Opening Acts: February 22, 2016

FHIP Funding for Testing Matters!

The Fair Housing Justice Center (FHJC) is one of nearly a hundred non-profit fair housing organizations in the nation that routinely conducts “testing” to aid with the enforcement of fair housing laws.  Testers are people who are trained to pose as prospective renters or buyers of real estate for the purpose of determining whether or not housing providers and others are complying with fair housing laws.  Tests can often tell us whether similarly qualified people with different characteristics (e.g., race, national origin, sex, religion, disabilities, etc.) are being afforded equal treatment, equal service, and equal access to housing.  While testing has been recognized by courts as being one the most effective investigative tools used to enforce fair housing laws, very few government agencies actually employ testing in their enforcement programs.  The value of testing cannot be overstated. 

When responding to complaints of housing discrimination, testing is sometimes the only competent evidence that enables victims of housing discrimination to meet their burden of proof and prevail with their complaints.  Even when there is no complaint, systemic testing investigations can uncover and eliminate subtle – though no less illegal – forms of housing discrimination that are still restricting housing choice, isolating vulnerable populations, or perpetuating residential segregation.  Given the persistent, furtive, and pervasive nature of housing discrimination in our metropolitan regions, it is inconceivable that much progress will be made toward achieving the national policy objective of providing fair housing throughout this nation without the use of testing.   

For the non-profit organizations like the FHJC that have developed strong testing capabilities, the primary federal source of funding for testing comes from the Fair Housing Initiatives Program (FHIP) through the United States Department of Housing & Urban Development (HUD).  FHIP grants are the primary federal source of financial support for fair housing testing programs.  In recent years, there have been debates in Congress over whether to reduce or altogether eliminate FHIP funding for testing by fair housing organizations.   There are signs that these shameful and injudicious efforts to eliminate critical grants for testing will continue.  As our nation approaches the 50th Anniversary of the passage of the federal Fair Housing Act in 2018, it is important that people who support fair housing understand why these annual attacks on FHIP funding fundamentally represent an assault on our civil rights and an effort to undermine enforcement of fair housing laws.  The use of testing by the FHJC and other private fair housing organizations removes barriers to housing choice and expands housing opportunities available to populations that Congress intended the Fair Housing Act to protect.  The elimination of funding for testing would eviscerate the most effective tool we have to fight housing discrimination.

In 2006, the FHJC conducted testing to investigate whether newly constructed multifamily rental buildings were being designed and constructed to be accessible to persons with disabilities who use wheelchairs.  The evidence gathered in this investigation was referred to the U.S. Attorney’s Office (SDNY) which led to lawsuits against some of the largest developers in New York City.  Ten federal complaints were filed to date and all were eventually settled for damages, civil penalties, retrofits to make the housing accessible, and injunctive relief to ensure that any future developments designed or built by defendants would be compliant with fair housing laws.  Collectively, these settlements established victim damage funds totaling over $4.4 million and imposed civil penalties of approximately $689,000.  Most importantly, over 13,000 units of rental housing in 44 buildings were impacted by the litigation that stemmed from FHJC’s FHIP-funded testing investigation.  Enforcement action, prompted by the allocation of a modest amount of FHIP funds for a testing investigation, led to thousands of units of rental housing being made more accessible and available to New Yorkers with disabilities.  

Over the years, the FHJC has been conducting testing to investigate housing discrimination based on race and national origin throughout the New York City region.  To date, these investigations have led to more than two dozen federal lawsuits resulting in a total monetary recovery of over $5 million and, most importantly, extensive injunctive relief to change policies and practices to bring housing providers, housing-related services, and government agencies into compliance with fair housing laws.  FHJC investigations have led to the filing of cases that have opened up over 5,000 units of housing to African American and Latino households, populations that were previously excluded or treated less favorably than their white counterparts.  The resulting cases also ensured that African Americans and Latinos gained greater access to real estate services, financial services, federal rental assistance programs, and affordable housing opportunities.  All of the investigations and outcomes stemmed from FHIP-funded activities.  All of the cases involved systemic discrimination based on race and/or national origin and most of these covert practices would never have been detected or reported by ordinary consumers. 

FHIP funding for testing matters.  Since most government enforcement agencies have adopted a passive, complaint-responsive approach to enforcing fair housing laws, it is unlikely that, absent testing, enforcement action would have been taken to halt these abhorrent practices.  It took testing by a FHIP-funded fair housing organization to root out the invidious discrimination that was inflicting tremendous harm on individuals, families, and entire communities.     

Indeed, testing matters.  Without it, the promise of fair housing will remain elusive and the dream of a more open, accessible, and inclusive society indefinitely deferred.  It is not only prudent, but it is crucial that supporters of fair housing urge those running for or serving in public office to preserve and expand programs like FHIP so that more local, state, and federal resources are devoted to testing.  We need people in public office who will work hard to ensure that our existing fair housing laws are vigorously enforced and our civil rights adequately protected.