Reflections on the Enactment of the 1968 Fair Housing Act

For me, when I started working on this legislation, my immediate task was to become familiar with the provisions of the failed 1966 version, and to analyze what changes might be needed to gain acceptance in Congress. First, I studied the various drafts we had inherited from the 1966 effort. We also reviewed the prior hearing testimony and the various provisions which appeared to have frustrated efforts to get that version through Congress.

I teamed with Dave Rose, Deputy Assistant Attorney General for the Justice Department’s Civil Rights Division, a very experienced attorney who had been involved with all the earlier Civil Rights legislation. His responsibility at the Department of Justice for the new legislation was similar to mine at HUD. He had been through the legislative process for the 1964 Civil Rights Act, and also the 1966 efforts to pass fair housing legislation. Thus, he was able to provide a useful source of procedural and strategic advice as we helped move the 1968 legislation forward, both within the current administration, and up on Capitol Hill. We shared a strong commitment to ensure that the fair housing provisions could be made into law during the current Congress and we worked effectively to achieve that objective for well over a year.

It turned out that there was still real interest in the Senate to get fair housing legislation moving. Surprisingly, after an initial lull in moving the legislation forward, senior members of the Senate Banking and Currency Committee decided to press for hearings on the bill. It was intriguing to be involved “hands-on” in developing the briefing book for the Secretary of HUD for his upcoming testimony, providing short “moot courts” for him on the anticipated questions, and crafting draft responses to the questions we reasonably could expect would be addressed to him from the Senate committee, chaired by Senator James Eastland of Mississippi.

Senator Eastland, always a gentleman, while personally opposed to the bill, agreed that hearings could go forward. After making an initial statement on the topic, he turned the sub-committee over to other ranking senators on the Senate sub-committee to preside over the hearings on the bill. The hearings themselves and the strategy involved are a separate story for another time, but were important in fleshing out some of the final provisions of the legislation. For me, the opportunity to become involved in the legislative process was very exciting.

Of course, consideration of the legislation initially went very slowly. Committee jurisdictional issues arose soon after the initial hearings in Banking and Currency, resulting in related hearings on measures under consideration by other committees, such as in Judiciary where hearings were presided over by Sam Ervin, Jr., another long-serving southern Democrat. Subsequently Ervin gained fame in presiding over the Senate Watergate hearings that brought President Nixon down. He was an advocate of constitutional rights generally, and especially those of American Indians. He introduced legislation in 1966 that would guarantee the same rights to reservation Indians which white Americans enjoyed and for which black Americans had been struggling. When his “Indian Bill of Rights” was about to die in Judiciary, Ervin was able to attach his bill as an amendment to the fair housing proposed legislation. Ervin taunted Senate liberals noting the inconsistency that “anybody supporting a bill to secure constitutional rights to black people would be opposed to giving constitutional rights to red people.”⁶

While a distraction to Senate consideration of fair housing, his Indian rights provision was ultimately incorporated in a separate Article of the 1968 Civil Rights Act to permit moving fair housing along.⁷ Another provision making crossing of state boundaries with the intent to foment riots a crime, responding to earlier Chicago Democratic Convention riots, evolved into another article of the Act,⁸ inserted by opponents of fair housing because it was objected to by liberal senators. Its inclusion became a price for passage of the Fair Housing Act. The combining of such issues slowed down the process but did not ultimately prevent its moving forward once it was possible to build enough support to get the proposed 1968 Act before the Senate for debate and then to try to obtain cloture so it could actually be brought to a vote.

In developing the draft 1968 Act, Dave Rose and I, as representatives of the administration, first had to obtain the support of our own departments to the initial draft Act’s coverage. In those days, while the Democratic leadership was clearly supportive, various questions were raised by administrators of programs in each of our departments which needed to be addressed before decisions to support the new legislation could be obtained. Some of these issues had surfaced in the process of considering regulations to implement the requirements of Presidential Executive Order 11063 issued in 1962.⁹ President Kennedy had acted to prohibit discrimination in the sale, leasing, rental, or other disposition of properties and facilities owned or operated by the federal government or provided with federal funds.¹⁰ Two years later, Title VI of the Civil Rights Act of 1964 required issuance of regulations to implement the legislative prohibitions against discrimination based on race, color, or national origin to all programs and activities receiving federal financial assistance.¹¹

These laws prohibited discrimination in government-owned and operated housing, such as low-income public housing administered by state public housing authorities (PHAs) and supervised by HUD. Issues arose within HUD over how rigorous the non-discrimination and integrative effort requirements on PHAs should be. Concerns were expressed in HUD at the time regarding the extent that racial integration of existing projects and even work crews should be required for PHAs.

