Today, more than three decades after the 1968 Fair Housing Act ("FHA") (1) banned such behavior, blatant discrimination--often accompanied by racist slurs and other explicitly discriminatory statements--continues to plague America's housing markets. (2) In one recent case, a Louisiana landlord told an African-American applicant he did not rent to "you people." When the applicant asked what he meant by this, the landlord told her, "black, color[ed], Negro, whatever you call yourself, I don't rent to y'all." (3) Lest one think this is aberrational behavior limited to the "Old South," a steady stream of reported cases from the Midwest, the East Coast, and California provide numerous additional examples of housing providers who not only expressed similar views, but added racial slurs for good measure. (4)
The reality of these cases stands in stark contrast to the promise of the Fair Housing Act of 1968. The FHA not only outlawed discrimination in most housing transactions on the basis of race, color, religion, and national origin, (5) but also contained a specific prohibition, [section] 3604(c), banning all discriminatory housing statements. (6) The special Congressional concern for discriminatory statements reflected in [section] 3604(c) and the continuing need for this provision's strong enforcement are the subjects of this Article.
Unlike the FHA's more traditional prohibitions against discriminatory refusals to deal and discriminatory terms and conditions, (7) [section] 3604(c)'s ban on discriminatory statements has not been the subject of much litigation or debate. (8) This is somewhat surprising in light of two facts indicating that the 1968 Congress had a special concern for discriminatory housing statements: first, [section] 3604(c)'s prohibition of biased statements goes well beyond comparable provisions in other civil rights laws enacted during the 1960s; (9) and second, Congress chose to make [section] 3604(c) apply to housing otherwise exempt from the FHA's more traditional prohibitions. (10)
By excluding [section] 3604(c) from the FHA's principal exemptions, Congress established a system where even the smallest housing providers, including "Mrs. Murphy"-type landlords, (11) are barred from making discriminatory statements. Such housing providers may engage in discriminatory housing practices, but they cannot tell anyone they are doing so. In addition, larger landlords who are not permitted to discriminate under the FHA are subject to a second "count" under [section] 3604(c) if they announce the reason for their discrimination, a count that may offer additional relief beyond that prompted by the discriminatory housing practice itself. (12)
Section 3604(c)'s condemnation of biased statements is so broad that it could yield some bizarre results, because liability seems to attach only to defendants who are honest and forthcoming about the reason for their discrimination, while liars and dissemblers will prevail. For example, when an African-American home seeker applies for an apartment in a "Mrs. Murphy" dwelling and the owner decides not to rent because of race, the owner will be liable under [section] 3604(c) if she says, "I won't rent to you because you're black," but not for just saying, "I won't rent to you." In the latter instance, if the home seeker asks for the reason, the owner who answers, "Because you're black," will be liable, but one who remains silent or says, "I don't have to tell you why," or makes up some race-neutral excuse, will not be liable. The result is the same for non-exempt housing providers with respect to their liability on the [section] 3604(c) count.
What did Congress seek to achieve by having [section] 3604(c) outlaw all discriminatory housing statements, including those made by otherwise exempt housing providers? This Article addresses this question and also the related issue of whether the statutory scheme goes too far by infringing on a landlord's First Amendment right to freedom of speech. The Article concludes that Congress fully appreciated what it was doing when it enacted [section] 3604(c)'s broad proscription of discriminatory housing statements; that it had important goals for this provision that were intended to supplement the FHA's other key provisions in order to provide a unified arsenal for opening up America's segregated housing markets; that part of the reason for the FHA's failure to achieve its goal of replacing ghettos with "truly integrated and balanced living patterns" (13) is the failure of courts and litigants to fully utilize [section] 3604(c); and that more vigorous enforcement of [section] 3604(c) will not only better reflect the original intent of Congress, but will also, with only minor exceptions, be consistent with the First Amendment.
