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Communications Directions

In some respects, there has been a significant amount of research recommending message directions on issues of race. However, much of this research is limited in its utility, either because it was designed to accomplish a narrow goal (and therefore is ineffective or even harmful for broader goals), or because its focus is so broad it can be difficult to demonstrate effectiveness in advancing specific policy objectives. Most important, even those who have studied and recommended framing directions on these issues for some time are struggling to refine their recommendations and prove they can have an impact in policy debates. Much work still needs to be done.

A consistent question in communications strategies to build support for policies that will address racial disparities is whether to deliver messages that are explicitly “about” race, knowing that some explicit racial messages reduce support for equitable policies. Should advocates focus on race or class, or on race or place?

Highlighting or avoiding race

In a paper prepared for Ohio State University’s Kirwin Institute, “The Dangers of Not Speaking About Race,” Philip Mazzocco (2006) suggests that highlighting race, a color-conscious approach, can be effective in reducing discrimination and lead to support for racial policies. Though this particular research is limited to college students and should be viewed with caution, the general perspective is shared among some social scientists who suggest race consciousness is a necessary precursor to problem solving. (For more on this see Social Science Literature Review: Media Representations and Impact on the Lives of Black Men and Boys by Topos for The Opportunity Agenda, October 2011.)

From a communications perspective, much of the research sponsored by the FrameWorks Institute has cautioned about framing the conversation as being about “race” or “racism.” Strategists often promote messages that avoid race and instead focus on a broader value or connection (e.g., opportunity for all; disparities in place, not race). Using a series of frame experiments, some explicitly referring to race, some not, Gilliam and Manuel (in The Illogic of Literalness: Narrative Lessons in the Presentation of Race Policies, 2009) conclude that communicators should start with core values, not race:

…while it is true that racism as a value did have some positive effects, they were, in the main, about half as effective as exposing people to core American values that did not cite historical discrimination as an explanation for disparities in society. The fact that more generalized treatments were able to elevate support for policies that were specifically targeted to racial and ethnic minorities makes these effects even more compelling. It suggests a kind of disjunctive irony – in order to garner support for race-based policies, advocates need to begin the conversation by invoking broader core American values. Being literal about racism in the public dialogue about race is not the most effective way to build public will for progressive race policy reforms.

While starting the conversation in a different place may have utility, avoiding race completely is unlikely to achieve targeted racial equity policies. For example, based on research designed to develop effective communications for affirmative action, Westen Strategies, in “Neutralizing the Affirmative Action Debate” (2009), recommends the following as the top-performing message against the opposition message in dial testing. This message avoids a focus on race (instead highlighting gender and age discrimination), denounces discrimination in all its forms, and positions the issue as being about “flexibility to ensure fair treatment” rather than “quotas.” It is easy to see how the following text would score well on a dial test — it is hard to disagree with. But it is unclear whether it builds support for affirmative action more broadly.

In this country, we don’t believe in discriminating against people, regardless of their color, ethnic background, sex, or age, and government shouldn’t tie the hands of employers or colleges with inflexible rules that prevent them from making sure every qualified candidate gets a fair chance. We all know that women don’t get hired or promoted in a lot of companies the same way as men, particularly if they took time off to raise their kids, [and all of us should care about that] whether we’re women, fathers, or husbands. We all know that employers look differently at older workers than younger ones, and we shouldn’t be telling a 55-year-old guy, [“Sorry, there’s no place for you here,”] when he got laid off from a job. And we all know that underfunded rural or urban schools with crumbling walls and 1980s textbooks put kids at a disadvantage, whether they’re black, white, or brown. We need to let business and educational leaders act responsibly and flexibly to make sure everyone is treated fairly, without resorting to quotas or one-size-fits-all programs that don’t do right by anyone.

Avoiding race may be an attractive short-term strategy, but over the long term it may also avoid the central issues and lead to no significant change in public understanding or culture.

Two other promising directions that have received some limited attention are: begin with structures/ systems first and then connect to race; and emphasize positive connections and interdependence among racial groups rather than differences.

Structures/Systems

One promising approach is to highlight a broken or flawed system of which all Americans are part, and then bridge to the dynamics of race. For example, Americans value education, want to improve the education system, and recognize that urban, black communities often have the weakest schools. Problematically, without careful framing, this approach can lead to blaming the individual (thinking that parents are at fault) or toward highlighting another problematic dynamic (such as “class” or “poor people”), rather than focusing on weaknesses in the system.

One tool that has been identified that keeps attention focused on systems and resources rather than individuals is the “Prosperity Grid” simplifying model. The basic idea is to communicate a

metaphorical grid that underscores the role of resources and institutions in creating opportunity and prosperity. Communities, including the black community, for example, can be characterized as having more or less access to the resources afforded by the Prosperity Grid. Aubrun, Brown, and Grady, in their 2006 work, Moving Beyond Entrenched Thinking About Race: The Homeowner/Stakeholder Effect, note that:

Experts say the most prosperous communities have thriving institutions that provide opportunity, like quality schools, community banks and so on. Think of it as a Prosperity Grid, where everyone, all parts of the community, can plug into and benefit from these institutions of opportunity…

Another approach that keeps attention focused on systems and resources, while advocating the value of opportunity, demonstrates an ability to lift support for policies:

Lately there has been a lot of talk about social conditions in America. Some people believe that African-American communities still face many barriers to opportunity. They have more declining school budgets, restrictive lending practices, and fewer health professionals. The American Dream has always relied on creating an environment where everyone has an opportunity to achieve — including African Americans. According to this view, we need to devote more attention to ensuring that every community — including African American communities — provides an opportunity to succeed for all its residents. This will result in a better quality of life and future prosperity for the nation as a whole. Please tell us if you have heard this explanation of why we should allocate societal assets to improving conditions in African American communities. (Gilliam & Manuel, 2009)

It should be noted that while Gilliam and the FrameWorks Institute have recommended a number of frames to address issues of race, in their survey research, the message listed above was the only one of several messages tested that lifted policy support while also bridging to a conversation about race. Other messages that didn’t test well in the survey should still be considered promising approaches, but ones that need further development.

Connections and interdependence

A dynamic that hinders broad-based support for change is people’s inability to see their connections to others. Sixty percent of white respondents reject the idea that what happens generally to black men in this country will have something to do with what happens in their own life. (Washington Post/ Kaiser Family Foundation/Harvard University, 2006) Cueing zero-sum thinking increases the sense that members of other racial groups are competitive threats and is likely to undermine support for policies to address disparities. In “Perceptions of Racial Group Competition,” Bobo and Hutchings (1996) wrote:

Perceptions of competitive group threat thus involve genuinely social-psychological processes that are not reducible to a single cause nor to purely individual-level psychological dynamics… We find that perceptions of competition and threat from other racial groups can be reliably measured. Such perceptions, while not acute in our data, are fairly common. Substantial percentages (though typically less than 50 percent), of Whites, Blacks, Latinos, and Asians perceive members of other groups as zero-sum competitive threats for social resources… Perceptions of group competition tend to be based on a mix of racial alienation, prejudice, stratification beliefs, and self-interest. (Bobo & Hutchings, 1996)

Instead, can communications create a sense of shared fate, a sense that what happens to one segment of society affects all of society? Individualistic thinking leads to competition between the races:

However, rather than decreasing perceptions of threat, individualistic thinking tends to encourage Whites to view Asian Americans and Latinos as competitive threats, to encourage Asians to view Latinos as competitive threats, and to encourage Blacks and Latinos to view Asians as competitive threats. (Ibid.)

So can creating a sense of interdependence alleviate competition between the races? Survey experiments with affirmative action policy suggest that redefining the issue as one that affects society more broadly helps build support even for subgroups.

For example, with no priming, 63 percent support affirmative action programs for women and just 50 percent support affirmative action programs for racial minorities. When primed with a question about affirmative action for women first, support for affirmative action for minorities increased by 7 points. This occurs because people respond based on criteria for the first question they hear, then end up using the same lens to judge the subsequent question:

The theoretical explanation for this shift in views is what Schuman and Presser (1981, p. 28; also see Moore 2002, pp. 82–3, for an operational definition) term “consistency” effects. When asked first about either type of AA [affirmative action] program before being asked about the other type (what Moore termed a “non-comparative context”), people make their evaluations based on whatever criteria they bring to mind. But when asked about the second type of AA program after having been asked about the first type (a “comparative context”), many people will make their evaluation of the second type of AA program in comparison with their evaluation of the first. Thus, many respondents who first said they support AA programs for women then feel obligated (when asked the second question) to express support for AA programs targeted to racial minorities. Similarly, people who first said they oppose AA for racial minorities are then less inclined to turn around and support it for women (when the latter question is asked second). The comparative context thus elicits a “norm of reciprocity” (Schuman and Presser 1981, p. 28) leading to more consistent expressions of support for each type of AA program than are found in the noncomparative context. (Wilson, 2010)

Some suggest that people view gender inequality through a lens of shared interest (we are all affected by gender inequality), while racial inequality is not typically viewed through an interdependent lens (Winter, 2008), so perhaps the prime puts people in an interdependent mindset rather than a competitive mindset.

In addition, qualitative testing of an interconnectedness approach shows promise in helping people see that addressing racial disparities benefits all of society. In quantitative research that followed the qualitative study, however, analysis demonstrated that the following prime had effects on support for child and youth development policy, but not other policies:

Lately there has been a lot of talk about how we are all connected in our country. Some people believe that we will only succeed when all parts of the nation are in good shape. Problems of poor health and education that happen in one part of the nation end up affecting us all. For this reason, moving ahead as a country requires promoting programs and improving services everywhere so that we all benefit from our interconnection. According to this view, all communities must be able to realize their potential and contribute to the country. Have you heard this explanation of why we should allocate societal assets to recognize the connections among communities? (Gilliam & Manuel, 2009)

Note also that this prime included no racial cues, so it is unclear how it would perform in the context of a conversation about racial disparities. Interconnectedness is core to the progressive narrative and will be an important element of conversations on race. However, it is a direction that needs more development and testing before communicators can use it with confidence.

Communicators should be cautious about how they deploy a connectedness message. Sometimes strategists recommend messages that cue negative connections using fear, failure, or prevention (e.g., educate now or pay for prison later). Using racial problems as a threat to meet our short-term policy goals is likely to exacerbate the long-term problems in perception. Note the following examples from a series of framing experiments. The general prevention prime was effective in lifting policy support, but when it was translated to a prevention prime emphasizing race (with negative connections) it lost effectiveness:

Lately there has been a lot of talk about prevention in our country. Some people believe that we should prevent health and education problems before they occur. When we don’t address them, they eventually become worse and cost more to fix. For this reason, it is important to promote programs and improve services that keep problems from occurring in the first place. According to this view, we can save lives and money if we make good prevention programs easier for everyone to access. Have you heard this explanation of why we should allocate societal assets to prevention?

Lately there has been a lot of talk about social conditions in America. Some people believe that preventing problems in African American communities is important because they will eventually become everyone’s problems. Preventing declining school budgets, restrictive lending practices, and a scarcity of health professionals in African American communities will prevent worse problems in the future. According to this view, we can prevent further damage to our nation by devoting more resources to addressing these problems in African American communities before they become more serious. Please tell us if you have heard this explanation of why we should allocate societal assets to preventing problems affecting African American communities. (Gilliam & Manuel, 2009)

Solutions orientation

Finally, a “best practice” that is often overlooked by communicators is the importance of highlighting solutions. Advocates can easily assume that if people just know how terrible a problem is, how much of a crisis is on the horizon, they will rise up to fix it. Instead, people can easily become paralyzed with inaction because they become overwhelmed by seemingly intractable problems. They cannot imagine what the solutions could be. Lynn Davey offered this idea in her 2009 FrameWorks Institute message brief, “Strategies for Framing Racial Disparities”:

One of the common mistakes made by advocates in all fields is the tendency to bury solutions messages deep in their communications material, while routinely according inordinate attention to defining the problem. … When people are presented with effective solutions, they are able to more clearly understand where the system breaks down and how we might fix it.

Reorienting communications around solutions, rather than problems, will go a long way toward building support for public policies.

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Conclusions and Recommendations

There is a significant body of work exploring public opinion of race relations, experiences with discrimination, differences between races in how they understand this issue, and so on. Yet most research largely seeks to understand the “snapshot” of public opinion — where opinion currently stands and the variables that influence a particular view — rather than how to change opinion.

Still, this overview provides important insights about how people understand the nature of the problem. Implicitly, discrimination is often viewed as being about relationships and personal interactions, not systemic bias or policy. Disparities can easily be blamed on lack of personal ambition or hard work. The role of systems and structures has to become more apparent if we hope to spark broad-based support for policy change.

Importantly, issue conversations often trigger competition between races, as though success is zero-sum and what is “given” to one group is “taken” from another. Instead, we need to find communications strategies that join people in common purpose and shared fate, while not erasing race in the process.

Specifically, communicators should consider the following recommendations.

Conduct new research and message testing, designed with precise, short-, mid-, and long-term goals in mind. The limited message development that has been done on these issues tends to lie at either end of a continuum. Either it is done in service of a narrow goal (e.g., pass “bill X”) or a vague, ill-defined goal (e.g., talk about race). Or, it has not yet proven its ability to create change. We need to define specific goals relevant to improving the achievement of black males to which we can hold our strategy accountable.

Sharpen objectives and strategies for different audiences. Clearly this research suggests different starting points for the conversation with different racial groups. Black Americans are far more likely to see the systemic flaws that lead to disparities and support government action (though the personal responsibility perspective is gaining ground), while few white Americans even recognize the breadth and severity of traditional discrimination, let alone institutional racism. What is the call to action for core, mobilizable audiences within communities of color? What call to action makes sense for opinion influencers in white communities? These and similar questions must be asked and focused on.

Develop frame flips and unifying narratives. The old storylines have limited ability to gain traction. This analysis points to the need for a frame flip and a unifying narrative to break through deeply entrenched views on these issues. Specifically, new framing on this issue needs to:

Mend the in-group/out-group cycle and establish a sense of “us.”
Reinforce shared fate and interdependence.
Avoid the competitive and zero-sum assumptions that are so prevalent in public perceptions of these issues.
Look for ways to characterize the unique challenges facing black men and solutions to the challenges without inadvertently implying that other groups will have less opportunity, e.g., “breaking down obstacles” instead of “addressing disparities.”

Emphasize effective solutions. Focus on structures, systems, and policies, not personal offenses.
Do not lose sight of or avoid race and racial disparities in the conversation.

Engage audiences around specific issue categories. Harmonize the broad overarching narrative about black male achievement with specific issue categories that most matter to black men – jobs and income, education, and criminal justice. Gains in image and perceptions matter most when they lead to real gains in closing disparities in these areas.

Works Cited

Allstate/National Journal (2011). Heartland Monitor Poll IX, N=1000 telephone interviews with adults nationally, with oversamples of African-Americans (n=305), Hispanics (n=304), and Asians (n=110). May 18-22, 2011. http://www.allstate.com/Allstate/content/refresh-attachments/Heartland_IX_data. pdf.

American National Election Studies (2008). Time Series Study, N= 2,099 – 2,312 adults nationally.

Amodio, David M. (2009). Intergroup anxiety effects on the control of racial stereotypes: A psychoneuroendocrine analysis. Journal of Experimental Social Psychology, 45, 60-67.

Aubrun, Axel, Andrew Brown and Joseph Grady (2006). Moving Beyond Entrenched Thinking About Race: The Homeowner/Stakeholder Effect. The FrameWorks Institute.

Black Youth Project, Center for the Study of Race, Politics, and Culture at the University of Chicago (2005). “The Attitudes and Behavior of Young Black Americans: Research Summary.” http://www- news.uchicago.edu/releases/07/070201.blackyouthproject.pdf.

Bobo, Lawrence, and Vincent L. Hutchings (1996). Perceptions of Racial Group Competition: Extending Blumer’s Theory of Group Position to a Multiracial Social Context. 61 American Sociological Review, 951, 956. http://www.wjh.harvard.edu/soc/faculty/bobo/pdf percent20documents/ PRacial.pdf.

Davey, Lynn (2009). “Strategies for Framing Racial Disparities: A FrameWorks Institute Message Brief.” Washington, DC: FrameWorks Institute. http://www.frameworksinstitute.org/toolkits/race/ resources/pdf/disparitiesmessagebrief.pdf.

Diuguid, Lewis and Adrienne Rivers (2000). “The media and the black response.” Annals of the American Academy of Political and Social Science, 569, 120-134.

Dyck, Joshua J., Laura S. Hussey (2008). The End of Welfare as We Know It? Durable Attitudes in a Changing Information Environment. Public Opinion Quarterly, Vol. 72:589–618.

Gallup Organization trends, with particular attention to surveys fielded Oct. 16-19, 2009 and June 5– July 6, 2008. http://www.gallup.com/poll/1687/Race-Relations.aspx.

Gallup Organization (2007). Survey of 2,388 interviews with national adults, aged 18 and older, was conducted June 4-24, 2007, including oversamples of blacks and Hispanics. http://www.gallup.com/ poll/28417/most-americans-approve-interracial-marriages.aspx.

Gallup Organization for Phi Delta Kappa (2006). June 11–July 5, 2006, n = 1,007 telephone interviews with adults nationally. From the iPOLL Databank, The Roper Center for Public Opinion Research, University of Connecticut. http://www.ropercenter.uconn.edu/data_access/ipoll/ipoll.html.

Gilens, Martin. (1999) Why Americans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy. Chicago: University of Chicago Press.

Gilliam Jr., Franklin and Manuel, Tiffany (2009). The Illogic of Literalness: Narrative Lessons in the Presentation of Race Policies. Washington, D.C.: FrameWorks Institute.

Greenberg Quinlan Rosner (2009). Pew Economic Mobility Survey. January 27-February 8, 2009, n=1000 Respondents (2119 Unweighted), 400 African American Oversample (517 total cases, unweighted), 400 Hispanic Oversample (520 total cases, unweighted), 300 Youth (under age 40) Oversample (497 total cases, unweighted). http://www.economicmobility.org/assets/pdfs/Poll_ Questionnaire.pdf.

Harris Interactive (2009). Committee of 100. January 5 – 30, 2009. N = 1,221 telephone interviews with adults nationally, with an oversample of 206 Chinese Americans. Full Report: http://survey. committee100.org/2009/files/FullReportfinal.pdf Topline Results: http://survey.committee100.org/2009/ files/ToplineResultsfinal.pdf.

Hart/McInturff (2010). The NBC/Wall Street Journal Survey. January 10-14, 2010, n=1,002 adults. http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_Politics/Politics_Today_Stories_Teases/ FI9500.pdf.

Hart/McInturff (2009). The NBC/Wall Street Journal Survey. June 12-15, 2009, n=1,008 adults. http:// msnbcmedia.msn.com/i/msnbc/sections/news/090617_NBC-WSJ_poll_Full.pdf.

Hutchings, Vincent L. (2009). Change or More of the Same? Evaluating Racial Attitudes in the Obama Era. Public Opinion Quarterly, Vol. 73, No. 5 2009, pp. 917-942.

Jost, John T., Jaime L. Napier, Huida Thorisdottir, Samuel D. Gosling, Tibor P. Palfai, & Brian Ostafin, (2007). “Are needs to manage uncertainty and threat associated with political conservatism or ideological extremity?” Personality and Social Psychology Bulletin, 33, 989-1007.

Kaplowitz, Stan A., Bradley J. Fisher, Clifford L. Broman (2003). How Accurate are Perceptions of Social Statistics About Blacks and Whites? Effects of Race and Education. Public Opinion Quarterly, Vol. 67:237–243.

Katz, Irwin, and R. Glen Hass (1988). “Racial Ambivalence and American Value Conflict: Correlational and Priming Studies of Dual Cognitive Structures.” Journal of Personality and Social Psychology 55:893–905.

Link, Michael, and Robert Oldendick (1996). ‘‘Social Construction and White Attitudes toward Equal Opportunity and Multiculturalism.’’ Journal of Politics 58:149–68.

Lipset, Seymour M., and William Schneider (1978). “The Bakke Case: How Would It Be Decided at the Bar of Public Opinion?” Public Opinion 1:38–44.

Mazzocco, Philip (2006). “The Dangers of Not Speaking About Race.” Prepared for the Kirwin Institute, Ohio State University, May 2006. http://www.racialequitytools.org/resourcefiles/mazzocco.pdf.

National Opinion Research Center, University of Chicago (2010). March 15 – August 12, 2010, 2,043 personal interviews with adults nationally. From the iPOLL Databank, The Roper Center for Public Opinion Research, University of Connecticut. http://www.ropercenter.uconn.edu/data_access/ipoll/ipoll.html.

Opinion Research Corporation for Cable News Network & Essence Magazine (2008). March 26- April 2, 2008. N = 2,184 telephone interviews with adults nationally including an oversample of blacks; a total of 1014 African-American respondents. From the iPOLL Databank, The Roper Center for Public Opinion Research, University of Connecticut. http://www.ropercenter.uconn.edu/data_access/ipoll/ipoll.html.

Patchen, Martin, James Davidson, Gerhard Hofmann, and William Brown (1977). “Determinants of Students’ Interracial Behavior and Opinion Change.” Sociology of Education 50:55–75.

Pew Research Center for the People and the Press (2011). “A Tale of Two Fathers.” May 26-29 and June 2-5, 2011. N= 2,006 adults nationally. Includes a Pew Research Center analysis of the National Survey of Family Growth. http://pewsocialtrends.org/files/2011/06/fathers-FINAL-report.pdf.

Pew Research Center for the People and the Press (2010). The 2010 Political Independents Survey, August 25 – September 6, 2010, n=3509. http://people-press.org/files/legacy-questionnaires/658.pdf.

Pew Research Center for the People and the Press and Pew Social and Demographic Trends Project (2009). Racial Attitudes in America II, October 28 – November 30, 2009, whites n=1447, Blacks n=812, Hispanics n=376. http://pewsocialtrends.org/files/2010/10/blacks-upbeat-about-black-progress- prospects.pdf.

Pew Research Center for the People and the Press (2008). Political and Economic Survey, December 3-7, 2008, n=1,489. Topline: http://people-press.org/files/legacy-questionnaires/480.pdf.

Pew Research Center for the People and the Press (April 2007). No Child Left Behind Survey, April 18- 22, 2007, n=1508. Topline: http://people-press.org/files/legacy-questionnaires/337.pdf.

Pew Research Center for the People and the Press (January 2007). The 2007 Values Update Survey, December 12, 2006 – January 9, 2007, n=2007. http://people-press.org/files/legacy-questionnaires/312.pdf.

Princeton Survey Research Associates International (PSRA) for Pew Research Center for the People and the Press (2011). “January 2011 Political Survey.” January 5-9, 2011. N= 1,503 adults nationally.

Smith, Tom W. (1990). Ethnic Images. GSS Topical Report no. 19. Chicago: National Opinion Research Center.

