The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition
Long Road to Justice: The Civil Rights Division at 50

Fair Housing

MAMA: 'Course I don't want to make it sound fancier than it is...It's just a plain little old house - but it's made good and solid - and it will be ours...

RUTH: Where is it?

MAMA: Well - well - it's out there in Clybourne Park - ...

RUTH: ...Mama, there ain't no colored people living in Clybourne Park...

MAMA:...I just tried to find the nicest place for the least amount of money for my family...Them houses they put up for colored in them areas way out all seem to cost twice as much as other houses. I did the best I could.

- Lorraine Hansberry, A Raisin in the Sun 41

Even though the housing boom has cooled and the downturn in the subprime market is rippling through the credit markets, home ownership continues to sit at the heart of the American dream. For many prospective homeowners today, the chief concern is whether they can afford their neighborhood of choice or whether they should take out a fixed or variable rate loan.

Fifty years ago, however, many families across the country faced much graver challenges to homeownership than we consider today - whether their houses would be bombed upon moving in. This happened to Percy Julian - the famed African-American chemist - when he and his family moved into Oak Park, Illinois, in 1950. The Julian home was fire-bombed on Thanksgiving Day just before they moved in. The attacks galvanized the community, which supported the Julians; but for years afterward, father and son often felt compelled to watch over their property by sitting in a tree with a shotgun.

In 1968, Congress responded to mounting evidence of intractable housing discrimination by enacting the Fair Housing Act. The Act prohibits both public and private discrimination on the basis of race, color, religion, and national origin in the sale and rental of housing. For the first time, it also allowed money damages to be collected in Justice Department suits.

The Civil Rights Division quickly applied this new authority, and a number of its first cases resulted in negotiated consent decrees. Developers of residential housing and owners and managers of urban rental apartments agreed to use objective, nonracial sales and rental criteria, as well as to engage in affirmative marketing efforts to seek minority customers. One of the first litigated cases resulted in similar affirmative relief. 42 Other early cases involved racial steering, in which real estate agents only showed minority applicants apartments or houses in areas that were already predominantly occupied by people of color. High profile cases were brought against Chicago real estate agents, Fred and Donald Trump in New York City, and the owners of the LaFrak housing complex - also in New York City

Another case of note involved the City of Black Jack, Missouri, just outside St. Louis. In 1969, a community organization in St. Louis began planning to construct multifamily apartments for low and moderate income residents in a predominantly Black area of the city. It found a location outside the city, in an unincorporated part of St. Louis County called Black Jack, which was already designated for multi-family units. When they learned of this plan, Whites in the area (Black residents made up less than 2 percent), successfully petitioned the county to incorporate as the City of Black Jack. They then enacted a zoning ordinance prohibiting the construction of any new multifamily dwellings. The Civil Rights Division challenged the zoning ordinance and the court ruled that the racial effect of the zoning ordinance was sufficient to violate the Fair Housing Act, and that the Division did not need to prove racial intent: "Effect and not motivation is the touchstone, in part because clever men may easily conceal their motivation." 43 Allowing the Division to focus on discriminatory effect rather than only intent empowered it to take on significantly more cases in recent years.

In 1980, the Civil Rights Division and the Yonkers branch of the NAACP filed suit against the City of Yonkers and the Yonkers School Board, charging that the city had engaged in systematic housing and school segregation for 30 years. This was the first case in which both school and housing segregation were challenged in the same lawsuit. After a three-month trial, the court found that the city had restricted housing projects to southwest Yonkers, a predominantly minority area, for the purpose of enhancing racially segregated housing and intentionally to limit minority children to schools with predominantly minority student bodies. 44

In 1988, Congress enacted a Fair Housing Amendments Act that provided stiffer penalties, expanded the Act's coverage to include disabled persons and families with children, and established an administrative enforcement mechanism through the Department of Housing and Urban Development (HUD). The Act also required the design and construction of new multifamily dwellings to meet certain adaptability and accessibility requirements. With these amendments, the Division's Housing Section tripled; and in 1991, it established a fair housing testing program, wherein individuals pose as prospective buyers or renters to assess whether the housing providers discriminate. The Division generally uses both Black and White non-volunteers from other parts of the Justice Department as individual testers. From 1992 to 2005, the Division filed 79 pattern or practice cases using evidence from the fair housing testing program.

In the 1990s, the Division began its Fair Lending program. Discrimination in lending generally involves one of three types of issues; (1) marketing practices in which the availability of loans depends on the racial or ethnic composition of neighborhoods (also known as redlining); (2) underwriting policies and practices in which lenders use different standards to assess the credit worthiness of applicants, and offer different levels of assistance to applicants based on race; and (3) pricing practices in which minorities and other protected groups are charged more for credit than other similarly situated borrowers.

