Now is the time to get rid of the slums and ghettos of Chicago. Now is the time to make justice a reality all over this nation. Now is the time.
The enactment of the Fair Housing Act on April 11, 1968, came only after a long and challenging journey. American society was afflicted with cradle-to-grave segregation. Even after the Brown decision and the Civil Rights Act of 1964, the nation was deeply divided, with housing segregation and discrimination still deeply embedded therein. Additionally, the growing casualties from the war in Vietnam embittered and enraged Americans. The deaths in Vietnam fell heaviest upon young and poor infantrymen of color. On the home front, these men's families could not purchase or rent homes in certain residential developments because of their race or national origin.
Since the 1966 open housing marches in Chicago, Dr. Martin Luther King Jr.'s name has been closely linked with fair housing legislation. From 1966 to 1967, Congress regularly considered a national fair housing bill but failed to garner majority support for its passage. Senators Edward Brooke and Edward Kennedy argued deeply for the enactment of this legislation. In particular, Senator Brooke, the first African-American ever to be elected to the Senate by popular vote, spoke personally of his return from World War II and his inability to provide a home of his choice for his new family because of his race.
Things changed following the assignment of Dr. King on April 4, 1968. President Lyndon B. Johnson leveraged this national tragedy to demand the bill's immediate Congressional approval. President Johnson viewed the Fair Housing Act as a fitting memorial to Dr. King's life work and wished to have the Act passed before Dr. King's funeral in Atlanta. The Fair Housing Act expanded on the Civil Rights Act of 1964 to prohibit discrimination concerning the sale, rental, and financing of housing based on race, color, religion, and national origin. Subsequent amendments in 1974 and 1988 added gender, disability, and familial status as protected classes.
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The Fair Housing Act The Fair Housing Act is the primary source of protection against housing discrimination. It was initially enacted as Title VIII of the Civil Rights Act of 1968 ( Pub. L. 88-352, 78 Stat. 241). It is codified as 42 U.S.C. §3601 et seq. of the United States Code. The last significant amendment to the Fair Housing Act was enacted in 1998, the Fair Housing Amendments Act of 1988 (Pub. L. 100-430, 102 Stat.1619). The annotated versions of the code additionally provide helpful case citations and references to secondary sources.
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A Legal Overview The Fair Housing Act (FHA): A Legal Overview by the Congressional Research Service and available via CARLI. |
The Fair Housing Act has been amended several times since its initial enactment. The law initially only prohibited discrimination based on race, color, religion, or national origin. The Act was amended in 1974 to include the prohibition against sex discrimination in housing. In 1988, the act was further amended to include the prohibition of discrimination based on physical or mental handicap and on the basis of familial status.
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Federal Regulations Under 42 U.S.C. § 3614a, the Secretary of the Department of Housing and Urban Development may make rules as necessary to carry out the Act. Most of these rules are in Title 24 of the Code of Federal Regulations. The regulations can be found through various modes :
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HUD Administrative Decisions & Orders As part of its mandate to enforce the Fair Housing Act, the Department of Housing and Urban Development conducts hearings carried out by administrative law judges to resolve charges of discrimination. The decisions and orders of these administrative proceedings can be found in the following resources.
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Shelley v. Kraemer, 334 U.S. 1 (1948). The Supreme Court ruled that enforcing restrictive covenants against non-white homeownership violated the equal protection clause and due process by denying ownership rights based on race. While Shelley did not eliminate housing discrimination, it represented a significant step in the legal and moral progression that ultimately led to the Fair Housing Act, emphasizing the necessity for comprehensive legislation to combat systemic inequality in housing.
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The Supreme Court ruled that 42 U.S.C. § 1982 prohibits all racial discrimination in property sales by private owners and public authorities, emphasizing Congress's authority under the Thirteenth Amendment to eliminate the remnants of slavery. This decision was historically significant because it was issued just two months after the assassination of Dr. Martin Luther King Jr. and shortly after the passage of the Fair Housing Act. The ruling reinforced the federal government’s authority to combat racial discrimination in housing, including actions by private parties, under the Civil Rights Act of 1866 and the Thirteenth Amendment.
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). Two tenants, one white and one black, filed complaints with the U.S. Department of Housing and Urban Development (HUD), alleging racial discrimination by their landlord, which hindered their opportunities in an integrated community. The trial court ruled they lacked standing to sue under the FHA, a decision upheld on appeal. However, the Court later overturned this ruling, stating that the Fair Housing Act allows any resident who suffers injury from racial discrimination to sue, emphasizing a broad definition of "person aggrieved." The Court noted that HUD recognized the tenants as qualified aggrieved persons under the Fair Housing Act.
Hills v. Gautreaux, 425 U.S. 284 (1976). Black residents in Chicago filed a lawsuit against the Chicago Housing Authority (CHA) and HUD. They claimed that public housing was intentionally located in segregated neighborhoods, which perpetuated racial segregation. The Supreme Court ruled in favor of the plaintiffs, determining that HUD had violated the Fifth Amendment and the Civil Rights Act of 1964 by endorsing discriminatory housing policies. This ruling established that remedies could extend beyond Chicago to its surrounding suburbs. While the Supreme Court's decision did not explicitly address the Fair Housing Act, the Gautreaux case significantly influenced future fair housing cases and policies by setting a legal precedent for metropolitan-wide remedies in cases of federally supported housing discrimination.
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). Metropolitan Housing sought to build federally subsidized, racially integrated housing for low- and moderate-income families in Arlington Heights, Illinois. Metropolitan Housing requested the village to rezone a 15-acre parcel from single-family to multi-family residential use, but the village denied the request due to zoning consistency concerns. Metropolitan Housing and individual plaintiffs sued, claiming racial discrimination in violation of the Fourteenth Amendment and the Fair Housing Act of 1968. The Supreme Court ruled that a racially disproportionate impact alone does not prove a constitutional violation; plaintiffs must show that discriminatory intent motivated the government's action. The Supreme Court found that the village's decision was based on legitimate zoning considerations and established a framework for evaluating discriminatory intent claims, considering factors such as the decision's historical context and procedural departures.
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). Respondents, posing as potential homebuyers, investigated alleged racial "steering" by petitioners and filed a lawsuit. The trial court dismissed the suits, but the appellate court reversed, ruling that the respondents had standing under the Fair Housing Act. The Court partially affirmed this, stating the municipality and local testers had standing due to actual injury, while two individual respondents lacked standing as they did not live in the relevant municipality.
Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519 (2015). This case supported the "disparate impact" theory under the Fair Housing Act, allowing challenges to housing practices with discriminatory effects, regardless of intent. It was a crucial win for fair housing advocates, promoting non-discriminatory housing policies.
Bank of Am. Corp. v. City of Miami, 581 U.S. 189 (2017). The plaintiff sued the defendant banks for allegedly violating the FHA by targeting African-American and Latino neighborhoods with discriminatory lending practices. The Court ruled that the plaintiff's claims of lost tax revenue and increased expenses were valid under the Fair Housing Act, stating that foreseeability alone does not establish proximate cause.