Fair Housing Act

SIGNIFICANCE: The Fair Housing Act, which became law on April 11, 1968, prohibits discrimination in housing, aiming to help break racial enclaves in residential neighborhoods and promote upward mobility for marginalized individuals.

The Civil Rights Act of 1866 provided that all citizens should have the same rights “to inherit, purchase, lease, sell, hold, and convey real and personal property,” but the law was never enforced. Instead, such federal agencies as the Farmers Home Administration, the Federal Housing Administration, and the Veterans Administration financially supported segregated housing until 1962, when President John F. Kennedy issued Executive Order 11063 to stop the practice.

California passed a general nondiscrimination law in 1959 and an explicit fair housing law in 1963. In 1964, voters enacted Proposition 14, an initiative to repeal the 1963 statute and the applicability of the 1959 law to housing. When a landlord in Santa Ana refused to rent to a Black American in 1963, the latter sued, thus challenging Proposition 14. The California Supreme Court, which heard the case in 1966, ruled that Proposition 14 was contrary to the Fourteenth Amendment to the US Constitution because it was not neutral on the matter of housing discrimination; instead, based on the context in which it was adopted, Proposition 14 served to legitimate and promote discrimination. On appeal, the US Supreme Court let the California Supreme Court decision stand in Reitman v. Mulkey (1967).

Johnson’s Efforts

President Lyndon B. Johnson had hoped to include housing discrimination as a provision in the comprehensive Civil Rights Act of 1964, but he demurred when southern senators threatened to block the nomination of Robert Weaver as the first Black cabinet appointee. After 1964, southern members of Congress were adamantly opposed to any expansion of civil rights. Although Johnson urged passage of a federal law against housing discrimination in requests to Congress in 1966 and 1967, there was no mention of the idea during his State of the Union address in 1968. Liberal members of Congress pressed the issue regardless, and southern senators responded by threatening a filibuster. This threat emboldened Senators Edward W. Brooke and Walter F. Mondale, a moderate Republican and a liberal Democrat, respectively, to cosponsor fair housing legislation, but they needed the support of conservative midwestern Republicans to break a filibuster. Illinois Republican senator Everett Dirksen arranged a compromise whereby housing discrimination would be declared illegal, but federal enforcement power would be minimal.

In the wake of Reitman v. Mulkey; the assassination of Martin Luther King Jr. on April 4, 1968; and subsequent urban riots, Congress established fair housing as a national priority on April 10 by adopting Titles VIII and IX of the Civil Rights Act of 1968, also known as the Fair Housing Act or Open Housing Act. Signed by Johnson on the following day, the law originally prohibited discrimination in housing on the basis of race, color, religion, or national origin. In 1974, an amendment expanded the coverage to include sex (gender) discrimination; in 1988, the law was extended to protect persons with disabilities and families with children younger than eighteen years of age.

Title VIII prohibits discrimination in the sale or rental of dwellings, in the financing of housing, in advertising, in the use of a multiple listing service, and in practices that “otherwise make unavailable or deny” housing, a phrase that some courts have interpreted to outlaw exclusionary zoning, mortgage redlining, and racial steering. Blockbusting, the practice of inducing a White homeowner to sell to a marginalized buyer to frighten others on the block to sell their houses at a loss, is also prohibited. It is not necessary to show intent to prove discrimination; policies, practices, and procedures that have the effect of excluding marginalized individuals, people with disabilities, and children are illegal, unless otherwise deemed reasonable. Title VIII, as amended in 1988, covers persons who believe that they are adversely affected by a discriminatory policy, practice, or procedure, even before they incur damages.

The law applies to about 80 percent of all housing in the United States. One exception to the statute is a single-family house sold or rented without the use of a broker and without discriminatory advertising, when the owner owns no more than three such houses and sells only one house in a two-year period. Neither does the statute apply to a four-unit dwelling if the owner lives in one of the units, the so-called Mrs.-Murphy’s-rooming-house exception. Dwellings owned by private clubs or religious organizations that rent to their own members on a noncommercial basis are also exempt.

Enforcement

Enforcement of the statute was left to the secretary of the Department of Housing and Urban Development (HUD). Complaints originally had to be filed within 180 days of the offending act, but in 1988, this period was amended to one year. By the 2020s, HUD had estimated that millions of instances of housing discrimination occurred each year; while many went unreported, the National Fair Housing Alliance continued to release the total number, typically multiple thousands, of formal complaints annually. The US attorney general can bring a civil suit against a flagrant violator of the law.

According to the law, HUD automatically refers complaints to local agencies that administer “substantially equivalent” fair housing laws. HUD can act if the local agencies fail to do so, but initially was expected only to use conference, conciliation, and persuasion to bring about voluntary compliance. The Fair Housing Amendments Act of 1988 authorized an administrative law tribunal to hear cases that cannot be settled by persuasion. The administrative law judges have the power to issue cease-and-desist orders to offending parties. HUD has used “testers” to show discrimination. That testers have standing to sue was established by the US Supreme Court in Havens v. Coleman (1982). Under the administrative law procedure, penalties are issued according to first offense and increase for additional offenses thereafter. Attorneys’ fees and court costs can be recovered by the prevailing party.

Title IX of the law prohibits intimidation or attempted injury of anyone filing a housing discrimination complaint. If a complainant is actually injured, the penalty can increase and/or include a certain number of years of imprisonment. If a complainant is killed, the penalty can be life imprisonment.

Under the laws of some states, a complainant filing with a state agency must waive the right to pursue a remedy under federal law. In 1965, a couple sought to purchase a home in a St. Louis suburban housing development, only to be told by the realtor that the home was not available because one of the spouses was Black. Invoking the Civil Rights Act of 1866, the couple sued the real estate developer, and the case went to the Supreme Court. In Jones v. Alfred H. Mayer Company (1968), the Court decided that the Civil Rights Act of 1866 did permit a remedy against housing discrimination by private parties.

Many experts have argued, however, that the effect of the 1968 Fair Housing Act has been minimal. Without a larger supply of affordable housing, many Black Americans, in particular, have nowhere to move to enjoy integrated housing. Federal subsidies for low-cost housing, under such legislation as the Housing and Urban Development Act of 1968 and the Housing and Community Development Act of 1974, have declined significantly since the 1980s.

Bibliography

"The Fair Housing Act." Civil Rights Division, US Department of Justice, 22 June 2023, www.justice.gov/crt/fair-housing-act-1. Accessed 14 Nov. 2024.

Kushner, James A. Fair Housing: Discrimination in Real Estate, Community Development, and Revitalization. McGraw, 1983.

Metcalf, George R. Fair Housing Comes of Age. Greenwood, 1988.

Prakash, Swati. “Racial Dimensions of Property Value Protection under the Fair Housing Act.” California Law Review, vol. 101, no. 5, 2013, pp. 1437–97.

Schneider, Valerie. “In Defense of Disparate Impact: Urban Redevelopment and the Supreme Court’s Recent Interest in the Fair Housing Act.” Missouri Law Review, vol. 79, no. 3, 2014, pp. 539+.

Schwemm, Robert G., editor. The Fair Housing Act after Twenty Years. Yale Law School, 1989.