No Sting: Feds Won’t Go Undercover to Prove Housing Discrimination
African Americans and Latinos are turned away from homes and apartments millions of times annually because of their race, yet the federal government seldom uses undercover investigations, which are the most effective means of catching biased landlords and real estate agents.
The four-bedroom house advertised on Craigslist sounded like just what Claire Rembis and her husband had been looking for. It sat on two verdant acres with plenty of room for their seven home-schooled children to run and play. And the $850 monthly rent was much cheaper than the prices for other homes they'd looked at.
Rembis loaded her family into their Dodge van and drove the 80 miles from Dearborn to Hudson, Mich. After the landlord's brother showed them the property, they called the landlord and told her they "loved it."
Three days later, Rembis got a call from the landlord saying she was dropping by to see how the family lived. It seemed strange, but Rembis really wanted the house, so she agreed. The landlord looked around, noted how tidy Rembis kept her home, and then asked to meet her children.
"I notice you are a woman of color," the landlord said. "Are you concerned about living in that area?" Hudson is about 96 percent white, according to the U.S. Census. Rembis is biracial; her husband is white.
When Rembis replied she expected she and her children would have no problems, the landlord clarified her question. "No, no, no, not your children," Rembis recalled her saying. "They are so beautiful, they are so fair."
The landlord told Rembis she'd get back to her. A few days later Rembis received an email saying the family could not rent the house because there were issues with their credit and they had too many small children.
By then, Rembis had already contacted the Fair Housing Center of Metropolitan Detroit, a non-profit group. The center arranged for black and white testers to ask to rent the house.
Four years later, Rembis still gets emotional when she talks about what the testers found. "This part is really hard," she said, her voice breaking. "This part is really hard. The black family and the white family had the same income, the same credit history, and the black family had the least number of kids. They wouldn't even let them see the house. They wouldn't return their phone calls."
The white family, the testing showed, was called back immediately and invited to see the house.
What happened to the Rembis family isn’t an isolated instance of a landlord flouting the 1968 Fair Housing Act. It’s a rare case of the U.S. Department of Housing and Urban Development actually investigating and filing formal charges. Today, federal authorities filed a complaint against the owners of the property and proposed to settle the case with a $12,500 fine to be paid to the Rembis family, according to a Justice Department official. The proposed settlement also calls for Paula and David French to undergo training in following the fair housing law. Attempts to reach the Frenchs’ attorney were unsuccessful.
Few civil rights laws are more routinely defied than the ban on housing discrimination.
HUD studies have found that African Americans and Latinos are discriminated against in one of every five home-buying encounters and one in every four attempts to rent an apartment.
Only a scant few of these incidents ever come to the attention of authorities.
In 2010, HUD and the National Fair Housing Alliance, reported that HUD, state, local and private groups received about 29,000 complaints from people alleging discrimination for a wide variety of reasons — including race, familial status, disability and national origin. About two-thirds were handled by private attorneys and non-profits which settled cases and, in some instances, filed civil law suits.
The remaining 10,000 went to state, local and federal agencies which together filed only 700 formal charges of discrimination in 2010. That year HUD found reasonable cause to believe discrimination based on race or national origin occurred in just 11 cases. The Department of Justice filed 29 cases — the lowest number since 2003.
The pervasive, unaddressed discrimination in the housing market has far-reaching effects. It is a significant factor in maintaining a segregated America four decades after Congress passed landmark legislation intended to integrate the nation's communities. It means that African Americans and Latinos who can afford to move to better neighborhoods are systematically blocked from doing so. They and their families are thus deprived of opportunities — from access to grocery stores with fresh vegetables to adequate health care to top-flight schools.
The negligible number of housing discrimination cases arises largely from fundamental choices by federal agencies.
Instead of actively searching for landlords and agents who discriminate, federal officials open investigations only after complaints are filed. But most victims have no idea they've been discriminated against, which means they never demand an inquiry.
