1968 And The Beginnings Of Federal Enforcement Of Fair Housing1

1. Introduction In its 1961 report on discrimination in "Housing," the Civil Rights Commission summed it up this way: "In 1959 the Commission found that 'housing * * * seems to be the one commodity in the American market that is not freely available on equal terms to everyone who can afford to pay.' Today, 2 years later, the situation is not noticeably better." "Throughout the country large groups of American citizens ­ mainly Negroes, but other minorities too ­ are denied an equal opportunity to choose where they will live. Much of the housing market is closed to them for reasons unrelated to their personal worth or ability to pay. New housing, by and large, is available only to whites. And in the restricted market that is open to them Negroes generally must pay more for equivalent housing than do the favored majority. 'The dollar in the dark hand' does not 'have the same purchasing power as a dollar in a white hand.'" 2 Where do we stand today, 40 years later? I am going to speak about some events that played a role in that transition. In 1960, Senator John F. Kennedy campaigned for President claiming that, if elected, he would prohibit discrimination in housing built with federal subsidies "by a stroke of the pen."

After two years of no action, for which he was roundly criticized, President Kennedy on November 20, 1962, "by a stroke of the pen" issued Executive Order 11063 directing all departments and agencies of the Federal Government to take all action, including litigation by the Attorney General, necessary and appropriate to prevent discrimination because of race, color, creed, or national origin in the sale, leasing, rental, or other disposition of federally owned or operated residential property or residential property provided thereafter with the assistance of the Federal Government and in lending practices relating to loans thereafter insured or guaranteed by the Federal Government. Five-and-one-half years later, Congress weighed in, passing the Fair Housing Act of 1968, and two months thereafter the Supreme Court held in Jones v. Mayer Company that the Civil Rights Act of 1866, 42 U.S.C. § 1982, a dead letter for the intervening century, was constitutional, means what it says and secures to Blacks the same rights to contract for housing as are enjoyed by whites.

As John Doar, a great leader and molder of the Civil Rights Division, First Assistant and Assistant Attorney General, 1960-67, was fond of saying: "When this Nation seeks to address a really tough problem, it's best to have all three branches of the Federal Government publicly on board and faced in the same direction." By June 1968, all three branches had lined up against discrimination in housing -- at least on paper. 134 years have passed since § 1982 was enacted; 37 years since President Kennedy stroked his pen; and 32 years since Congress adopted Title VIII and the Supreme Court decided Jones v. Mayer. What has been the effect of these laws and regulations and that Supreme Court decision? My remarks will focus on 1968. You, I hope, will tell me about the 2000 landscape. What was the Division like then -- size, organization, and activity? How did the Fair Housing Act of 1968 come about? What did the Division do that first year to implement the new statute? What lessons have been learned?

• Feb. 8
  • Demonstrations over denial of access by Blacks to the All Star Triangle Bowling Alley in Orangeburg erupt onto the campus of South Carolina State College. Shooting by the State Patrol kills three students and wounds 27.
  • President Johnson announces that he will not run for a second full term as President.
  • Dr. King is assassinated in Memphis, setting off several days of rioting in major cities across the nation, including burnings, looting, martial law, and federalization of the Guard in the District of Columbia and elsewhere.
  • President Johnson signs the Civil Rights Act of 1968, including the Title VIII on Fair Housing.
  • Supreme Court decides Green v. New Kent County holding freedom-of-choice school plans insufficient to meet constitutional requirements.
  • Poor People's Campaign arrives in Washington, D.C., and encamps at Resurrection City on the Mall east of the Lincoln Memorial and petitions its grievances to the Federal Government.
  • Presidential candidate Robert F. Kennedy is assassinated in California.
  • Anti-Vietnam demonstrations on the streets at the Democratic Party's National Convention in Chicago erupt in police violence against the demonstrators.
  • Personnel:
    • 83 - 100 attorneys
    • 90 - 105 support staff
    • $2,659,000
    • 489,535 miles (air not included)
    • 1300 trips
    • 7093 travel days
    • Equal Employment Opportunity 27%
    • Public Education 17%
    • Fair Housing 17%
    • Criminal Interference with Protected Rights 17%
    • Registration and Voting 11%
    • Non-Discrimination in Federally Assisted Programs 8%
    • Equal Access to Public Accommodations and Public Facilities 3%

    The House of Representatives on August 9, 1966, passed a civil rights bill which included a fair housing provision more limited than that recommended by the President. However, the Congress adjourned without Senate action. While this was going on, the President established a Task Force to consider the scope of civil rights legislation to be presented to the next Ninetieth Congress. That Task Force was chaired by Attorney General Clark and I, then First Assistant in the Division, was its working chief. In late November 1966, the Task Force presented 58 proposals to the President, l6 of them addressed to nondiscrimination in housing. This began an intensive review process directed by the President's Special Assistant for Domestic Affairs, Joseph Califano (later HEW Secretary under President Carter).