The latter issue came to a head over practices of the Dallas Housing Authority which had segregated crews providing maintenance operations and where the selection of work crews to provide services depended upon the race of tenants in particular developments. Ultimately, we were able to get permission to initiate what was successful litigation to force integration of these crews.

A second issue related to the siting of projects. Should federal funds be restricted to projects that would be constructed only in areas where there were currently no racial concentrations? The opposition argued that placing new public housing in areas where there were then few minorities would restrict new public housing to the few areas where there was already some racial diversity. This approach would have prevented public housing developments in most areas, since racial concentration of majorities or minorities was the prevalent circumstance in much of the country. Concerns were expressed as to the extent to which opposition would arise to creation of new projects.

Again, this restriction was overridden at a session I participated in on behalf of the General Counsel with the Secretary and other Assistant Secretaries of HUD. The decision to place projects in all areas was aided when Dave Rose weighed in by phone to express the position of Justice that siting new projects in primarily majority areas needed to be included. These siting issues had arisen and have continued to arise frequently over the years with regard to where federal housing funds should be used. For some, integration of suburbs was the objective. For others, such as newly-elected African-American mayors (such as Coleman Young in Detroit), there was a demand for use of funds within their cities for their residents, where integration objections were fewer and because they wanted to show that they could bring federal housing money to their cities.

With regard to legislative hearings on the 1968 Act, which had been ongoing for some time, the White House along with Secretary Bob Weaver and Deputy Secretary Bob Wood, as well as with key Senate supporters, arranged for direct negotiations with the Republican leadership to see if their support could be arranged and a bi-partisan coalition for the legislation could be achieved to move the legislation forward. That effort was essential in obtaining cloture, as discussed below, which eventually was key to the consideration and then adoption of Title VIII’s Fair Housing Act, and the signing into law of the Act in 1968.

The role that the cloture process played in the passage of the Fair Housing Act in the Senate was clearly critical to the successful enactment of this law. Passage was achieved only through means of a “cloture” vote (requiring at the time affirmative votes of two-thirds of those present and voting — not two-thirds of the one hundred senators) in order to cut off debate and anticipated filibusters that were clearly going to be used to prevent a vote on the bill. Cloture became possible only when an agreement was reached between the Democratic advocates of the bill — including Phil Hart of Michigan, Walter Mondale of Minnesota, and Hubert Humphrey of Minnesota — and a group of moderate Republicans that included Everett Dirksen of Illinois and Howard Baker of Tennessee.

With the agreement to permit a vote on the Act, a motion for cloture was made and debated. Cloture, i.e., closing down debate within a specified time period, was possible only once the necessary number of affirmative votes was achieved. The cloture vote actually was sixty-five to thirty-two.¹² Again, it did not require two-thirds of the one hundred senators, but two-thirds of those present and voting, in this case ninety-seven senators.¹³ Otherwise, the cloture motion would have failed as it had three days before when the vote was fifty-nine to thirty-five.¹⁴ There were switches in position from Senators Carlson, Bartlett, Cannon, Cotton, Jordan, and Miller from their earlier opposition to the bill.¹⁵ Their support permitted a cut-off of debate on the bill according to the specific terms of the cloture motion and, ultimately, allowed the vote to be taken on the bill in the Senate.

Interestingly, in achieving cloture, Eugene McCarthy, a competitive Democratic candidate to Humphrey for president at the time, did not have his vote recorded timely because he was waiting in the Senate anteroom hoping to gain publicity for becoming the deciding vote for achieving cloture. However, when another Senator entered the chamber and voted “aye” to reach the requisite number, Humphrey, who was presiding and keeping track of the votes, gaveled the vote closed, the required number having been reached. Senator McCarthy was thus denied his chance for the personal publicity in putting the cloture vote over the top.

