Implementation of the Human Right to Adequate Housing
at the Sub-National Level:
A Response to the Questionnaire of the U.N. Special
Rapporteur on the Right to Adequate Housing
October 31, 2014
1
Introduction
In 2014, the U.N. Special Rapporteur on the Right to Adequate Housing requested information
on the implementation of the human right to housing at the sub-national level. The National Law
Center on Homelessness & Poverty, Columbia Law School Human Rights Institute, and National
Coalition for a Civil Right to Counsel appreciate the opportunity to provide the response
contained herein. Rather than a comprehensive discussion of the role of the federal and
subnational governments in implementing the human right to adequate housing in the U.S., the
below response offers a compilation of material derived from the Law Center’s 2011 report,
Simply Unacceptable: Homelessness & The Human Right to Housing in the United States, with
additional materials derived from reports filed by the Columbia Law School Human Rights
Institute and National Coalition for a Civil Right to Counsel in conjunction with recent reviews
of U.S. compliance with its human rights treaty commitments. We hope this response will
provide significant assistance to the Rapporteur in her investigation into subnational
responsibility for the human right to housing, and each of the reporting organizations welcomes
further conversation with the Rapporteur as she develops her report. We appreciate the
opportunity to share this information and to engage with the Special Rapporteur on this
important issue.
Explanations
Housing programme (Question A 1 part 1, Questions A 2-5)
The United States federal government is indirectly involved in housing programs. Rather than
building or securing affordable public housing itself, the federal government pays for states,
local governments, and private organizations to accomplish this task. The federal government
requires all entities using federal funds to satisfy certain requirements.
The Department of Housing and Urban Development (HUD), a federal agency created by the
Housing and Urban Development Act of 1965, administers federal housing programs.1


The Housing Choice Voucher Program (Section 8), one of the federal
government’s most effective tools to provide housing assistance for very lowincome families and individuals,2 funds housing subsidies administered and paid
in part by local housing agencies.3
HUD uses the Public Housing Program, the other most effective federal housing
policy for helping low-income persons, to fund local housing authorities that
manage housing opportunities for low income families at affordable rents.4 HUD
assists in this management.5
1
42 U.S.C. § 3532 (2012).
PETER EDELMAN, SO RICH, SO POOR: WHY IT’S SO HARD TO END POVERTY IN AMERICA 75 (2012).
3
U.S. Department of Housing & Urban Development [hereinafter “HUD”], Housing Choice Voucher Program Fact
Sheet, at
http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/programs/hcv/about/fact_sheet
(accessed October 7, 2014).
4
EDELMAN, supra note 2, at 75.
5
HUD, HUD’s Public Housing Program, at
http://portal.hud.gov/hudportal/HUD?src=/topics/rental_assistance/phprog (accessed October 7, 2014).
2
2

HUD also provides federal funds to state, local, and non-governmental entities
that create or manage housing initiatives through the HOME Program and
supportive housing programs designed for particular vulnerable groups, such as
the elderly (Section 202) and people with disabilities (Section 811).6
In addition, the Internal Revenue Service (IRS) administers the Low Income Housing Tax Credit
(LIHTC) Program which provides a dollar-for-dollar reduction in federal taxes owed on income
to corporations and individuals who invest low-income housing. Although the tax credits are
federal, each state has an independent agency that allocates its share of the funding raised
through the program, under regulations from the IRS.7
The federal government addressed homelessness specifically for the first time in the McKinneyVento Act of 1987, which:



Created the Federal Interagency Council on Homelessness,
Established programs across a number of federal agencies, and
Currently provides funding to individual states to implement services designed to
address homelessness, including emergency shelter, transitional housing, and job
training.8
Funding recipients (states, municipalities, and non-governmental organizations) are responsible
for implementing these programs. Recipients must use the funds in a way that satisfies the
federal regulations; if they do not, the funding may be revoked.
Subnational implementation
State and local housing programs vary greatly in extent and efficacy. In addition to using federal
funds with significant discretion, state and local governments possess and often exercise the
authority to implement their own independent housing policies using independent resources. For
instance, following federal encouragement, many states and municipalities are adopting a
Housing First approach providing homeless persons with stable housing and targeted services
without pre-conditions for entry. Utah’s Housing First program has enjoyed enormous success,
reducing chronic homelessness by 74% since 2005 and actually saving the city money in the
process.9
A much larger number of subnational governments, almost exclusively cities, have implemented
inclusionary housing laws requiring developers to set aside a percentage of newly constructed
units as affordable housing. Because private development creates affordable housing units in this
model, the private sector entirely funds inclusionary zoning measures in theory, although many
See NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, “SIMPLY UNACCEPTABLE”: HOMELESSNESS AND
THE HUMAN RIGHT TO HOUSING IN THE UNITED STATES 29-30 (2011), at
6
http://nlchp.org/documents/Simply_Unacceptable.
7
Ed Gramlich, Low Income Housing Tax Credit Program, in NATIONAL LOW INCOME HOUSING COALITION, 2014
ADVOCATES GUIDE 254 (2014), http://nlihc.org/sites/default/files/2014-Advocates-Guide.pdf.
8
See id. at 30.
9
See, e.g., Christopher Smart, Utah Praised for its Initiative to End Chronic Homelessness, SALT LAKE TRIBUNE
(October 8, 2014), available at http://www.sltrib.com/sltrib/politics/58493059-90/according-chronic-homelesshomelessness.html.csp; NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, NO SAFE PLACE 30 (2014),
available at http://nlchp.org/documents/No_Safe_Place.
3
cities use funds to provide developers economic incentives to construct affordable housing.10
Like Housing First, local governments implement this strategy without oversight or guidance
from the federal government.
Other city-implemented affordable housing initiatives, like the micro-housing community in
Olympia, Washington, derive funding from a variety of sources. Olympia’s micro-housing
program is funded by:




Washington State’s housing trust fund,
Federal funds from the Community Development Block Grant (CDBG) program,
State document recording fees, and
Community and individual donors.11
The first two of these sources derive from state and federal funds. Washington has the authority
to withhold funding from its housing trust fund and the federal government may withhold the
CDBG if they find the micro-housing program to be inadequate or improper under relevant
regulations.
While Olympia and Utah are success stories, lack of national focus and commitment to housing
means the value of the right to housing is drastically different from state to state. For instance, an
increasing number of cities have responded to homelessness by criminalizing life-sustaining acts
that homeless persons have no choice but to engage in, such as sitting, lying down, or sleeping,
rather than addressing homeless persons’ housing needs, or by criminalizing the acts of those
who help feed homeless persons.12 However, some local governments are learning that
constructive alternatives such as Utah’s are more effective at reducing homelessness and are
adopting similar housing strategies,13 but they are not compelled to implement housing programs
by a federally coordinated initiative. In this sense, the human right to housing exists only when a
state or local government chooses to recognize it.
Income Support (Question A 1 Part 2)
The U.S. system for distributing income support works in largely the same way as it does for
housing programs. A number of federal programs distribute income support through the states,
most notably Temporary Assistance for Needy Families (TANF, commonly known as welfare)
and Supplemental Nutrition Assistance Program (SNAP, commonly known as food stamps).
TANF provides temporary financial assistance for some needy families,14 while SNAP
10
For more about inclusionary housing, see, e.g., See SETH ULLMAN, MICHAEL FREEDMAN-SCHNAPP, & BRAD
LANDER, INCLUSIONARY ZONING IN NEW YORK CITY: THE PERFORMANCE OF NEW YORK CITY’S DESIGNATED
AREAS INCLUSIONARY HOUSING PROGRAM SINCE ITS LAUNCH IN 2005, 2, available at
https://www.scribd.com/doc/160544058/Inclusionary-Zoning-in-New-York-City-The-performance-of-New-YorkCity-s-Designated-Areas-Inclusionary-Housing-Program-since-its-launch-in-2005; NICO CALAVITA, KENNETH
GRIMES, & ALAN MALLACH, INCLUSIONARY ZONING IN CALIFORNIA AND NEW JERSEY: A COMPARATIVE ANALYSIS
125-135 (1997), available at http://content.knowledgeplex.org/kp2/img/cache/documents/2279.pdf.
11
For more information on the micro-housing program, see “SIMPLY UNACCEPTABLE,” supra note 6, at 36.
12
See NO SAFE PLACE, supra note 9, at 16-18, 19, 22.
13
See Smart, supra note 9.
14
See Office of Family Assistance, About TANF, available at
http://www.acf.hhs.gov/programs/ofa/programs/tanf/about (accessed October 21, 2014).
4
guarantees food benefits for any person with a low enough income.15 Like with federal housing
programs, the federal government implements these programs by funding state operations.
Another impactful federal income supplement is the Earned Income Tax Credit (EITC), which
the federal government implements directly. Through the EITC, the federal government writes
checks to people with low or no federal income tax. This program does not depend on states,
local governments, or non-governmental organizations to implement. It has also proven to be a
powerful tool for fighting poverty; in 2005, the EITC helped move 600,000 children out of
poverty.16
Security in Tenancy (Question A 1 Part 3)
U.S. federal law directly provides renters and homeowners with some security in tenancy. The
federal government enacted some important security in tenancy legislation in the wake of the
recent foreclosure crisis. However, there are significant gaps.
-
Renters
The federal government enacted the Protecting Tenants at Foreclosure Act of 2009 (PTFA) after
the foreclosure crisis. When homeowners lost their homes during the foreclosure crisis, renters
living on those properties were suddenly left without homes. They received no notice of their
eviction or landlord’s mortgage default and they were not informed of their legal rights as
tenants.17 The PTFA was designed to prevent these evictions by imposing duties on the
defaulting landlord’s immediate successor. The law made successors subject to legitimate leases
entered into before foreclosure and provided a 90-day notice requirement for evicting inherited
tenants.18 The PTFA is important because it gives renters a significant time frame in which to
make financial arrangements for a deposit, find a new residence, or procure legal advice.19
State protection of security in tenancy varies, revealing again the lack of a national commitment
to these rights. Many states do not require the notification of a tenant of foreclosure proceedings
against the landlord, and in more states the renter’s lease automatically terminates upon
foreclosure, although some states require some form of notice to trigger automatic termination.20
Beyond foreclosure, state and local law varies tremendously with regards to protections tenants
receive, with little federal regulation. One exception is for tenants of public housing or Section 8
programs, who do receive federally mandated protections, although they are administered in
some variance by the local public housing authorities. These protections only extend to the 4.9
15
See United States Department of Agriculture: Food and Nutrition Service, Supplemental Nutrition Assistance
Program, available at http://www.fns.usda.gov/snap/eligibility (accessed October 21, 2014).
16
See EDELMAN, supra note 2, at 71, 82; EITC HOME PAGE, IRS, available at http://www.irs.gov/Individuals/EITCHome-Page--It%E2%80%99s-easier-than-ever-to-find-out-if-you-qualify-for-EITC (accessed October 14, 2014).
17
See Protecting Tenants at Foreclosure Act of 2009, Public Law 111-22 (May 20, 2009); “SIMPLY
UNACCEPTABLE”, supra note 6, at 34-35.
18
See Id. at 35; PROTECTING TENANTS AT FORECLOSURE ACT OF 2009: COMPTROLLER’S HANDBOOK 1-2 (2010),
available at http://www.occ.gov/publications/publications-by-type/comptrollers-handbook/ptfa.pdf.
19
See “SIMPLY UNACCEPTABLE”, supra note 6, at 35.
20
See Id. at 35.
5
million households in federally funded housing, which is slightly over 10 percent of the 41
million renter households.21
-
Homeowners
Homeowners enjoy greater federally protected security in tenancy than renters do. Since the
foreclosure crisis, the federal government has implemented a number of programs designed to
protect homeowners, including the Emergency Economic Stabilization Act of 2008 (EESA) and
the Helping Families Save Their Homes Act of 2009 (HFSHA). These programs offer significant
protections, but they have not eliminated predatory lending and brokerage practices that result in
foreclosures.


The EESA provided the Secretary of the Treasury with $700 billion to buy troubled
assets and gave the Secretary the power to disburse them. The law also allows the
Secretary to modify loans to prevent possible foreclosures. However, the funds have
been largely used to make investments in lending institutions rather than to acquire
mortgages and prevent foreclosures. Therefore homeowners have felt little relief
under the law.22
The HFSHA imposes regulatory restrictions on lending institutions’ ability to
foreclose on defaulting homeowners. It requires lending institutions to give the
borrower a 30-day notice before recording a Notice of Sale, the start of the
foreclosure process, and a 90-day notice before the sale date. The law further requires
the foreclosure sale to take place at least 190 days after a default.23
Although these regulations have granted homeowners procedural protection, brokers and lenders
have still been able to facilitate foreclosures against the laws’ better efforts.24
Infrastructure (Question A 1 Part 4)
States are responsible for maintaining most infrastructure in the U.S. One notable exception is
the interstate roadways, which the Federal Highway Administration (FHWA) manages and
funds. The FHWA promotes road construction and maintenance by funding state projects and
assisting them with research and other non-direct means. This cooperative effort means that local
governments differ in their road construction. 25
State and local governments (and sometimes homeowners associations) are in charge of
providing almost all other infrastructure, including police, fire, sanitation, water, and electricity.
These services tend to be lacking in low-income urban neighborhoods compared to more affluent
21
Center on Budget & Policy Priorities, National and State Housing Data Fact Sheets (Mar. 10, 2014),
http://www.cbpp.org/cms/?fa=view&id=3586.
22
See Emergency Economic Stabilization Act of 2008, Division A of the Troubled Asset Relief Program, Public
Law 110-343 (October 3, 2008); Id. at 37-38.
23
See Helping Families Save Their Homes Act of 2009, Public Law 111-22 (May 20, 2009); “SIMPLY
UNACCEPTABLE”, supra note 6, at 38.
24
See “SIMPLY UNACCEPTABLE”, supra note 6 at 39.
25
See UNITED STATES DEPARTMENT OF TRANSPORTATION: FEDERAL HIGHWAY ADMINISTRATION, ABOUT, available
at http://www.fhwa.dot.gov/about/.
6
urban neighborhoods.26 Ethnic minorities and rural inhabitants are also far more likely to have
insufficient home infrastructure.27
Prohibition on Housing Discrimination (Question A 1 Part 5)
There are two main U.S. federal laws aimed at preventing housing discrimination: the Fair
Housing Act (FHA) and the Civil Rights Act of 1866.