    As formulated in a memorandum of December 5, 1966, the priority housing proposal was for "Legislation to ban discrimination in the sale, rental and financing of housing by tract developers, apartment house owners and mortgage lenders with enforcement responsibility in an administrative agency and appeal to the courts." Major issues to be considered included: "Whether to propose a 'pure' bill banning discrimination in all housing or to accept generally the compromise reached by the House in 1966 [excepting room rentals in a home or Mrs. Murphy's boarding house and rentals by religious and fraternal organizations]. "Whether to lodge enforcement responsibility in an administrative agency as against enforcement in the courts by the Attorney General or some mixture of the two. "Whether to emphasize conciliation by postponing the effective date of enforcement machinery for one year and providing a program to encourage voluntary compliance (regional conferences, public education) during that year." A memorandum prepared December l6, 1966, for President Johnson indicates that the scope of the legislation to be proposed was still in flux. It states that three possible approaches had been considered: One, apparently preferred, was for legislation patterned in part along the lines of Title VII which would become fully effective over a period of a few years and which would ultimately bar discrimination in the sale, rental and financing of all housing of whatever size; with enforcement responsibility to be lodged in an administrative agency with cease and desist power, and in the Attorney General who would be authorized to bring pattern or practice suits in federal district court.

    Two other approaches, "considered and not rejected," were for a bill similar to that proposed by the President in April 1966 barring, with no time delay, discrimination in the sale, rental and financing of housing of all sizes; and for a bill patterned after the compromise adopted by the House in August 1966. The President revealed his choice of the preferred alternative in a Special Message to the Congress on Equal Justice delivered February 15, 1967. The legislation he proposed was drawn to go into effect in progressive steps, with the prohibition against discrimination in the sale or rental of housing to apply immediately to housing already covered by Executive Order 11063; the following year, 1968, to dwellings sold or rented by someone other than their occupant and to dwellings for five or more families; and in 1969 the prohibition was to apply to all housing.

    The bill outlawed discriminatory practices in financing housing and in providing real estate brokers' services; and prohibited "block-busting." It directed the Secretary of HUD to seek to conciliate violations, but authorized the Secretary, after a hearing, to issue cease-and-desist orders. The Attorney General was authorized to bring pattern or practice suits. No action was taken by the First Session of the Ninetieth Congress on the legislation. At the opening of the Second Session, the President in a Message on Civil Rights again urged passage of the legislation he had sent up the prior year. He said, perhaps a little sadly, "A fair housing law is not a cure-all for the Nation's urban problems. But ending discrimination in the sale or rental of housing is essential for social justice and social progress." In fact, however, there was ambivalence in the Administration about the feasibility of passing the Fair Housing title.

    Our concern was that Congress would reject it, as did the prior Congress, and with it would go other titles strengthening the criminal laws against interference with civil rights and guaranteeing fair, nondiscriminatory selection of juries. I credit two great men, Clarence Mitchell and Joe Rauh of the Leadership Conference on Civil Rights, with keeping the Congress's feet to the fire and preventing the Administration from giving up on the Fair Housing title. The problem was in the Senate where we had to have the votes of the Republicans to achieve cloture, since the Southern Democrats would filibuster and, of course, vote no on cutting off debate. The Minority Leader of the Republicans was Senator Everett Dirksen of Illinois who in 1965 had teamed with Majority Leader Mike Mansfield to bring about passage of the Voting Rights Act. To get the Republicans, we had to have Dirksen. And Dirksen, until the last moment, withheld support for the Fair Housing title in the belief that it could not pass. However, at the eleventh hour, Senator Dirksen changed his mind. Here's the way I described the dramatic events in an oral history interview by the Archives 10 months after the Senate acted: "Dirksen played a lesser role in the achievement of the legislation. The Mondale-Javits-Percy-Brooke effort in the end forced Dirksen's hand. While it may have seemed that Senator Dirksen rewrote the Fair Housing statute, it was much less than in 1965 with respect to the Voting Rights Act. We did in the last day have a meeting in Senator Dirksen's office, and there was a crush redrafting of portions of the bill, which was almost a mirror of the 1965 effort. I again put myself in the position of being the scribe and was able to maintain some coherency to the legislation in the midst of great confusion. They called for the Attorney General and me to come up to Dirksen's office literally two or three hours before the bill was due on the floor.