Tesler, Michael and David O. Sears (2010). Is the Obama Presidency Post Racial? Evidence from his First Year in Office, Prepared for presentation at the Annual Meeting of the Midwest Political Science Association, April 22-25, 2010. (Much of this paper appears as Chapter 8 in Tesler, Michael and David O. Sears. 2010. Obama’s Race: The 2008 Election and the Dream of a Post-Racial America. Chicago: University of Chicago Press.) http://mst.michaeltesler.com/uploads/sample_4.pdf.

Tuch, Steven A., Lee Sigelman, Jason A. MacDonald (1999). The Poll – Trends Race Relations and American Youth, 1976 – 1995. Public Opinion Quarterly, Vol. 63:109–148.

Valentino, Nicholas A. and Ted Brader (2011). The Sword’s Other Edge: Perceptions of Discrimination and Racial Policy Opinion after Obama. Public Opinion Quarterly, Vol. 75, No. 2, Summer 2011, pp. 201-226.

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Westen Strategies/Lake Research (2009). “Neutralizing the Affirmative Action Debate.” June 26-30, 2009. Online dial test with 1,200 likely voters nationally.

Wilson, David C. (2010). Perceptions about the Amount of Interracial Prejudice Depend on Racial Group Membership and Question Order. Public Opinion Quarterly, Vol. 74, No. 2, Summer 2010, pp. 344–356.

Wilson, David C., David W. Moore, Patrick F. McKay, and Derek R. Avery (2008). Affirmative Action Programs for Women and Minorities Expressed Support Affected by Question Order. Public Opinion Quarterly, Vol. 72, No. 3, Fall 2008, pp. 514–522.

Winter, Nicholas J. G. (2008). Dangerous Frames: How Ideas about Race and Gender Shape Public Opinion. Chicago: University of Chicago Press.

Yankelovich/Radio One (2007). October – November 2007, N=3400 interviews (web and phone) with black Americans ages 13-74. http://blackamericastudy.com.

Notes:

1. Few surveys include enough interviews to analyze responses by African-American men in isolation, though we include these findings when possible. Further, very few of the surveys in this review offered subgroup analysis among other racial and ethnic groups. Our references to views of other ethnic groups are therefore limited.

2. American National Election Studies (2008); Allstate/National Journal, Heartland Monitor Poll IX (2011).

3. Researchers should have healthy skepticism about whether self-professed views of race and ethnicity tell the whole story. Several dynamics have been shown to influence survey response including social desirability, question wording and context, and perceived race of interviewer. In addition to the results reported on here, readers should look to the Topos social science literature review for The Opportunity Agenda, October 2011, Social Science Literature Review: Media Representations and Impact on the Lives of Black Men and Boys.

4. Using data gathered in 1995, researchers found that white and black respondents dramatically underestimated the racial gap in “out-of-wedlock births” (actual gap in 1995 was 46.1 percent, white and black respondents averaged 16.1 percent and 23.1 percent, respectively); both groups underestimated the gap in “family income” (actual gap was $12,500, white and black respondents estimated $9,410 and $9,500, respectively); both groups underestimated the racial gap in the “average income of male college graduates” with white respondents underestimating the size of the gap more than black respondents (actual gap was $6,600, white and black respondents estimated $2,370 and $5,860, respectively); and finally, white respondents underestimated the racial gap in poverty rates while blacks who responded gave higher than the actual number. (According to Kaplowitz, the actual gap in percent in poverty was 22.3, white and black respondents estimated 17.9 and 25.3, respectively.)

5. The “Black New Middle Class” is defined in the study as follows: “the best educated, most employed and wealthiest segment is mostly between the ages of 25 and 44 and is the most technologically forward segment” of the survey population.

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Reforming HUD’s Regulations to Affirmatively Further Fair Housing

Acknowledgements

We wish to acknowledge the assistance that a wide range of fair housing experts, researchers, and former federal officials provided in the preparation of this report. We are particularly grateful for the input of Roger Bearden, Marianne Engelman Lado, Sara Pratt, Florence Wagman Roisman, and Philip Tegeler.

Executive Summary
Summary of Recommendations

The AFFH Requirement and the Analysis of Impediments Process
Current AFFH Regulations

II. Problems with Current Enforcement

Problems with the AI Process for Jurisdiction-Wide Compliance
Failure to Further Fair Housing in Specific Programs and Activities
Lack of Integration with other Equal Opportunity Provisions

III. Recommendations to Improve the AFFH Regulations

Reforming the Jurisdiction-Wide AI Process
Clear Fair Housing Metrics
Data Collection Guidelines
Improved Public Input Mechanisms
Accountability Measures
Ensuring Fair Housing Compliance in Individual Federally Funded Projects
Elements of the Opportunity Impact Statement

IV. Improving Enforcement and Funding Decisions
V. Incorporating Examples
Appendix: Proposed Regulations

Executive Summary

We are pleased to submit recommendations toward the revitalization of HUD’s duty to administer its programs and activities “in a manner affirmatively to further the policies of [the Fair Housing Act].”¹ This responsibility is crucial to the Department’s mission “to increase homeownership, support community development and increase access to affordable housing free from discrimination,”² and to our nation’s pursuit of greater and more equal opportunity for all.

The economic and social benefits of fair housing and stable, integrated communities for people of all backgrounds are well documented.³ And the principle that federal funds and subsidies administered by the Executive Branch are not to be used for discriminatory purposes is a longstanding and well- accepted corollary to the constitutional guarantee of equal protection under the laws.⁴

Accordingly, the duty to “affirmatively further fair housing” (AFFH) applies not only to programs administered directly by HUD, but also to public and private housing and urban development activities receiving federal funding from HUD or any other federal agency.⁵ With respect to these fund recipients, moreover, the AFFH requirement fits within a broader framework of existing regulations prohibiting all forms of discrimination in federally funded programs and activities.⁶ As such, the AFFH mandate has the potential to trafnsform America’s communities over time and to redress our nation’s troubling legacy of housing discrimination and residential segregation, often at the hands of government.⁷

Yet, despite some important advances over the years, research and experience show that the promise of the AFFH duty has never been fully realized. Existing regulations do not provide adequate specificity, procedures, or accountability measures, especially as they relate to federal fund recipients. Enforcement over the years has been largely passive and, at times, non-existent. And the AFFH obligation has never been adequately integrated with other equal opportunity protections governing federally funded programs.

For these reasons, we are particularly pleased that the Department is engaged in reformulating the AFFH regulations and their enforcement. We believe that each of the shortcomings described above can be overcome through this process, and that federal funding can contribute to the kind of fair and equitable housing that benefits our entire society.

The recommendations that follow focus on HUD’s responsibilities relating to recipients of federal funds engaged in housing and urban development activities. Although we do not address in this report HUD’s direct administration of activities such as the Section 8 voucher program, we support the recommendations made in this regard by the Leadership Conference on Civil Rights and other fair housing and public interest groups.⁸

Summary of Recommendations

Based on a large body of research and experience, we recommend the following changes to HUD’s AFFH regulations and implementation, discussed in greater detail herein, as they relate to federally funded activities:

That the Department monitor and enforce grantees’ jurisdiction-wide affirmative fair housing obligations through a revised Analysis of Impediments process that includes: (a) clearly stated metrics for the assessment of fair housing impediments and actions to overcome them; (b) explicit guidelines for data collection and analysis by HUD and its grantees; (c) modernized mechanisms for public input; and (d) a meaningful system of pre- and post-award review.
That, in addition to the jurisdiction-wide AI process, the Department require fund recipients to conduct and submit periodic assessments of the fair housing and other federally-protected equal opportunity impacts of specific programs and activities undertaken with federal funds.
That both jurisdiction-wide and program-specific processes incorporate the consideration of indicators of housing opportunity supported by established research and experience; and
That the Department complement submission requirements and technical assistance to fund recipients with a rigorous system of periodic, unannounced audits of a subset of applicants and recipients to be chosen through random selection and other factors.

This report describes in further detail each of these recommendations, as well as the considerations behind them and suggested implementation methods. We look forward to working with the Department, as well as with fund recipients and civil society partners, to make these and other changes a reality.

I. The AFFH Requirement and the Analysis of Impediments Process
Section 3608(e)(5) of the Fair Housing Act requires HUD to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of [the Fair Housing Act].”⁹ The Act seeks “to provide, within constitutional limitations, for fair housing throughout the United States”;¹⁰ to “remove the walls of discrimination which enclose minority groups”;¹¹ and to foster “truly integrated and balanced living patterns.”¹² In other words, the Fair Housing Act requires HUD to proactively promote non-discrimination, residential integration, and equal access to the benefits of housing.

Section 3608 imposes an “affirmative” obligation, requiring HUD to do something “more than simply refrain from discriminating . . . or from purposely aiding discrimination by others.”¹³ To the contrary, “[a]ction must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation[.]”¹⁴ Furthermore, HUD has an obligation to act regionally where necessary to further the goal of integrated housing.¹⁵

The mandatory provisions of Section 3608 apply not only to HUD, but also to its grantees.¹⁶ Thus, HUD will have violated Section 3608(d)(5) when it is “aware of a grantee’s discriminatory practices and has made no effort to force it into compliance with the Fair Housing Act by cutting off existing federal financial assistance to the agency in question.”¹⁷

And the requirement applies beyond HUD-funded activities as well, extending to all “programs and activities relating to housing and urban development” that are administered within the purview of Federal regulatory or supervisory authority.¹⁸ These programs and activities include those “operated, administered, or undertaken by the Federal Government; grants; loans; contracts; insurance; guarantees; and Federal supervision or exercise of regulatory responsibility (including regulatory or supervisory authority over financial institutions).”¹⁹ In other words, HUD’s regulations should set out the AFFH obligations applicable to all federal funding entities, including but not limited to HUD itself, as well as their respective grantees.

Executive Order 12892, signed by President Clinton in 1994, provides that “the Secretary of Housing and Urban Development shall, to the extent permitted by law . . . promulgate regulations . . . that shall,” among other things:

(3) describe the responsibilities and obligations of executive agencies in ensuring that
programs and activities are administered and executed in a manner that furthers fair
housing; (4) describe the responsibilities and obligations of applicants, participants, and
other persons and entities involved in housing and urban development programs and
activities affirmatively to further the goal of fair housing; and (5) describe a method to
identify impediments in programs or activities that restrict fair housing choice and
implement incentives that will maximize the achievement of practices that affirmatively further fair housing.²⁰

a. Current AFFH Regulations
In contrast to that robust mandate, current HUD regulations implementing the AFFH duty in the federal funding context provide only a skeletal outline of steps necessary to uphold the duty. For example, HUD regulations governing Community Development Block Grants, 24 C.F.R. Part 570, provide that:

The [Housing and Community Development Act of 1974] requires the state to certify to
the satisfaction of HUD that it will affirmatively further fair housing. The act also
requires each unit of general local government to certify that it will affirmatively further
fair housing. The certification that the State will affirmatively further fair housing shall
specifically require the State to assume the responsibility of fair housing planning by (1)
Conducting an analysis to identify impediments to fair housing choice within the State;
(2) Taking appropriate actions to overcome the effects of any impediments identified
through that analysis; (3) Maintaining records reflecting the analysis and actions in this
regard; and (4) Assuring that units of local government funded by the State comply with
their certifications to affirmatively further fair housing.²¹

Similarly, 24 C.F.R. Part 91, governing fund recipients’ Consolidated Plans (“Consolidated Submissions for Community Planning and Development Programs”), merely repeats the AFFH certification requirement. For instance, 24 C.F.R. § 91.225(a) provides that entitlement communities receiving funds under specified Community Planning and Development programs must certify “satisfactory to HUD,” that they “will affirmatively further fair housing, which means that [they] will conduct an analysis to identify impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting the analysis and actions in this regard.”²²

Under current practice, the Analysis of Impediments (AI) is not submitted to or approved by HUD, although Consolidated Plan guidelines indicate that each jurisdiction “should maintain its AI and update the AI annually where necessary.”²³ In other words, HUD’s role in the current AI process is a largely passive one that relies on the commitment and proficiency of federal fund recipients. Nor do the regulations provide sufficient guidance as to the minimally necessary indicators or actions that an AI should contain.

The Fair Housing Planning Guide, last published by HUD in 1996 and available online, ²⁴ provides more detailed guidance and recommendations for fulfilling the fair housing requirements of the Consolidated Plan and CDBG regulations. The Consolidated Plan process is driven in large part by individual jurisdictions, which must themselves “take and/or describe specific actions and initiatives relevant to the preparation of the consolidated plan,” ²⁵ based on consultation and coordination with state and local agencies, groups, and organizations working within the particular jurisdiction. To provide guidance to individual jurisdictions, the Planning Guide sets forth a series of questions and considerations that the jurisdictions should take into account in developing their Consolidated Plan, and concerning, among others: collaboration and partnership in developing the plan; leadership of the process; citizen participation as part of the plan development; the analyses necessary to assess housing and homelessness needs and the relevant housing market; and a strategic plan for the jurisdiction going forward. ²⁶ The Planning Guide describes HUD’s review of the Consolidated Plan by stating, “the Department will carefully review the performance indicators under the Consolidated Plan to measure the jurisdiction’s progress toward meeting its goals,” and that “HUD is committed to working with communities to make the process productive and the results real.” ²⁷

II. Problems with Current Enforcement

While the Fair Housing Planning Guide provides useful information, there is a significant and detrimental gap between the highly general requirements of the current AFFH regulations and the highly specific and often voluntary recommendations in the Planning Guide and related documents. Concretizing these elements as regulations rather than solely in administrative guides or memo- randa is crucial, because of the legal authority that regulations carry within and outside the Federal government, as well as the deference that courts afford agency regulations that construe statutory provisions within their domain. ²⁸ Importantly, moreover, the current regulations do not fulfill the Secretary’s obligation to “promulgate regulations” that “describe the responsibilities and obligations of applicants, participants, and other persons and entities” ²⁹ or that “describe a method to identify impediments . . . and implement incentives that will maximize the achievement of practices that affirmatively further fair housing.” ³⁰ More broadly, the current regulations fail to fulfill the letter or spirit of the Fair Housing Act.

In addition to the facial shortcomings of the current AFFH regulations, experience in the field has made clear that these existing mechanisms, while necessary, have been insufficient in practice to further fair housing.³¹ In particular, (1) the jurisdiction-wide AI process, as described in current regulations, fails to prescribe specific criteria and metrics for assessing and remedying impediments to fair housing; (2) the current AI and Consolidated Plan system does not facilitate monitoring of, or compliance with, AFFH or other Equal Opportunity requirements in specific federally-funded projects; (3) the factors considered by the current process are overly narrow to assess and promote fair housing; and (4) there is a lack of credible or effective pre- or post-award review. We describe these problems in somewhat greater detail below.

b. Problems with the AI Process for Jurisdiction-Wide Compliance
A range of housing experts, civil rights groups, and former HUD officials have documented the inadequacy of the current AI process. For example, according to testimony by Dr. Jill Khadduri, who “[d]uring the final 17 of [her] 26 years at HUD . . . was Director of the Division of Policy Development,”³² instead of evaluating a grantee’s AI to determine whether its project or program should have been funded, HUD field staff “simply look[] for the certification that the jurisdiction ha[d] completed such an analysis at some time, which may [have been] several years earlier.”³³ It was “very rare,” she testified, that a prospective grantee’s Consolidated Plan (which certifies that the AI has been completed, actions are being taken to overcome identified impediments, and records are maintained reflecting the analysis and action) was “disapproved at the field office staff level and even rarer that the disapproval [wa]s sustained by higher-level HUD decision-makers and a jurisdiction [wa]s denied its funding allocations.” ³⁴

Similarly, a bipartisan fair housing panel chaired by former HUD Secretaries Cisneros and Kemp found that the AI process is ineffective, due largely to the absence of specific regulations regarding the necessary elements of an AI, or the criteria for approval:

HUD does not require that AIs be reviewed or approved . . . as a condition of funding
and there are no HUD regulations that identify what must be included in an AI, not even
a requirement that efforts must be made to reduce existing segregation, consider
residential living patterns in the placement of new housing, or promote fair housing
choice or inclusivity. ³⁵

The same report noted that “HUD requires no evidence that anything is actually being done as a condition of funding, and it does not take adverse action if jurisdictions are directly involved in discriminatory action or fail to affirmatively further fair housing.”³⁶

Similarly, the current mechanisms provide insufficient data for monitoring, compliance, or enforcement. Collecting and analyzing data regarding characteristics of Americans benefited or burdened by HUD programs is crucial to protecting and furthering fair housing. Accordingly, the Fair Housing Act provides that the Secretary shall:

annually report to the Congress, and make available to the public, data on the race,
color, religion, sex, national origin, age, handicap, and family characteristics of persons
and households who are applicants for, participants in, or beneficiaries or potential
beneficiaries of, programs administered by the Department to the extent such
characteristics are within the coverage of the provisions of law and Executive orders
referred to in subsection (f) of this section which apply to such programs (and in order to
develop the data to be included and made available to the public under this subsection,
the Secretary shall, without regard to any other provision of law, collect such information
relating to those characteristics as the Secretary determines to be necessary or appropriate). ³⁷

Yet, the current AFFH system fails reliably to collect or analyze the data necessary to fulfill the Department’s responsibility. As a result, even potential individual complainants who suspect a broader pattern of noncompliance are often frustrated by a lack of reliable information.

In practice, moreover, jurisdictions have not uniformly analyzed demographic housing patterns, or identified significant impediments relating to race and other characteristics covered by the Fair Housing Act. As you know, Westchester County recently settled a suit alleging that, in the face of strong evidence of racial segregation within the county, Westchester repeatedly certified that it was affirmatively furthering fair housing using the existing AI process.³⁸Although Westchester submitted periodic AIs and continued to receive HUD funding, plaintiffs documented that the county’s AIs failed to mention race discrimination or racial segregation, and included “no analysis of whether [those dynamics] might operate to diminish fair housing choice.”³⁹ Using an analysis which a federal court later invalidated,⁴⁰ Westchester County argued that income was a “better proxy for determining need than race when distributing housing funds,” and that race was “not among the most challenging impediments” to fair housing in Westchester.⁴¹

Experience shows that the Westchester County case is just the tip of the iceberg regarding non-compliance and the failure of the AI process to hold grantees accountable.

More robust and modernized public input mechanisms are also needed. In the case of Westchester County, plaintiffs provided evidence that the historically segregative impact of the county’s hous- ing policies was furthered in part because “Westchester refused to identify or analyze community resistance to integration on the basis of race and national origin as an impediment.”⁴² If HUD had enabled, or Westchester County had allowed, fair housing advocates or community members within the region to submit public comments or research specifically addressing the resistance of particular communities within the county to integration, the county would likely have been required publicly to take those considerations into account and work against them in its housing policy, in order to receive approval of its AI.

a. Failure to Further Fair Housing in Specific Programs and Activities
Historically, the Department has applied the AFFH requirement only at a generic, jurisdiction-wide level, inquiring what a putative fund recipient plans to do to advance fair housing across its jurisdiction, and detached from any specific, federally-funded project.⁴³While this is an important inquiry, it means that even close scrutiny of a grantee’s AI is unlikely to spot plans or actions by the grantee that could, nonetheless, hamper fair housing or affirmatively discriminate, in violation of the AFFH requirement.

For example, a jurisdiction’s AI might identify discrimination by private real estate agents as a major impediment to fair housing, and propose specific action to address that impediment—e.g., through law enforcement and educational efforts. However, the same jurisdiction might simultaneously pursue a pattern of siting federally-subsidized affordable housing in a segregative manner and in locations that are physically distant from employment, schools, and other opportunities.

The jurisdiction-wide AI process, even with the improvements that we recommend, will be insufficient to ensure that federal dollars further fair housing. Nor is relying solely on individual complaints sufficient to further fair housing at this important level.

While the AI and Consolidated Plan system, at best, ensures that entities receiving federal funds are doing something to address some impediments to fair housing, the text of the Fair Housing Act commands that the Secretary “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this title.” ⁴⁴

The jurisdiction-wide AI process must be complemented by a more specific program-based obliga- tion. While individually policing every federally subsidized housing activity may not be feasible, there is a need for an “institutionalized method” to further fair housing in these programs and activities. ⁴⁵

c. Lack of Integration with other Equal Opportunity Provisions
In addition to inadequately implementing the AFFH requirement, the current approach disconnects the AFFH inquiry from the other equal opportunity protections that HUD must also enforce in federally-funded projects, such as Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination, whether intentional or in effect, in any federally funded program or activity.⁴⁶ For example, HUD regulations, 24 C.F.R. Part 1, separately detail the equal opportunity obligations of federal fund recipients under Title VI, and require reporting on compliance:

Each recipient shall keep such records and submit to the responsible Department
official or his designee timely, complete, and accurate compliance reports at such times,
and in such form and containing such information, as the responsible Department official
or his designee may determine to be necessary to enable him to ascertain whether the
recipient has complied or is complying with this part 1. In general, recipients should have
available for the department racial and ethnic data showing the extent to which members
of minority groups are beneficiaries of federally assisted programs. 47

Additional HUD regulations govern non-discrimination on the basis of gender in education pro- grams or activities receiving federal funds (Part 3); equal employment opportunity without regard to race, color, religion, sex, national origin, age or disability (Part 7); nondiscrimination based on disability (Parts 8 and 9); and small, minority, and women’s business enterprises (Part 85).

The AFFH requirement is qualitatively different from most of these other obligations, because it is an affirmative duty to further fair housing, rather than a “negative” duty to refrain from discriminating intentionally or in practice. Nonetheless, in many cases the data collection, reporting, and nondiscrimination obligations that these various provisions impose on HUD and its grantees are similar or overlapping. In the name of efficient and effective equal opportunity enforcement, and to streamline grantees’ reporting obligations, the Department’s implementation of the AFFH duty should be coordinated with the enforcement of other equal opportunity obligations attached to federal funds, wherever possible.

III. Recommendations to Improve the AFFH Regulations

In order to address the serious shortcomings of the current AFFH regulations as they relate to federally funded activities, we recommend:

That the Department monitor and enforce grantees’ jurisdiction-wide affirmative fair housing obligations through a revised Analysis of Impediments process that includes (a) clearly stated metrics for the assessment of fair housing impediments and actions to overcome them; (b) explicit guidelines for data collection and analysis by HUD and its grantees; (c) modernized mechanisms for public input; and (d) a meaningful system of pre- and post-award review.
That, in addition to the jurisdiction-wide AI process, the Department require fund recipients to conduct and submit periodic assessments of the fair housing and other federally-protected equal opportunity impacts of specific programs and activities undertaken with federal funds.
That both jurisdiction-wide and program-specific processes incorporate the consideration of indicators of housing opportunity supported by established research and experience; and
That the Department complement submission requirements and technical assistance to fund recipients with a rigorous system of periodic, unannounced audits of a subset of applicants and recipients to be chosen through random selection and other factors.

