Fair Housing Act: Normative Policy Evaluation and Reform

Introduction and Overview of the Fair Housing Act

The Fair Housing Act forbids discrimination, limitation, or preference on the basis of gender, race, nationality, disability, family status, color, or any intention to display such discrimination, preferences, or limitations. The United States Congress approved this federal act, which falls under the jurisdiction of the Department of Housing and Urban Development (HUD), in 1968 and again in 1988 (Hoosier State Press Association, 2019). The Indiana Fair Act was also approved in 1990. Together, these two acts affect the following parties: renters or sellers of a property, agents participating in the renting and sale of property, and advertising media. A lawsuit involving advertising can be filed against the individual responsible for writing and placing an advertisement, as well as the owner and management of the property, and the publication or newspaper involved. The Fair Housing Act does not apply to buildings with fewer than four units in which the owner resides, or to those who own single-family homes (Hoosier State Press Association, 2019). The Act becomes relevant when a property owner uses a broker and also engages in unfair advertising.

This practicum report assessed the Fair Housing Act via a normative policy evaluation methodology. Data was collected through observation and literature review of materials including policy guidelines and records from the housing agency. The assessment of programs and processes confirms that the Housing Agency complies with all applicable state and federal housing conditions, including the Fair Housing Act. Nevertheless, in order to improve the Act and make it more accommodating for smaller groups, four recommendations are proposed: (1) HUD should supervise and impose grantees' jurisdiction-wide fair housing responsibilities through a revised Analysis of Impediments procedure; (2) HUD should require fund recipients to carry out and present periodic evaluations of the Act as well as other federally protected equal opportunity effects of particular activities and programs undertaken with federal resources; (3) both program-specific and jurisdiction-wide processes should include housing opportunity indicators supported by established research and experience; and (4) HUD should supplement technical assistance and submission requirements to fund recipients with a rigorous system of surprise, periodic audits of a subset of recipients and applicants selected through random sampling and other relevant factors.

Significance of the Practicum and Learning Objectives

Every government agency and jurisdiction should attend to fair housing responsibilities. This project concentrates on fair housing responsibilities for departments of housing. A city's implementation of fair housing policy encounters practical considerations and several varying needs that already influence city decision-makers and personnel. Societies are continually changing — they are becoming more racially and ethnically diverse, with immigrant families, people of color, and individuals with disabilities making up considerable portions of communities. This raises the likelihood of fair housing concerns emerging. An increased number of people of color are now residing in suburbs, and the proportion of those living in poverty is also increasing. Cities expose themselves to liability if they do not understand their duties under fair housing policy, and they must be prepared when unanticipated situations arise requiring a fair housing response or evaluation.

This practicum provided the opportunity to review current procedures and policies, resulting in a procedures and policy manual that addressed issues of non-conformance, challenges of application, and policy restriction concerns experienced by the housing agency. The course material reinforced that examining social issues can be far more complicated than initially apparent. A given issue may have several underlying and systemic dimensions that require equal attention.

Public policy is created in response to issues that need to be addressed by decision-makers. These policies take the form of laws and regulations and can be created by any government body, from the city council to the president. The aims of public policy are often inseparable from their sources. Both government and public policy help realize societal needs as well as basic responsibilities (Dye, 2017). Policies determine how communities, states, and countries manage their resources and assist in maintaining social order. The policy-making process is unending, chaotic, and nonlinear, and does not have any defined start or end point. Those engaged in the process may follow general procedures described in six phases of the policy creation process (National Collaborating Center for Healthy Public Policy, 2013).

As a practitioner, the primary goal was to gain first-hand knowledge of policy execution and the complete processes involved in evaluating a policy for modification to match the day-to-day needs of those it intends to serve or protect. This included understanding the specific and complex procedures involved in modifying policies and how the numerous facets of policy execution influence one another, and how systems respond to changes in any of these facets. Additionally, this report is intended to serve as a useful and informative contribution to the Fair Housing Act through the recommendations included herein.

Methods and Normative Policy Analysis Framework

In deciding to analyze public policy, there is an inherent ethical assumption that individuals and their welfare are of value, and that an effort should be made to understand every force that influences the welfare of individuals and society at large. The desire to improve the present system is the foundation of public policy. To meet this objective, public policy students must first understand how the present system operates. For this purpose, the study's primary data were gathered through observation and literature review of materials including policy guidelines and records from the housing agency. As the primary researcher, the author attended all meetings held within the housing agency during the data collection period, observing and taking notes on how meetings were conducted and how the agency's operations reflect awareness and support of the Fair Housing Act.

Policy analysis, with the aim of addressing public issues, is prescriptive rather than descriptive — it recommends action rather than simply describing policy procedures. This is known as normative policy analysis, and it is oriented toward assessing what public policy should be in order to enhance general welfare (Cochran & Malone, 2005). The data gathered for this study were therefore analyzed using this normative policy analysis technique.