Because the cloture vote had specific terms regarding the extent to which debate would be permitted — 100 hours for all amendments —  before a final vote could occur on the full bill, infighting over the specific language of the Act that would be considered during cloture continued on even after the cloture vote itself because the agreement required individual consideration of all pending amendments.¹⁶ This resulted in debate on the Act extending several weeks more. In fact, under the cloture’s terms, allowing consideration of all pending amendments at the time of cloture resulted in the consideration of some 100 amendments. At the time of cloture, there were eighty-three amendments then pending.¹⁷ Shortly after the vote that afternoon, and even overnight, several opponents submitted additional proposed amendments arguing that they had been in the pipeline, adding to the issues that needed to be brought up and debated as part of the consideration of the bill.

I had a busy evening along with Dave Rose from Justice along with a few other lawyers and Senate staff we had secondered to start to help deal with the volume of issues that were raised by all the pending amendments after the cloture vote. In general, we had our hands full trying unsuccessfully to limit the amendments which would have to be considered as some were in various stages of submission so as to be considered “pending” when cloture was voted. Creative pleas from Senate opponents as to which amendments had been in the system, had actually been pending, and needed to be considered, resulted in a number of additional amendments being accepted to avoid immediate battles of what was pending, even though technically many were only in preparation at the time of the cloture vote. It became easier to just allow the extra proposed amendments given the number that would have to be considered anyway, rather than require detailed justifications for those which were contended to have been “in process” at the time of the cloture vote.

As the debate started on the various amendments, we were stretched thin by having to generate a great many memos and speeches for supportive senators. A careful reading of the variety of analyses of provisions listed in the Congressional Record provides an interesting illustration of the many types of documentation that might be considered applicable in trying to establish Congressional intent regarding various provisions and arguments that might arise over the amendments.

Supporters of the legislation were very concerned about creating a legislative history for the Act which, when examined during subsequent litigation over the Act’s provisions, would adequately reflect the intent of the drafters. Thus, we needed to generate generally recognized legislative record documents and have them circulated in the Senate to support fully the drafters’ interpretations of the Act. Senators were planning to reference these documents to support their positions during debate. Documents relating to matters under consideration were quickly distributed generally to the body to illustrate the importance of the analysis that had been provided.

We also felt it was necessary not only to win essentially all the votes resisting amendments, but as well to control the debate and counter any arguments that might later be used to undercut the effectiveness of the Act. This was largely successful. The legislative history shows many specific drafts of circulated legal analyses were provided to the Senators during debate on specific provisions of the Act. Many controversial provisions needed to be supported by statements from floor managers or ranking committee members to ensure that their pronouncements would be valued by the courts. Of course, nowadays, the “textualism” theory espoused by Justice Scalia would largely try to reject these indicators of legislative intent, but, of course, other justices and judges still regard these Congressional references to intent as valid guides to legislative interpretations of specific statutory language.¹⁸

Despite those efforts, several provisions were not adequately explained in the legislative history before the final vote. One of the main ones was some explanation of what a provision actually meant which stated that HUD as the department that seemed destined to administer the Act’s provisions would do so regarding federal programs “in a manner affirmatively to further the purposes of the [Fair Housing] Act.”¹⁹ As it happened, this language was in one of five paragraphs, each a separate provision on a two-page insert, handed in during last-minute negotiations, that Senators Dirksen and Howard Baker insisted be included in the Act before agreeing to cloture.

The “further the purposes” language was inserted into the printed text of the published bill that came before the body the following morning after the cloture vote took place. At the time of cloture, it originally was in a separate patchwork of several sheets of paper pasted and stapled together as a typed draft that was literally appended to the prior text of the proposed Act just before the cloture vote. At the time, I marveled at how the important provisions on those slips of paper that allowed for the vote to take place were simply lying on the table with the printed bill before the Senate at the time the cloture vote took place. Few voting probably had an opportunity to have read them.

No explicit description of the meaning of the “further the purposes” language was ever provided in the legislative history as to what this phrase meant and how it should be applied, probably because of its last minute insertion in the bill. Further, little attention was paid at the time to the phrase, nor was there any documented agreement on what was intended by Dirksen’s language. A number of months after the Fair Housing Act was enacted, HUD Secretary Weaver asked the General Counsel and me to have HUD attorneys canvas the legislative history with a fine-tooth comb to find some descriptive language regarding what “further the purposes” actions should encompass. The review occurred, but without any real success in finding legislative interpretation for the language.

