The year 2008 marked the fortieth anniversary of the passage of the Fair Housing Act (FHA), yet housing discrimination and related socioeconomic problems persist. The formal barriers to residential integration have been lifted, but many African Americans still face limited housing choices, and live in poor neighborhoods that lack the infrastructure, and environmental safety, of nearby affluent neighborhoods. Residential segregation also deprives communities of color from receiving equal access to quality education, employment, homeownership, and wealth accumulation. According to the National Fair Housing Alliance, the U.S. Department of Housing and Urban Development (HUD) and state and local agencies have experienced a vast increase in housing discrimination complaints, from 5,874 in 1999 to 10,552 in 2008. See National Fair Housing Alliance, Fair Housing Enforcement: Time for a Change (2009). The increase in complaints may be attributable in part to increased enforcement and public education efforts, but housing discrimination persists at unacceptable levels.
African American home buyers and renters experience the negative effects of housing discrimination from the beginning of the housing search. When African Americans visit real estate or rental offices to inquire about advertised homes and apartments, they face a significant risk of receiving less information and less favorable treatment than comparable white customers. See Margery Austin Turner et al., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000 (Urban Inst., 2002). Even if African Americans are shown a comparable number of housing options, a strong likelihood exists that they will be shown options only in predominantly African American neighborhoods; in a 2006 study, the National Fair Housing Alliance found that “steering” occurred 87 percent of the time that testers were shown homes. See National Fair Housing Alliance, Unequal Opportunity—Perpetuating Housing Segregation in America: 2006 Fair Housing Trends Report (2006). Discriminatory behavior makes the housing search process more expensive for African Americans and other minority groups, and limits these groups’ choices to poorer neighborhoods with inferior housing. See John Yinger, Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination 89–103 (1995). While 75 percent of poor whites live in predominantly middle-income neighborhoods, 75 percent of poor African Americans reside in neighborhoods where 20 percent of the households live in poverty. See Myron Orfield, Segregation and Environmental Justice , 7 Minn. J. L. Sci. & Tech. 147 (2005). By limiting
African Americans to poorer neighborhoods, residential segregation has the practical effect of excluding African Americans from access to better public resources, such as schools.
The Fair Housing Act of 1968 is the primary federal statute prohibiting housing discrimination on the basis of race, but it does not address three other issues that are central to a discussion of race and communities: lack of infrastructure, access to environmental justice, and racial disparities in subprime lending. Even so, an analysis of the FHA is central to understanding the shortcomings of our approach to the reintegration of American communities in the post-racial era.
Background of the Fair Housing Act
A quick review of the historical circumstances leading to the statute’s passage is essential to understanding the FHA’s limited scope.
Residential segregation did not occur overnight. Prior to 1900, African Americans could be found in most neighborhoods in northern cities because patterns of urban social and spatial organization were dictated by small-scale manufacturing, commerce, and trade, which was not conducive to high levels of segregation by race. These patterns shifted after 1900 because American industrialization and World Wars I and II created a new demand for labor, encouraging African American sharecroppers to migrate north for industrial jobs. The rapid growth of the African American population alarmed many whites, and resulted in racially motivated communal riots between1900–1920. The communal violence pushed African Americans living in white neighborhoods into predominantly African American neighborhoods, thus cementing the movement toward residential segregation. Spatial segregation became the northern answer to the paternalistic Jim Crow laws of the South.
Racial violence did not subside in 1920; instead, it took on more controlled forms along the periphery of what had become an expanding African American ghetto. As the northern, urban migration continued, overcrowding made living conditions intolerable, thus forcing middle-class African American families to cross the line into white neighborhoods. According to sociologists Douglas Massey and Nancy Denton, these moves prompted escalating violence, including a wave of bombings, until it became apparent that violence was short-sighted strategy. See Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993).
After the 1920s, whites transitioned to using more institutionalized methods to fight the expansion of the African American enclaves, such as collective neighborhood action, and racially discriminatory covenants and real estate practices. In many areas, neighborhood improvement associations organized to prevent African Americans from entering white communities. These associations used various methods to achieve their goal, such as lobbying city councils for zoning restrictions, but their most important function was implementing racially restrictive covenants to prevent property owners from transferring their properties to African Americans. Local real estate boards also encouraged the use of restrictive covenants, and threatened to discipline agents whose practices contravened the preservation of segregated communities. The Federal Housing Administration’s racially discriminatory mortgage finance policies further institutionalized residential segregation practices by encouraging the use of restrictive covenants to preserve the value of neighborhood property values until 1950.