The FHA provides that housing providers cannot discriminate on the basis of race,
color, ethnicity, religion, sex, disability, and familial status.28 The FHA also prohibits
discriminatory advertising, but the prohibition has limited effectiveness because
online forums such as Craigslist, Roommates.com, or other “computer services” are
exempt from FHA liability.29 If a lessee has a handicap, the FHA requires the
landlord to make “reasonable accommodations.”30 However, this requirement does
not apply to homes that are sold or rented directly by an owner who owns fewer than
three single-family homes, or to a housing complex with four or fewer units if the
owner occupies one of the units.31 The FHA incorporates both discriminatory impact
as well as discriminatory intent cases, although this standard is currently being
reviewed in the Supreme Court, and a DC District Court judge just broke with
precedent in 11 of 12 circuits to void HUD’s ability to enforce the FHA through
disparate intent.32
The Civil Rights Act of 1866 protects against racial discrimination in a number of
areas including housing.33 The Act is narrower than the FHA in that it only protects
against discrimination based on race and color. Furthermore, the Act is violated only
when there is discriminatory intent, an element that is almost impossible to prove.34
However, the Act is broader than the FHA because it is a complete ban on
discrimination not limited to dwellings and it has no exceptions.
There are two federal fair housing programs that provide funding to local agencies to fulfill the
FHA obligations:

The Fair Housing Initiatives Program (FHIP) provides funding to private organizations
that in turn offer community services including education, investigation and enforcement
related to alleged discrimination, and dispute resolution.35 Due to a lack of adequate
26
See Gary W. Evans & Elyse Kantrowitz, Socioeconomic Status and Health: The Potential Role of Environmental
Risk Exposure, 23 ANN. REV. PUB. HEALTH 303, 318 (2002).
27
See “SIMPLY UNACCEPTABLE”, supra note 6 at 47-48.
28
42 U.S.C. §3604 (2012).
29
See Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1169-70 (9th Cir.
2008); see also 47 U.S.C. §230 (computer services that rely on user-generated content are immune from liability
under the FHA).
30
42 U.S.C. §3604(f) (2012).
31
42 U.S.C. §3603(b) (2012) (commonly known as the “Miss Murphy exception”).
32
See Texas Dep. Of Housing & Community Affairs v. Inclusive Communities Project, No. 12-1371, 2014 WL 4916193
(U.S. Oct. 2, 2014); American Insurance Association v. U.S. Dep. Of Housing & Urban Dev., Case 1:13-cv-00966-RJL,
(D.C. Nov. 3, 2014).
33
42 U.S.C. §1981 (2012).
34
See General Bldg. Contractors Ass’n, Inc. v. Pennsylvania 458 U.S. 375 (1982).
35
Advocates Guide, supra note 7, at 222.
7