We discuss these elements in greater detail below.

a. Reforming the Jurisdiction-Wide AI Process
With respect to the current system of jurisdiction-wide analysis of impediments and remedial action, we propose clear and strengthened metrics, data collection, public input mechanisms, and account- ability measures.

i. Clear Fair Housing Metrics

Definition of Impediments

In order effectively to fulfill the AFFH duty, HUD regulations should expressly provide that potential impediments to fair housing that should be assessed include, but are not limited to:

Any public or private actions, omissions, policies, or decisions which have the purpose or effect of restricting housing choices or the availability of housing choices on the basis of race, color, religion, sex, disability, familial status, or national origin.48
Any public or private actions, omissions, policies, or decisions which have the purpose or effect of segregating or concentrating residents based on race, color, religion, disability, or national origin.49
Any public or private actions, omissions, policies, or decisions which have the purpose or effect of limiting access to opportunities associated with housing on the basis of race, color, religion, sex, disability, familial status, or national origin.⁵⁰

This regulatory language would clarify, based on established law, that impediments to fair housing (a) may arise from private as well as public sources; (b) may result from actions and failures to act, as well as from official policies; (c) may stem from intentional discrimination or from facially neutral actions that deny fair housing in practice; and (d) can entail segregative forces as well as exclusionary or discriminatory ones.

The proposed criteria also make clear that impediments to fair housing may take the form of limited access to opportunities associated with housing—such as a municipality’s pattern of siting low-income, disproportionately minority housing in locations distant from education, employment, health care, or other opportunities associated with viable residential housing.

Action to Overcome Impediments

The regulations should provide that the grantee’s proposed actions to overcome the effects of any impediments identified through its analysis must promise, realistically and meaningfully, to reduce those effects and affirmatively to further fair housing. In other words, there must be a nexus between the identified impediments and the proposed activities, and the proposed remedial efforts must demonstrate, objectively and to the Department’s satisfaction, that the impediments are likely to be reduced as a result of the proposed activities.

In addition, the regulations should provide that federal funds must not be used in a manner that will exacerbate or perpetuate impediments to fair housing, whether identified in the Analysis of Impediments or otherwise. And they should make clear that post-award analyses and status reports must document the implementation of proposed and other actions to address impediments to fair housing and provide sufficient data and information to document the effectiveness and impact of those actions.

ii. Data Collection Guidelines
Collection of relevant, accurate data is crucial to the furtherance of fair housing. Accordingly, revised HUD regulations should provide that jurisdictions must include in their analyses of impediments the collection and reporting of relevant demographic patterns and concentrations of racial, ethnic, religious, linguistic, or income groups, as well as people with disabilities, as reflected in federal, state, and other reliable sources of data and information. The Analysis of Impediments must apply that demographic data, along with other relevant information, in assessing any impediments to fair housing as defined above. Where possible, the analyses should use GIS or other established mapping systems to provide a graphical representation of residential patterns. ⁵¹

The AFFH regulations, or an associated guidance, should further define segregative and integrative housing impacts in particular by employing a specific definition of minority concentration, such as whether a census tract is occupied by a population that is more than 12% above the percentage of that population in the jurisdiction and metropolitan area as a whole. ⁵² The Equal Employment Opportunity Commission has used a similar approach in the fair employment context, advising agency officials and employers that “A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.” ⁵³

Collecting data on race and ethnicity, and specifically identifying areas of racial and ethnic segregation within metropolitan areas, can typically be accomplished using existing sources. Following the decennial censuses of 1990 and 2000, HUD had the Census Bureau produce special extracts of census data on the housing conditions of households by racial and ethnic group and by income categories that follow HUD’s definitions (i.e., income categories are defined relative to local median incomes). ⁵⁴This data is available at the census tract level for each jurisdiction administering the HOME and Community Development Block Grant (CDBG) programs. ⁵⁵

Collecting data on disability can also be accomplished by relying on the data HUD currently collects on disability at the household level for public housing and Section 8 residents, as well as from census sources. An assessment about the need for accessible units will require further data that indicates the current need for affordable housing by people with disabilities, the current number of accessible units, and the number of proposed accessible units. HUD field staff already have the authority to require higher percentages of units for people with disabilities in new construction.⁵⁶

HUD also has household-level administrative data sets for the public housing, voucher, and Section 8 project-based assisted housing programs that include information on the location of units and on the income and racial characteristics of the households assisted in each unit.57 Particular considerations of any racially segregative impact must be made in tandem with considerations of segregation based on physical or mental disability, familial status, and other factors, which have similarly influenced the landscape of housing policies. ⁵⁸

In order to facilitate compliance with this requirement, we recommend that HUD provide data and mapping tools through an updated web portal designed to serve fund recipients, applicants, and other interested parties. The revised site could be planned, for example, to coincide with the release of 2010 Census figures.

iii. Improved Public Input Mechanisms
We largely endorse the existing provisions, 24 C.F.R. § 91.105, setting out the requirements for citizen participation plans in the Consolidated Plan process, and recommend that they be uniformly applied and enforced. We recommend adding, however, that in addition to the methods set out at § 91.105, jurisdictions make preliminary assessments of impediments and proposed actions, including maps where possible, available to the public for comment through a user-friendly online interface.

iv. Accountability Measures
A crucial deficiency in the current AI system is that HUD staff does not routinely review the content of AIs to ensure their accuracy, substance, or likelihood of success. Accordingly, in addition to our recommendation that the regulations designate specific criteria, data requirements, and include actions designed to reduce identified impediments, we recommend a mandate that AIs and updates be filed with the agency and, to the greatest extent possible, that HUD staff review the AI submission through documentary and onsite investigation before the approval or continuation of federal funding.

We recognize that current HUD staffing may be inadequate for the pre-approval review of all AI submissions. Accordingly, in addition to seeking appropriations for expanded staff, we recommend that HUD use a system of unannounced audits of select AIs and updates at pre- and post-approval stages, with sufficient frequency to create needed incentives for full compliance.

Here, consistent with the recommendations of the Anti-Discrimination Center, ⁵⁹ we recommend that HUD develop a rigorous AFFH auditing program based on a modified Internal Revenue Service model. The IRS engages in three basic types of enforcement: (1) focusing on areas of high yield, both for specific impact and general deterrence against a particular type of evasion or taxpayer profile;(2) responding to information about non-compliance; and (3) conducting random audits.⁶⁰ Each category fosters general deterrence; the last is noteworthy and effective because of its unannounced and unpredictable nature.⁶¹ That is, deterrence is not enhanced by giving taxpayers a road map of what kinds of evasion are unlikely to be pursued, but rather by doing enough facially random enforcement work across the board so that all taxpayers understand that noncompliance places them at risk. ⁶²

Similarly, HUD should conduct a significant number of random, unannounced audits and, in addition, target for scrutiny jurisdictions that have: (a) significant levels of demographic segregation or exclusivity; (b) significant barriers to fair housing choice (like exclusionary zoning or a lack of affordable housing); and/or (c) a history of fair housing complaints or noncompliance. ⁶³

Audits, and all AFFH investigations, must combine documentary review with onsite visits to verify facts on the ground, speak with affected communities, and provide visible accountability. In some instances, fair housing testers will also be appropriate—for instance, to determine whether grantees are distributing housing services and information fairly.

Additionally, in the context of CDBG funds, the current rule stating that the Consolidated Plan, within which the initial AI will be provided, is “deemed approved 45 days after HUD received the plan, unless before that date HUD has notified the jurisdiction that the plan is disproved,”⁶⁴ should be explicitly revised to authorize a delay in notification in order to request and receive additional information or otherwise ensure compliance.

Post-Approval investigations should, in addition, review and attempt to verify the implementation of actions set out in the AI for effectiveness, as well as actions left out of initial or subsequent AIs. The regulations should also disfavor projects that may affirmatively further fair housing in one narrow respect, while having a disparate or segregative effect in another respect. For example, a proposal for mixed income housing that would be integrated in its predicted occupancy, but would overwhelmingly displace minority homeowners and renters, should be disfavored for funding.

The revised AI requirement should attach at as early a stage as possible, so that information regarding fair housing impact may inform the design, prioritization, and selection of projects, instead of serving merely as a final hurdle to be overcome.

Finally, whether through pre- or post-approval review, where data comparisons or other information in an AI shows either a failure to meet affirmative obligations or a prima facie case of intentional or disparate impact discrimination, funding must be denied or halted pending further investigation and, where appropriate, referral for enforcement action.

At the same time, the regulations should make clear that approval of an AI, Consolidated plan, or funding by the Department does not constitute an administrative determination of compliance with substantive fair housing obligations.

In sum, we believe that incorporating these recommendations explicitly into HUD’s AFFH regulations for jurisdiction-wide compliance will rapidly lead to more effective and uniform furtherance of fair housing in the Department’s activities.

b. Ensuring Fair Housing Compliance in Individual Federally-Funded Projects
In addition to reforming the jurisdiction-wide AI process, proper enforcement of the AFFH duty, as well as coordination with other equal opportunity enforcement obligations, requires attention to the particular uses to which federal funds are directed. Specifically, we recommend that an Opportunity Impact Statement (OIS) requirement be used to ensure that specific federally funded programs or activities comply with the AFFH duty and all other applicable equal opportunity requirements.

The OIS mechanism that we set forth in this memorandum would offer a uniform, “institutionalized method” ⁶⁵ to monitor, analyze, and ensure compliance with the AFFH obligation, while also facilitating compliance with other applicable equal opportunity laws. ⁶⁶ It would utilize a framework that is widely used for assessing intended and unintended effects on opportunity in other areas of public policy. ⁶⁷ And, once implemented, it would streamline review and ease the administrative burden on Department staff and fund recipients by consolidating diverse statutory and regulatory obligations.

Accordingly, we recommend that HUD promulgate additional regulations requiring preparation and submission of Opportunity Impact Statements by putative and actual fund recipients, to ensure compliance with AFFH and other equal opportunity requirements in the implementation of specific housing and development projects receiving federal funds. Until such time as pre-approval review of all submissions is feasible, we recommend documentary and onsite audits of selected OIS submissions on a pre-approval and post-approval basis. The random and targeted audit system that we recommend for jurisdiction-wide compliance reviews.

i. Elements of the Opportunity Impact Statement
With respect to specific proposed or actual federally-funded programs or activities, the OIS would provide sufficient information to assess compliance with all applicable federal equal opportunity obligations. It would address, at least, the following questions:

The statistical relationship between the relevant demographics (i.e., statutorily covered char- acteristics) of the recipient jurisdiction as a whole, including relevant metropolitan areas,⁶⁹ and those of people and neighborhoods to be impacted positively or negatively by the federally-funded project, in terms of affordable and accessible housing, displacement or homelessness, employment, environmental hazards, contracting opportunities, and physical access to community services and amenities.
Projected impact on residential segregation or concentration on the basis of covered charac- teristics in the recipient jurisdiction and regionally.
Availability of affordable housing opportunities for populations facing the greatest barriers to social mobility (i.e., people under 200% of the federal poverty level), as well as levels of foreclosure.
Likelihood that people with disabilities facing the greatest barriers to community integration (e.g., individuals living in overly institutionalized settings) have greater access to community- based housing opportunities.
Projected creation and equitable access to, where relevant, employment, business enterprise, education, and health care opportunities as a result of the federally-funded project.
Alternative plans and approaches proposed or considered, with particular attention to any alternatives projected to have a less disparate impact.
Mechanisms to facilitate public knowledge of, and participation in, decision making, including for people with disabilities and limited English proficiency, and particularly relating to information about fair housing and equal opportunity impacts.
Provisions to prevent and redress racial, sexual, or other harassment within federally-funded programs and institutions. ⁷⁰
GIS mapping, where practicable, graphically representing the demographic impact of programs or activities in relation to the jurisdiction and region as a whole.
Affirmative policies, plans and activities to promote fair, integrated housing, to counteract any discriminatory effects identified by the above information, and to ensure conformance with the Uniform Relocation Act. ⁷¹

Each of the above factors relates to an existing obligation for federal fund recipients, including either explicit or implicit data collection and record-keeping requirements. And other agencies have, at times, pursued enforcement approaches that model those described here. Most recently, in fulfilling its non-discrimination obligations in the administration of federal funds under the American Recovery and Reinvestment Act of 2009, the Federal Transit Administration recently denied funding for a project of the Bay Area Rapid Transit (BART) District after a review of relevant demographic and other information revealed that the project would have be discriminatory in practice based on race. The FTA sought additional information from BART, elicited public input, and attempted to negotiate a less discriminatory alternative. When that failed, on February 12th of this year, the agency denied federal funding for the project. ⁷²

Numerous other models exist in the federal system for the kind of data collection and pre-award review described here. For example:

Executive Order 12898 requires that “each Federal agency, whenever practicable and appropriate, shall collect, maintain and analyze information on the race, national origin, income level, and other readily accessible and appropriate information for areas surrounding facilities or sites expected to have substantial environmental, human health, or economic effect on the surrounding populations, when such facilities or sites become the subject of a substantial Federal environmental administrative or judicial action. Such information shall be made available to the public unless prohibited by law . . . .”⁷³
All employers with 100 or more employees must file with the Equal Employment Opportunity Commission an Employee Information Report (EEO-1), detailing the racial, ethnic, and gender demographics of its workforce, disaggregated by job category, pursuant to Section 709(c), Title VII, of the Civil Rights Act of 1964; and
Pursuant to Section 5 of the Voting Rights Act of 1965,⁷⁴ covered jurisdictions must submit all voting changes to the Attorney General—through the Civil Rights Division of the U.S. Department of Justice—or a three-judge court, to determine if they have a discriminatory purpose or effect, and are therefore legally void.⁷⁵

These forms of administrative review have been administered for years or decades without any undue burden to fund applicants or agency resources. In addition, the Opportunity Impact Statement process that we propose will bring greater uniformity and predictability to AFFH compliance, while facilitating better-informed funding decisions by the agency.⁷⁶

IV. Improving Enforcement and Funding Decisions

Again, regulatory accountability is crucial to the success of these reforms. Thus, where data comparisons or other information in an OIS shows either a failure to meet affirmative obligations or a prima facie case of intentional or disparate impact discrimination, funding must be denied or halted pending further investigation and, where appropriate, referral for enforcement action.

Again, the FTA’s recent denial of funds to BART—after documentary review, notice and public comment, a request for further information, and negotiation—provides an important model.

In addition to the denial or cessation of funding for housing or urban development programs or activities, all federal agencies should aggressively monitor their programs and retain the option of providing conditional funding.⁷⁷ Conditioning of funding would permit, for example, a housing project to be funded only if it were to be located within a specific set of census tracts, or have an increased number of accessible units.

More proactively, in those instances in which the Department is charged with selecting among proposed projects and jurisdictions, we recommend that an Opportunity Impact Statement system be used and considered among the criteria for selection, with a preference given to applicants showing both non-discrimination and an effective plan affirmatively to further fair housing.

As with the jurisdiction-wide AI review, we recommend pre-approval review of OIS submissions where possible, and a system of unannounced documentary and onside audits to provide meaningful incentives for compliance.

The regulations should make clear, however, that approval of funding by the Department does not constitute an administrative determination of substantive compliance with applicable legal obligations.

V. Incorporating Examples

In providing needed guidance to agency staff, applicants, and recipients of federal funds, we recommend that the revised regulations provide illustrative examples of compliant and non-compliant conduct and criteria.

As a template for these requirements, we recommend that HUD look to similar guidelines set forth in the Department of Transportation’s regulations implementing Title VI of the Civil Rights Act of 1964. ⁷⁸ These regulations explain:

For projects funded under the Federal Aviation Administration, recipients must “select the site least likely to adversely affect existing communities,” where “there are two or more sites having equal potential to serve the aeronautical needs of the area,” and “[s]uch site selection shall not be made on the basis of race, color, or national origin.” ⁷⁹
For projects funded by the Federal Highway Administration, “[t]he State shall not locate or design a highway in such a manner as to require, on the basis of race, color, or national ori- gin, the relocation of any persons,” and that “[t]he State shall not locate, design, or construct a highway in such a manner as to deny reasonable access to, and use thereof, to any persons on the basis of race, color, or national origin.” 80
For projects funded by the Urban Mass Transportation Administration, the “[f]requency of service, age and quality of vehicles assigned to routes, quality of stations serving different routes, and location of routes may not be determined on the basis of race, color, or national origin.” 81

HUD regulations implementing the AFFH duty and other equal opportunity obligations should provide analogous examples, customized to housing and urban development contexts.

Conclusion

Based on research, experience, and consultation with a broad range of experts, we believe that the reforms recommended here will significantly improve the fulfillment of HUD’s duty affirmatively to further fair housing while providing greater clarity, guidance, and uniformity to Department staff, stakeholders, and the public.

Appendix:
Proposed Regulations

AFFIRMATIVELY FURTHERING FAIR HOUSING IN FEDERAL FUNDING DECISIONS — MODEL LANGUAGE

Sec.

1.1            Purpose.
1.2            Implementation.
1.3            Analysis of Impediments.
1.4            Opportunity impact statements.
1.5            Additional oversight and review mechanisms.
1.6            Examples of Compliant and Non-compliant conduct and criteria.

AUTHORITY: Exec. Order 11063 (1962), the Fair Housing Act, 42 U.S.C. § 3608(e)(5) (1968), Exec. Order 12892 (1994), Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2003), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1973).

§ 1.1 Purpose.

The purpose of this section is to ensure that all executive departments and agencies administer their programs and activities relating to housing and urban development in a manner affirmatively to further the purposes of the Fair Housing Act, 42 U.S.C. §3601-3619, and consistent with other applicable provisions ensuring equal opportunity and freedom from discrimination. In particular, it enumerates the processes, mechanisms, and actions that must be undertaken in this regard by entities receiving Federal financial assistance for programs or activities relating to housing or urban development, as well as certain Federal oversight procedures.

§ 1.2 Certification and Documentation of Affirmative Furtherance of Fair Housing.

(a) Certification: Every application for Federal financial assistance to carry out a program or activity to which this part applies shall, as a condition to its approval and the extension of any Federal financial assistance, certify that it will affirmatively further fair housing across its jurisdiction, and shall provide documentation supporting that certification. Pursuant to the certification, the applicant shall engage in a process of fair housing planning which shall include: (1) Conducting an analysis to identify impediments to fair housing choice within the jurisdiction; (2) Identifying and taking appropriate actions to overcome the effects of any impediments identified through that analysis; and (3) Maintaining records reflecting the analysis and actions proposed and taken in this regard. Where the applicant is a State, its certification shall, in addition, provide assurance that units of local government funded by the State comply with their certifications affirmatively to further fair housing.

(b) Impediments: For purposes of this part, potential impediments to fair housing that shall be assessed include, but are not limited to:
(i) Any public or private actions, omissions, policies, or decisions which have the
purpose or effect of restricting housing choices or the availability of housing choices
on the basis of race, color, religion, sex, disability, familial status, or national origin.
(ii) Any public or private actions, omissions, policies, or decisions which have the
purpose or effect of segregating or concentrating residents based on race, color,
religion, disability, or national origin.
(iii)Any public or private actions, omissions, policies, or decisions which have the
purpose or effect of limiting access to opportunities associated with housing on the basis
of race, color, religion, sex, disability, familial status, or national origin.

Limitations on access to opportunities associated with housing, for purposes of this part, shall include barriers based on geographic location which unequally impede access to public transportation, employment, educational, health, entrepreneurial, or related opportunities, as well as community- based housing opportunities for people with disabilities.

(c) Data collection: Applicants shall collect and include in their analyses of impediments and proposed actions relevant data and information documenting demographic housing patterns and concentrations of racial, ethnic, religious, linguistic, family, or income groups, as well as people with disabilities, as reflected in federal, state, and other reliable sources of data and information.

§ 1.3 Submission and Review

(a) Submission: Applicants shall submit to the relevant agency or department, through such method as the Secretary shall designate, a completed analysis of impediments and proposed actions to overcome them, supported by relevant demographic data and other verifiable information. Such submission shall be made at least once every 4 years, with updates submitted annually.

(b) Oversight and review: Submissions must demonstrate, to the Secretary’s satisfaction, that analyses of impediments are complete and accurate, that actions proposed or undertaken to overcome the effects of any impediments are well tailored and sufficiently resourced meaningfully to overcome those effects, and that the program or activity, taken as a whole, will affirmatively further fair housing.

(i) Pre-approval review: To the greatest extent possible, the department or agency shall review applicants’ submissions under this section through documentary and onsite investigation before the approval or continuation of funding. Where pre-approval review is not possible, the department or agency shall provide post-approval review as quickly as possible.

(ii) Opportunity to comment: If, after reviewing all documents and data, the department or agency concludes that the analysis of impediments was substantially incomplete or the actions proposed or taken were inadequate to address the identified impediments, the department or agency will provide notice to the applicant that it believes that the duty affirmatively to further fair housing has not been met and will provide the jurisdiction an opportunity to provide further documentation or justification.

(iii) Post-approval investigations: Post-approval, submissions will be regularly reviewed by the department or agency, including for compliance, effectiveness of actions, and changed circumstances, as well as the sufficiency of initial submissions where pre-approval review has not occurred.

(iv) Noncompliance determinations: Where the department or agency determines, based on the totality of the circumstances, a failure affirmatively to further fair housing, it shall issue a public notification of noncompliance and shall deny or halt Federal financial assistance pending further negotiations and, where appropriate, referral for enforcement action.

(v) Effect of approval: Because the fair housing obligation is an ongoing one, approval of an Analysis of Impediments, Consolidated Plan, or Federal financial assistance by the department or agency does not constitute a determination of compliance with applicable legal obligations.

§ 1.4 Compliance in the Implementation of Specific Programs and Activities: Opportunity Impact Statements

Before directing Federal financial assistance toward specific programs or activities relating to housing or urban development, applicants and awardees shall prepare and submit to the relevant department or agency an Opportunity Impact Statement documenting the projected or actual impact of such programs or activities on fair housing and on related aspects of Federally protected equal opportunity based on race, ethnicity, national origin, disability status, gender, and familial status.

(a) The following steps must be completed before undertaking a new Federally funded program or activity, or before renewing funding for an existing program or activity:

(i) Data collection: Funding applicants and recipients shall collect data regarding the demographic composition of the jurisdiction, including metropolitan region or regions within which their program or activity will be located, and on the populations whose access to adequate and integrated housing would be burdened and benefitted by negative and positive impacts of the project/program. Where applicable, projects must explicitly collect data on, and consider, the following factors:

a. Racial and socioeconomic integration: The statement shall explicitly consider whether the project will promote or discourage integrated housing and neighborhoods on the covered bases, and whether it will include and enhance housing opportunity, mobility, and affirmative fair housing measures, as required under existing law.

b. Affordable housing integration: The statement shall explicitly consider whether provi- sions for more affordable housing are integrated into new project designs and whether the project includes measures to ensure that the populations with the greatest barriers to upward mobility (under 200% of the federal poverty level) have access to more quality housing.

c. Displacement and related burdens: The statement shall explicitly consider whether anticipated displacement due to the project, if any, will disproportionately burden members of particular demographic groups or have either segregative or integrative effects.

d. Accessibility of new housing units: The statement shall explicitly consider the extent to which new housing units are equally accessible to individuals and families across the covered characteristics, or if any burdensome procedures disparately impact these communities.

e. Effect on people with disabilities: The statement shall explicitly consider whether the project increases the residential integration of individuals with disabilities and whether populations of people with disabilities who are facing the greatest barriers to community integration (e.g., individuals living in overly institutionalized settings) have access to community-based housing opportunities.