Experts say undercover testing is the most effective way to catch landlords and real estate agents who conceal their intentions behind smiling faces and seemingly open, friendly attitudes.
Indeed, the handful of people who, like Rembis, realize what happened and are upset enough to pursue complaints find it difficult to prove their cases without evidence gathered through such testing.
Yet the federal government almost never uses this technique. HUD, the chief enforcement agency of the Fair Housing Act, runs no testing program of its own. Instead, it outsources the work to a patchwork of about 100 small, poorly funded private fair housing groups such as the Fair Housing Center of Metropolitan Detroit.
Nearly all focus on verifying individual complaints rather than systematically seeking out serial discriminators.
Civil rights advocates say it's no surprise that the current policies have had little impact on breaking apart the nation's segregated neighborhoods.
"It has been impossible to desegregate communities on a case-by-case basis," said Leslie Proll, director of the NAACP Legal Defense Fund's Washington, D.C., office. "It's as if we were trying to desegregate schools student by student. Nobody would think that would be an appropriate remedy."
HUD officials declined to be interviewed for this story. But a HUD spokesman released a statement saying the agency avoids conducting its own tests for racial bias so it can remain "neutral" when it receives complaints.
"For many years, HUD has held the position that it should not conduct a national testing program itself to make certain that it conducts neutral and impartial investigations of complaints under the Fair Housing Act," the statement said.
"Conducting its own testing program (on which complaints might be based) would compromise that objectivity...If HUD conducted its own testing, and then investigated cases based on that testing, HUD would be accused of losing that required neutrality."
That view seems out of step with the law, according to advocates and many legal experts. When Congress amended the act in 1988, it gave HUD the authority to initiate housing investigations on its own and to file what the law describes as "Secretary Initiated Complaints."
"Testing doesn't assume facts; it is done to find out what the facts are. It is nothing more or less than an investigation," said Elizabeth Julian, a former HUD assistant secretary who is now president of a non-profit fair housing group called the Inclusive Communities Project. HUD's statement, she said, doesn't explain "why they don't do systemic testing that would lead to secretary initiated complaints."
Fred Freiberg founded a national testing program at the Justice Department in 1991 to ferret out cases of discrimination. HUD's position, he said, "is absurd."
"So what they are saying is the Department of Justice is compromising its objectivity because it runs a testing program and brings cases based on that testing?" he asked. "Is an investigation of a drug dealer at an elementary school compromised when an agent goes undercover?"
The Short Arm of the Law
The Fair Housing Act was the last piece of landmark civil rights legislation in the 1960s. Passed in the tumultuous days after the assassination of the Rev. Martin Luther King Jr., the long-stalled measure was intended to address the root causes of riots that had set aflame more than 100 cities. It called on the federal government to do everything possible to "affirmatively further" fair housing, and it outlawed discrimination in the sale and rental of homes and apartments.
The law was the first civil rights legislation to address practices commonplace in both the North and South.
But the Fair Housing Act, intended to strike at the heart of what the 1968 Kerner Commission called two disparate nations, one black and one white, has produced astoundingly limited results.
"It is the third leg of the civil rights movement," said Brian Gilmore, director of Michigan State University's Housing Clinic. "This is the one that has been the complete failure."
The original draft of the bill gave HUD broad new powers, including the authority to hold hearings, impose fines, and order property owners to change their behavior. But to win support from Northern lawmakers who feared legislation that dealt with racial issues so close to home, its sponsors gutted the enforcement provisions. The law that ultimately passed was, as Massachusetts Sen. Edward Kennedy later put it, "a toothless tiger."
The agency could not initiate investigations and could only respond to complaints. It could not impose fines or even bar violators from continuing illegal practices. All HUD was permitted to do was organize meetings in which the parties would attempt to voluntarily resolve their differences.
When landlords or real estate agents denied the charges, HUD had no choice but to close cases and inform those involved of their right to file a private lawsuit. But hardly anyone went to court partly because the law limited damages to $1,000 and did not provide for attorney's fees.
