April 27, 2018

50 Years of Enforcing the Fair Housing Act

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Photo: President Lyndon Johnson signs the Civil Rights Act of 1968.

Ongoing segregation in America, regular reports of sexual harassment in housing, newly-constructed properties inaccessible to people with disabilities – these are just some examples that underscore that we have not yet vanquished housing discrimination. We can, however, look back on 50 years of enforcement to determine how we may make the progress that has eluded us.

The 50th anniversary of the signing of the Fair Housing Act stands as a watershed moment in our enforcement of this landmark civil rights law. We now have seen five decades of government and private enforcement of this law. This time affords us an opportunity to review what has worked, what has not, and how we might face the future in view of those lessons. It’s important to celebrate milestones, but more important is to take action.

First, I think it is critical to acknowledge that the passage of the law itself was a major victory. Walter Mondale, a co-sponsor of the Act, said this month, “The view of how America speaks is reflected in our laws. And one of the laws is fair housing.”

Having such a law on the books certainly changed American cultural norms regarding housing discrimination.  Real-estate and other housing associations in those early years pledged fair housing compliance as a central tenet of their profession. Still, it was government and private enforcement of the law in those first two decades that put muscle behind the law. It’s during those decades that much of the seminal caselaw that we rely on today developed.

It should be noted that, upon its passage in 1968, the Act did not grant HUD the full enforcement authority Congress would provide in its 1988 Amendments. However, it did provide HUD with the authority to investigate and conciliate complaints. It also empowered the Department of Justice to enforce the law and provided a private right for anyone harmed by a discriminatory practice to pursue a lawsuit in federal court.

Similarly, fair housing groups were key to policing the housing industry in their communities and bringing many early cases. The decline in documented acts of discrimination, between HUD’s 1977 and 1989 national housing discrimination studies, reflect the combined enforcement and education activities of all these actors in the early years. The 1988 Amendments then strengthened HUD’s enforcement powers, authorizing a HUD administrative law judge to make findings of discrimination and award damages.

In recent decades, HUD’s decennial Housing Discrimination Study has tracked continuing declines in documented housing discrimination in the sales and rental markets. We can attribute that trend to the ongoing enforcement and education efforts on fair housing. Today, in addition to federal enforcement at HUD and the Department of Justice, 85 state and local agencies enforce substantially-equivalent laws. Our respective agencies not only bring cases to judges, but also help resolve these cases and obtain relief for individuals during the investigation process. For example, in Fiscal Year 2017, in 44% of its cases, HUD succeeded in bringing parties together to agree to a resolution before HUD issued findings.

You would think that with this record of success, our communities would not exclude any residents based on race, all apartment buildings would be accessible to individuals with disabilities, and sexual harassment in housing would be a thing of the past. While it may be difficult to completely eradicate discrimination, we can, and will do more.  The year may have changed but our commitment hasn’t.

Tim Smyth is the Deputy Assistant Secretary for Enforcement and Programs, Office of Fair Housing and Equal Opportunity.

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