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Memo to President Biden on State and Local Fair Housing Enforcement

By: Charles S. Bullock, III1Richard B. Russell Chair in Political Science, Josiah Meigs Distinguished Teaching Professor, Distinguished University Professor of Public and International Affairs, University of Georgia, Charles M. Lamb2 Research Professor, Department of Political Science University at Buffalo, SUNY & Eric M. Wilk3Assistant Professor, Department of Political Science and International Affairs, University of North Georgia

November 30, 2021

Presidential leadership is crucial in civil rights policy and its implementation.4See, e.g., Matthew Eshbaugh-Soha, The President’s Speeches: Beyond “Going Public” (2006); Charles M. Lamb, Housing Segregation in Suburban America since 1960: Presidential and Judicial Politics (2005). Voters are accustomed to hearing bold vows from presidential candidates, including Democrats who promise changes in civil rights. However, President Joe Biden made a remarkable pledge that surpassed any presidential fair housing promise since Lyndon Johnson secured passage of the Fair Housing Act of 1968 (commonly known as Title VIII).5Fair Housing Act of 1968, 42 U.S.C. §§ 3601–19, 3631. Secretary Marica Fudge of the Department of Housing and Urban Development pledged to vigorously follow Biden’s directive6Q & A with Secretary of Housing and Urban Development, Chicago Ass’n of Realtors (June 30, 2021), https://chicagorealtor.com/q-a-with-secretary-of-housing-urban-development-marcia-fudge-on-fair-housing/. and in June issued new regulations to promote Title VIII’s requirement that the federal government affirmatively further fair housing.7 Dep’t Hous. and Urb. Dev., HUD No. 21-098, HUD Restores Affirmatively Furthering Fair Housing Requirement (June 10, 2021), https://www.hud.gov/press/press_releases_media_advisories/HUD_No_21_098.

Biden’s call for a renewed federal effort in fair housing is nothing shocking, as Democratic voters usually prefer national over subnational approaches in policy administration and enforcement.8See, e.g., John Dinan & Jac C. Heckelman, Stability and Contingency in Federalism Preferences, 80 Pub. Admin. Rev. 234 (March–April 2020). Yet he neglected to mention two fundamental points. One, experience teaches that the federal government is not a panacea for all American problems.9See, e.g., Martha Derthick, New Towns In-Town: Why a Federal Program Failed (1972); Jeffrey L. Pressman & Aaron Wildavsky, Implementation (3rd ed. 1984). And two, many state and local governments had in fact played critical roles in expanding laws prohibiting discrimination and segregation in housing some three decades prior to the approval of the 1968 Fair Housing Act.10See, e.g., William J. Collins, The Political Economy of State Fair Housing Laws before 1968, 30 Soc. Sci. Hist. 15 (2006); State Statutes and Local Ordinances and Resolutions Prohibiting Discrimination in Housing and Urban Renewal Operations, Presidential Papers, White House Staff Files, Lee C. White File, Civil Rights File, Box 22, John F. Kennedy Presidential Library (1962). In doing so before Title VIII’s passage, the states had made needed, long-lasting contributions to the governmental attack on residential discrimination. State and local governments can continue to make valuable contributions to fair housing enforcement if the President and Congress expand the Fair Housing Assistance program to improve intergovernmental effectiveness and efficiency and adopt new protected classifications that have been successfully used and tested at the subnational level.

The State and Local Role

When Congress enacted fair housing protections nationwide in 1968, it followed the path blazed by multiple local and state governments.11Id.; Joseph B. Robison, Housing—The Northern Civil Rights Frontier, 13 W. Reserve L. Rev. 101, 110-112 (1961). The initial actions to promote fair housing began when New York prohibited racial discrimination in public housing in 1939. Seventeen states had comparable laws by 1962. Pennsylvania outlawed racial discrimination in urban renewal or publicly assisted housing developments in 1945; 14 states had similar laws by 1962. Significantly advancing this trend, Colorado banned racial discrimination in privately owned housing not assisted by public programs in 1959, and over the next three years, 10 states had followed suit.

