mention people with disabilities and the segregation and discrimination they encounter in 

the housing market. 

The final strategic objective—“disparities in homeownership are reduced among groups 

defined by race, ethnicity, and disability status”—contains one performance measure: “The 

minority homeownership rate equals or exceeds 67.5 percent of the nonminority homeownership 

rate.” Neither the performance measure nor the accompanying text addresses techniques for 

increasing homeownership rates for people with disabilities. HUD merely reports that it is 

developing a measure for homeownership rates for persons with disability status. Enforcement 

and compliance activities are not discussed.244 

241 Ibid., pp. 41–42. 

242 Ibid., p. 41. 

243 Ibid., p. 42. 

244 The General Accounting Office 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 

187 
HUD’s previous Strategic Plan, proposed for FY 1999 to FY 2003, in stark contrast, 

contained text and several performance measures addressing civil rights enforcement and 

compliance directly.245 HUD noted that FHEO would “[c]ontinue to investigate all complaints 

and to take all required enforcement activity action whenever and wherever required.”246 

Among the performance measures adop ted by FHEO were t he followi ng: 

•	 Increase the number of Title VI and Section 504 compliance reviews by five per 

year over five years. 

•	 Increase the number of VCAs (Voluntary Compliance Agreements) executed 

under Title VI and Section 504 by five per year over the next five years. 

•	 Develop and carry out strategies to achieve commitments to increase visitability 

and accessibility for people with disabilities. 

In addition, measures included increasing in targeted cities the number of housing units 

accessible to people with disabi lities in integrated s ettings to offset hous ing lost th rough 

designation of public and assisted housing for the elderly, and, by the end of 1999, 

developing/modifying HUD data systems to capture the number of new and existing 

accessible/visitable units. These performance measures, if they had been implemented, would 

have resulted in significant changes that would have improved access and opportunities for 

people with disabilities. 

3.	 FHEO’s Current Annual Performance Plan Lacks a Strong Enforcement 

and Compliance Direction 

HUD further outlines its planned work in an Annual Performance Plan (APP). The APP 

“links the goals and objectives of the Strategic Plan with HUD’s policies, its programs, its budget 

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. 

188 
resources, and its partnerships with and impact on American communities.”247 HUD also has 

established an internal BOP process. It describes the BOP as “the internal, unifying management 

process all organizations use to establish, coordinate and implement strategies, office goals, and 

action plans that track measurable results for the year. The BOP identifies how HUD will 

accomplish the important outcomes for communities contained in the Annual Performance 

Plan.”248 

In its FY 2001 APP, FHEO has addressed some enforcement-related activities under the 

three strategic objectives identified in the Strategic Plan. Under the strategic objective “housing 

discrimination is reduced,” FHEO proposed: “The percentage of fair housing complaints aged 

over 100 days will decrease by 33 percentage points from FY 1999 levels to 40 percent of the 

HUD inventory.” FHEO also proposed: “The percentage of fair housing complaints aged over 

100 days will decrease by 15 percentage points from FY 1999 levels to 45 percent of the 

inventory of substantially equivalent agencies.”249 FHEO stated that at the end of FY 1999, 73 

percent of complaints in the HUD inventory were more than 100 days old, and 60 percent of the 

complaints in FHAP agencies were more than 100 days old. 

FHEO’s performance plan also contained a performance indicator that it would double 

HUD enforcement actions to 2,120 during the second term of the Clinton/Gore Administration. 

FHEO also indicated that it would direct state and local substantially equivalent agencies to 

improve their enforcement activities by setting a standard that at least 25 percent of FHAP 

agencies would increase enforcement actions by 20 percent over FY 2000 levels.250 FHEO’s 2001 

plan also committed to increase the accessibility of newly constructed housing by (1) conducting 

studies of the degree of compliance with FHA access requirements, (2) funding a project for 

accessibility training and technical assistance, and (3) establishing a new fair housing training 

academy to provide accessibility education to housing professionals. FHEO proposed to increase 

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. 

189 
the number of persons who were trained about accessible design and construction requirements 

by 5 percent over FY 2000 levels.251 

FHEO’s current performance plan does contain measures designed to address (but not 

resolve) its significant case backlog problem, but fails to address either the systematic 

inadequacies in the existing complaint processing system or the lack of Section 504 complaint 

investigation and compliance activity in recent years described earlier in this report.252 In 

addition, the APP’s focus on increasing education about accessibility does not address the 

significant enforcement issues that exist because of the construction industry’s noncompliance in 

constructing accessible housing, including housing funded with HUD funds, that is covered by 

both the FHA and Section 504. 

In sum, HUD’s current Strategic Plan and APP lack detailed outcome-based goals that are 

directed at improving enforcement and compliance, unlike previous plans. In the absence of goalsetting addressed to high-quality, consistent civil rights enforcement activity and a commitment 

to outcome-based monitoring and data systems that can meaningfully report and assess 

performance, FHEO’s performance cannot be expected to improve. 

Finding VI.B.3.a:	 HUD’s current Strategic Plan and APP do not contain 

adequate measures to address and correct the enforcement and 

compliance issues addressed in this study. 

Recommendation VI.B.3.a: HUD and its Office of Fair Housing and Equal Opportunity 

should review and revise both the current Strategic Plan and 

future APPs to include clearer goal-setting for case-processing 

issues. Such goals should be outcome-based and subject to 

monitoring activity designed to improve performance. 

251 Congress required HUD, in “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. 

190 
Finding VI.B.3.b: 	 HUD’s current Strategic Plan and APP lack specific measures 

and indicators for enforcement and compliance strategies to 

address housing discrimination against people with disabilities. 

Current strategies for studies and training about accessible 

housing only include fair housing violations and not Section 

504 violations. 

Recommendation VI.B.3.b: 

HUD and its Office of Fair Housing and Equal Opportunity 

should develop more focused goals in its Strategic Plan and 

future APPs that will directly address and increase 

enforcement of the FHA and Section 504, overall and for 

people with disabilities. 

Finding VI.B.3.c: 	 HUD’s current Strategic Plan and APP lack any reference to 

using Section 504 to address housing discrimination against 

people with disabilities. 

Recommendation VI.B.3.c: 

HUD shoul d revise its Strategic Plan and i mprove futu re APPs 

by including specific measures and indicators to reduce 

housing discrimination against people with disabilities using 

HUD’s Section 504 compliance authority. 

4.	 FHEO’s Business and Operating Plan Has Only Limited Application to 

Enforcement and Compliance 

As noted previously, FHEO sets standards for performance and implementation strategies 

for the APP through a BOP. The FY 2000 BOP for FHEO is notable, however, for its limited 

191

requirements for outcome-based performance.253 It had only two performance-based measures for 

HUD fair housing enforcement: (1) to double enforcement actions254 and (2) to reduce the 

percentage of HUD cases aged more than 100 days by 30 percent. It had only two performancebased measurements for FHAP agencies: (1) to reduce the percentage of cases aged more than 

100 days by 10 percent and (2) to have a 20 percent increase in enforcement actions by 25 

percent of the FHAP agencies.255 It contains no measures for performance of Section 504 

complaint investigations. It contains no performance requirements for the conduct of compliance 

reviews under HUD’s Section 504 or other civil rights statutes, although it contains some general 

measures for identifying areas of noncompliance during reviews of applicants for HUD funding. 

The commitments made by FHEO for enforcement and compliance lack substance and 

requirements for actual performance. HUD has missed a valuable opportunity in its current plans 

for future activities to improve and strengthen its enforcement and compliance.256 

Finding VI.B.4.a: 	 HUD has failed to make strong commitments to civil rights 

enforcement and compliance activities in its current planning 

and implementation process. 

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

254 See discussion at footnotes 64–72infra. 

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. 

FHEO reported that FHAP grantees increased their enforcement actions by 31, exceeding the national 

goal of 21 (however, 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. Again reflecting confusion in the goals, however, FHEO’s report 

claimed that the FHAP goal was to decrease its 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. 

192 
Finding VI.B.4.b: The most recent BOP for FHEO, like the Strategic Plan and 

the APP, does not establish performance-based measures 

designed to produce more effective enforcement and 

compliance. 

Recommendation VI.B.4.a: 

FHEO should develop more performance measures related to 

improved civil rights enforcement, including measures for 

improved performance of FHA and Section 504 complaint 

investigations and Section 504 compliance reviews. 

5. Organizational Structure and Accountability 

FHEO has gone through several reorganizations during the past 12 years. Its most recent 

organizational structure, approved in 1997 and implemented in 1998, established a General 

Deputy Assistant Secretary and two Deputy Assistant Secretary (DAS) positions, one for 

Enforcement and Programs and one for Operations and Management. The field staff reports to 

FHEO’s Headquarters office through 10 HUBs, to the General Deputy Assistant Secretary. 

Functionally, staff performance is overseen by field oversight staff, which monitors 

performance by the field and reports directly to the General DAS. Substantive support and 

guidance on enforcement and compliance matters, on disability issues, and on FHIP and FHAP 

are provided through the DAS for Enforcement and Programs.257 This reorganization was 

described as requiring, for the first time, that “Field FHEO components will perform all core 

functions at the lowest organizational levels, thereby empowering field managers to choose from 

a range of civil rights actions when responding to local needs.”258 Previously, FHEO was 

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 reor ganization, fi eld oversight s taff, using th e BOP requiremen ts, oversee su bstantive 

performance o f all of the fi eld operati ons. This of fice includ es some individu als with subs tantive 

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. 

193 
organized by statutory or functional responsibility. This reorganization was designed to provide 

“customer satisfaction and results” and to decrease the number of managers. Headquarters offices 

were redesigned to provide support to field staff.259 The proposal reduced FHEO staffing from 

646 to 591 positions.260 

Structurally, the reorganization produced, under 10 HUB Directors, a total of 18 program 

centers. Ten of the program cent ers are co-located in their s pecific HUB, and the remainder are 

dispersed around the country. Designed to make enforcement, compliance, and program 

functions available to the public at the lowest organizational level, the reorganization also 

disperses decision making to the lowest levels. (See Chart VI-1.) 

259 Ibid. 

260 Ibid. 

194 
Chart VI-1: Current FHEO Organizational Chart 

The 1998 reorganization did not demonstrably improve enforcement and compliance 

activities. The average age of open cases increased from 385 days to 497 days between 1998 and 

2000. Administrative closures increased from 15 percent to 21 percent of total closures. Cause 

cases did not significantly increase, and in FY 2000 they dropped. Virtually no Section 504 

compliance activities occurred during the period. In comparison, FHAP agencies—with smaller 

staffs, closer-to-the-ground decision making, and no comprehensive planning 

process—performed better than HUD. 

One conclusion that can be drawn is that more devolved decision making, at least at the 

national level, requires greater levels of management oversight and controls to ensure effective 

management of day-to-day operations of a national enforcement program. As noted, consistency 

and reliability of outcomes, as well as performance that is consistent with legal standards, policy 

195

guidance, and statutory requirements, is an expected outcome for a well-managed national civil 

rights operation. 

Finding VI.B.5.a: FHEO’s current devolved organizational structure has not 

improved the delivery of civil rights enforcement and 

compliance activities. 

Recommendation VI.B.5.a: 

FHEO’s organizational structure should be reevaluated to 

identify the changes that should be made to improve civil 

rights enforcement and compliance delivery. 

6.	 FHEO Should Improve Its New Monitoring System by Focusing on 

Outcome-Oriented Performance by Field Staff 

Especially in a devolved management structure, an important mechanism for ensuring 

ongoing effective performance by a field-based staff is the use of a strong on-site monitoring 

system. FHEO’s performance in conducting investigations was criticized by the HUD Inspector 

General in 1998 because it lacked an on-site monitoring process for its field officer operations.261 

FHEO senior management has recently instituted an on-site monitoring process called the 

Quality Management Review. FHEO reports that it monitored five HUBs in FY 2000. It expected 

to monitor the remaining five offices during FY 2001.262 The project also identified a total of 17 

best practices by its field offices. None of the best practices are explicitly tied to enforcement or 

compliance activities enforcing disability rights; however, several relate to increased enforcement 

activity generally. For example, the Chicago HUB was recognized for developing voluntary 

mediation processes for early resolution of complaints, for testing respondents to ensure 

compliance with conciliation agreements, and for a “Complaint Investigation How-To Manual.” 

Other best practices were less related to improved enforcement. 

The results of the Quality Management Review process were not available for review. 

FHEO provided a copy of the concept paper and the questions used by members of the Quality 

261 OIG, note 57, p. 13. 

262 Floyd May Interview, April 2001. 

196 
Management Review teams to conduct field assessments. Significantly, nether document 

describes or establishes outcome-based criteria for enforcement or compliance activities. Neither 

document identifies protocols for file reviews, analysis, or consideration of data, or observation 

of actual performance. Typical questions address procedures, rather than substance. For example, 

a HUB director is asked the following series of questions, among others: What are your 

procedures for monitoring the intake of claims/complaints? How do you monitor the progress of 

the complaint investigation? What is the process by which a case is submitted to you for 

concurrence?” 

The manager with direct oversight responsibility for investigations is asked questions 

such as these: “What monitoring systems are in place to ensure that new cases do not age? What 

mechanisms are in place to ensure that the oldest cases are processed first? Have you revisited or 

conducted another assessment of your aged-case strategy to determine whether any 

adjustments/modifications are needed? What is the average time between receipt of cases from 

intake and assignment to investigators? What are the criteria for assigning a case to a particular 

investigator? What is the procedure for monitoring investigation status? What is the procedure 

for conducting conciliation?” Investigators are asked, “What is the procedure for preparing an 

Investigative Plan? How are cases identified as appropriate for a subpoena? Who is responsible 

for reviewing and approving an Investigative Plan? How are cases identified and scheduled for 

on-site investigations?” and so forth. 

The questions do not address compliance functions. The process includes procedures for 

identification and correction of deficiencies, and, as noted above, for identification and 

recognition of best practices. 

It is too soon to measure the effect of the current on-site monitoring process. The recent 

implementation of an on-site management and operations review process, however, is a positive 

move by FHEO. Of particular importance is the process for recognition of outstanding or unique 

contributions to enforcement and compliance activities. Such recognition should include making 

available the process, outcome, or content of the practices to other offices so they can be 

replicated. 

7.	 FHEO’s Criteria for On-Site Monitoring Should Be Revised to Focus on 

Improved Substantive Performance, Not Process 

197

The new management review process appears to have serious deficiencies. An effective 

on-site monitoring process for civil rights enforcement should review both the quantity and 

quality of performance in all aspects of operations. It should review process, timeliness, and 

substantive content. It must contain aspects of technical assistance, sanctions to improve 

operations, and corrective actions. It should include recommendations for changing practices and 

procedures as well as guidance on best practices. It is just as important that, when deficiencies 

are found, there should be, wherever possible, corrective actions on individual cases, so that 

rights of individuals are not impaired by poor performance. 

FHEO’s on-site monitoring should look at every aspect of enforcement and compliance 

activities, at both the macro and micro levels. It should look at substantive content and 

performance, not simply process. 

a. Enforcement


FHEO on-site monitoring should do the following regarding enforcement:


•	 Evaluate how precomplaint intake is handled, whether appropriate interviews are 

conducted and correct information given, and how long the process takes against a 

national standard. 

•	 Review sample files from the handling of the claims process to ensure that 

decisions on whether to file complaints are made appropriately and consistent 

with legal and policy guidance. 

•	 Reverse decisions that are made erroneously. 

•	 Observe intake interviews and counseling that occurs with potential complainants. 

•	 Evaluate, using an on-site monitoring process, the quality and content of 

investigations and conciliations through file reviews as well as interviews. 

•	 Ensure that all investigations and conciliations are impartial and fair and the 

outcomes consistent with legal standards, policy guidance, and outcomes in 

similar cases in other offices. 

•	 Evaluate the numbers and timeliness of investigations by reviewing open and 

closed case files against national standards for timely processing, and consider the 

nature and extent of actual supervisory oversight of cases. 

198

•	 Evaluate areas where lapses in investigative or conciliation activity or unfocused 

and inappropriate investigative activity have interfered with the processing of a 

case. 

•	 Evaluate cases to determine whether all victims of discrimination have received 

an appropriate remedy and whether resolutions have resulted in changed policies 

and practices. 

•	 Monitor resolutions of cases and act on failures to comply with conciliation 

agreements. 

•	 Require field staff to identify properly and take appropriate actions in potential 

cases or situations where temporary injunctive relief, subpoena issuance, and 

other relief should be sought. 

•	 Investigate zoning and land use cases in adequate time to allow DOJ to review 

and act upon cases, because the FHA requires DOJ to file zoning and land use 

cases within 18 months from the act complained of. 

•	 Have field staff identify cases and situations where a Secretary-initiated complaint 

should be sought to remedy discrimination where no individuals have filed 

complaints. 

•	 Have field staff properly identify and promptly act upon cases where patterns and 

practices of discrimination justify a referral to DOJ for enforcement. 

•	 Establish benchmarks for all aspects of enforcement activity, and monitor 

activities so as to hold managers and staff accountable for compliance with those 

benchmarks. 

b. Compliance 

FHEO on-site monitoring should do the following regarding compliance: 

•	 Start with clear measures for the initiation of compliance reviews, including the 

number, type, and scope of compliance reviews to be conducted within a given 

time frame. 

•	 Review the sites already reviewed, the sites scheduled for review, and the basis 

for deciding to conduct the review. 

199

•	 Evaluate open and closed files for compliance reviews to ensure that there are no 

significant lapses in activity, and that remedial and corrective actions have been 

proposed and taken in a timely fashion. 

•	 Review letters of compliance and noncompliance for consistency with national 

policy, legal standards, and actions taken elsewhere. 

•	 Take remedial actions, including program consultation, where noncompliance has 

been identified. 

•	 Make recommendations for suspension or termination of funding promptly and 

corr ectly. 

c. FHAP-Related Activities 

FHEO on-site monitoring should do the following regarding FHAP-related activities: 

•	 Evaluate FHEO staff’s review of FHAP agency performance. Establish national 

benchmarks for consistent performance by FHAP agencies. Objective benchmarks 

could include areas such as administrative closures, case and inquiry processing 

time, time for commencement of an investigation, and number of complaints 

resolved. 

•	 Confirm that FH EO monitors conduct individual case monitoring wit hin 45 days 

from the dat e of closure o f a complaint by an FHA P agency. 

•	 Examine field staff review cases to ensure that the investigative process has 

provided an appropriate investigation. If FHAP agency performance is generally 

acceptable, a specified percentage of cases should be selected for in-depth review, 

and the remainder monitored only for obvious deficiencies or as a result of 

complaints about performance. Benchmarks for measuring an appropriate 

investigation should include evaluating the nature and scope of the investigation 

to ensure that it investigates each of the respondents’ defenses and the 

complainants’ allegations; that similarly situated persons are identified and their 

treatment analyzed; that appropriate documents are collected and appropriate 

witness interviews conducted; that policies, practices, and procedures related to 

the case are reviewed; and so forth. FHEO should use HUD’s Title VIII manual 

standards, and the monitoring of the FHEO field staff should ensure that the 

200

standards are being applied. Cases that are inadequately investigated should be 

remanded to the agency for further work, even though that additional work may 

require HUD to hold the case open longer than the 45-day monitoring period. 

•	 Examine FHEO’s monitoring of relief sought and granted by FHAP agencies to 

determine whether the relief being sought reflects the nature of the case and the 

available evidence. 

•	 Evaluate areas such as the issuance of determinations of reasonable cause and the 

processing of charges after investigation; the use of temporary injunctive relief, 

subpoenas, and discovery; the criteria on which determinations of no reasonable 

cause are made; and other related performance issues. 

•	 Monitor its own staff’s use of Performance Improvement Plans and suspension 

and termination of funding to ensure that these corrective actions have been used 

appropriately and effectively and have been preceded by notice of problems and 

an opportunity to correct those problems. 

•	 Interview representatives of FHAP agencies to detect any performance, 

communication, or retaliation in the handling of FHAP matters. 

•	 Offer to FHAP agencies that perform outside the norms for such agencies 

appropriate technical assistance and training to correct inadequacies, and to FHAP 

agencies performing exceptionally, the opportunity for additional funding and 

other recognition for their practices. Criteria for exceptional behavior should be 

established an d monitored nationally. 

d. FHIP-Related Activities 

FHEO on-site monitoring should do the following regarding FHIP-related activities: 

•	 Monitor FHIP agencies carefully. FHIP agency performance, while harder to 

quantify them as FHAP activities, should be evaluated by benchmarks as well. 

Some objective benchmarks for FHIP performance include the time from an initial 

inquiry to the co nduct of tests, if appropriate, and refe rral to an appropriate entity; 

use of appropriate testing techniques in a timely fashion; and completion of 

special enforcement projects in the established time frame. 

201

•	 Monit or FHEO on it s prov ision of tr ainin g and technical assistance to FHIP 

recipients and on its treatment of FHIP recipients. Monitor FHEO’s 

communication with FHIP agencies through interviews with FHIP recipients. 