Just a few years after the law went into effect, Patricia Roberts Harris, HUD secretary under President Jimmy Carter, called filing complaints a "useless task."
The law did give the Justice Department authority to prosecute cases in which investigators could establish large-scale "patterns and practice" of discriminatory behavior. But the agency assigned fewer than two dozen attorneys to enforce all the nation's civil rights laws, not just the Fair Housing Act, and brought few housing cases.
Former Senator (and later Vice President) Walter Mondale, a Minnesota Democrat who co-authored the act, said in a recent interview that he and others had intended to address the law's weaknesses in subsequent Congresses. But the nation's willingness to address racial inequality quickly dissipated.
Republican Richard Nixon won the 1968 presidential election, relying in part on a "Southern strategy" that built a coalition of formerly Democratic Southerners and white Northern suburbanites with promises to roll back integration efforts. The Congresses elected in the years that followed had little appetite to revisit the housing law.
The result, Mondale said, was a law with a "ragged history" that did not accomplish its fundamental goals. The Fair Housing Act was "intended to change discrimination and patterns of racial separation," he said. "It wasn't designed to duck it; it was designed to deal with it."
One arm of government did aggressively search for housing discrimination: the Department of Defense. The military had long played a leading role in the fight for integration, beginning with President Harry Truman's 1948 Executive Order banning segregation in the armed forces. Military officials launched the nation's first national testing program shortly after the housing act passed, when it started sending white soldiers to test whether landlords were discriminating against black soldiers seeking off-base housing.
The commercial consequences were potentially ruinous. When the Defense Department found a landlord was discriminating, it banned all military personnel — on pain of court martial — from signing a lease with that person.
In the civilian world, non-profit fair housing groups operating on shoestring budgets struggled to fill that role. They sent out testers to investigate claims and help victims bring civil suits. Often, they sued under the recently passed Fair Housing Act and the 1866 Civil Rights Act. The 1866 Act, along with granting black Americans the full rights of citizenship, barred racial discrimination and, unlike the Fair Housing Act, did not limit damages.
The non-profit groups scored some notable successes, revealing discriminatory practices in real estate, insurance and lending. Still, without the weight of the federal government, the impact was limited. Federal studies conducted in the 1970s and 1980s show the rate of discrimination remained steady. Housing patterns stayed as segregated as before the housing act passed.
In 1988, President Ronald Reagan responded to mounting criticism of his civil rights record by helping push through the Fair Housing Amendments Act. Signing the bill, Reagan declared that "discrimination is particularly tragic when it means a family is refused housing near good schools, a good job, or simply in a better neighborhood to raise children."
The bill, he said, repaired a significant "defect": Lack of enforcement. For the first time, it gave HUD authority to initiate systemic investigations of housing bias. Officials could haul landlords and real estate agents before administrative law judges who had the power to fine them up $50,000. It also lifted the $1,000 cap on civil damages and expanded the authority of the U.S. Department of Justice to initiate cases.
The U.S. Department of Justice swiftly took advantage of its new powers. In 1991, two years after the law went into effect, the department recruited Freiberg to launch its national testing program.
Freiberg sent investigators to dozens of cities with suspect racial patterns, leading to about 70 lawsuits against property owners in cities from Newark to Miami to Rapid City, S.D.
Freiberg left the Justice Department in 1999, and since then the department has brought an average of fewer than two cases a year. It is unclear exactly why the cases have declined as the DOJ did not respond to repeated requests for interviews.
HUD never created a testing program. Instead, officials continued to wait for people to file complaints.
Would-be Broadway Stars Reveal Discrimination
In the two decades it took for Congress to give HUD real authority to punish discrimination, America had changed. The overt racism of the '60s, in which landlords often told black Americans they had no apartments for their kind, had given way to subtler forms of bias.
"If you think about the old-fashioned discrimination as the door being slammed in somebody's face, today you have to talk about a revolving door, where people are politely and courteously escorted in and out and ultimately away from the desired housing," said Freiberg, now the executive director of the Fair Housing Justice Center, a non-profit enforcement group in New York City.