funding, it generates far more applications for funding than it can accommodate. Despite
demand, nearly 25% of private fair housing organizations have either significantly
reduced staff size or closed in the past decade due to lack of adequate funding.36
The Fair Housing Assistance Program (FHAP) provides funding to state and local
government agencies to enforce state or local fair housing laws that are substantially
equivalent to the Fair Housing Act.37 FHAP agencies are reimbursed based on the number
of cases they successfully process.38
In addition, the Equal Credit Opportunity Act (ECOA), prohibits creditors from discriminating
against credit applicants on the basis of race, color, religion, national origin, sex, marital status,
age, because an applicant receives income from a public assistance program, or because an
applicant has in good faith exercised any right under the Consumer Credit Protection Act.39 The
Department of Justice (DOJ) may file a lawsuit under ECOA where there is a pattern or practice
of discrimination. In cases involving discrimination in home mortgage loans or home
improvement loans, the Department may file suit under both the Fair Housing Act and ECOA.
Individuals who believe that they have been the victims of any unfair credit transaction involving
residential property may also file a complaint with HUD or may file their own lawsuit.40
There has been some recent improvement in the enforcement of the Fair Housing Act, with both
HUD and the DOJ showing a commitment to positive policy changes.41 However, the large gap
between committed violations and reported violations reflects a poorly outfitted enforcement
apparatus attributable to underfunded FHIP agencies, and more can be done.42
Legal Framework, Obligations, and Compliance (Questions B 1 and 2)
International Law
The U.S. is a signatory to a number of international treaties that recognize the right to adequate
housing. While there have been recent rhetorical efforts to recognize human rights and the
existence of treaty obligations, there is still much work to be done to produce actual results.
Although the U.S. signed the International Covenant on Economic, Social, and Cultural Rights
(ICESCR) in 1977, the Senate has never ratified it.43 The United States did ratify the
36
National Fair Housing Alliance, A Step in the Right Direction 2010 Fair Housing Trends Report 17, May
16, 2010 [hereinafter Step in the Right Direction].
37
Advocates Guide, supra note 7, at 223.
38
Id.
39
15 U.S.C. §1691 et seq.
40
U.S. Dept. of Justice, The Equal Credit Opportunity Act (2014),
http://www.justice.gov/crt/about/hce/housing_ecoa.php.
41
NATIONAL FAIR HOUSING ALLIANCE, FAIR HOUSING TRENDS REPORT 2O14, (2014),
http://www.nationalfairhousing.org/Portals/33/2014-08-13_Fair_Housing_Trends_Report_2014.PDF.
42
Advocates Guide, supra note 7, at 224-5.
43
Ratification/Signature Status of the International Covenant on Economic, Social and Cultural Rights, at
http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_boo/iv_3html. (Under the U.S. Constitution, the
President signs treaties, and the Senate must ratify them by a 2/3 vote. See U.S. CONST. Art. II, Sec. 2.)
8
International Covenant on Civil and Political Rights (ICCPR) in 199244 and the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1994.45 Each
of these treaties recognizes the right to be free from discrimination, including in housing, on the
basis of race, gender, disability, and other statuses. Treaty-monitoring bodies and special
rapporteurs have recognized that these treaties also incorporate the need for legal representation
to enforce the rights therein.46 However, Congress ratified both with extensive reservations,
understandings, and declarations (RUDs). These RUDs prevent the treaties’ independent use in
court and essentially assume domestic law complies with the treaties and demand no further
legislative action.47
There has been a recent evolution of government views on its obligations with regard to the
human right to housing, beginning with the U.S. report to the Human Rights Council for its 2010
Universal Periodic Review. The government’s report carefully sidesteps recognizing housing and
other economic and social rights, stating, “[o]n subjects such as ‘freedom from want,’ the United
States has focused on democratic solutions and civil society initiatives while the U.S. courts have
defined our federal constitutional obligations narrowly and primarily by focusing on procedural
rights to due process and equal protection of the law.”48 At the U.N. Review in November 2010,
the Council made dozens of specific housing, homelessness, and poverty-related
recommendations, to which the U.S. government replied with a verbatim repetition of the
44
U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights,
138 Cong. Rec. S4781-01 (daily ed., April 2, 1992); International Covenant on Civil and Political Rights, 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 (Article 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”) [hereinafter ICCPR].
45
U.S. reservations, declarations, and understandings, International Convention on the Elimination of All
Forms of Racial Discrimination, 140 Cong. Rec. S7634-02 (daily ed., June 24, 1994); International Convention on
the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969 (Article
5(e)(i): In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties
undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights:… (e) Economic, social and cultural rights, in particular:… (iii) The right to
housing…”) [hereinafter ICERD].
46
Concluding Observations – United States of America, U.N. Committee on the Elimination of Racial
Discrimination, ¶22, U.N. Doc. CERD//C/USA/CO/7-9 (August 29, 2014) (“The Committee ... recommends that the
State party allocate sufficient resources to ensure effective access to legal representation for indigent persons
belonging to racial and ethnic minorities in civil proceedings, particularly with regard to proceedings that have
serious consequences for their security and stability, such as evictions [and] foreclosures…”); Report of the Special
Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to
non-discrimination in this context, Raquel Rolnik, ¶80, U.N. Doc. A/HRC/25/54 (Dec. 30, 2013) (“[t]he urban poor
face significant barriers in accessing justice, owing to, inter alia...prohibitive costs of legal representation... States
should take all measures to remove these barriers and ensure that the urban poor can access effective remedies
through a range of judicial and administrative mechanisms... States should establish, fund and enable legal aid and
assistance for the urban poor, in order to address power asymmetries that pervade conflicts over land and obstruct
access to justice.”)
47
See id.
48
Report of the United States of America Submitted to the U.N. High Commissioner for Human Rights In
Conjunction with the Universal Periodic Review, 2010, at para. 67. [hereinafter U.S. UPR Report].
9
“democratic solutions” language in its report.49 Nonetheless, in March 2011, the government
accepted a large number of recommendations regarding housing rights and homelessness.50
Later that month, Assistant Secretary of State for Democracy, Human Rights, and Labor, Michael
Posner, stated that the U.S. would return to recognizing the full scope of rights promised in
President Roosevelt’s Four Freedoms speech.51 Although rife with caveats about the U.S.’s
committments, Posner’s announcement clearly stated, “we will push back against the fallacy that
countries may substitute human rights they like for human rights they dislike, by granting either
economic or political rights. To assert that a population is not ‘ready’ for universal human rights
is to misunderstand the inherent nature of these rights and the basic obligations of
governments.”52 Equally as important, Posner made clear that human rights have both
international and domestic implications, explicitly citing increased funding for homelessness as a
relevant representation of our work to promote these rights.53
In 2012, the U.S. Interagency Council on Homelessness (USICH) and DOJ issued Searching Out
Solutions: Constructive Alternatives to the Criminalizaition of Homelessness. The report
recognized that, in addition to possible violations under the U.S. Constitution, the criminalization
of homelessness may implicate our human rights treaty obligations under the International
Covenant on Civil and Political Rights and the Convention Against Torture.54 In 2013, the
USICH hosted a blog series entitled “I believe in human rights,” including numerous blogs from
government officials and NGOs, and created a page of its website dedicated to human rights and
alternatives to the criminalization of homelessness.55
State and local officials have also moved towards increased recognition of the human right to
housing. For example, Mayor Kitty Piercy of Eugene, Oregon, recently published an article
promoting the use of international human rights standards to craft local policy.56 Mayor Piercy
argued that human rights standards could help address homelessness and homeless persons’
rights.57 This is far from constituting actual policy or enforcement, but it is nonetheless an
important incremental move in the right direction.
These recent steps represent a fundamental change in official recognition of the human right to
housing, but much remains to be done to make the right to adequate housing real for homeless
49
Minutes from the U.S. Universal Periodic Review (Nov. 5, 2011), on file with author.
Report of the Working Group on the Universal Periodic Review, United States of America, Addendum,
A/HRC/16/11/Add.1 (2011), at paras. 6, 19.
51
Asst. Sec. of State for Democracy, Human Rights & Labor, Michael Posner, “The Four Freedoms Turns 708,”
(March 24, 2011).
52
Id.
53
Id., stating, “Our government’s commitment to provide for the basic social and economic needs of our people is
clear and it reflects the will of the American people. They ask us to provide shelter for the destitute…and we do…
In the wake of the housing crisis, last year the federal government committed almost $4 billion to target
homelessness.”
54
Interagency Council on Homelessness, Searching out Solutions: Constructive Alternatives to the Criminalization
of Homelessness 8 (2012) (USICH and the Access to Justice Initiative of the U.S. Dep’t of Justice, with support
from the Department of Housing and Urban Development, convened a summit to gather information for this report).
55
See http://usich.gov/issue/human-rights.
56
Kitty Piercy, Crafting Innovative Anti-Discrimination Policies Using Human Rights, U.S. MAYOR 3 (2014),
available at http://usmayors.org/usmayornewspaper/documents/08_18_14/081814USMayor.pdf.
57
See Eric Tars, Building Momentum to Abolish Criminalization of Homelessness, USICH BLOG (2014) available at
http://usich.gov/blog/building-momentum-to-abolish-criminalization-of-homelessness.
50
10
and poor families whose right to housing is currently violated on a daily basis. Indeed, earlier
this year both the Human Rights Committee58 and the Committee on the Elimination of Racial
Discrimination59 called for the federal government to take affirmative steps to discontinue
funding of communities that continue to criminalize homelessness. Despite HUD’s informal
commitment, we have yet to see a direct connection between policy on the ground and the
government’s international human rights obligations. However, USICH did publish and promote
a blog authored by the Law Center discussing the Concluding Observations, a small step toward
increasing awareness of human rights standards and their applicability at the sub-national level.60
Constitutional
The U.S. Constitution does not explicitly mention a right to housing.61 Lindsey v. Normet,62 a
1974 case often cited for the proposition that there is no right to housing under the U.S.
Constitution,63 addressed whether three provisions of the Oregon Forcible Entry and Wrongful
Detainer Statute violated either the Due Process or Equal Protection Clause of the Fourteenth
Amendment. The homeless plaintiffs claimed that the “need for decent shelter” and the “right to
retain peaceful possession of one’s home”64 are fundamental interests for the poor and that a
higher level of constitutional scrutiny than minimum rationality was therefore mandated. Writing
for the Court, Justice White responded, “the Constitution does not provide judicial remedies for
every social and economic ill. We are unable to perceive in that document any constitutional
guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant
to occupy the real property of his landlord beyond the term of his lease without the payment of
rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate,
the assurance of adequate housing and the definition of landlord-tenant relationships are
legislative, not judicial, functions.”65 This language has conventionally been taken to mean that
the Constitution does not provide a human right to housing.
National legislative framework or housing strategy
Outside the Constitution and the federal anti-discrimination laws, the only sources of law
currently holding local governments accountable for housing rights are conditional funding and
state or municipal laws, as discussed above. The federal government recently adopted a uniform
financial program which shows progress but is burdened by limitations.
In 2010, the federal government adopted a comprehensive plan to end homelessness for the first
time. The Federal Strategic Plan to Prevent and End Homelessness provides a “reference
framework” to allocate and reorganize government resources directed toward the goal of ending
58
U.N. Human Rights Committee, Concluding observations on the fourth report of the United States of America, ¶ 19,
U.N. Doc. CCPR/C/USA/CO/4 (2014).
59
Committee on the Elimination of Racial Discrimination, Concluding Observations, CERD/C/USA/CO/7-9, para.
12, Aug. 29, 2014.
60
See Eric Tars, supra note 56.
61
The Supreme Court has found a number of rights to be implicit in the Constitution, including the “right to
privacy” and the “right to travel.” Noted in Alexander Tseisis, Eliminating the Destitution of America’s Homeless: A
Fair, Federal Approach, 10 Temp. Pol. & Civ. Rts. L. Rev., 103, 122–23 (2000).
62
Lindsey v. Normet, 405 U.S. 56 (1972).
63
Id.
64
Id. at 73.
65
Id. at 74.
11
most forms of homelessness in the United States within ten years.66 It provides an overview of
homelessness in America and clarifies certain objectives that the federal government considers
critical to accomplishing its goal. Some of the objectives set goals for capacity building and
developing leadership, while others describe practical solutions directly related to housing,
sustainable employment, and access to resources that can help homeless individuals become selfsupporting.
While the Plan is comprehensive and generally promotes a progressive approach to eliminating
homelessness, it contains no specific "action plan," and it does not explain how the Plan’s
objectives will be funded.67 For example, the Plan does not name any specific dollar amount to
be allocated across agencies for the purpose of developing affordable housing or implementing
employment training and search strategies.68 Although the Plan discusses these and other goals,
actualizing them unquestionably will require a significant investment of funds not discussed in
the Plan. The failure of the Plan to identify funding or a government body accountable for its
implementation seriously undermines the Plan’s likelihood of success.69
Subnational legislation or housing strategy
States are legally capable of adopting constitutional provisions protecting housing, but so far
none have done so. Many states and localities do have housing protections for security of tenure
and habitability (housing codes). Housing codes provide a legal basis on which to ensure
habitable housing, but the available enforcement measures are generally inadequate. Many
municipalities have housing inspection units that are severely understaffed, overworked, and in
some cases, corrupt.70 For example, in Washington, DC, there are only 5 inspectors for a city of
over 600,000 and over 139,000 rental units,71 the same number as Burlington, VT, with a
population of 40,000, and approximately 10,000 rental units.72
City
Washington, DC
Burlington, VT
Number of Inspectors
5
5
Population
Over 600,000
Approx. 40,000
Rental Units
Over 139,000
Approx. 10,000
Some municipalities provide relocation assistance to tenants evicted when their apartments are
deemed uninhabitable.

