SYMPOSIUM: MOVING TOWARD INTEGRATION -- Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration

Case Western Reserve Law Review Volume 70 Issue 3 Article 5 2020 SYMPOSIUM: MOVING TOWARD INTEGRATION -- Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration Jonathan L. Entin Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Jonathan L. Entin, SYMPOSIUM: MOVING TOWARD INTEGRATION -- Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration, 70 Case W. Res. L. Rev. 659 (2020) Available at: https://scholarlycommons.law.case.edu/caselrev/vol70/iss3/5 This Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 70·Issue 3·2020 — Symposium — Fair Housing Past, Present, and Future: Perspectives on Moving Toward Integration Introduction Jonathan L. Entin† People of color have long faced discrimination in the housing market. In many instances, African Americans encountered violent opposition when they tried to move into previously all-white communities.1 More commonly, various public policies and private practices promoted residential segregation. For example, zoning ordinances sought to maintain segregated housing patterns, public housing was located in places that maintained racial isolation, federal agencies refused to insure mortgages in racially mixed neighborhoods, private lenders refused to make loans in such neighborhoods, real estate agents engaged in racial steering to maintain residential segregation, and property owners refused to sell or rent to persons of color.2 † David L. Brennan Professor Emeritus of Law, Case Western Reserve University. 1. See Jeannine Bell, Hate Thy Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing (2013); Leonard S. Rubinowitz & Imani Perry, Crimes without Punishment: White Neighbors’ Resistance to Black Entry, 92 J. Crim. L. & Criminology 335 (2001). For accounts of local violence, see, e.g., Kevin Boyle, Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (2004) (examining the Ossian Sweet case, which arose from a black family’s effort to move into a previously allwhite Detroit neighborhood); Glenn T. Eskew, But for Birmingham: The Local and National Movements in the Civil Rights Struggle 53–83 (1997) (discussing bombings that sought to maintain residential segregation in Birmingham, Alabama); Thomas J. Sugrue, Jim Crow’s Last Stand: The Struggle to Integrate Levittown, in Second Suburb: Levittown, Pennsylvania 175 (Dianne Harris ed., 2010) (describing the violent reaction to a black family’s move into an all-white community). See also Daisy D. Myers, Reflections on Levittown, in Second Suburb, supra, at 41 (offering the perspective of one member of that black family). 2. See, e.g., Charles Abrams, Forbidden Neighbors: A Study of Prejudice in Housing (1955); Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017). 659 Case Western Reserve Law Review·Volume 70·Issue 3·2020 Fair Housing Past, Present, and Future The Supreme Court’s record in housing discrimination cases is decidedly mixed. More than a century ago, in Buchanan v. Warley,3 the Court struck down a zoning ordinance that explicitly relied on race in determining who could legally reside on particular blocks.4 And just over fifty years later, in Jones v. Alfred H. Mayer Co.,5 the Court held that section 1 of the Civil Rights Act of 1866 prohibited private racial discrimination in the purchase, sale, or rental of housing, but it noted that this provision was not a comprehensive fair-housing law.6 Around the same time, the Court rebuffed political efforts to make it difficult, if not practically impossible, for states and localities to adopt their own fair-housing legislation.7 But the Court rejected zoning challenges where race was not an explicit factor and the land-use decisions seemed to have plausibly neutral justifications.8 And only a few years after Buchanan, the Court in Corrigan v. Buckley9 rejected a constitutional challenge to restrictive covenants that prohibited African Americans as well as members of disfavored religious and ethnic groups from owning, leasing, or occupying property that was covered by those agreements. Although the Court later held that such covenants were not judicially enforceable,10 those private agreements remained in place for years afterward. 3. 245 U.S. 60 (1917). 4. That unanimous ruling did not discourage other cities from enacting racebased zoning ordinances, although courts invalidated those measures. See, e.g., Monk v. City of Birmingham, 185 F.2d 859 (5th Cir. 1950); City of Richmond v. Deans, 37 F.2d 712 (4th Cir.), aff'd per curiam, 281 U.S. 704 (1930); Land Dev. Co. of La. v. City of New Orleans, 17 F.2d 1016 (5th Cir. 1927). 5. 392 U.S. 409 (1968). 6. Id. at 413–14. Section 1 of the 1866 Act is codified at 42 U.S.C. § 1982 (2018). 7. Hunter v. Erickson, 393 U.S. 385 (1969) (invalidating a city charter provision that required voter approval of any fair-housing ordinance); Reitman v. Mulkey, 387 U.S. 369 (1967) (invalidating a state constitutional amendment that gave property owners absolute discretion to choose with whom they would deal, thereby repealing a state fair-housing law and preventing further legislation against housing discrimination). 8. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). 9. 271 U.S. 323 (1926). 10. See Shelley v. Kraemer, 334 U.S. 1 (1948) (prohibiting state courts from enforcing restrictive covenants); see also Hurd v. Hodge, 334 U.S. 24 (1948) (prohibiting federal courts from enforcing restrictive covenants); Barrows v. Jackson, 346 U.S. 249 (1953) (forbidding courts to award damages for breach of restrictive covenants). 660 Case Western Reserve Law Review·Volume 70·Issue 3·2020 Fair Housing Past, Present, and Future Congress passed the federal Fair Housing Act in 1968.11 Although its effectiveness has been widely questioned, that law was much more comprehensive than the Reconstruction statute at issue in Jones v. Mayer in that it addressed discrimination based on religion and national origin as well as race, and it prohibited discrimination not only in the sale or rental of housing but also in ancillary services, brokerage, financing, and advertising, established administrative enforcement mechanisms, provided for damages as well as injunctive relief for violations, and authorized litigation by the Department of Justice. A few states and municipalities already had adopted their own antidiscrimination measures, but those measures were relatively weak and generally were controversial. A number were repeale (...truncated)