John Trasviña came to HUD in 2009 from the Mexican American Legal Defense and Educational Fund where he served as president and general counsel. Through President Clinton’s second term he served as special counsel for immigration related unfair employment practices, making him the highest-ranking Latino in the Justice Department. He spoke with Shelterforce about updating the Fair Housing Act, reviving attention to Section 3, and the challenges in nailing down what it means to “affirmatively further fair housing.”
Shelterforce: Talk about how housing fits into the civil rights agenda.
Assistant Secretary Trasviña: I have devoted my career to civil rights advocacy, litigation, and policy-making areas such as voting rights, immigration, education, employment, and language. Housing, especially fair housing, is the common platform that has such a tremendous impact on all these issues. That is why, in the aftermath of Dr. Martin Luther King’s assassination in April 1968, President Johnson called on civil rights, faith, urban, and other leaders and determined that the Fair Housing Act was essential to bring the nation forward and to bring the nation together. We carry on that legacy today.
Have we made progress?
We have, but our work is not over until every home and every community in the nation is free from discrimination, whether it is race, religion, national origin, or the other protected classes under our statute.
We receive more than 10,000 complaints of housing discrimination each year, many from people with disabilities. We continue to fight the blatant examples of discrimination. At the same time, we have to be positioned for the 21st century, and that means looking at different communities.
What do you mean by “different communities”?
One of the great things about the Fair Housing Act is that it is a mirror image of some of the greatest movements in our nation’s history. The women’s movement of the 1960s, for example, eventually led to the inclusion of gender discrimination in the Fair Housing Act in 1974. In 1988, the act recognized the history of discrimination in housing against families with children and people with disabilities.
So as we are now in the 21st century, beyond our focus on the existing statute, we are also looking at the conditions of lesbian/gay/bisexual/transgender (LGBT) people, and looking at source-of-income discrimination. We have to be a civil rights office that is relevant to the 21st century. This means addressing the needs of newcomers and new families without forgetting the core issues of discrimination that formed the target of the ’68 Act.
How good a job are we doing now?
That’s one of the most difficult things to really document. When I worked at the Department of Justice under Janet Reno, one of my areas was immigration, and every year a similar question was posed: “How effective is the federal government at enforcing the border?” Is it a good year when you have a lot of people who are stopped at the border, or is it a good year when you have few people stopped at the border?
In the area of discrimination, it’s the same thing. We see certain parts of the country where we have a lot of complaints coming to us, but is that because there is a strong fair housing environment where people feel comfortable coming forward and saying we’ve been discriminated against, or is there really a higher incidence of discrimination? Similarly, we have some states where there’s very little discrimination reported. Is that because there’s no discrimination, or is that because people don’t know how to report it or who to report it to?
Overall, the numbers are only a guide. Our sense is that there is more to be done. For example, mayors and governors have no role in our immigration policy. Under the Constitution, immigration policy and numbers are determined by the President and Congress. But immigrant integration is successful or not successful in our schools and in our communities. HUD can and should be a strong partner with local communities to advance opportunity and make immigrant integration a success.
We look at different ways to determine people’s access to services, people’s success in healthcare outcomes and education outcomes. All of those come back, very often, to discrimination and housing discrimination. So while we are moderately successful, we have tremendous challenges ahead of us, so we don’t really focus on how successful we are. We look at specific areas, specific communities, and what new issues are facing people in their daily lives so we can address them using the Fair Housing Act and our partnerships in the private sector, in the industry, and in the public sector.
What are some of those new challenges?
The evolving nature of families, for one. Recently the State Department announced that children’s passport applications would no longer say “mother” and “father.” They will say “parent number one” and “parent number two.” This parallels our work in combating housing discrimination against people because of their family status.
We recently settled a case in Philadelphia on behalf of a woman who was evicted for adopting a child. When she signed the lease she told the landlord that she wanted to adopt a baby. The landlord told her, “Well, we don’t rent to children.” They couldn’t deny her the apartment at that time because she was childless. She later adopted a young boy who after a number of months was able to get adjusted to a new family situation, new school, new community, and new friends. Then the woman and her child were evicted.
But because she wrote to us we were able to help her. In part through the settlement amount, she was able to buy a home in another community where she and her child are now bonding. So whether they are issues related to some of the more systemic areas of discrimination, or affirmatively furthering fair housing, we are putting a new mark on the long-held responsibility of the department.
Some of the other areas in which we are active include working with local communities and their responsibility to ensure that the dollars that they get from HUD are extended and invested, not only in the buildings and in the structures, but in the people themselves. So we’ve taken a new look at Section 3 of the HUD Act to make sure that job opportunities and contracting opportunities are going to low-income people and to those who hire them.
Section 3 was always way back in the line in terms of actually being used. That’s great.