The best way to detect such practices today, experts and housing officials say, is to send actors of different races posing as renters and homebuyers.
But HUD opted to fund non-profits around the country to perform such tests and bring the majority of lawsuits involving housing discrimination. More than two decades later, these groups, which on average have just five staff members, process 65 percent of the nation's fair housing complaints and account for nearly all of the fair housing testing conducted in the United States.
The Obama administration has significantly increased the money to fund these groups' enforcement work. Still, HUD devotes far less than one one-thousandth of its budget to this effort. Out of its $43 billion in funding last year, the agency spent just $25 million on these contracts, and that sum is divided among 98 groups. The most any organization received last year was $325,000. The money covers staffing, legal expenses, complaint intake and investigation. Relatively little is spent on testing.
Meanwhile, large swaths of the country are not subject to any discrimination testing. No private fair housing groups operate in Kansas, Colorado, New Mexico, Arkansas, Wyoming or South Carolina. In other parts of the country, such as Louisiana, just one housing group covers an entire state.
Officials at non-profit groups say most of the testing that is done is in response to complaints. Tight resources mean they do not work to bring to light previously unknown individuals or companies that systematically discriminate, but rather to build a case on behalf of people who say they were victimized and who want to file a case.
Freiberg said that approach is unlikely to detect the larger patterns of discrimination or catch serial, systemic perpetrators. At his organization, Freiberg begins his inquiries with sophisticated mapping software that identifies enclaves in New York City where the racial patterns of housing conflict with area demographics and income.
When he identifies a suspect neighborhood in what is the nation's third most segregated city, Freiberg sends in teams of professional actors to work as testers.
Adrienne, an actor and director, joined the testing program in 2005. She didn't expect the gig to last because she doubted they'd find much discrimination.
The 45-year-old black woman grew up on a Brooklyn block that, she said, evoked the multi-cultural ideals of Sesame Street. Her two best childhood friends were Jewish and Puerto Rican.
Freiberg agreed to allow Adrienne to describe her experiences as a tester as long as her full name was not published. She said her work has forever changed her view of a city she once viewed as a melting pot, and she remains particularly haunted by a case she investigated three years ago.
Freiberg had tapped Adrienne to test in an area of Queens he wanted to target because it was just 3 percent black. The borough, however, was 17 percent black and the entire city 27 percent black. Armed with a recording device, Adrienne headed to a leafy block in Astoria to ask about a renting an apartment in a well-maintained 72-unit building.
"Hi, my name is, Adrienne," she told the super, offering her hand. "How are you?" he said, introducing himself as Louie.
Adrienne asked if any apartments were available. She needed something, she said, by the first of the month. In the recording, Louie Dodaj seemed regretful as he explained that the only open apartment had just been rented. He politely answered each of Adrienne's questions, took her number and promised to call when something opened up.
Adrienne remembers feeling certain that Dodaj was sincerely trying to help her, that he "would have totally put me in that apartment if he'd had one." Less than 20 minutes later, a white actor asked Dodaj about renting an apartment. "Want to take a look?" he asked.
Though the apartment had sat vacant for more than a month, it was the third time Louie had been caught on tape turning black testers away while just a few moments later welcoming white ones with similar backgrounds, credit and income.
With evidence from Adrienne and others, the Fair Housing Justice Center sued the property owner, Broadway Crescent Realty, for housing discrimination. In November 2011, the non-profit settled the case for $341,000 and the company's promise to submit to monitoring and set up new procedures to insure that its 30 properties comply with the Fair Housing Act.
A representative at Broadway Crescent Realty said the company would not comment on the case. Dodaj's attorney also declined to comment, and attempts to reach Dodaj were unsuccessful. The company and Dodaj denied wrongdoing in the settlement documents.