In DC, housing providers whose premises are deemed uninhabitable are liable for the
66
U.S. Interagency Council on Homelessness, Opening Doors: Federal Strategic Plan to Prevent and End
Homelessness: Amendment 2012 8-9 (2012)..
67
Id.
68
Id.
69
Id.
70
See, e.g. William K. Rashbaum, Inspector Says He Faked Data in New York Building Tests, N.Y. Times, Apr. 26,
2010, available at http://www.nytimes.com/2010/04/27/nyregion/27inspect.html?_r=1&src=mv (last visited Feb.
28, 2011).
71
Peter A. Tatian, Renters and Foreclosure in Washington, DC, 9 (2010).
72
Steven Norman, email to Housing Justice Network list, Feb. 28, 2011, on file with author; Burlington Dept. of
Code Enforcement, Code Enforcement, available at http://www.ci.burlington.vt.us/codeenforcement/ (last visited
Feb.28, 2011).
12

moving expenses of their tenants in the amount of $300 per room plus $150 for kitchens
and storage areas.73
In Cincinnati, OH, the government provides $350-500 for security deposits and up to
$150 in moving expenses for tenants evicted due to code enforcement.74
However, the programs that exist are frequently inadequate, and tenants are often threatened with
eviction if they attempt to force their landlords to properly maintain their properties.
States and municipalities also frequently have enacted planning requirements for constructing
affordable housing. There was a significant movement in the early 2000s to use such
requirements to implement local 10-year plans to end homelessness. However, federal planning
requirements are largely toothless, with no requirement to dedicate adequate funding toward
meeting the plans’ goals or accountability as those goals are not met.
Only one state, New Jersey, recognizes a constitutional protection against housing discrimination
and right to affordable housing.75 Faced with exclusionary zoning measures that imposed a de
facto income requirement for housing within some municipalities, the New Jersey Supreme
Court declared a right to affordable housing throughout the state.76 The court declared that the
availability of affordable housing benefits low-income families statewide by allowing them to
live close to their workplace or live where they choose.77 While legal recognition of the right to
affordable housing may have reduced racial segregation in New Jersey,78 it has not guaranteed
the right in practice. New Jersey allows for regional contribution agreements in lieu of actually
constructing affordable housing, an option many developers took after New Jersey’s housing
boom in the 1980s cooled.79 Even when the housing market thrived, low-income families did not
benefit from the right.80
Compliance
On the positive side, current government programs serve a vitally important role in helping some
inadequately housed and homeless families and individuals. With respect to adequate housing as
defined under the ICESCR, government programs have helped some segments of the target
73
District of Columbia, Ch. 14-44; D.C. Code §42-3507.03 (2006).
City of Cincinnati, Normal Code Program Emergency Relocation Assistance Payments (2008).
75
See Mount Laurel II, 456 A.2d 390 (N.J. 1983).
76
Id.
77
Id.
78
Compare David L. Krip, Here Comes the Neighborhood, NEW YORK TIMES (October 19, 2013), available at
http://www.nytimes.com/2013/10/20/opinion/sunday/here-comes-the-neighborhood.html?pagewanted=all&_r=0
(finding that the Mount Laurel II decision reduced segregation, noting that Mount Laurel, NJ, built 140 units of
affordable housing in 2000) with DAMIANO SASSO, THE EFFECT OF THE MOUNT LAUREL DECISION ON SEGREGATION
BY RACE, INCOME, AND POVERTY STATUS 10-12 (2004) available at
http://business.pages.tcnj.edu/files/2011/07/Sasso.tcnj_.pdf (finding that the Mount Laurel II decision did little to
reduce racial and economic segregation, especially in the 1990s).
79
See NICO CALAVITA, KENNETH GRIMES, & ALAN MALLACH, INCLUSIONARY ZONING IN CALIFORNIA AND NEW
JERSEY: A COMPARATIVE ANALYSIS 125-135 (1997).
80
See Id. (noting that families with incomes below 40% of the median income for families of that size did not
benefit from Mount Laurel II).
74
13
population81 receive or “access” “housing resources.”82 Further, the programs arguably represent
“policy and legislative recognition” of some “constituent aspects of the right [to adequate
housing],”83 and thus exhibit “tak[ing] steps” towards a “progressive” realization of this right. In
some limited ways, homeless individuals and families have been able to make “claim[s] or
demand[s]… upon society” for fulfillment of their right to housing.84 Members of certain defined
groups – low-income families, the elderly and the disabled – can make claims for the “provision
of or access to housing resources,”85 although their claims might not be honored because the
programs are not adequately funded. Most cities have long waiting lists for assistance, typically 5
years.86 Many have chosen to close their waiting lists due to excess demand.87 Finally, many of
the programs address concerns of adequacy under the seven-prong definition in General
Comment No. 4. They tend to focus in particular on the prong of “affordability,” which has been
widely noted as a special concern in U.S. housing markets.88
However, these programs fall short of fulfilling the right to housing in important ways. First,
they do not represent steps taken to the “maximum of available resources” to realize the right by
“all appropriate means.”89 These terms are imprecise because they are context-driven and written
in generalized language; nevertheless, they remain useful benchmarks. Given the U.S.’s wealth,
the “maximum of available resources” should be more than sufficient to adequately finance these
programs. In many government housing programs, however, demand well exceeds the allocated
funding.90
Even in the area of federal housing subsidies, only a relatively small amount goes toward lowincome housing. While the U.S. expends more than $70 billion annually on the mortgage income
tax deduction, available to all homeowners, with 77% of its benefit going to predominantly white
households with incomes over $100,000/year, who do not face rent burdens,91 the U.S. only
appropriates $44.8 billion to the entire HUD budget directed at low-income populations, where
only 25% of the eligible renter households receive assistance.92 Additionally, since the late
81
General Comment 4, The right to adequate housing (Sixth session, 1991), U.N. Doc. E/1992/23, annex III
at 114 (1991), reprinted in Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 18 (2003), , at paras. 11-17.
82
Id.
83
Id. section (c).
84
Id. section (a).
85
Id.
86
Douglas Rice and Barbara Sard, The Effects of the Federal Budget Squeeze on Low-Income Housing Assistance,
Center on Budget and Policy Priorities, 10 (February 1, 2007) [hereinafter Budget Squeeze].
87
The United States Conference of Mayors, Hunger and Homelessness Survey: a Status Report on Hunger and
Homelessness in America’s Cities, 22-23 (2008).
88
See Section V infra, on Affordability in the U.S.
89
ICESCR, supra note Error! Bookmark not defined., Article 2(1). Although the U.S. has not ratified the
ICESCR, this document is still useful as an interpretive guide to the parameters of the “right to adequate housing.”
90
Budget Squeeze, supra, note 86 at 10.
91
Will Fischer and Chye-Ching Huang, Mortgage Interest Deduction Is Ripe for Reform, Center for Budget &
Policy Priorities, June 25, 2013, http://www.cbpp.org/cms/?fa=view&id=3948.
92
Joint Center for Housing Studies of Harvard University, The State of the Nation’s Housing (June 2013),
http://www.jchs.harvard.edu/sites/jchs.harvard.edu/files/son2013.pdf; Executive Office of the President of the
United States, Fiscal Year 2013 Budget of the U.S. Government 123 (2012).
14
1970s, the HUD budget dedicated to low-income rental assistance has been cut by more than
53%, leading to reductions in the stock of publicly assisted housing by approximately 10,000
units per year.93
Similarly, these programs do not “ensure everyone has access to housing resources” [emphasis
added].94 Although this requirement is subject to “progressive” fulfillment,95 within the context
of abundant resources, the qualification should be a minor one. The limitation on eligibility for
assistance to certain groups of people in need is also inconsistent with universal access. The
Public Housing program, for example, is limited to low-income families, elderly, and disabled
individuals. Further, not all who are eligible are aided.
Finally, and perhaps most obviously, these programs do not provide that members of society
should be able to make a “claim or demand … upon society for provision of or access to housing
resources.”96 First of all, as noted in the preceding paragraph, not all of the homeless or
inadequately housed can make any demand on society. Most individuals are legally excluded
from making such demands. Second, the value of such a claim on society will be determined by
the remedy society provides for that claim. The remedy here is often inadequate or very slow in
coming by virtue of the limited resources committed to these programs. This effectively prevents
many families from realizing their demands. Third, as the ability to make these demands is
created by federal program, rather than statute or constitution, it can be more readily abrogated.
That which can be so readily extinguished by administrative fiat arguably does not rise to the
level of a “right,” which is in part defined by its theoretical (although not practical)
inalienability.
One additional issue must be considered when weighing compliance: regardless of the strength
of federal and state laws protecting security of tenure and/or prohibiting discrimination, such
laws carry little weight in practice if not backed by the assistance of counsel to make
enforcement meaningful. Although indigent persons have a constitutional right to legal
representation in criminal cases where the person’s liberty is in jeopardy,97 no federal or state
court has recognized a right to counsel in housing matters; in fact, the U.S. Supreme Court has
said there is a presumption against appointment of counsel where physical liberty is not at
93
Western Regional Advocacy Project, Without Housing: Decades of Federal Housing Cutbacks, Massive
Homelessness, and Policy Failures 20 (2010); National Low Income Housing Coalition, Out of Reach 2014: 25Years Later, the Affordable Housing Crisis Continues 4 (2014).
94
Housing Rapporteur, supra note Error! Bookmark not defined., at section (a).
95
ICESCR, supra note Error! Bookmark not defined., at article 2(1).
96
Housing Rapporteur, supra note Error! Bookmark not defined. [emphasis added].
97
Gideon v. Wainwright, 372 U.S. 335 (1963).
15
stake.98 And no federal or state legislation guarantees counsel for indigent tenants and
homeowners to enforce housing laws.99
Not only is there an absence of a right to counsel, but the existing legal aid infrastructure cannot
come close to meeting the demand.100 Moreover, unrepresented indigent homeowners and
tenants typically face opponents who are represented by counsel, causing a power imbalance that
further compromises enforceability.101
Reporting and Implementing (Question B 3)
The federal government does not currently coordinate any efforts among subnational
governments to report to the United Nations or implement its recommendations. Furthermore,
the United States lacks a National Human Rights Institution.
Reporting
There is currently no federal focal point to liaise with subnational governments around treaty
reporting. There is also no mandatory reporting requirement for state and local governments to
contribute to the United States government’s periodic reports to treaty bodies. Moreover, with no
National Human Rights Institution, the United States lacks a central human rights monitoring
body tasked with ensuring human rights reporting and implementation at the subnational level.
The federal government has conducted limited outreach to state and local officials to obtain
information for treaty reporting, using letters seeking voluntary reporting from governors and
state and local human rights commissions.102 Responses to those requests have not been
publicized, so it is unclear how comprehensive the responses might have been.
See “SIMPLY UNACCEPTABLE”, supra note 6, at 40; Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981).
The Fair Housing Act permits, but does not require, courts to appoint counsel when a private individual seeks to
enforce FHA rights. 42 U.S.C. 3613(b). A number of states have laws paralleling the FHA that similarly permit but
do not require the appointment of attorneys. See e.g. Ariz. Rev. Stat. Ann. § 41-1491.32 (“On application by a
person alleging a discriminatory housing practice or by a person against whom a discriminatory housing practice is
alleged, the superior court may appoint an attorney for the person”); Colo. Rev. Stat. § 24-34-307(9.5) (“Upon
application by a person alleging a discriminatory housing practice under section 24-34-502 or a person against
whom such a practice is alleged, the court may appoint an attorney for such person . . . if in the opinion of the court
such person is financially unable to bear the costs of such action.”
100
See Alan Housman, Civil Legal Aid in the United States: An Update for 2007, 9 (Center on Law and Social
Policy, August 22, 2007) (finding that fewer than 20% of indigent civil litigants’ needs are met);
101
See Chester Hartman & David Robinson, Evictions: The Hidden Housing Problem, 14 Housing Pol’y Debate
461, 477 (2003) (“Numerous studies demonstrate that most tenants do not have lawyers, while most landlords do,
and that tenants who have representation fare much better in court than those who do not (Scherer 1988). For New
York City, 11.9 percent of tenants, as opposed to 97.6 percent of landlords, were represented in eviction proceedings
…”))
102
Copies of the letters are available on the State Department’s website at
http://www.state.gov/j/drl/reports/treaties/index.htm. See “Memoranda Regarding U.S. Human Rights Treaty
Reports” and “Other Letters to State/Local/Insular/Tribal Governments Regarding U.S. Human Rights Treaty
Reports.”
98
99
16
The United States has recently included state and local officials in its delegations to human rights
treaty reviews. Attorney General Jim Hood of Mississippi and Mayor Ralph Becker of Salt Lake
City, Utah attended the March 2014 review by the U.N. Human Rights Committee. Attorney
General Dustin McDaniel of Arkansas and Mayor William Bell of Birmingham, Alabama
attended the August 2014 review by the Committee for the Elimination of Racial Discrimination.
These state and local officials highlighted efforts in their jurisdictions to address human rights
concerns, including, in particular, initiatives supported by the federal government. For the 2010
Universal Periodic Review of the United States, Robin Toma, Executive Director of the Los
Angeles County Commission on Human Relations, participated alongside the United States
government delegation.103
A few state and local governments have sought, of their own initiative, to report to U.N. human
rights treaty bodies, with limited effect. For example:


In 2009, the City of Berkeley, California, passed a resolution that enables the
Berkeley Peace and Justice Commission (“BPJC”) to prepare reports regarding
Berkeley’s compliance with U.N. human rights treaties.104 According to the
resolution, once approved by the City Council, the reports should be submitted to
the relevant treaty bodies, as well as the U.S. State Department. In October 2014,
the Berkeley City Council, for the first time, approved two such reports: one for
the U.S. review under the ICCPR, which had already taken place in March 2014,
and one for the U.S. review under the CAT, scheduled to take place in November
2014. The BPJC has submitted the CAT report, which addresses issues of
criminalization of homelessness, to the Committee Against Torture. The BPJC
may unilaterally circulate the ICCPR report—which addresses housing and
homelessness—even though that report was not submitted in time for the review
by the Human Rights Committee.
In 2010, the State of California adopted a resolution, ACR 129, aimed at raising
awareness of ratified treaties and facilitating statewide reporting. ACR 129 calls
on the California Attorney General to prepare templates that cities, counties and
state agencies can use to assess their own compliance with human rights treaties
ratified by the United States.105 To date, the California Attorney General has not
103
Human Rights Council, Report of the Working Group on the Universal Periodic Review: United States of
America, Annex, U.N. Doc. A/HRC/16/11 (Jan. 4, 2011).
104
See Submission from Eric Brenman, Secretary, City of Berkeley Peace and Justice Comm’n, to Mayor and
Members of City Council (Sept. 29, 2009), http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3__City_Council/2009/09Sep/2009-09-29_Item_19_United_Nations_Treaty_Reports.pdf.
105
See Assembly Concurrent Resolution No. 129, Cal. Legislature, Legislative Counsel’s Digest (2010), available at
http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0101-0150/acr_129_bill_20100914_chaptered.pdf. See also
Columbia Law Sch. Human Rights Inst., Bringing Human Rights Home: How State and Local Governments Can
Use Human Rights to Advance Local Policy 20-21 (2012), available at
https://web.law.columbia.edu/sites/default/files/microsites/human-rightsinstitute/files/Bringing%20Human%20Rights%20Home.pdf; Marjorie Cohn, California Assembly Votes to Report
on Human Rights to U.N. Committees, Huffington Post (Aug. 19, 2010), http://www.huffingtonpost.com/marjoriecohn/california-assembly-votes_b_688489.html.
17

