Washington State Human Rights Commission

Not surprisingly, the beginning of housing discrimination in America can be traced to the first colonial settlements. Even in early 1600’s, in the Jamestown Colony, there were differences in the treatment of black and white indentured servants. As the colonies grew, slavery of people of African descent became increasingly common. For the most part, slavery was not considered immoral by society.

Neither the Declaration of Independence nor the American Revolution produced any rights or freedom for the black man. Even Article I of the U.S. Constitution treated slaves as “three fifths” of a person for purposes of determining a state’s population for representation in Congress.

Prior to the Civil War, the courts refused to recognize any rights for persons of African descent, whether they were slaves or free. The federal government did nothing to prohibit discrimination, and even those states that had abolished slavery treated blacks as inferior. The ideology of the time is well illustrated in 1857 U.S. Supreme Court case entitled Dred Scott vs. Sanford, in which the court held that persons of African descent were not “citizens” of the United States entitled to any rights. According to the Court, the black man had no rights the white man was bound to respect. The Court stated that this principle applied to all black persons, slave or free:

In the opinion of the court, the legislation and histories of the times, and the language used in the declaration of independence, show that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

Shortly before the Civil War, the abolitionist movement gained strength. Abraham Lincoln’s emancipation proclamation–at least on paper–marked the end of slavery, although it did little to advance modern day civil rights. At the end of the Civil War, the Thirteenth Amendment was enacted to abolish slavery and to give Congress War, the Thirteenth Amendment was enacted to abolish slavery and to give congress the authority to enact appropriate legislation to enforce the abolishment of slavery. In 1866, the Reconstruction Congress passed the Civil Rights Act of 1866, which guaranteed property rights to all citizens regardless of race. The act specifically provides that all citizens shall have the same rights as white citizens to inherit, purchase, and sell real and personal property. Governmental discrimination was also prohibited by the Fourteenth Amendment (enacted in 1868) and the Fifth Amendment’s due process clause that applies to the federal government.

But soon thereafter, the nation’s commitment to civil rights deteriorated. In retrospect, the 1866 Civil Rights Act guarantee of equal rights to all races was, unfortunately, an empty promise. For over a century, the courts prohibited racial discrimination only with regard to “state” (governmental) discrimination, such as racial zoning or the court enforcement of racially restrictive covenants governing real property. Therefore, the 1866 Act was essentially ineffective in combating private discrimination.

The first major setback to the legal rights of African Americans came in the U.S. Supreme Court’s decision in the Civil Rights Case (1883). In that case, the Court held that the equal protection clause of the U.S. Constitution (i.e., the 14th Amendment) did not prohibit private acts of discrimination, rather it merely prohibited discrimination that was the product of governmental action. A few years later, the U.S. Supreme Court made its infamous ruling in Plessy v. Ferguson (1896), which held that the enforcement of racial segregation of private or public facilities did not violate the U.S. Constitution as long as the separate facilities were “equal.” This ruling permitted institutionalized segregation in the United States. The Plessy case was not overruled until 1954, almost six decades later.

On the other hand, some of the more blatant forms of racial discrimination by the government were outlawed by the Court. In 1917, in Buchanan v. Warley, the U.S. Supreme Court struck down a local zoning law that limited African Americans and other minorities to specific areas of town. The Court held that governmental zoning laws that discriminate, based upon race, violate the equal protection clause of the Fourteenth Amendment. This court case did not, however, ban any form of private discrimination. Again, private persons were free to discriminate based upon race.

In 1948, in Shelley v. Kraemer, the U.S. Supreme Court held that state court enforcement of a private racially restrictive covenant constituted a sufficient “government involvement” so as to violate the equal protection clause of the Fourteenth Amendment. Therefore, persons could not use the court system to enforce racial deed restrictions.

Although some states and municipalities enacted fair housing laws, the federal government neglected to pass any laws to prevent housing discrimination. In fact, to a certain extent, the federal government was counterproductive in efforts to defeat segregation. For example, the Federal Housing Administration (FHA) instructed its staff and appraisers to consider the racial makeup of a neighborhood. Also, it is important to note that discrimination in housing was certainly not limited to African Americans. Other minorities and religious groups were commonly discriminated against, as were women.

