Wednesday, April 30, 2014

The Civil Rights Revolution is Wrong About Housing

Guest Blogger

For the Symposium on Bruce Ackerman, We The People, Volume Three: The Civil Rights Revolution

Florence Roisman

While there’s much to praise in The Civil Rights Revolution (“TCRR”), I think that the discussion of housing – a subject about which I claim some expertise – contains some serious mistakes.

1. TCRR offers a grievously flawed interpretation of the 1968 Fair Housing Act. HUD Secretary George Romney read the statute as authorizing – indeed, requiring – HUD to withhold funds from communities that excluded non-whites by refusing to accept subsidized housing; President Nixon forced Romney to resign over this issue. Professor Ackerman asserts that “the limited objective[] of the 1968 act” was “to provide blacks with money the effective right to buy houses in middle-class white neighborhoods . . . ” and when Romney tried “to force the suburbs to open their doors to subsidized housing for poor people” he went beyond the goals of the FHA because the FHA “didn’t expressly authorize HUD to force the white suburbs to open their doors to poor blacks. It was up to the suburbs themselves to decide whether they would accept federally subsidized housing projects.”

This reading fits Professor Ackerman’s portrait of Nixon as a beneficent participant in the institutionalization of the civil rights revolution, but only by distorting the FHA. Romney’s interpretation of the statute was correct, and Nixon betrayed the statute by restricting its use.

Everyone involved with housing understood that suburban exclusion of subsidized housing has the effect (and often the purpose) of excluding racial minorities. The obligation of HUD (and other federal agencies) to withhold funding from white suburbs that reject subsidized housing was imposed by Title VI of the 1964 Civil Rights Act, which prohibited racial discrimination in programs that receive federal financial assistance. Because Title VI had not been implemented effectively, § 3608 of the 1968 Act required HUD (and all other federal agencies that administer housing and urban development programs) “affirmatively to further” fair housing.

This is not, as TCRR would have it, “a vague command that HUD ‘affirmatively’ use its vast array of subsidy programs to further the statute’s anti-discrimination objectives . . . .”  It is true that, as Professor Ackerman writes, congressional proponents of the FHA talked about “Negro” doctors and lawyers buying houses in the suburbs, as these were the most attractive potential beneficiaries of the legislation, but the legislative history also is replete with references to the federal subsidy and other programs that had confined Negroes to central cities and the need for HUD affirmatively to promote integration as well as non-discrimination. This legislative history has been ratified and enforced by the courts.

In Trafficante v. Metropolitan Life Ins. Co. (1972), the Supreme Court made clear that a purpose of the FHA is racial integration: “to replace the ghettos ‘by truly integrated and balanced living patterns’” (quoting Senator Walter Mondale, a principal sponsor of the FHA). In Hills v. Gautreaux (1976), the Supreme Court held that HUD can be required to place subsidized housing in white suburbs – affirming a court of appeals decision that quoted Secretary Romney’s statement that “the impact of the concentration of the poor and minorities in the central city extends beyond the city boundaries to include the surrounding community. . . . To solve problems of the ‘real city’, only metropolitan-wide solutions will do.” An important First Circuit decision, NAACP, Boston Chapter v. HUD, written by then-Judge Stephen Breyer, held that § 3608 was designed “to have HUD use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases,” that HUD had an obligation to use “its immense leverage . . . to provide desegregated housing . . ., ” and that this obligation is judicially enforceable under the Administrative Procedure Act. Ongoing litigation in United States ex rel. Anti-Discrimination Center of Metro New York v. Westchester County, NY illustrates the centrality of subsidized housing to affirmatively furthering fair housing in exclusionary white suburbs.