After World War II, the housing construction boom resulted in a great suburban expansion, but residential segregation continued. African Americans were excluded from suburban communities, and racial segregation continued in urban communities. According to Massey and Denton, the general cycle of racial turnover in urban communities from 1940–1970 can be characterized as the transition from “all white [to] invasion [to] succession [to] consolidation or all black.” Id. at 46. In other words, as soon as African Americans moved into the fringe of a white neighborhood, white residents would sell and move to the suburbs, thus further exacerbating what Massey and Denton call the spatial, social, and economic isolation of the African American population. Id. at 149.
The urban riots of the late 1960s fueled public discourse on residential segregation. President Lyndon B. Johnson created the National Advisory Commission on Civil Disorders, popularly known as the Kerner Commission, to identify the cause of the riots, and to propose policies to prevent future incidents. The Kerner Commission concluded that the United States was “moving toward two societies, one black, one white—separate and unequal,” and that to continue with present policies would result in a permanent division of the country into two societies: “one, largely Negro and poor, located in the central cities; the other, predominantly white and affluent, located in the suburbs.” See National Advisory Commission on Civil Disorders, Report of the Commission on Civil Disorders (1968) .
The Senate was in the middle of a filibuster blocking civil rights legislation when the Kerner Commission’s findings were published. The findings, coupled with the urban rioting that occurred after Dr. Martin Luther King Jr.’s assassination, fast-tracked the passage of the Fair Housing Act. At the time of the FHA’s passage, legislators hoped that housing market regulation would foster two primary goals: equal opportunity in housing choice, and integrated living. The Act’s authors believed that creating opportunities for the middle-class African Americans who could immediately leave the ghetto was the key to changing the entire nation into an integrated society. Id. The Act did not aim to eradicate the unjust conditions of residential segregation because it was believed that future policies and legislation would address these issues. Id.
The Fair Housing Act and Residential Mobility
Under the FHA, victims of discrimination have standing to bring suits for their injuries and damages, and can file administrative complaints with HUD and HUD-affiliated state and local agencies. Although the FHA’s primary purpose is to regulate sales and rentals by homeowners and other entities, the statute also established a governmental obligation to promote fair housing through the Secretary of Housing and Urban Development. The FHA has succeeded in giving victims of housing discrimination legal and administrative recourses, and increasing awareness about housing discrimination, but racial segregation persists in American cities. Although HUD’s latest Housing Discrimination Study suggested that housing discrimination is decreasing, the study found that African Americans were still victims of discrimination in 20.3 percent of the instances in which they attempted to rent an apartment, and 16.8 percent of the time when purchasing a home. See Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000.
It has been argued that the FHA merely removed the formal barriers to integration, and eliminated overt discriminatory practices. Indeed, many white suburbs that experienced an increase in African American residents since 1970, such as Prince George’s County, Maryland, and Bellwood, Chicago, are now predominantly African American. See Mary Jo Wiggins, Race, Class, and Suburbia: The Modern Black Suburb as a “Race-Making Situation,” 35 U. Mich. J. L. Reform 749 (2002). The political economist David M. Cutler has suggested that discriminatory preferences continue to drive racial residential living patterns, that “[w]hites still prefer to live with other whites more than blacks prefer to live in white areas.” See David M. Cutler and Edward L. Glaeser, The Rise and Decline of the American Ghetto , 107 Journal of Polit. Econ. 3 (1999). The white choice not to integrate may be one of many reasons that an increasing number of middle-class and affluent African Americans live in majority-black communities. As defined by Robert Forman, nonsegregation implies both the right of people to remain where they are and the elimination of restrictions on moving to other areas. Some African Americans have developed apathy toward the idea of integration, given past resistance from the white population, or that the choice to live in a black community is empowering.
Another possible explanation for continued housing discrimination is that real estate agents are engaging in geographic steering, thus depriving parties of the choice to integrate. Geographic steering occurs when real estate agents systematically show white home buyers homes in more predominantly white neighborhoods and show minorities homes only in mixed or minority neighborhoods. The 2000 Housing Discrimination Study classified racial steering into information steering, segregation steering (which is similar to traditional racial segregationist practices), and class steering. Buyers often look to agents for advice on particular neighborhoods, making it harder to fight geographic steering because victims are often not aware that it is taking place. Nonetheless, persistent geographic steering may perpetuate current residential segregation by limiting the housing and neighborhood choices available to both minority and white homeowners.
The practice of redlining—lenders declaring some neighborhoods off-limits for mortgage loans—once went hand-in-hand with geographic steering. However, the FHA made it illegal for lenders to designate communities as unsuitable for mortgage backing or to establish lending criteria that were discriminatory. But the practice of redlining continues in some places because enforcement efforts, especially against large institutional lenders, are costly, complex, and extremely time-consuming.