Saturday, February 23, 2019

The Fair Housing Act at 50

By Mike Sorohan
April 10, 2018

Fair Housing Act

Fifty years ago, on April 11, 1968, President Lyndon Johnson signed into law Title VIII of the Civil Rights Act--better known as the Fair Housing Act.

FairHousingAct"Now, with this bill, the voice of justice speaks again," Johnson said. "It proclaims that Fair Housing for all, all human beings who live in this country, is now part of the American way of life."

Mortgage Bankers Association President and CEO David Stevens, CMB, calls the Fair Housing Act "one of the landmark pieces of legislation in U.S. history."

"Its most important impact is that it explicitly prohibits discrimination in buying, selling, rental or financing of housing based on race, skin color, sex, nationality, religion, or any other protected class characteristic," Stevens said. "It is a landmark piece of legislation that insures equal access for all to housing and is something that the mortgage banking industry strongly endorses."

But to get to this point, the bill went through years of politics--and blood.

In the mid-1960s, housing discrimination remained rampant, even though the U.S. Supreme Court emphatically ruled against such practices more than 20 years previously. Two cases in 1945 laid the groundwork; Shelley v. Kraemer and McGhee v. Sipes.

The first case involved the African-American Shelley family, which purchased a home in St. Louis. Unbeknownst to them, the property had a restrictive covenant in place that prevented "people of the Negro or Mongolian Race" from occupying the property. Subsequently, the Shelleys were sued by a white man, Louis Kraemer--who lived 10 blocks away--to prevent the Shelleys from taking possession.

FairHousingThe case pinballed through lower courts, with the Supreme Court of Missouri holding that the covenant was enforceable against the purchasers because the covenant was a "purely private agreement between its original parties," and was enforceable against subsequent owners.

Meanwhile, in Detroit, a similar case emerged; the McGhee family purchased land in a neighborhood in which a similar restrictive covenant was in place. The McGhees' attorneys, future Supreme Court Justice Thurgood Marshall and Loren Miller, guided this case to the U.S. Supreme Court as well, where it was consolidated with the Shelley case.

In 1948, the Supreme Court ruled in Shelley v. Kraemer that these restrictive covenants violated the 14th Amendment, and that a state cannot enforce restrictive covenants that would prohibit a person from owning or occupying property based on race or color. "[Racially] restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment," wrote Chief Justice Fred Vinson for the majority in the 6-3 decision.

However, the ruling had little change on discriminatory practices. It would not be until 20 years later before another case gave the federal government the real impetus to pass meaningful legislation. In Jones v. Mayer Co. (1968), the Jones family attempted to purchase a home in the Paddock Woods section of St. Louis. The Mayer Co. refused to sell to the Joneses because they were African-American. This case, too, wended through the court system to the Supreme Court.

In its 7-2 decision, with Justice Potter Stewart writing for the majority, the Court ruled Congress can regulate the sale of private property to prevent racial discrimination. Stewart cited the Civil Rights Act of 1866, which held that:

"...citizens, of every race and color...shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding."

Further, SCOTUS ruled the 13th Amendment authorized Congress to prohibit private acts of discrimination as among "the badges and incidents of slavery," and that Congress "possessed the power to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation."

This ruling gave momentum to Sens. Edward Brooke, R-Mass., and Walter Mondale, D-Minn., who had tried previously to push through fair housing legislation through Congress. Following passage of the landmark Civil Rights Act of 1964, President Johnson urged Congress to further strengthen the Act with additional protections, a point further emphasized with the intervention of the Rev. Martin Luther King Jr., who took a leadership role in 1966 in Chicago to end discrimination in that city.

Efforts to pass fair housing legislation in 1966 and 1967 fizzled for lack of bipartisan support. But in 1968--boosted by the Jones ruling in a critical election year--Mondale and Brooke sensed new momentum.

For Brooke, the issue was particularly personal. He was the first African-American to be elected to the Senate by popular vote. During World War II, he served as an Army officer in a segregated unit in Italy. Returning from Europe, he and other black veterans found difficulty finding homes because of their race.

"It's not purely a Negro problem," he told Time magazine in a 1967 interview on housing. "It's a social and economic American problem."

It was also a problem increasingly exacerbated by changing demographics. Since 1950 African-Americans had flocked to American cities, changing neighborhoods seemingly overnight, resulting in increased reported incidents of housing discrimination. In 1910, Chicago's African-American population totaled just 2 percent of the population; when King visited Chicago in 1966, the city's African-American population had grown to 25 percent.