•	 Monitor FHEO on its ability to provide timely responses to FHIP inquiries and to 

process or communicate about any problems in processing complaints filed by 

FHIP recipients. 

•	 Include a review of individual cases and their resolutions. 

•	 Evaluate FHEO’s response to complaints about FHIP performance, including 

nonresponsiveness to inquiries, improper tactics, and nonperformance. 

•	 Establish benchmarks to standardize its basic requirements for private 

enforcement funding and ensure that field staff review performance according to 

those benchmarks. 

All on-site monitoring should address the relationship between FHEO and legal counsel 

to ensure that counsel have been involved in case discussions, that legal guidance is provided in a 

timel y and con sistent fashion , and t hat counsel have been consult ed where appropri ate. In 

addition, cases should not be delayed by the need to seek legal guidance. A full on-site 

monitoring process should review the nature and content of training and technical assistance 

provided to the public, to advocates, to recipients, and to FHAP and FHIP program participants. 

All monitoring should require adherence to national policy guidance, BOP and APP 

standards, and Strategic Plan goals. 

Finding VI.B.7.a: 	 FHEO needs to continue and expand its on-site monitoring 

process. It should monitor more specific BOP and APP goals as 

recommended above, and it should use its on-site monitoring 

process as a way of ensuring that performance standards are 

met and field staff are performing adequately. 

Finding VI.B.7.b: 	 An on-site monitoring process should have as its primary goal 

the assurance of prompt, effective enforcement and compliance 

outcomes. Benchmarks for performance should be set and 

monitored. Offices that do not meet these benchmarks should 

202

receive direct technical assistance and sanctions, if necessary, 

to improve performance. 

Recommendation VI.B.7.a: 

FHEO should continue its on-site monitoring process and 

ensure that it includes adequate benchmarks, actual 

observation and review of performance, and outcome-based 

reviews so that the process improves its enforcement and 

compliance operations consistent with the other 

recommendations of this report. 

8.	 FHEO’s Performance Requirements for Individual Employees Should Focus 

on Enforcement and Compliance Outcomes 

Effective individual performance by federal employees can be directed through the use of 

position descriptions and performance elements that describe the duties of each employee and the 

quantity of work that is required, as well as the standards for performance of the duties. 

Outcome-based measures that address the quantity and quality of work expected of each 

employee could assist in improving enforcement and compliance activities overall. 

For example, if an employee responsible for assisting potential complainants has a 

performance element that requires all claims handled by that employee to be reviewed, evaluated, 

and concluded to disposition within 20 days from receipt of the claim by HUD in order to 

perform at an outstanding level, performance on handling claims would presumably improve. 

Similarly, if investigators are required to complete 80 percent of the investigations assigned to 

them within 80 days from the date on which complaints are filed in order to meet performance 

expectations, investigations could reasonably be expected to be shorter than their current 

duration. Although HUD’s PriceWaterhouse study recommended that new performance-based 

elements be developed and implemented for individual employees engaged in enforcement 

activities, such elements were never put into place.263 

263 “Focused Enforcement: The Business Process Redesign of the Title VIII Housing

 Discrimination Investigation Process,” PriceWaterhouse, March 8, 1996, p. IX-7. 

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Finding VI.B.8.a: 	 FHEO lacks sufficient performance-based criteria for its 

employees to ensure that they perform at appropriate levels. 

Recommendation VI.B.8.a: 

FHEO should implement performance-based elements for staff 

engaged in enforcement and compliance functions. 

9.	 HUD’s Legal Guidance Should Be Compiled and Organized to Support 

Enforcement and Compliance Activities 

The source o f FHEO’s legal guidance is H UD’s Office o f General Co unsel. Alt hough 

some of FHEO’s staff are attorneys, legal advice comes to FHEO and its staff formally through a 

separate part of HUD’s organizational structure. Legal counsel are responsible to the General 

Counsel of HUD, rather than to the Assistant Secretary for FHEO. 

The portion of HUD’s Office of General Counsel responsible for giving legal advice on 

fair housing issues has remained reasonably consistent in its organizational structure. Its staff has 

institutional knowledge and, generally, a high level of expertise on civil rights issues. Over the 

past 10 years, the Counsel’s office has had a fair housing division in Headquarters. Elevated in 

the past year to being headed by an Associate General Counsel, the Headquarters office has two 

parts, one dedicated to enforcement and the other to programs and compliance. Each HUB has its 

own field counsel office, with one or more attorneys performing fair housing work. However, 

these field counsel do not report to the Associate General Counsel for Fair Housing but to the 

Deputy General Counsel. That means that field counsel lawyers can be assigned other work 

without any assurance that fair housing work will receive priority. As with FHEO’s HUB 

directors, assistant field counsel have broad latitude in staff assignments and legal decision 

making. 

There is little or no common ground for legal guidance nationally. Aside from occasional 

legal opinions prepared at the request of the Headquarters Office of Enforcement and a body of 

case law generated by decisions issued by HUD ALJs, each field counsel office develops its own 

legal analysis process, its own strategy for cases, and its own internal case management system. 

There is no single source of information about interpretative opinions that have been issued by 

204

any of the counsel offices,264 and there is no single source of information available through HUD 

about federal or state judicial decisions interpreting the FHA and Section 504 for findings of 

cause and no cause in FHA cases or findings of compliance or noncompliance in Section 504 

cases or compliance reviews handled by HUD, or about conciliations, voluntary compliance 

agreements, or settlements reached by HUD, DOJ,265 FHAP agencies, or courts in these cases. 

Virtually all this information, other than legal guidance on cases that are in investigation, 

is public information by statute266 or by practice. Access to this baseline information is critical to 

successful civil rights enforcement work, and HUD should make it a priority to gather this 

information both from Headquarters and from field counsel offices and make it available to its 

own staff and to the public.267 Some of this information is already available online; the National 

Fair Housing Advocate, for example, provides an inexpensive, easily searchable database of fair 

housing cases that is ADA-compliant, as well as ready reference to HUD resources, statutes, and 

regulations.268 Access to this information could be made readily available to HUD staff quickly 

and inexpensively. 

Finding VI.B.8.b: HUD lacks legal information resources that are critical to its 

enforcement and compliance work in enforcing Section 504 

and the FHA. 

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

265 DOJ 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 Federal Government agencies should consider the requirements of 

Section 504. Because Section 508 of the Rehabilitation Act also covers federal agencies, the information 

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 FHIP. It is located at 

www.fairhousing.com. 

205 
Recommendation VI.B.8.b: 

At a minimum, HUD should provide access to comprehensive 

fair housing legal information that is searchable by name of 

case, issues, or keyword. The information that should be made 

available includes information on FHA and housing-related 

Section 504 state and federal judicial decisions, determinations 

that there is or is not reasonable cause to believe that a 

violation of the FHA has occurred, determinations by HUD 

that there is compliance or noncompliance with Section 504, 

conciliation agreements, VCAs, settlements in FHA cases, and 

legal and interpretive opinions issued by the Office of General 

Counsel on significant issues relating to the FHA and Section 

504. This information should be made available to HUD staff 

and to the public, and it should be made available in accessible 

and alternative formats. 

Recommendation VI.B.8.c: 

HUD should immediately provide access for FHEO and 

counsel staff to the searchable, ADA-compliant fair housing 

and civil rights case database available online through the 

National Fair Housing Advocate. 

C. 	 Organizational Resources Supporting Enforcement and Compliance 

Have Not Been Adequate 

1.	 FHEO Has Not Been Adequately Staffed to Perform Enforcement and 

Compliance Activities 

Adequate staffing is an important component of civil rights enforcement. Enforcement is 

a staff-based activity. Enforcement tasks require interviews; data collection and analysis; on-site 

visits; preparation of written materials, including complaints, investigative plans, investigative 

206

reports and letters, conciliation agreements, and Voluntary Compliance Agreements; and other 

related activities, such as counseling, training, advice, and community education. 

a. 	 FHEO Staffing Overall Has Dropped Significantly During the Past 10 

Years 

FHEO’s staffing has consistently been reduced over the past 10 years. Overall, FHEO’s 

staff has decreased by 7 percent in the 11 years since the FHA was amended. FHEO’s full-time 

staffing level was at 625.1 full-time equivalent (FTE) positions in 1989; it was down to 584 

FTEs in FY 2000. Staff levels overall reached high points in FY 1992 and FY 1994, at 740 and 

750 FTEs, respectively, and then began dropping (see Chart VI-2). From 1995 to 2000, FHEO 

staffing dropped almost 25 percent. In addition, during the years when FHEO staffing reached its 

highest levels, many of those employees were hired on a temporary basis for a period not to 

exceed two years.269 This prevented the development of a permanent, skilled workforce within 

FHEO. Further losses of staff occurred when HUD instituted its Community Builder program. 

Many senior FHEO staff and mid-level managers were hired into the Community Builder 

program. As a result, the years of training, experience, and management experience were lost to 

FHEO.270 

Chart VI-2: FHEO Staffing Levels, FY 1989–FY 2000 

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 of 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. 

207 
During the most recent two fiscal years, FHEO was staffed below even its HUDauthorized ceiling. In FY 1999 and FY 2000, the maximum number of staff approved internally 

by HUD for FHEO was 650, but FHEO’s actual staffing was at 592 and 584, 91.1 percent and 

89.8 percent of the ceiling, respectively. 

FHEO has recently been staffed relatively lower than other program areas at HUD. For 

example, in 1999, FHEO was staffed at 585 FTEs. At that time, FHEO’s ceiling for employees 

(the supposed highest level of staffing permitted for FHEO by HUD decision makers) was 650, 

so FHEO was 65 FTEs below its ceiling. At that same time, HUD’s Office of Community 

Planning and Development was staffed at 76 persons above its ceiling and the Office of 

Administration was staffed at 184 above its ceiling. The Office of General Counsel had 78 

persons above its ceiling. At the same time, there were 810 Community Builders, more than 

when FHEO was staffed at its highest level during the 1990s.271 In 1999, FHEO was staffed at 10 

percent below its ceiling with approval to hire only 10 additional employees. In comparison, 

HUD’s Office of Housing was staffed 4.6 percent below its ceiling and had approval to add 106 

employees, which would have brought it to only 1.6 percent under its ceiling. 

271 HUD Staffing Status, November 17, 1999. 

208 
b. Enforcement Staffing Has Dropped 

The number of enforcement staff has also dropped, but not as sharply. From 270 FTEs in 

1990 (the first full year that enforcement of the FHA increased as a result of the 1989 

amendments), enforcement staffing increased to a high of 406 in 1994 and then dropped again to 

319 in FY 2000 (see Chart VI-3). 

Chart VI-3: Staffing of FHEO’s Enforcement Activities, FY 1989–2000 

The 1996 PriceWaterhouse study of HUD’s enforcement of the FHA recommended that 

FHEO be staffed at a level that permits, on average, each investigator to be required to close no 

more than 40 cases a year, with a case load of no more than 15 at any given time.272 Staffing 

272 “Focused Enforcement: The Business Process Redesign of the Title VIII Housing 

209 
resources have not been provided consistent with that recommendation. Because investigators are 

required to investigate cases other than FHA complaints—including complaints filed only under 

Section 504, Title VI, or any of the other nine laws and Executive Orders enforced by 

FHEO—the actual staff levels are even further below the recommended levels.273 

Staffing levels have direct correlations to performance on cases. Especially since FHEO’s 

enforcement staff numbers dropped during the mid- to late 1990s, the average age of open cases 

has increased, it takes longer to settle cases, fewer charges have been issued, and fewer 

complaints have been filed. Although staffing levels are clearly not the only factor affecting the 

processing of cases, they are clearly an important factor. 

The PriceWaterhouse study also recommended that organizational units managing 

investigations have at least one supervisor to every seven to eight employees.274 The 1998 

reorganization not only reduced staff numbers overall, it created enforcement branches with an 

investigative staff-to-manager ratio averaging 1 supervisor to every 9.3 investigators.275 (In 

HUD’s personnel system, investigators have official job titles of Equal Opportunity Specialists 

with federal pay grades ranging from GS-9 to GS-13.) In addition, staff performing compliance 

functions were separated from investigative staff and assigned to a separate office in the field, 

called the Program Operations branch. This reorganization also separated Section 504 

enforcement activities from Section 504 compliance activities. It gave HUB directors and 

program cent er di rect ors more res ponsibility in directing o perations within their aut hority. 

There is no study comparable to the PriceWaterhouse study of staffing needs for 

compliance activities. Given other findings of this report regarding the inadequacies in the 

numbers and performance of compliance work by FHEO, a similar study analyzing FHEO’s 

 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, p. VIII-7. 

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

210 
goals for conduct of timely compliance activities should be conducted, and staffing and 

supervision numbers should be increased accordingly 

Finding VI.C.1.a: HUD’s staffing of FHA and Section 504 enforcement activities 

has decreased significantly over the past 11 years. 

Finding VI.C.1.b: During the past four years, the Office of Fair Housing and 

Equal Opportunity has not been given adequate staffing 

resources to perform its enforcement work. 

Finding VI.C.1.c: As staffing increases to appropriate levels, additional 

supervisors will be necessary to oversee day-to-day activities 

effectively. 

Recommendation VI.C.1.a: At a minimum, FHEO should be provided with enough skilled 

nontemporary staff FTEs to ensure that each investigator 

carries no more than 15 FHA cases or the equivalent at any 

time. Additional staffing should be provided to ensure that 

enforcement activities under Section 504 are conducted at a 

meaningful level in each HUB. 

Recommendation VI.C.1.b: 

At a minimum, FHEO should be provided with enough 

supervisory staff to permit a ratio of one supervisor to every 

seven or eight investigators. An analysis similar to the 

PriceWaterhouse study of staffing needs for compliance 

activities should be conducted, and staff should be increased 

accordingly. 

c.	 Staffing of Compliance Activities Has Dropped Significantly and Is Now 

Half the 1989 Level 

Finally, staffing of HUD’s compliance functions (which include Section 504 compliance, 

as well as compliance activities related to other civil rights laws and executive orders enforced by 

211

FHEO) has also dropped to less than half the staff to perform compliance work in 1989. 

Compliance staff levels in 1989 were 130.1; by FY 2000 the number of all compliance staff was 

down to 61 (see Chart VI-4). 

Chart VI-4: Staffing of FHEO’s Compliance Activities, FY 1989–FY 2000 

Over the past several years, FHEO has been criticized for its performance in conducting 

compliance reviews. An audit report by HUD’s OIG in 1998, for example, found that “FHEO did 

not always ensure that HUD recipients complied with applicable requirements of Section 504.”276 

One of the findings of the Inspector General was that HUD should provide consistent supervisory 

oversight to ensure that compliance reviews are conducted in a timely fashion.277 Among the 

subsidiary findings were determinations that actions were not taken to ensure the timely 

completion of compliance reviews and that even when reviews were completed, actions were not 

taken to ensure that corrections were made.278 

276 OIG, note 57, p. 20. 

277 Ibid., p. 26. 

278 Ibid. 

212

NCD’s review indicates that inadequate staffing and supervision contributed to this 

problem. If resources are limited, staff conducting compliance activities are frequently 

reassigned.279 Unlike other agencies that perform only compliance work, FHEO has a demanddriven system that requires many resources to enforce the FHA. FHEO staff acknowledge that 

compliance work has not been conducted because staff have been diverted to other priorities, 

specifically, FHA priorities.280 

There is no study comparable to the PriceWaterhouse study of increased effectiveness of 

compliance activities. Given other findings of this report regarding the inadequacies in the 

numbers and performance of compliance work by FHEO, a similar study analyzing FHEO’s 

goals for conduct of timely compliance activities should be conducted, and staffing and 

supervision numbers should be increased accordingly. In addition, compliance activities should 

be organized and directed on a more consistent basis to ensure that they are not overlooked as 

other demand-driven priorities use resources. 

Finding VI.C.1.d: 	 For at least the past four years, the Office of Fair Housing and 

Equal Opportunity has not been provided with enough 

resources to perform a reasonable amount of compliance 

activity. 

Finding VI.C.1.e: 	 HUD’s doubling of enforcement activities took valuable staff 

and resources away from compliance activities. 

Finding VI.C.1.f: 	 Compliance activities suffer when staff are reassigned to 

perform other demand-driven activities. 

Finding VI.C.1.g: 	 FHEO’s compliance review process has not been the subject of 

a significant external review in the same way that 

PriceWaterhouse reviewed the FHA process. 

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. 

213 
Recommendation VI.C.1.c: 

FHEO should be provided with adequate staff, in addition to 

enforcement staff, to ensure that compliance activities are 

ongoing, consistent, and completed in a timely manner. 

Organizational structures should ensure that staff are 

allocated in a way that permits compliance staff to be protected 

from such demands to ensure that compliance work is an 

ongoing and consistent process. 

Recommendation VI.C.1.d: 

FHEO’s compliance review process should be reviewed and 

analyzed by an external entity, such as 

PricewaterhouseCoopers, and its operations revised for greater 

efficiency and effectiveness. 

d.	 Lawyers in the Field Offices of Counsel Should be Provided in Adequate 

Numbers to Support Enforcement and Compliance Activities 

As noted, the OGC, although it has an Associate General Counsel for Fair Housing and a 

Head quarters staff with two Assistant Gener al Counsel, does not consistently have at torneys 

dedicated to fair housing work in its 10 regional, or HUB, offices. Each of the offices has its own 

structure and staffing patterns, and frequently fair housing attorneys at the field level are required 

to perform work in areas other than fair housing. HUD’s OGC was unable to provide information 

about the number of attorneys assigned to fair housing enforcement activities during the past 11 

years. If there are inadequate numbers of counsel to handle cases, provide advice, offer legal 

opinions, and even participate in investigations, it will be harder for FHEO to perform its 

enforcement and compliance activities. 

Finding VI.C.1.h: 	 There is inadequate information from which to determine 

whether staff attorneys have been provided in adequate 

numbers to support FHA and Section 504 activities. 

Recommendation VI.C.1.e: 

HUD’s Office of General Counsel should evaluate its staffing 

214

of the fair housing and civil rights enforcement functions to 

ensure that there are adequate numbers of staff attorneys to 

support those functions. No case should be delayed and no 

rights should be jeopardized because of lack of available legal 

resources. 

Consistent and prompt legal advice in support of civil rights enforcement and compliance 

activities is an important component of effective actions. Generally, interviews with current 

HUD staff indicate that the relationship between the OGC and FHEO is working reasonably well. 

Legal counsel should be readily available at every stage of the investigatory process, from 

evaluating whether or not HUD has jurisdiction over a particular case to planning complex 

investigations to seeking temporary injunctive relief or subpoenas to evaluating the quality and 

quantity of the evidence gathered to seeking appropriate remedies to making a final decision on 

whether or not civil rights laws have been violated. 

During the past 12 years, suggestions have occasionally been made that the lawyers 

working on fair housing and civil rights issues should report to the Assistant Secretary for FHEO 

rather than to the General Counsel to ensure consistency between policy leadership and legal 

guidance. This model, which is used at the Equal Employment Opportunity Commission and 

some other agencies conducting Section 504 compliance activities, should be examined by HUD 

to determine whether it would improve delivery of enforcement and compliance activities. 

Others argue that the separation of the two functions provides a checks and balances 

system that is properly addressed by leaving determination decisions in FHEO with legal advice 

by counsel considered in the decision making. If the consistent guidance about legal 

developments—including legal opinions, judicial developments, and determinations in cases and 

compliance reviews—is made available as recommended above, merger of counsel staff and fair 

housing/civil rights staff may not be needed to improve delivery of enforcement and compliance 

services. 

Recommendation VI.C.1.f: HUD should consider whether its civil rights attorneys should 

report to the Assistant Secretary for Fair Housing and Equal 

Opportunity, after implementing a more effective legal 

guidance delivery system. 

215 
2. 	 Funding for the Two Major Programs Authorized by the Fair Housing Act to 

Address Enforcement Has Been Inconsistent and Management Practices 

Problematic 

During the past 11 years, congressional appropriations for the two major FHEO 

programs, FHIP and FHAP, have increased significantly. In significant areas affecting the 

enforcement of civil rights, however, funding has diminished. In addition, management issues in 

the FHIP program have adversely affected enforcement. 

a. 	 The Fair Housing Initiatives Program Has Not Been Consistently Funded 

by Congress 

FHIP is the program developed by Congress and advocates in 1988 to provide funding for 

fair housing-related activities by nongovernmental entities. Organizations that are eligible for 

FHIP include private fair housing groups, state and local government agencies enforcing fair 

housing laws, advocacy groups, and other nonprofit organizations. The statutory language in the 

FHA authorizes the Secretary to fund public or private nonprofit organizations or other public or 

private entities that are carrying programs to prevent or eliminate discriminatory housing 

practices.281 Eligible activities include “programs or activities designed to obtain enforcement of 

the rights granted by” the FHA and “education and outreach programs designed to inform the 

public concerning rights and obligations” under the FHA.282 

HUD administers FHIP as a competitive grant program, giving it little administrative 

oversight a uthority.283 FHIP activities have occasionally been controversial; for example, a study 

prepared by the General Accounting Office at the request of Senators Larry Craig, Ted Stevens, 

and Michael Crapo addressed the role of FHIP recipients in collecting information and 

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, it should be administered as a basic grant 

program for eligible entities, somewhat as HUD administers its FHAP, with a higher degree of emphasis 

on training, technical assistance, and quality assurance and less emphasis on administration of a 

competit ive grant program. 