Another issue occurred because of the way the legislation developed, as a result of several inconsistent articles being put in one Act. When the various parts were put together in the combined bill, the language used raised some question as to who was the “Secretary” referred to for Title VIII whose Department was to administer the Act. The then Under Secretary, Bob Wood, expressly sent to me a note asking me to provide him a legal opinion that it was the HUD Secretary who was designated in the Act to administer the Fair Housing program. The problem was caused by other provisions of the 1968 Act, which were contained in Article VII’s new programs relating to Indians, over which the Department of the Interior had jurisdiction, and the provisions authorizing criminal sanctions for crossing state lines with intent to foment riots that potentially involved the Department of Justice and the Attorney General.

Obviously, the reasonable inference from the Fair Housing Act is that it was under HUD’s jurisdiction and it made clear that it was the HUD Secretary who was responsible for administration of the Fair Housing Act, which I so opined to the Deputy Secretary. I was somewhat amused, as was the General Counsel, that a formal legal opinion was demanded to clarify that Congressional intention.

The meaning of the “in furtherance of the purposes of the Fair Housing Act” language has been raised in a number of cases that arose under the Act.²⁰ No opinion has provided any resolution of that question, nor has legislative documentation been identified to explain what Congress intended. In 2015, HUD, after wrestling with the language of a proposed regulation that would provide some meaning to this phrase, decided to issue the regulation simply justifying it on the basis of the “further the purposes” language.²¹

After the Senate passage of the Fair Housing Act legislation with a final Senate approval by a seventy-one to twenty vote, the Senate bill encountered stiff resistance in the House because of the declared opposition of the minority leader at the time, Congressman (and subsequently President) Gerald Ford. Republican support was essential to final approval of the Act in light of opposition to it from Southern Democrats. Ford refused for many months to allow the bill to come to a vote in the House until the tragedy of the assassination of Reverend Martin Luther King intervened and forced a vote. With smoke rising from the central districts of many U.S. cities as a result of ensuing riots, Republicans decided that they needed to permit a vote on the bill. The team of attorneys and staffers who had supported the Act in the Senate then went to work in the House to respond to various issues that had been raised initially in the Senate consideration.

Additionally, prior to the vote, Congressman Ford distributed a detailed memorandum²² in opposition to the proposed Act in order to generate opposition to its enactment. In his memorandum, he listed many extreme statements concerning what he envisioned the potential impact the Act could create were it to be approved.²³ Of course, the House nevertheless proceeded to enact the Act by approving the Senate-passed version. It certainly can be argued that these dire predictions as to what the effects of the law would be with respect to enabling the rights of claimants under the Act had validity regarding implementation of the Act and should be given weight in construing the Congressionally-intended reach of the Act’s provisions, since Ford’s memorandum’s predictive language constituted part of the relevant understanding of those who enacted the legislation.

Ford’s memorandum was widely circulated to Members of Congress before the vote to enact the Fair Housing Act, and constitutes a useful source of legislative history in that it sets forth the analysis of the minority leadership on how the various provisions of the Act might be expansively applied. Thus, as a warning of the possible aggressive use of various provisions on behalf of those discriminated against, Ford’s memorandum sets forth what could be considered quite valid authority that in enacting this legislation his expansive interpretation of provisions in the Act on behalf of those suffering discrimination provided a valid basis for interpreting the reach of the Act.

The battles over the Act did not stop with enactment of the substantive legislation. Even after Title VIII’s enactment, I was extensively involved in seeking supplemental appropriations for the Department for immediate implementation of the Act since HUD had only limited funds available for its civil rights enforcement before the Fair Housing Act became law. This dispute provided me with an opportunity to work with HUD’s Budget Office to achieve support, initially involving presentations to the White House Office of Management and Budget (OMB). What followed there were back and forth negotiations with OMB about detailed amounts and justifications for each use of the funds proposed. We engaged in semi-formal hearings with OMB and extensive debate over provisions and amounts required. Once the attorneys and Department Budget Office staff secured OMB’s support, which expressed an unusual commendation for our having provided one of the more effective justifications for increased funding proposals that they had reviewed, the endorsed appropriations measure was then submitted to the relevant Congressional Appropriations Committees.

