The right to equal opportunity in housing is ensured not only by the Fair Housing Act, but also by state and local laws. The U.S. Department of Housing and Urban Development (HUD) provides Fair Housing Assistance Program (FHAP) funding annually on a noncompetitive basis to state and local agencies that enforce fair housing laws that HUD determined to be substantially equivalent to the Fair Housing Act.
Substantial equivalence certification takes place when a state or local agency applies for certification and HUD determines that the agency enforces a law that provides substantive rights, procedures, remedies and judicial review provisions that are substantially equivalent to the federal Fair Housing Act. Typically, after a certification determination, HUD will refer complaints of housing discrimination that it receives to the state or local agency for investigation.
We have developed a two-phase procedure for the determination of substantial equivalence certification. In the first phase, the Assistant Secretary for Fair Housing and Equal Opportunity determines whether, "on its face," the state or local law provides rights, procedures, remedies and judicial review provisions that are substantially equivalent to the federal Fair Housing Act. An affirmative conclusion that the state or local law is substantially equivalent on its face will result in HUD offering the agency interim certification. Interim certification lasts for up to three years. During the three years of interim certification, the agency builds its capacity to operate as a fully certified substantially equivalent agency.
In the second phase, the Assistant Secretary for Fair Housing and Equal Opportunity determines whether, "in operation," the state or local law provides rights, procedures, remedies and the availability of judicial review that are substantially equivalent to the federal Fair Housing Act.
An affirmative conclusion that the state or local law is substantially equivalent both on its face and in operation will result in HUD offering the agency certification. Certification is for a term of five years.
During the five years of certification, the agency's ability to maintain certification will be assessed. After the five years of certification, if the Assistant Secretary determines that the agency still qualifies for certification, HUD will renew the agency's certification for another five years.
Substantial equivalence certification presents numerous advantages to state and local governments, parties to housing discrimination complaints and the general public. The advantages include funding availability, local complaint processing under a substantially equivalent law, and opportunities for partnerships that affirmatively further fair housing.
Responsibilities of Recipients:
The FHAP is intended as an intergovernmental enforcement partnership between HUD and the state or local agencies. As in any partnership, both parties must contribute to the success of the program.
While HUD provides significant resources to FHAP agencies in the form of training, technical assistance and funding, the FHAP agencies must demonstrate a commitment to thorough and professional complaint processing. This includes all phases of complaint processing, from accurate identification of issues at intake, through complete and sound investigations, to following through on administrative or judicial enforcement to ensure that victims of unlawful housing discrimination are fully compensated and the public interest is served. FHAP agencies should also work to develop relationships with public, private, and non-profit organizations in a grass roots approach to making fair and open housing a reality.
Of equal importance, the political jurisdictions in which they operate must understand their own commitment and must support the existence and the work of the FHAP agencies. Funding provided by HUD is not intended to cover 100 percent of the costs of the FHAP agencies’ operations, therefore local resources must be provided by the jurisdiction to their respective FHAP agencies. Resources from the jurisdiction include not only funding but also the legal resources necessary to pursue administrative and/or judicial enforcement.
state or local agencies interested in participating in the FHAP should also consult the specific requirements enumerated in 24 C.F.R. § 115.307.
Interim and Certified Substantially equivalent agencies may be eligible to participate in the Fair Housing Assistance Program (FHAP). FHAP permits HUD to use the services of substantially equivalent state and local agencies in the enforcement of fair housing laws, and to reimburse these agencies for services that assist us in carrying out the spirit and letter of the federal Fair Housing Act. A variety of FHAP funds are available to agencies with substantial equivalence interim certification and certification.
Complaint Processing Under a Substantially Equivalent Law
Substantial equivalence certification results in housing discrimination cases having the benefit of state or local complaint processing. At the same time, the process assures that the substantive and procedural strength of the federal Fair Housing Act will not be compromised.
Generally, when HUD receives a complaint and the complaint alleges violations of a state or local fair housing law administered by an interim certified or certified agency, we will refer the complaint to the agency for investigation, conciliation and enforcement activities. Fair housing professionals being based in the locality (or the same state, district, possession or territory) where the alleged discrimination occurred benefits all parties to a housing discrimination complaint. These individuals often have a greater familiarity with local housing stock and trends. In addition, the fair housing professional's closer proximity to the site of the alleged discrimination may lead to greater efficiency in case processing.
While certification results in a shift in fair housing enforcement power from the federal government to the state or locality, the substantive and procedural strength of the federal Fair Housing Act is not compromised. The FHAP is a partnership between the federal government and state and local agencies to provide protection to the public against discrimination in housing.
Partnerships that Affirmatively Further Fair Housing
Certified agencies may be eligible for funding that can be used to partner with private fair housing organizations. By drawing on the strengths of private and public fair housing organizations, such partnerships can result in effective efforts to combat housing discrimination.