(ii) Public input and participation: After collecting data regarding the impact on equal oppor- tunity of a proposed or ongoing project, public comment on preliminary findings shall be facilitated such forms as community meetings, written public comments, and academic and social science research and analysis, online portals, and geographic information system mapping. The methods adopted, taken as a whole, must be accessible to affected community members, including people with disabilities and populations with limited English proficiency.

(iii) Submission: Applicants and awardees shall submit to the relevant department or agency, and make available to the public in an accessible format, the Opportunity Impact Statement, as well as a Statement of Actions planned or undertaken to ensure that the program or activity affirmatively furthers fair housing and otherwise ensures compliance with applicable nondiscrimination provisions.

(iv) Agency analysis of Opportunity Impact submissions: Where the use of Federal funds for a particular program or activity requires approval by the department or agency, submission of the Opportunity Impact Statement and Statement of Action shall be a necessary condition for approval.

(b) Oversight and review: Submissions must demonstrate, to the Secretary’s satisfaction, that Opportunity Impact Statements are complete and accurate, that actions proposed or undertaken to overcome barriers to opportunity are well tailored and sufficiently resourced meaningfully to overcome those barriers, and that the program or activity, taken as a whole, will affirmatively further fair housing.

(ii) Opportunity to comment: If, after reviewing all documents and data, the department or agency concludes that the submission was substantially incomplete or the actions proposed or taken were inadequate to address the identified barriers, the department or agency will provide notice to the applicant that it believes that the duty affirmatively to further fair housing or otherwise comply with equal opportunity provisions has not been met and will provide the jurisdiction an opportunity to provide further documentation or justification.

(iii) Post-approval investigations: Post-approval, submissions will be regularly reviewed by the department or agency, including for compliance, effectiveness of actions, and changed circumstances, as well as the sufficiency of initial submissions where pre-approval review has not occurred.

(iv) Noncompliance determinations: Where the department or agency determines, based on the totality of the circumstances, a failure affirmatively to further fair housing or unlawful discrimination, it shall issue a public notification of noncompliance and shall deny or halt Federal financial assistance pending further negotiations and, where appropriate, referral for enforcement action.

(v) Effect of approval: Because the fair housing and equal opportunity obligations are ongoing ones, approval of an Opportunity Impact Statement and Action Plan, or Federal financial assistance by the department or agency does not constitute a determination of compliance with applicable legal obligations.

(c) Funding determinations: Where the department or agency must decide among competing applications for the provision of Federal financial assistance to housing or urban development projects, it shall, to the extent possible and as permitted by law, consider Opportunity Impact Statements and Action Statements as factors in its decision making, providing a preference for applications that will maximize the furtherance of fair housing and the expansion of equal opportunity.

§ 1.5 Additional Oversight and Review Mechanisms

(a) Monitoring and enforcement: Federal departments and agencies shall regularly monitor programs and activities receiving Federal financial assistance through documentary and onsite investigations. Among other methods, departments and agencies may select for particularized investigation applicants and awardees at random or based on data, complaints, or other information indicating impediments to fair housing or a failure fully to address existing impediments.

§ 1.6 Examples of Compliant and Non-Compliant Conduct and Criteria

The following are illustrative examples of compliant and non-compliant conduct and criteria:

For projects funded under CDBG or HOME grants, recipients should select the viable site most likely to promote residential integration and least likely to maintain or exacerbate existing levels of segregation, based on based on race, ethnicity, national origin, disability status, and familial status.
In administering federal tax credits through the Low-Income Housing Tax Credit Program, state housing agencies should prioritize directing tax credits to suburban jurisdictions that do not currently have any or much subsidized housing, with the requirement that those developments achieve racial, as well as economic, integration, and promote racial non-discrimination and desegregation. In administering these tax credits, decisions about sites should be made by the state, rather than by private third parties.

Notes:

1. 42 U.S.C. § 3608(e)(5) (2010).

2. U.S. Department of Housing and Urban Development, Mission.

3. See, e.g., Margery Austin Turner & Dolores Acevedo-Garcia, The Benefits of Housing Mobility: A Review of the Research Evidence, in Keeping the Promise: Preserving and Enhancing Housing Mobility in the Section 8 Housing Choice Voucher Program 9 (Philip Tegeler et al., eds., 2005).

4. See, e.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2003) (prohibiting discrimination based on race in federally funded programs or activities); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1973) (prohibiting discrimination based on disability in federally funded programs or activities); Exec. Order 11246, 30 Fed. Reg. 12319 (1965) (requiring affirmative action in employment decisions by federal contractors and federally assisted construction contractors and subcontractors); Exec. Order 12898, 59 Fed. Reg. 7629 (1994) (requiring that no racial, ethnic, socioeconomic, or other group of people should bear disproportionate environ- mental burdens resulting from industrial, commercial, or government operations or policies); see also Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (non-profit institutions engaging in racial discrimination may not claim tax exempt status under the U.S. Tax Code).

5. See 42 U.S.C. § 3608(d) (“All executive departments and agencies shall administer their programs and activities relating to housing and urban development . . . in a manner affirmatively to further the purposes of this title and shall cooperate with the Secretary [of Housing] to further such purposes”).

6. See, e.g., HUD Title VI Regulations, 24 C.F.R. § 1.1-1.10 (2009); HUD Age Discrimination Act Regulations, 24 C.F.R. pt. 146 (2009); HUD Title IX Regulations, 22 C.F.R. pt. 229 (2009); Department of Transportation Title VI Regulations, 49 C.F.R. § 21.1-21.3 (2009); Department of Energy Title VI Regulations, 34 C.F.R. pt. 100 (2009).

7. See, e.g., Douglas Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Har- vard Univ. Press 1993).

8. See Leadership Conference on Civil Rights, The Future of Fair Housing: Report of the Natonal Commission on Fair Housing and Equal Opportunity, App. A: Emerging Fair Housing Legislative and Regulatory Issues (2008); Poverty & Race Research Action Council, Current Projects: The Housing Mobility Initiative.

9. 42 U.S.C. § 3608(e)(5) (2010).

10. 42 U.S.C. § 3601 (2010).

11. Evans v. Lynn, 537 F.2d 571, 577 (1975) (citing 114 Cong. Rec. 9563 (statement of Rep. Celler)).

12. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (citing 114 Cong. Rec. 3422 (statement of Sen. Mondale)).

13. N.A.A.C.P. v. Sec’y of Hous. and Urban Dev., 817 F.2d 149, 155 (1st Cir. 1987).

14. Id. (quoting Otero v. N.Y. City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973)).

15. See, e.g., Thompson v. Hous. and Urban Dev., Civ. Act. No. MJG-95-309, at 143 (D. Md. 2006) (“HUD must take an approach to its obligation to promote fair housing that adequately considers the entire Baltimore Region.”); Gautreaux v. Chi. Hous. Auth., 503 F.2d 930, 937 (7th Cir. 1974) (“To solve problems of the ‘real city’, only metropolitan-wide solutions will do”), aff’d, 425 U.S. 284, 299 (1976) (“The relevant geographic area for purposes of the respondents’ housing options is the Chicago housing market [including the Chicago suburbs], not the Chicago city limits”).

16. 42 U.S.C. § 5309(b), as amended (2006); see also Langlois v. Abington Hous. Auth., 234 F.Supp. 2d 33, 73, 75 (D. Mass. 2002) (“When viewed in the larger context of Title VIII, the legislative history, and the case law, there is no way—at least no way that makes sense—to construe the boundary of the duty to [AFFH] as ending with the Secretary. . . . [t]hese regulations unambiguously impose mandatory requirements on the [public housing authorities] not only to certify their compliance with federal housing laws, but actually to comply”); Massachusetts Dep’t of Hous. and Comm. Dev., Affirmative Fair Housing and Civil Rights Policy 9 (2009) (“[F]ederal executive orders indicate that HUD is to extend its duty to affirmatively further fair housing to the recipients of its funding. Federal Executive Order 12259 followed by Executive Order 12892 provide that federal agencies shall require applicants or participants of federal agency programs relating to housing and urban development to affirmatively further fair housing”).

17. Anderson v. City of Alpharetta, Ga., 737 F.2d 1530, 1537 (11th Cir. 1984) (citing Client’s Council v. Pierce, 711 F.2d 1406, 1422-23);

Gautreaux v. Romney, 448 F.2d 731, 739 (7th Cir. 1971)).

18. See Exec. Order No. 12892, at Sec. 1 (1994); 42 U.S.C. § 3608(d) (2010).

19. Exec. Order No. 12892, at Sec. 1.

20. Id. at Sec. 4(a).

21. 24 C.F.R. § 570.487(b)(1)-(4) (2010).

22. 24 C.F.R. § 225(a)(1).

23. U.S. Department of Housing and Urban Development, Office of Community Planning and Development, Guidelines for Preparing Consolidated Plan and Performance and Evaluation Report Submissions for Local Jurisdictions [hereinafter Guidelines for Preparing Consolidated Plan], 18 (2010).

24. U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, Fair Housing Planning Guide, Vol. 1 (1996).

25. Guidelines for Preparing Consolidated Plan, supra fn 23, at 3.

26. Id. at 3-12.

27. Fair Housing Planning Guide, supra fn 24 at ii.

28. See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984); HUD Tenants Coal. v. United States Dep’t of Hous. and Urban Dev., 274 Fed. Appx. 124 (3rd Cir. 2008).

29. Exec. Order No. 12259, 46 Fed. Reg. 1253 (1980).

30. Exec. Order No. 12892, 59 Fed. Reg. 20 (1994) (emphasis added).

31. See, e.g., James R. Breymaier, The Need to Prioritize the Affirmative Furthering of Fair Housing: A Case Statement, 57 Clev. St. L. Rev. 245, 248 (2009); Florence Wagman Roisman, Keeping the Promise: Ending Racial Discrimination in Federally Financed Housing, 48 How. L.J. 913 (2005); American Civil Liberties Union, et al., Coalition Letter to HUD Secretary Martinez on Key Civil Rights Issues in the New HUD Administration (March 2001).

32. Dr. Jill Khadduri, Former Director of the Division of Policy Development at HUD, Testimony in Support of Thompson v. Hous. and Urban Dev., Civ. Act. No. MJG-95-309 (D. Md. 2006), 3. See also id. at 9 (“HUD has significant ability to influence decisions made by local governments and states on the use of block grant funds to create desegregated housing opportunities”).

33. Id. at 19.

34. Id.

35. Leadership Conference on Civil Rights, supra fn 8.

36. Id. These identified shortfalls were in addition to reported failures by HUD to incorporate the AFFH requirement into its direct admin- istration of Section 8, public housing, and related programs administered directly by the Department.

37. 42 U.S.C. § 3608(e)(6) (2010).

38. See Anti-Discrimination Center of Metro N.Y. v. Westchester County, 495 F. Supp. 2d 375, 377-78 (S.D.N.Y. 2007).

39. Michael Allen, Counsel, Relman & Dane, PLLC, Testimony to the National Commission on Fair Housing and Equal Opportunity Public Hearing 3 (Sept. 22, 2008).

40. See Anti-Discrimination Center of Metro N.Y., supra fn 38, at 387

41. Allen, supra fn 39, at 3.

42. Id.

43. See, e.g., 24 C.F.R. § 570.487(b) (2009) (“The certification that the State will affirmatively further fair housing shall specifically require the State to assume the responsibility of fair housing planning by (1) Conducting an analysis to identify impediments to fair housing choice within the State . . . ”).

44. 42 U.S.C. § 3608(e)(5) (2010) (emphasis added).

45. Exec. Order No. 12259, 46 Fed. Reg. 1253 (1980).

46. See Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-1 to 2000d-7 et seq. (1964); see also Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (1964); Title IX of the Education Amendments, 20 U.S.C. § 1681 et seq. (1972); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (1973); the Americans with Disabilities Act, 423 U.S.C. §§ 12101-12213, as amended (1990).

47. 24 C.F.R. § 1.6(b) (2010).

48. See Fair Housing Planning Guide, supra fn 24, at 2-8.

49. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (recognizing “integrated and balanced living patterns” as a purpose of the Fair Housing Act) (citing 114 Cong. Rec. 3422 (statement of Sen. Mondale)); Otero v. New York City Hous. Auth., 484 F.2d 1122, 1134 (2d Circ. 1973); Metro. Hous. Dev. Corps v. Village of Arlington Heights, 558 F.2d 1283, 1289-1290 (7th Cir. 1977); Shannon v. HUD, 436 F.2d 809 (3d Cr. 1970). See also Thompson v. Hous. and Urban Dev., 220 F.3d 241 (D. Md. 2006) (case spurred by the demolition of a high rise public housing development, with plans to locate replacement housing in neighborhoods with similar levels of segregation); Anti-Discrimination Center of Metro N.Y. v. Westchester County, 495 F. Supp. 2d 375, 377-78 (S.D.N.Y. 2007) (finding Westchester County subject to liability under the False Claims Act for making little or no effort to determine where low-income housing was being placed, or to finance homes and apartments in communities that opposed affordable housing).

50. See 42 U.S.C. § 3604(b) (2010) (“it shall be unlawful . . . [t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith . . . .”); 24 C.F.R. §100.70(d)(4) (2010) (“discriminatory housing practices” include “[r]efusing to provide municipal services…because of race, color, religion, sex, handicap, familial status, or national origin); see also United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2nd Cir. 1987) (noting the interrela- tionship of housing segregation and school access and invalidating discriminatory zoning and siting choices); Southend Neighborhood

Improvement Ass’n v. County of St. Clair, 743 F.2d 1207, 1209 (7th Cir. 1984) (Section 3604 generally “forbids discrimination in making available or providing services related to housing”); NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287 (7th Cir. 1992), cert. denied, 503

U.S. 907 (1993) (Fair Housing Act prohibits discrimination in provision of homeowners insurance).

51. See The Joint Center Health Policy Institute & The Opportunity Agenda, Using Maps to Promote Health Equity (2009). Kirwan Institute for the Study of Race and Ethnicity, Utilizing GIS to Support Advocacy and Social Justice: A Case Study of University-Led Initiatives 17 (2009). (“The [Kirwan] Institute may provide maps and GIS-based analysis to internal work groups within public agencies, or may provide public reports directly to policy-makers to raise awareness around a specific advocacy concern or issue”).

52. Cf. Equal Employment Opportunity Comm’n, Uniform Employee Selection Guidelines, at Sec. 15(1)(c); (similarly establishing a percentage-based framework to identify an adverse discriminatory impact).

53. 41 C.F.R. pt. 60-3.4(d) (1978).

54. Khadduri, supra fn 32 at 39.

55. Id.

56. See 29 U.S.C. § 794 (2010); 24 C.F.R. 8.22(c) (2010); 24 C.F.R. 8.26 (2010).

57. Khadduri, supra fn 32, at 39-40.

58. See, e.g., Arlene S. Kanter, A Home of One’s Own: The Fair Housing Amendments Act of 1988 and Housing Discrimination Against People with Mental Disabilities, 43 Am. U. L. Rev. 925 (1994) (discussing the history of housing segregation based on mental disability).

59. Memorandum from Anti-Discrimination Center, Inc. to Hon. John Trasviña, Assistant Secretary, Office of Fair Housing and Equal Op- portunity 2 (Oct. 26, 2009).

60. Id.

61. Id.

62. Id.

63. Id.

64. 24 C.F.R. § 91.500 (2009).

65. Exec. Order 12250, 28 C.F.R. pt. 41 (1980).

66. In addition to the Fair Housing Act, the following civil rights laws, among others, apply anti-discrimination requirements to programs funded by HUD: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2003); Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794 (1973); Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, as amended (1990); the Age Discrimination Act of 1975, Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. (1978); Title IX of the Education Amendment Acts of 1972, 20 U.S.C. § 1681 et seq. (1972); Exec. Order 11246, 30 Fed. Reg. 12319 (1965) (requiring affirmative action in employment decisions by federal contractors and federally assisted construction contractors and subcontractors); Exec. Order 12898, 59 Fed. Reg. 7629 (1994) (requiring that no racial, ethnic, socioeconomic, or other group of people should bear disproportionate environmental burdens resulting from industrial, commercial, or government operations or policies); and HUD regulations enacting the foregoing requirements, see, e.g., HUD Title VI Regulations, 24 C.F.R. § 1.1-1.10 (1973); HUD Age Discrimination Act Regulations, 24 C.F.R. pt. 146 (2009); HUD Title IX Regulations, 22 C.F.R. pt. 229 (2009).

67. See Marc Mauer, Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities, 5 Ohio St. J. Crim. L. 19, 32 (discussing current use by policymakers of environmental impact statements, fiscal impact statements, and health impact statements).

68. See supra Section III(a)(iv).

69. See Thompson, supra fn 15, at 143; john powell, Executive Director, Kirwan Institute for the Study of Race & Ethnicity, Remedial Phase Expert Report in Support of Thompson, at 40 (“In order to remedy the harms of its failure to desegregate and further fair housing, HUD must pursue metropolitan-wide strategies”); Memorandum from Anti-Discrimination Center, supra fn 59, at 7 (“Segregation and other barriers to fair housing choice developed and operate regionally; barriers can only be overcome effectively with a regional approach. There needs to be a funding pool that is limited to those metropolitan regions that have agreed to pool housing opportunities across borders, and to locate such housing in a manner that facilitates racial and other forms of integration”).

70. On November 13, 2000, HUD published a proposed regulation outlining the application of the Fair Housing Act to acts of sexual harassment in the housing context. However, HUD never issued final regulations. Sexual harassment in housing repeatedly has been the subject of complaints and litigation. See National Commission on Fair Housing and Equal Opportunity, The Future of Fair Housing App. A (2008).

71. 42 U.S.C. § 4600 et seq. (1970).

72. Letter from Peter Rogoff, Administrator, Federal Transit Administration, to Steve Heminger, Executive Director, Metropolitan Trans- portation Commission, and Dorothy Dugger, General Manager, San Francisco Bay Area Rapid Transit District (Feb. 12, 2010).

73. Exec. Order 12898, 59 Fed. Reg. 32 (1994).

74. 42 U.S.C §1973c.

75. While Section 5 of the VRA is viewed as an extraordinary remedy, federalism considerations do not apply where, as here, agency oversight relates to the use of federal funds.

76. In addition to the solicitation of new information on specific proposed or ongoing projects of HUD recipients, the following existing research or data, among others, should be consulted, as necessary, to judge the impact on fair housing opportunity of new programs and the siting of new housing: the locations of all current affordable housing, including tax credit properties, state and locally funded housing, and private housing; income and poverty rates of populations served by new housing; records of foreclosure within the area targeted; reports on the green areas and recreational spaces increased or decreased by a project; the U.S. Census Bureau’s report on housing patterns; the American Community Survey; and the expanded data regarding occupancy patterns (including race, ethnicity, and disability) now federally required for the Low Income Housing Tax Credit (“LIHTC”) program. For more information on specific types of suggested fair housing research, see National Commission on Fair Housing and Equal Opportunity, supra fn 70, at XI. The Necessity of Fair Housing Research.

77. See Exec. Order No. 12892, Sec. 5 (setting forth agency enforcement provisions for the AFFH requirement).

78. 49 C.F.R. § 21 (1970).

79. 49 C.F.R. § 21, App. C(a)(1)(viii).

80. 49 C.F.R. § 21, App. C(a)(2)(vi) and (vii).

81. 49 C.F.R. § 21, App. C(a)(3)(iii)

Ten Lessons for Talking About Racial Equity in the Age of Obama

Experience from around the country shows that discussing racial inequity and promoting racial justice are particularly challenging today. Some Americans have long been skeptical about the continued existence of racial discrimination and unequal opportunity. But with the historic election of an African American president, that skepticism is more widespread and more vocal than ever. President Obama’s important political victory, in other words, threatens to eclipse the large body of evidence documenting the continuing influence of racial bias and other barriers to equal opportunity. The current economic crisis, moreover, has fostered a welcome discussion of socioeconomic inequality, but often to the exclusion of racial injustice.

This memo sets out 10 principles that can help facilitate productive communications on racial justice problems and solutions. It is intended for communications with “persuadables”—that is, audiences who are neither solidly favorable nor unfavorable on these issues, but are capable of persuasion through the right approaches. This includes large segments of the U.S. public, as well as many journalists, policymakers, and opinion leaders who influence the public debate. The recommendations are derived from public opinion and media research as well as practical experience over the last year.

1. Lead with shared values: Opportunity and the Common Good. Starting with values that matter to most Americans helps audiences to “hear” our messages more effectively than do dry facts or emotional rhetoric. It is important for advocates to communicate the change they are working for and why that change matters.

EXAMPLES:

In discussing racial equality, the most important values tend to be…

Opportunity:

Everyone deserves a fair chance to achieve his or her full potential.

Community:

We are all in it together and have a shared responsibility to protect “The Common Good.”

Mobility:

Where we start out in life should not determine where we end up; everyone who works hard should be able to advance in society.

Together, these values help to counter the “on your own” mentality that can erode support for social policies. Our research also shows solid support for the notion that freedom from racial discrimination is a basic Human Right that all people should enjoy. The ideals of Fairness and Equality are also important in this context, but should be combined where possible with Opportunity and the Common Good.

2. Show that it’s about all of us. A winning racial justice message is not just about the rights and interests of people of color but rather about our country as a whole and everyone in it. It explains that it’s not in our moral or practical interest as a society to exclude any group, community, or neighborhood, or to tolerate unequal opportunity or discrimination. And it backs up that premise with practical as well as symbolic facts and arguments.

EXAMPLE:

Federal regulators allowed predatory subprime lenders to target communities of color, only to see that practice spread across communities, putting our entire economy at risk.

3. Over-document the barriers to equal opportunity—especially racial bias. Many audiences are skeptical about whether racial bias still exists in America, and believe (or want to believe) that equal opportunities are open to all. Be specific about the mechanisms that deny equal opportunity; gather comprehensive and reliable data and prepare a stable of examples to make a convincing and compelling argument. Instead of leading with evidence of unequal outcomes alone—which can sometimes reinforce stereotypes and blame—we recommend documenting how people of color frequently face stiff and unequal barriers to opportunity.

EXAMPLE:

DON’T begin by discussing the income gap between whites and African Americans; DO lead with facts like the 2003 California study that found that employment agencies preferred less qualified white applicants to more qualified African Americans;1 or the Milwaukee and New York studies demonstrating that white job seekers with criminal records were more likely to receive callbacks than African Americans with no criminal records.²

4. Acknowledge the progress we’ve made. With an African American in the White House, it’s especially important to acknowledge that our country has made progress over the years regarding race relations and equal opportunity. Doing so helps persuade skeptical audiences to lower their defenses and have a reasoned discussion rooted in nuanced reality rather than rhetoric.

EXAMPLE:

We have made real progress on equal opportunity in our country, from the major gains in college enrollment made by women of color over the last 30 years to the substantial increase in people of color elected to offices around the country. But, unfortunately, many barriers to equal opportunity remain, and it is in our nation’s interest to address them.