Finally, in 1954, the U.S. Supreme Court rendered its landmark decision in Brown V. Board of Education, reversing the “separate but equal” decision in Plessy. The Brown case outlawed segregation in schools and marked the beginning of the end of the era of legalized segregation.

In November 1962, President Kennedy signed an executive order, entitled “Equal Opportunity in Housing,” prohibiting discrimination in housing that is owned, operated or assisted by the federal government. The order required federal agencies to take action to prevent discrimination based upon race, color, creed or national origin. Although the executive order was the first federal antidiscrimination initiative of the 20th century, it had limited impact on the housing market.
Two years later, Congress enacted Title VI to the Civil Rights Act of 1964, which prohibited discrimination in programs receiving federal financial assistance. Once again, this Act had little effect since it did not prohibit discrimination in the private housing market.

The real change in fair housing came in 1968, a year that is considered the birth of modern fair housing. In addition to the assassination of Rev. Martin Luther King, Jr., two historic events occurred that year that forever changed the housing market.

First, in April, Congress enacted the Fair Housing Act (Title VIII of the Civil Rights Act of 1968). This Act bans discrimination on the basis of race, color, religion and national origin in most types of housing transactions. The Act also contains a variety of remedies to attack housing discrimination, including private discrimination. Second, in June, the U.S. Supreme Court rendered its decision in Jones v. Alfred H. Mayer Co., and held that the Civil Rights Act of 1866 banned private, as well as government, racial discrimination in housing. Thus the 1866 Act was given new life, and could be used to fight racial discrimination.

The Fair Housing Act outlaws a variety of private discriminatory acts, including refusal to rent or sell, discrimination in the terms of sale or rental, blockbusting, and discrimination in advertising and in the use of real estate services. In 1974, the Fair Housing Act was expanded to include prohibition of gender discrimination, and Section 8 programs were created. In the same year, Congress passed the Equal Credit Opportunity Act, which prohibited credit discrimination in housing on the basis of race, color, religion, national origin, gender or marital status, and age.

In the 1970’s, various federal legislation was enacted to prohibit discrimination in federal programs, and to include additional protected classes. Congress enacted Section 504 of the Rehabilitation Act of 1973, prohibiting discrimination against handicapped persons in all federally assisted programs, including housing. Later, Congress enacted the Age Discrimination Act of 1975, which prohibited discrimination on the basis of age in programs receiving federal financial assistance. In 1980, President Carter expanded Kennedy’s executive order to include gender-based discrimination, and to grant HUD additional authority to issue regulations to further fair housing in federal programs.

After the enactment of the Fair Housing Act, the U.S. Supreme Court rendered several important decisions favorable to attacking housing discrimination. In 1972, the Court held in Trafficante v. Metropolitan Life Insurance Co. that the Fair Housing Act should be broadly construed, and that HUD’s interpretation of the act, should be given great weight. As a tremendous practical importance, the Court also upheld the right of housing organizations and other residents to sue persons or municipalities that violated the Fair Housing Act. In 1982, the Court rendered an important decision entitled Havens Realty Corp. v. Coleman, which permitted housing organizations and “testers” to sue in racial steering cases. These court cases enable private and public organizations to investigate fair housing violations and to file actions for civil penalties and damages.

On September 13, 1988, former President Ronald Regan signed the Fair Housing Amendments Act of 1988. The Amendment became effective March 12, 1989. The 1988 Amendment was enacted to expand the coverage of the Fair Housing Act and to enhance enforcement of the act.

The 1988 Amendment made major changes to the Title VIII, including adding two protected classes to the Fair Housing Act: (1) families with children and (2) handicapped persons. The Amendment also modified the administrative process for HUD complaints, and essentially provides that HUD has a higher degree of authority to enforce the Fair Housing Act. The Amendment removed the cap on punitive damages and increased the available damages and civil penalties. The Amendment also extends Title VIII to other discriminatory practices, relating to real estate loans for repairs and improvements, certain secondary market activities, and real estate appraisals.

HISTORY OF FAIR HOUSING IN AMERICA