Well, that’s correct, and it can’t be that way anymore. You look at the number one concern of people across America, and it’s job opportunities. And here not only do we have an obligation, but we have resources that go from HUD to local communities. When I came on board last year, only about 20 percent of the jurisdictions who received HUD money would even tell us what they did under Section 3. In the past year, we’ve been able to increase that reporting from 20 percent to almost 80 percent.
It is more than reporting to HUD. HUD is taking a look at the jurisdictions and we are working with them, not just scrutinizing them. It’s a matter of helping them and working with them. The percentage of new hires who are Section 3 residents has gone up to over 50 percent. The percentage of contracting opportunities for companies who hire low-income individuals has risen as well.
We have a long way to go in this, given the economic situation, but this is an area where we can — and must — put the federal government behind job training and matching people with job opportunities.
How can fair housing protections be extended to people based on their source of income? Why is it important, and how would that portion of the Home Act, introduced in the last Congress, be enforced?
As you know, source-of-income discrimination is not prohibited by the Fair Housing Act today, but we do have over a dozen states and local communities that have source-of-income discrimination [prohibited] under their laws. So while we do not have the federal authority to address source-of-income discrimination directly, what we have done is to make sure that, for jurisdictions that are violating their local laws, it becomes more difficult for them to get our support.
But more significant is that while source of income in itself is not a protected class, source-of-income discrimination is very often just a subterfuge and a pretext for race discrimination and family-based discrimination. When you see ads or notices or responses from landlords indicating “No Section 8,” is it source of income or is it race or family size? So we look behind any particular case to make sure that we’re able to address discrimination where it exists.
The Home Act will certainly be helpful not only by giving us the direct authority on source-of-income discrimination, but it would provide reassurances to people in communities everywhere that the federal government can address this and not have their rights based upon what state they may live in. We look forward to working with Congress on this and other civil rights legislation.
There are some concerns from small landlords who rely on rent for cash flow and who have argued that irregular or unreliable payments from social services offices make them unsafe sources of income for them to accept. What can be done to protect them without violating source-of-income non-discrimination rules? Is that something that’s being considered right now?
Everybody is sympathetic to cash flow issues, and if there are ways that we at fair housing, or through our counterparts at the Office of Public and Indian Housing, can address some of the administrative burdens that landlords may have, then certainly we will do that. But allowing discrimination is never an option.
You’ve publicly discussed discrimination against the LGBT community. What can we expect to see moving forward on that front?
On January 25, HUD issued a proposed rule that ensures we can carry out our mission to provide decent, safe, and suitable living environments/housing for all. This proposed rule makes HUD housing and programs open, irrespective of marital status, sexual orientation, or gender identity. It also prohibits inquiries along those lines and bars FHA lenders from making loan determinations on those grounds. A number of states and local governments already have LGBT protections. They are ahead of the federal government in that regard. Here is another example where just examining the number of discrimination complaints misses the bigger picture. Some places have few complaints not because there is an absence of discrimination but because single-sex couples are effectively forced into hiding their identity or status to get a one bedroom apartment. Fundamentally, no American should have to hide his or her identity in order to live where he or she would like to live.
There are some serious concerns regarding the Public Housing Reinvestment and Tenant Protection Act of 2010, including those related to local jurisdiction veto power when it comes to the location of low-income units.
Jurisdictions have the right to determine where low-income housing units are located, but those types of decisions must be done in a way that is consistent with the requirements of the Fair Housing Act. In Saint Bernard Parish near New Orleans, for instance, several ordinances restricting the availability of multifamily housing were enacted after Hurricane Katrina that limited rental housing opportunities for African Americans. HUD and local fair housing partner the Greater New Orleans Fair Housing Action Center have been involved to address these actions, and recently we have seen the Parish take action to permit construction of 288 units of multifamily housing.
So that moves us into some talk about HUD’s programs itself. People have been talking about, and eagerly anticipating the regulation on affirmatively furthering fair housing. What can you tell us about how that’s coming along, what details there are that can be shared, and what it will mean for HUD’s various divisions and others in the field to have that regulation out?
Back in the ’90s there was an effort to strengthen HUD’s hand on affirmatively furthering fair housing. It was unsuccessful and people today recognize the current program is not effective. So we’ve gone back and looked at what our goal is and how we can get there. In July 2009, we had over 600 members of civil rights organizations and representatives of local jurisdictions, the real estate industry, and others meet with us to express their thoughts on how we could develop a meaningful plan. Since then, we’ve gone back and talked to other stakeholders, been open to ideas, and refined them. I’m very optimistic that we will be able to have in the federal register a proposed rule that will articulate more clearly than today what we expect of jurisdictions in their obligation to affirmatively further fair housing, how we can help them, and [how we can] give them the data so they spend a minimum amount of time gathering statistical information and devote their attention to hearing from members of their community about what is needed.