    There had been a lot of prior discussions. In those two or three hours, there was really a wild concatenation of discussions about changes in the Fair Housing bill. I kept the existing draft in front of me and methodically and ploddingly kept moving through it, sort of being unwilling to hear the conflicting suggestions so that the bill wouldn't just entirely blow into smithereens. In the end I shoved the draft into Senator Dirksen's hand as he went running out on the floor, and that was the bill that was then introduced by him and on which cloture was ultimately voted." Shortly thereafter, on March 11, 1968, the Senate passed by an overwhelming vote, 71 to 20, the Civil Rights Act of 1968, including a Fair Housing title somewhat restricted from that recommended by Johnson. It prohibited discrimination in the sale or rental of housing as follows: Upon enactment, government-owned housing and housing financed by the government since November 1962 -- housing covered by Executive Order 11063, estimated to be about 1,000,000 units; After December 3l, 1968, other housing except for single family houses sold or rented by a private owner who owns no more than three houses, and rooms or units in dwellings of four or fewer family units where the owner occupies one of the units -- adding coverage of about 43,000,000 units; After December 3l, 1969, coverage would extend to single-family houses sold or rented with use of a broker or where there has been discriminatory advertising.

    • "[T]his bill has had a long and stormy trip."
    • "We did not get it in 1966."
    • "We pleaded for it again in 1967. But the Congress took no action that year."
    • "We asked for it again this year."
    • "And now -- at long last this afternoon -- its day has come."
    • "I do not exaggerate when I say that the proudest moments of my Presidency have been times such as this when I have signed into law the promises of a century."

    To achieve this objective, we set our priorities on: "[E]limination of housing discrimination in metropolitan areas having large concentrations of Negro residents; "Establishment of case law under Title VIII and § 1982 which can guide realtors, home owners, and financing agencies in complying with the law, can assist HUD in conciliating, and can serve as a foundation for litigation; and "Supplementation and support of the enforcement programs of other agencies of the government -- particularly HUD and Department of Defense -- that have fair housing responsibilities, and the bringing of prompt civil actions on cases referred by HUD for possible litigation, where we determine there has been a pattern or practice of discrimination." Division attorneys and interns, in twos, threes and fours, fanned out across the nation in July 1968 (l4 metropolitan areas) and again in January 1969 (10 metro areas) to conduct "surveys" aimed at educating law enforcement officials, including U.S. Attorneys and HUD personnel, military base housing officers, community and fair housing leaders, and citizens, including potential complainants, about the applicable provisions of the new statute and developing leads on specific complaints that could be the subject of § 813 pattern or practice suits by the Attorney General. There was a sense of urgency. The instructions provided: "Once good leads are uncovered, the survey team will be expected to drop the general survey and begin development of evidence looking toward development of Section 813 litigation."

    The Division Filed five civil actions to enjoin discrimination, two aimed at opening to Negroes, respectively, three all-white private subdivisions in Baton Rouge, Louisiana, and an all-white cooperative apartment building in the District of Columbia, and three seeking to end segregated assignment of tenants by municipal housing authorities, in Little Rock, Albany, Georgia, and Gadsden, Alabama;
    We defended the HUD Secretary in a seventh case which sought to enjoin funding of construction of segregated public housing as a violation of Title VI of the Civil Rights Act of 1964; and
    We secured one indictment and one information charging criminal interference with Blacks seeking housing in all-white neighborhoods.

    One of the defendants had said that to do so would "bankrupt" his company. We filed the case with full knowledge that there was a serious issue whether the housing fell within § 803(a)(1)(B) and (C) which limited coverage to dwellings provided with the aid of federal loans or federally insured loans under agreements entered after November 20, 1962. The FHA and the VA had, in response to the developers' applications, preapproved two of the subdivisions, thereby allowing the homes to be advertised as eligible for FHA and VA financing and making them attractive to a broader spectrum of potential buyers. Also, in response to applications and payment of $35 to $45 fees by the developers, the FHA and VA had made on-site inspections and approved for financing individual homes which had then been purchased by buyers with such financing. We advised the Attorney General that the text of the subsections was "tailored to the situation where the discriminating party itself secured aid or other assistance from the Federal Government or obtained a loan guaranteed by the credit of the U.S." I went on to say, perhaps over-optimistically, "However, I believe there is enough here to bring these three developers within the coverage of the statute."

