State and Local Action

The Commission's principal concern in its housing studies has been thepolicies and practices of the Federal Government. It is at the nationallevel that governmental housing programs largely draw their impetusand direction. Despite this Federal dominance, however, State andlocal governments play a critical role in determining how national housing programs will be carried out. Discrimination in fact occurs at theState and the community level, and can also be prevented at thoselevels. For this reason, and because of increasing State and local action,the Commission has devoted some attention to recent developments inthis area.

Although the Federal Government has been slow to take positiveaction to insure that all people have equal access to the housing benefitsit offers, a number of States and cities have taken bold legislative andadministrative action to end discrimination; in some instances, this actionhas extended to private as well as public and publicly assisted housing.But on the local level, there has also been some governmental actionto keep minorities out and to forestall equality of housing opportunity.

These conflicting kinds of governmental action illustrate some of theobstacles that must be overcome in order to reach the objective of equalhousing opportunity and they suggest some feasible governmentalmethods to be used in achieving it.

1. ACTION TO PREVENT DISCRIMINATION

   In recent decades the major governmental moves to end discriminationagainst minorities have occurred primarily at State and local levels. 1

   This activity, principally legislative, has demonstrated a variety of approaches to promoting equal rights; it has also followed an evolutionarypattern: from public accommodations laws, through fair employmentpractice laws, to fair housing laws. 2 "9

   Early developments

   Section 1982 of title 42 of the United States Code, a section of the CivilRights Act of 1866, provides:

   All citizens of the United States shall have the same right, in everyState and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personalproperty.

   The U.S. Supreme Court has held that although this statute and the14th amendment restrict governmental activities, 3 the activities of privateindividuals do not fall within the scope of either. 4 ^* 9 % ^ (-f- l/$ b

   Against this background, opponents of housing discrimination soughtjudicial determinations that private property owners, operative builders,and developers, who were substantially aided and regulated by the State,were State agents or were exercising State power. Dorsey v. StuyvesantTown Corporation* concerned a large multiple dwelling developmentin New York City. Under New York's redevelopment companies law, 6

   the municipality condemned property for redevelopment; granted a 25-year tax exemption on the improved property; transferred the propertyto the private company at cost; and approved (through a supervisoryagency) the project plan. In a suit brought by prospective Negro tenantswhose applications had been rejected because of their race, the NewYork Court of Appeals in 1949, by a 4-10-3 majority, rejected theargument that an operative builder, substantially aided and regulatedby the State, acts by, for, or as the State. 7

   But the court did indicate that outlawing discrimination in housing

   was a proper legislative function: 8

   That high responsibility of the States, implicit in our Federal system,

   indicates that the political process must furnish the appropriatemeans for extension of those rights in areas wherein they have notbeen heretofore asserted.

   The Dorsey case thus gave impetus to antidiscriminatory housing legislation. And in the decade that followed the Dorsey decision, this mattermoved largely from the courtroom to the legislature.

   New York 2014 pioneer State in civil rights laws

   Over the last 100 years, New York State, endowed with a great varietyof racial, national, and religious groups, has adopted 49 laws to guaranteeequal rights to all of its citizens. These laws cover voting, education,public accommodations, and housing (public, publicly assisted, andprivate).

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   New York antidiscrimination housing laws date back to 1896. Theinitial legislation, intended to meet the flood of immigration from foreigncountries, gave aliens the right to acquire and transfer housing propertyfor 6 years after filing a notice of intent to become a citizen. 9 In 1939,discrimination was forbidden in the selection of tenants for low-costhousing. 10 And in 1950, in response to the Dorsey decision, 11 the legislature banned discrimination in housing built or maintained in whole orin part by State or municipal assistance; i.e., tax exemptions, condemnations, etc. 12

   In 1955 the New York Legislature added two elements to its antidiscrimination housing laws: it prohibited discrimination by privatepersons renting or selling homes financed by an FHA-insured or VA-guaranteed loan, 13 and it gave to the State Commission Against Discrimination (SCAD) responsibility for administration of the laws which controlled publicly assisted housing. 14 In 1956 it gave similar responsibilityto SCAD with respect to federally insured or guaranteed housing. 15

