Origins of Fair Housing


This April we celebrate the 45th anniversary of the Fair Housing Act—a powerful law that fights housing discrimination and opens doors for people with disabilities across the U.S. As an industry, we are committed to providing equal access to housing for all persons. This anniversary gave me an opportunity to reflect upon the origins of the Fair Housing statutes.

Civil Rights Act of 1866

I thought it was interesting that the origins of Fair Housing began with The Civil Rights Act of 1866. It is considered the most important action by Congress towards protecting the rights of Freedmen during the Reconstruction period. The Republicans controlled a majority in the United States Congress. Andrew Johnson was President of the United States at the time. The Civil Rights Act of 1866 was Congress' attempt to counter the Black Codes in the southern United States, which had recently been enacted by all former slave states following the passage of the Thirteenth Amendment to the United States Constitution. The Civil Rights Act of 1866 provided that: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property". President Andrew Johnson vetoed the bill, saying that blacks were not qualified for United States citizenship and that the bill would "operate in favor of the colored and against the white race".

On April 9, 1866, the congressional Republicans overrode the presidential veto. It was considered the first major law ever enacted due to an override of a presidential veto. Moreover, this law gave impetus to a question concerning Congress' constitutional authority to make such a law. These questions were quickly put to rest upon the proposal and ratification of the Fourteenth Amendment. Section 1 of the Fourteenth Amendment formally defines citizenship and protects people's civil rights from infringement by any state. This represented the Congress' reversal of that portion of the Dred Scott decision that declared that blacks were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. As stated above The Civil Rights Act of 1866 had already granted U.S. citizenship to all people born in the United States; the framers of the Fourteenth Amendment added this principle into the Constitution to keep the Supreme Court from ruling the Civil Rights Act of 1866 to be unconstitutional for lack of congressional authority to pass such a law or a future Congress from altering it by a bare majority vote.

However, Congress did not provide federal solutions, and remedies were left to the individuals involved. Because those usually discriminated against had limited means, they did not have access to attorneys or courts.

Civil Rights Act of 1964

On June 11, 1963, President John F. Kennedy introduced this Civil Rights bill during his civil rights speech in which he asked for legislation "giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments," as well as "greater protection for the right to vote."

What is interesting about this bill was that it emulated The Civil Rights Act of 1875, and was signed by President Grant on March 1, 1875. The Civil Rights Act of 1875 guaranteed that everyone, regardless of race, color or previous condition of servitude, was entitled to the same treatment in "public accommodations" (i.e., inns, public conveyances on land or water, theaters, and other places of public amusement).

If found guilty, the lawbreaker could face a penalty anywhere from $500 to $1,000 and/or 30 days to one year in prison. However, the law was rarely enforced (especially after the withdrawal of federal troops from the South after the 1876 Presidential election) and in the 1883 Civil Rights Cases the Supreme Court deemed the act unconstitutional on the basis that Congress had no power to regulate the conduct of individuals. The Fourteenth Amendment prohibits discrimination by the state, not by individuals.

Back to the Civil Rights Act of 1964, President Kennedy's civil rights bill included provisions to ban discrimination in public accommodations, and to enable the U.S. Attorney General to join in lawsuits against state governments which operated segregated school systems (among other provisions). Many civil rights leaders were dis appointed because the Act did not provide any provisions against police brutality, discrimination in the private workplace or granting the Justice Department the power to initiate desegregation or job discrimination lawsuits.

Nevertheless, the Civil Rights Act of 1964 is considered a landmark piece of legislation in the United States that outlawed racial segregation in schools, public places, and employment. It was originally thought to help African Americans; however, the bill was amended prior to passage to protect women. It explicitly included white people for the first time. Moreover, it also created the Equal Employment Opportunity Commission.

In order to circumvent limitations on congressional power to enforce the Equal Protection Clause imposed by the Supreme Court in the Civil Rights Cases, the law was passed under the Commerce Clause, which had been interpreted by the courts as a broad grant of congressional power. Once the Act was implemented, its effects were far reaching and had tremendous long-term impacts on the whole country. It prohibited discrimination in public facilities, in government, and in employment, invalidating the Jim Crow laws in the southern U.S. It became illegal to compel segregation of the races in schools, housing or hiring. Powers given to enforce the bill were initially weak, but were supplemented during later years.

Civil Rights Act of 1968

After a series of riots in America's largest cities, including Los Angeles, Chicago, Newark and Detroit, President Lyndon B. Johnson appointed the Advisory Commission in 1967. The President asked the Commission to investigate the triggers of the riots, the deeper causes of the racial unrest, and potential remedies.

The Commission's report, known as the Kerner Report after its chairman, Illinois Governor Otto Kerner, found that the primary cause of racial unrest and violence was black rage against white racism, which the report stated was largely responsible for keeping blacks segregated in ghettos. The report concluded that America was "moving toward two societies, one black, one white—separate and unequal," noting that "white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it." The report highlighted residential segregation as a primary cause of the urban riots of the middle to late 1960s. The Kerner Report recommended sweeping federal initiatives to eliminate housing discrimination and improve housing opportunities for urban blacks.

Congress responded by passing the Civil Rights Act of 1968. The Act made many of the discriminatory practices that led to racial segregation in America's housing markets illegal. It was, in the words of the Supreme Court in Jones v. Alfred H. Mayer Company (1968), a "comprehensive open housing law." The Act made it U.S. policy to "provide, within constitutional limitations, for fair housing throughout the United States."

The Civil Rights Act of 1968 prohibited the following forms of discrimination:

  1. Refusal to sell or rent a dwelling to any person because of his race, color, religion or national origin. (People with disabilities and families with children were added to the list of protected classes by the Fair Housing Amendments Act of 1988 and in 1974, the basis of sex was prohibited.)
  2. Discrimination against a person in the terms, conditions or privilege of the sale or rental of a dwelling.
  3. Advertising the sale or rental of a dwelling indicating preference of discrimination based on race, color, religion or national origin (and, as of 1988, people with disabilities and families with children).
  4. Coercing, threatening, intimidating or interfering with a person's enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of fair housing rights.

Federal Fair Housing Amendments Act of 1988

In 1988, the Fair Housing Amendments Act added the following:

  1. Expanded the coverage of the Fair Housing Act to prohibit discrimination based on disability or on familial status (presence of child under age of 18, and pregnant women);
  2. Established new administrative enforcement mechanisms with HUD attorneys bringing actions before administrative law judges on behalf of victims of housing discrimination; and
  3. Revised and expanded Justice Department jurisdiction to bring suit on behalf of victims in Federal district courts.

I thought that everyone would enjoy the history lesson because sometimes we forget how the laws are enacted. Furthermore, that housing has come a long way and has a long way still to go. Did you know that HUD estimates that there are over two million complaints of housing discrimination each year? That is astounding! It is my experience, that a majority of landlords and owners do not care about the color of someone's skin, their family back ground, or any of the other protected classes when prospective tenants rent their apartment units. Instead, landlords and owners care about whether the tenants will pay the rent on time and not damage the apartment unit beyond ordinary wear and tear. That is how it should be!

Remember, the Civil Rights Act of 1866, the Civil Rights Act of 1968, and the Federal Fair Housing Amendments Act of 1988 were designed to provide everyone with access to fair and decent housing opportunities. By participating in the rental housing industry, owners and landlords must subscribe to the concept of Fair Housing, not just in April, but all year long. Remember that Fair Housing does not guarantee "housing," only that all individuals will have equal access and opportunity for housing. It's their Right, and our Responsibility to ensure it.

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