Open Housing Laws

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Many believe housing, the last major area covered by Congress's 1960s civil rights program, to be the key to at least short-term progress in integration. Despite numerous antidiscrimination laws, segregated housing patterns threaten much of the civil rights agenda, including integrated public education. Yet until the 1960s the federal government promoted segregated housing. Federal housing agencies, such as the Federal Housing Administration, required racially restrictive covenants in federally assisted projects. In Executive Order 11063 (1962), President john f. kennedy prohibited housing discrimination in federal public housing and in housing covered by mortgages directly guaranteed by the federal government. Title VI of the civil rights act of 1964, which outlawed discrimination in programs receiving federal financial assistance, extended the ban to nearly all federally assisted housing.

Title VIII of the civil rights act of 1968 was the first comprehensive federal open housing law. Title VIII bans discrimination on the basis of race, color, religion, or national origin in the sale, lease, and financing of housing, and in the furnishing of real estate brokerage services. A 1974 amendment extends the ban to discrimination on the basis of sex. Title VIII exempts single-family houses sold or rented by owners and small, owner-occupied boarding houses. Congress's consideration of Title VIII was affected by the assassination of martin luther king, jr. House opponents of the measure had tried to delay its consideration in the hope that intervening national events would sway Congress against it. But during the delay, Dr. King was assassinated and passage of the act followed swiftly.

Courts have construed Title VIII to cover activities other than the direct purchase, sale, or lease of a dwelling. For example, Title VIII prohibits discriminatory refusals to rezone for low-income housing. Most courts find that practices with greater adverse impact on minorities, even if undertaken without discriminatory purposes, impose some burden of justification. This view links Title VIII litigation to a similar line of employment discrimination cases decided under Title VII of the Civil Rights Act of 1964.

To enforce its provisions, Title VIII authorizes the secretary of housing and urban development to seek to conciliate disputes, but the Department of Housing and Urban Development (HUD) initially must defer to state or local housing agencies where state law provides relief substantially equivalent to Title VIII. In Gladstone, Realtors v. Village of Bellwood (1979) the Supreme Court held that Title VIII also authorized direct civil actions in federal court without prior resort to HUD or to state authorities. An attorney general finding a pattern or practice of housing discrimination is authorized to seek relief in federal court.

Two months after Title VIII's enactment the Supreme Court found Section 1982, Title 42, United States Code, a remnant of section 1 of the civil rights act of 1866, to be another federal open housing law. Section 1982 grants all citizens the same right "as is enjoyed by white citizens" to purchase and lease real property. In jones v. alfred h. mayer co. (1968) the Court construed section 1982 to prohibit a racially motivated refusal to sell a home to a prospective black purchaser. In Sullivan v. Little Hunting Park, Inc. (1969) the Court found that violations of section 1982 may be remedied by damages awards or by injunctive relief. There are, therefore, two federal open housing laws, which, in the area of racial discrimination, overlap. But section 1982 contains none of Title VIII's exemptions, provides for none of its administrative machinery, and contains no express list of remedies.

Theodore Eisnenberg


Bell, Derrick A., Jr. 1980 Race, Racism and American Law, 2nd ed. Boston: Little, Brown.

Dorsen, Norman et al. 1976–1979 Political and Civil Rights in the United States, 4th ed. II:1063–1149. Boston: Little, Brown.