What is fair housing and why do we need it?
As we honor the great Dr. Martin Luther King, Jr. today, it seemed fitting to talk about something that is a significant part of his civil rights legacy, and that is the advancements made in promotion of fair housing for all. Because of Dr. King’s efforts and the efforts of the many, many who stood side-by-side with him in support of civil rights, the concept of fair housing is now part of the American legal landscape. Yet how well are we living up to the ideal? This article explains the basics of fair housing, explores its history in the United States, and reflects on how much farther we need to go.
What is fair housing?
Fair housing as a sociological concept is the idea that all people have the right to adequate housing in a location of their choosing. This is embodied in various concepts in the Universal Declaration of Human Rights, including:
· The Right to Seek a Safe Place to Live [2]
· Food and Shelter for All [3]
As a legal concept in the United State, fair housing means that certain protected groups of people are protected from housing discrimination by federal and state law. Protected classes include: race, color, national origin, religion, sex, familial status, and disability. A recent U.S. Supreme court decision interpreting other civil rights legislation indicates that the prohibition against discrimination on the basis of “sex” extends protections to gay and transgender people as well. [4]
Under fair housing law, people who fall within a protected class cannot be discriminated against in the sale or rental of a “dwelling”. A dwelling is all or part of a building used for occupancy as a residence, or vacant land offered for sale or lease for the construction of such structure. [5]
The History
The push for fair housing in the United States gained momentum when it was championed by Dr. King Jr. in the early 1960s. Dr. King saw that the ability of people to have adequate housing in locations of their choosing is a fundamental tenet of civil rights. He encouraged the country to recognize that exclusionary policies in housing systematically and openly relegated Black Americans to low-income areas and poor quality housing. This further exacerbated social ills and was at the heart of racial injustice in the United States.
The Department of Housing and Urban Development chronicles the passage of the Act:
On April 11, 1968, President Lyndon Johnson signed the Civil Rights Act of 1968, which was meant as a follow-up to the Civil Rights Act of 1964. The 1968 Act expanded on previous acts and prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin, sex, (and as amended) handicap and family status. Title VIII of the Act is also known as the Fair Housing Act (of 1968).
The enactment of the federal Fair Housing Act on April 11, 1968 came only after a long and difficult journey. From 1966-1967, Congress regularly considered the fair housing bill, but failed to garner a strong enough majority for its passage. However, when the Rev. Dr. Martin Luther King, Jr. was assassinated on April 4, 1968, President Lyndon Johnson utilized this national tragedy to urge for the bill's speedy Congressional approval. Since the 1966 open housing marches in Chicago, Dr. King's name had been closely associated with the fair housing legislation. President Johnson viewed the Act as a fitting memorial to the man's life work, and wished to have the Act passed prior to Dr. King's funeral in Atlanta. [6]
Congress made its intent clear in the opening lines of the Act.
It is the policy of the United States to provide, within constitutional limitations, fair housing throughout the United States. [7]
Unfortunately, Dr. King did not live to see passage of the Act, but his legacy in ensuring housing opportunities lives on.
In 1988, the Act was amended to also provide protection to people with handicaps. "Handicap" has the same legal meaning as the term "disability" which is used in other federal civil rights laws. Today, the preferred term is “disability” and the proper way to use it in reference to the population is “people with disabilities.”
The 1988 amendment was a product of decades worth of advocacy to deinstitutionalize disability. The United States has a long and rather horrifying history of treatment of people with disabilities. For many years, people with mental or developmental disabilities were put in institutions and subjected to inhumane treatment. This was dramatized by Ken Kesey’s novel “One Flew Over the Cuckoo’s Nest,” which led to the 1975 film starring Jack Nicholson. Sometimes elderly people were swept up in this too. For example, a class action in the 1970s against a mental institution in Alabama revealed that 1500 elderly geriatric patients were interned there, not because of insanity but because of afflictions related to age.[8]
After a decades long movement to get people out of institutions and into smaller environments, disability was added as a protected category under the Fair Housing Act.
What is the Fair Housing Act Intended to Do?
The Fair Housing Act is intended to tear down the barriers that are erected to keep people apart. An initial target was to outlaw the practice of “redlining,” which created “Whites Only” neighborhoods and relegated people of color to less desirable parts of town that sometimes were not even served by city utilities.
Therefore, the Act prohibits certain discriminatory practices such as:
· the refusal to sell or rent, or to otherwise make unavailable or deny, a dwelling;
· discrimination in the terms, conditions, or privileges of the sale or rental of a dwelling;
· to make statements about the preference or limitation of housing for one group or another;
· to represent that a dwelling is not available when such a dwelling is, in fact, available. [9]
With respect to people with disabilities, the Act also requires that exceptions be made to rules that otherwise are nondiscriminatory if such “reasonable accommodation” is necessary to provide people with disabilities an equal opportunity to use and enjoy a dwelling. [10]
The Act is specifically designed to overcome barriers in the form of zoning and restrictive covenants that try to keep groups of disabled people out of single-family neighborhoods.
State of Fair Housing in the Current Era
We don’t have to look far in the headlines or the city parks to see that America is experiencing a housing crisis of historic portions. The number of people who are unhoused has been increasing even before the pandemic. As of May 2020, the number of unhoused people in America totaled over 560,000, with predictions of an additional 250,000 becoming homeless by May 2021. [11] Certainly this shows that it is not just the countries of the developing world that are failing in this basic area of human rights. Despite this, cities and the nonprofit sector are coming together with creative and multifaceted solutions to move people toward housing. Similarly, the government and private sector need to work together and with the even larger group of people who now find themselves housing insecure to develop solutions that keep people housed while not throwing the real estate market into financial crisis.
As far as exclusionary housing practices, while redlining in the form of explicitly discriminatory zoning regulations and private deed restrictions has gone away, other forms of redlining are still present in our society. One example can be seen in a recent lawsuit against the on-line real estate company Redfin alleging that it treated buyers and sellers in predominantly White neighborhoods differently from those in Non-White neighborhoods. [12] Lawsuits like these serve as a reminder that the Fair Housing Act remains relevant today.
And, of course, zoning practices and NIMBYism still pose challenges for the integration of group homes for the disabled into single-family neighborhoods. Additional education for city planners and neighbors is needed to help build understanding about why diverse communities are good for all community members. Given the myriad of benefits that the disabled experience in residential settings, this continues to be a goal worth pursuing.
If you feel that you have been subjected to housing discrimination, you can reach out to HUD or your state fair housing agency for assistance.
If you want to learn more about how the Fair Housing Act can help you create housing opportunities in your neighborhood, please feel free to contact us.
[1] UDHR, Article 13: “Everyone has the right to freedom of movement and residence within the borders of each State.”
[2] UDHR, Article 14: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”
[3] UDHR, Article 25: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services . . .”.
[4] Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).
[5] The Fair Housing Amendments Act, 42 U.S.C. § 3602(b).
[6] https://www.hud.gov/program_offices/fair_housing_equal_opp/aboutfheo/history.
[7] 42 U.S.C. § 3601.
[8] Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala. 1971).
[9] See, e.g., 42 U.S.C. § 3604 (a) – (e).
[10] 42 U.S.C. § 3604(f)(3)(B).
[11] https://endhomelessness.org/covid-19-and-the-state-of-homelessness/.
[12] https://nationalfairhousing.org/redfin-investigation/.