Adrienne said she's disheartened by the experience of being politely denied housing again and again and can't understand why the federal government is not doing more to root out a problem that seems so pervasive.
"I can't change the color of my skin. I can't change your opinion about that," she said. "Someone has to have a way of finding out in order to help me fight it, because there wouldn't have been a way for me to know on my own. That's why it keeps happening, because there is no consequence."
Over the past several years, Freiberg's organization has brought cases in neighborhoods across New York City. It settled a suit with a Bronx apartment building and its real estate agent for steering away black buyers. It brought a case against a Brooklyn landlord who could not prove he had ever rented to an African American in 40 years. The center also reached a settlement in Brooklyn with a real estate company that had refused to serve black renters.
Testing was the crucial element in each of these cases, Freiberg said. It provided indisputable, tape-recorded evidence that housing professionals were turning away Adrienne and others of color while offering the same properties to white home seekers.
"I Would Forever Be in Court"
Most Americans who think they've experienced housing discrimination do nothing, according to research, because they doubt they can prove their cases or they lack faith that the federal government will enforce the law. A 2006 HUD study found that just one percent of the black Americans who believed they had faced housing discrimination filed a complaint.
Folayemi Agbede ended up among the 99 percent. As a junior at Northwestern University in 2007, she recalled, she was apartment hunting in a largely white neighborhood in nearby Chicago when she ran into a couple who said they'd just vacated an apartment. They told her the landlord had asked them to help recruit a new tenant. But when Agbede called the landlord's office from the couple's living room, a woman answering the phone tersely told her the unit was gone. No, she was told, she could not speak directly to the landlord.
Agbede remembers hanging up, sure that her race had cost her a place to live and burning with humiliation.
Here she was, she explained, educated, middle class, capable of paying the rent, but she couldn't even get a foot in the door — literally.
Agbede considered filing a complaint but did not. Instead, she did what most people do when they have a tight deadline to find a place to live. She moved on.
"How can I indicate that I think someone lied to me on the phone, that I believe this person knew I was black, and they'll take it seriously enough to investigate and invest their resources?" said Agbede, now a graduate student at American University in Washington, D.C. "I was quite hurt, but I swallowed it."
When Agbede moved there to earn her master's degree, she chose to live in a mostly black neighborhood.
Jesus Padilla reacted similarly after being turned away from a new subdivision being built in a small community nestled in Central California's wine country. He'd seen the homes advertised in a local newspaper and was attracted to the good schools, golf course and ample parks and trails.
But when he went to the sales office, he recalled, the saleswoman told him the builder had run out of money and canceled plans to build additional homes. No homes were available, she said. Not now, and not in the future.
"I just felt kind of cold, so I left," he said. "It wasn't, 'Gee, I am sorry, we ran out of money.' It was, 'Get lost.' I was feeling angry, but I thought, 'If you don't want my business, screw you.'"
Padilla, who was born in Mexico City and came to the U.S. when he was seven, said he had worked ceaselessly to speak English without an accent. A clinical psychologist, he said he could easily afford the mortgage. None of that mattered, he recalled, and it stung.
Over the coming months and years, Padilla, now 56, said he continued to see advertisements for the subdivision and watched as the construction continued apace. By then he'd bought another house, and though he thought about filing a complaint, he doubted it would make a difference.
"It's a law that is extremely difficult to enforce because it is difficult to prove," he said. "They might say maybe the lady didn't like me because I was ugly. Filing a complaint really doesn't matter."
We invited readers who believed they'd experienced housing discrimination to tell us their stories. Several said they did not file complaints partly because discrimination is so commonplace. "If I reported every instance of discrimination I faced I would forever be in court or working with some third party," wrote one reader. "I feel as though I have to pick and choose my battles."
Opposition From Landlords
Agbede and Padilla were right to think they'd get little help from HUD. Even the people who file complaints can't expect HUD to conduct or commission the testing often needed to prove their cases.