Adding to the momentum: a growing number of African-American and Hispanic members of the armed forces who had served in the Vietnam War, who returned and experienced difficulties renting or purchasing homes in certain residential areas because of their race or national origin. Support for legislation also came from high-profile groups such as the National Association for the Advancement of Colored People (NAACP).

The Brooke-Mondale bill extended federal protection to civil rights workers and addressed racial discrimination in housing. For the first time, the now-familiar language appeared, banning discrimination in sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18) and disability.

Critics of the bill continued to insist that "making it easier for black families to move into white neighborhoods would trample their property rights and constitute ‘discrimination in reverse.'" Still, as racial strife grew more pronounced, and as King and other civil rights leaders called for an elimination of the nation's slums, pressure to address segregated housing continued to mount.

Southern senators, led by Strom Thurmond, R-S.C., threatened a filibuster--a situation deftly defused by Senate Minority Leader Everett Dirksen, R-Ill., who guided the bill to a narrow approval in March 1968. The bill then moved to the House--and an uncertain future.

And then, the unthinkable happened: on April 4, as the House prepared to vote, King was killed in Memphis. In the days following King's assassination, more than 100 U.S. cities experienced protests and unrest.

With emotions at a boiling point, Johnson upped the pressure on House leadership, urging them to pass the bill before King's funeral "as a fitting testament to the man and his legacy."

The House complied, passing the Fair Housing Act on April 10. Johnson signed it into law the next day. In subsequent years Congress expanded the bill to include protections by gender (1974) and by people with disabilities and families with children (1988).

Fifty years later, the Fair Housing Act, while effective in eliminating blatant housing discrimination, has not proven to be a panacea. HUD estimates 2 million cases of housing discrimination each year; The National Fair Housing Alliance, the largest fair housing non-profit in the country, estimates that number closer to 4 million. The Federal Reserve estimates more than one in five of these cases (21.4 percent) involve African-Americans; another 16 percent target Latinos.

Writing in the Washington Post (, Janell Ross noted a small--"and the emphasis here is on the word small--number of black and Hispanic Americans have moved into middle-income and more-affluent, predominantly white communities, but the vast majority of the nation's neighborhoods remain deeply segregated." She cited continued racial gaps in life expectancy, education and employment.

In 2015, HUD announced new rules requiring communities to set fair housing goals, track them, evaluate local housing patterns for racial bias and evidence of continued segregation then report their results periodically. But earlier this year the Trump Administration said it would suspend those rules until 2020, sparking sharp criticism.

"It's terrible news," Gustavo Velasquez, former assistant secretary for fair housing and equal opportunity at HUD during the Obama administration, told the New York Times. "I am concerned, though, that this is not actually the worst news." He said he feared the Trump Administration "will entirely undo the rule."

Additionally, HUD confirmed last year that Anna Maria Farias, who heads the department's Fair Housing and Equal Opportunity division, had put a half-dozen fair housing investigations begun under the Obama Administration on hold "until further notice."

HUD Secretary Ben Carson, while warmly praising the Fair Housing Act in a video this month (, has expressed a desire to "reinterpret" the 2015 rules, agreeing with critics that they are "an aggressive intrusion by the federal government into some of the most intimate decisions local citizens and communities make: about where to live, who lives next door and how to design their neighborhoods."

Carson further raised the ire of fair housing advocates in a confusing set of memos in which he allegedly decided to strike the words "inclusive" and "free from discrimination" from HUD's mission statement. An anonymous HUD staffer leaked the first memo to the media, resulting in a second memo from Carson denying that striking the words was HUD's intent.

"What the federal government is doing in terms of fair housing enforcement is what I call ‘misfeasance,'" said Marc Morial, president and CEO of the National Urban League, during a recent National Fair Housing Alliance event. "It's a shame, their failure to enforce fair housing laws."

Officially, Carson says the Fair Housing Act "stands as the final great legislative achievement of the civil rights era," and "remains a centerpiece of the work HUD is doing to ensure fair, inclusive housing, free from discrimination for all Americans."

In the video, Carson describes growing up in poor, segregated neighborhoods and as a teenager "being very excited" when the Fair Housing Act passed.

"A lot of progress has been made; and we have to acknowledge how we made that progress and make sure that we maintain those things that allow us to make that progress," Carson said. "Fairness means non-discrimination; fairness means inclusion; fairness means acceptance of people who are different from you and understanding that they may have a different set of values. And if we can really bring that to the forefront, I think all of the negative things that we've experienced in our lifetime will be worthwhile."

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