We had not been prepared for the resistance, however, that evolved in the appropriations process as we sought to obtain funds needed to enforce the new fair housing requirements in the 1968 civil rights law. Obtaining financial backing to support claimants alleging violations of their rights and obtaining redress turned into a second battleground over the law and whether the new housing civil rights provisions would actually become a reality. While the changes in the law had been developed out of hearings and legislation that emanated primarily from the substantive housing and development committees, we encountered a backlash in terms of clearly expressed, strong opposition to the changes in personal property rights that were inherent in the new legislation from the Congressional appropriations committees.

Thus, soon after passage of laws providing for protections of substantive rights for claimants encountering discrimination, the members of the powerful appropriations committees, who control federal purse strings and were clearly a more philosophically conservative group in Congress, barely masked their only marginally disguised dislike of the new initiatives to obtain equal opportunity for minorities. These members, whose responsibility was to fund government operations, made apparent their displeasure over the extension of civil rights protections in housing affecting the rights of owners to sell or rent to whom they pleased. The Congressional appropriations committees did so by restricting availability of any new appropriations for administration of its newly authorized responsibilities by HUD until the next legislative term.

The Department was told that, despite the need to implement new administrative hearing procedures and enforce Fair Housing Act protections, the limited funds that earlier had already been appropriated for the Department’s existing equal opportunity activities would have to suffice for the upcoming year without augmentation. This rejection was certainly frustrating, especially after we had been warmly praised by OMB for having provided an excellent justification for the funding sought. What the actual impact would be on enforcement of these new responsibilities was not necessarily clear at that point. In the end, it turned out that the lack of additional funds meant considerable more time was necessary to get HUD organized to carry out its new responsibilities, including getting its other departmental program operations accustomed to taking into consideration the new emphasis on fair housing objectives in administering their programs, consistent with the admonition in the legislation that the Secretary was to administer HUD’s programs in keeping with the objectives of the Fair Housing Act.

Of the various provisions in the Act, among the most critical, in my opinion, were those which permitted individuals who were subjected to discrimination to bring legal actions on their own behalf directly in federal courts with the potential of being reimbursed for damages and attorney fees if successful.²⁴ This was an alternative to using the administrative process through HUD. The significance of the Act’s allowing these individual lawsuits was not generally understood at the time.²⁵ Many considered it potentially disruptive.²⁶

The prior norm, as reflected in the employment area in the Civil Rights legislation enacted in 1964, which created the Equal Employment Opportunity Commission (EEOC), was that the government should be the exclusive vehicle used to secure the rights of those subjected to prohibited discrimination.²⁷ Many supporters of the fair housing legislation felt that allowing individuals to assert their own rights through legal actions on their own behalf would be less effective than having those discriminated against rely solely on the government to protect their rights. One element of concern was whether private enforcement would be feasible without some financial support. The government role could be asserted either through administrative proceedings through HUD, or by pattern and practice litigation by the Department of Justice. Those actions were funded by government itself.

The concern about individual claimants’ filing of litigation was how the under-financed claimants could succeed through expensive, complex litigation. The addition of an opportunity for attorney fees was thus critical. Some considered the right of private action would be likely to restrain aggressive government enforcement of the Act. Allowing an alternative route was also thought to have the potential of undercutting governmental enforcement policies because some complainants would choose to pursue independent legal theories when they went on their own with private counsel. If not pursued with competence, such independent cases could undercut more effective legal remedies. Others felt individually directed cases also could undermine HUD or Department of Justice control of the development of applicable law.

These concerns were not ones which I supported. Independent litigation controlled by the parties also had a potential to generate creative and potentially wide-spread enforcement efforts freed of the constraints of leaving all enforcement policy decisions in the hands of a government agency. Allowing client-directed litigation also may have seemed to some a useful factor in avoiding either Congressional policy limitations on more forceful government policies in such proceedings or efforts occurring with a future changeover in the Executive Branch to limit federal enforcers from taking more aggressive postures.

It was also possible that relying upon individual cases in federal courts might well turn out better for plaintiffs than prosecutions through HUD administrative investigations and enforcement proceedings. As has happened with the EEOC in employment cases, the administrative process is not always speedy or effective. Many factors can come into play that affect the effectiveness of that tribunal’s procedural remedy.