5. Present data on racial disparities through a contribution model instead of just a deficit model. When we present evidence of unequal outcomes, we should make every effort to show how closing those gaps will benefit society as a whole.

EXAMPLE:

The fact that the Latino college graduation rate is 32 percent of the white rate³ also means that closing the ethnic graduation gap would result in over one million more college graduates each year⁴ to help America compete and prosper in a global economy—it’s the smart thing to do as well as the right thing to do.

6. Be thematic instead of episodic: Select stories that demonstrate institutional or systemic causes over stories that highlight individual action. Compelling human stories can inspire action and capture the attention of reporters, lawmakers, and other audiences. But research shows that individual stories—be they positive or negative—also drive audiences toward “personal responsibility” and individual action as the causes and solutions of social problems (ignoring root causes and systemic policy solutions). We recommend prioritizing human stories—preferably in groups—that are inherently systemic or thematic, backed by strong research and statistics.

EXAMPLES:

To demonstrate racial bias in the criminal justice system, interviews with a drug treatment professional, a public defender, and people of different races recovering from addiction can be combined with an Amnesty International report finding that 71 percent of crack cocaine users are white, but 84 percent of those arrested for possession were African Americans—fewer than 6 percent were white.⁵
Native American leader Elouise Cobell was the lead plaintiff in groundbreaking litigation challenging federal mismanagement of trust funds belonging to more than 500,000 individual Native people.⁶Her story and those of representative families in the lawsuit helped to tell a compelling human story with systemic cases, solutions, and implications.

7. Carefully select vehicles and audiences to tell the story of contemporary discrimination. Modern discrimination still includes some old-school bigotry, but more frequently it involves nuanced and less visible forms, such as covert, implicit, and structural bias, and the continuing effects of past discrimination. What’s more, our national diversity extends far beyond the traditional black-white paradigm that anchored 20th century racial discourse. It is important to communicate the modern face of discrimination, yet many audiences have no frame of reference for such a conversation. We recommend carefully tailoring the depth and detail of the message to the medium and audience. Educating reporters and policymakers on background before big stories break is also time well spent.

EXAMPLE:

A TV news sound bite is too little time to explain structural bias to a general audience; an op-ed, public hearing, or speech may provide a better opportunity to do so. By contrast, a TV press event can be a good place to show the racial diversity of our nation through visuals, backdrops, and spokespeople.

8. Be rigorously solution-oriented. Audiences who understand that unequal opportunity exists may, nonetheless, believe that nothing can be done about it, leading to “compassion fatigue” and inaction. Wherever possible, we should link our description of the problem to a clear, positive solution and action.

EXAMPLE:

Asian Americans often face particularly steep obstacles to needed health care because of language and cultural barriers, as well as limited insurance coverage. Reforms like better training for health professionals, English language learning programs, and community health centers can reduce those racial barriers while improving the health of all.

9. Link racial justice solutions with broader efforts to expand opportunity. For most of us, racial justice is one essential aspect of a broader social justice vision. Linking our goals to broader solutions that directly touch everyone can engage new audiences and build larger, more lasting constituencies.

EXAMPLE:

Research points to a number of strategies for promoting quality, inclusive education for all children. They include investing in early childhood and universal pre-K programs, as well as creating attendance zones and strong schools to promote a diverse learning environment.

10. Use Opportunity as a bridge, not a bypass. Opening conversations with the ideal of Opportunity helps to emphasize society’s role in affording a fair chance to everyone. But starting conversations here does not mean avoiding discussions of race. We suggest bridging from the value of Opportunity to the roles of racial equity and inclusion in fulfilling that value for all. Doing so can move audiences into a frame of mind that is more solution-oriented and less mired in skepticism about the continued existence of discrimination.

EXAMPLE:

It is in our nation’s interest to ensure that everyone enjoys full and equal opportunity. But that’s not happening in our educational system today, where children of color face overcrowded classrooms, uncertified teachers, and excessive discipline far more often than their white counterparts. If we don’t attend to those inequalities while improving education for all children, we will never become the nation that we aspire to be.

Applying the Lessons

VPSA: Value, Problem, Solution, Action.

One useful approach to tying these lessons together is to structure opening communications around Value, Problem, Solution, and Action. For example:

Value: Your opportunity to get a home loan on fair terms shouldn’t depend on what you look like or where you come from.

Problem: But research shows that people of color are significantly more likely to be given high-interest, subprime loans than are white borrowers, even when those borrowers’ incomes and ability to pay are the same. In fact, the racial gap is greatest among upper-income borrowers. That racial bias hurts us all by driving up foreclosure rates, reducing tax revenues, and ravaging neighborhoods, and it violates our values as a nation.

Solution: We can address these destructive practices through a federal consumer credit agency with the authority to prevent discriminatory and predatory lending schemes. By ensuring access to fair credit on fair terms, we can save thousands of homes, prevent thousands of bankruptcies, and help get our economy going again.

Action: Tell your member of Congress to support a consumer protection agency with strong equal opportunity enforcement authority.

Notes

1. J. Bussey and J. Trasvina, “Racial Preferences: The Treatment of White and African American Job Applicants by Temporary Employment Agencies in California” (Berkeley, Calif.: Discrimination Research Center, December 2003).

2. D. Pager, “The Mark of a Criminal Record,” American Journal of Sociology, 108, No. 5 (2003), 937-75.

3. National Center on Education Statistics, Digest of Education Statistics, 2007 and 2008, Table 9; available at http://nces.ed.gov/programs/digest/d07/tables/dt07_009.asp.

4. This calculation refers to the data from footnote 3, and is based on the premise that the Latino population ages 25 to 29 would be graduating college at the 2008 white rate of 37.1%, as opposed to the 2008 Latino rate of 12.4%.

5. Amnesty International, Threat and Humiliation: Racial Profiling, Domestic Security, and Human Rights in the United States (New York: Amnesty International USA, 2004).

6. Files, J. (2004, April 20). One Banker’s Fight for a Half-Million Indians. New York Times. Retrieved from http://www.nytimes.com/2004/04/20/us/one-banker-s-fight-for-a-half-million-indians.html?pagewanted=1

The Opportunity Impact Statement

Introduction

The ongoing investments in the nation’s economic recovery have the potential to revitalize not only our economy, but also the American promise of opportunity itself. American opportunity is the idea that everyone should have a fair chance to achieve his or her full potential, and that ensuring this fair chance requires not only certain basic conditions, but also the fulfillment of specific core values: equal treatment, economic security and mobility, a voice in decisions that affect us, a chance to start over after misfortune or missteps, and a sense of shared responsibility for each other as members of a common society. Fulfilling those values is not merely good policy, but part of our fundamental human rights.

An important chance to promote opportunity arises each time a governmental body supports or controls a major public or private project. Taxpayers support, and governments initiate and regulate, a wide range of projects, from highways and mass transit lines, to schools and hospitals, to land use and economic development, to law enforcement and environmental protection. These projects, in turn, can improve or restrict access to quality jobs, housing, education, business opportunities, and good health, among other opportunities. And, depending on their design and administration, they can serve all Americans fairly and effectively, or they can create and perpetuate unfairness and inequality based on race, gender, or other aspects of who we are.

Despite the progress we have made as a nation, research shows that people of color, women, immigrants, and low-income people continue to face unequal barriers to opportunity in a range of situations, including education, employment, health care, housing, economic development, asset building, business opportunities, environmental protection, and in the criminal justice system.¹ In authorizing, funding, and regulating projects, federal, state, and local governments have a responsibility to keep the doors of opportunity equally open to everyone. And history shows that when they fulfill that role, we move forward together as a society.

The need for promoting opportunity is stronger than ever, given current efforts to revitalize the economy through the American Recovery and Reinvestment Act of 2009, Troubled Assets Relief Program (TARP), and other recovery proposals under consideration by the President and Congress. These plans involve unprecedented federal spending linking multiple sectors, and create an opportunity to a new and promising policy strategy designed to ensure that publicly supported and regulated projects expand opportunity equally to all the communities they serve: The Opportunity Impact Statement.

The Idea: The Opportunity Impact Statement

The Opportunity Impact Statement (OIS) is a comprehensive evaluation tool that public bodies, affected communities, and the private sector can use to ensure that programs and projects offer equal and expanded opportunity for everyone in a community or region, as required by law.

There are a large number of statutes, regulations, and executive orders that are designed to assure that recipients of federal funds do not discriminate—in either purpose or effect—on the basis of race, color, ethnicity, disability, gender or other social characteristics.

Deciding Between Opportunity and Inequality: Two Case Studies

The importance of a coordinated equal opportunity process is evident in the juxtaposition of two case studies: the rebuilding of New Orleans after Hurricane Katrina and the development of the Staples Center in Los Angeles.

Years after Hurricane Katrina, the reconstruction of the Gulf Coast has perpetuated, rather than ameliorated, unequal opportunity. Black and Latino evacuees were more than twice as likely to be unemployed two months after the storm as their white counterparts; a comprehensive survey by the Advancement Project attributes this in part to failed housing policy, lack of transportation, and discrimination that shut out many people of color from reconstruction jobs. Lucrative FEMA contracts that had the potential to reinvigorate local businesses and economies went mostly to large out-of-state companies, with only 5.4% of $3.7 million in contracts given through November 2005 going to Louisiana companies. Minority contractors, too, were largely overlooked in the initial contract awards. Exacerbating this situation was the effort of the Bush Administration to limit labor and equal opportunity protections in the reconstruction effort, such as his Sept. 8, 2005 suspension of the Davis-Bacon Act in the Gulf Coast, which eliminated a guarantee of federally-contracted workers receiving prevailing wages and made it harder for unionized contractors to receive federal reconstruction funds.* Such careless application of federal resources has led to further inequality in the Gulf Coast.

In contrast, the voluntary Community Benefits Agreement developed in conjunction with the construction of the sports and entertainment district of Los Angeles’ Staples Center. The Staples Center was constructed in 1999 without community input, resulting in the displacement of over 200 families and less-than-ideal labor contracts for workers. By working together on the proposed $1 billion expansion of the district, both developer AEG and over two dozen community groups were able to agree to a Community Benefits Agreement that included a goal of hiring local residents for 50% of the jobs created (with priority given to those displaced by construction), and for 70% of jobs to be living wage or union jobs. New commercial housing was paired with affordable housing, local parks, and recreation improvements. Informed economic development that considers the facts on the ground can expand and increase opportunity.**

* Thomas B. Edsall, Bush Suspends Pay Act In Area Hit By Storm, Washington Post, Sept. 9, 2005, D03.

** For more information on these case studies, see “Jobs and Business: The State of Opportunity for Workers Restoring the Gulf,” http://opportunityagenda.org/files/field_file/Katrina%20Jobs.pdf; “Community Benefits Agreements Victories”

Elements of the Opportunity Impact Statement

On both the federal and state level, impact statements are a well-established practice, intended to ensure that policymakers have full awareness of the impact of proposed rules before taking major action. Fiscal impact statements from the non-partisan Congressional Budget Office outline the costs and benefits of congressional legislation, and many states have adopted similar financial analyses for legislative action.³ Iowa, Connecticut, and Minnesota have established impact statements that review proposed changes in criminal justice policy to determine whether such action will exacerbate or reduce racial disparities in sentencing and incarceration.⁴ Another well-known impact statement is the federal Environmental Impact Statement (EIS) found in the National Environmental Policy Act (NEPA)⁵ that federal agencies must prepare when a major construction or other project is likely to have a significant effect on the environment. An EIS is prepared based on available data and investigation. It compares the proposed project to other alternative approaches, and invites public scrutiny and public comment. Ultimately, it aims to facilitate informed, sophisticated, and democratic decision making that pursues sustainable development in service to the public interest.

The Opportunity Impact Statement pursues similar goals in the context of opportunity. The OIS is designed to promote careful consideration of significant positive and negative opportunity impacts arising from proposed federally-funded projects. It also creates a single formal evaluation procedure that both assures an opportunity for meaningful public participation in the agency’s consideration of the proposed action and avoids duplicative or uncoordinated attempts at complying with equal opportunity mandates after the fact. The Opportunity Impact Statement will bring the voice of affected communities, structured efficiency, and balanced analysis to the table in the context of opportunity.

Using empirical data as well as community input and investigation, the OIS will assess the extent to which a project will expand or contract opportunity for all—e.g., would jobs be created or lost? Would affordable housing be created or destroyed? —as well as the extent to which it will equitably serve residents and communities of different races, incomes, and other diverse characteristics—e.g., would displacement or environmental hazards be equitably shared by affected communities?

These factors would be considered in the context of communities’ differing assets, needs, and characteristics. For example, will a construction project offer job-training opportunities to both women and men from communities with high unemployment rates, or will it bypass those communities? Will a new highway or light rail system connect distressed minority neighborhoods to quality jobs, hospitals, and green markets, or will it further isolate those communities? Experience shows that simply asking these types of questions and requiring a thorough and public response will have a positive effect on the development of publicly subsidized or authorized projects. And, where necessary, it will help identify and address potential and actual violations of equal opportunity laws in a timely manner.

The Opportunity Impact Statement would include four major elements:

1. Coverage of Projects Involving Public Funds or Governmental Engagement. The mechanism applies to projects intertwined with taxpayer or government resources. It does not apply to wholly private activities—though private entities might voluntarily choose to employ it.

2. Data Collection and Analysis. The Opportunity Impact Statement will collect and analyze data regarding the characteristics of affected communities (e.g., employment rates and health status, socioeconomic and racial make up, etc.), as well as the assets and opportunities currently available to those communities (e.g., access to hospitals, schools, banking, jobs, etc.), both independently, and in comparison to surrounding communities. In some cases, historical patterns (e.g., patterns of hospital closings, housing segregation) will also be relevant. An important part of the analysis will be the consideration of alternative approaches to achieving the goals of the project that may be more effective in ensuring equal access to greater opportunity, as well as changes that could mitigate or remove negative implications. Standardized metrics drawing upon both established and available government research will expedite the evaluation of a project’s impact on opportunity, primarily in five areas: jobs and economic development, housing, health, education, and transportation and related infrastructure.

3. Public Comment and Participation. Members of the public—especially communities that would be positively or negatively affected by the proposed project—will participate in the decision making process in two ways. In the initial fact-finding stage, input from civil society will help guide information gathering regarding relevant impacts, potential alternatives, and sources of additional information. Once a preliminary assessment has been created, the public will have the opportunity to comment on the conclusions, express concerns or support, and complement factual information with practical human experiences and interaction.

4. Transparency and Accountability.The OIS process will result in a public, written report, as well as a record of the goals, data, analysis, and public comments that led to the report’s conclusions. The report will guide governmental and community decision making regarding the proposed project while providing guidelines for the future development and regulation of projects that are ultimately approved. Moreover, the OIS serves as a uniform record across agencies demonstrating good faith efforts to comply with equal opportunity requirements. In those instances in which the OIS identifies that a project, as planned, would violate federal law, modifications or rejection of funding would be required.

Legal Underpinnings

A network of federal statutes and their implementing regulations provides the underpinning for the Opportunity Impact Statement:

Title VI of the Civil Rights Act of 1964 and the federal regulations that implement it,⁶ which prohibit policies that have a discriminatory intent or effect based on race or language ability in federally funded programs;
Title VII of the Civil Rights Act,⁷ which prohibits racial, gender, and religious discrimination in both private and governmental employment;
Section 504 of the Rehabilitation Act,⁸ which prohibits discrimination in those programs based on disability;
Title IX of the Education Act,⁹ which prohibits gender discrimination in federally funded educations programs;
The Age Discrimination in Employment Act,¹⁰ which prohibits discrimination based on employment of persons 40 years of age or older;
The Americans with Disability Act,¹¹ which prohibits employment discrimination against persons with disabilities in both public and private employment;
The Fair Housing Act of 1968,¹² which requires the promotion of fair housing by government and prohibits housing discrimination based on race, religion, sex, disability, or familial status;
The Fair Credit Reporting Act,¹³ which provides basic consumer credit protections when such information is used for credit, insurance, or employment purposes;
The Home Mortgage Disclosure Act,¹⁴ which identifies discriminatory lending patterns and determines whether lenders are serving their community’s housing needs;
The Hill-Burton Act,¹⁵ which prohibits discrimination based on race, color, national origin, or creed in access to hospitals that have used federal capital investment funds, and requires provision of uncompensated care;
Medicaid’s Equal Access Provision,¹⁶ which requires that provider reimbursement rates are sufficient to ensure access to services available to the general population; and
The Uniform Relocation Act,¹⁷ which requires fair and equitable treatment of persons dislocated by federally funded projects, relocation assistance to displaced persons that minimizes financial and emotional impact, and improvement of the housing condition of displaced persons living in substandard housing.

In addition to prohibiting discrimination against people and communities on the basis of race, color, ethnicity, disability, gender and other characteristics, many of these laws require information collection and the analysis of data similar to that covered by the OIS.

A series of Executive Orders reinforces the federal responsibility comprehensively and effectively to address equal opportunity:

Executive Order 11246,¹⁸ which requires affirmative action in employment decisions by federal contractors and federally assisted construction contractors and subcontractors;
Executive Order 11478,¹⁹ which requires affirmative establishment of equal opportunity programs in each Executive department and agency;
Executive Order 12250,²⁰ which requires the Attorney General to coordinate and enforce the implementation of nondiscrimination laws across Executive agencies;
Executive Order 12866,²¹ which requires Executive agencies to implement a regulatory and oversight system that fulfills statutory obligations, such as those nondiscrimination laws listed above;
Executive Order 12898,²² which requires that no racial, ethnic, socioeconomic, or other group of people should bear disproportionate environmental burdens resulting from industrial, commercial, or government operations or policies;
Executive Orders 13078²³ and 13163,²⁴ which requires the establishment of a National Task Force on Employment of Adults with Disabilities that in part conducts data analysis and research to improve rates of employment for adults with disabilities, and requires federal agencies to increase employment of individuals with disabilities;
Executive Order 13125²⁵ and 13339,²⁶ which requires Executive departments and agencies to increase participation of Asian Americans and Pacific Islanders in federal programs where the communities may be underserved, and to increase economic opportunity and business participation of Asian Americans and Pacific Islanders;
Executive Order 13160,²⁷ which forbids discrimination by race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent in federally conducted education and training programs; and
Executive Order 13171,²⁸ which requires Executive departments and agencies to improve the representation of Latinos in federal employment.

Complementing these federal laws, international human rights laws support the use of the Opportunity Impact Statement. These include the Covenant on Civil and Political²⁹30 both of which the United States has ratified, as well as the Convention on the Rights of the Child³¹ and the Convention on the Elimination of Discrimination Against Women (CEDAW),³² which the United States has signed but not yet ratified. The U.S. Supreme Court has increasingly relied on these standards in its interpretation of domestic legal obligations.³³

Implementation of these laws by federal agencies is governed by Executive Order 13107,³⁴ directing all agencies to comply with obligations under international human rights treaties and establishing an Interagency Working Group on Human Rights Treaties. The Interagency Working Group was effectively disbanded during President George W. Bush’s administration, failing to implement the Working Group’s policy coordination committee’s action plan. There is now an opportunity for President Obama and his Administration to not only revitalize the Interagency Working Group, but to refine E.O. 13107 to ensure the new Working Group’s success.³⁵

Municipalities have also recognized the potential of international human rights law in supporting our national commitment to equal opportunity. Earlier this decade, the City of San Francisco adopted CEDAW as part of its municipal law,³⁶ resulting in a gender audit that was similar in key aspects to the Opportunity Impact Statement.

Adoption and Implementation

Existing law supports the use of an OIS process in many instances. The web of federal laws, executive orders, and treaties described above supports and, in some cases, require the collection, reporting, and consideration of impact data based on race, ethnicity, gender, disability, and language status. Laws in many sectors, such as health care and education, requires inclusion and equitable treatment of low-income communities. And existing mechanisms, such as the Certificate of Need process that many states use to consider the distribution of health care resources, require only minor practical changes to fit within the Opportunity Impact Statement model. Indeed, Executive Order 12250³⁷ and a number of agency implementing regulations under Title VI appear to require some affirmative mechanism of this kind.³⁸ Moreover, Executive Order 12866,³⁹ as revitalized by Executive Order 13497,⁴⁰ signed by President Obama in January, directs agencies to implement effective and coordinated regulatory and oversight procedures. The Opportunity Impact Statement may serve as an efficient vehicle for fulfilling these agency responsibilities.

How It Will Work

As described above, the Opportunity Impact Statement draws from the lessons of other impact statements. The Opportunity Impact Statement will seek to provide a comprehensive and fair evaluation of significant opportunity impacts as well as reasonable alternatives, providing decisionmakers and the public with full information and allowing for the minimization of adverse impacts.⁴¹ Agency implementation of Opportunity Impact Statements will balance both the need for efficiency in review of necessary government-funded projects with evidence-based evaluation and transparency. The process envisions that an agency will have approval authority over projects within its mandate, and will use the Opportunity Impact Statement to guide and strengthen its evaluation of proposals, as well as to ensure federal anti-discrimination law compliance.

Proposed Opportunity Impact Statement Process

Opportunity Assessment

The Opportunity Assessment is an initial agency evaluation of the impact a project may have on opportunity for affected communities. The purpose of the Assessment is to inform and influence decisionmakers on whether to accept, reject, or require changes to a proposal. This assessment will be submitted by those proposing the project under review, and will serve as either a gateway to a complete and full Opportunity Impact Statement or, with a Finding of Equal and Expanded Opportunity (FEEO), permit the proposed plan to move forward without changes. In this last sense, the Assessment ensures that projects with strong evidence of positive effects on opportunity are immediately approved.

In sum, the Opportunity Assessment is a concise public document which serves to:

Briefly provide sufficient evidence and analysis for determining whether to prepare a full Opportunity Impact Statement or a Finding of Equal and Expanded Opportunity;
Demonstrate and assist with compliance with laws when no Opportunity Impact Statement is necessary;
Facilitate preparation of a statement when one is necessary by identifying the pertinent issues to be addressed in the Opportunity Impact Statement; and
Determine the need for the project, potential effects of a project on the opportunity of a population, distribution of those effects within the population, and any available alternatives.

All stakeholders may prepare an Opportunity Assessment on an action at any time in order to assist agency planning and decision making. The ultimate goal of the Assessment is to determine whether a full-blown Opportunity Impact Statement is necessary. Where necessary to expedite consideration, a determination may be made solely by the regulatory body without public input, affording the regulatory agency a significant degree of discretion. If a “Finding of Equal and Expanded Opportunity” is made, the project may move forward as planned. However, if the Assessment determines that there will be a significant negative impact on opportunity as a result of the proposed project, a full Opportunity Impact Statement procedure will be initiated.

As timeliness is a substantial concern in the application of any new procedures, the OIS envisions proposals should have a mechanism to expedite review in a manner that continues to ensure equal opportunity. One such mechanism is an analog to the Uniform Guidelines on Employment Selection Procedures.⁴² The Uniform Guidelines create a single set of nondiscrimination principles that employers seeking federal contracts can affirmatively take to comply with federal law in testing and other employee selection procedures. Built upon practical agency experience, prior guidelines, court decisions, and the best research and standards of psychological professionals, the Uniform Guidelines allow federal contractors the ability to proactively ensure compliance with Title VII of the Civil Rights Act of 1964.⁴³ The Opportunity Impact Statement envisions a parallel set of Uniform Guidelines relating to equal and expanded opportunity that will create a presumption for a Finding of Equal and Expanded Opportunity, allowing compliant projects to move forward without further delay.