During the 1960s states stepped up regulation of the housing market: 21 states outlawed discrimination by real estate brokers, 15 states barred discrimination in granting mortgages, 14 states forbade discriminatory advertising, and 5 states banned blockbusting—a practice used by real estate agents to increase their profits by turning primarily white neighborhoods into largely minority communities. By 1968, when Congress adopted Title VIII, 12 states prohibited discrimination in single-family homes, three forbade discrimination in the rental of a unit in an owner-occupied two-family home, and three states outlawed discrimination in the rental of rooms in owner-occupied homes.12Memorandum, Re: H.R. 2516—Fair Housing Provisions—Impact on Brokers in States with Fair Housing Laws, Legislative Background, FHA of 1968—Legislative Relations, Box 4, Lyndon Baines Johnson Library (1968). According to William Collins, as a result of states that had passed fair housing legislation by 1968, “57 percent of the U.S. population and 41 percent of the African American population resided in states with some form of fair housing law applied to private housing.”13Collins, supra note 10, at 16.

Both the 1968 federal fair housing law and the Fair Housing Amendments Act of 1988 require that state and local governments be able to assist the federal government in processing Title VIII complaints if they have passed “substantially equivalent” fair housing laws.1442 U.S.C. §§ 3616-3616a. States and localities therefore have the option to participate in fair housing enforcement. Since the passage of Title VIII, although HUD has been the lead agency in federal fair housing enforcement, much of the responsibility for enforcing Title VIII has shifted to state and local units participating in the Fair Housing Assistance Program (“FHAP”). To be certified as a FHAP agency, state and local governments need only pass laws substantially equivalent to Title VIII in terms of rights, procedures, remedies, and the availability of judicial review. In return, they receive federal financial assistance to “support a variety of fair housing administrative and enforcement activities, including complaint investigation, conciliation, administrative and/or judicial enforcement; training; implementation of data and information systems; and education and outreach.”15U.S. Dep’t of Hous. and Urb. Dev., Office of Fair Housing and Equal Opportunity Annual Report to Congress (2017), at 15. HUD regularly recertifies FHAP agencies based on their past performance and current practices. These substantial equivalency prerequisites underscore the need for intergovernmental interaction and coordination, with HUD providing direction and oversight.

Fair Housing Act complaints are often processed in HUD’s regional Fair Housing and Equal Opportunity Offices, but if a substantially equivalent state or local housing discrimination law exists, the complaint is referred to the proper FHAP agency. Depending on the situation, an investigation is conducted either by HUD or by a state or local FHAP agency to determine whether there is reasonable cause to believe that Title VIII has been or is about to be breached. If the investigation finds support for the complaint and a settlement cannot be negotiated, adjudication proceeds to an administrative law judge or to a federal district court.16Charles S. Bullock, III, Charles M. Lamb & Eric M. Wilk, Cooperative Federalism and Fair Housing Enforcement, 99 Soc. Sci. Q. 728, 730-731 (2018).

FHAP rapidly expanded during the Reagan administration’s New Federalism.17See Timothy Conlon, From New Federalism to Devolution: Twenty-Five Years of Intergovernmental Reform (1998). In 1980, 27 states and 11 localities were eligible for FHAP funding, numbers that rose to 36 states and 76 localities by Reagan’s final year in office. The 1988 Fair Housing Amendments Act required participating subnational governments to enact progressive new laws creating administrative law judges and extending fair housing protection to families with children and persons with physical or mental disabilities. It took several years for states and localities to meet these new standards, and the number of certified FHAP agencies declined between 1988 and 1992. During the Clinton presidency, FHAP agencies were gradually recertified, and the number continued to grow under Presidents Bush and Obama. By 2005, 89 percent of the nation’s population lived within the jurisdiction of a FHAP agency, and FHAP agencies closed 75 percent of all Fair Housing Act complaints by 2007. As of 2009, 108 jurisdictions had substantially equivalent status: 39 states and 69 localities.18Bullock, Lamb & Wilk, supra note 16, at 732.