216 
identifying potential violations of the FHA’s design and construction requirements.284 Members 

of Congress have occasionally criticized FHIP recipients’ conduct as advocates for the rights of 

victims of discrimination, and this criticism has resulted in congressional inquiries and sometime 

sporadic funding of FHIP. 

FHIP recipients provide a range of services and activities that are critical to enforcement 

of civil rights issues. They are community-based, so they provide education, technical assistance, 

advocacy, and case-processing levels where federal, state, and local governments lack a civil 

rights presence. Because they are active in their local communities, they can provide quicker, 

localized responses to local civil rights concerns. They provide counseling and local referrals to 

many people who may seek to file fair housing complaints but who do not have claims, and they 

assist many others in investigating and filing claims and complaints. FHIPs routinely conduct 

“testing,” an investigative technique whereby individuals posing as homeseekers gather 

information from which others—typically test coordinators and, later, investigative 

agencies—reach conclusions about whether discrimination may have occurred.285 

Funding requests for FHIP have been erratic over the past 12 years, as have congressional 

appropriations. HUD’s funding requests have ranged from $6 million to $30 million. In most 

years, the congressional appropriation has fallen below the amount requested in the President’s 

budget request. For example, in 1997, the budget request was for $18 million, but Congress 

appropriated $15 million. In 1998, the request was for $24 million but only $15 million was 

funded. The highest funding level for FHIP was for FY 1995, when $26 million was requested 

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). 

217 
and appropriated. This budget was passed in 1993.286 Table VI-1 lists the funding for the Fair 

Housing Initiatives Program from 1990 to 2000. 

Table VI-1: Funding for the Fair Housing Initiatives Program, 

FY 1990–FY 2000 

Fiscal Year President’s Budget Request 

(In millions)

 Appropriation 

(In millions) 

1990 6.0 5.6 

1991 5.6 5.7 

1992 8.0 8.1 

1993 7.6 10.6 

1994 27.5 20.5 

1995 26.0 26.0 

1996 30.0 17.0 

1997 18.0 15.0 

1998 24.0 15.0 

1999 29.0 15.0287 

2000 27.0 18.0 

2001 29.0 16.5 

286 For FY 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 F HIP. This expendi ture by HUD has been the subj ect of co ntrover sy 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 FY 2002 is $23 

million for FHIP and indicates that it expects that this funding level will fund only 72 percent of eligible 

applicants. Its FY 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. 

218 
 FHIP funds full-service private fair housing organizations to conduct enforcement 

activities through its Private Enforcement Initiative. Full-service organizations are those that 

provide a range of education and enforcement activities relating to discrimination on all bases 

covered by the FHA. In general, people with d isabilities are served by the groups fu nded through 

the program in the same way African Americans, Latinos, women, and members of other groups 

are served. FHIP has also historically funded groups that serve people with disabilities 

exclusively or primarily. Funding for programs that provide fair housing assistance primarily or 

exclusively to people with disabilities has ranged from 2.01 percent of the FHIP allocation in 

1989 to 11.25 percent in 1999 (see Table VI-2). HUD does not maintain records indicating the 

percentage of applicants that sought funding for programs serving people with disabilities; there 

is no indication that the variance in funding levels is attributable to any factor other than the 

number and quality of applications. 

Table VI-2: FHIP Funding Addressing Discrimination Against People with 

Disabilities, FY 1990–FY 2000 

Fiscal Year Total FHIP Allocation 

(In millions) 

Total for Disability-Specific 

Projects (In dollars)(% of total) 

1990 5.6 116,865 (2.01%) 

1991 5.7 434,897 (7.6%) 

1992 8.1 272,911 (3.36%) 

1993 10.6 325,586 (3.07%) 

1994 20.5 702,078 (3.4%) 

1995 26.0 605,688 (2.4%) 

1996 17.0 994,733 (5.85%) 

1997 15.0 749,446 (4.99%) 

1998 15.0 643,259 (4.3%) 

1999 15.0* 1,688,198 (11.25%) 

2000 18.0* 814,903 (4.5%)288 

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, 

219
*Does not includ e an additional alloca tion for an audit that w as not funded thro ugh the FHIP 

competitive program (see footnote 286). 

In addition, in the competition for FY 1999 and FY 2000, for the first time, HUD asked 

applicants for FHIP funding to indicate whether they intended to target discrimination against 

people with disabilities (among other groups). Recipients indicating that these groups would be 

target ed for special activities received special consideration during the funding process. FHIP 

recipients receiving a total of $3,838,957 in FY 1999 indicated that they intended to target people 

with disabilities. In FY 2000, FHIP recipients receiving a total of $8,257,211 (or 45.9 percent of 

the total allocated) indicated that they would target discrimination against people with disabilities 

in whole or in part. 

b.	 FHEO’s Administration of the Fair Housing Initiatives Program Does Not 

Engender Confidence in the Program 

HUD’s operation of FHIP has been widely criticized. A 1998 Inspector General study of 

FHIP management operations found that “FHEO did not satisfactorily administer its Fair 

Housi ng Initiativ es Pro gram. Essen tiall y, FHEO: (1) di d not p erform and d ocument the FHIP 

grant award process timely and adequately; and (2) approved and disbursed grant draw downs 

totaling $6.2 million (73 percent) of the $8.5 million review which were not fully warranted.”289 

The Inspector General attributed th ese deficien cies to the following: 

(1) Lack of adequate supervision over the staff performing the functions. 

(2) Design flaws in the grants management system program and the grant agreement 

payment schedule. 

(3) The inconsistent method used by the staff to document their receipt and review of 

grant deliverables.290 

February 9, 1996; 62 Fed. Reg. 24965; 63 Fed. Reg. 8465, February 19, 1998. 

289 1998 Audit Repo rt, supra p. iv. 

290 Ibid., p. 27. 

220 
Other Inspector General audit reports found that the Office of the Secretary “exercised 

undue influence over the FHEO staff responsible for awarding and administering” a grant made 

under FHIP,291 that FHEO announced its intent to fund the Boston (Massachusetts) Housing 

Authority through FHIP for clearly prohibited purposes in violation of statutory requirements, 

and FHEO awarded FHIP education and outreach funds to an organization that did not perform 

the designated activities.292 In addition, FHIP-eligible organizations have repeatedly criticized 

HUD for using FHIP funds to support an audit-based research project during fiscal years 1999, 

2000, and 2001. 293 

Congress has expressed its displeasure about carryovers in FHIP funds between fiscal 

years because of late completion of the competitive process and corresponding delays in signing 

contracts to obligate the funds.294 FHIP recipients have complained about the lengthy competitive 

process that fails to ensure consistent funding streams for eligible organizations; some 

organizations have been required to seek bridge loans or to temporarily suspend operations 

because of delays in completing the competitive process or in negotiating contracts with 

successful recipients.295 Without contracts, private fair housing organizations cannot even acquire 

bridge loans to ensure a consistent presence in the community and ongoing staff. Anecdotal 

information suggests that many FHIP-funded groups have lost experienced staff and have been 

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 dis persed. The matter was corrected fo llowing a complaint to the OIG. 

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. 

221 
unable to assist victims of discrimination because of these kinds of funding management 

problems. 

Finally, the products of various FHIP grants are not readily available to the public. FHEO 

has no organized system to list, categorize, or report about the contents of deliverables of the 

FHIP. In response to a request made for purposes of this study for model or best practices 

deliverables from FHIP from grantees that have received funding for programs protecting the 

rights of people with disabilities, FHIP staff stated that they could not identify or provide them.296 

The program produces educational materials, legal summaries, technical assistance materials, 

case outcomes, and other information that would be important to help programs around the 

country improve their delivery of fair housing services and to help housing providers understand 

and comply with the law. In addition, to the extent that there is opposition to the program based 

on political or other nonmanagement concerns, being able to establish a track record of 

successful outcomes is a valid way to respond to criticism. And it goes without saying that more 

information about the outcomes funded by FHIP would rationalize the program by permitting 

grantees, Congress, and even the FHEO to know what was working in order to assess new 

funding decisions and new applications for funding. 

For similar reasons, FHEO should consider the development of a case-tracking system for 

use by FHIP recipients to make monitoring of cases and case outcomes easier. Like the 

TEAPOTS system that has been developed for use in tracking HUD and FHAP complaints, a 

similar program that is accessible to and usable by FHIP recipients, with appropriate safeguards 

for case-specific information that is not appropriately contained in an investigative record, could 

be of great assistance in managing FHIP more effectively. If data are sensitively collected, with 

read -only access by FHIP monitors, FHIP-funded activities co uld be monitored more effectively. 

If carefully developed, the system could also help individual agencies monitor their own intake, 

case-processing, and related activities.297 

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) 

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) the existing systems do not 

222

Finding VI.C.2.a: 	 The absence of fair housing deliverables and outcomes, the 

lack of a carefully constructed case-tracking system for cases 

funded through FHIP, and the absence of institutional 

knowledge about th e best or most effective of the programs 

funded through FHIP are significant shortcomings in an 

important program. 

Recommendation VI.C.2.a: 

FHIP should move expeditiously to develop a comprehensive, 

organized system to identify outcomes, information, and 

materials developed as a result of the program and to make 

them available to the public and especially to organizations 

and individuals that deal with fair housing issues. 

Recommendation VI.C.2.b: 

 FHIP should develop a case-tracking system for use by FHIP 

recipients, with read-only access by FHIP monitors, to collect 

reportable data to assist in quantifying the activities of 

recipients funded by FHIP. Such a data system should have the 

capability of being used by FHIP recipients to track, monitor, 

and report on their own activities. 

Recommendation VI.C.2.c: 

The changes proposed to FHIP in this report should include 

input from current and potential FHIP recipients and other 

interested stakeholders to ensure that the program changes 

result in a more efficient and effective use of federal dollars. 

c. 	 The Fair Housing Initiatives Program Is Critical to Effective Enforcement 

of the Act and Should Be Revitalized 

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. 

223 
FHIP is important because the funding permits a variety of education, outreach, technical 

assistance, and other programs that help people who believe they have been victimized by 

discrimination and because it provides a focused local presence to organize and support fair 

housing rights. It has been used to fund important disability-related activities, and a significant 

amount of its funding has been devoted to projects that protect the rights of people with 

disabilities. It has been flawed in its administration and execution, however. 

Current recipients of FHIP funding recommended to senior FHEO officials last summer 

that it reor gani ze the program signi ficantly.298 Their consensus proposal urged that FHIP be 

reconstituted to serve primarily as a formula grant program, with funding tied to population in 

the area served by full-service private fair housing groups. They urged FHEO to establish 

baseline criteria for eligibility and fund through formula grants all qualified fair housing 

organizations. They also urged that FHEO end the lengthy and controversial competitive funding 

process for at least the private enforcement component of the program. 

This proposal has merit, especially if it is tied to improved grant management and 

increased training and technical assistance. It would have significant advantages because it would 

replace the current inefficient competitive process that has been widely criticized and has failed 

on occasion to deliver funding for activities that are important to the delivery of fair housing 

services. 

It would ensure a consistent budget process, because funding needs could be predicted 

based on the predicted number of eligible organizations. It would help ensure consistent funding 

streams for organi zations th at provide an importan t pres ence in enforcing fair housin g right s. It 

would allow limited staff resources in FHIP to focus their attention on performance problems, 

training, technical assistance, and ensuring that consistent and reliable outcomes are obtained. 

A similar approach could be taken to fund organizations that wish to become eligible for 

private enforcement funding but currently do not meet statutory requirements. Those 

organizations, rather than competing for limited dollars, should be able to enter into a funded 

program for a limited time, offered special training and technical assistance, and permitted to 

298 This subject was discussed, with complete consensus, by the FHIP recipient audience, with 

Deputy As sistan t Secret ary David E nzel at a w orkshop h eld at th e biannu al 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. 

224 
develop the skills that would allow them to become effective full-service private fair housing 

grou ps. FHAP has provided such funding to n ew organizations for yea rs under its cap acitybuilding program.299 Funding more new organizations will enable more geographic areas to be 

served by private fair housing groups, including tho se that lack an FHAP agency. 

If these approaches are followed, FHIP would operate more like FHAP, which, as 

described later in this report, funds state and local government agencies meeting specified 

criteria, based on the number of cases handled, and funds new organizations with baseline 

funding for three years until technical capability is reached. It would free FHEO’s limited 

resources from managing a major competitive program, and it would free more resources to 

improve the quality and quantity of fair housing activities. 

Resources funded for purely education and outreach projects and for national projects 

should continue to be made available competitively. These funding opportunities permit funding 

of special, novel, and national/regional projects that advance fair housing purposes. They would 

also allow, in contrast to the private enforcement initiative, funding of projects designed to 

identify, educate, and reach out to specific types of housing discrimination, including 

discrimination based on disability.

 Finding VI.C.2.b: FHIP serves an important function in supporting fair housing 

rights. As currently constituted, however, the program has 

operated ineffectively and inefficiently. 

Finding VI.C.2.c: FHIP does not provide adequate systematic support for an 

ongoing fair housing presence nationally. 

Recommendation VI.C.2.d: 

FHIP’s private enforcement initiative should be reconstituted 

to provide funding to full-service private fair housing groups 

based on a formula grant approach. The funding should be 

tied to eligibility criteria based on the current statute; it should 

be based on population in the service area served by a group; 

299 See, e.g., 24 CFR 115.303. 

225 
and it should be tied to increased training and technical 

assistance and performance monitoring. 

Recommendation VI.C.2.e: 

FHIP should develop a formula-based funding structure that 

enables new organizations to become qualified to participate in 

the private enforcement initiative as full-service organizations 

as FHAP funds new participants in its capacity-building 

program. 

Recommendation VI.C.2.f: FHIP’s education and outreach and national initiatives should 

continue to be funded competitively, with improvements as 

recommended by the HUD Inspector General. 

d. Funding for the Fair Housing Assistance Program Has Been Increased

 FHAP funds only state and local government bodies enforcing laws that have been found 

by HUD to be “substantially equivalent” to the Fair Housing Act.300 Substantial equivalency 

determinations are a two-part process, requiring an evaluation of the equivalency of the law or 

ordinance on its face to the provisions of the FHA and an evaluation of the performance of the 

enforcing agency in enforcing the law. Determinations about the equivalency of the rights and 

remedies provided by the law are evaluated based on regulatory criteria.301 Determinations about 

the performance of the agency in enforcing the law are based on a review of the information 

gathered by the agency in investigating and resolving the case and by on-site and remote 

monitoring. HUD requires FHAP agencies to attend mandatory training. 

As a result of restructuring the program in the mid-1990s, FHAP’s funding is formulaic; 

that is, an agency that meets the equivalency criteria receives an established amount of funding 

based on costs associated with case processing (with HUD reimbursing the agency a set amount 

of money for each investigation), administrative overhead costs, and reimbursement for expenses 

related to mandatory training. Each agency in good standing is also eligible for funding for 

300 42 U.S.C. Sec. 3608. 

301 24 CFR 115. 

226 
special enforcement-related projects through the Special Enforcement Initiative.302 New 

organizations receive capacity-building funding, currently set at $115,000 annually. Agencies are 

eligible to receive capacity-building funding for up to three years. In earlier years, new agencies 

received capacity-building funding at a higher level—$100,000 per year for up to three years. 

FHAP agencies are monitored remotely through review of individual case files by HUD 

staff. They occasionally receive on-site technical assistance. FHEO requires FHAP agencies to 

send designated numbers of staff to annual training organized by HUD. FHAP agencies with 

performance issues are subject to being placed on performance improvement plans and to having 

their funding suspended. Agencies with significant uncorrected performance problems may lose 

their certification as substantially equivalent. Criteria and appeal rights for these actions are set 

forth in HUD’s regulations.303 HUD has used its authority to challenge agencies’ certifications, 

and several agencies have withdrawn themselves from the program after HUD challenged either 

the adequacy of their law or of their performance.304 Recent information provided to HUD about 

statutory and performance inadequacies, however, have resulted in no response from HUD and 

no adverse action against the agencies.305 

In contrast to FHIP, Congress has generally funded FHAP at or near the amount 

contained in the President’s budget request (see Table VI-3). Over the past 12 years, the amount 

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 performance issues, and the state of Tennessee lost its equivalency status for a time because 

of 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 substanti ally equivalent agencies that have deficie ncies in their laws 

or performance. Among the issues raised are 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. 

227 
appropriated for FHAP has m ore than tripled, from $ 6.5 million in FY 1990 to $22 million i n FY 

2001.306 

Table VI-3: Fair Housing Assistance Program Budget Requests and 

Appropriations, FY 1990–FY 2000 

Fiscal Year President’s Budget Request 

(In millions)

 Appropriation 

(In millions) 

1990 6.7 6.7 

1991 6.6 6.6 

1992 5.0 5.0 

1993 4.75 4.4 

1994 4.5 4.5 

1995 7.3 7.3 

1996 15.0 13.0 

1997 15.0 15.0 

1998 15.0 15.0 

1999 23.0 16.5 

2000 20.0 20.0 

2001 21.0 22.0 

Both FHIP and FHAP have routinely had carryover funding, indicating that all the funds 

appropriated have not been obligated during the budget year for which they were funded. 

Congress cri ticized HU D, in report language associated with the FY 2001 budget, for l arge 

carryovers in FHIP and FHAP and directed HUD to put into place mechanisms that would result 

in funds being dispersed by the last quarter in the fiscal year.307 

306 HUD’s proposed budget for FY 2002 indicates that it will seek $23 million for FHAP 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. 

228 
e. 	 Although FHAP Agencies Have Performed More Efficiently than FHEO 

in Enforcement, Improved FHEO Oversight Could Improve Their 

Performance 

FHAP agencies have generally performed better than FHEO in processing complaints. 

They have had faster investigative times, fewer administrative closures, and relatively more 

charges issued. FHAP performance, however, is only relatively better than HUD’s. FHEO should 

consider instituting a national FHAP monitoring program consistent with risk assessment 

principles, similar to the one used in its San Francisco HUB that was recently identified as a best 

practice nationally. Instead of lengthy review of individual cases, qualitative factors are used to 

“grade” investigator performance on individual cases. After establishment of a baseline based on 

this review, a percentage of cases are identified for in-depth review. The cases selected for this 

review include those that are investigated by investigators who were graded relatively lower than 

their peers, those where conciliation agreements or no reasonable cause decisions are made, and 

withdrawals with resolutions. This process could also indicate investigators who need special 

technical assistance, training, or other help in performing their duties. Cases not selected for indepth review should still be scanned for obvious deficiencies. In addition, individual cases that 

generate complaints about FHAP performance should be individually assessed. 

Finding VI.C.2.d: 	 FHAP has not developed the significant op erational problems 

that have been found in FHIP. 

Finding VI.C.2.e: 	 FHAP could be improved by more aggressive monitoring of 

case processing, by improved training and technical assistance, 

and by taking effective action to correct situations where 

substantial equivalency standards are not met. 

Recommendation VI.C.2.g: 

FHEO should be provided with adequate resources to develop 

a more effective training, technical assistance, and monitoring 

program to improve the performance of FHAP agencies, 

including the establishment of a risk-based monitoring process. 

229

FHAP includes funding for a special enforcement initiatives component. This component, 

by regulation, is designed to enhance enforcement activities.308 Eligibility for these funds is based 

on regulatory criteria. Not all FHAP agencies qualify for the funding. The requirements are not 

onerous, and they have not been changed since the FHAP regulation was strengthened in 1996. 

The regulations require that an agency meet three of the following six criteria: (1) The agency has 

enforced a subpoena or sought temporary injunction relief at least once in the preceding year; (2) 

the agency has held at least one administrative hearing or had at least one case on a court’s 

docket in the preceding year; (3) at least 10 percent of the agency’s caseload resulted in written 

conciliation agreements providing monetary relief for the complainant and remedial action; (4) 

the agency has had in the previous three years at least one major fair housing systemic 

investigation requiring an exceptional expenditure of funds; (5) the agency’s enforcement of its 

law received meritorious mention for innovative fair housing activities; (6) the agency 

investigated at least 10 fair housing complaints during the previous year.309 These criteria do not 

require much beyond what reasonably could be expected of a functional fair housing agency, and 

they should be reviewed and revised to set the threshold higher for receipt of these funds. 