As with the Uniform Guidelines on Employment Selection Procedures, guidelines within the OIS would draw upon the expertise and research of social scientists familiar with the impact of government funded projects upon opportunity. Such knowledge could allow the development of numerical metrics for evaluation of potential adverse impacts to opportunity in areas such as health, education, housing, economic development, and infrastructure. The guidelines would lay out minimum standards required in crafting a proposal that expands opportunity equally; for example, by providing benchmarks based on such metrics as percentage of jobs created accessible to local residents, or other variants of Opportunity Metrics discussed below.

An Opportunity Assessment is not necessary if the agency has decided to prepare a complete Opportunity Impact Statement.

Full Opportunity Impact Statement Process

The Opportunity Impact Statement process consists of three stages:

Draft Opportunity Impact Statement
Public Comment Period
Final Opportunity Impact Statement

Draft Opportunity Impact Statements would be prepared in accordance with the scope of the project decided upon during the Opportunity Assessment, which will determine what opportunity factors and considerations will be examined. In addition, they must fulfill to the fullest extent possible the requirements established for final Statements. Those requirements should include:

The opportunity impact, measured by delivery of and/or access to services, job creation, business openings, and community opportunity to participate in the benefits of the project, with a discussion of community need;
Any adverse effects on the population’s opportunity which cannot be avoided should the proposal be implemented;
Alternatives to the proposed action or ameliorative effects, including a cost-benefit analysis; and
The degree to which the project will impact services or industries in a manner that will meet projected long-term community employment and infrastructure needs.
The ultimate format for Opportunity Impact Statements should encourage both solid analysis and clear presentation of the alternatives, allowing the agency, the applicant, and members of the affected communities to understand the opportunity implications of the proposed project.

Following the Draft Statement, the process provides for an open and substantive Public Comment Period, including proactive outreach to stakeholders, including:

Agencies that have jurisdiction by law or special expertise with respect to any service area or industry involved;
The project applicant; and
The public, affirmatively soliciting comments from those persons or organizations that are both directly and indirectly affected by the project proposed, or who would be affected by identified alternatives.

The final Opportunity Impact Statement will assess and consider all comments and respond in one of the following ways:

Require applicant modification of the proposed action;
Develop and evaluate plausible alternatives not previously given serious consideration by the agency;
Supplement, or modify the agency’s analyses;
Make factual corrections;
Explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency’s position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response.

Possible Opportunity Metrics

The data necessary to measure opportunity impact will frequently be available from existing sources. After identifying the relevant geographic area, agencies applying the Opportunity Impact Statement would draw first from existing federal, state, and municipal data, including Census data, to determine likely impact.⁴⁴

Not all of the metrics for measuring opportunity will be applicable for every project, but holistic consideration of projects across categories similar to those suggested here will ensure that potential projects address both short-term and long-term impacts on a community’s opportunity.

Possible metrics include both absolute opportunity and equality of opportunity based on covered characteristics across the following measures:

Economic Development – Small Businesses and Jobs: Does the project encourage economic development of the affected communities by promoting small businesses and creating high-quality, community-accessible jobs?
Contracting Locally – Does the project have contracting rules that employ local residents and assist local small businesses?
Accessible Jobs – Are new jobs created within the affected communities and accessible to community residents? If the jobs created are not compatible with the skills of community residents, does the project create on-the-job training or apprenticeship positions for community residents?
Revitalization – Does the project increase the number of vacant/unused properties, or does it utilize vacant property for purposes beneficial to the affected communities?
Equal Opportunity and Anti-Discrimination – Where required, does the project implement affirmative action in hiring or contract distribution, to help reform deep and/or abiding discrimination within industries or communities?
Non-Discrimination – Does the project provide equal, meaningful access to employment and services generated by the project to persons of all genders, races, ethnicities, primary languages, disability statuses, and sexual orientations?
Reducing Barriers to Mobility – Does the project include measures to ensure that the populations with the greatest barriers to upward mobility (i.e., under 200% FPL) have access to created jobs?
Rehabilitation and Recidivism Prevention – Does the project include measures or programs that reduce, rather than increase, arrest, incarceration, and recidivism?
Support systems – Will the project create or include child care, family leave, or other opportunities shown to enable equal job participation by women.

2. Health: Does the project improve or lessen the opportunity for impacted residents and communities to live under healthy conditions? This can be measured by examining:

Access to health care services – measured by the Health Resources and Service Administration’s Index of Medical Underservice.⁴⁵ Will the project increase or decrease access to primary care for underserved and vulnerable populations?
Nutrition – measured by the Institute of Medicine’s State of USA Health Indicators.⁴⁶ Will the project increase or decrease the percentage of adults able to conform to federal dietary guidelines as measured by federally collected data?
Physically Unhealthy Days – measured by the CDC.⁴⁷ Will the project decrease or increase the number of physically unhealthy days experienced by residents?
Environmental Exposure – Will the project entail environmental hazards or clean- up efforts?
Reducing Barriers to Mobility – Where the project creates new services, does the project include measures to ensure that the populations with the greatest barriers to upward mobility (i.e., under 200% FPL) have access to the health care created?
Cultural and Linguistic Access – measured by the Office of Minority Health’s Culturally and Linguistically Appropriate Services (CLAS) standards.⁴⁸ Are the projects’ benefits, services, and opportunities culturally and linguistically accessible?

3. Education: Does the project improve or lessen the opportunity for affected residents and communities to access quality education and job training?

K-12 – measured by state and Department of Education data on classroom size, school resources, and graduation rates. Will the project improve or worsen the educational opportunity of students in the affected communities?
School Integration – measured by the U.S. Census Bureau⁴⁹ and the Pew Hispanic Center.⁵⁰ Will school construction expansion or demolition increase or decrease school integration?
Higher education – measured by the National Center for Education Statistics’ Integrated Postsecondary Education Data System.⁵¹ Will the project increase or decrease the number of residents likely to enroll and complete degree programs?
Apprenticeships and Job Training – Will the project create job training or apprenticeship opportunities within the affected communities?
Child care, daycare, and preschool – measured by state data on child care and preschool availability. Will the project improve or worsen the ratio of childcare availability to the population of children in need of such care, considering also the projected population changes over the course of the project?
Reducing Barriers to Mobility – Where the project creates new services, does the project include measures to ensure that the populations with the greatest barriers to upward mobility (i.e., under 200% FPL) have access to the educational opportunities created?

4. Housing: Does the project improve or lessen the opportunity for affected residents and communities to access stable, safe and quality housing?

Affordable housing – Are provisions for more affordable housing integrated into new project designs? Does the project include measures to ensure that the populations with the greatest barriers to upward mobility (i.e., under 200% FPL) have access to more quality housing?
Property Values and Rent Levels – measured in part by the concentration of “rent stress” in the community, of those renters paying over 30% of income on gross rent. Are measures including in the project to maintain stable property values and rent levels?
Foreclosure Prevention – measured by records of foreclosures as well as concentration of “mortgage stress” in the community, of those homeowners paying over 30% of income on their mortgages. Does the project anticipate existing and potential foreclosures in the impacted community and integrate measures to assist those threatened by foreclosure?
Green Areas – Does the project increase or decrease the proximity of sizeable green areas (i.e., parks) to housing?
Residential Integration – measured by the U.S. Census Bureau.⁵² Does the project promote or discourage racially and socioeconomically integrated housing and neighborhoods, and does it include affirmative fair housing measures, as required under existing law?
Transportation and Related Infrastructure: Does the project make it easier or more difficult for the impacted community to access benefits, services, and opportunities? Does the project integrate the affected communities with surrounding communities, not only in terms of racial, ethnic, and socioeconomic integration, but also in terms of bringing services essential to opportunity to isolated populations, and increasing the civic participation of the affected communities?

Transportation – measured in part by distance to major transit hubs and average travel time to work. Does the project expand or restrict transportation paths utilized by the community impacted? Does it expand or restrict access to public transit, walkways, and bicycle paths? Does it support public transportation programs that reliably and efficiently help people who live in areas of high unemployment to commute to areas of high job growth and opportunity?

Economic Security – Does the project promote businesses or services that encourage or discourage economic security (e.g., banks vs. cash-checking facilities, bankruptcy prevention efforts such as credit counseling, and enforcement of fair lending laws)?

Civic Participation – Does the project include measures to increase voter registration, enfranchisement, and civic participation of the community?

No one project is likely to involve an inquiry into the full range of opportunity indicators set out above; rather, this non-exhaustive list suggests the range of factors likely to be relevant across multiple projects.

In many cases, the Opportunity Assessment or OIS will reveal no cause for denial or modification, and the project will go forward. Data and public comments developed in the process, however, may be part of subsequent monitoring or complaint resolution.

Where the OIS process reveals that a proposed project would violate federal law, the project clearly must be either rejected or amended to produce compliance. This includes, for example, evidence that a project would have a significant racially discriminatory effect, and that less discriminatory alternatives exist that would achieve the project’s purposes. In other cases, a proposed project may comply with the letter of the law, but public comment or investigation may reveal more effective methods of achieving the project’s goals, which the applicant may choose voluntarily to adopt or which might be negotiated with federal authorities. Where evidence of ongoing illegality arises during the course of the process, it should be addressed through agency enforcement action or, if necessary, referral to the Department of Justice.

Example: Publicly Funded Transportation Project

The construction of a new highway connecting a city with inner and outer ring suburbs will entail state and federal (Department of Transportation) funding over a period of 5 years. The project will include many positive opportunities for some communities, including job training, employment, contracting, and access to and from jobs, hospitals, schools, and shopping. There will also be short and long-term burdens, including air and noise pollution, increased traffic, and the displacement of people from their homes and neighborhoods.

Inherent in the development, funding, and approval of this proposed project are a range of decisions regarding the quality, quantity, and fair distribution of those burdens and benefits. Historically, those decisions have not always maximized the overall expansion of opportunity (e.g., jobs created, green areas developed), and have often imposed the greatest burdens and fewest benefits on communities of color, poor communities, and women.⁵³ Nor have these or other residents typically been a part of past decision making.

In deciding whether to authorize and underwrite the project, as well as identifying conditions on its approval, governmental and community leaders can use the Opportunity Impact Statement process as a way to gather and analyze relevant information; to consider equal access to opportunity in the context of viable alternatives, as required by federal equal opportunity laws; and to ensure democratic input, transparency, and accountability.

In this case, the Department of Transportation (DOT) would first engage in an Opportunity Assessment of whether the project has significant impact on the opportunity of the affected communities. This public document would “scope” the project—outlining the communities and metropolitan area affected—and determine whether the burdens and benefits of the project are distributed in a way that substantially impacts the expansion or retraction of opportunity for each impacted community. Community members and other interested groups would have the chance to submit their own Opportunity Assessments to DOT for consideration in the decision.

Given the breadth of a new highway project, DOT would likely find significant impact and determine that a full OIS is necessary. In creating a Draft OIS, DOT would collect and analyze data appropriate to the metrics listed above, including, for example:

The demographics of communities that would be affected, positively and negatively, by the proposed project, as compared with the identified alternatives and the metro area as a whole;
Relevant conditions within these communities—e.g., an existing concentration of environmental hazards or high asthma rates that make some communities particularly sensitive to new construction and pollution, transportation needs of the community (as related to access to health services, centers of employment) and how those might be alleviated or worsened by a new highway;
Predicted displacement of families and related impact on rates of homeownership within the community, by demographic group;
Job training opportunities and likely jobs created, as compared with other viable alternatives; and
Workforce demographics, employment rates, qualifications, and training needs of the relevant communities.
Opportunities for communities with high unemployment to quality jobs, education, and other mobility-inducing assets.

Alternative approaches might range from slightly different routes for the highway to a more substantial shift to mass transit.⁵⁴

Applicable federal, state, local, and international standards would be incorporated into the Opportunity Impact Statement process. Specifically, all programs that receive funding from the U.S. Department of Transportation are bound by Title VI of the Civil Rights Act of 1964, the Rehabilitation Act, and the regulations that the DOT has promulgated to implement each statute. These provisions, respectively, require federally funded programs to ensure that their activities do not have the effect of discriminating against or excluding people based on their race or disability. The Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA) further requires recipients of DOT funds to “ensure that persons displaced as a direct result of Federal or federally-assisted projects are treated fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole.” Both Title VI and the URA also require assistance to people with limited English proficiency.

Following publication of the Draft OIS, the community would have a meaningful opportunity to comment, including public forums where appropriate. DOT, in creating a Final OIS, would be called upon to respond to comments, either by changing elements of the project or explaining why the project differs in design from a comment’s recommendation. As with the Opportunity Assessment and the Draft OIS, the Final Opportunity Impact Statement would be a public document, both increasing transparency and documenting the agency’s decision-making process and compliance with existing law.

By utilizing the uniform evaluation instrument of the OIS, DOT would avoid redundancies and facilitate coordination of efforts by the Department of Labor, the Environmental Protection Agency, the Equal Employment Opportunity Commission, and the Department of Justice in complying with equal opportunity mandates. It would also greatly reduce the likelihood of civil rights litigation, which could significantly delay the project and drive up its costs.

Timing

The Opportunity Impact Statement is intended to facilitate and improve the evaluation and enforcement processes of agencies, while creating an “opportunity multiplier effect,” such that government projects assist in building long-term economic security and mobility for all Americans. To that end, the OIS should draw on the best elements of other impact statements while improving on problematic areas. Among other goals, it should increase efficiency of review through greater coordination, predictability, and uniformity of data collection, review, and decisionmaking.

Research on the operation of Environmental Impact Statements shows that preparation times vary widely, from less than two to more than a dozen months in the case of environmentally complex projects. Development of OIS procedures should draw from best practices for swift, yet rigorous review. Because the OIS process will proceed in parallel with environmental and other reviews, it should not result in significant additional delays in needed projects.

In these times of pursuing economic recovery, the OIS seeks to build upon current best practices and resources of the federal government. To that end, its design and structure should seek the use of best available data already accessible to agencies and communities. In this way, the burden of data collection is minimized.

Conclusion

The Opportunity Impact Statement carries the potential to expand opportunity greatly in communities around the country while encouraging public accountability and civic engagement. Moreover, it is a flexible tool that can be applied to any number of projects, big or small. We believe that providing the Opportunity Impact Statement is an important step in realizing our society’s promise as a land of opportunity.

Notes:

1. For a summary of government data on opportunity for different groups at the national level, see The State of Opportunity in America, 2009.

2. See infra “Legal Underpinnings.”

3. See, e.g., Nat’l Conf. of State Legislatures, Fiscal Impact Statements, Nat’l Conf. of State Legislatures, Sites of Legislative Fiscal Offices

State of Oregon, Staff Measures Summaries Home Page; South Carolina Budget & Control Board, Office of State Budget – Fiscal Impact Statements.

4. Marc Mauer, Racial Impact Statements: Changing Policies to Address Disparities, 23 CRIM. JUSTICE No. 4 (2009).

5. Pub. L. 91-190, 42 U.S.C. 4321-4347, Jan. 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982.

6. 42 U.S.C. § 2000d et seq.

7/ 42 U.S.C. § 2000e et seq. (1964).

8. Sections 501, 503, and 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C.A. §§ 791, 793, and 794.

9. 20 U.S.C. §§ 1681-88.

10. 29 U.S.C. § 621, as amended (1967).

11. 42 U.S.C. §§ 12101-12213, as amended (1990).

12. Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., as amended.

13. 15 U.S.C. § 1681 (1996).

14. 12 U.S.C. §§ 2801-2810 (1975).

15. Hospital Survey and Construction Act, P.L. 79-725 (1946).

16. 42 U.S.C. § 1396a(a)(30)(A) (2006); see also 42 C.F.R. § 447.204 (2006).

17. Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs, 42 U.S.C. § 4600 et seq. (1970).

18. 30 Fed. Reg. 12319 (1965), as amended.

19. 34 Fed. Reg. 12985 (1969), as amended.

20. 45 Fed. Reg. 72995, 3 CFR, 1980 Comp., p. 298 (1980).

21. 58 Fed. Reg. 51735 (1993); see also Executive Order 13497, 74 Fed. Reg. 6113 (2009).

22. 59 Fed. Reg 7629 (1994).

23. 63 Fed. Reg. 13111 (1998).

24. 65 Fed. Reg. 46563 (2000).

25. 64 Fed. Reg. 31105 (1999).

26. 69 Fed. Reg. 28037 (2004).

27. 65 Fed. Reg. 39775 (2000).

28. 65 Fed. Reg. 61251 (2000).

29. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

30. G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969.

31. G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.

32. G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981.

33. E.g. Roper v. Simmons, 543 U.S. 551, 576 (2005) (citing the prohibition on juvenile death penalty in the Convention on the Rights of the Child); Lawrence v. Texas, 539 U.S. 558 (2003).

34. 63 Fed. Reg. 68991 (1998), 38 ILM 493 (1990).

35. For a comprehensive analysis and recommendation of best practices in reinstituting the Interagency Working Group on Human Rights, see Catherine Powell, Human Rights at Home: A Domestic Policy Blueprint for the New Administration (Oct. 2008).

36. City and County of San Francisco, Local Implementation of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Chapter 12K (2000).

37. 45 Fed. Reg. 72995, 3 CFR, 1980 Comp., p. 298 (1980).

38. E.g., 10 CFR 1040.11 -1040.14 (regulating the Department of Energy); 34 CFR 100.1-100.13 (regulating the Department of Education); 49 CFR 21.1-21.23 (regulating the Department of Transportation).

39. 58 Fed. Reg. 51735 (1993).

40. 74 Fed. Reg. 6113 (2009).

41. These goals have been tested in fora such as the Environmental Impact Statement, as created by NEPA, Pub. L. 91-190, 42 U.S.C. 4321-4347, Jan. 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, § 4(b), Sept. 13, 1982. Both successes and pitfalls of existing impact statements are discussed throughout this document.

42. 41 CFR 60-3 (1978).

43. 42 U.S.C. § 2000e et seq.

44. Federal data that demonstrates access to opportunity is available on a wide range of issues. See The Opportunity Agenda, The State of Opportunity 2009.

45. Health Resources & Servs. Admin., U.S. Dep’t of Health & Human Servs., HPSA Designation.

46. Institute of Medicine, State of U.S.A. Health Indicators.

47. Ctrs. for Disease Control & Prevention, Health-Related Quality of Life – Prevalence Data, Mean Physically Unhealthy Days.

48. Office of Minority Health, U.S. Dep’t of Health & Human Servs., National Standards.

49. U.S. Census Bureau, Housing Patterns.

50. Pew Hispanic Center, Racial and Ethnic Composition of Schools, August 30, 2007, Table 1.

51. Nat’l Ctr. for Educ. Statistics, U.S. Dep’t of Education, Integrated Postsecondary Education Data System.

52. U.S. Census Bureau, Housing Patterns, supra note 23.

53. See, e.g., Executive Order 12898, 59 Fed. Reg 7629 (1994); St. Francis Prayer Ctr. v. Michigan Dept. of Envtl. Quality, EPA Complaint 05R-98-R5 (commonly known as the “Select Steel” case, in which parishioners from a largely African American community alleged the granting a permit for the construction of a steel-recycling plant would have a discriminatory impact on the community of color in violation of Title VI); U.S. Environmental Protection Agency, “In re: Shintech Inc., Order Responding to Petitioners’ Requests that the Administrator Object to Issuance of State Operating Permits, Permit Nos. 2466-VO, 2467-VO, 2468-VO,” Oct. 28, 2002, pp. 1–2 (commonly known as the “Shintech” case, in which advocacy groups alleged, on behalf of the largely low-income community of color, that granting a permit for a toxic waste facility would have a discriminatory impact on the community of color in violation of Title VI).

54. See Labor/Cmty. Strategy Ctr. v. L.A. County Metro. Transp. Auth., Case No. CV 94-5936 TJH (Mcx), Consent Decree (1996), (holding that “equal and equitable access” to a “fully integrated mass transportation system” requires that long-range planning, capital investment, and annual budgets consider and give priority to the need of predominantly low-income “transit-dependent” residents).

The State of Opportunity in America

Acknowledgements

This report was written by Meredith King Ledford, MPP, and reviewed by Juhu Thukral and Ross Mudrick of The Opportunity Agenda.

This report was made possible in part by a grant from The Libra Foundation. The views and opinions expressed are solely those of the report’s authors and The Opportunity Agenda.

The Opportunity Agenda would like to thank the following individuals for their invaluable comments and assistance in the preparation of the report: Algernon Austin, Ph.D., Director of the Race, Ethnicity, and the Economy Program, Economic Policy Institute; Marc Mauer, Executive Director, The Sentencing Project; and Brian Smedley, Ph.D., Vice President and Director of the Health Policy Institute, The Joint Center for Political and Economic Studies.

We would also like to thank Eric Mueller and Ramona Ponce of Element Group, and Tony Stephens of The Opportunity Agenda, for their work on the design process. This report was produced using green and recycled materials, at Fine Print INC.

Opportunity in America

This report documents America’s progress in protecting opportunity for everyone who lives here. By analyzing government data across a range of indicators, it reports on the state of opportunity for our nation as a whole, as well as for different groups within our society.

Opportunity is one of our country’s most cherished ideals and one of our most valuable national assets. The promise of opportunity inspires each generation of Americans—regardless of race, ethnicity, class, gender, or national origin—to strive to reach his or her full potential. Fulfilling this promise not only benefits each of us individually, but also society as a whole. In order to capitalize on our nation’s potential, we must ensure that the doors of opportunity are open to all Americans as we work to move forward together.

The Current Economic Crisis

As this report goes to press, the nation is facing the most daunting economic crisis since the Great Depression, including steep increases in unemployment, home foreclosures, and lost assets. Yet, because public sources of governmental data generally reflect a time lag of a year or more, much of the full brunt of today’s economic trauma is not reflected in this report. On many indicators of opportunity, the present reality is likely far worse than the most recent available year’s statistics would suggest. The quickly changing economic environment emphasizes the importance of creating a centralized, public, online system that provides “real-time” access to government opportunity data as it becomes available, disaggregated by demographic and regional differences. Such a system would greatly aid governmental, academic, and civil society groups in their efforts to protect opportunity under challenging circumstances, and we recommend that the federal government take action quickly to establish it. In the interim, however, we provide here some of the most recent available data regarding opportunity during the current economic crisis.