The Department's first case related to underwriting practices, which was brought in 1992, stemmed from an Atlanta Journal series on the Decatur Federal Savings and Loan. Black and Hispanic applicants were rejected for mortgage loans in significantly higher proportions than White applicants. Bank employees also assisted White applicants with the loan process, but not Black applicants. A consent decree was entered that required fair lending training for loan officers, advertising and marketing to minority neighborhoods, and the creation of new branches in minority neighborhoods. In 1993, the Division settled with Blackpipe State Bank in South Dakota for redlining; the bank had refused to make secured loans to Native Americans living on Reservation lands. Loans to purchase cars, mobile homes, and farm equipment were simply unavailable to Native American borrowers. The bank that purchased Blackpipe agreed to set up a fund to compensate victims, to establish a marketing program and conduct financial seminars on Native American reservations, and to recruit qualified Native American applicants for job openings at the bank.

In 1994, the Division entered into a consent decree with Chevy Chase Bank,after it alleged that the bank was not marketing loans in predominantly African American neighborhoods of Washington, D.C. and Prince Georges County. Chevy Chase Bank agreed to pay $11 million to the neglected areas through a special loan program and through service efforts geared toward those neighborhoods. Other fair lending cases involved allegations of racially discriminatory practices relating to the sale of homeowners insurance (Milwaukee), discriminatory pricing (Brooklyn, Long Beach, CA), and predatory lending (New York City, Washington, D.C.).

The results of these efforts were remarkable in such a short period of time. Due in part to the Division's work and its general impact on the banking profession, the availability of loans to minorities expanded dramatically. At the same time, however, the Division has done little over the past 10 years to require conventional lenders to penetrate the African-American and Latino homeownership markets nationwide. It has failed to challenge the discriminatory predatory practices - such as steering Blacks and Latinos to subprime loans and lenders when they could qualify for conventional loans - that affect the lending market so dramatically today. Although indications of redlining in the homeowners insurance industry continue to surface, the Division has not been aggressive enough in recent years in confronting this discrimination directly or in correcting underlying practices.

Additionally, despite its promising start in addressing residential segregation based on race, the Division has not in recent years used its authority to address real estate sales discrimination and discriminatory zoning practices that exclude or limit housing opportunities for African Americans and Latinos. The loss of the Division's momentum in this area has left a significant vacuum in the efforts of the federal government to end residential segregation. This failure is particularly disheartening in the face of the Supreme Court's recent school desegregation rulings, which leave fair housing enforcement as one of the few remaining options to promote school desegregation.

The general criticisms of politicization, anemic enforcement, and a disregard of mission further affect housing discrimination enforcement, as they do with regards to other civil rights issues. The Fair Housing Act clearly states that the Division "shall" file cases investigated and charged by the Department of Housing and Urban Development. With increasing frequency, however, the Division has rejected responsibility for filing these cases - declining to conduct additional investigations or declining the cases altogether, thereby prolonging and duplicating the legal process. In one Chicago case, for example, the Division refused to file a federal suit after a referral from HUD. The Division stalled on the case for so long that Representative Jesse Jackson, Jr. requested that the Division investigate the case. The case was eventually settled, but the Division's delays undercut the promise of full enforcement of the Fair Housing Act, and thus the relief provided to the complainant in the case.

The number of enforcement cases brought by the Division - both "pattern or practice" and HUD election cases - has dropped significantly in recent years; and that decrease is most evident in cases alleging racial discrimination. The Division's fair housing testing program has been reduced, and the Division has not advanced a strong fair lending or homeowners insurance enforcement portfolio for years. Given both the problems evident in the subprime market and the persisting patterns of residential segregation, predatory lending and sales and zoning practices that discriminate based on race and national origin should be at the top of the Division's agenda. It is evident that the Division has not wielded its voice to the fullest extent in combating these injustices.

Unfortunately, as with many other sections of the Civil Rights Division in recent years, many qualified attorneys have left and/or been pushed out by the administration. A diminishing staff promises a loss of both institutional memory and familiarity with the Fair Housing Act, thus reducing the ability of the Section to get back on its feet. As homeownership continues to sit at the heart of the American dream, the Division must recommit itself to redressing these ongoing setbacks; for while minority home ownership has undoubtedly advanced over the last 50 years, it still remains out of reach for too many Americans.

41. Hansberry, L. A Raisin in the Sun. New York: Random House Inc., 1995, 76-77.

42. United States v. West Peachtree Tenth Corp., 437 U.S. 221 (5th Cir. 1971).

43. United States v. City of Black Jack, 508 F2nd 1179, 1186 (8th Cir. 1975).

44. United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2nd Cir. 1987). As a remedy, the court ordered the City to provide for 200 units of public housing in white areas of the city, as well as to allocate its federal housing grants for several years in ways that would advance racial integration. It also ordered the school board to create magnet schools and implement a school assignment program furthering desegregation.

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