There is no system within FHEO to identify or collect the special enforcement initiatives, 

their outcomes, or their products. As with FHIP, exceptional enforcement initiatives products and 

information should be collected and made available to the public and to other programs. 

Finding VI.C.2.f: FHEO provides funding to FHAP agencies for special 

enforcement initiatives but lacks a system for collecting data 

about the nature of these initiatives or their outcomes. The 

standards for receipt of this special funding are not onerous. 

Recommendation VI.C.2.h: 

FHEO should develop a process for collecting and making 

available the outcomes of its special enforcement initiatives 

program for FHAP agencies. 

308 24 CFR 115.305. 

309 24 CFR 115.305 (a)(1)-(6). 

230 
Recommendation VI.C.2.i: FHEO should review and strengthen the criteria for receipt by 

FHAP agencies of special enforcement initiatives funding and 

should collect and disseminate to the public information about 

their outcomes. 

3.	 HUD Has Not Provided Adequate Contract Funds to Support Enforcement 

and Compliance Activities 

In addition to the separate FHIP and FHAP programs, HUD allocates internal contract 

funding to FHEO for support of fair housing–related projects. In the past, this funding has been 

used for special training and education/outreach initiatives and to develop enforcement 

initiatives. In general, it is used to supplement the administrative activities of FHEO. 

The contract funding, which comes from HUD’s salary and expenses account, has 

dropped over the past seven years, the only period for which numbers were made available. From 

a high in FY 1994 of $2.591 million, FHEO’s contract expenditures dropped to a low in FY 2000 

of $1.180 million (see Table VI-4). 

Table VI-4: HUD Allocation of Contract Funding to FHEO, 

FY 1994 – FY 2000 

Fiscal Year Allocation (in millions)* Expenditure (in millions)*

 1994 $2.759 $2.591

 1995 $2.409 $2.219 

1996 $1.555 $1.475

 1997 $1.360 $1.283

 1998 $2.533 $2.383

 1999 $1.665 $1.609

 2000 $1.180 $1.180 

* Amounts rounded.

Interviews with current FHEO leadership indicate that the lack of adequate contract and 

similar funding is a significant adverse factor in civil rights enforcement and compliance. 

231

Contract and other funds are used to develop external and internal educational materials. They 

are used to procure training services for staff, consumers, and industry. They are used to fund 

systems that could improve delivery of civil rights services to the public, including making 

materials available in alternative and accessible formats. They are used to upgrade enforcementrelated activities and to provide safe and efficient working environments for investigators. They 

are used to contract with external experts, such as architects, to support certain types of 

investigations. 

The impact of the lack of contract funding is staggering. Current FHEO leadership 

reported, for example, that its entire training budget for FY 2001 was $40,000.310 This funding 

level is wholly inadequate to fund even HUD’s urgent internal training needs, much less to 

provide the badly needed ongoing Training Academy approach needed to provide investigative 

and other staff with the skills to conduct routine investigations, undertake more complex and 

systemic investigations, resolve cases fully and promptly, and undertake effective compliance 

reviews. The training budget is so small that it cannot reasonably be expected to provide any 

ongoing industry training or technical assistance. It is also insufficient to provide education, 

training, or technical assistance to consumers who are disabled and who need training and 

information in order to exercise their rights under the civil rights laws.311 In addition, the lack of 

a consistent funding stream for contract funds means that FHEO staff are unable to plan 

effectively for future developments, to undertake multiyear projects, or to initiative innovative 

new projects directly. 

FHEO’s current printing budget level is not enough to fund basic printing activities to 

replenish existing stocks, much less to develop new materials and put existing materials in 

alternative formats.312 

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. 

232 
Finding VI.C.3: FHEO receives inadequate contract and printing funding to 

allow it to perform its statutorily required duties. 

Recommendation VI.C.3: 	FHEO’s contract budget should be increased immediately, to 

at least double FHEO’s expenditure in 1994, to $5.2 million. 

Future funding levels should be maintained at similar or 

higher levels to provide needed reliability in planning. FHEO 

should be given staff support to assist in the prompt allocation 

and obligation of these funds. FHEO’s printing budget should 

be similarly increased. 

4. Funding for Travel Costs Has Not Increased over the Past Seven Years 

FHEO receives an annual allocation of funds from HUD’s departmental budget to support 

its travel. FHEO’s travel allocations and expenditures have remained static over the past seven 

years, the only years for which numbers were provided. In real dollars, this means that there has 

been a decrease in the amount of funding for travel. 

Travel funds are important for civil rights enforcement (see Table VI-5). They are used to 

fund on-site investigations in order to conduct interviews, gather information, and conduct 

observations that cannot be performed from a government office. They provide funding for staff 

to conduct conciliation conferences designed to settle cases. Travel funds permit attendance by 

staff at public hearings, meetings with potential victims of discrimination, and information 

gathering about discriminatory practices. In compliance settings, adequate travel funds permit an 

on-site compliance review to be conducted by several persons at the same time, lessening 

confusion and the burden on respondents and allowing c onclusions to be re ache d more qu ickly. 

Adequate travel funds permit negotiations to resolve outstanding compliance problems to occur 

at one time, at a convenient location, and without undue delays in completion. 

233

Table VI-5: Travel Allocations and Expenditures for FHEO, 

FY 1994–FY 2000 

Fiscal Year Departmental Allocation (in millions) Expenditure (in millions) 

FY 94 $1.293 $1.259 

FY 95 $1.4 $1.239 

FY 96 $1.239 $1.075 

FY 97 $1.239 $1.2 

FY 98 $1.030 $0.983 

FY 99 $1.250 $1.195 

FY 00 $1.201 $1.201 

Finding VI.C.4: 	 FHEO travel funding has remained static over the past seven 

years, resulting in an overall loss of funds in real dollars. 

Recommendation VI.C.4: 	HUD should provide adequate travel funding, based on 

realistic budget projections from field and Headquarters staff, 

to permit on-site investigations and compliance reviews, 

attendance by staff at investigation- and compliance-related 

activities, and attendance by staff at training events and at 

public events that will enhance FHEO’s education and 

outreach activities. 

D.	 FHEO Should Improve Its Policy Decision Making and Communication 

of Those Policies to Staff and to the Public 

1. 	 Existing Procedures for Developing and Communicating Substantive Policy 

Guidance Should Be Expanded 

FHEO, as a national fair housing enforcement agency, makes decisions every day that 

affect the rights and obligations of the public. For that reason, the decisions it makes on public 

policy matters are of general public interest. Case decisions are one way that policy is made, but 

it is also made on legislative matters, in response to individual and industry inquiries, and even in 

correspondence. For example, FHEO made national policy on the application of the FHA’s 

234

design and construction requirements in a letter to the National Association of Realtors issued in 

1999, opining that liability for violations of the FHA’s design and construction requirements 

applied to architects and to succe ssor corpor ate purchasers and opera tors of ina ccessible h ousing. 

The content of this letter was apparently never incorporated into national policy, however, nor 

was it made available to the general public. Such policy decisions should be made available to 

the public. 

Similarly, decisions by FHEO on whether particular facts do or do not create liability in 

individual cases not only determine the outcome of the case, they also amount to public policy 

pronouncements. Yet FHEO does not make its determinations on whether or not there has been a 

violation of the FHA or Section 504 readily available to the public. 

HUD has issued basic guidance, through regulations, on the FHA.313 It also has issued a 

considerable amount of detailed guidance on the application of the design and construction 

requirements to newly constructed multifamily housing, primarily as a result of industry 

pressure.314 

Some past guidance on public policy issues of general interest has been made publicly 

available.

 In 1994, FHEO issued public guidance in the form of a notice on the application of the 

First Amendment to fair housing investigations. It issued a notice on HUD’s interpretation of the 

FHA’s prohibitions against discriminatory advertising. It issued a notice on the confidentiality of 

its conciliation agreements and its policy on the appropriate bases for administrative closure of 

complaints and on a number of other subjects.315 FHEO has also been criticized by courts for 

313 24 CFR 100 et seq. For some years, HUD also published the Preamble to the Fair Housing 

Act regulations, containing conside rable substantive interpret ative guidance as an Appendix to its FHA 

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. 

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 notices 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 notices and handbooks, each of which 

goes through an internal clearance process and then is made available publicly. All of HUD’s notices and 

235

failing to issue guidance on a particular issue: occupancy standards. In Pfaff, supra, the Ninth 

Circuit Court of Appeals found that HUD should have made public its internal guidance on its 

interpretation of the FHA’s prohibition against familial status discrimination. Congress 

subsequently required HUD to publish in the Federal Register a 1991 OGC memorandum 

describing HUD’s policy on this subject.316 According to its senior staff, FHEO has not issued 

any public guidance during the past two years. When asked what new interpretative guidance on 

fair housing and Section 504 issues had been issued, staff identified only a question-and-answer 

directive to its own staff on design and construction issues. That document was not provided to 

the authors of this study, presumably because it is not a public document. 

With majo r civil rights laws, th e availabil ity of interpretative guidance, whether through 

notices or other public documents, is an important part of advising the public, advocates, industry 

representatives, and others about the ways in which fair housing and civil rights obligations 

manifest themselves. Guidance provides benchmarks for appropriate behavior and direction 

about compliance obligations. The absence of publicly available guidance in this area is a serious 

deficiency. Adequate staff and funding to develop, update, and publish this information are also 

nece ssary. 

Finding VI.D.1.a: FHEO has generated guidance and interpretations about the 

application of civil rights laws, but it is not currently using a 

mechanism to make this guidance available to the public. 

Recommendation VI.D.1.a: 

FHEO should develop and implement a more comprehensive 

system to make its interpretations of civil rights laws generally 

available. HUD should provide adequate staffing and funding 

to support this effort. 

Until 1995, FHEO did not have a single source of information to guide its own staff in 

conducting activities to enforce the FHA. In September 1995, FHEO published a handbook, Title 

handbooks are available online at www.hudclips.org. 

316 FR-4405-N-01, December 17, 1998. 

236 
VIII Complaint Intake, Investigation, and Conciliation Handbook, containing six chapters: 

Jurisdiction, Complaint Intake, Special Intake Processing, Planning and Conducting the 

Investigation, Administrative Closures, and Conciliation. The handbook combines procedural 

guidance to FHEO staff with detailed substantive guidance.317 The handbook is available to the 

public. Two additional chapters, authored by Professor Robert Schwemm, a noted expert on the 

application of fair housing law and author of a fair housing handbook, were published in 1999. 

Those chapters, Theories of Discrimination and Analysis of Specific Cases, combine legal 

principles from case law with directions to investigative staff about the conduct of investigations 

in such cases. Included in the Analysis of Specific Cases chapter are subsections about the 

investigation of discrimination based on disability, including reasonable accommodation, 

reasonable modification, design and construction cases, and cases involving zoning decision 

making t hat discriminates based on disability.318 

Several proposed chapters of the handbook were never issued, including a chapter on 

concurrent processing of FHA and Section 504 and Title VI complaints, entitled Preparation of 

Cause and No Cause Determinations and Remedies. 

The handbook guidance is invaluable information, both about FHEO’s own requirements 

for important aspects of the enforcement process and about substantive legal requirements for 

fair housing cases. It contains standards for appropriate performance by enforcement staff and 

criteria by which case decision making and procedures can be understood and applied. It should 

be considered to contain guidance and procedures that are binding on FHEO staff and on FHAP 

agencies. Anecdotal information, however, suggests that the handbook is not always followed by 

FHEO and FHAP staff. It should be the subject of ongoing staff training; it should be completed; 

and it should be routinely read and applied by staff. It also should be made readily available to 

advocates and industry groups alike. 

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. 

237 
Finding VI.D.1.b: FHEO’s enforcement handbook provides important 

procedural and substantive guidance. It is a useful first step in 

setting standards for proper performance of fair housing 

enforcement activities. 

Recommendation VI.D.1.b: 

FHEO’s enforcement handbook should be completed and 

updated, considered to be binding guidance for FHEO and 

FHAPs alike, and available publicly. 

2.	 FHEO’s Training Capability Is Limited Because of Lack of Resources, and 

This Lack Adversely Impacts Enforcement and Compliance 

Ongoing training on procedural and substantive issues is important for effective civil 

rights enforcement. Without basic and advanced training on techniques, institutional expertise is 

not developed or shared. Investigations take longer because strategies for improving 

investigations are not available. Best practice activities in one area are not made available in 

other areas. As experienced employees leave or retire, fundamental information is lost. 

In addition, in areas such as the FHA an d Section 5 04, the substantive l aw is emergin g. 

Litigation in both areas is substantial. Many cases are decided each year with significant impact 

on the contours of the law. The content of these decisions and their effect on investigations 

should be reviewed, analyzed, and presented to all staff engaged in investigative and compliance 

activities. FHEO has no organized way of doing this. In addition, training that develops skills in 

applying both techniques and substance should be offered to ensure that staff understand the 

proper application of the principles. 

For some years in the late 1990s, FHEO offered a basic investigative training course 

presented by John Marshall Law School in Atlanta. Current funding inadequacies have resulted 

in the cessation of this training. Training opportunities that enhance the skills of experienced 

staff are necessary. Currently, the only systematic vehicle for such training is an annual 

conference for FHIP and FHAP recipients that is attended by only a few FHEO staff. 

Similarl y, FHEO is able t o offer FHIP and FHAP recipients only limited training through 

an annual conference and occasional localized training, usually devoted to specific issues of local 

238

interest. Subject matter training that is conducted jointly for HUD’s investigative and legal staff 

working on fair housing and civil rights issues is available only if FHEO is able to fund the 

training and if travel funds are available. 

FHEO should assemble a group of experts in fair housing law to advise it, and it should 

be funded to provide, on an ongoing and reliable basis, a training academy for fair housing and 

civil rights matters. The development of core curricula that address a variety of fair housing and 

civil rights training needs will be a critical part of this activity. Areas for training should include, 

at a minimum, basic and advanced investigative skills, substantive developments in the law, the 

application of basic substantive law to individual cases through skills training, investigation of 

special or difficult cases, investigations when injunctive relief has been or will be sought, the 

conduct of systemic investigations, the conduct of testing activities, the establishment and 

effective operation of FHIP- and FHAP-funded organizations, the conduct of effective education 

and outreach activities for possible victims of discrimination, disability rights, sensitivity to 

disability issues and reasonable accommodations during the enforcement process, effective 

conciliation techniques, effective education of housing providers, remedies, the conduct of 

compliance reviews for different sorts of HUD-funded housing providers, environmental justice 

issues, and emerging issues. 

Internal HUD training should also include at least annual training for FHIP and FHAP 

monitors on techniques for maintaining effective performance by these entities, management and 

mid-management training, HUD program requirements and their relationship to civil rights 

issues, and case management. Such an academy should provide training for all enforcement and 

compliance staff on a rotating basis. Training should be conducted by subject matter experts and 

by those whose expertise includes the actual skills being taught—that is, the investigation or 

conciliation of fair housing cases, the conduct of compliance reviews, and the like. 

While establishment of such an academy could require a significant investment of funds 

and time, the problems described throughout this report with FHEO’s enforcement and 

compliance activities require this action. Without training, oversight and management will not be 

successful in accomplishing the major improvements in civil rights enforcement that this report 

calls for. 

239

Finding VI.D.2: FHEO lacks a unified, systematic mechanism for providing 

substantive and technical training to its enforcement and 

compliance staff, other than annual FHAP/FHIP conferences 

that are attended by only a few FHEO staff. 

Recommendation VI.D.2: HUD should fund, and FHEO should establish, a civil rights 

training academy that will provide basic and advanced skills, 

substantive skills, and technical training as described in this 

report for its own staff and for legal counsel. 

3.	 HUD Has Never Performed a National Audit of Discrimination Based on 

Disability That Could Contribute to Greater Understanding of the Nature 

and Extent of Such Discrimination 

In 1977 and 1989, HUD conducted major national studies of the incidence of housing 

discrimination in America. These studies, using audit-based testing research, compared the 

treatment of individuals in the rental and sales markets based on race and national origin. Both 

studies found significant indicators of discrimination. 

In 1998, HUD announced that it planned to conduct a similar study of the incidence of 

housing discrimination. The study, the results of which have not been announced at the date of 

the preparation of this report, is notable for several reasons. First, the study is again based on 

audits, or tests, in which the treatment of individuals is compared based on race and national 

origin. Despite the fact that many private fair housing groups have been testing for discrimination 

based on disability for many years, and despite the fact that discrimination based on disability 

now represents the highest number of complaints filed with HUD and FHAP agencies 

annually,319 the study fails to collect data about discrimination against people with disabilities. 

HUD has done no study of the incidence o f discrimination based on disability or the ways 

in which such discrimination is manifested. Its failure to include discrimination against people 

with disabilities in this major national study is a significant lack in the development of 

enforcement strategies and national attention to this issue. 

319 See Chart IV-3. 

240 
In addition, HUD should consider funding, through its Office of Policy Development and 

Research, other studies about the ways in which discrimination against people with disabilities 

occurs and the nature and type of discrimination complaints that have been filed administratively 

and litigated. It should also study the nature and extent of discrimination against people with 

disabilities in HUD-funded programs and activities and make recommendations to remedy this 

discrimination. 

Finding VI.D.3.a: HUD’s current Housing Discrimination Study testing the 

incidence of discrimination in housing does not study the 

incidence of discrimination against people with disabilities. 

Recommendation VI.D.3.a: 

HUD should conduct a single national study to identify the 

incidence and dimensions of discrimination against people with 

disabilities, similar to its current Housing Discrimination 

Study. 

Finding VI.D.3.b: 	 HUD has not conducted any national study of the ways in 

which discrimination against people with disabilities manifests 

itself, nor any study of discrimination against people with 

disabilities in HUD-funded properties. 

Recommendation VI.D.3.b: 

HUD should initiate a national study of the ways in which 

discrimination against people with disabilities manifests itself 

and a national study of discrimination against people with 

disabilities in HUD-funded properties. 

4.	 At the Departmental Level, HUD Needs Ongoing Disability-Related Policy 

Input 

The absence of consistent disability-related policy input into HUD’s enforcement and 

compliance activities remains a significant deficiency that adversely affects enforcement and 

compliance activities. Although recent Administration leaders, including Secretaries Cisneros, 

241

Cuomo, and Martinez, have met wit h some disa bility advoca cy groups on a vari ety of housingrelated issues, HUD lacks a visible, consistent voice on disability issues. 

In the past, HUD has had staff that served as advisors to the Secretary on disability policy 

issues. Continuation and enhancement of such an office could benefit HUD and people with 

disabilities. By bringing a disability presence to the highest decision makers at HUD, a highprofile Office of Disability Policy with significant influence on the Secretary and departmental 

policy could play an important role in focusing attention and resources on disability-related 

issues, including, but not limited to, civil rights enforcement and compliance activities. Such an 

office should maintain regular contact with disability advocacy organizations and provide 

technical guidance and direction to all of HUD’s operations, including increased visibility for 

activities related to President Bush’s New Freedom Initiative, compliance with ADA, and 

activities implementing the decision of the United States Supreme Court in Olmstead v. L.C., 

requiring placement of people with disabilities in community-integrated settings wherever 

possible.320 

In particular, such an office should review all of HUD’s own operations for Section 504 

compliance , including accessibility of publications, Internet activities, and opera tions ge nera lly, 

as well as provide guidance to the Secretary on a variety of issues and serve as a focal point for 

increased visibility of disability rights issues within HUD. 

Finding VI.D.4: 	 HUD would benefit by increasing the visibility and activities of 

an Office of Disability Policy. 

Recommendation VI.D.4: 	An Office of Disability Policy should be funded and staffed 

appropriately to permit increased input on disability-related 

activities, including enforcement and compliance, at the 

highest decision-making level within HUD. 

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. 

242 
5.	 Increased Input from People with Disabilities and Their Advocates Is Needed 

to Inform HUD and the Public About the Nature and Extent of Housing 

Discrimination. 

The experiences of people with disabilities in seeking housing can and should inform 

HUD and the national policymakers . In addition to input through a n Office of D isability Policy, 

HUD needs to hear from individuals throughout the country who have confronted discrimination 

in its most virulent forms and its more subtle manifestations. Because the data that FHEO has 

provided indicate an increasing incidence of discrimination based on disability, and because there 

has been no national study about the nature and extent of housing discrimination as it is uniquely 

experienced by people with disabilities, HUD should consider convening town meetings in 

locations around the country. These meetings could meet multiple needs. They could collect 

information about the ways in which people with disabilities encounter discrimination in 

housing. They could provide a focal point for increased education for people with disabilities and 

the public about housing discrimination and about the rights of people with disabilities and the 

responsibilities of housing providers to avoid discrimination. In addition, to the extent that 

enforcement mechanisms of the FHA and Section 504 have been used, the experiences of parties 

to complaints can help inform improvements by HUD in the delivery of enforcement services 

and in the delivery of its housing programs. Town meetings could also play a helpful role in 

increasing awareness about housing discrimination against people with disabilities. 