Unemployment, Foreclosure, and Bankruptcy

As of early 2009, the economic outlook was dismal. According to three key indicators–the unemployment rate, the foreclosure rate, and the bankruptcy rate—economic opportunity was severely limited. Jobs were scarce, particularly in communities of color. As of February 2009, 12.5 million people were unemployed, putting the overall unemployment rate at 8.1%. Men were more likely to be unemployed than women–the rate of unemployment was 8.1% for adult males as compared to 6.7% for adult females. African Americans, with an unemployment rate of 13.4%, were nearly twice as likely to be unemployed as whites, whose rate was 7.3%. The rate for Latinos was also disproportionately high, at 10.9%. However, Asian Americans had a lower than average rate of unemployment, at 6.9%.1

The January 2009 foreclosure rate showed that a mainstay of the American dream and a historical path to wealth accumulation–homeownership–was increasingly out of reach even for those who had once been on their way to achieving this dream. RealtyTrac, a national online database of foreclosed properties, reported that between January 2008 and January 2009, the foreclosure rate2 increased 17.8% to 1 in every 466 U.S. housing units.3

As a result of the economic downturn, many Americans found themselves unable to keep up with their mortgage, credit card, and auto loan payments, which in turn led to a sharp increase in bankruptcy filings. According to the January Credit Trend report by Equifax, Inc., one of the largest U.S. credit bureaus, the bankruptcy rate increased 25% between January 2008 and January 2009. The same report showed that almost 7% of all homeowners were behind 30 days or more on their primary-residence mortgages in January 2009, up by more than 50% since January 2008. Moreover, 4.2% of payments on credit cards were at least 60 days late, up 29.5% since January 2008, and 1.9% of borrowers of auto loans from carmakers were 60 days behind on the loans, an 18.8% increase from January 2008.4

Our Assessment of Opportunity for 2009

Because achieving full and equal opportunity is a core national commitment, it is essential to measure our success in fulfilling that commitment, just as we measure our nation’s economic health and military preparedness. By gauging how the nation fares in protecting opportunity, we can build on our successes and address those areas where we are falling short.

In February 2006, The Opportunity Agenda released The State of Opportunity in America. The report analyzed and measured the nation’s progress along six values of opportunity, mentioned below. An update one year later, in the 2007 report, found that despite some positive changes, significant opportunity gaps persisted in wages, education, housing, the criminal justice system, health care, and other areas. In some important areas, such as access to health care, opportunity had significantly decreased.

Now, in 2009, examination of these and other opportunity indicators finds that access to full and equal opportunity is still very much a mixed reality. The nation has made great strides in increasing opportunity in some areas and for some communities, but many groups of Americans are being left behind in ways that hard work and personal achievement alone cannot address. A review of the latest two years of available data reveals that opportunity in the United States remains at a crossroads.

Why Measure Inequality?

As our analysis indicates, different American communities often experience starkly different levels of opportunity, and there is real reason to believe that the current crisis is affecting some communities far more severely than others.

For example, in recent years, Latino and African American families have already found themselves struggling to push forward and maximize opportunity. Latino families actually experienced a decrease in real median income even as the country experienced an increase in its gross domestic product.5 Latinos consistently had the highest participation in the labor force of America’s major racial and ethnic groups between 2000 and 2007. Their decline in real median income highlights their diminishing returns, in terms of income, from their work.6

African Americans also did not attain lasting economic security when the American economy was gaining ground, especially when considering the subprime mortgage crisis. From 2000 to 2004, African Americans were building wealth through homeownership. During this time, the homeownership rate for African Americans increased from 47.2% to 49.1%.7 However, between 2006 and 2007, the rate declined 1.5%, returning it to its 2000 level of 47.2%.8 This decline may be explained by African Americans’ disproportionate representation in the subprime mortgage market, which has had a high rate of foreclosure.9 Subprime mortgages, while sometimes beneficial to individuals who have less-than-perfect credit records, are often aggressively marketed to the elderly, people of color, and low-income individuals regardless of credit history.10

These data are indicative of a larger threat to opportunity and security in America. Research has found that a basic standard of living that provides financial security for a family of four costs $48,788 annually. Unfortunately, 29.8% of families have incomes below this amount.11 African American and Latino families fare even worse: 53.0% of African Americans and 57.4% of Latinos have incomes insufficient to achieve a basic standard of living.12

The Opportunity Agenda views opportunity through the lens of our most deeply held values: Security, Equality, Mobility, Voice, Redemption, and Community. This report measures the degree to which we as a society are living up to these values, and incorporating them into our most critical decisions. Key findings of this year’s report include:

Security

Americans believe that we are all entitled to a basic level of education, economic well-being, health, and other protections necessary to human dignity. Recent years saw only two areas where opportunity for security increased—decreases in heart disease and cancer mortality rates—while other indicators were mixed or reflected declines in opportunity.

Access to health insurance is one indicator of security. While the number of people without health insurance decreased overall and for most racial and ethnic groups, Asian Americans experienced an increase in lack of coverage. Moreover, Americans also experienced increases in out-of-pocket health care costs and the rate of delaying medical care due to cost.

Regarding economic security, the overall poverty rate did not change significantly between 2006 and 2007—12.5%, or 37.3 million people, lived below the poverty threshold of $10,590.13 However, the overall child poverty rate increased, as did the poverty rates for children of color. The overall child poverty rate was 18% (13.3 million children) in 2007, an increase of 3.4% since 2006.14 Poverty rates also increased for naturalized citizens and noncitizens. Additionally, although poverty rates for most groups of workers decreased, African American workers experienced an increase in poverty.

Finally, the unemployment rate increased significantly for all groups.

Our overall assessment indicates that opportunity for security declined for the years examined.

Equality

Ensuring equal opportunity means not only ending intentional discrimination, but also removing unequal barriers to opportunity. The wage gap is a crucial indicator of equality. In 2007, women’s median income was 78.2% of male median income, reflecting no significant change from 2006.15 Nevertheless, opportunity improved with respect to the gender wage gap, because white and Latina women made some strides toward closing their respective gaps.

The race and ethnicity wage gap continues as well. The wage gaps between African Americans and whites and Latinos and whites increased during this time. In 2007, African American individual median income was 75.2% of white median individual income, compared to 77.4% of white median individual income in 2006, a 2.9% increase in the gap. The increase in the Latino-white wage gap was smaller, increasing 2.0%.16 In the same time period, the gap between white individual median income and Asian American individual median income decreased.17

Regarding asset-building, a significant gap persists between whites and African Americans. However, the racial gap in households with debt or very few assets decreased between these two groups.

Gaps in educational achievement are also key indicators of equality. The gap in high school dropout rates between African Americans and whites and Latinos and whites increased. However, the race and ethnicity gap in high school degree attainment decreased. In terms of college degree attainment, the gap between Latinos and whites closed significantly.

Finally, the racial gap in incarceration rates decreased for women, but increased for men.

Our overall assessment indicates that equality of opportunity was mixed for the years examined.

Mobility

Every person in America should be able to fulfill his or her full potential through effort and perseverance. Where a person starts in life economically, geographically, or socially should neither dictate nor limit his or her progress and achievement. In terms of individual median income, only whites took a meaningful step forward. However, median family income increased overall and for white and African American families. Furthermore, distribution of income by family increased, meaning that the share of family income for low- and middle-income families increased.

Education is a key indicator for mobility. High school degree attainment did not significantly change for the overall population or most groups, but it did increase significantly for Latinos. However, the high school dropout rate for women and African Americans rose. Finally, college degree attainment increased overall and for all groups.

Our overall assessment indicates that opportunity for mobility improved for the years examined.

Redemption

Americans believe strongly in the value of a chance to start over after misfortune or missteps. Access to drug treatment for prisoners and voting rights after completion of sentence improved. However, opportunity decreased as related to the incarceration rate, and to the increased incarceration of immigrants.

Our overall assessment indicates that opportunity for redemption was mixed for the years examined.

Community

A shared sense of responsibility for each other is a crucial element of opportunity. While public opinion that government has a responsibility to those who need assistance increased, trust in the government declined.

Another key indicator of community is racial segregation in schools. In the twelve years from 1993-94 to 2005-06, k-12 public education segregation significantly decreased for white and American Indian students, but significantly increased for African American, Latino, and Asian American students.

Our overall assessment indicates that opportunity for community was mixed for the years examined.

Moving Forward

From the assessments across these values, we found that, despite some areas of improvement, opportunity for all Americans is at risk, and millions of Americans are facing an opportunity crisis. These past few years have seen an economy in turmoil, impaired financial mobility, marginal prospects for educational advancement, and a broken health care system. These conditions thwart the nation as a whole as it strives to be a land of opportunity for the 21st Century. At the same time, women, people of color, and moderate- and lower-income individuals and families are being hardest hit and left behind as they face multiple barriers to opportunity.

Despite positive news in some areas such as overall degree attainment, representative government, and distribution of family income, these indicators reflect a nation in which opportunity is at grave risk across multiple dimensions. The ability of American families to make a better life for their children is stifled by increased child poverty; accessing health care is increasingly difficult; and more Americans are behind bars in federal prisons. And despite an historic presidential election, equality of opportunity has declined for millions of Americans, with the wage gap faced by Latinos and African Americans increasing, and Latina and African American women making less than 70 cents for every dollar made by men overall.

These barriers are a problem not only for individuals and families, but also for our economy and nation as a whole. They also present an opportunity. Addressing them now would translate to thousands more college graduates prepared for a 21st Century global economy, millions of healthier children in stronger communities, higher wages and greater productivity for American workers, far fewer mort- gage defaults and bankruptcies, and far less strain on our social services and justice system. Conversely, the areas of improved opportunity revealed by our analysis represent a foundation and lessons on which to build as the nation works to restore the American dream for everyone who lives here.

Recommendations Toward Fulfilling Opportunity for All Americans

This report holds important implications for policymakers, civic leaders, and all Americans concerned about the state of opportunity in the United States. Through bold leadership, innovative policies, and the participation of the American people, the nation’s elected leaders can ensure the promise of opportunity in America.

Security

A range of opportunity-expanding policies can enhance the security of our nation and its residents, especially in the context of economic, health, and safety concerns. Our recommendations include:

Assist low-income families and insecure communities in moving into the middle class.

Problems of poverty and income insecurity can be reduced by expanding policies that promote living wage standards; job training and skill-building for the 21st Century global economy; access to affordable child care; quality education; and temporary financial assistance programs. Ways to support low- income communities include promoting mixed-income housing; encouraging regional planning to address inequality between urban and suburban jurisdictions; and supporting public transportation programs that reliably and efficiently help people who live in areas of high unemployment to commute to areas of high job growth and opportunity. Use of an Opportunity Impact Statement in assessing the best use of public resources and infrastructure will maximize positive impact on insecure communities. (See Community recommendations for description of an Opportunity Impact Statement.)

Help low-income families develop assets.

Policies that help poor and low-income families to develop financial literacy and long-term assets like savings accounts, homeownership through fair and appropriate loans, and savings for college education are critical to supporting secure communities. These strategies shift the emphasis of poverty reduction from solely providing cash assistance to helping poor and low-income families acquire resources necessary to achieve greater financial security. Promising approaches include creating individual savings accounts; expanding the earned income tax credit and child tax credit; reducing asset limits for public benefit programs; and implementing anti-predatory lending measures.

Eliminate disparities in access to affordable quality health care and the tools for healthy living.

Health inequality and insecurity must be addressed by federal, state, and local efforts to develop a universally accessible, comprehensive, and equitable health care system. This includes ensuring the fulfillment of Americans’ human right to quality health care; providing greater financial commitment to local community-based health centers; increasing access to healthy foods and safe playgrounds for all Americans; providing safe, confidential, and reliable access to contraception and other reproductive health care needs in a manner that is linguistically and culturally appropriate; and creating clean environments that eliminate toxic air and water quality.

Equality

There is a continued need for vigorous enforcement of existing equal opportunity protections and strengthening of human rights laws and standards. Our recommendations include:

Increase the staffing and resources that federal, state, and local agencies devote to enforcing human rights and equal opportunity laws. Particularly in light of this year’s unprecedented federal economic recovery investments, there is a need to strengthen the capacity of the Coordination and Review Section in the U.S. Department of Justice’s Civil Rights Division. This Section is charged with the immense task of coordinating civil rights enforcement across federal agencies, and has not historically been utilized effectively. It is also critical that the offices for civil rights in federal and other agencies be fortified to properly protect equal opportunity. In light of substantial economic stimulus spending targeting job creation and infrastructure, and past neglect of civil rights enforcement, White House oversight and inter-agency coordination of these efforts are warranted. Increased attention to civil rights enforcement will result in concrete steps forward in opportunity for all Americans, whether it is in equal wages and work opportunities, fair housing, education, or other areas of public spending.
Institute, at the federal level, an Interagency Working Group on Human Rights and develop a U.S. Commission on Civil and Human Rights. Given America’s role as a leading player in establishing a human rights framework, it is important that we make a clear commitment as a nation to our obligations to protect and strengthen human rights both here at home and abroad. An Interagency Working Group on Human Rights can play a proactive role in ensuring that U.S. international human rights responsibilities are implemented and coordinated domestically among all relevant executive branch agencies and departments. In addition, there is a need to restructure and strengthen the existing U.S. Commission on Civil Rights, transforming it into an effective U.S. Commission on Civil and Human Rights. This body would operate as a national human rights commission, which would provide expertise and oversight to ensure that we progress toward provision of full human rights for all. Both of these institutions will address disparities as they affect racial and ethnic groups, women, and members of marginalized communities.
Improve methods and resources for detailed data collection for the general population and groups. It is critical that government, researchers, and everyday Americans have access to information that is disaggregated to help identify and resolve trends in unequal opportunity. This report illustrates that data currently available is limited. Improved data collection by all levels of government can assist in identifying discriminatory patterns in employment, education, housing, lending, and the criminal justice system, and lead the way to development of innovative solutions. For example, data can be used more effectively to better detect potential bias in the employment context by comparing companies’ workforce diversity with the composition of an area’s qualified workforce. We therefore recommend a centralized, public, online system that provides “real-time” access to government opportunity data as it becomes available, disaggregated by demographic and regional differences.

Mobility

Renewing socioeconomic mobility requires that we ensure access to quality education, skill-building programs, and other gateways to wealth building and human development. Our recommendations include:

Promote early childhood and K-12 school programs that improve the quality of education and graduation rates. Innovative policies that invest deeply in children’s education and improve graduation rates can reap great rewards in mobility over a lifetime. Promising strategies include universal pre-k; increased funding to under-resourced schools; integrated services that address family and community needs; expanding the school day to increase time spent on learning; and providing programs for English Language Learning that promote integration and education for immigrant children.
Invest in comprehensive and integrated education efforts that expand opportunity for all. Education remains a path to mobility throughout our lifetimes. This means that investments must be made in education on financial literacy, including debt and business counseling, saving, and asset- building; job training and skill-building programs for a 21st Century global economy; educating incarcerated people for reentry; linguistic and cultural competence for immigrants; and reducing the financial barriers to college, with a special focus on increasing the share of need-based grants over student loans. It is critical that job training programs emphasize preparedness for quality jobs that pay a living wage and are tailored to the differing skills of all workers.
Expand living wage laws at the federal, state, and local levels to help ensure that full-time minimum wage earners can support their families. Living wage laws at the local level ensure that city or county governments will not contract with businesses that pay workers wages less than is needed to live above poverty levels, given local economic conditions. A focus on living wage— rather than merely on a minimum wage that rarely meets basic needs—would serve to close racial, ethnic, and gender gaps in wages, and also move all Americans closer to achieving financial stability for their families.

Redemption

The nation’s criminal justice policies should protect the public, deter future offenses, and provide restitution to victims. However, they should also restore and rehabilitate individuals and communities whose lives are affected both directly and indirectly by criminal justice policies. Our recommendations include:

Prioritize crime prevention, rehabilitation, and reentry over increased incarceration. There has been a growing trend toward incarceration as a problem-solving tool, particularly in low-income and minority communities, as reflected in high incarceration rates and persistent racial disparities. Criminal justice policy that supports opportunity requires successful crime prevention strategies while fostering rehabilitation and productive reentry. Such strategies include expanding availability of substance abuse treatment, both broadly in society and for those mired in the criminal justice system; basing criminal sentencing on individualized culpability, control, and circumstances, rather than on mandatory minimum sentencing policies that have exacerbated racial and ethnic inequality; expanding use of restorative justice programs; ending the sentence of life without parole for youth; and promoting appropriate re-entry policies that provide support, living wage jobs, and restoration of voting rights for people who return to society from prison and work to re-integrate into their communities.
Expand community policing—a crime-prevention strategy that emphasizes community input, collaboration, and tailored responses to crime and disorder. Policing policies should promote neighborhood safety, address community needs, and protect opportunity and human rights. Many community policing models emphasize a problem-solving framework that shifts the emphasis from arrest and punishment to addressing community needs. Other models encourage prevention strategies that engage and provide support to youth and families. Such approaches are especially helpful where there is an increase in the homicide rate for communities of color. This policing framework draws heavily on the goals and law enforcement needs of the community, which suffers most when crime is poorly addressed and redemption is denied.
Promote workable immigration policies that uphold our national values. Increasing incarceration of immigrants, either for violations of civil immigration law or for arrests related to nonviolent criminal acts, is not a realistic policy solution for addressing immigration. Immigrant detention, especially of families and children, is harmful and counter to our national ideals of dignity, redemption, and the protection of vulnerable people. Immigration enforcement should shift back to the federal level, proven supervised release practices should replace detention, and a realistic pathway to citizenship should be adopted.

Voice

Many factors influence the diversity of voices that participate in the national discourse. Such participation is a key factor in achieving equal access to opportunity, both through focusing dialogue on the needs of underrepresented communities and by creating a venue for demanding accountability and transparency for actions taken by the public and private sectors. Our recommendations include:

Ensure and expand political participation among diverse groups of Americans. In order to achieve democratic participation and representation that reflect the full spectrum of American life, we need the active political participation of all groups in our communities. Central to this goal is equal access to the vote, with policies that address complications caused by geographic and language barriers, faulty voting equipment and infrastructure, inadequately trained poll workers, state laws disenfranchising people with felony convictions, and other state and federal policies that disproportionately limit voting among marginalized groups. For example, Election Day voter registration is a promising practice used by a growing number of states, as are laws restoring the voting rights of people emerging from prison.
Promote local ownership and operation of new and traditional media outlets. Deregulation and consolidation in the media and telecommunications industries have resulted in diminished opportunity for independent media that address the needs of diverse groups to gain a foothold. It is critical to ensure the participation of communities of color in political and cultural life by creating opportunities for diverse voices to affect the public discourse on issues that matter to them.
Bridge the remaining digital divide among diverse communities. The expanded availability of communications and digital technologies can and should result in concrete benefits for all sectors of American life. Equitable investment in digital infrastructure across communities will create economic and educational opportunities for all Americans, including information about financial literacy and local resources such as access to healthy foods and recreational spaces. Furthermore, protecting Net Neutrality is a key step in ensuring that the internet remains a diverse and democratic forum for all communities.

Community

Inclusive policies that tap the strength and contribution of all our diverse communities are crucial to the progress of our nation. Our recommendations include:

Evaluate public expenditures through the lens of an Opportunity Impact Statement. All levels of government can and should use a new policy tool—an Opportunity Impact Statement—as a requirement for publicly funded or authorized projects, especially those that are tied to economic recovery. Examples of potential projects that might require such an assessment include school, hospital, or highway construction, or the expansion of the telecommunications infrastructure. The statements would explain, based on available data, how a given effort would expand or contract opportunity in terms of equitable treatment, economic security and mobility, and shared responsibility, and they would require public input and participation. In addition to leading to concrete investments that move all Americans forward together, this participatory tool can help restore Americans’ trust in the government.
Make expanding opportunity a condition of government partnerships with private industry. Government agencies at all levels can and should require public contractors to invest in communities by paying a living wage tied to families’ actual cost of living for that particular locale; insisting on employment practices that promote diversity and inclusion; and ensuring that new technologies using public resources or receiving other benefits include public interest obligations and extend service to all communities.
Develop practical immigrant integration policies that assist newcomers in attaining full participation in the social, cultural, and political life of our nation. Given the important role that immigrants play in America’s cultural and economic life, it is critical that we create effective and inclusive immigrant integration policies. These include programs that educate new Americans about their rights and responsibilities in the workplace, in civic participation, and relating to law enforcement and other institutions. An important element of these policies is assisting new Americans in learning English and providing multilingual access to necessities like healthcare and basic rights like voting for citizens. A key corollary to this is the need to better equip our infrastructure and communities to incorporate diverse new members. These efforts should be pursued alongside immigration reform that includes a pathway to citizenship for the nation’s 12 million undocumented immigrants.

Measuring Opportunity — Our Method of Assessment

For this report, we assessed the progress of opportunity by examining many of the same indicators as in The State of Opportunity in America, released in 2006. We measured “change” in opportunity by reviewing 2008, 2007, 2006, and 2005 data from mainly federal sources (Note: for a small number of indicators, the most recent official data is from 2004). For the indicators available, we calculated the percent change over the most recent year that data was available (i.e. from 2006 to 2007 or 2005 to 2006). For certain indicators, we measured a gap or a disparity between subpopulations and the majority population. For example, in the instances of racial and ethnic gaps, the white population served as the comparison group and in the instances of gender gaps, men served as the comparison group.

Change in opportunity for one indicator in the community dimension—k-12 public school segregation— was measured using longer trend data. We assessed public school segregation using enrollment data in public schools over a thirteen-year period from the 1993-94 to 2005-06 school years. Additionally, change in opportunity for three indicators in the redemption dimension–drug treatment for prisoners, voting rights while imprisoned, and voting rights after completion of sentence–was measured by assessing the passage of legislation over a one-year period.

Racial and Ethnic Categories

Each indicator calculated the change over the time period for the nation as a whole, as well as disaggregated by gender, race and ethnicity, and income when data was available. Because the data sources were largely federal, racial categories for many of the indicators in this report are the same as the racial and ethnic categories utilized by the federal government. Hence, the racial categories are defined as the following:

White: any person who self-identified as white only and non-Hispanic.
Black: any person who self-identified as black only.
Asian: any person who self-identified as Asian only.
American Indian and Alaska Native (AIAN): any person who self-identified as AIAN only.
Hispanic: any person of any race who self-identified as Hispanic.

Because the Hispanic ethnicity category is not mutually exclusive from the race categories, there is some double counting of individuals who identified as black and Hispanic, Asian and Hispanic, and AIAN and Hispanic when federal sources were used. However, the white race category includes only individuals who identified as white in federal sources.18 Additionally, American Indian and Alaska Native data is rarely available in federal sources, which explains its large absence in this report. In a few instances, in which the data sources utilize different racial categories, this report’s indicators do as well. (Note: In the narrative of this report, we use these terms—African American, Latino, and Asian American—rather than the categories used in the sources in recognition that they are the prevailing terminology for race and ethnic categories.)

Limitations

We recognize that opportunity may be defined and measured in many ways. This assessment is limited in its ability to capture all dimensions of opportunity. Annual data were not available for some indicators, and therefore, some indicators that were in the original report and the 2007 update were omitted from this report. In addition, we encountered significant limitations in the data related to opportunity that government and other institutions collect. For example, data are often unavailable or are inadequate for many racial and ethnic groups other than whites, African Americans and Latinos.