   When it came to extending antidiscrimination housing legislation to

   private housing, i.e., housing built or maintained without any Federal,State, or local governmental assistance, the pioneer role was assumed bysuch States as Colorado, Massachusetts, Connecticut, and Oregon. OnDecember 30, 1957, however, New York City enacted the Nation's firstlaw prohibiting discrimination (on the basis of race, color, religion,national origin, or ancestry) in the sale, rental, or leasing of certain private housing accommodations. 16 Enforcement of the ordinance has beenentrusted to the Commission on Intergroup Relations (COIR), to aspecially created Fair Housing Practice Panel (which examines casesfor possible court action recommended by COIR) and ultimately tothe courts.

   State and local antidiscrimination housing laws

   There are 17 States and numerous cities ir throughout the country withantidiscrimination housing laws. The State laws fall into threecategories:

   1. Laws extending only to low-rent public housing projects and/orurban redevelopments. 18

      Montana 19 and Illinois 20 have proscribed discrimination in urban

      redevelopment projects; Michigan 21 and Rhode Island 22 have doneso in public housing; Wisconsin 23 and Indiana 24 have barred discrimination in both.

   2. Laws extending to publicly assisted housing, including housingbuilt with the aid of FHA-insured and VA-guaranteed loans. 25

      California, 26 Washington, 27 and New Jersey 28 fall in this category.

      In California enforcement is by private law suit only, but in Washingtonand New Jersey a State agency administers the statute.

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      3- Laws extending to private housing (nongovernmentally assisted}? 9

      In its January-February 1959 issue, the publication of the National

      Committee Against Discrimination in Housing, Trends in Housing, stated: ". . . 1959 may well go down in history as the year equal opportunity in the housing market moved into first place on the Nation'scivil rights roster." In 1959, State legislatures in Colorado, Massacuhsetts, Connecticut, and Oregon provided for nondiscrimination inprivate, as well as publicly assisted housing.

      On May i, 1959, Colorado became the first State to enact a comprehensive antidiscrimination housing law. 80 Its fair housing act prohibitsdiscrimination in the sale, rental, or leasing of all housing accommodations, erected with public assistance or not, excepting only owner-occupied housing. The act is administered by the Colorado Anti-Discrimination Commission, created by the Anti-Discrimination Act of I957. 81

      It covers lending institutions as well as those persons who aid and abet

      in any housing discrimination, and outlaws any oral or written inquiryor record concerning race, creed, color, sex, national origin, or ancestry.

      On July 21, 1959, Massachusetts became the second State to extendits antidiscrimination housing law to nongovernmentally assisted housing. 82 The Massachusetts law is limited to housing of 10 or more contiguous units. An amendment to Connecticut's antidiscrimination housing law, effective October i, 1959, extended its coverage to nongovernmentally assisted housing of five contiguous units or more. 83 Oregon'sstatute does not cover housing per se; rather it prohibits persons engagedhi the business of selling and leasing real estate from discriminating. 84

      In 1961, the above States were joined by: New York (which extended

      its act to cover private multiple dwellings with a minimum of threeunits), 85 Pennsylvania (whose "Human Relations Act" covers all housingexcept owner-occupied accommodations and duplexes in which one unitis owner occupied), 86 Minnesota (whose housing law excludes owneroccupied units and housing containing two dwelling units, one of whichis owner occupied), 87 and New Hampshire (whose law extends to rentalor occupancy in buildings containing more than one dwelling). 88 The

      cities of New York 89 and Pittsburgh, Pa., 40 have also adopted ordinancesoutlawing discrimination in nongovernmentally assisted housing.*

      Antidiscrimination laws and real estate brokers

      One element in housing discrimination has been given noteworthyattention on the State and local level2014the practices of real estate brokers.[The real estate broker is a key man hi the majority of housing transactions. He finds buyers for housing and housing for buyers and hehas detailed knowledge (or access to it) of the location of homes of various styles and prices. His policies and practices are among the foremost

      *On Sept. 12,1961, New Jersey extended its act to cover private housing.See app. VI, table 1.

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      influences that determine where the various racial or religious groupswill live.

      The Commission has heard considerable testimony concerning thepractices of real estate brokers and realty boards...