Finding VI.D.5: 	 There continues to be a need to educate the public about the 

nature and extent of housing discrimination against people 

with disabilities. 

Recommendation VI.D.5: 	HUD, together with community stakeholders, should consider 

conducting town meetings in several locations around the 

country to better inform the public, people with disabilities, 

housing providers, and HUD about disability-based housing 

discrimination. 

243

6.	 Increased Support and Leadership from the Administration, Congress, and 

HUD Leaders Are Critical to Enforcement and Compliance Improvements 

Leadership from various administrations, from Congress, and from leaders at HUD on 

civil rights issues relating to housing—and especially those relating to disability rights—has not 

been consistent during the years examined by this report. HUD’s FHEO cannot function without 

adequate resources and staffing, without key policy leadership and support, and without reform 

of existing operations for enforcement and compliance. This report has documented numerous 

barriers to effective enforcement and compliance activities. 

With a new administration that has signaled its support of disability-related activities 

throughout the federal government, there is an opportunity to remove the barriers. Congressional 

and departmental support—including increased funding for staff, training, technical assistance to 

housing providers and disability advocates, and more effective management and guidance 

systems—will be critical to improving enforcement of and compliance with civil rights laws. 

Even more important, effective leadership and support for FHEO’s efforts to improve its 

operations must be provided from a political and practical perspective in order for the 

improvements that this report recommends to occur. 

The public will benefit from fair, reliable enforcement of civil rights laws. And people 

with disabilities who encounter discrimination in every phase of housing access will benefit 

immeasurably. 

244

SECTIO N VII


Conclusion


Full, fair enforcement of the Fair Housing Act and Section 504 of the 1973 Rehabilitation 

Act is an important promise that Congress made to this country, and specifically to people with 

disabilities, that has not yet been kept. Housing discrimination undermines a fundamental 

premise on which our free society rests—that every person, regardless of race or national origin 

and regardless of disability status, should have the opportunity to live in and benefit from a 

home. Without strong, timely enforcement of fair housing laws, victims of discrimination may be 

discouraged from seeking an end to discrimination, and discriminators will be emboldened to 

continue their unlawful practices. Congress’s promise can be kept with strong and thoughtful 

leadership and direction, with resources that are adequate to the task, and with more effective 

management of enforcement and compliance activities. The need is great; the time is now. 

245

APPENDIX I


List of Findings and Recommendations


Finding IV.B.1: The number of discrimination allegations filed with HUD and state 

and local fair housing enforcement agencies is very low, given 

statistical and anecdotal evidence that housing discrimination is 

widespread. 

Finding IV.B.2.a: Three-quarters of all claims (4,210 of 5,924 in FY 2000) are 

dismissed without being converted to complaints and therefore are 

not subjected to full investigation. 

Finding IV.B.2.b: From FY 1996 through FY 2000, HUD reported both complaints 

and claims (whether dismissed or maturing into complaints) to 

Congress and the public. It is only through creative arithmetic that 

HUD has made it appear that fair housing receipts have not 

declined. 

Recommendation IV.B.2.a: In reporting to Congress and the public, HUD should be required to 

distinguish between fair housing complaints and other receipts, 

such as claims or inquiries, so that a fair assessment of the 

agency’s success can be made. 

Finding IV.B.2.c: After HUD adopted a new intake process in FY 1996, emphasizing 

the assessment of claims to determine whether they warranted full 

investigation, the number of HUD complaints filed dropped even 

further. By FY 2000, complaints (N = 1,988) were at 30 percent of 

their FY 1992 level. 

Finding IV.B.2.d: On February 1, 2001, HUD abandoned its claims assessment 

process in favor of a system that gives investigators 20 days to 

246

Recommendation IV.B.2.b: 

Finding IV.B.5.a: 

Finding IV.B.5.b: 

Finding IV.B.5.c: 

Recommendation IV.B.5: 

process an inquiry to determine whether it will be filed as a 

complaint. HUD did not supply data by which the effectiveness of 

this new approach can be gauged. 

Congress should closely monitor HUD’s new intake protocol to 

ensure that it does not inappropriately discourage the filing of fair 

housing complaints and does not inappropriately prevent the 

conversion of inquiries into complaints. 

Disability complaints now compose the largest percentage of HUD 

complaints. Complaints of disability discrimination have composed 

a growing percentage of HUD and FHAP receipts. In FY 1999 and 

FY 2000, nearly 42 percent of all HUD complaints included 

allegations of disability discrimination, more than any other 

protected class. 

The growth of disability complaints cannot be attributed to a single 

cause but is undoubtedly influenced by the growing recognition 

that people with disabilities are entitled to equal housing 

opportunity under the FHA. 

HUD has contributed to the growth in disability complaints 

through its support of private fair housing enforcement agencies 

under FHIP. HUD has awarded FHIP grants to full-service 

enforcement agencies handling disability complaints and to other 

advocacy groups focused exclusively on education about, outreach 

to, and enforcement of the rights of people with disabilities. 

HUD should continue to explore ways that it can use FHIP and 

contract funds to support collaborative work between full-service 

fair housing agencies and organizations representing people with 

disabilities. 

247

Finding IV.B.6.a: 

Finding IV.B.6.b: 

Finding IV.B.6.c: 

Finding IV.B.6.d: 

Recommendation IV.B.6.a: 

Recommendation IV.B.6.b: 

Throughout the 1990s, HUD devolved substantial authority to its 

HUBs and allowed them great autonomy to structure intake, 

complaint processing, investigation, and cause determinations. 

In the mid- and late 1990s, Headquarters FHEO ceased its close 

oversight of HUB operations, opting instead for “remote 

monitoring.” The result has been significant differences in practice 

among HUBs, including markedly different treatment of disability 

complaints. 

There is great variability in numbers of complaints (overall and on 

the basis of disability) filed by HUD’s 10 HUBs and by FHAPs 

that is not adequately explained by differences in populations 

served by each HUB. 

The management style currently employed by Headquarters FHEO 

tends to reinforce significant regional variations in enforcement 

practice, resulting in different treatment of disability (and other) 

complaints depending on the state in which a complainant lives 

and whether the complaint is handled by HUD or by an FHAP. 

HUD should assess the intake process at each HUB and at each 

FHAP to determine whether the historically low number of 

complaints (overall or on the basis of disability) reflects 

imped iment s for v ictim s of di scrim inati on in u sing t he Tit le VIII 

administrative complaint system. 

HUD should identify best practices among HUBs and FHAPs 

concerning co mmunity outr each, intak e, case processing, 

investigation, and cause determination and require HUBs and 

FHAPs that do not already do so to use them. 

248

Recommendation IV.B.6.c: 

Finding IV.B.7: 

Recommendation IV.B.7.a: 

Recommendation IV.B.7.b: 

Finding IV.B.8: 

Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not depend 

on place of residence, or should assume greater central authority 

over the Title VIII complaint process. 

There are significant differences between the HUBs with respect to 

the percentage of Title VIII complaints alleging disability 

discrimination. Five of the HUBs (Chicago, Atlanta, Ft. Worth, 

Philadelphia, and Kansas City) are consistently below the national 

norm, giving rise to a concern that disability issues may not be 

getting appropriate attention. The Chicago HUB, which historically 

files the greatest number of overall fair housing complaints, has 

been at or below average for disability complaints every year since 

the FHAA was passed. 

HUD should assess the intake process at each HUB and at each 

FHAP to determine whether the historically low number of 

complaints (overall or on the basis of disability) reflects 

imped iment s for v ictim s of di scrim inati on in u sing t he Tit le VIII 

administrative complaint system. 

Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not depend 

on place of residence, or should assume greater central authority 

over the Title VIII complaint process. 

Among HUD and FHAP disability complaints, reasonable 

accommodation is the most frequent issue, representing 41.6 

percent of HUD cases and 38.5 percent of FHAP cases in FY 2000. 

Design and construction accessibility issues rank next (9.1 percent 

of HUD cases and 8.8 percent of FHAP cases). 

249

Finding IV.C.1: 

Recommendation IV.C.1: 

Finding IV.C.2: 

Finding IV.C.3.a: 

Finding IV.C.3.b: 

Finding IV.C.4.a: 

By enforcing accountability, HUD was able to reduce agencywide 

administrative closure rates from 48 percent in FY 1993 to 15 

percent in FY 1997. When the performance measures were deleted 

from appraisals in FY 1998, the administrative closure rate went 

back up to 19 percent. In FY 1999, it was 20 percent, and in FY 

2000, it had gone up to 21 percent. 

HUD should establish and enforce accountability and job 

performance standards modeled on those in place during FY 1995 

through FY 1997 to ensure that the administrative closure method 

is not overused. 

During every year since FY 1989, disability cases have been 

significantly more likely than other cases to be closed by 

conciliation. While FHAP disability complaints are more likely 

than FHAP nondisability complaints to be resolved by conciliation, 

FHAPs appear to rely on conciliation somewhat less than HUD, in 

terms of both disability cases and other cases. 

Since FY 1996, HUD has closed at least one-third of its complaints 

(and FHAPs have closed at least 41 percent) with a finding that no 

cause existed to believe discrimination had occurred. 

Since FY 1996, disability complaints were closed with a finding of 

no cause at a slightly lower rate. This may result from the fact that 

HUD disability complaints are more likely to be resolved earlier in 

the process, especially through conciliation, and that fewer 

nonmeritorious cases are left at the cause/no cause decision point. 

Since FY 1990, complaints of disability discrimination have lagged 

significantly behind the average HUD case in probability of cause 

finding. 

250

Finding IV.C.4.b: Of the 12,017 disability complaints filed with HUD from 1990 

through 2000, the agency found reasonable cause to believe 

discrimination had occurred in just 284 cases, or 2.4 percent of all 

cases. 

Finding IV.C.4.c: When HUD finds cause in only 1 out of 40 disability cases, it may 

be sending a message to the disability community that victims of 

disability discrimination are unlikely to secure relief through filing 

a HUD complaint. 

Recommendation IV.C.4.a: HUD should take steps to improve its credibility with disability 

groups and advocates by aggressively pursuing disability 

discrimination complaints and widely publicizing favorable results. 

Finding IV.C.4.d HUD cause findings have declined dramatically, from 325 in FY 

1994 to 96 in FY 2000 

Finding IV.C.4.e: There are significant differences among HUBs concerning the 

overall number of disability complaints and the percentage of cause 

findings in disability cases since FY 1990. In absolute numbers and 

in terms of percentage of caseload, the New York HUB ranked 

highest in disability complaints with cause findings over the 11­

year period (57 cause findings, or 4.9 percent of its disability cases) 

and the Kansas City HUB ranked lowest (11 cause findings, or 0.9 

percent of its disability cases). 

Finding IV.C.4.f: Such regional variations are attributable to cultural differences 

between regions of the country and personnel assigned to the 

respective HUBs. The management style currently employed by 

Headquarters FHEO tends to reinforce significant regional 

variations in enforcement practice, resulting in different treatment 

of disability (and other) complaints depending on the state in which 

251

Finding IV.C. 4.g: 

Recommendation IV.C.4.b: 

Recommendation IV.C.4.c: 

Finding IV.C. 4.g: 

Finding IV.C.4.h: 

Recommendation IV.C.4.d: 

a complainant lives and whether the complaint is handled by HUD 

or by an FHAP. 

Victi ms of d iscri minat ion ar e discouraged from using the Title VIII 

administrative process at HUD and FHAPs for a variety of reasons, 

including an unwelcoming intake process, inordinate delays in 

assessing and investigating claims, relatively small monetary 

awards achieved through HUD and FHAP conciliation, and a 

generalized sense that the administrative process rarely achieves 

results that outweigh the personal costs of filing a claim or 

complaint. 

Congress should require HUD to conduct a study to determine why 

the absolute number and percentage of cause findings (especially 

those in disability cases) have declined so precipitously, and why 

there are such wide variations on these indicators among the 

HUBs. 

Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not depend 

on place of residence, or should assume greater central authority 

over the Title VIII complaint process. 

FHAP cause findings have declined from 545 in FY 1990 to 158 in 

FY 2000. 

From FY 1992 through FY 2000, FHAPs charged 347 of the 8,683 

disability cases they handled, or 4 percent of total complaints. This 

rate is 40 percent higher than the rate for HUD-processed disability 

complaints for the same period. 

HUD should conduct an analysis to determine why FHAPs, on 

average, charge 40 percent more of the disability complaints they 

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Finding IV.C.4.i: 

Recommendation IV.C.4.e: 

Finding IV.D.2.a: 

Finding IV.D.2.b: 

Finding IV.D.2.c: 

Recommendation IV.D.2: 

handle. HUD should identify and distill the practices that have led to 

this success and require their use by HUDs and FHAPs that do not 

already employ them. 

There are wide and troubling variations from region to region among 

the FHAPs. For instance, Boston region FHAPs found cause in 8.7 

percent of disability complaints, and Philadelphia area FHAPs found 

cause in 8.0 percent. By contrast, Ft. Worth area FHAPs found cause 

in 0.6 percent of all disability complaints, and those in the Seattle and 

Denver regions found cause in 2.5 and 2.7 percent of all disability 

case s, respectively. 

Headquarters FHEO should take active steps to deal with these 

regional differences so that the quality of justice does not depend on 

place of residence. Alternatively, Headquarters should assume greater 

central authority over the Title VIII complaint process. 

At the end of FY 2000, a victim of disability discrimination could 

expect to have waited 13 months since the filing of a complaint and to 

have no clear indication how soon the complaint might come to a 

hearing or otherwise be resolved. 

The average age of HUD complaints, measured from filing to date of 

closure, has risen from 96 days in FY 1989 to 137 days in FY 1992 to 

497 days in FY 2000. 

The aging of complaints has occurred as the number of complaints 

investigated by HUD has declined by 70 percent. 

HUD should analyze its management practices to determine why case 

handling has become so inefficient, and should report its findings to 

Congress and the public. 

253

Finding IV.D.2.d: The aged case backlog serves as an important indicator to 

complainants and fair housing advocates of the likelihood of a prompt 

adjudication of the complainant’s grievance. This, in turn, may well 

determine whether the complainant will decide to make use of the 

federal enforcement process. 

Finding IV.D.2.e: At the close of FY 1998, 69 percent of HUD’s pending complaints 

had exceeded the statutory 100-day maximum for investigation and 

determination of cause. At the close of FY 1998, 78 percent of HUD’s 

pending complaints had gone past 100 days. At the close of FY 1998, 

68 percent of HUD’s pending complaints had surpassed the deadline. 

During these three fiscal years, the Denver HUB was the worst 

performer (81 percent of cases older than 100 days) and Kansas City 

was the best (44 percent of cases older than 100 days). 

Finding IV.D.2.f: FHAP processing time to closure for all complaints came close to 

meeting the 100-day mandate during FY 1989 and remained below 

140 days through FY 1993. Processi ng times rose steadily through FY 

1997 (when they reached 317 days). Thereafter, they have declined 

nearly 30 percen t; during FY 2000, FHAP complaint s took an av erage 

of 220 days from filing to closure or cause determination. 

Finding IV.D.2 .g: FHAPs have been able to process fair housing complaints more 

quickly than HUD. In the last four years for which data are available, 

FHAPs have investigated and closed cases about 100 days faster than 

HUD. With respect to disability claims, FHAPs work more quickly as 

well, averaging 75 fewer days than HUD per disability complaint. 

Finding IV.D.3: Congress appears to be unaware of the scope of HUD’s aged case 

problem and the effect it has on complainants and public confidence 

in the administrative enforcement system. 

254

Recommendation IV.D.3: 

Finding IV.D.4.a: 

Finding IV.D.4.b: 

Finding IV.D.4.c: 

Congress should closely scrutinize HUD’s aged case portfolio and 

provide oversight and funding to correct it. 

Congress required the HUD Secretary to send the 100-day letters only 

where it was “impracticable” to complete an investigation within 100 

days, but the drafters of the FHAA did not anticip ate that such a large 

percentage of the inventory would exceed the statutory deadlines. At 

present, the 100-day letters are the rule, rather than the rare exception 

Congress intended. In essence, the letters have become a formality 

observed in almost every case. HUD’s intermittent reporting of these 

facts to Congress may have made it more difficult for the oversight 

committees to understand and respond to the aged case crisis. 

At every stage of the process, HUD and the FHAPs are failing to meet 

the time lines set out in the FHA. The 100-day letters tell only a part 

of the story; once a case exceeds 100 days from filing, there are no 

ongoing requirements that HUD or an FHAP report to complainants 

or respondents about the status of a case. Often, when investigations 

take more than 500 days, the dearth of communication with the 

parties effectively sends the message that no work is being done 

toward resolving the underlying complaint. 

Through FY 1994, HUD was able to conciliate cases in 150 days or 

fewer. Beginning in FY 1995, the time it took to resolve complaints 

began to increase dramatically, finally reaching 314 days in FY 2000. 

There appears to be no clear correlation between the prevalence of 

conciliations and the time expended to close a conciliated case. For 

example, in FY 1992, HUD successfully conciliated 2,058 cases, or 

32 percent of all complaints (582 of these cases alleged disability 

discrimination, representing 33 percent of all conciliated cases). That 

year, the average age of all conciliated cases was less than 100 days. 

This was accomplished at a time when FHEO had 309 FTEs devoted 

255

to enforcement. In FY 2000, HUD conciliated only 904 cases, or 41 

percent of all complaints (324 of these complaints alleged disability 

discrimination, representing 48 percent of all conciliated cases). The 

FY 2000 average age of conciliated cases was 314 days, at a time 

when HUD had 319 FTEs devoted to enforcement. 

Finding IV.D.4.d: During the past two fiscal years, FHAPs have been able to conciliate 

cases four to five months faster than HUD. 

Recommendation IV.D.4.a: HUD should analyze its management practices to determine why case 

handling has become so inefficient and should report its findings to 

Congress and the public. 

Recommendation IV.D.4.b: HUD should identify best practices among HUBs and FHAPs 

concerning the rapid conciliation of cases (especially disability cases) 

and require HUBs and FHAPs that do not already do so to use these 

practices. 

Finding IV.D.4.e: In FY 2000, with 319 enforcement FTEs, it took HUD more than 650 

days on average, and about 570 days for a disability case, to reach a 

finding of no cause. 

Finding IV.D.4.f: By contrast, over the past four fiscal years, FHAPs have actually 

brought down the average time to reach a finding of no cause to 258 

days, or more than a year faster than HUD in FY 2000. 

Finding IV.D.4 .g: The aging of cases amounts to a self-inflicted wound: The longer it 

takes HUD to process a case, the more likely that witnesses and 

evidence will evaporate, the more likely a case will remain idle in 

HUD’s inventory, and the more likely HUD will have to consign it to 

administrative closure or terminate it as a no cause case. 

Recommendation IV.D.4.c: HUD should determine how FHAPs have been able to reach 

determinations of no cause in less than half the time it takes HUD and 

256

Recommendation IV.D.4.d: 

Finding IV.D.4.h: 

Recommendation IV.D.4.e: 

Recommendation IV.D.4.f: 

Finding IV.E.1: 

Finding IV.E.2: 

should implement practices to ensure that HUD cases are treated as 

expeditiously. 

Congress should earmark funding for HUD to substantially reduce its 

aged case portfolio and to ensure that the problem does not recur. 

HUD takes five times as long to make cause determinations as 

Congress intended when it passed the FHAA, although they require at 

least the same level of investigation as no cause cases. In FY 2000, 

HUD made caus e determinations abou t 150 days faster on average 

(and 75 days faster on average for disability complaints). 

HUD should analyze the success of FHAPs in reaching cause 

determinations more quickly than the HUBs and should require HUBs 

to incorporate these best practices. 

Congress should require HUD to take immediate steps to assess the 

reasons for the aged case problem at HUBs and FHAPs. Congress 

should then provide adequate funding to support a corrective plan to 

ensure that investigations and cause or no cause determinations are 

made within 100 days of a complaint being filed. 

With respect to monetary compensation to victims of discrimination, 

total compensation and average compensation have increased, but 

largely because of a small number of large settlements in fair lending 

and design and construction cases. Excluding a single lending 

settlement in FY 2000, total compensation and average compensation 

per HUD case would have fallen to historic lows. 

Monetary compensation seems to be benefiting fewer and fewer 

complainants, declining from a high of 997 HUD cases in FY 1992 to 

only 400 HUD cases in FY 2000. FHAPs followed a similar path, 

from a high of 1,067 cases in FY 1996 to only 590 cases in FY 2000. 

257

Finding IV.E.3: Among HUD-processed complaints since 1989, average disability 

compensation ($6,732 per conciliated case) ranks fourth behind 

national origin, color, and race. Among FHAP-processed complaints 

since 1989, average disability compensation ($3,932 per conciliated 

case) ranks second behind color. 

Recommendation IV.E.1: HUD should focus its resources on securing resolution of (and 

compensation in) a broad range of fair housing complaints rather than 

focusing on settlement of cases designed primarily to garner the most 

publicity for the agency. 