In addition, wholly apart from the “affirmatively further” requirement, it long has been settled that the FHA applies to public actions such as the exclusion of subsidized housing from suburban communities. Section 3604 of the FHA prohibits any conduct that would “make unavailable or deny [] a dwelling to any person because of race, color, religion, sex, familial status, . . . national origin” or disability. This often has been applied to invalidate the exclusion from particular communities of forms of housing that disproportionately serve people who are protected by the FHA, such as subsidized housing open to people of color or group homes for people with disabilities. This longstanding interpretation of the FHA, recognizing disparate impact as a basis for liability, is under attack, and the Supreme Court has twice granted certiorari in cases that challenge it. HUD, on the other hand, has by regulation endorsed it, and the Fifth Circuit recently deferred to the HUD regulation in Inclusive Communities Project v. Texas Dept. of Housing and Community Affairs, decided on March 24, 2014. I suspect that Professor Ackerman will not be pleased to have his book cited by those who seek to undo this understanding of the FHA.

2. Professor Ackerman rejects what he acknowledges is “the common view” that the assassination of Dr. King on April 4 was the reason the House of Representatives acquiesced in the fair housing bill that had been passed by the Senate, thereby giving us the 1968 Fair Housing Act. This “common view” notes that Senator Mondale said after Senate passage that “many caution that prospects for House passage this year are not bright,” that it was Dr. King’s “death and the disorders that followed [that] led to irresistible pressure for speedy passage of the Senate-voted bill,” and that “[h]ad the vote not occurred under the shadow of the King assassination, the outcome might well have been different.” This view, TCRR says, “is a mistake.”

Of course, no one can know with certainty what were the motives of a majority of the members of the House Rules Committee, which sent the Senate-approved language to the floor of the House with no allowance for additional amendments, or what were the motives of the majority of the members of the House who voted to accept the Senate’s bill. Elsewhere, I have written that Dr. King’s assassination was the catalyst for House consideration and passage of the Senate version; ironically, I cited Bruce Ackerman’s Holmes Lectures for their discussion of the impact on civil rights of the assassin’s bullet.

I am surprised that with TCRR’s focus on the importance of the assassin’s bullet that struck President Kennedy, it doesn’t accord comparable significance to the assassinations of Dr. King and Robert F. Kennedy. I accept the accounts that attribute House passage of the FHA to Dr. King’s assassination and the riots that followed it. Similarly, I suspect the assassin’s bullet played a role in the Supreme Court’s decision in Jones v. Mayer: the first Conference on Jones v. Mayer was held on April 5, the day after Dr. King’s assassination; Robert Kennedy was assassinated on June 5; and the case was decided on June 17. It may well have been the turmoil in the nation, not what Professor Ackerman thinks was “increasing public acceptance of breakthrough initiatives,” that induced the Supreme Court to decide Jones v. Mayer despite the fact that Congress had passed the FHA and the Court therefore could not produce a unanimous decision.

The disagreements about why the House of Representatives approved the Senate version of the FHA and why the Supreme Court decided Jones v. Mayer at all, and as it did, are significant because Professor Ackerman uses his point that the House would have accepted the Senate version as evidence of “the commitment of the American people to a constructive response to the escalating violence” and says that unanimity wasn’t necessary in Jones v. Mayer because the “bipartisan passage of three landmark statutes in four years had effectively resolved the question of constitutionality in the public mind.” I think both these statements are wishful thinking. I don’t believe the public had accepted the principles of the FHA in 1968 and I think much of the public, and many government officials, haven’t accepted them today. The Senate version of the FHA had many exemptions and was very weak; we had to wait for the 1988 Fair Housing Amendments Act for improvements, and then suffered substantial restrictions from the Supreme Court, which is working hard even today to eliminate disparate impact as a basis for liability under Title VIII. As struggles in Westchester County, Dallas, St. Bernard Parish, and elsewhere show, white suburbs still battle to maintain racial exclusivity by isolating subsidized housing. While residential racial discrimination has diminished, it still is very significant, and residential racial segregation is pervasive throughout the United States. As Justice Sotomayor eloquently reminds us in Schuette v. BAMN, the way to end these evils is to “examine[] the racial impact” of actions not framed in explicit racial terms and keep our “eyes open to the unfortunate effects of centuries of racial discrimination.” 

Florence Roisman is the William H. Harvey Professor of Law and Chancellor's Professor at the Indiana University Robert H. McKinney School of Law.  She can be reached at  

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