Use of Housing Bias Testers Seen as Powerful Yet Controversial Tool
A neatly dressed couple enters a suburban rental complex, looking to lease a two-bedroom apartment. They are immediately greeted and ushered off to view an available unit. Hours later, a similar couple is told nothing would be available for months.
What’s going on here?
For one thing, the first couple was white and the second African American. And neither actually wanted to rent an apartment. Rather, they were testers enlisted by the Justice Department to ferret out cases of housing discrimination.
Between them, they caught the owners of the Magnolia Apartments in Los Angeles red-handed. Within a year of the 1992 filing of a federal complaint, the landlords agreed to a $100,000 settlement.
This, extraordinarily, was the first time the government had successfully used housing testers--the most powerful weapon at its disposal, but also a very controversial one--to combat bias in the nation’s housing industry.
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“Everybody says we should have strong antidiscrimination laws,” said Paul Hancock, chief of the housing and civil enforcement section in the Justice Department’s Civil Rights Division. “Testing is a way of showing how that occurs, because so many people don’t believe it is really happening.”
Even without using testers, the Justice Department achieved a record settlement last week in a housing discrimination case in Mobile, Ala. Mitchell Brothers Inc., a large apartment rental firm accused of turning blacks away from upscale buildings, agreed to pay $1.8 million.
Until 1991, when Sen. Orrin G. Hatch (R-Utah) introduced legislation to require the use of testing to enforce fair housing laws, the government had been content merely to support suits brought by private parties and to negotiate with suspected offenders.
Hatch’s legislation had the desired effect, even though it did not become law. The Justice Department began aggressively enforcing laws against housing bias, and has continued to do so.
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“We don’t lose very many cases,” Hancock said, noting that testers return several times to the targeted landlords to establish a pattern of bias. “I don’t bring a housing discrimination case to just go after the one case,” he added. “I want to send a message about fair housing policy.”
Officials say the testing program currently is operating in about 12 U.S. cities, which they decline to identify to avoid tipping off realty agents and landlords suspected of illegal discrimination.
Housing industry analysts and federal law enforcement officials say, however, it is more likely that the government is focusing on such cities as Los Angeles, Detroit and St. Louis, which do not have strong, community-based fair housing agencies.
In some other cities, notably Chicago and Atlanta, private fair housing groups sprang up to challenge suspected bias after the 1968 Fair Housing Act made it illegal to withhold housing to people on the basis of race, national origin or family status.
Unlike other civil-rights provisions that outlawed racial discrimination in restaurants and public transportation, housing bias was more difficult to see--and to prove. The mere fact that housing was denied to a black or a Latino is not by itself proof of discrimination.
That is why the Justice Department uses testers: matched pairs of prospective home buyers who are trained to be as alike as possible in every way but one. By making skin color the only distinguishing factor, officials could make a credible case against those who denied homes to blacks and Latinos.
Despite challenges from the housing industry--which claimed that private agencies had no legal standing to bring suits based on testimony provided by testers who did not really want to buy or rent a home--the courts repeatedly embraced the technique as valid.
“The whole purpose of the testing program is to generate evidence that discrimination has occurred,” said Bob Butters, who for 11 years was deputy general counsel for the National Assn. of Realtors. “When that evidence is available, it is extremely powerful.”
A growing body of academic literature has focused on housing discrimination as a root cause of racial unease. A nationwide audit conducted by the Urban Institute, a Washington-based public policy and research organization, in 1991 found that blacks and Latinos encountered discrimination at least half the time they tried to purchase or rent a home.
In the 1995 book “Closed Doors, Opportunities Lost,” John Yinger, a professor of economics and public administration at Syracuse University, estimates that blacks and Latinos pay an average “discrimination tax” of about $3,000 every time they search for a house to buy.
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“Every three years the black community implicitly pays out $7.9 billion and the Hispanic community another $4.4 billion in the form of higher search costs and lost housing opportunities,” he wrote.
For years, the government resisted testing for housing bias--fearing that it would be thrown out in court as a form of entrapment. But now even realty groups have dropped their opposition.