Recommendation IV.E.2: HUD should identify best practices in each area above and attempt to 

replicate these practices across its enforcement programs. For 

example, if a region or FHAP is doing a particularly good job 

regarding quick processing or good conciliations or high levels of 

monetary compensation or good disability outreach, HUD should try 

to bottle it and make it available to the entire fair housing community, 

beginning with HUBs and FHAPs but including FHIPs and other 

advocates. 

Finding IV.F.1: Despite clear authority in the FHAA, HUD has used the Secretaryinitiated complaint option on only two occasions. 

Recommendation IV.F.1: As part of its comprehensive effort to more effectively enforce the 

FHA, HUD should make much more e xtensive use of Secret aryinitiated complaints. 

Finding IV.F.2.a: The relative dearth of cause findings has meant that few complaints 

ever reach an ALJ hearing. 

Finding IV.F.2.b: Because of the low caseloads, the expertise of HUD ALJs is 

drastically underused. 

258

Recommendation IV.F.2: 

Finding V.C.1: 

Recommendation V.C.1: 

Finding V.C.2: 

Recommendation V.C.2: 

As part of a comprehensive plan to more effectively enforce the FHA, 

HUD should strive to increase its use of ALJs by processing cases 

more quickly and issuing charges in a greater percentage of cases. 

TEAPOTS does not include enough information about Section 504 

complaints and compliance reviews to permit it to be used as a 

planning and evaluation document. FHEO has just begun to add 

Section 504 to TEAPOTS. TEAPOTS may need to be expanded to 

include data about Section 504 compliance reviews for it to be a fully 

effective data collection system. FHEO has not had sufficient 

resources to create effective data collection systems or to provide 

adequate IT support services to FHEO staff to enable them to provide 

reliable, consistent data or to use FHEO’s data systems effectively. 

FHEO should make its data systems a priority. HUD should fund 

FHEO’s data systems and resources adequately. FHEO should 

determine whether to add fields to TEAPOTS that would make it as 

effective a data system as possible for planning, coordinating, and 

evaluating purposes. 

FHEO has not developed an adequate, consistent, and reliable data 

system for its Section 504 enforcement actions. As a result, it has not 

been able to learn from its successes or its mistakes, make the best 

arguments for adequate funding, plan or allocate resources in a 

reasonable way, or justify the actions that it has taken or proposes to 

take. 

FHEO should add the same Section 504 complaint and compliance 

review data to the data system it currently maintains to track its 

enforcement of the FHA. In addition, FHEO should systematize the 

requests, timing, and storage of data that it must collect for its annual 

259

Recommendation V.C.3:

Recommendation V.C.4:

Finding V.E.2.a: 

Recommendation V.E.2.a: 

reports to Congress, to the Department of Justice, and to the U.S. 

Commission on Civil Rights. 

FHEO should review the data collection system that the Office of 

Coordination and Review uses to collect governmentwide Section 

504 data from all federal agencies and consider how best to collect, 

maintain, and use the HUD data and make it available to the public. 

FHEO should provide adequate resources to its data collection system 

and to the IT staff that support it. 

Headquarters should involve field staff in solving the data collection 

and data maintenance problems. The data system should be able to 

identify common enforcement problems and discrimination trends to 

enable FHEO and HUD to target enforcement activities. 

FHEO has drafted an Assisted Housing Provider Compliance Review 

Manual that provides a detailed approach, is easy to follow, and has 

been effectively combined with on-site compliance reviews. FHEO 

has not finalized the manual, nor has it developed similar manuals for 

reviews of other recipients, such as states, cities, and agencies that 

receive funding from the Office of Community Planning and 

Developmen t. FHEO has combined co mpliance re views with training. 

FHEO should finalize the Assisted Housing Provider Compliance 

Review Manual and should publish similar manuals for each type of 

recipient. The development of the manuals should accompany 

increased resources for continued training and compliance reviews. 

The manuals should contain instructions on contacting local advocacy 

groups, tenant organizations, and any other local group that has 

experience with the recipient; inviting the contacts to submit 

information before the compliance review or meeting with the 

compliance team before the review; and obtaining information from 

260

Recommendation V.E.2.b: 

Recommendation V.E.2.c:

Finding V.E.2.b: 

Recommendation V.E.2.d: 

Finding V.F.1: 

FHEO after the compliance review for the purpose of developing 

methods of encouraging and helping the recipient to comply with 

Section 504. 

FHEO should continue to combine training with compliance reviews. 

It should review the merits and problems of the approach and address 

them both. Some of the issues to review are the amount of on-site 

time; the number of FHEO staff involved; coordination and staff from 

field and Headquarters program offices; and inclusion of general or 

regional counsel staff, Department of Justice staff, or staff from other 

federal or state agencies, such as the Environmental Protection 

Agency and the Departments of Education and Transportation. 

FHEO should continue to target its compliance reviews based on 

number of complaints, input from advocates and recipients, news 

articles, and current Department of Justice guidance. 

The Section 504 enforcement program has never been adequately 

staffed in Headquarters or in the field, nor has it been provided with 

adequate resources. 

The Section 504 enforcement program must be fully staffed in 

Headquarters and in the field and should be adequately funded to 

support a departmentwide Section 504 enforcement program. 

HUD has not coordinated its Section 504 enforcement responsibilities 

to take advantage of critical program or departmental efforts. It does 

not have a method for conducting ongoing discussions about the 

impact of departmental actions and policies on Section 504 

enforcement. It does not work with other federal or state agencies or 

with t he Justice Department Office of Coordination and Review. It 

does not communicate regularly and effectively with consumers or 

their representatives or with the agencies and advocates that represent 

261

Recommendation V.F.1: 

Finding V.G.1: 

Recommendation V.G.1: 

them on their discrimination, housing, or community development 

issues. 

FHEO should develop a Section 504 program that includes short-term 

and long-term strategies and goals for enforcing Section 504; a review 

of the successful ways FHEO has coordinated with other HUD 

offices; establishment of systems for communicating within HUD and 

with consumers and recipients; evaluation methods; coordination of 

its technical assistance branch, its FHA branch, and its Section 504 

enforcement branch; review of, evaluation of, and plans for improving 

responses to, investigations of, and enforcement of Section 504 

complaints; review of, evaluation of, and plans for a compliance 

program that results in rational and effective use of compliance 

reviews; and sufficient resources to implement a Section 504 

program. 

FHEO has not developed a standardized system for determining when 

compliance reviews of HUD recipients would advance FHEO’s and 

HUD’s civil rights goals. HUD and DOJ criteria for identifying 

targets of compliance reviews have not been used consistently by field 

offices and have not been used at all by field offices that have not 

conducted compliance reviews or have targeted only housing 

authorities. 

HUD’s compliance program should include all HUD recipients and 

should be an integral part of its goal of affirmatively furthering fair 

housing. FHEO’s compliance program must be based on articulated 

criteria that can be measured and communicated within FHEO and 

HUD and to recipients and the public. HUD must ensure that each of 

its program offices provides FHEO with relevant information about 

the compliance of its recipients and cooperates with FHEO in its 

compliance program. 

262

Finding V.H.1: 

Recommendation V.H.1: 

Finding V.H.2: 

Recommendation V.H.2: 

Finding V.I.1.a: 

FHEO and PIH have conducted joint ventures that have not been 

documented . Their resu lts are ther efore not available for planning, 

budgeting, technical assistance, or further joint ventures. 

FHEO and its departmental partners should document and evaluate 

their joint efforts. FHEO and PIH should make their joint report 

available within HUD and to the public. To the extent possible, 

FHEO and PIH should issue documents reflecting past coordinated 

efforts. Both offices should institute a system to ensure that future 

efforts are similarly recorded and made public. 

Enforcement of Section 504 is a departmental responsibility. Without 

the support of HUD leadership and the cooperation of HUD’s 

program offices, FHEO has limited ability to ensure the law’s 

enforcement. 

HUD should establish a secretarial-level office whose responsibility is 

to conduct a “civil rights impact statement” for each of its initiatives. 

Similar to an environmental or business impact statement, the civil 

rights analysis will clarify whether a funding program’s decision, 

action, or interpretation will affect its civil rights program and 

whether it will promote, hinder, or have no impact on the 

accomplishment of HUD’s civil rights goals. 

FHEO limited compliance reviews to housing authorities for many 

years. It investigated only Title VI or Section 504 compliance when it 

could have investigated both simultaneously. When FHEO adopted its 

multistatute approach and issued multijurisdictional guidance, 

compliance reviews became more efficient. Except for a brief period, 

FHEO’s compliance review strategy in many field offices was to 

review every housing authority and to review every one again. 

FHEO’s efforts to create a compliance review strategy that used 

263

Recommendation V.I.1.a: 

Finding V.I.1.b: 

Recommendation V.I.1.b: 

reviews to focus on known civil rights problems was logical and 

effective. The effort ended when FHEO staffing levels were reduced 

and remaining staff and resources for compliance reviews were 

diverted to FHA complaint investigations. 

FHEO should adopt an expanded version of its previously successful 

compl iance review strategy as p art of its Sectio n 504 p rogram . It 

should target its compliance reviews according to enforcement 

strategies that have had the greatest likelihood of accomplishing 

specific programmatic goals, and it should conduct multistatute 

reviews. The goals should include expanding recipients’ 

understanding of and compliance with Section 504 requirements; 

coordinating with HUD program offices and expanding their ability to 

ensure recipients’ compliance with Section 504; and increasing the 

public’s knowledge of and support for Section 504 and related civil 

rights laws. 

FHEO successfully obtained one of the most extensive VCAs in its 

history by working in conjunction with the OGC and PIH. The team 

received full support from departmental and program leadership. 

Without that support, the team would not have had the time, the 

resources, or the authority to develop solutions to enforcement and 

program interpretation problems that had prevented earlier 

compliance efforts. The NYCHA approach could have been replicated 

with other housing authorities, but HUD did not provide the necessary 

resources to do so. 

FHEO should review the approach that resulted in the NYCHA VCA 

and determine what resources and support would be necessary to 

apply it to other recipients. FHEO should also publish its evaluation 

of the NYCHA approach and use it to further its training, technical 

assistance, and enforcement efforts. 

264

Finding V.I.3.a: 

Recommendation V.I.3.a: 

Recommendation V.I.3.b: 

Finding V.J.1: 

Recommendation V.J.1: 

FHEO’s Austin VCA is replicable, but no other FHEO agreement 

with a city accomplishes as much. The probable reasons for the 

breadth of the VCA and its successful implementation are a 

combination of Headquarters support, dedicated field staff, willing 

city officials, and, possibly most important, a local advocacy group 

that knew the city, understood Section 504 and the FHA, and 

persisted with both FHEO and the city until it achieved the goals of 

its complaint. 

FHEO should replicate the resources and sustained support that were 

necessary to bring the city of Austin into compliance with Section 

504. FHEO should encourage staff to work with local agencies and 

advocacy groups in identifying discrimination issues, forging 

solutions, and monitoring agreements. 

HUD should enforce the Section 504 responsibilities of cities, 

counties, and states to ensure that all of their programs and activities 

meet the regulatory requirements. For example, every city should 

ensure that 5 percent of the city’s housing program is fully accessible 

to residents with mobility impairments. See, for example, the city of 

Austin’s program. Every state should ensure that all of its programs 

promote the ability of individuals with cognitive and mental 

disabilities to gain access to the same benefits and services as all other 

state residents. 

When recipients violate VCAs, HUD does not take enforcement 

action against them. HUD treats VCAs as “educational documents,” 

and the compliance review process as an “educational process,” rather 

than as a means of enforcing civil rights laws. 

All VCAs must be enforced after their time limits expire and the 

recipient has not fulfilled the VCA’s terms. FHEO shall immediately 

265

forward the VCA to the Office of General Counsel for enforcement. 

The OGC shall initiate administrative proceedings within two 

months of receiving the referral from FHEO. OGC and FHEO shall 

give the recipient one month to comply with the terms of the VCA 

before initiating enforcement actions. 

Recommendation V.J.2: FHEO must develop protocols with the grant-award program to 

ensure that if funds are granted, they be conditioned upon the 

recipient’s correcting the violations according to an existing VCA. 

HUD should make clear that failure to comply with the terms of the 

VCA shall result in enforcement and temporary denial of all future 

funds to the recipient, including funds that have been approved but 

are awarded on a periodic basis. 

Recommendation V.J.3: HUD should publish all VCAs on the HUD Web site and include the 

name of the FHEO contact for questions from the public and other 

recipients. 

Finding V.K.1: FHEO has successfully operated under the multistatute guidance for 

several years. The results of investigating a recipient’s compliance 

with two or more civil rights laws simultaneously has had obvious 

efficiency benefits for the recipient, the beneficiaries, and HUD. 

Recommendation V.K.1: HUD should continue to follow the multistatute guidance. The 

agency should conduct an evaluation of how the field offices use the 

guidance, identify any differences, and develop guidance to address 

gaps and to reinforce successful outcomes. HUD should also define 

successful outcomes in terms of numbers of beneficiaries assisted, 

timeliness of the operation, satisfaction of the parties involved, funds 

and time spent, and replicability of the effort. 

Finding V.L.1: FHEO has not maintained the Section 504 guidance that it has issued 

in any systematic way. It has not maintained the systems that once 

266

Recommendation V.L.1: 

Finding V.M.1: 

Recommendation V.M.1: 

Finding V.M.2.a: 

existed, and it has not created a system for maintaining such 

guidance now. It is critical that the source for policy decisions, the 

decisions themselves, and the resulting guidance be continually 

available to HUD staff and to the public. 

FHEO should create a method as soon as possible for collecting all 

Section 504 policies, guidance, notices, and interpretive materials in 

a single location. Each of the documents should be identified by 

issuance date, location (i.e., where it first appeared), history, and 

current force. FHEO should allocate sufficient resources to this 

project so that a system of locating and maintaining such information 

can be established and maintained. FHEO should make these 

historical documents and future documents available to HUD staff 

and to the public in a user-friendly format that is searchable by word 

or concept. 

HUD has too narrowly defined “recipient” to exclude housing 

providers who benefit from federal financial assistance. HUD’s 

assigning housing authorities with the responsibility of monitoring 

private housing providers’ compliance with the civil rights laws has 

been unworkable. 

HUD should review its policy decision and issue an interpretation of 

the responsibilities of federally subsidized private housing providers 

that is effective and enforceable. 

HUD’s Occupancy Task Force issued numerous recommendations in 

1994 as to how the funding programs could incorporate disability 

rights requirements into their operations. The Offices of Housing and 

Community Planning and Development did not adopt the majority of 

the recommendations. The recommendations resulted from 

agreement among public and private housing providers, advocates 

267

Recommendation V.M.2.a: 

Finding V.M.2.b: 

Recommendation V.M.2.b: 

Recommendation V.M.2.c: 

for elders and people with disabilities, and management 

organizations. 

HUD should review and incorporate as many of the Occupancy Task 

Force recommendations as are applicable to HUD’s current Housing 

and Community Planning and Development programs. It should 

determine whether the recommendations can be applied to programs 

and initiatives that did not exist in 1994 and the most effe ctive ways 

of applying them. 

The Secretary’s Office on Disability Policy brought Section 504 and 

fair housin g disability issu es to the attentio n of HUD’s leadership. It 

encouraged the Secretary and his staff to meet with disability rights 

advocates, and it resulted in greater recognition among program staff 

of the implications of program regulations and guidance for 

individuals with disabilities. 

HUD should maintain the Secre tary’s Office on Disability Policy. 

HUD should assign it joint oversight with the Office of 

Administration, FHEO, and the Office of General Counsel for 

HUD’s Section 504 federally conducted responsibilities insofar as 

necessary to ensure that no HUD program operates in inaccessible 

buildings; that HUD conducts an effective self-evaluation of its 

policies, regulations, guidance, and practices; and that HUD drafts an 

employment needs assessment, develops a transition plan to correct 

deficiencies, and secures sufficient funding to implement the 

recommendations from its assessments and evaluations. 

The Office on Disability Policy should have a director with 

experience in disability rights. The director should have at least one 

staff person for each of HUD’s offices, including FHEO. Each staff 

person shall be familiar with the operations and statutory 

268

Finding V.N.1.a: 

Recommendation V.N.1.a: 

Finding V.N.1.b: 

Recommendation V.N.1.b: 

responsibilities of the particular office. The staff person responsible 

for FHEO shall maintain continuing communication with the 

Assistant Secretary of FHEO and shall ensure that the two offices 

coordinate their activities. The office shall be responsible for 

conducting a “disability impact study” of HUD’s major initiatives, 

which will include specific recommendations for changes, 

expansions, and consultation with the civil right s community. 

HUD has, for the past three years, included specific civil rights 

information in its Notices of Funding Availability (NOFAs). The 

information is limited and is not preserved in any form other than 

NOFAs. It has also issued notices to program recipients about civil 

rights obligations in the context of specific HUD grant programs. 

HUD should continue to include civil rights requirements, especially 

Section 504 and other funding-related requirements, in NOFAs and 

other communications with recipients. HUD should maintain the 

information in a retrievable system for recipients and the public. 

HUD should assign sufficient staff and resources to the grant 

programs and to FHEO, both to provide adequate technical 

assistance for voluntary compliance and to make the enforcement 

warnings credible. 

FHEO and HUD have begun to use the Web to provide information 

to the public about programs, regulations, notices, and related 

sources of information and assistance. The FHEO Web page is 

promising, but is difficult to navigate and does not include all of 

HUD’s past and current civil rights information and documents. 

HUD and FHEO should maximize their use of their Web sites. All 

HUD and FHEO information, guidance, and requirements related to 

civil rights compliance and enforcement should be on the Web sites. 

269

Finding VI.B.3.a: 

Recommendation VI.B.3.a: 

Finding VI.B.3.b: 

RecommendationVI.B.3.b: 

Finding VI.B.3.c: 

Recommendation VI.B.3.c: 

In particular, information that is not retrievable in any other way 

should be on the Web sites. This includes information in grant 

documents, such as the SuperNOFA, that defines eligibility for HUD 

funding in terms of civil rights compliance. 

HUD’s current Strategic Plan and APP do not contain adequate 

measures to address and correct the enforcement and compliance 

issues addressed in this study. 

HUD and its Office of Fair Housing and Equal Opportunity should 

review and revise both the current Strategic Plan and future APPs to 

include clearer goal-setting for case-processing issues. Such goals 

should be outcome-based and subject to monitoring activity designed 

to improve performance. 

HUD’s current Strategic Plan and APP lack specific measures and 

indicators for enforcement and compliance strategies to address 

housing discrimination against people with disabilities. Current 

strategies for studies and training about accessible housing only 

include fair housing violations and not Section 504 violations. 

HUD and its Office of Fair Housing and Equal Opportunity should 

develop more focused goals in its Strategic Plan and future APPs 

that will directly address and increase enforcement of the FHA and 

Section 504, overall and for people with disabilities. 

HUD’s current Strategic Plan and APP lack any reference to using 

Section 504 to address housing discrimination against people with 

disabilities. 

HUD should revise its Strategic Plan and improve future APPs by 

including specific measures and indicators to reduce housing 

270

Finding VI.B.4.a: 

Finding VI.B.4.b: 

Recommendation VI.B.4.a: 

Finding VI.B.5.a: 

Recommendation VI.B.5.a: 

Finding VI.B.7.a: 

Finding VI.B.7.b: 

discrimination against people with disabilities using HUD’s Section 

504 compliance authority. 

HUD has failed to make strong commitments to civil rights 

enforcement and compliance activities in its current planning and 

implementation process. 

The most recent BOP for FHEO, like the Strategic Plan and the APP, 

does not establish performance-based measures designed to produce 

more effective enforcement and compliance. 

FHEO should develop more performance measures related to 

improved civil rights enforcement, including measures for improved 

performance of FHA and Section 504 complaint investigations and 

Section 504 compliance reviews. 

FHEO’s current devolved organizational structure has not improved 

the delivery of civil rights enforcement and compliance activities. 

FHEO’s organizational structure should be reevaluated to identify 

the changes that should be made to improve civil rights enforcement 

and compliance delivery. 

FHEO needs to continue and expand its on-site monitoring process. 

It should monitor more specific BOP and APP goals as 

recommended above, and it should use its on-site monitoring process 

as a way of ensuring that performance standards are met and field 

staff are performing adequately. 

An on-site monitoring process should have as its primary goal the 

assurance of prompt, effective enforcement and compliance 

outcomes. Benchmarks for performance should be set and 

monitored. Offices that do not meet these benchmarks should receive 

271

Recommendation VI.B.7.a: 

Finding VI.B.8.a: 

Recommendation VI.B.8.a: 

Finding VI.B.8.b: 

Recommendation VI.B.8.b: 

direct technical assistance and sanctions, if necessary, to improve 

performance. 

FHEO should continue its on-site monitoring process and ensure that 

it includes adequate benchmarks, actual observation and review of 

performance, and outcome-based reviews so that the process 

improves its enforcement and compliance operations consistent with 

the other recommendations of this report. 