HUD's own data shows that non-profits investigate just one-tenth of the cases brought to HUD and to local and state civil rights agencies. But these non-profits account for 85 percent of these agencies' cases that include testing evidence. A 2012 HUD budget report said the "enforcement work and testing" by the groups "significantly strengthen complaints filed" and that cases assembled and brought to HUD by the non-profits are seven times more likely to result in a discrimination finding than complaints victims file directly with HUD and other government agencies.
Records show that government civil rights agencies dismiss far more claims than they settle or prosecute, typically for lack of evidence. Freiberg compares the government agencies' reluctance to test to a law enforcement agency refusing to use fingerprints or DNA analysis.
"Testing takes away the doubt of what is happening," explained Shanna Smith, president of the National Fair Housing Alliance. "If you come to me and file a complaint, it is your word against the landlord's. The testing introduces objective fact finders, and it either verifies what you told me as a complainant or it dismisses it."
LaDonna Burns, an intake analyst at Freiberg's Fair Housing Justice Center, said some people have resorted to trying to perform their own stings. They've sent white friends to confirm whether an apartment has really been taken, or they've made their own scratchy recordings of discriminatory comments.
Rep. Al Green, a Texas Democrat, has been trying to address the government's lax enforcement of the housing law for five years. "I understand what invidious discrimination looks like, what it smells like. I understand how it hurts people, how it hurt families," Green said in an interview.
In 2007, Green introduced the Housing Fairness Act which would require HUD to invest $20 million in a national program of systemic testing and discrimination research and would provide another $22 million to non-profit enforcement groups.
"In this, the greatest country in the world, is it something we can curtail? We have the tools to do it,'' Green said. "The question boils down to: Do we have the will to do it?''
The answer so far is no.
The bill, which Green reintroduced in 2009 and in 2011, has failed to make it out of the House Financial Services Committee. He said he'll introduce it again in the coming session.
HUD favors Green's bill, with John Trasvina, HUD assistant secretary for fair housing, calling testing "an indispensable part of fair housing enforcement."
But many landlords and realtors oppose it. The National Multi Housing Council and National Apartment Association, industry groups representing landlords, sent a representative to testify against the bill in 2010. "I am sure it will come as no surprise that the apartment industry does not exactly embrace additional testing as the best means to combat housing discrimination," Jeanne Delgado, a vice president at the Multi Housing Council, told a hearing of the subcommittee on Housing and Community Opportunity.
"There seems to be an underlying assumption that fair housing testing equals effective enforcement,'' Delgado testified. "Increasing the number of tests just to increase the number of complaints is short-sighted and misses the goals of reducing discrimination."
Calling testing programs outdated and unfair, she said the key to reducing housing bias is better education programs. The council declined interview requests.
Freiberg said HUD does not have to wait on Congress and could launch its own testing program by reallocating money from its existing budget. But Julian, the former HUD assistant secretary, said opposition to testing is a political reality and predicted Congress would block any HUD budget that included funds to carry out testing directly or commission more of a substantial amount of new testing.
As for Claire Rembis, she believes that without testing, HUD would have doubted her story. "There would have been. 'Was she or wasn't she, did she or didn't she?'" she said.
Even though she is among the lucky few who proved their case to HUD, the discrimination scarred her. "I didn't think it could happen to me. I figured we're in Michigan, we are not in the South, and I am a human being," Rembis said. "I would think you knowing who I am would be more important than who I look like."
She has lived in white communities all of her life and said she never thought much about her race. But when her family last moved, she said she stayed home and let her husband house-hunt alone so that landlords wouldn't get the chance to see her or her children.
The 3,000-square-foot Hudson home was remodeled and spacious with a sprawling wooded lawn. The Rembis family ended up in a run-down, 1,100-square-foot Warren, Mich., bungalow with peeling linoleum, squeezed between two other homes on narrow lot.
Tell us your story: We discovered the stories of Folayemi Agbede and Jesus Padilla by inviting readers to share their experiences around housing discrimination. Help us continue our investigation into fair housing by telling us about yours.
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