However, the number of certified FHAPs dropped so that in May 2021, HUD reported that only 34 states and 41 localities were active. Alabama, Alaska, Idaho, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Oklahoma, Oregon, South Dakota, Wisconsin, and Wyoming failed to meet standards for participating in 2021.19Fair Housing Assistance Program (FHAP) Agencies, U.S. Dep’t of Hous. and Urb. Dev. (2021), https://www.hud.gov/program_offices/fair_housing_equal_opp/partners/FHAP/agencies (https://perma.cc/2JBY-ZA8Z).

Efficiency and Effectiveness

The decline of local FHAP participation and the absence of increased state involvement since the 1980s is especially troublesome if it results in a reduction in the overall efficiency and effectiveness of fair housing enforcement. HUD has applauded FHAP enforcement of Title VIII,20See, e.g., U.S. Dep’t of Hous. and Urb. Dev., supra note 15; U.S. Dep’t of Hous. and Urb. Dev., State of Fair Housing Annual Report to Congress, Office of Fair Housing and Equal Opportunity, FY 2018–FY 2019 (2020). and scholars have reached similar conclusions regarding bureaucratic efficiency and effectiveness. Wilk and Lamb investigated the efficiency of Title VIII enforcement by federal, state, and local civil rights agencies from 1989 through 2004.21Eric M. Wilk & Charles M. Lamb, Federalism, Efficiency, and Civil Rights Enforcement, 64 Pol. Rsch. Q. 392 (2011). They concluded that, first, it took states longer to close Title VIII complaints than HUD, but states conciliated them more quickly than HUD. Second, local agencies were more efficient than HUD in both closing and conciliating complaints. They recommended that “Congress could consider giving state and local civil rights agencies greater responsibilities to enforce national fair housing policy and develop incentives that encourage various levels of government to work cooperatively.”22 Id. at 402.

Bullock, Wilk, and Lamb investigated Title VIII enforcement effectiveness by federal, state, and local civil rights agencies between 1989 and 2004, with effectiveness operationally defined as “whether civil rights agencies’ conciliation efforts lead to an agreement or settlement between the parties involved in a complaint and whether a remedy is provided.”23Charles S. Bullock, III, Eric M. Wilk & Charles M. Lamb, Bureaucratic Effectiveness and Civil Rights Enforcement, 49 State and Loc. Gov’t Rev. 87, 88 (2017). Generally, they found that FHAP agencies were more effective than HUD at both conciliating complaints and furnishing remedies. They concluded that “state and local governments willing to endure the process of obtaining and retaining substantial equivalence may be more enthusiastic than HUD about carrying out their functions and better equipped to process complaints given their geographical proximity to alleged cases of discrimination.”24Id. at 102.

To rectify this problem, the Biden administration should direct all HUD regional and district offices to develop more effective ways to conciliate complaints and provide equitable remedies where there is reasonable cause to believe that Title VIII has been violated. This goal should be pursued by working with and learning from successful approaches used by state and local FHAP agencies.  

Given that FHAP agencies outperform HUD on several dimensions, the president and Congress should also increase FHAP funding to entice additional states and localities to pass stronger housing discrimination laws and join the intergovernmental partnership. Funding increases could increase payments to FHAP agencies for processing and closing Title VIII complaints. Given the success of the substantial equivalency requirement in fair housing enforcement, it might be used as a model and tested in other policy areas in the federal system.