What also was not considered at the time of enactment was the role that would be undertaken by non-profit fair housing enforcement programs such as that provided by the Fair Housing Center of Metropolitan Detroit (FHCMD) in conjunction with the efforts of the private plaintiff bar. The FHCMD’s efforts in supporting individual cases to secure claimants’ rights, through attorneys who could earn sufficient compensation doing so to justify undertaking litigation, have been impressive. Starting in 1977, that Center and others now supported by federal funds to cover organizational costs, have successfully enforced the fair housing law. From its inception in 1977 through 2009, FHCMD has been involved in actively supporting over four hundred twenty-six lawsuits filed in Michigan federal or state courts.²⁸ Litigation supported by FHCMD has resulted in disclosed financial recoveries from two hundred fifty-two cases for plaintiffs that were in excess of ten million dollars.²⁹ An estimated further $1.6 million was recovered in some eighty-six cases where the recovery for plaintiffs was not disclosed.³⁰

One result of allowing complainants to file in federal courts without waiting for HUD to first act has been the development of competent, experienced lawyers in private practice who are able to earn sufficient compensation from fees available from success in actions brought under the Act. A plaintiff bar in housing discrimination cases has developed in some jurisdictions, such as Detroit.

Housing discrimination cases have also been useful vehicles to set precedents on legal issues. HUD subsequently recognized the significant potential of these private actions and supported this effort through its Fair Housing Initiatives Project (FHIP) authorized under amendments to the Fair Housing Act enacted in 1988.³¹ FHIP provides institutional grants to qualified non-profits to maintain localized efforts to investigate, and if meritorious, identify and support enforcement efforts by referrals to experienced private attorneys to represent those suffering discrimination.³² Nationally, over seventy fair housing centers have generated over $380,000,000 in recoveries for plaintiffs through 2009.³³

I have been involved for over 30 years in training the private bar to undertake such representation, starting in Detroit in my capacity as a professor at Wayne State University Law School. I was able to secure funding to establish our Fair Housing Educational Program when a creative attorney for a defendant persuaded the trial judge to approve an allocation of funds from the defendant to the Law School under a negotiated settlement of the case with the Department of Justice Civil Rights Division. The settlement permitted the Law School to use several hundred thousand dollars contributed by that defendant, in lieu of higher sanctions and damages to affected persons, to train and educate law students, the private bar, and the local real estate industry to help end discrimination in housing.

Another factor that has influenced the advantage of private litigation and which was unforeseen at the time of passage of the Fair Housing Act in 1968, is the importance of providing litigation support in the form of “testing.” Sending out testers, persons of similar race and gender and some who were not, to help determine if the testers had encountered generally equivalent treatment and had been subject to some form of discrimination allowed attorneys to document experiences of the complainants. Testing can generate telling evidence of discrimination if it is also experienced by independent testers who can testify as to what they encountered. Careful organization of the testing process is needed to provide valid evidence. Testing often requires a series of testers visiting premises where discrimination has been alleged. This takes some time to organize and implement. Testing has now developed perhaps as the most effective means of providing strong evidence in litigation that defendants were biased and practiced discrimination.³⁴

The use of testing has also had an impact on the practical desirability of complainants processing claims through HUD administrative proceedings. Testing is frequently infeasible where government has the responsibility for initiation of the enforcement efforts. Under the Act’s provisions, if claims are initiated with HUD rather than being filed directly in federal court, provisions of the Act require HUD, once it receives complaints, to notify potential defendants of the existence of such allegations shortly after HUD receives the complaint.³⁵ This requirement has the effect of making effective testing of alleged defendants’ practices unrealistic once potential defendants have received notice that possible litigation concerning their discriminatory treatment is being considered.

A great deal has been learned as a result of experience gained from enforcement actions under the Fair Housing Act regarding what is an effective enforcement process and the development of techniques that were not anticipated at the time of the passage of the Act. At the time the Act was enacted, Civil Rights advocates had much to learn about how to enforce the law and help ensure compliance with its provisions.