In Marin County, California, we reached a voluntary compliance agreement with the county that makes clear what we expect. Marin County is the least diverse and has the highest levels of income of all of the Bay Area’s nine counties. Its black community is in the same place it was since World War II, when people working in the shipbuilding industry moved there. African Americans are still in that very small part of that county and nowhere else. Latinos have moved into the Canal area of Marin County and have not yet moved out to other parts of the county.
And right across the Golden Gate Bridge you have the nation’s oldest and largest Asian-American community. Many have the wealth, but they are not in Marin County. We looked into these and other aspects of affirmatively furthering fair housing and reached a voluntary compliance agreement with the county. One county housing official told the local newspaper that it was the first time HUD had this level of concern about outreach, minority participation, and who benefits from the program.
So that’s what we’re about on affirmatively furthering fair housing, to make sure that the people have a voice in their communities. It’s not going to be HUD in Washington telling a city or a county how they’re going to spend their money, down to the penny, down to the project, but it’s going to be HUD providing data, HUD providing expectations, HUD providing technical assistance, HUD providing the kind of cooperative effort back and forth rather than a “gotcha” list of, “You didn’t do these eight things; you’re not going to get any money.” We will be working together with the jurisdictions to really target their investments to create areas of high opportunity that will be open to all people.
The buildings that they’re building, whether they are homes, whether they are multifamily buildings or rental units or anything else, these are things that are going to last for the next 30 or 40 years, or longer. And we need communities to be thinking about what their communities can look like over that period of time and build for those eventualities. That’s what we are trying to accomplish in affirmatively furthering fair housing, to do so in a way that makes sense, that meets our capabilities, to be able to be of assistance to jurisdictions, and to, very importantly, provide a voice for people with disabilities in a community, provide a voice for minorities in the community and [for] those who are not yet in the community but would be there if there was truly open housing.
The processes of working out something this comprehensive in a bureaucracy is very difficult, or at least time consuming. Are there specific challenges or points of contention that you’re trying to work out? It sounds like you’re doing a bit of balancing between wanting to make sure that it’s not prescriptive but, as you said, giving community a voice. What are some of the tensions that are being worked through in the process of developing the regulation?
We’re working very deliberatively on issues such as data, community participation, and standards by which we will determine success. And because it is making sure that HUD’s work follows the civil rights laws and furthers them, it involves coordination within HUD headquarters and also across governmental institutions. We have 10 regions and 43 offices around the country. But we are not everywhere, so we are going to need the help of people in the communities to really know what it means to have a development sited in one place or the other.
In the last administration, we did not see the active pursuit of fair housing or really civil rights cases in general. And now, with the current administration, that’s really stepped back up, and many people were very glad to see that. But is there any way to institutionalize that more active look at fair housing and civil rights so that it doesn’t disappear again as political administrations change?
You’re always going to see changes in priorities and policies; that’s the nature of the changes in the executive branch. The affirmatively furthering regulation, as well as the Section 3 changes, are designed to provide some continuity once we establish exactly where we want to go in these areas.
As we look at what a new affirmatively furthering fair housing structure will look like, we’re going to make sure it’s not designed to be a tug-of-war between the federal government that’s writing the check and the local government that’s receiving the money. So I would hope that, future administrations that come in in the next six years or so, that they would be looking at this as a success, as a way of advancing opportunity and not looking to cut it back.
Affirmatively furthering fair housing is not just a function for HUD. It’s all the departments of government. Does HUD have conversations around this issue with Treasury, FDIC, or others?
We talk and collaborate where we can. Often times we deal with different aspects of the problem, but a lot of us review the same data so that we can help other institutions identify possible fair housing concerns.
The new Consumer Financial Protection Bureau will help tremendously to be able to assist us as they look at practices and policies of lenders. We have a very strong collaboration right now with the Department of Justice, not only on our more traditional Title VIII cases, but also in the broad areas of equal credit and fair lending.
In the Choice Neighborhoods Initiative, there’s a bit of a tension in terms of whether replacement units are required to be sited onsite, which often some tenants’ groups support because they don’t want to be displaced from their community, versus whether that reinforces concentrated poverty and harms fair housing objectives. Does your office get into any of these questions? And how in general do you think about balancing the right to move to opportunity, the right to be in a community, and the right not to be displaced from an existing community where you have connections?
