In Los Angeles on Friday, officials reached an agreement with the Department of Housing and Urban Development (HUD) to resolve the city's long-standing failure to provide housing for renters with disabilities. Reached two weeks after the city's application for $80 million in federal funding for affordable housing was met with a rare rejection from HUD, the agreement requires the city to retrofit over 3,000 existing units for tenants with disabilities and to ensure that 15 percent of all newly built or renovated units constructed over the next 10 years with federal funds are accessible. Last week's deal is expected to restore the city's access to the HUD funds.
In a brief July 19th letter to L.A. Mayor Eric Garcetti explaining the withholding of funding, obtained by Politico, HUD Secretary Ben Carson wrote: "As you have been notified time and again, the city is unlawfully discriminating against individuals with disabilities in its affordable housing program under federal accessibility laws, including the Fair Housing Act, and has refused to take the steps necessary to remedy this discrimination."
In 2011, a HUD investigation found that federally funded housing in the city had bathrooms, kitchens, and public spaces that were inaccessible to wheelchair users, violating the Americans With Disabilities Act and other federal disability rules. In 2012, three disability rights groups filed a complaint against the city in a federal district court, alleging that L.A. failed to provide adequate housing to hundreds of people with disabilities for years. In a 2016 settlement of the case, Los Angeles pledged to spend $200 million over the following decade to ensure that at least 4,000 of its affordable housing units meet the accessibility standards, and to put policies in place to ensure that those units are rented to people who need those accessibility features.
But the city has made little progress. "We know that there is still not a single unit in the city of Los Angeles that has been identified as fully accessible and meeting the standards of the settlement," says Dara Schur, senior counsel at Disability Rights California, one of the plaintiffs in the 2012 case. "Not having accessible units is the same as hanging up a sign that says 'people with disabilities aren't allowed here.'"
While fair housing advocates note that the city's protracted failure to address the housing needs of tenants with disabilities has been severe, the decision by HUD to so aggressively use its power of the purse nonetheless came as a surprise, as the agency has shown a consistent disregard for fair housing. Two days before the agreement with L.A. was announced, a leaked HUD proposal showed the agency's plan to gut the "disparate impact" rule of the Fair Housing Act, which allows people to challenge practices that have a disproportionate "adverse effect" on a particular protected group and is considered the most effective tool in addressing systemic housing discrimination. Last year, Carson rolled back the Affirmatively Furthering Fair Housing rule, dismantling the accountability system that ensured localities receiving HUD funds upheld the Fair Housing Act.
People vulnerable to discrimination because of their race, religion, or national origin need these tools, too, and in instances of these forms of discrimination, Carson's HUD has consistently failed to use its powers to enforce compliance. In 2017, for example, HUD found that the city of Houston was failing to address racial discrimination in federally financed housing. But unlike the voluntary compliance agreement it signed with Los Angeles, HUD's agreement with Houston essentially permitted the city to maintain the status quo.
The contradiction between HUD's actions in the L.A. case and its general posture toward housing discrimination has left fair housing advocates confused. On the one hand, says Morgan Williams, general counsel at the National Fair Housing Alliance, "It is kind of a righteous action that HUD has taken in this case, because there are real shortcomings that L.A. has exhibited in complying with these mandates that have real implications for low income people with disabilities in Los Angeles." On the other hand, Williams says, "It's the same administration that's taking aggressive steps to dismantle tools that people with disabilities need."
HUD's lack of action in the case of Houston offers a clear picture into the harm that such inconsistencies can cause. "Houston was in violation of civil rights and HUD still continued to send the money," says Sara Pratt, who served as deputy assistant secretary for fair housing enforcement at HUD during the Obama administration, and who was lead counsel last year in a suit against Carson for failing to enforce civil rights in Houston. "It didn't send a letter like [it did to L.A.], it didn't threaten loss of funding, it didn't say, 'you got a problem you've got to fix.' It ignored it."
Pratt says that any guess as to the reason for the disparity between HUD's action in these two cases would be speculation. But she does note that the Houston case addressed racial discrimination, while the L.A. case addressed discrimination on the basis of disability.
"There's past precedent of administrations that are not necessarily supportive of civil rights finding disability rights enforcement [to be] something that they're more amenable to doing than combating racial discrimination," says Thomas Silverstein, counsel at the Lawyer's Committee for Civil Rights Under Law, citing the example of the George W. Bush administration. In the last four years of the Clinton administration and the first four of the Bush administration, the percent of cases filed by the housing section of the Department of Justice on the basis of disability remained roughly consistent; but over those same years, 50 percent of housing discrimination cases were based on race and/or national origin under Clinton, against only 30 percent under Bush.
Some fair housing advocates also speculate that the Trump administration's continued power struggle with the blue haven of California may have been a factor behind HUD's disproportionately aggressive action. That the administration was motivated by "political interests that may have tipped the scales ultimately in the action they decided to take is a potential political reality," Williams says. "And that they are potentially not willing to take these kinds of actions in regards to other important civil rights issues, namely racial discrimination-related issues, is of concern."