Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration.

• Author: Entin, Jonathan L.
• Position: Symposium

INTRODUCTION

People of color have long faced discrimination in the housing market. In many instances, African Americans encountered violent opposition when they tried to move into previously all-white communities. (1) More commonly, various public policies and private practices promoted residential segregation. For example, zoning ordinances sought to maintain segregated housing patterns, public housing was located in places that maintained racial isolation, federal agencies refused to insure mortgages in racially mixed neighborhoods, private lenders refused to make loans in such neighborhoods, real estate agents engaged in racial steering to maintain residential segregation, and property owners refused to sell or rent to persons of color. (2)

The Supreme Court's record in housing discrimination cases is decidedly mixed. More than a century ago, in Buchanan v. Warley, (3) the Court struck down a zoning ordinance that explicitly relied on race in determining who could legally reside on particular blocks. (4) And just over fifty years later, in Jones v. Alfred H. Mayer Co., (5) the Court held that section 1 of the Civil Rights Act of 1866 prohibited private racial discrimination in the purchase, sale, or rental of housing, but it noted that this provision was not a comprehensive fair-housing law. (6) Around the same time, the Court rebuffed political efforts to make it difficult, if not practically impossible, for states and localities to adopt their own fair-housing legislation. (7) But the Court rejected zoning challenges where race was not an explicit factor and the land-use decisions seemed to have plausibly neutral justifications. (8) And only a few years after Buchanan, the Court in Corrigan v. Buckley (9) rejected a constitutional challenge to restrictive covenants that prohibited African Americans as well as members of disfavored religious and ethnic groups from owning, leasing, or occupying property that was covered by those agreements. Although the Court later held that such covenants were not judicially enforceable, (10) those private agreements remained in place for years afterward.

Congress passed the federal Fair Housing Act in 1968. (11) Although its effectiveness has been widely questioned, that law was much more comprehensive than the Reconstruction statute at issue in Jones v. Mayer in that it addressed discrimination based on religion and national origin as well as race, and it prohibited discrimination not only in the sale or rental of housing but also in ancillary services, brokerage, financing, and advertising, established administrative enforcement mechanisms, provided for damages as well as injunctive relief for violations, and authorized litigation by the Department of Justice. A few states and municipalities already had adopted their own antidiscrimination measures, but those measures were relatively weak and generally were controversial. A number were repealed in referenda, even in such reputedly liberal communities as Berkeley, California. (12)

Social scientists have been studying residential segregation for many years. (13) Those studies have found exceedingly high levels of segregation between blacks and whites, who in some communities live almost completely apart. Those racial patterns have been notably more extreme than those for other ethnic groups. (14) Recently, however, the extent of residential segregation by race has declined, although it remains quite high.

The persistence of residential segregation has generated some valuable scholarly books. Those major publications seem to appear generationally. In the 1960s, Taeuber and Taeuber published a comprehensive analysis of residential segregation in over 200 cities that examined trends over three decades. (15) In the 1990s, Massey and Denton updated and extended that work in a high-profile book. (16) Both of these books were produced by outstanding social...