The decision-making power in democratic communities operates across varying levels of decentralization. When decision-making power is distributed among different centers of power — such as the legislative, executive, and judicial branches of government — no single group's will is entirely dominant (Robert & Zeckhauser, 2011; Cochran & Malone, 2005). Policy experts assess how participants in the policy process make decisions: what objectives different groups set, how these objectives are pursued, and how issues reach the agenda. Political leaders must share power, and they often disagree not only on which problems need to be addressed but also on how they should be addressed. The resulting policy is usually the outcome of multiple competing groups pulling in different directions, and the result often diverges from what any single party anticipated. Policy experts therefore assess how groups and individuals involved in the policy-making process interact, and they apply rigorous analysis to their work in order to improve policy decisions. Through careful empirical assessment, a body of research findings expands the opportunities for policy experts to offer meaningful input toward improving general wellbeing (Cochran & Malone, 2005). Given the complex nature of policy formulation, execution, and assessment, the normative approach is the most appropriate method for this study.

Restructuring the Analysis of Impediments Procedure

In addressing the serious flaws in current FHA regulations as they relate to federally funded undertakings and activities, the following reforms are recommended.

Definition of impediments: To successfully fulfill the duty of the FHA, HUD regulations should specifically state that potential fair housing impediments that must be addressed include:

This regulatory language would clarify, on the basis of established law, that fair housing impediments: (a) may originate from both public and private sources; (b) may arise from failures to act as well as from affirmative actions and official policies; (c) may result from intentional discrimination or from facially neutral practices that nonetheless undermine fair housing; and (d) may involve discriminatory or exclusionary forces of various kinds.

The proposed criteria also make clear that fair housing impediments may take the form of restricted access to opportunities connected to housing — such as a municipality's pattern of siting low-income, disproportionately minority housing far from employment, healthcare, education, or other practical opportunities.

How to overcome impediments: Regulations should offer grantees suggested actions to overcome the effects of impediments identified through their assessments — actions that are likely to reduce those effects and affirmatively advance fair housing (Pearl, 2014). There should be a clear connection between suggested activities and identified impediments, and proposed corrective efforts should demonstrate, to the satisfaction of the department, that impediments will be reduced as a result of those activities.

Additionally, regulations should state that federal resources must not be used in ways that perpetuate or aggravate fair housing impediments, regardless of whether those impediments are identified in an impediment assessment. Regulations should also clarify that post-award evaluations and status reports must document the implementation of both suggested and additional actions taken to address fair housing impediments and must provide sufficient information to document the impact and effectiveness of those actions.

The collection of accurate and relevant data is essential to the maintenance of fair housing. Accordingly, revised HUD regulations should state that jurisdictions must incorporate into their impediment assessments the gathering and documentation of relevant demographic patterns, including concentrations of ethnic, racial, religious, linguistic, or income groups and of individuals with disabilities, as shown in state, federal, and other reliable sources of data (HUD, 2017).

The analysis and evaluation of impediments should include demographic information and other relevant fair housing data. Evaluations should also incorporate mapping systems such as GIS to represent residential patterns visually.

FHA regulations should also define what constitutes integrative and segregated housing effects, particularly by specifying how minority concentration is defined — for example, whether an area is considered segregated when a subpopulation accounts for more than 12 percent of the corresponding subpopulation in a larger region (HUD, 2017). Identifying areas of segregation in urban areas is often accomplished by utilizing existing secondary data sources on ethnicity.

Gathering data on disability can be accomplished by adapting HUD data on disability rates in public housing and by adapting census information. Investigating the demand for accessible housing units will require additional information on current demand from individuals with disabilities, the number of available affordable and accessible housing units, and the number of accessible units under development (HUD, 2017; The Opportunity Agenda, 2010). HUD inspectors already have the authority to require more accessible units for people with disabilities in new housing projects.

Additionally, HUD maintains household-level data sets for assisted housing programs, including the location of accessible units and the ethnicities of the individuals residing in those units (Turner & Acevedo-Garcia, 2005; HUD, 1996). Special consideration of the effects of racially segregated actions and policies should take into account familial status, mental disability, physical disability, and other related factors that have historically influenced government housing policies.

To ensure compliance with this requirement, it is recommended that HUD make mapping tools and data available through a new online platform designed to assist recipients, applicants, and other stakeholders.

Existing regulations — such as 24 C.F.R. § 91.105 — that require public participation in major housing decisions, including the Consolidated Planning process, are supported (Kanter, 1994). It is recommended that these regulations be uniformly enforced. In addition to the public participation requirements in Section 91.105, jurisdictions should make their preliminary impediment analyses and proposed actions — including mapping data, where available — accessible on a public online platform so that citizens can contribute input easily and openly.