This is an area in which we have been very involved. Among many of the allies that are usually on the same page there are different perspectives. If all we’re doing is investing in higher opportunity areas and areas that are less concentrated, what message is that to those who have lived in a community for years and lived through the toughest times? Are we saying that in order to succeed, you have to live someplace else? And are we fixing this community for somebody else to move into? It is a discussion that needs to be had and is often tailored to local needs. Our view is, we come down to choice and empowered choice — that the residents themselves need to be empowered with information, with analysis, and with the ability to move to places outside of where they are relegated. Also, if there are sufficient reasons for them to stay, such as their family has always lived there, or their church is there, or for some other reason, that they ought to be able to have that opportunity to stay, and stay in an area that has a higher quality of living, has access to good schools, and grocery stores, right there in their immediate neighborhoods.
This is one where it’s clearly not a one-size-fits-all. It’s one that requires a lot of honest discussion. We are resolved to reduce high-poverty neighborhoods, and you do that by empowering people to leave if they want to leave, but also to be able to stay with better opportunities — for education, transportation, jobs, and housing.
Recently, the National Community Reinvestment Coalition filed complaints over lenders’ unfair discriminatory policies, specifically the credit overlays that they’re putting on FHA loans, requiring higher credit scores. They say that this has a disparate impact on African-American and Latino borrowers. How are you working with those complaints, and how does the fair lending question dovetail with the broader fair housing question?
NCRC has done a tremendous service by taking up this subject. Obviously we look at all complaints on their merits, so they are getting a careful treatment from our headquarters staff and from staff around the country. Our job is to assemble a team of investigators who will expedite or move the cases forward, ideally within 100 days. If we need more time, we will take more time.
Clearly, there are important issues to be addressed, such as disparate impact against Latinos and African Americans with the raised FICO score requirements. Beyond that, I really cannot comment on any specifics of the investigation except to say that we are taking it seriously and moving forward.
It’s a very different world out there when it comes to the credit market. During the subprime boom people talked about reverse redlining and pushing predatory products in certain neighborhoods and to certain demographics. Now things have changed. How are you thinking about fair lending in general at this point, and what needs to be done to enforce it?
One part of that different world is the vast amounts of wealth that have been lost in African-American, Latino, and other communities. We are looking at the credit market to see whether some lenders go back to some of their old ways.
One area that we are looking at very, very closely is a new way of lending discrimination when it comes to women who are on maternity leave. While the federal law for family leave says that people are entitled to 12 weeks of unpaid leave, some lenders have assumed that maternity leave is unpaid, that women on maternity leave have no other income, and that there is no guarantee that there will be a job waiting for them when they return from leave. We’ve examined a number of cases from around the country and we are very close to a positive resolution that is intended to address the situation for existing victims of such policies, help us find other victims of current practices, and prevent future lending violations of the Fair Housing Act.
What can HUD do to better promote the fair housing outcomes of Section 8 vouchers?
There are several things. One is housing counseling and making sure people understand what they can do as they move into areas of opportunity, schools, transportation, and more healthy living environments. Then there are more complex issues related to matters such as fair market rent values and providing greater support to the residents in order to be able to use vouchers and use them effectively.
In our interview with Deputy Secretary Ron Sims he discussed how sustainability can work into HUD policy and specifically how you can determine one’s quality of life by one’s zip code. How can programs like Sustainable Communities Initiative relate to fair housing? And then, in the spirit of that initiative, does your office actively look at interagency initiatives?
First, the furthering fair housing obligation extends to housing activities across the government, so it’s not just HUD, and it’s not just HUD recipients. For example, the key to meeting the “Equal Opportunity” of “FHEO,” lies with the Department of Labor and with the local workforce investment boards that create job and training opportunities in public housing. We are working with local communities to provide assistance to set up registries of businesses that will hire low-income individuals, recognizing that those low-income individuals often need training. This gives us other opportunities to break down employment barriers, particularly for women in the construction trades, which is a focus of Section 3.
In terms of sustainability, I think that is very much at the heart of our work on affirmatively furthering fair housing. Regarding one’s zip code and where people live, school segregation levels are very, very high, and the U.S. Supreme Court back in 2006 ruled [in Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County (Ky.) Board of Education] that school officials are limited in their ability to use race as a factor in admissions and setting admission zones. We now see a greater responsibility on the housing providers and the housing community to break down segregation within a community.
We are doing two things here: We’re creating opportunity and promoting mobility in all places, but we’re also making the place where you live less of a determinant of your overall success. We are able to do that through decisions that involve the Department of Transportation in terms of siting public transportation, and also where their investments go.
I would say that the sustainability effort and the deputy [secretary]‘s call for making the zip codes irrelevant to people’s success fits hand-in-glove with our work in fair housing.
[A shorter version of this interview appeared in the print edition of Shelterforce, Spring 2011.]
We are looking for information on the 12 HUD funded section 3 regional coordinators.This group was funded at the tune of six-hundred thousand to coordinate all section 3 covered recipients/developer that receive LIHTC/HOME assist.