Letter to the Department of Housing & Urban Development on the Rule to Deconcentrate Poverty and Promote Integration in Public Housing
June 1, 2000
Regulations Division
Office of General Counsel
Room 10276
Department of Housing & Urban Development
451 Seventh Street, SW
Washington, DC 20410
Re: Rule to Deconcentrate Poverty and Promote Integration in Public Housing (Docket No. FR-4420-P-08)
Dear General Counsel:
We are writing to comment on the proposed rule issued on Monday April 17, 2000 to implement certain provisions of the 1998 Public Housing Reform Act with respect to deconcentration of poverty and affirmatively furthering fair housing.1
The stated purpose of the proposed rule is admirable -- "to significantly reduce the persistently high levels of racial segregation and poverty concentration that have too long characterized public housing in many of our nation's communities." 65 Fed. Reg. at 20686. However, the actual content of the proposed regulations does not live up to this potential, particularly in the area of fair housing. Indeed, we are concerned that the proposed rule significantly understates the fair housing obligations of local PHAs, and may be used as a safe harbor for local agencies seeking to avoid civil rights compliance.
Need to address metropolitan level segregation
Most of the deconcentration and fair housing provisions of the proposed rule are designed for housing authorities that are internally segregated by income and race. To the extent that this is a problem, the proposed rule offers a partial solution. In many parts of the country, however, the real problem is segregation among housing authorities within a housing market, with lower income, minority occupied projects located in the city, while surrounding suburbs are home to smaller scale, higher income, predominantly white developments. There is no effort in the proposed regulation to encourage cross-jurisdictional or cross-program opportunities within a housing market that would help reverse the concentration of public housing within a jurisdiction where all of the public housing is occupied by families who are below the median income level for the region. Nor is there any effort to address the discriminatory site selection processes cited in the rule that cause increased racial and poverty concentration in a few already impoverished areas. Unless or until HUD and local PHAs take effective action to reverse the legacy of this site discrimination, by expanding the number of public housing units outside predominantly low income, minority neighborhoods, admission policies alone are unlikely to result in any meaningful deconcentration or desegregation.
A similar problem is built into the proposed rule's emphasis on "reducing racial and ethnic concentrations," without regard to patterns of metropolitan segregation. Two examples illustrate this problem: first, where a central city PHA seeks to relocate tenants from a highly segregated city neighborhood to a slightly less segregated city neighborhood, such actions are perpetuating segregation and concentration from a regional perspective, by adding low income and minority subsidized residents to a neighborhood that is already well above the regional median poverty and racial concentration level. But such actions are not necessarily prohibited by the rule. Second, a suburban PHA in a predominantly white community may seek to eliminate pockets of low income minority residents in order to "reduce racial and ethnic concentrations". Such actions, although in technical compliance with the rule, do not serve the cause of deconcentration or desegregation.
Clarifiying the scope of the proposed rule
The Fair Housing portions of the proposed rule are concerned almost exclusively with admissions issues. We believe that the rule should indicate that other aspects of a PHA's fair housing compliance, such as site selection, regional mobility counseling, and so on are also part of a PHA's fair housing obligations. Also, unless the scope of this rule is significantly broadened to include these other areas, we would suggest amending §903.1 as follows:
"The purpose of this subpart is to specify what a Public Housing Agency must do in order to reduce the concentration of lower income and higher income public housing tenants in particular buildings or developments and to affirmatively further fair housing in admissions."
Clarifying the discriminatory impact standard
At several points, the proposed rule restates the obligations imposed on PHAs by the Fair Housing Act, but fails to mention avoidance of policies that have a disproportionate impact on minority applicants or residents. Deconcentration requirements and other PHA policies must be implemented even-handedly, in a manner that does not disproportionately disadvantage Black or Latino tenants. Proposed rule §903.2(b)(2) should be revised to state "PHA policies that govern eligibility, selection and admissions under its Plan should be designed to avoid a disproportionate racial impact and to reduce racial and national origin concentrations." Proposed rule sections 903.2 (a) (8) (6) and 903.2 (b) (3) should also incorporate this clarification.
The need for performance goals
Section 903.2 (6) (2) (ii) emphasizes PHA procedures, as opposed to performance. Loyalty to paper compliance with fair housing rules instead of actual progress toward fair housing goals has been a traditional failing of HUD policy. We urge HUD to use this opportunity to support a standard of measurable progress toward achieving desegregation goals as part of PHA's "affirmatively furthering" obligation. To encourage this approach, the following subsection should be added to the rule:
"The PHA will be judged by its performance in achieving fair housing goals, not merely by formal compliance with the procedural requirements set out in the regulations."
We believe that these changes will significantly improve the proposed rule and help bring local PHAs closer into compliance with their fair housing obligations.
Sincerely,
Laura W. Murphy, Director
ACLU Washington National Office
Christopher E. Anders, Legislative Counsel
ACLU Washington National Office
Philip D. Tegeler
Connecticut Civil Liberties
Union Foundation
Barbara Samuel
ACLU of Maryland
ENDNOTES
1 These comments address only the fair housing aspects of the proposed rule. The absence of comments regarding other parts of the proposed rule does not constitute an endorsement of those parts.