FHEO lacks sufficient performance-based criteria for its employees 

to ensure that they perform at appropriate levels. 

FHEO should implement performance-based elements for staff 

engaged in enforcement and compliance functions. 

HUD lacks legal information resources that are critical to its 

enforcement and compliance work in enforcing Section 504 and the 

FHA. 

At a minimum, HUD should provide access to comprehensive fair 

housing legal information that is searchable by name of case, issue, 

or keyword. The information that should be made available includes 

information on FHA and housing-related Section 504 state and 

federal judicial decisions, determinations that there is or is not 

reasonable cause to believe that a violation of the FHA has occurred, 

determinations by HUD that there is compliance or noncompliance 

with Section 504, conciliation agreements, VCAs, settlements in 

FHA cases, and legal and interpretive opinions issued by the Office 

of General Counsel on significant issues relating to the FHA and 

Section 504. This information should be made available to HUD 

staff and to the public, and it should be made available in accessible 

and alternative formats. 

272

Recommendation VI.B.8.c: HUD should immediately provide access for FHEO and counsel staff 

to the searchable, ADA-compliant fair housing and civil rights case 

database available online through the National Fair Housing 

Advocate. 

Finding VI.C.1.a: HUD’s staffing of FHA and Section 504 enforcement activities has 

decreased significantly over the past 11 years. 

Finding VI.C.1.b: During the past four years, the Office of Fair Housing and Equal 

Opportunity has not been given adequate staffing resources to 

perform its enforcement work. 

Finding VI.C.1.c: As staffing increases to appropriate levels, additional supervisors 

will be necessary to oversee day-to-day activities ef fect ively. 

Recommendation VI.C.1.a: At a minimum, FHEO should be provided with enough skilled 

nontemporary staff FTEs to ensure that each investigator carries no 

more than 15 FHA cases or the equivalent at any time. Additional 

staffing should be provided to ensure that enforcement activities 

under Section 504 are conducted at a meaningful level in each HUB. 

Recommendation VI.C.1.b: At a minimum, FHEO should be provided with enough supervisory 

staff to permit a ratio of one supervisor to every seven or eight 

investigators. An analysis similar to the PriceWaterhouse study of 

staffing needs for compliance activities should be conducted, and 

staff should be increased accordingly. 

Finding VI.C.1.d: For at least the past four years, the Office of Fair Housing and Equal 

Opportunity has not been provided with enough resources to perform 

a rea sonable amount of compliance activity. 

Finding VI.C.1.e: HUD’s doubling of enforcement activities took valuable staff and 

resources away from compliance activities. 

273

Finding VI.C.1.f: Compliance activities suffer when staff are reassigned to perform 

other demand-driven activities. 

Finding VI.C. 1.g: FHEO’s compliance review process has not been the subject of a 

significant external review in the same way that PriceWaterhouse 

reviewed the FHA process. 

Recommendation VI.C.1.c: FHEO should be provided with adequate staff, in addition to 

enforcement staff, to en sure that co mpliance activities are ongoing, 

consistent, and completed in a timely manner. Organizational 

structures should ensure that staff are allocated in a way that permits 

compliance staff to be protected from such demands to ensure that 

compliance work is an ongoing and consistent process. 

Recommendation VI.C.1.d: FHEO’s compliance review process should be reviewed and 

analyzed by an external entity, such as PricewaterhouseCoopers, and 

its operations revised for greater efficiency and effectiveness. 

Finding VI.C.1.h: There is inadequate information from which to determine whether 

staff attorneys have been provided in adequate numbers to support 

FHA and Section 504 activities. 

Recommendation VI.C.1.e: HUD’s Office of General Counsel should evaluate its staffing of the 

fair housing and civil rights enforcement functions to ensure that 

there are adequate numbers of staff attorneys to support those 

functions. No case should be delayed and no rights should be 

jeopardized because of lack of available legal resources. 

Recommendation VI.C.1.f: HUD should consider whether its civil rights attorneys should report 

to the Assistant Secretary for Fair Housing and Equal Opportunity, 

after implementing a more effective legal guidance delivery system. 

Finding VI.C.2.a: The absence of fair housing deliverables and outcomes, the lack of a 

carefully const ructed case-tracking system for cases fun ded through 

274

Recommendation VI.C.2.a: 

Recommendation VI.C.2.b: 

Recommendation VI.C.2.c: 

Finding VI.C.2.b: 

Finding VI.C.2.c: 

Recommendation VI.C.2.d: 

FHIP, and the absence of institutional knowledge about the best or 

most effective of the programs funded through FHIP are significant 

shortcomings in an important program. 

FHIP should move expeditiously to develop a comprehensive, 

organized system to identify outcomes, information, and materials 

developed as a result of the program and to make them available to 

the public and especially to organizations and individuals that deal 

with fair housing issues. 

FHIP should d evelop a case-tracking system for use by FHIP 

recipients, with read-only access by FHIP monitors, to collect 

reportable data to assist in quantifying the activities of recipients 

funded by FHIP. Such a data system should have the capability of 

being used by FHIP recipients to track, monitor, and report on their 

own activities. 

The changes proposed to FHIP in this report should include input 

from current and potential FHIP recipients and other interested 

stakeholders to ensure that the program changes result in a more 

efficient and effective use of federal dollars.

FHIP serves an important function in supporting fair housing rights. 

As currently constituted, however, the program has operated 

ineffec tively and ineff iciently. 

FHIP does not provide adequate systematic support for an ongoing 

fair housing pr esen ce na tionally. 

FHIP’s private enforcement initiative should be reconstituted to 

provide funding to full-service private fair housing groups based on a 

formula grant approach. The funding should be tied to eligibility 

criteria based on the current statute; it should be based on population 

275

Recommendation VI.C.2.e: 

Recommendation VI.C.2.f: 

Finding VI.C.2.d: 

Finding VI.C.2.e: 

Recommendation VI.C.2 .g:

Finding VI.C.2.f: 

Recommendation VI.C.2.h: 

in the service area served by a group; and it should be tied to 

increased training and technical assistance and performance 

monitori ng. 

FHIP should develop a formula-based funding structure that enables 

new organizations to become qualified to participate in the private 

enforcement initiative as full-service organizations, as FHAP funds 

new participants in its capacity-building program. 

FHIP’s education and outreach and national initiatives should 

continue to be funded competitively, with improvements as 

recommended by the HUD Inspector General. 

FHAP has not developed the significant operational problems that 

have been found in FHIP. 

FHAP could be improved by more aggressive monitoring of case 

processing, by improved training and technical assistance, and by 

taking effective action to correct situations where substantial 

equivalency standards are not met. 

FHEO should be provided with adequate resources to develop a 

more effective training, technical assistance, and monitoring program 

to improve the performance of FHAP agencies, including the 

establishment of a risk-based monitoring process. 

FHEO provides funding to FHAP agencies for special enforcement 

initiatives but lacks a system for collecting data about the nature of 

these initiatives or their outcomes. The standards for receipt of this 

special funding are not onerous. 

FHEO should develop a process for collecting and making available 

the outcomes of its special enforcement initiatives program for 

FHAP agencies. 

276

Recommendation VI.C.2.i: FHEO should review and strengthen the criteria for receipt by FHAP 

agencies of special enforcement initiatives funding and should 

collect and disseminate to the public information about their 

outcomes. 

Finding VI.C.3: FHEO receives inadequate contract and printing funding to allow it 

to perform its statutorily required duties. 

Recommendation VI.C.3: FHEO’s contract budget should be increased immediately, to at least 

double FHEO’s expenditure in 1994, to $5.2 million. Future funding 

levels should be maintained at similar or higher levels to provide 

needed reliability in planning. FHEO should be given staff support to 

assist in the prompt allocation and obligation of these funds. FHEO’s 

printing budget should be similarly increased. 

Finding VI.C.4: FHEO travel funding has remained static over the past seven years, 

resulting in an overall loss of funds in real dollars. 

Recommendation VI.C.4: HUD should provide adequate travel funding, based on realistic 

budget projections from field and Headquarters staff, to permit onsite investigations and compliance reviews, attendance by staff at 

investigation- and compliance-related activities, and attendance by 

staff at training events and at public events that will enhance FHEO’s 

education and outreach activities. 

Finding VI.D.1.a: FHEO has generated guidance and interpretations about the 

application of civil rights laws, but it is not current ly using a 

mechanism to make this guidance available to the public. 

RecommendationVI.D.1.a: FHEO should develop and implement a more comprehensive system 

to make its interpretations of civil rights laws generally available. 

HUD should provide adequate staffing and funding to support this 

effort. 

277

Finding VI.D.1.b: FHEO’s enforcement handbook provides important procedural and 

substantive guidance. It is a useful first step in setting standards for 

proper performance of fair housing enforcement activities. 

Recommendation VI.D.1.b: FHEO’s enforcement handbook should be completed and updated, 

considered to be binding guidance for FHEO and FHAPs alike, and 

available publicly. 

Finding VI.D.2: FHEO lacks a unified, systematic mechanism for providing 

substantive and technical training to its enforcement and compliance 

staff, other than annual FHAP/FHIP conferences that are attended by 

only a few FHEO staff. 

Recommendation VI.D.2: HUD should fund, and FHEO should establish, a civil rights training 

academy that will provide basic and advanced skills, substantive 

skills, and technical training as described in this report for its own 

staff and for legal counsel. 

Finding VI.D.3.a: HUD’s current Housing Discrimination Study testing the incidence 

of discrimination in housing does not study the incidence of 

discrimination against people with disabilities. 

Recommendation VI.D.3.a: HUD should conduct a single national study to identify the incidence 

and dimensions of discrimination against people with disabilities, 

similar to its curr ent Housing Dis crimination Study. 

Finding VI.D.3.b: HUD has not conducted any national study of the ways in which 

discrimination against people with disabilities manifests itself, nor 

any study of discrimination against people with disabilities in HUDfunded properties. 

Recommendation VI.D.3.b: HUD should initiate a national study of the ways in which 

discrimination against people with disabilities manifests itself and a 

278

national study of discrimination against people with disabilities in 

HUD-funded properties. 

Finding VI.D.4:	 HUD would benefit by increasing the visibility and activities of an 

Offi ce of Disability Policy. 

Recommendation VI.D.4:	 An Office of Disability Policy should be funded and staffed 

appropriately to permit increased input on disability-related 

activities, including enforcement and compliance, at the highest 

decision-making level within HUD. 

Finding VI.D.5:	 There continues to be a need to educate the public about the nature 

and extent of housing discrimination against people with disabilities. 

Recommendation VI.D.5:	 HUD, together with community stakeholders, should consider 

conducting town meetings in several locations around the country to 

better inform the public, people with disabilities, housing providers, 

and HUD about disability-based housing discrimination. 

279

Tables 

Table III-1 

Table IV-1 

Table IV-2 

Table IV-3 

Table IV-4 

Table IV-5 

Table IV-6 

Table IV-7 

Table IV-8 

Table IV-9 

Table IV-10 

Table IV-11 

Table IV-12 

Table IV-13 

Table IV-14 

Table IV-15 

Table IV-16 

Table IV-17 

Table IV-18 

Table IV-19 

APPEND IX II


List of Tables and Charts


FHAP Regional Agencies 

Characteristics of “Claims” and “Complaints” 

HUD Complaints Filed, by HUB 

Complaints Filed with HUD, by Protected Class 

Percentage of HUD Title VIII Complaints That 

Allege Disability, by HUB and Fiscal Year 

HUD Case Issue Codes 

HUD Cases Involving Disability Claims 

FHAP Cases Involving Disability Claims 

HUD Cause Findings, All Cases, Fiscal Years 1998–2000 

HUD Disability Complaints and Cause Determinations 

Thereon (1990–2000) 

FHAP Disability Complaints and Cause Determinations 

Thereon (1990–2000) 

Average Age (in Days) of Open HUD Disability Complaints, by Year 

Average Age of Open HUD Disability Complaints, by HUB and by Year 

Average Age of Open FHAP Disability Complaints, by HUB and by Year 

Total Monetary Compensation, by Year 

Number of Cases with Monetary Compensation, by Year 

Average Compensation in Conciliated Cases (in dollars) 

Average Compensation per Conciliated Case, 1989–2000 (in dollars) 

Monetary Compensation in HUD Conciliated Disability Cases, 

By Year, by HUB (Average Compensation per Case) 

Monetary Compensation in FHAP Conciliated Disability Cases, 

by Year, by HUB (Average Compensation per Case) 

280

Table IV-20 Compari son of HUD an d FHA P Region s with Respect to Monetary 

Compensation 

Table IV-21 Outcomes in ALJ Disability Cases 

Table V-1 State of Fair Housing—Complaints 

Table V-2 State of Fair Housing—Compliance Reviews 

Table V-3 FHEO Salaries and Expenses Documents and October 2000 

U.S. Commission on Civil Rights Draft Report 

Table V-4 Implementation Reports (E.O. 12250) 

Table VI-1 Funding for the Fair Housing Initiatives Program, FY 1990–FY 2000 

Table VI-2 FHIP Funding Addressing Discrimination Against People with 

Disabilities, FY 1990–FY 2000 

Table VI-3 Fair Housing Assistance Program Budget Requests and 

Appropriations, FY 1990–FY 2000 

Table VI-4 HUD Allocation of Contract Funding to FHEO, FY 1994–FY 2000 

Table VI-5 Travel Allocations and Expenditures for FHEO, FY 1994–FY 2000 

Charts 

Chart III-1 Progress During HUD National Enforcement Action Doubling Period, 

FY 1997–December 31, 2000 

Chart IV-1 Total Receipts (HUD and FHAPs) by Fiscal Year 

Chart IV-2 HUD Receipts v. FHAP Complaints 

Chart IV-3 HUD Receipts, FY 1989–FY 2000 

Chart IV-4 Complaints Filed with HUD 

Chart IV-5 FHAP Complaints, FY 1989–FY 2000 

Chart IV-6 Disability as Percent of FHAP Complaints 

Chart IV-7 Cases Conciliated as Percentage of HUD Closures 

Chart IV-8 FHAP Cases Conciliated: All Cases v. Disability 

Chart IV-9 No Cause Findings as Percentage of HUD Closures 

Chart IV-10 FHAP No Cause Closures: All Cases v. Disability 

281

Chart IV-11 Cause Findings by Fiscal Year 

Chart IV-12 HUD Cause Percentage: All Cases v. Disability 

Chart IV-13 FHAP Cause Percentage: All Cases v. Disability 

Chart IV-14 Age to Cause or Closure: All HUD Cases v. HUD Disability Cases 

Chart IV-15 Age to Cause or Closure: All FHAP Cases v. FHAP Disability Cases 

Chart IV-16 HUD Age to Conciliation/Settlement: All Cases v. Disability 

Chart IV-17 FHAP Age to Conciliation/Settlement: All Cases v. Disability 

Chart IV-18 HUD Age to No Cause: All Cases v. Disability 

Chart IV-19 Age of HUD Cause Findings: All Cases v. Disability 

Chart VI-1 Current FHEO Organizational Chart 

Chart VI-2 FHEO Staffing Levels, FY 1989–FY 2000 

Chart VI-3 Staffing of FHEO’s Enforcement Activity, FY 1989–FY 2000 

Chart VI-4 Staffing of FHEO’s Compliance Activities, FY 1989–FY 2000 

282

APPENDIX III 

List of Acronyms 

ADA Americans with Disabilities Act 

ADAPT Americans Disabled for Attendant Programs Today 

ALJ administ rative law j udge 

APP Annual Performance Plan 

BOP Business Operating Plan 

CCCR Citizens’ Commission for Civil Rights 

CDBG Community Development Block Grant 

CFR Code of Federal Regulations 

CPD Community Planning and Development 

DAS Deputy Assistant Secretary 

DOJ Department of Justice 

FHA Fair Housing Act 

FHAA Fair Housing Amendments Act 

FHAP Fair Housing Assistance Program 

FHEO Fair Housing and Equal Opportunity 

FHIP Fair Housing Initiatives Program 

FTE full-time-equivalent 

FY Fiscal Year 

GAO Government Accounting Office 

GPRA Government Performance and Results Act of 1993 

HEW Health, Education, and Welfare 

HHS Health and Human Services 

HOPWA Housing for People with AIDS 

HUB housing field office 

HUD Housing and Urban Development 

IT informati on technol ogy 

283

LOF	 Letter of Find ings 

MCATS	 Management and Complaint Automated Tracking System 

NCD	 National Council on Disability 

NOFA	 Notice of Funding Availability 

NYCHA	 New York City Housing Authority 

OFHEO	 Office of Fair Housing and Equal Opportunity 

OGC	 Office of General Counsel 

OIG	 Office of Inspector General 

PIH	 Public and Indian Housing 

PVA	 Paralyzed Veterans of America 

SMART	 Safe, Mixed-income, Accessible, Reasonably priced, and Transitoriented 

TAG	 technical assistance guidance 

TEAPOTS	 Title VIII Paperless Office Tracking System 

TRACE	 Section 504 Complaints Computer Tracking System 

TRO	 temporary restraining order 

USC	 United States Code 

VCA	 Voluntary Compliance Agreement 

284 
APPENDIX IV 

Supplementary Charts and Ta bles 

Appendix IV-1 

The following chart shows the number of complaints received during the past three fiscal 

years, compared to the number of clai ms received and the number of complaints filed by HUD. By 

comparing “claims received” to “complaints filed,” we derive a figure that represents the 

likelihood of a claim maturing into a complaint. 

Fiscal 

Year 

Claims 

Filed 

Complaints 

Filed 

Complaints 

Received 

Claims 

Converted to 

Complaints 

% Claims 

Converted to 

Complaints 

FY 1998 6,261 1,985 549 1,436 23 

FY 1999 6,695 2,213 496 1,717 26 

FY 2000 5,924 1,988 274 1,714 29 

285

Appendix IV-2 

Incidence of Disability, by State (Source: U.S. Census, 1990) 

REGION FHAPs % DISABILITY HUD % DISABILITY 

1 Connecticut 8.4 Maine 11.4 

Boston Massachusetts 8.9 New Hampshire 8.4 

Rhode Island 10.5 

Vermont 8.6 

2 

New York 

New York 10.6 New Jersey 9.0 

3 

Philadelphia 

Maryland 

Delaware 

D.C. 

Pennsylvania 

Virginia 

West Virginia 

9.7 

10.0 

12.7 

10.3 

9.6 

14.6 

4 Florida 11.2 Alabama 12.7 

Atlanta Georgia 

Kentucky 

North Carolina 

11.5 

13.3 

11.2 

Mississippi 

Puerto Rico 

14.3 

N/A 

South Carolina 12.3 

Tennessee 11.7 

5 

Chicago 

Indiana 

Michigan 

Ohio 

9.9 

11.1 

10.9 

Illinois 

Minnesota 

Wisconsin 

9.3 

8.6 

8.6 

6 

Ft. Worth 

Louisiana 

Oklahoma 

Texas 

13.3 

12.0 

9.9 

Arkansas 

New Mexico 

13.4 

11.1 

7 

Kansas City 

Iowa 

Missouri 

Nebraska 

9.0 

10.5 

8.5 

Kansas 8.9 

8 

Denver 

Colorado 

North Dakota 

Utah 

9.3 

7.9 

8.5 

Montana 

South Dakota 

Wyoming 

10.8 

9.0 

8.3 

9 

San Fran. 

Arizona 

California 

Hawaii 

10.3 

10.2 

8.9 

Nevada 10.3 

10 

Seattle 

Washington 10.4 Alaska 

Idaho 

Oregon 

7.8 

10.0 

11.3 

286

Appendix IV-3 

287

Appendix IV-4 

FY 1998 HUD Cases Exceeding 100-Day Limit (by percentage of open and closed cases) 

HUD 

Region 

Complaints 

Closed

 Closed Cases 

Over 100 

Days 

and % 

Complaints 

Pending 

Pending Complaints 

Over 100 Days 

and % 

HQ 0 0 

0% 

9 9 

100% 

1 78 69 

88% 

121 93 

77% 

2 173 141 

82% 

307 217 

71% 

3 60 45 

75% 

84 63 

75% 

4 105 99 

94% 

252 164 

65% 

5 247 211 

85% 

514 352 

68% 

6 189 140 

74% 

208 127 

67% 

7 223 154 

69% 

224 91 

41% 

8 81 76 

94% 

228 184 

81% 

9 116 113 

97% 

424 310 

73% 

10 135 110 

81% 

202 155 

77% 

TOTAL 1,407 1,158 

82% 

2,573 1,765 

69% 

288

This chart demonstrates that at the close of FY 1998, 69 percent of HUD’s pending 

complaints had exceeded the statutory 100-day maximum for investigation and determination of 

cause. The Denver HUB was the worst performer, with 81 percent of pending complaints 

considered aged. Kansas City was the best HUB, with 41 percent of cases exceeding the 100-day 

limit. 