taken steps to implement the resolution, citing lack of funding.106 ACR 129—
touted in the U.S. government report to the Human Rights Committee in
2011107—has not led to any change in practice.
In 2013, the San Francisco Department on the Status of Women (San Francisco,
California) submitted a report to the Human Rights Committee regarding the U.S.
review under the ICCPR, addressing issues of sex-based discrimination in the
workplace.108
As noted above, these state and local reporting efforts are purely voluntary and are in no way
coordinated by the federal government. Treaty bodies review the reports subnational government
entities submit in the same way as reports that non-governmental organizations and national
human rights institutions submit, rather than as part of the official government report.
Implementing Recommendations
There is no coordinated federal effort to engage state and local actors in human rights monitoring
or implementation, nor is there a federal mechanism or focal point to share U.N.
recommendations following the treaty reviews or to develop guidance for sub-national
governments on applicable human rights standards. As a result, many state and local
governments fail to understand and incorporate human rights into local policy and practice.
Recognizing that the lack of coordination leads to gaps in state and local compliance with human
rights—directly impacting local communities—U.N. experts have consistently emphasized the
need for a more comprehensive and coordinated approach to human rights within the United
States.
Despite this lack of federal guidance or coordination, there appears to be significant and
increasing interest among state and local governments in implementing human rights, including
the right to adequate housing. There have been several innovative efforts to do so, particularly
among state and local human rights and human relations commissions. There are over 150 such
state and local civil and human rights agencies (“Human Rights Agencies”), mandated by state,
county, or city governments to enforce human and civil rights and/or to conduct research,
training and public education and issue policy recommendations on human intergroup relations
and civil and human rights.
106
E-mail from Edward Hasbrouck, The Identity Project, to JoAnn Kamuf Ward, Assoc. Dir., Human Rights in the
U.S. Project, Columbia Law Sch. Human Rights Inst. (Mar. 15, 2013).
107
See U.S. Dep’t of State, Common Core Document of the United States of America: Submitted With the Fourth
Periodic Report of the United States of America to the United Nations Committee on Human Rights Concerning the
International Covenant on Civil and Political Rights, ¶ 133 (Dec. 30, 2011), available at
http://www.state.gov/j/drl/rls/179780.htm.
108
See City and County of San Francisco, Department on the Status of Women, Report on Sex-Based Discrimination
in the American Workplace Under the International Covenant on Civil and Political Rights (Oct. 2013), available at
http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/USA/INT_CCPR_NGO_USA_15941_E.pdf.
18
Human Rights Agencies seek, among other things, to prevent housing discrimination,
particularly against immigrants and other vulnerable communities, and institute fair housing
policies and practices. Human Rights Agencies can receive grants from HUD’s Fair Housing
Initiatives Program to conduct fair housing education and outreach. Human Rights Agencies and
other state and local decision-makers strive to eliminate housing discrimination through
proactive education and outreach, through including communities in developing solutions, and
through hearings, community forums, and task forces.
Moreover, some localities are adopting a human rights-based approach to local housing policy,
recognizing that homelessness and inadequate housing disproportionately affect people of color,
members of the LGBT community, the elderly, and immigrants:



The Illinois Department of Human Rights (“IDHR”) is a state agency that
implements the Illinois Human Rights Act, which prohibits discrimination in
multiple areas including public accommodations. The IDHR conducts substantial
outreach to raise awareness of its protection of LGBT rights in housing. To this
end, the IDHR has collaborated with the Assistant Secretary of the HUD Office of
Fair Housing and Equal Opportunity. In June 2012, they sent a joint letter to
LGBT news outlets describing federal and local legal protections and noting that
discrimination continues despite the laws and regulations in place. The letter
underscores the importance of federal and local partnerships in proactively
addressing the existing gaps in protection. Notably, the IDHR has also served as a
bridge between the U.N. and local decisionmakers. In 2009, the Department
hosted the U.N. Special Rapporteur on Adequate Housing, convening a dialogue
with local officials on fair housing and housing choice programs.109
The San Francisco Human Rights Commission (the “S.F. Commission”) is
mandated to mediate intergroup tensions and enforce the city’s local antidiscrimination laws, including fair housing provisions. In 2005, the S.F.
Commission created the Native American Task Force (“NATF”). The NATF
surveyed Native American communities for a year, then held a hearing on specific
community concerns, including accessible and adequate housing. This culminated
in a report recommending that the city create more affordable, culturallycompetent housing, and more funding to mitigate the high number of Native
American homeless persons.110
In 2007, the Washington State Human Rights Commission, which is charged with
enforcing the state’s human rights statute, embarked on a project to document,
analyze and address the severe lack of housing for farm workers in the state. The
Commission primarily explored the issue through the lens of discrimination
against farm workers on the bases of race and national origin, drawing on its
Rocco J. Claps, Director, Ill. Dep’t of Human Rights, Submission by the Illinois Department of Human Rights
for the United States Department of State Concerning Its Report to the United Nations on the Implementation of
U.S. Obligations Under the International Covenant on Civil and Political Rights (ICCPR) (June 10, 2013) (on file
with Columbia Law Sc. Human Rights Inst.).
110
S.F. Human Rights Comm’n, Discrimination by Omission: Issues of Concern for Native Americans in San
Francisco 21 (2007), available at http://sf-hrc.org/Modules/ShowDocument.aspx?documentID=1796.
109
19


mandate to enforce prohibitions against such discrimination contained in the
state’s anti-discrimination statute and federal fair housing laws. In a report
detailing its findings and recommendations for resolving the housing crisis, the
Commission discussed the relevant domestic legal standards and also drew on
international human rights principles.111
In 2009, the Los Angeles County Human Relations Commission in Los Angeles,
California, embarked on a campaign to address rising violence against people who
are homeless. Drawing on international human rights standards regarding shelter
and housing, the campaign aimed to raise awareness by encouraging law
enforcement agencies to collect relevant data and by engaging in public education
through youth initiatives, informational materials, websites, and curricula
highlighting the fundamental human rights of the homeless that require attention
and protection, such as the right to housing.
In 2012, the International Association of Official Human Rights Agencies
(IAOHRA), a body consisting mostly of U.S. local human rights commissions
like those discussed above, passed a resolution encouraging its members to
implement international human rights, including the right to housing, and
specifically to ask its local members to endorse anti-criminalization efforts, such
as homeless bills of rights.112
Other state and local decision-makers have also addressed the right to adequate housing. For
example, cities and counties have adopted local resolutions to expand the availability of
affordable and accessible housing:


Eugene, Oregon’s Mayor and City Council: At the end of 2011, the Mayor and
City Council created the Opportunity Eugene Community Task Force on
Homelessness, comprised of city councilors, city staff, local service providers,
and advocacy groups, as well as community members. The Task Force researched
and developed strategies and recommendations to remedy the issue of
homelessness in the city, proclaiming “housing is a basic human right.”113 In
2012, the Task Force completed its final report, with recommendations to ensure
that homeless persons are treated with dignity.114 The report was submitted to the
Mayor and City Council.
Madison, Wisconsin City Council & Dane County Board of Supervisors: Two
localities in the state of Wisconsin have recently passed resolutions recognizing
housing as a human right and prioritizing efforts to meet the basic need for
housing.
111
Washington State Human Rights Commission, Farm Worker Housing and the Washington Law Against
Discrimination (2007), available at http://content.knowledgeplex.org/kp2/cache/documents/17830/1783061.pdf.
112
International Association of Official Human Rights Agencies, RESOLTION #2: INTERNATIONAL HUMAN RIGHTS 34 (2013), available at http://nlchp.org/documents/IAOHRA_Resolutions_2013.
113
Opportunity Eugene Task Force, Opportunity Eugene: A Community Task Force on Homelessness Final Report
and Recommendations (2012), available at http://www.eugene-or.gov/DocumentCenter/Home/View/4272.
114
Id. The six recommendations were: 1) identify and establish safe and secure sites for the homeless; 2) create and
support day use community centers; 3) improve healthcare access for the homeless; 4) continue and expand existing
services to the homeless; 5) improve laws and ordinances that criminalize and block homeless individuals; and 6)
create a commission to continue to explore homelessness solutions. Id.at 1-4.
20
o In 2011, the Madison City Council passed a resolution highlighting
the prevalence of homelessness and the interrelated nature of
homelessness, joblessness, and poverty, conditions that
disproportionately affect minorities. The resolution underscored
that Madison has an obligation to promote fair housing and that
several treaties ratified by the United States, including the ICCPR,
require the city to eliminate policies with a racially discriminatory
effect.115 The resolution calls for an assessment of affordable and
accessible housing needs, the creation of a staff position to oversee
the assessment, and a long term housing strategy. It also calls for
public funds to increase affordable and available housing.116
o Building on the City Council’s effort, the Board of Supervisors of
Dane County, which encompasses Madison, passed a ‘housing is a
human right’ resolution in 2012. This resolution also prioritizes
providing shelter. It sets out a concrete goal for the county: a local
housing plan that aims to improve the availability of adequate
housing, a reduction in the number of homeless children in local
schools, and prevention of the criminalization of homelessness.117
A body comprised of local officials and residents is charged with
implementing the housing plan. To ensure accurate data is
available, the resolution calls for an annual assessment of housing
needs.
In addition, three states and one city have enacted Homeless Bill of Rights legislation.118 Other
states are considering similar legislation, and advocacy groups are actively promoting such
initiatives with an expanded focus on rights.119 Although these bills of rights do not expressly
include the right to housing, they represent a positive step towards recognizing rights such as
freedom of movement and the right to vote and to emergency medical care.120 The bills that have
passed, while judicially enforceable, are limited to non-discrimination against homeless persons
in existing rights, and no court has yet tested the laws. However, advocates are hopeful that these
initial efforts will lay the basis for more substantive legislation in the future.
115
City of Madison Res. on Housing as A Human Right, Legislative File 23825 (Version 1) (Sept. 6, 2011),
available at http://legistar.cityofmadison.com/attachments/a584992f-510c-46d1-b709-c81372062ac0.pdf.
116
Id. See also Pat Schneider, Grass Roots: Madison Recognizes Housing as a Human Right, The Cap Times, Dec.
2, 2011, http://host.madison.com/ct/news/local/article_30d9d280-1c7b-11e1-858a-001871e3ce6c.html.
117
Dane County Recognizes Housing As A Human Right, Res. 292, 11-12. See Dane County Board of Supervisors
Zoning & Land Regulation Comm. Work Meeting Agenda (June 12, 2012) at 103-04 for the resolution text,
http://pdf.countyofdane.com/plandev/zoning/June%2012%20ZLR%20Work%20Meeting.pdf.
118
See NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, FROM WRONGS TO RIGHTS: THE CASE ROR
HOMELESS BILL OF RIGHTS LEGISLATION 18 (2011), available at
http://nlchp.org/documents/Wrongs_to_Rights_HBOR; Cynthia Boyd, Duluth’s New Tool to Fight Homelessness: A
Bill of Rights, MINN POST (2014), available at www.minnpost.com/community-sketchbook/2014/01/duluth-s-newtool-fight-homelessness-bill-rights. The states that have passed Homeless Bills of Rights are Rhode Island, Illinois,
and Connecticut. The City is Duluth, Minnesota.
119
See WESTERN REGIONAL ADVOCACY PROJECT HOMELESS, HOMELESS BILL OF RIGTHS CAMPAIGN MANUAL 4,
(2014) available at http://wraphome.org/images/stories/hbr/hbrcmcsz.pdf.
120
See FROM WRONGS TO RIGHTS, supra note 115, at 7.
21
While these state and local efforts are encouraging, they remain ad hoc, patchwork, and
vulnerable to elimination through budget cuts.
Accountability (Question B 4)
As noted above, the United States does not currently have a National Human Rights Institution,
nor is there any other federal focal point, ombudsman, or other federal office responsible for
coordinating and overseeing the implementation of human rights obligations throughout the
United States, particularly among subnational governments.
The federal government currently does play an important role in facilitating and supporting
Human Rights Agencies in their efforts to enforce and monitor compliance with federal antidiscrimination laws, including those that prohibit discrimination in housing. For example,
through its Fair Housing Initiatives Program, HUD provides grants to state commissions to
conduct fair housing education and outreach.
However, no such mechanism currently exists to support state and local government actors in
implementing their international human rights obligations with respect to adequate housing.
Furthermore, existing efforts are specific to eliminating discrimination and do not act to
guarantee the right to adequate housing more broadly. Although the Fair Housing Initiatives
Program has been effective, its scope is limited.
Challenges and Recommendations (Question B 5)
The three most significant challenges to effective accountability of subnational governments for
implementing human rights standards, including the right to adequate housing, in the U.S. are:



The lack of knowledge among state and local officials of the human rights treaties
the U.S. has ratified and their obligations with respect to treaty implementation
and human rights compliance more generally;
Resource and staffing constraints at the state and local level, which further
impede the promotion and protection of human rights; and
The lack of an institutionalized approach to human rights implementation at the
federal level, specifically lack of federal coordination of and support for human
rights education, monitoring, and implementation at the subnational level.
In response to these challenges, we recommend that the U.S. federal government:

Provide education and training to state and local agencies and officials on their
human rights obligations. This should include federal dissemination of
Concluding Observations issued by the U.N. treaty bodies to relevant state and
local officials within one year of treaty body reviews, along with appropriate
guidance from the federal government on how the recommendations relate to state
and local policy and effective human rights implementation.
22





Ensure dedicated federal staff to serve as focal points for coordinating and liaising
with state and local actors regarding human rights reporting and implementation.
These staff should help state and local governments identify and develop effective
practices. The federal staff should also communicate recommendations from
international bodies to state and local governments.
Establish institutionalized, transparent and effective mechanisms to coordinate
with state and local officials to ensure comprehensive monitoring and
implementation of international human rights standards at the federal, state and
local levels, such as a National Human Rights Institution.
Provide state and local governments with the resources necessary to engage in
civil and human rights implementation and compliance, including grants to
Human Rights Agencies, to ensure they have the capability to undertake human
rights education, monitoring, reporting, and implementation.
Introduce and support legislation providing a right to counsel in cases implicating
the right to adequate housing for federally-subsidized housing, and support and
coordinate efforts to establish a right to counsel in housing cases at the state and
local level.
Affirmatively recognize and address adequate housing as a human right, and
assist state and local governments in creating accountability mechanisms to
measure progress in implementing the right.
23