Rigel Oliveri

Getting Civil Rights Complaints to Court Starts With Recognizing Civil Rights Violations

This is my first contribution to Tort Deform, and I come to these issues from a different perspective. For years, I was a government civil rights lawyer, handling housing discrimination cases in the Civil Rights Division of the Department of Justice. Now I teach law school courses on anti-discrimination law in housing and employment.

Despite teeth-gnashing by conservatives and implausible horror stories (emphasis on "stories") about anti-discrimination litigation run amok, the truth is that discrimination - particularly housing discrimination - is so difficult to identify that all but the most egregious cases are unlikely to be brought in the first place.

Take, for example, a situation in which a black applicant for an apartment is told that nothing is available. In fact, there are plenty of available units; the landlord has simply lied because she does not wish to rent to black person. If the landlord has been polite - and most recognize by now that they must be - the applicant will have little reason to suspect that he has been the victim of discrimination. The majority of people simply go on their way and keep looking. Estimates of the likelihood that a black or Hispanic person will experience discrimination in the private housing market vary from 14% to 53% of the time.

These difficulties are mitigated somewhat by the existence of government and non-profit fair housing agencies which operate testing programs. A good test will send a pair of testers with substantially identical characteristics - age, gender, number of children, etc. - except for the characteristic being tested for, to inquire about housing at the same place, at roughly the same time. If a test reveals discriminatory treatment, the agency can file a lawsuit on behalf of itself and its individual testers. These types of lawsuits are often criticized for bringing charges without a "bona fide" victim. In the absence of a whistle-blower employee or an overt discriminatory statement by the landlord, however, they may be the only way to ferret out evidence of very real discrimination.

But there currently aren't nearly enough resources for a comprehensive public and private enforcement approach. The Housing Section of the Civil Rights Division has about 40 attorneys in Washington, DC to cover the whole country. DOJ's testing program, while excellent, has generated an average of only 6 cases per year over the past 13 years. Non-profit housing agencies rely heavily on federal funding and grants which have been cut in the last few years and are likely to be cut further. Several agencies, including Chicago's venerated Leadership Council for Metropolitan Open Communities, which was started by Martin Luther King, have closed recently. The fair housing movement perseveres, but these are definitely tough times.

Events of the last year have illustrated the important role that testing and non-profit fair housing agencies can play. We all know about how, in the wake of Hurricane Katrina, hundreds of thousands of blacks fled New Orleans and other damaged Gulf Coast areas. What most people don't know is that a tremendous number of them experienced pervasive housing discrimination. The National Fair Housing Alliance conducted a series of tests of large apartment complexes in 17 cities in the five states that received the greatest number of evacuees. White and black testers posed as Hurricane Katrina evacuees, specifically identifying themselves as such. The tests were "sandwich style," meaning that the white tester would make an inquiry, then a black tester, and then another white tester as a control.

The results bordered on the unbelievable: black testers experienced discrimination 66 percent of the time. The discrimination took several forms. Blacks were told there were no vacancies, while whites were told there were plenty. Blacks were quoted higher rent prices and security deposits than whites. Some whites were even offered special incentives - one complex told the white testers that, because they were evacuees, the $500 application fee would be waived plus they would get a free 26" LCD television. The similarly-situated black testers were not told of this special deal. Other times, the black testers simply were not called back despite making repeated inquiries.

(Lest anyone think these tests were some kind of fluke, America's disappointingly racist response to Hurricane Katrina was on display in the notices and advertisements that were posted to Internet sites that matched housing providers and private citizens who wanted to help with evacuees who were in need of housing. Many postings, including ones on a site sponsored by FEMA, offered housing to whites only.)

NFHA has filed administrative complaints against the five worst offenders, but this clearly represents a tiny fraction of the enforcement that needs to be done. Inspired by the plight of Katrina victims, DOJ has pledged to step up its testing program under "Operation Home Sweet Home." But even if it doubles it efforts - to 12 testing cases a year - this will be a drop in the bucket.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please contact cdugger@drummajorinstitute.org.

Rigel Oliveri: Author Bio | Other Posts
Posted at 12:27 PM, Sep 20, 2006 in
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