Protected Classifications

Just as numerous states had adopted fair housing protections before Congress acted, some states have expanded the scope of housing access well beyond what federal law currently mandates, creating another venue where the federal government might learn from subnational units.25 On bureaucratic learning, see Daniel P. Carpenter, Protection without Capture: Product Approval by a Politically Responsive, Learning Regulator, 98 Am. Pol. Sci. Rev. 613 (2004); Craig Volden, Michael M. Ting & Daniel P. Carpenter, A Formal Model of Learning and Policy Diffusion, 102 Am. Pol. Sci. Rev. 319 (2008). President Biden has singled out three protected classifications which some states and local governments have identified. Biden calls for change from Washington through unilateral executive action or, preferably, by Congress amending Title VIII.26Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies, 86 Fed. Reg. 7487 (Jan. 26, 2021).

First is the need to protect the LGBTQ+ community. Given the social and legal breakthroughs concerning LGBTQ+ rights during the past decade or more, it was no surprise that President Biden announced that his administration would administer Title VIII to safeguard the LGBTQ+ community from housing discrimination. However, it was a very broad promise. Specifically, in reaction to the Trump administration’s policy, the Biden campaign promised that, if elected, he would “secure the passage of the Equality Act, ensuring that no President can ever again single-handedly roll back civil rights protections for LGBTQ+ individuals, including in housing and homeless shelters.”27The Biden Plan for Investing in Our Communities through Housing (2020), https://joebiden.com/housing/ (https://perma.cc/5BHU-NUU4).

Early in the administration, HUD’s website acknowledged that the federal government had been beaten to the punch. In a scenario reminiscent of the 1960s, a trail of innovation had been blazed by others: “Many state and local laws prohibiting housing discrimination specifically include sexual orientation and/or gender identity as protected classes.” HUD identified 20 states and the District of Columbia with laws banning housing discrimination based on sexual orientation and gender identity/expression, while two others outlawed discrimination based on sexual orientation but not on gender identity/expression.28Housing Discrimination and Persons Identifying as LGBTQ, U.S. Dep’t of Hous. and Urb. Dev. (2021), https://www.hud.gov/program_offices/fair_housing_equal_opp/housing_discrimination_and_persons_identifying_lgbtq (https://perma.cc/CM32-32PW).

Congress could have amended Title VIII to protect the LGBTQ+ community against housing discrimination instead of allowing a president to change federal policy unilaterally, but the Biden Administration took a first step toward fulfilling his broad promises when HUD announced it would investigate sexual orientation or gender identity complaints based on its authority under Title VIII.29Devan Cole, Biden Administration Extends Fair Housing Protections to LGBTQ Americans, CNN (Feb. 11, 2021), https://www.cnn.com/2021/02/11/politics/biden-administration-lgbtq-housing-protections/index.html. This first step, though, was far short of securing the passage of an “Equality Act” on Capitol Hill.

Second is the addition of source-of-income as a protected classification, as discrimination may occur when landlords refuse to provide housing based on an applicant’s use of public benefits.30See, e.g., J. Rosie Tighe, Megan E. Hatch & Joseph Mead, Source of Income Discrimination and Fair Housing Policy, 32 J. of Plan. Literature 3 (2017). According to the Poverty and Race Research Action Council, as of April 2021, 19 states and 102 cities had laws prohibiting housing discrimination on source-of-income grounds.31 Poverty and Race Rsch. Action Council, Expanding Choice: Practical Strategies for Building a Successful Housing Mobility Program (Nov. 2021), https://www.prrac.org/pdf/AppendixB.pdf.These laws require that housing providers deal with all lawful income equally, and this includes Section 8 housing vouchers, social security, veterans’ benefits, alimony, and child support payments, among others.32See, e.g., Cal. Gov’t Code § 12927(i) (2020); Source of Income, GBLA Fair Housing Law Project (2021), https://www.gblafairhousing.org/source-of-income/. After investigating these source-of-income laws, Robert Schwemm concluded that such an amendment to Title VIII is logical at the federal level and, “though not a panacea, would be an important step forward in expanding housing opportunities for all, in ending arbitrary limits on housing choice, and in helping the FHA achieve its core mission of reducing segregation.”33 Robert G. Schwemm, Source-of-Income Discrimination and the Fair Housing Act, 70 Case W. Reserve L. Rev. 573, 649 (2020).