1. Pub. L. No. 90-284, 82 Stat. 73; 42 U.S.C.A. § 3601 (West).
2. Signing by President Lyndon Johnson of Pub. L. 89-174; 79 Stat. 667; 42 U.S.C.A. §3534.
3. Pub. L. No. 88-352, 74 Stat. 90; 42 U.S.C.A. § 2000(e) (West).
4. Pub. L. No. 88-352, 74 Stat. 90 ch. 21, Title VII.
5. Id. at Title VI.
6. Sam J. Ervin, Sam J. Ervin Papers, Subgroup A: Senate Records, 1954-1975, The Southern Historical Collection (Nov. 2004), http://www2.lib.unc.edu/mss/inv/e/Ervin,Sam_J.,Senate.html.
7. Pub. L. No. 90-284, 82 Stat. 73, ch. 21, Titles II-VII.
8. Id. at Title I; 18 U.S.C. § 2101 (1996); Pub. L. No. 90-284, 82 Stat. 73.
9. Exec. Order No. 11,063, 27 F.R. 11527 (1962).
10. Id.
11. Pub. L. No. 88-352, 78 Stat. 252, Title VI.
12. 114 CONG. REC. 4960 (1968).
13. CONG. RESEARCH SERV., 112TH CONG., SENATE CLOTURE RULE (Comm. Print 2011).
14. 114 CONG REC. 4844-45 (1968).
15. Jean Eberhart Dubofsky, Fair Housing: A Legislative History and a Perspective, 8 WASHBURN L.J. 149, 159 (1968).
16. Id.
17. Id.
18. See ROBERT A. KATZMANN, JUDGING STATUTES (Oxford, 2014); Otto J. Hetzel, Instilling Legislative Interpretation Skills in the Classroom and the Courtroom, 48 U. PITT. L. REV. 663 (1987); ANTONIN SCALIA AND BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (West, 2012); Margaret H. Lemos, The Politics of Statutory Interpretation Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner, 89 NOTRE DAME L. REV. 849, 850 (2013) (Book Review); John F. Manning, What Divides Textualists from Purposivists, 106 COLUM. L. REV. 70 (2006); John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419 (2005); Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. PA. L. REV. 117 (2009).
19. Pub. L. No. 90-284, 82 Stat. 73, Title VIII, § 808(d) (1968).
20. See, e.g., Farrakhan v. City of Omaha, No. 8:05CV444, 2006 U.S. Dist. WL 1559713, at *1 (D. Neb. June 1, 2006); Harper v. Union Sav. Ass’n, 429 F. Supp. 1254, 1258 (N.D. Ohio 1977); Evans v. Lynn, 537 F.2d 571, 576 (2d Cir. 1975); Green v. Sunpointe Assocs., Ltd., No. C96-1542C, 1997 WL 1526484, at *3 (W.D. Wash. May 12, 1997).
21. Rules and Regulations, Department of Housing and Urban Development, 42272 Fed. Reg. 80,136 ( July 16, 2015) (codified at 24 CFR pts. 5, 91, 92, 570, 574, 76, 903) [Docket No. FR–5173–F–04] RIN 2501–AD33 Affirmatively Furthering Fair Housing; on December 31, 2015, at 81840-81856 Fed. Reg. 80,251 [Docket No. FR-5173-N-07] HUD issued its Affirmatively Furthering Fair Housing Assessment Tool for local governments administering HUD program funds “to enable program participants to more fully incorporate fair housing considerations into their existing planning processes and assist them in complying with their duty to affirmatively further fair housing as required by the Fair Housing Act.”
22. 114 CONG. REC. 9609-13 (1968).
23. Id.; 114 CONG. REC. 9611-13 (1968).
24. 42 U.S.C. 3612(p).
25. See 114 CON. REC. 9535, 9603 (1968).
26. Id.
27. 42 U.S.C.A. § 2000e-4 (West).
28. FAIR HOUSING CENTER OF METROPOLITAN DETROIT, http://www.fairhousingdetroit.org/about (last visited Feb. 23, 2016).
29. Id.
30. Id.
31. 42 U.S.C.A. § 3616 (West); 24 C.F.R. § 125.
32. 24 C.F.R. § 125.401.
33. NAT’L FAIR HOUS. ALL., FAIR HOUSING LITIGATIONS 1990-2009: $380,000,000 AND COUNTING 10 (16th ed. 2010).
34. See Otto J. Hetzel, Introductory Comments on the Fair Housing Testing Conference and the Importance of Testing to Achieve Compliance with the Fair Housing Act, 41 URB. LAW. 229, 233-234 (2009). Editor’s note: Hetzel’s 2009 article cited here appears as part of an issue of The Urban Lawyer devoted to the Fair Housing Act enforcement, including several other articles devoted to testing, and the testing process.
35. 24 C.F.R. § 103.202.