Further, these broad racial and ethnic categories often fail to adequately capture the diversity within U.S. racial and ethnic groups, which may vary considerably on the basis of immigration status or nativity, primary language, cultural identification, and area of residence. A full assessment of opportunity should include a consideration of how opportunity varies along these dimensions. For example, we did not find group information such as variations among Asian American and Hispanic nationality groups.

Similarly, federal data are rarely presented disaggregated by both race and ethnicity and measures of social class or socioeconomic status. Yet the opportunity barriers for low-income whites may differ in important ways from those of more affluent whites and some communities of color. We encourage researchers to examine how opportunity indicators differ by race, ethnicity, gender and income, and to explore their interaction. We also urge federal, state, and local governments to collect and disaggregate data along the broader spectrum of dimensions discussed above.

Nonetheless, by assessing progress across a range of opportunity indicators, as this report does, we hope to provide a summary of how the nation is experiencing opportunity today. To see all of the indicators and for more information, please visit www.opportunityagenda.org.

Notes:

1. “The Employment Situation: February 2009,” The Bureau of Labor Statistics, March 6, 2009.

2. The foreclosure rate includes filings of default notices, auction sale notices, and bank repossessions.

3. “Foreclosure Activity Decreases 10 Percent in January,” RealtyTrac, Inc.

4. “Factbox-Equifax US consumer credit trends for January,” Reuters.

5. Austin, Algernon and Maria Mora, Hispanics and the Economy: Economic Stagnation for Hispanic American Workers, throughout the 2000s, Economic Policy Institute, Briefing Paper #225. October 31, 2008, pg. 1-2.

6. Ibid.

7. Austin, Algernon, Reversal of Fortune: Economic Gains of 1990s overturned for African Americans from 2000-2007, Economic Policy Institute, Briefing Paper #220. September 18, 2008, pg 6.

8. Ibid, and US Census Bureau, Housing Vacancies and Homeownership, “Annual Statistics 2007,” Table 20.

9. Austin, Algernon, Reversal of Fortune: Economic Gains of 1990s overturned for African Americans from 2000-2007, Economic Policy Institute, Briefing Paper #220. September 18, 2008, pg 6.

10. For more information on subprime loans and predatory lending practices, see Subprime Loans, Foreclosure, and the Credit Crisis: What Happened and Why? – A Primer, Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University and Women are Prime Target for Sub- prime Lending: Women are Disproportionately Represented in High-Cost Mortgage Market, The Consumer Federation of America, December 2006.

11. Lin, James and Jared Bernstein, What We Need to Get By, Economic Policy Institute, Briefing Paper #224. October 29, 2008, pg. 2.

12. Ibid., pg. 6.

13. U.S. Bureau of the Census, Current Population Survey, Annual Social and Economic Supplement, “Historical Poverty Tables – People”, Table 24 and U.S. Bureau of the Census, Current Population Survey, Annual Social and Economic Supplement, “Historical Poverty Tables – People”, Table 1.

14. U.S. Bureau of the Census, Current Population Survey, Annual Social and Economic Supplement, “Historical Poverty Tables – People”, Table 3.

15. U.S. Census Bureau, Current Population Survey, Annual Social and Economic Supplements, “Historical Income Tables – People” Table P-36. 16 U.S. Census Bureau, Current Population Survey, Annual Social and Economic Supplements, “Historical Income Tables – People” Table P-4.

15. Ibid.

16. See the “note” section at the end of any federal source to find the definition of racial categories used.

17. Ibid.

18. See the “note” section at the end of any federal source to find the definition of racial categories used.

Campaign for Community Values Message Toolkit

What are Community Values and why are we promoting them now?

Community Values are long held American values. Community Values say that we share responsibility for each other, that our fates are linked. Whether described as interconnection, mutual responsibility, or loving your neighbor as you love yourself, Community Values are moral beliefs, a practical reality, and an important strategy.

For the past 30 years, the theme of individualism has dominated our national dialogue and common culture. Instead of favoring policy that works for everyone, this approach tells people to go it alone. We see the results in our fragmented healthcare system, the divisive debate on welfare reform, and in recent, though unsuccessful, attempts to overhaul social security.

Americans are becoming tired of this individualistic approach to policy, and to life in general. The country is ready for a new inclusive vision and a new generation of positive solutions. It’s time to reclaim values in the political conversation. It’s time to turn Americans’ attention to our long history of working collectively, standing up for each other, and upholding the common good.

The Community Values Toolkit

Included here are ideas, advice, and resources for moving toward this new political conversation, beginning with the 2008 presidential election.

Community Values Phrase Basket
General Talking Points
Building a Message
Examples of Language and Usage
Sample Media Pieces

Community Values Phrase Basket

We’re All in it Together – So Let’s Say the Same Things!

Below we’ve provided the drumbeat terms that we plan to track and measure the use of, to see how Community Values language is faring in the political debate. We’ve also included some terms to use to define the opposition.

It may feel awkward at first to weave the terms into your communications. But if you think about how others have used familiar terms such as “family values” or “tax relief,” you may start to get the idea of what it looks like when a term infiltrates the popular vocabulary.

Phrase Basket

Community Values Phrases: The Opposition:

Drumbeat Phrases:

Community Values ideology) “You’re on your own” (mentality, approach,
Policies of Connection “Go it alone” (mentality, approach, ideology)

Policies of Isolation

Also suggested depending on audience:

(We’re all) In it together Community neglect
Stronger together Everyone for themselves
The Common Good Pull yourself up by your bootstraps
Sharing the ladder of opportunity Pulling up the ladder behind you
On the same team Standing alone
Looking our for each other Leaving people behind
Standing together
Shared or Linked Fate

General Talking Points

This is really about Community Values. Are we going to acknowledge that we’re all in this together, and that we need to look out for each other? Or are we going to tell everyone to go it alone?
What’s missing here are Community Values. Telling people that [issue] is their individual problem is not only unworkable, it’s contrary to our nation’s long-held belief that we’re stronger together, that we look out for each other and work for the common good.
What we need are more policies of connection that recognize our reliance on each other, and how much more we thrive when we stand together. Simply telling people that they’re on their own is not an American option.
Look, we’re all on the same team here. This country thrives when we draw on our Community Values to solve our problems. There are those who say that we each need to figure it out on our own, but that go it alone mentality is obviously unworkable and not an option in today’s interconnected world.
I’m tired of the myth that we should all just pull ourselves up by our bootstraps, buck up, and get on with it. When it comes to health care, to our public school system, to the future of social security, I don’t want politics of isolation to drive public policy. We’re in this together, and we’ll rise together.
We all know instinctively that we’re stronger together. And history shows that when we work together to solve our problems, placing the common good as a top priority, we all move forward. When we leave people behind, we all suffer. I’m for a country that embraces those kind of Community Values again, let’s leave the “go it alone” mentality behind.
We have to recognize that we live in an interconnected world. Our actions have consequences beyond ourselves. Our fates are linked. Insisting on an old-fashioned go it alone mentality is not only unworkable, it’s just wrong.

Building a Message

Where possible, our messages should: emphasize the values at risk; state the problem; explain the solution; and call for action.

Value at Stake

o Why should your audience care?

Problem

o Documentation when possible

Solution

o Avoid issue fatigue – offer a positive solution

Action

o What can your audience concretely do? The more specific, the better.

Example:

Our shared Community Values mean that we come together to solve our problems. We look our for each other and understand that leaving anyone behind is not an option.
But we’re falling short of that ideal—millions of Americans can’t live on the wages they are paid for full-time work. By refusing to address this situation in a meaningful and realistic way, we’re failing these workers and members of our community.
We need to ensure that anyone who is working full time can support their family.
Tell your Member of Congress to support a real and living wage. It’s about workers, families and supporting Community Values.

Messaging Questions

Some useful questions to consider when building a message include:

Who are the heroes and villains of this story? We need to think through various roles played by the characters in our stories. For instance, a common conservative frame is that of tax relief. If people need “relief” from something, it is an affliction. If taxes are an affliction, they are never good and those who relieve us of them are heroes. Those who propose more affliction are villains. Using this term, then, is not helpful to anyone promoting increased government support for programs.
Who does the narrative suggest is responsible for solutions? The conservative theme of individualism suggests that as individuals, we should solve the bulk of our problems ourselves. Instead of an inclusive health care system, for instance, we should have individual health savings accounts. Focusing on individual success stories can have the same effect. The story of an immigrant coming to this country, starting a business and becoming a model citizen can be helpful in many ways, but it doesn’t underscore the need for community or societal level programs to help newcomers. The solution is portrayed at an individual rather than a systemic level.
What are the long term implications of this narrative? Does it point toward the solutions we want? Sometimes, in hopes of providing a dramatic, media friendly story advocates use examples that can lead audiences in unhelpful directions. For example, in appealing for money for a specific child abuse prevention program, advocates might use dramatic statistics of children injured or killed each year by abuse and neglect. These statistics will get media coverage and draw attention to the problem of child abuse. However, they are unlikely to lead audiences to the solution that prevention advocates desire. If the long term goal is to increase funding for prevention programs that support parents, advocates have instead made their audience less sympathetic to parents, and more supportive of punitive measures that do not include prevention.
Does the story inadvertently invoke unhelpful cultural narratives? For instance, in talking about health care, we sometimes use a consumer frame. But this competitive frame is actually unhelpful if the solution we want to promote is universal care. Consumerism implies that we are economic players competing for limited resources. Instead, we want to promote the idea that the system is stronger when we’re all in it.
Does the story use our opponents’ narrative? Consider the recent debate about proposed immigration reform. Many advocates engaged in conversations about whether reform would or would not grant “amnesty” to undocumented immigrants. But by focusing on the word “amnesty,” advocates strengthened the “law breaker” narrative. In this story, “illegal” immigrants and those who fail to punish them are the villains. However well intentioned, arguments that immigration reform is “not amnesty” reinforce opponents’ arguments. We should be careful to avoid using such stories, particularly when we talk to persuadable audiences might support our positions if we framed them differently.

Community Values Caveats

Additional considerations when building a community values message.

Attacking personal responsibility

It’s important to note that promoting Community Values should not appear to abandon all forms of individualism. Americans believe strongly in the value of individualism and “personal responsibility.” And that belief cuts across ideological lines.

People want individuals to take responsibility and also to control their own destiny. These worries can prevent them from fully embracing Community Values if they view such values as letting people off the hook, providing handouts, or removing individual choices and empowerment. Bringing the idea of opportunity into the conversation can help us to point out that systemic barriers to opportunity prevent many individuals from moving forward.

Talking about interconnections that harm, rather than help, us.

In stressing community values, we want to emphasize the ties that bind us as neighbors, workers, Americans and humans. Our fates are connected, so it’s in all of our best interests to move forward together. However, we should not imply that we only need to care about other people’s circumstances if it’s in our best interest.

For instance, advocates might make the case that we should cover all immigrants in new health care reform plans because if we don’t, we are at risk of becoming infected with any diseases they carry. While invoking a linked theme, this narrative isn’t helpful in the long-run as it implies 1) that immigrants are a danger to us and 2) that if their health does not affect us, we don’t need to worry about including them.

Instead, we should emphasize that recognizing our connections is important not only to protect our own interests, but also to understand how we’re part of something bigger.

Invoking the charity frame when promoting the common good.

The term common is useful because gives a name to the entity we hope to benefit. It names exactly what we want to win: an outcome that is good for the community. However, this term can also lead people to think of charity first. This idea says that we help others – often termed the “less fortunate” – through “handouts.” There are certainly heroes to this story, but if we’re not careful, those benefiting from charity can be painted as the villains. In addition, this is a judgmental frame that does not empower groups that have typically faced the biggest barriers to opportunity. In invoking the common good, then, it’s important to point out the solutions we seek: shared power and responsibility, not a one-way, “privileged to unprivileged” exchange.

Using exclusive or nostalgic versions of community

Sometimes we lean toward limited or nostalgic Norman Rockwell illustrations of community that call up ideas of “the old days”, the Eisenhower years, childhood neighborhoods, or our own, limited surroundings. This is problematic for several reasons.

Neighborhoods, for one, are rarely inclusive, so that metaphor alone can be troubling. We need Community Values to mean benefit for everyone, not communities pitted against each other only looking out for their “own.”

Similarly, “the old days” didn’t hold a lot of promise for many groups. People do like the idea of old-fashioned small towns where everyone knows each others’ names, families are intact, and white picket fences prevail. But the old days in the form of 1950’s America was also home to racism, segregation, limited opportunity for women, and hostile to gays and lesbians.

Community Values should mean drawing on our shared history of collectively solving our problems. We can do this by using examples of how we’ve solved problems collectively, such as the New Deal or Civil Rights. This is an instance where patriotism can aid our cause by igniting people’s pride in our ability to work together.

History shows we move forward when we invest in an effective partnership between government and our people. Think of child immunization programs that have wiped out devastating diseases in our country. Think of our Social Security system that has enabled millions of seniors to stay out of poverty. Medicare has kept them safer and healthier without regard to their wealth, race, or region of the country. Think, even, of the interstate highway system, which connected us as a single prosperous nation. To address our health care crisis effectively, we need to invest in those kinds of policies of connection.

Applying Community Values to Health Care

Using the Value, Problem, Solution, Action Model

Value: When it comes to health care, we’re all in it together. We’re a stronger nation when everyone has the health care they need.

Problem: So when 47 million Americans lack health insurance, our whole nation’s health and prosperity are at risk.

Solution: We need policies of connection in our health care system that guarantee access to affordable health care for everyone in our country.

Action: Ask the presidential candidates if they’ll embrace Community Values and guarantee health care for every single member of our nation.

Messaging Examples

Embracing Community Values means creating a health care system that works for everyone. Anything less leaves people behind to suffer poor health, bankruptcy, and even early death. We thrive when everyone moves forward, so making sure health care is available for everyone is critical to our nation’s success.
Health care reform should create a system that works for everyone. That means health care has to be universal, free of racial and ethnic bias, comprehensive, and designed to meet community needs. If one element is missing, the system isn’t complete. For example, we might expand insurance to everyone in a state, but that doesn’t mean everyone is getting the same quality of care. We need policies of connection here, that look at and address all the pieces of our health care system equally. In taking a true Community Values approach to health care, we can’t overlook quality, access or other important issues when we think about coverage.
When it comes to health care, it doesn’t make sense to force people to “go it alone.” We need to promote a Community Values approach. When we spread resources fairly, everyone gets the care they need before problems become costly and more difficult to treat. All social insurance rests on this idea of pooling resources and sharing risk as broadly as possible, recognizing that we’re all in it together. This is particularly important in health care.
Our history shows that we’re stronger when we tackle tough issues together. When we have worked together for clean and healthy drinking water, to provide child immunizations, or to reduce smoking, we’ve all benefited. We’re currently looking for ways to address childhood obesity together. We know that this Community Values approach will work better than telling families to figure it out on their own.

Applying Community Values to Immigration

Using the Value, Problem, Solution, Action Model

Value: Immigrants are part of the fabric of our society—they are our neighbors, our coworkers, our friends.

Problem: Reactionary policies that force them into the shadows haven’t worked, and are not consistent with our values. Those policies hurt us all by encouraging exploitation by unscrupulous employers and landlords.

Solution: We support policies that help immigrants contribute and participate fully in our society.

Action: Ask your candidates what they would do to ensure that immigrants are treated fairly and given a voice in this country.

Messaging Examples

For America to be a land of opportunity for everyone who lives here, our policies must recognize that we’re all in it together, with common human rights and responsibilities. If one group can be exploited, underpaid and prevented from becoming part of our society, none of us will enjoy the opportunity and rights that America stands for.
Reactionary, anti-immigrant policies have repeatedly failed to fix the problem. They’re not workable and they’re not fair to citizens or to immigrants. They hurt all of us and make a bad system worse. We’re all in this together, and such policies of exclusion violate the core sense of community that has always driven the policies that have moved this country forward.
Our immigration system should reflect that immigrants have always been part of this nation. But immigration isn’t just a domestic issue; it’s an international reality. We need comprehensive immigration reform that works for the good of all and reflects the interdependence of nations, communities, and workers.
As long as our federal immigration system is broken, it’s up to local communities to decide how to work with immigrants. Would you rather live in a place that understands the meaning of Community Values, of working together with immigrants to find solutions? Or a place that moves toward punitive, exclusionary measures? In this country, we value people, and we value treating them the right way. Cooperation and common sense solutions for the common good are the way to go.

Applying Community Values to Workers’ Issues

Using the Value, Problem, Solution, Action Model

Value: America is supposed to be the land of opportunity, where we rise together and leave no one behind.

Problem: But too many families are living on the edge of this dream, shut out by unfair labor practices and wages that don’t even put them at the poverty level.

Solution: Our policies must recognize that we’re all in it together, with common human rights and responsibilities. If one group can be exploited, underpaid and prevented from becoming part of our society, none of us will enjoy the opportunity and rights that America stands for.

Action: Ask your candidates what they would do to ensure that all workers are treated fairly and given a voice in this country.

Messaging Examples

Embracing Community Values means that we share a basic concern about one another, and accept that the well being of each one of us, and each of our families ultimately depends on the well being of all of us. As a wealthy nation, we have a shared responsibility to use our collective wealth to establish and support programs that help people rise out of poverty.
The fates of all workers are connected. When some employers pay workers below the minimum wage or don’t pay them for working overtime, these practices quickly spread and other employers try to profit by following these bad examples. This type of race to the bottom ultimately leaves workers competing with each other over lower wages and fewer benefits. Instead of emphasizing cost-savings and competition, we need to encourage ethical and compassionate business practices that are accountable to the community, and cooperation among workers.
We, as a community, must demand that all workers are fairly paid for the hard work they do. This doesn’t just make sense from the perspective of workers, but it’s good for society as a whole. Providing workers with a living wage makes it possible for them to better care for their families, save for the future, contribute to the community and build a stronger America.
A business is just another part of our community. But all too often, most of the people in the community have little or no voice or power in the business decisions that affect the community. We need business interests to recognize that they are part of us and have a responsibility to respect the needs of the community. That means paying workers a fair wage, being good stewards of the environment that we all share, and giving back to the community.

Sample Letter to the Editor

Letters to the editor are a quick and effective way to weigh in on issues that the media frequently cover. Often, more people read the letters page than the pages where the original article appeared or the opinion page. Letters need to be short – about 150 words – so it’s best to focus on one point. In the examples below, the letters focus on weaving Community Values into a call for federal immigration reform.

Letters do not need to be negative. Responding to an article that positively portrayed an issue you care about can set a tone friendlier to Community Values than the confrontational tone central to letters of disagreement.

To the Editor:

Thank you for your informative portrait of one town’s experience with immigration. This piece shows that we have a long way to go. But it also illustrates the community values that will ultimately help us address this issue.

Iowa needs and values immigrants, their work, and their contributions to the community. Yet the state’s ability to welcome its newest residents continues to be strangled by the federal governments’ inability to pass reasonable legislation. Instead of giving into the politics of division and isolation favored by anti-immigration forces, these Iowans have chosen to think about immigration in a community-spirited, humane and practical manner. The federal government should take note.

To the Editor:

Your recent article about immigration was a real eye opener. In the divisive rhetoric we hear in the immigration debates, I feel that this human story of community values is so often lost. Absent in this story were the one dimensional stereotypes of oppressive law enforcement or problematic immigrants. Instead, we saw a community-minded portrait of people working together to make the best of a system over which they have no control.

I believe we need more realistic reflections about what immigration really means to communities. Immigrants are already clearly a part of the community, why can’t the federal government not clear the way for positive integration, so that everyone can move forward?

Sample Press Release

Press releases are more than an opportunity to publicize an event or report. They are also messaging vehicles. While the main text of the release should be primarily informative – who, what, when, where, and why – you have a lot of room in the quotes you provide for elevating Community Values.

Heartland Presidential Forum Challenges Candidates:

How can we embrace community values?

News Release

DES MOINES – Ten presidential candidates will gather at Hy Vee Hall on Saturday, December 1 to answer Iowans’ questions about community issues ranging from health care and education to social justice and factory farming. Organizers, who expect an audience of over 5,000, say the theme of the debate, “Community Values,” is meant to focus candidates’ attention on the idea that the common good is too often overlooked in favor of individual interests.

“These core issues are important to Iowans,” said XXXX. “And it’s important that we focus on solving the challenges they present through the lens of community and the common good. When we think of how we’re stronger together, how we solve our problems more effectively when we’re all involved in the process, we all come out ahead.”

[Event details]

“Community values are such an obvious fit for Iowans,” said XXXX. “We look out for each other here, and we resist the politics of isolation that tell us that we have to solve societal problems on our own. Whether it’s health care or the environment, we’re going to do this together, with a positive role for government, and leave no one behind.”

[Continued details]

“We became involved in this event because of its focus on community,” said XXXX. “There’s a lot of lip service to valuing community, but we wanted to force candidates to explain what that really means to each of them on a policy level. We need more policies of connection that recognize how we’re all in this together, and draw on our collective strength. So we’re actively rejecting the “go it alone” approach to policy.”

About Us

Our Community

Our Priorities

Our Tools

Acknowledgements

Table of Contents

Executive Summary

Summary of Recommendations

II. Problems with Current Enforcement

III. Recommendations to Improve the AFFH Regulations

IV. Improving Enforcement and Funding Decisions

V. Incorporating Examples

Conclusion

Appendix: Proposed Regulations

Applying the Lessons

Notes

Introduction

The Idea: The Opportunity Impact Statement

Deciding Between Opportunity and Inequality: Two Case Studies

Elements of the Opportunity Impact Statement

Legal Underpinnings

Adoption and Implementation

How It Will Work

Proposed Opportunity Impact Statement Process

Opportunity Assessment

Full Opportunity Impact Statement Process

Possible Opportunity Metrics

Example: Publicly Funded Transportation Project

Timing

Conclusion

Notes:

Acknowledgements

Opportunity in America

The Current Economic Crisis

Unemployment, Foreclosure, and Bankruptcy

Our Assessment of Opportunity for 2009

Why Measure Inequality?

Security

Equality

Mobility

Redemption

Community

Moving Forward

Recommendations Toward Fulfilling Opportunity for All Americans

Security

Equality

Mobility

Redemption

Voice

Community

Measuring Opportunity — Our Method of Assessment

Racial and Ethnic Categories

Limitations

Notes:

What are Community Values and why are we promoting them now?

The Community Values Toolkit

Community Values Phrase Basket

We’re All in it Together – So Let’s Say the Same Things!

Phrase Basket

Community Values Phrases: The Opposition:

Building a Message

Example:

Messaging Questions

Community Values Caveats

Attacking personal responsibility

Talking about interconnections that harm, rather than help, us.

Invoking the charity frame when promoting the common good.

Using exclusive or nostalgic versions of community

Applying Community Values to Health Care

Using the Value, Problem, Solution, Action Model

Messaging Examples

Applying Community Values to Immigration

Using the Value, Problem, Solution, Action Model

Messaging Examples

Applying Community Values to Workers’ Issues

Using the Value, Problem, Solution, Action Model

Messaging Examples

Sample Letter to the Editor

Sample Press Release

Heartland Presidential Forum Challenges Candidates:

How can we embrace community values?

will you join us on a journey?

Hot Topics:

Appendix:
Proposed Regulations