One of the major problems with the existing Analysis of Impediments system is that HUD staff do not regularly review AIs to assess their probability of success, substantive quality, or accuracy. Therefore, in addition to recommending that regulations designate specific actions, data requirements, and evaluation criteria, it is recommended that HUD staff be required to regularly review AIs and conduct on-site inspections before approving projects for federal funding. This recommendation is supported by Trasviña (2011).

For the purpose of efficiency, it is recommended that HUD adopt principles similar to those used by the Internal Revenue Service (IRS) in collecting revenue — specifically: focusing scrutiny on large recipients, promptly responding to information received about non-compliant parties, and conducting random audits. For HUD, this means focusing on large projects, investigating those suspected of regulatory non-compliance, and regularly conducting field inspections to ensure compliance (The Opportunity Agenda, 2010; Li, Campbell & Fernandez, 2013). These actions will produce higher overall levels of regulatory compliance.

Conclusion and Summary of Recommendations

It is clear from the review of programs and processes that the Housing Agency has complied with applicable state and federal housing regulations, including those contained in the Fair Housing Act. According to the Act, no one shall be excluded from housing projects on the basis of disability, familial status, ethnic origin, race, nationality, religion, sex, or color. Although the Act is well-drafted, it can be strengthened by: ensuring the Department audits and monitors fair housing obligations regularly through clear metrics; establishing clear guidelines for the collection and evaluation of data; ensuring adequate public participation before funding is granted; and conducting audits both before and after awards are made.

Beyond these actions, the Act can be improved by recommending the implementation of all relevant federal equal opportunity principles and impacts on federally funded projects and activities. The Act can be further strengthened by ensuring that both program-specific and jurisdiction-wide processes are supported by research and include rigorous compliance verification systems tied to pre-approval requirements.

In summary, the four central recommendations are: (1) restructure the jurisdiction-wide Analysis of Impediments procedure with stronger metrics, data collection standards, public participation requirements, and accountability mechanisms; (2) require fund recipients to carry out and submit periodic evaluations of the Act and other federally protected equal opportunity impacts; (3) ensure that both program-specific and jurisdiction-wide processes incorporate housing opportunity indicators grounded in established research; and (4) supplement submission and technical assistance requirements with a rigorous system of surprise, periodic, and randomized audits of a subset of recipients and applicants. Together, these reforms would meaningfully advance fair housing compliance and equity in the administration of federal housing resources.

References

Chan, C. (2016). Separate and suffering: The damaging effects of residential segregation on metropolitan economies. Chicago Policy Review (Online).

Cochran, C. L., & Malone, E. F. (2005). Public policy: Perspectives and choices. Lynne Rienner.

Dye, T. R. (2017). Understanding public policy. Pearson.

HUD (US Department of Housing and Urban Development). (1996). Fair housing planning guide, Volume 1. HUD.

HUD (US Department of Housing and Urban Development). (2017). AFFH-T user guide: Affirmatively furthering fair housing data and mapping tool v. 4.0. HUD.

Kanter, A. S. (1994). A home of one's own: The Fair Housing Amendments Act of 1988 and housing discrimination against people with mental disabilities. American University Law Review, 43, 925.

Kochera, A. (2002). Accessibility and visitability features in single-family homes: A review of state and local activity. Public Policy Institute, AARP.

Li, H., Campbell, H., & Fernandez, S. (2013). Residential segregation, spatial mismatch and economic growth across US metropolitan areas. Urban Studies, 50(13), 2642–2660.

National Collaborating Center for Healthy Public Policy. (2013). Public policy models and their usefulness in public health: The stages model. Retrieved from https://www.ncchpp.ca/docs/ModeleEtapesPolPubliques_EN.pdf

Pearl, L. D. (2014). Community development and fair housing: A work still in progress. Housing Policy Debate, 24(1), 288–296.

Robert, C., & Zeckhauser, R. (2011). The methodology of normative policy analysis. Journal of Policy Analysis and Management, 30(3), 613–643.

Smith, R. (2016). A seat at the table: Changing the governing structure of Low-Income Housing Tax Credit program administration to reflect civil rights values and fair housing. Columbia Journal of Race and Law, 6, 193.

The Opportunity Agenda. (2010). Reforming HUD's regulations to affirmatively further fair housing. Retrieved from https://www.opportunityagenda.org/explore/resources-publications/reforming-huds-regulations-affirmatively-further-fair-housing

Trasviña, J. (2011). Let's put an end to housing discrimination. The White House. Retrieved from https://obamawhitehouse.archives.gov/blog/2011/05/12/let-s-put-end-housing-discrimination

Turner, M. A., & Acevedo-Garcia, D. (2005). The benefits of housing mobility: A review of the research evidence. In P. Tegeler, M. Cunningham, & M. A. Turner (Eds.), Keeping the promise: Preserving and enhancing housing mobility in the Section 8 Housing Choice Voucher Program. Poverty and Race Research Action Council.