Tuesday, July 23, 2019

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Professor Emerita Vernellia Randall
Founder and Editor

Article Index

A. History of the FHA

1. Need for the FHA

Prior to the FHA, segregated housing in the United States persisted because of racially restrictive zoning regulations and covenants, segregated public housing projects, realtors steering minorities away from white neighborhoods, and voluntary segregation. White flight only made matters worse.

Senator Walter Mondale, who introduced the original FHA bill, argued that it was necessary to eliminate discriminatory practices of property owners, real estate brokers, builders, and home financers. Mondale intended the FHA to replace the ghettos by truly integrated and balanced living patterns.

2. Building Support for the FHA

Ultimately, the FHA was passed as Title VIII of the Civil Rights Act of 1968. But two years prior to its passage, the issue of fair housing languished in Congress. It was a divisive issue, prompt[ing] the most vicious mail [President Lyndon B. Johnson] received on any subject.

The lobbying efforts of two men turned the tide, however. The first was Senator Edward Brooke, the first African-American Senator to be elected by popular vote. Partnering with Senator Edward Kennedy, Senator Brooke spoke of his personal experience returning from World War II and being denied housing for his family due to his race. Incidentally, a similar problem was reoccurring with the Vietnam War. In particular, wartime casualties fell disproportionately on racial minorities and the families of fallen soldiers of color were being denied housing due to their race.

The second individual was Martin Luther King, Jr., who became closely associated with fair housing legislation because he organized the Chicago open housing marches, which occurred in 1966. As of March 1968, according to President Johnson's special assistant for domestic affairs, there was no hope of passage of the FHA in the House. But President Johnson used King's assassination as an opportunity to finally push the fair housing bill through Congress, as a last tribute to King. Just seven days after King's assassination on April 4, 1968, the FHA was quickly passed without debate.

3. FHA Today

The FHA today makes it unlawful to discriminate against any person in the . . . sale or rental of a dwelling . . . because of race, color, religion, sex, familial status, or national origin. Protection from discrimination is also extended to the handicapped in a few instances, such as in the context of advertisements or denials of the availability of a rental dwelling. There is no express language in the FHA requiring a showing of intent, in part because Congress thought doing so would make it too difficult to show discrimination. There is also no express language in the statute authorizing discrimination claims based on showings of disparate impact. Such ambiguity has opened the door for judicial interpretation.

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