FY 1999 HUD Cases Exceeding 100-Day Limit (by percentage of open and closed cases) 

HUD 

Region 

Complaints 

Closed 

Closed Cases 

Over 100 

Days and % 

Complaints 

Pending 

Pending Complaints 

Over 100 Days 

and % 

HQ 3 2 

67% 

35 34 

97% 

1 92 86 

93% 

89 58 

65% 

2 227 187 

82% 

293 223 

76% 

3 71 54 

76% 

78 58 

74% 

4 204 139 

68% 

388 288 

74% 

5 359 321 

89% 

539 401 

74% 

6 185 151 

82% 

314 243 

77% 

7 322 216 

67% 

175 91 

52% 

8 98 289 

91% 

233 185 

79% 

9 118 104 

88% 

470 434 

92% 

10 132 126 

95% 

246 214 

87% 

TOTAL 1,811 1,475 

81% 

2,860 2,229 

78% 

289

This chart demonstrates that at the close of FY 1998, 78 percent of HUD’s pending 

complaints had exceeded the statutory 100-day maximum for investigation and determination of 

cause. The San Francisco HUB was the worst performer, with 92 percent of pending complaints 

considered aged. Kansas City was the best HUB, with 52 percent of cases exceeding the 100-day 

limit. 

FY 2000 HUD Cases Exceeding 100-Day Limit (by percentage of open and closed cases) 

HUD 

Region 

Complaints 

Closed 

Closed Cases 

Over 100 

Days and % 

Complaints 

Pending 

Pending Complaints 

Over 100 Days and % 

HQ 3 0 16 16 

100% 

1 98 72 

73% 

71 40 

56% 

2 235 212 

90% 

158 128 

81% 

3 57 53 

93% 

70 51 

73% 

4 230 220 

96% 

584 379 

65% 

5 388 378 

97% 

519 368 

71% 

6 239 226 

95% 

236 164 

69% 

7 279 153 

55% 

170 68 

40% 

8 163 145 

89% 

169 142 

84% 

9 278 286 

100% 

279 231 

83% 

10 260 230 

88% 

285 164 

81% 

TOTAL 2,230 1,997 

90% 

2557 1,751 

68% 

290

This chart demonstrates that at the close of FY 1998, 68 percent of HUD’s pending 

complaints had exceeded the statutory 100-day maximum for investigation and determination of 

cause. The Denver HUB was the worst performer, with 84 percent of pending complaints 

considered aged. Kansas City was the best HUB, with 40 percent of cases exceeding the 100-day 

limit. 

291

Appendix IV-5 

292

Appendix IV-6 

In addition to monetary relief, HUD also keeps data on the number of cases in 

which complainants use conciliation to get “housing relief,” typically defined as getting a rental 

unit or being able to purchase a home as a result of the conciliation. The number of cases in which 

complainants in the HUD system are getting housing relief has gone down dramatically since FY 

1992. 

HUD Conciliated Cases with Housing Relief, by Year, by HUB (Case Count) 

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Cumulative 

Total 

1990–2000 

Boston N/A 63 38 46 19 18 11 6 13 19 18 24 275 

New York N/A 36 33 55 69 59 58 37 38 18 25 14 442 

Philadelp hia N/A 53 33 33 24 14 7 8 2 2 3 8 187 

Atlanta N/A 46 60 76 30 40 19 11 14 2 40 4 342 

Chicago N/A 104 117 103 62 48 33 15 11 12 9 11 525 

Ft. Wo rth N/A 38 93 122 149 128 89 94 64 25 20 5 827 

Kansas C ity N/A 78 67 103 97 70 62 37 21 36 50 26 647 

Denver N/A 28 50 51 40 40 49 7 11 4 3 21 304 

San Francisco N/A 149 52 78 59 39 6 13 11 23 8 42 480 

Seattle N/A 22 53 44 37 39 25 9 7 6 1 2 245 

National Total N/A 617 596 711 586 495 359 237 192 147 177 157 4,274 

293

APPENDIX V 

Technical Guidance Materials 

The following list of guidance memoranda was developed from HUD’s submission to 

NCD. Because there are gaps in the numbered TAGs, the list is not complete. 

Letter from John M. Harmon, Department of Justice, to F. Peter Libassi, Department of 

Health, Education, and Welfare, re: Definition of Federal Financial Assistance (9/23/77). 

Memorandum from Ruth Prokop, General Counsel, HUD, to Bryant L. Young, Special 

Assistant to the Secretary of HUD, re: Department of Justice Opinion on the Applicability 

of Section 504 to Federal Insurance or Guarantee Programs (12/21/77). 

Memorandum from Chester McGuire, Assistant Secretary, FHEO, et al., to All Regional 

Administrators, re: Complaints Under Section 504 of the Rehabilitation Act (5/12/78). 

Memorandum from Robert Kenison, Urban Development Division, HUD, to Lawrence 

Simons, Assistant Secretary for Housing, re: Request for Opinion on 1978 Rehabilitation 

Act Amendments: Insurance and Guarantee Programs (3/13/80). 

Memorandum from Philip Abrams, Office of the Assistant Secretary for Housing, to Dr. 

June Koch, Deputy Under Secretary for Intergovernmental Relations, re: Proposed 

Handicapped Program Responsibilities (7/7/81). 

Memorandum from Robert Kenison, Office of Assisted Housing, to All Regional Counsel, 

re: Section 504 of the Rehabilitation Act of 1973, As Amended, Notice to Recipients of 

HUD Financial Assistance (7/10/81). 

Memorandum from Philip Winn, Assistant Secretary for Housing, to Secretary Pierce, re: 

Transfer of Function–Housing, Office of Independent Living for the Disabled (7/14/81). 

Handicapped: Notice to all Recipients of Federal Financial Assistance from HUD 

Regarding Compliance with Section 504..., 46 Fed. Reg. 37088 (7-17-81). 

294

Memorandum from Antonio Monroig, Assistant Secretary for FHEO, to All FHEO Staff, 

re: Laws Affecting Disabled Persons (10/16/81). 

Memorandum from Antonio Monroig, Assistant Secretary for FHEO, to All FHEO Staff, 

re: Processing Employment Discrimination Complaints Under Section 504 (10/29/81). 

Memorandum from Antonio Monroig, Assistant Secretary for FHEO, to All Regional 

Administrators, re: Processing Employment Discrimination Complaints Under Section of 

the Rehabilitation Act of 1973 [Scanlon v. Atascadero State Hospital] (4/13/83). 

Memorandum from Antonio Monroig, Assistant Secretary for FHEO, to All Regional 

Directors, re: Section 504 Compliance (6/20/83). 

Memorandum from Laurence Pearl, Director, Office of Program Compliance, to William 

E. Wynn, Deputy Assistant Secretary for Enforcement and Compliance, re: Section 504 in 

FHEO – Past, Present and Future (7/22/83). 

Abstract of Secretarial Correspondence from Antonio Monroig to the Secretary, re: 

Action—Implementation of Secretarial Decision to Place All Section 504 Responsibilities 

in Office of FHEO (8/19/83). 

Abstract of Secretarial Correspondence from Judith L. Tardy, Assistant Secretary for 

Administration, to the Secretary, re: Action—Proposed Transfer of Section 504 Function 

(8/30/83). 

Memorandum from Laurence D. Pearl, HUD Program Compliance, to Lloyd Miller, 

Office of Regional Fair Housing, re: Technical Assistance on Section 504 (2/6/84). 

Memoran dum from Antonio Monroig, Assistant Secretary fo r FHEO, and Judith Tardy, 

Assistant Secretary for Administration, to Principal Staff, re: Barrier Free/Accessible 

Meetings (3/23/84). 

295

Memorandum from Laurence D. Pearl, HUD Program Compliance, to Roosevelt Jones, 

Director, Office of Procurement and Contracts, re: Policy Recommendation to Assure 

Accessibility to Disabled Persons by Contractors (5/30/84). 

Memorandum from Antonio Monroig, Assistant Secretary for FHEO, to All Regional 

Administrators, re: Processing Employment Discrimination Complaints Under Section 504 

[Consolidated Rail v. Darrone] (6/5/84). 

Memorandum from Antonio Monroig, Assistant Secretary for FHEO, to All Regional 

Administrators, re: Designation of Section 504 Coordinators (8/9/84). 

Memorandum from Warren Lindquist, Assistant Secretary for PIH, to Duncan L. Howard, 

Regional Administrator, Region IX, re: Payment of Fee for Interpreter for Public Housing 

Tenant (5/17/85). 

Notice: PIH 85-14, re: Application of the Uniform Federal Accessibility Standards 

(10/21/85). 

FHEO, Section 504 Accomplishments and Activities, FY 1984 and 1985. 

TAG 86-2: New Jersey 2-30 Public Housing Complex, New Townhouses for Families 

(2/14/86). 

TAG 86-6: Complaints Filed Under Section 504 Involving AIDS (6/12/86). 

TAG 86-9: 504 Coverage of AIDS and Section 202 program eligibility (undated). 

TAG 86-10: Eligibility Criteria in Section 8 and Public Housing Projects for Elderly and 

Handicapped Persons (10/30/86). 

TAG 86-11: Admission of Children to Section 202 Projects for Elderly and Disabled 

Persons (1/16/87). 

296

TAG 86-12: Section 504 Nondiscrimination Protection of Employees with 

Substance Abuse Problems in Programs Receiving Federal Financial Assistance (undated). 

TAG 86-13: State Laws Which Parallel the Rehabilitation Act and the Architectural 

Barriers Act (12/31/86). 

TAG 87-1: UFAS applicability to Housing Authorities through Comprehensive 

Improvements Assistance funds (2/4/87). 

Letter from William Bradford Reynolds, Assistant A.G., Civil Rights Division, 

Department of Justice, to Stewart Sloame, Deputy General Counsel, HUD (2/5/87). 

Memorandum from Bob Ardinger, to Peter Kaplan, re: UFAS as the Standard for 

Determining Compliance With Section 504 (2/20/87). 

Memorandum from Peter Kaplan, Director, Office of Program Compliance, to Charles 

Farbstein, Assistant General Counsel, HUD, re: Section 504 Authority (2/24/87). 

TAG 87-2: Coverage of the Architectural Barriers Act and the Application of UFAS to 

HUD Programs (undated). 

Memorandum from Judith Brachman, Assistant Secretary, FHEO, to All Regional 

Directors, re: Section 504 of the Rehabilitation Act (undated). 

Memorandum from Judith Brachman, Assistant Secretary, FHEO, to All Regional 

Directors, re: HUD’s Authority and Responsibility to Enforce Section 504 (1987). 

Memorandum from Alan Greenwald, Deputy Under Secretary for Intergovernmental 

Relations, to J. Michael Dorsey, General Counsel, HUD, re: Section 504 Analysis and 

Comment (5/22/87). 

TAG 87-4: Guidelines Concerning the Process of Ensuring Compliance with Section 504 

(6/19/87). 

297

Memorandum from Charles Farbstein, Assistant General Counsel, HUD, to Peter Kaplan,


Director, HUD Program Compliance, re: TGM 87-4 (6/19/87).


TAG 87-5: Pets as Auxiliary Aids under 504 (7/10/87).


TAG 87-7: Coverage of Temporary Impairments as “Handicaps” (4/28/87).


TAG 87-8: Interpreting Services for HQ Staff when on travel (4/20/87).


TAG 87-9: Rehabilitation Act Amendments changes (5/1/87). 

Memorandum from William Bradford Reynolds, Assistant A.G., Department of Justice, to 

Heads of Selected Executive Agencies, re: Technical Assistance Guide, Section 504 

Transition Plan and Self-Evaluation Information (5/21/87). 

TAG 87-10: Responsibilities of Regional Section 504 Coordinators (6/29/87). 

Memorandum from Judith Brachman, Assistant Secretary, FHEO, to All Regional


Administrators, re: Processing Complaints of Discrimination Under Section 504 (7/8/87).


Notice PIH 87-17, re: Application of UFAS Adopted by Final Rule, Part 40 (7/17/87).


TAG 87-11: Section 504 Complaints filed by the National Association of the Deaf


(9/11/87).


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


TAG 88-2: Section 504 Coordinators List and Training Plan (11/18/87).


Memorandum from Judith Brachman, Assistant Secretary, FHEO, to Joseph Monticciolo,


Regional Administrator, re: Request of Region II for Clarification of HUD Admissions 

Policy Under Sections 202 and 504 (11/23/87). 

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TAG 88-3: Appropriate Remedies Under Section 504, Title VI, and Section 109 (12/4/87) 

(Letter from William Bradford Reynolds, Assistant A.G., Department of Justice, to Peter 

Kaplan, Director of Compliance, FHEO, re: Individual Remedies (7/24/87, attached). 

TAG 88-5: Clarification of HUD Admissions Policy Under Section 202 (12/31/87). 

Memorandum from Judith Brachman, Assistant Secretary, FHEO, to All Regional 

Administrators, re: Section 504 Federally Conducted Self-Evaluation Process (3/21/88). 

TAG 88-7: Architectural Barriers Act Compliance Procedures (5/20/88). 

Memorandum from Thomas Demery, Assistant Secretary for Housing, to All Regional 

Directors of Housing, re: Implementation of Section 504 (7/20/88). 

Memorandum from Peter Kaplan, Director, Office of Compliance, to William Anderson, 

Director, Office of Management and Field Coordination, re: Capturing Hours Dedicated to 

Section 504 Coordinator Activities (5/31/88). 

TAG 88-9: Executive Summary of the 504 Regulations (8/19/88). 

Memorandum from Peter Kaplan, Director, Office of Program Compliance, to All FHEO 

Regional Directors, re: Section 504 Management and Complaint Automated Tracking 

System (MCATS) (8/24/88). 

Memorandum from Douglas Kmiec, Acting Assistant Attorney General, Department of 

Justice, to Arthur Culvahouse, Jr., Counsel to the President, re: Application of Section 504 

to HIV Infected Individuals (9/27/88). 

Notice PIH 88-34 Re: Public Housing Development—Accessibility Requirements 

(10/11/88). 

TAG 88-10: Processing of Complaints Under the Section 504 Regulation (11/7/88). 

TAG 89-1: Confidentiality in the Conduct of 504 Investigations (11/8/88). 

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Letter from William Bradford Reynolds, Assistant A.G., Department of Justice, to J. 

Michael Dorsey, General Counsel, HUD, re: Section 504 Investigation, Nance v. Kier 

Management Corporation (11/18/88). 

TAG 89-2: School Bd. of Nassau Co. v. Arline and 504 (12/28/88). 

Memorandum from Judith Brachman, Assistant Secretary, FHEO, to Principal Staff, re:


Section 504 Town Meetings (1/10/89).


Notice PIH 89-4 re: Implementation of 24 CFR Part 8 (1/13/89).


TAG 89-3: Filing and Processing Dates for Section 504 (2/6/89).


TAG 89-5: Section 504 Complaint Procedures.


TAG 89-6: Waiver of Time Frame for Filing Section 504 Complaints (4/17/89).


TAG 89-7: Section 504 Management and Complaint Automated Tracking System


MCATS (5/19/89).


TAG 89-9: Cover Letters for Notifying Award Officials of Section 504 Complaints


(8/31/89).


Memorandum from James Schoenberg, General Depu ty Assistant Secretary for Ho using,


to All Regional Administrators, re: Accessibility Requirements for Section 202 Projects


(7/3/89).


TAG 89-13: The Architectu ral and Transportation Barriers Compliance Board (AT BCB)


Questionnaire (9/12/89).


Notice PIH 90-48: The Impact of Section 504 Regulation 24 CFR 8.23, “Other 

Alterations” (9/27/90). 

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TAG 91-1: TDDs and Equally Effective Communication Alternatives (1/17/91).


TAG 91-3: Multiple Chemical Sensitivity Disorder (6/6/91).


TAG 91-5: Use of a Telecommunications Device for the Deaf (8/15/91).


TAG 91-8: Section 504 Complaint Case Models (10/10/91).


Memorandum of Understanding Between HUD and Farmers Home Administration of


USDA (11/7/91).


Notice PIH 92-11: re: Section 504 Compliance in the Comprehensive Grant Program


(4/3/92).


Notice PIH 92-65: re: Guidance for All Non-Comprehensive Grant Program Agencies to


Comply with Section 504 Requirements (12/14/92).


Notice PIH 93-18: re: The Impact of Section 504 Regulation 24 CFR 8.23(b) (4/27/93).


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APPENDIX VI 

Mission of the National Council on Disability 

Overview and Purpose 

The National Council on Disability (NCD) is an independent Federal agency with fifteen 

members appointed by the President of the United States and confirmed by the U.S. Senate. The 

overall purpose of NCD is to promote policies, programs, practices, and procedures that guarantee 

equal opportunity for all individuals with disabilities, regardless of the nature or significance of 

the disability; and to empower individuals with disabilities to achi eve e conomic sel f-sufficiency, 

indepen dent living, an d inclusion and integration into all aspects of society. 

Specific Duties 

The current s tatutory mandate of NCD in cludes the f ollowing: 

• Reviewing and evaluating, on a continuing basis, policies, programs, practices, and 

procedures concerning individuals with disabilities conducted or assisted by 

federal departments and agencies, including programs established or assisted under 

the Rehabilitation Act of 1973, as amended, or under the Developmental 

Disabilities Assistance and Bill of Rights Act; as well as all statutes and 

regulations pertaining to federal programs that assist such individuals with 

disabilities, in order to assess the effectiveness of such policies, programs, 

practices, procedures, statutes, and regulations in meeting the needs of individuals 

with disabilities. 

• Reviewing and evaluating, on a continuing basis, new and emerging disability 

policy issues affecting individuals with disabilities at the federal, state, and local 

levels and in the private sector, including the need for and coordination of adult 

services, access to personal assistance services, school reform efforts and the 

impact of such efforts on individuals with disabilities, access to health care, and 

policies that act as disincentives for individuals to seek and retain employment. 

• Making recommendations to the President, Congress, the Secretary of Education, 

the director of the National Institute on Disability and Rehabilitation Research, and 

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other of ficials of fede ral agencies about ways to better pr omote equal opportunity, 

economic self-sufficiency, independent living, and inclusion and integration into 

all aspects of society for Americans with disabilities. 

•	 Providing Congress, on a continuing basis, with advice, recommendations, 

legislative proposals, and any additional information that NCD or Congress deems 

appropriate. 

•	 Gathering information about the implementation, effectiveness, and impact of the 

Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.). 

•	 Advising the President, Congress, the commissioner of the Rehabilitation Services 

Administration, the Assistant Secretary for Special Education and Rehabilitative 

Services within the Department of Education, and the director of the National 

Institute on Disability and Rehabilitation Research on the development of the 

programs to be carried out under the Rehabilitation Act of 1973, as amended. 

•	 Providing advice to the commissioner of the Rehabilitation Services 

Administration with respect to the policies and conduct of the administration. 

•	 Making recommendations to the director of the National Institute on Disability and 

Rehabilitation Research on ways to improve research, service, administration, and 

the collection, dissemination, and implementation of research findings affecting 

persons with disabilities. 

•	 Providing advice regarding priorities for the activities of the Interagency Disability 

Coordinating Council and reviewing the recommendations of this council for 

legislative and administrative changes to ensure that such recommendations are 

consistent with NCD’s purpose of promoting the full integration, independence, 

and productivity of individuals with disabilities. 

•	 Preparing and submitting to the president and Congress an annual report titled 

National Disability Policy: A Progress Report. 

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International 

In 1995, NCD was designated by the Department of State to be the U.S. government’s 

official contact point for disability issues. Specifically, NCD interacts with the special rapporteur 

of the United Nations Commission for Social Development on disability matters. 

Consumers Served and Current Activities 

Although many government agencies deal with issues and programs affecting people with 

disabilities, NCD is the only Federal agency charged with addressing, analyzing, and making 

recommendations on issues of public policy that affect people with disabilities regardless of age, 

disability type, percei ved employment potential, eco nomic need, specific functional ability, 

veteran status, or other individual circumstance. NCD recognizes its unique opportunity to 

facilitate independent living, community integration, and employment opportunities for people 

with disabilities by ensuring an informed and coordinated approach to addressing the concerns of 

people with disabilities and eliminating barriers to their active participation in community and 

family life. 

NCD plays a major role in developing disability policy in America. In fact, NCD originally 

proposed what eventually became the Americans with Disabilities Act (ADA). NCD’s present list 

of key issues includes improving personal assistance services, promoting health care reform, 

including students with disabilities in high-quality programs in typical neighborhood schools, 

promoting equal employment and community housing opportunities, monitoring the 

implementation of the ADA, improving assistive technology, and ensuring that those persons with 

disabilities who are m embers of diverse cultures fully part icipate in society. 

Statutory History 

NCD was initially established in 1978 as an advisory board within the Department of 

Education (P.L. 95-602). The Rehabilitation Act Amendments of 1984 (P.L. 98-221) transformed 

NCD into an indepen dent agency.