Urban Lawyer

Reflections on the Enactment of the 1968 Fair Housing Act

by Otto J. Hetzel

Otto J. Hetzel is professor emeritus at Wayne State University Law School.

The fair housing act, Title VIII of the 1968 civil rights act,1 dealt with the fundamental right to housing and prohibited discrimination against purchasers and renters. It had an interesting enactment process that continues to have significance even today. It was passed by Congress in April 1968 with the acceptance of the United States House of Representatives of the previously-approved Senate version. By doing so, Congress avoided further delays that would have been necessary had the bill needed a conference committee to resolve any differences between House and Senate versions, and then for each house to separately approve the conference bill. The Act was signed into law by President Lyndon Johnson on April 11, 1968.

There is a significant history related to the passage of the Fair Housing Act, much of which has not been fully recorded, so when I was invited to provide a glimpse into its enactment and the significance of its provisions in light of the recognition of the fiftieth anniversary of the creation of the United States Department of Housing and Urban Development (HUD) on September 9, 2015,2 it seemed like a good opportunity to share some personal, unique recollections and perspectives from my involvement in its enactment.

I had only recently joined HUD in 1967 and subsequently was appointed Assistant General Counsel for Equal Opportunity. My role with Fair Housing at HUD started on the third day I was at the Department when then-General Counsel Tom McGrath, a former Member of Congress from New Jersey, asked me to take on responsibility for the legislation. He told me the bill was unlikely to “go anywhere,” during the year, but that it would provide me some excellent experience in the legislative process in any event. It certainly did.

The history of the 1968 Act started several years before. The 1964 Civil Rights Act3 enacted into law that year dealt with equal employment opportunity in Title VII,4 and in Title VI5 prohibited housing discrimination in the administration of federal programs, among other forms of discrimination. By 1966, President Johnson and the Democratic majorities in Congress wanted to extend the prohibition on racial discrimination in housing to private actors as well. This resulted in proposed new legislation in 1966 to achieve that objective. Unfortunately, the 1966 legislation did not pass that Congress.

A renewed effort was mounted in 1967 to enact prohibitions against private racial discrimination in housing. Upon starting at HUD, I was thrust immediately into working through the provisions of the prior, 1967 legislation and then became involved in drafting the specific housing discrimination provisions to be included in a new 1968 Civil Rights bill. Thus, the proposed Act was intended to add federal prohibitions on discrimination, by then applicable only to federal government-supported properties, to almost all private-sector property transactions. If enacted, it was intended to provide a unique stimulus to start a societal change in reducing discrimination on a broader scale.

Those of us involved in assisting in its final passage and then implementation were rewarded by being invited to the White House, watching the signing, and then having the opportunity to shake hands with the President and Mrs. Johnson. The picture of our doing that, which came with his card extending his “best wishes,” along with one of the ceremonial pens he used in signing, has a prominent place over my desk.

The Act was one of the most important and lasting pieces of legislation of Lyndon Johnson’s tenure as President. It has had a resounding impact on mores and practices in the area of racial relations following its enactment. The recent civil rights celebration in 2015 in Selma, Alabama has indicated the profound changes in our society that modifications in attitudes on civil rights have brought about. Admittedly, changes were not instant, and residual prejudice and old discriminatory practices still exist today, but this law has helped facilitate one aspect of racial relations, breaking the boundaries of segregated living in cities throughout the country, and it broadened acceptance of racial and other differences between our citizens. For HUD during that year, fair housing legislation was one of its major legislative achievements.

Premium Content For:
  • State and Local Government Law Section
Join - Now