Third, state and local governments have outpaced the federal government in protecting immigrants’ housing rights.34 See, e.g., Riegel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 Vand. L. Rev. 55 (2009). Everyone residing in the United States—whether authorized or unauthorized—is covered by Title VIII, which includes a person’s national origin. Some state and local governments have gone beyond Title VIII and other federal laws.

California, with two relevant laws, provides the best example. First, the Fair Employment and Housing Act35Cal. Gov’t Code §§ 12900-12996. far transcends Title VIII by forbidding not only discrimination on grounds of race, color, national origin, sex, religion, disability, and family status, but also source-of-income, gender, gender identity, gender expression, sexual orientation, sexual harassment, marital status, ancestry, medical condition, military or veteran status, genetic information, and hair texture and style. Second, the Unruh Civil Rights Act36Cal. Civ. Code § 51. includes protections based on age, citizenship, primary language, or immigration status, with the last three providing new legal safeguards for Latinos and other immigrants.372 CCR §§ 12005-12271;See generally Cal. Dep’t of Fair Emp. and Hous., FEHA Fair Housing Regulations (2020), https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/06/DFEH-LandUseDiscrimination.pdf (https://perma.cc/7G5V-LNEM).

In addition, many local California ordinances protect immigrants. San Francisco’s fair housing ordinances provide broader protected classifications for immigrants than either state or federal laws. San Francisco bans discrimination by landlords against tenants based on traditional protected classifications and on “ethnic background, nationality, place of birth, immigration or citizenship status.”38 Housing Discrimination in California: What Is It and What Can Tenants Do About It, Tobener Ravenscroft, , (Dec. 6, 2018), https://www.tobenerlaw.com/housing-discrimination-in-california-what-is-it-and-what-can-tenants-do-about-it/.

These state and local developments make a persuasive case for amending Title VIII, as President Biden has proposed, to include the same or similar safeguards.39Oliveri, supra note 34. Amending Title VIII is clearly preferable to a unilateral directive from Biden to HUD because a future president could direct HUD to change Biden’s policy, whereas that would not be possible if Title VIII was amended by Congress.

Conclusion

Housing discrimination and segregation persist. Federal, state, and local governments all have important responsibilities in combating these problems. While there is room for improvement with FHAP, the program continues to operate and prosper. HUD still performs a fundamental function in the fair housing enforcement effort, but FHAP agencies enforce fair housing laws more efficiently and effectively than HUD.40Bullock, Wilk & Lamb, supra note 23; Wilk & Lamb, supra note 21.

Fair housing issues are receiving thoughtful attention from the Biden administration, but President Biden’s proposal to strengthen federal administration and enforcement overlooks an elementary fact: state and local governments play a critical role in fair housing policymaking and implementation. While HUD was the dominant governmental actor in Title VIII administration and enforcement during the law’s first decade, that is no longer the case. The federal effort to combat housing segregation and discrimination needs improvement, but Biden’s exclusive focus on federal enforcement is misplaced, as research shows that state and local agencies generally provide more efficient and effective enforcement.

President Biden has much on his plate, but if he is serious about expanding federal open housing protection, he needs to goad Congress to follow the lead by some states and extend full coverage to the LGBT+ community and immigrants and ensure that all income sources are included when assessing home seekers’ ability to pay. Only federal law can make these protections nationwide, even if their enforcement frequently remains in the hands of FHAPs.


Charles S. Bullock, III, University of Georgia; Charles M. Lamb, University at Buffalo, SUNY; Eric M. Wilk, University of North Georgia.

Suggested Citation: Charles S. Bullock, III, Charles M. Lamb & Eric M. Wilk, Memo to President Biden on State and Local Fair Housing Enforcement, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).