Part I of the Article provides an overview of the FHA's basic provisions and its goals of nondiscrimination and integration for America's housing markets, with a specific focus on the legislative history and intent underlying [section] 3604(c). Part II reviews [section] 3604(c) cases in a further effort to identify this provision's goals and the elements needed to establish its violation. Part III shows how litigants and courts have underused [section] 3604(c) by failing to assert it as an independent basis for relief in cases involving discriminatory housing statements. Finally, Part IV offers suggestions for the proper approach to be used in applying [section] 3604(c) in discriminatory statement cases. These suggestions give due consideration to the potential First Amendment problems raised by an aggressive interpretation of [section] 3604(c) and also address the issues of who might be liable for violating this provision and who might have standing to enforce it. The result is an effort to re-establish the role that Congress envisioned for [section] 3604(c) as an important part of the nation's fair housing enforcement arsenal.
THE ROLE OF [section] 3604(c) WITHIN THE FAIR HOUSING ACT
Overview of the Fair Housing Act
The federal Fair Housing Act was passed in April, 1968, shortly after the assassination of Dr. Martin Luther King, Jr., and the publication of the Kerner Commission Report, (14) with its dramatic conclusion that the nation was "moving toward two societies, one black, one white--separate and unequal." (15) Enacted after the 1964 Civil Rights Act (16) and the 1965 Voting Rights Act, (17) the FHA was the last of the great civil rights laws of the 1960s and was intended by its proponents to replace residential ghettos with "truly integrated and balanced living patterns." (18)
As originally enacted in 1968, the FHA banned housing discrimination on the basis of race, color, religion, and national origin only. (19) "Sex" was added to the list of prohibited bases of discrimination in 1974; (20) "familial status" and "handicap" were added in 1988. (21) With the exception of certain minor changes and some special handicap provisions, (22) however, these later amendments did not alter the basic substantive prohibitions of the 1968 law. (23) These substantive prohibitions, which ban a variety of enumerated discriminatory housing practices, are contained in [section] 3604, [section] 3605, [section] 3606, and [section] 3617. (24)
The most important FHA provision is [section] 3604(a), which makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race [or other prohibited factor]." (25) Section 3604(a)'s ban on refusals-o-deal is supplemented by [section] 3604(b)'s prohibition of discrimination in the terms, conditions, or privileges of the sale or rental of a dwelling and in the provision of services or facilities in connection therewith. (26) Section 3604(c), the focus of this Article, prohibits discriminatory notices, statements, and advertising. Section 3604(d) bans discriminatory misrepresentations concerning the availability of housing, and [section] 3604(e) outlaws "blockbusting." (27) Section 3604(f) contains provisions designed to provide equal housing opportunities for handicapped persons. The three other substantive sections of the statute prohibit discrimination in home loans and certain other housing-related transactions ([section] 3605); discrimination in multiple-listing and other brokerage services ([section] 3606); and coercion and other types of interference with the rights guaranteed by [section] 3604- [section] 3606 ([section] 3617).
The 1968 law also provided four exemptions, none of which protects housing providers from liability under [section] 3604(c). The two most important exemptions, those for "Mrs. Murphy" landlords and owners of certain single-family houses, are contained in [section] 3603(b), (28) a provision whose introductory phrase provides that "[n]othing in [section] 3604 of this title (other than subsection (c)) shall apply to" these types of dwellings. (29) The two other exemptions in the 1968 statute appear in [section] 3607(a). They protect religious organizations and private clubs from FHA liability for limiting their dwellings or giving preference to their own members. (30) Neither exemption, however, authorizes these organizations to make discriminatory statements or engage in other types of behavior condemned by [section] 3604(c). (31) Three additional exemptions were added when the 1988 amendments banned "familial status" and "handicap" discrimination. (32) Only part of one of these exemptions, however--the exemption of housing intended for persons fifty-five years of age or older from claims of familial status discrimination--authorizes discriminatory statements. (33) Thus, with this one minor exception, [section] 3604(c) is applicable to all housing providers, whether or not they are exempt from the statute's other mandates.
The Legislative History of [section] 3604(c) and Its...