    Attorney General Clark approved our recommendation, and on July 22, 1968, we filed the action in the Eastern District of Louisiana. It was assigned to Judge Gordon West who, as anticipated, dismissed the complaint nine months later on grounds that the subdivisions were not covered by the statute. Did we make the right decision? Was it worth the risk of loss at the District Court level to get a case on file? On January 17, 1969, we filed United States v. Ontario Owners, Inc., the first suit anywhere based on the expanded coverage of Title VIII and the Division's first housing suit in the District of Columbia. The case involved the all-white Ontario Apartments, a 110-unit cooperative, located at 2853 Ontario Road Northwest. Its charter and bylaws required approval of any would-be buyer and, according to the complaint, approvals were uniformly denied to Blacks. The justification memorandum is interesting in many respects, one of them being its analysis of the proof of a pattern and practice of discrimination: "While there is only one post-Act refusal, however, there is ample proof of the existence of a prohibited pattern. The stated intention of the defendant's Acting President to keep the Ontario white, together with the existing statistical racial pattern, make it apparent that the rejection of Mrs. Williams' application is not a mere 'isolated' incident but part of a general policy. In addition, proof of discrimination prior to January 1, 1969, is also relevant to show the existence of a pattern and practice, especially where, as here, the conduct was unlawful under 42 U.S.C. 1982 and the D.C. Police Regulations." In addition to litigation, the Division made substantial efforts to enlist other federal departments and agencies with responsibilities relating to housing in efforts to secure compliance with the Fair Housing Act. We worked directly with Secretary of Defense McNamara to educate personnel on securing their rights under the new law and to make nondis-crimination a condition to inclusion of off-base rental housing on DOD's "approved" list.

    We also asked DOD to alert us to the reasons given by owners and managers who refused to be listed with hopes to use this as proof in suits for noncompliance with Title VIII. On August l5, 1968, I met with HUD Secretary Weaver to explore possibilities for using termination of insurance and other administrative sanctions by the bank regulatory agencies, such as the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Commission, as a means of aiding in the enforcement of the Fair Housing statute. My memorandum to the Attorney General reported general agreement that regulations by these agencies respecting the practices of their member institutions would provide a useful means for enforcement of Title VIII's nondiscrimination-in-lending provisions. I noted that those at the meeting felt there was ample authority in § 808(d) for issuance of regulations making nondiscrimination a condition of loans for purchase, construction or improvement of housing. I identified as a "more troublesome question" the issue whether the regulations should prohibit insured financial institutions from doing business with builders or developers who operate in violation of Title VIII, saying that such a sanction had elements of "over kill" and would involve the bank regulatory agencies in the business affairs of persons not normally subject to the regulations. Secretary Weaver asked for the development of a legal memorandum and a set of procedures before he would approach the regulatory agencies.

    The Division committed itself to work with HUD. Attorney General Clark initialed the memorandum signifying "O.K." I have a feeling it was a first step on a long road to eliminate discrimination in lending practices, a goal which is yet to be achieved. A myriad of other issues relating to fair housing enforcement, legal and administrative, confronted us. Here are just a few. Right after the Fair Housing Act was signed, there was a question as to which division, Civil or Civil Rights, should defend HUD against a class action by residents of Bogalusa, Louisiana, seeking to enjoin, as violative of Title VI of the Civil Rights Act of 1964, a grant of federal funds for construction of 98 new low-rent public housing units on 19 sites, each of which was allegedly located in "all-Negro or virtually all-Negro" neighborhoods. Citing 28 C.F.R. § 0.50(a) which assigned to the Civil Rights Division "Enforcement of all Federal Statutes affecting civil rights," I recommended that this suit and "any future suits involving interpretation and application of Title VI should be assigned to the * * * Division, regardless of whether we are affirmatively seeking compliance with Title VI, or defending the actions of another Federal agency as being consistent with it." After securing the concurrence of the Civil Division, the Attorney General agreed. Thus, one of our 1968-69 cases became Hicks v. Weaver.

    I wonder what the allocation of responsibility is today for defending the United States against charges of funding discriminatory activities? Looking toward the expansion of coverage on January 1, 1969, we addressed the question whether we should search out, as quickly as possible, post-January 1 acts of housing discrimination and limit our cases to those acts, or whether we should work up possibilities for lawsuits based on complaints already at hand. Grady Norris, who was directing the emerging enforcement program, colorfully urged boldness, saying: "If * * * the Division is willing to just this once fly by the seat of its pants on the facts, I think our legal basis for bring pattern or practice cases based on pre-1969 discrimination is tenable." My memorandum to the Attorney General dated a few days later indicates we pursued the more conservative course: "It was decided that attempts to bring pattern or practice litigation based on pre-coverage conduct would risk adverse decisions which would endanger any possibility of encouraging widespread voluntary compliance through selective litigation." We also considered whether by virtue of Title VIII or 42 U.S.C. § 1982 the Division could sue to enjoin housing discrimination by persons with no dealings or dwellings covered by §§ 803-06 and whether we had standing to sue to enjoin intimidation of persons seeking to exercise equal rights to housing, whether covered or not. As you can see, enactment of the Civil Rights Act of 1968 and its Title VIII mandating fair housing kicked off an exciting and challenging nine months.

    Stephen J. Pollak

    1. These remarks are dedicated to the memory of U.S. District Judge Harold H. Greene who served with the highest distinction as Chief of the Appeals and Research Section of the Civil Rights Division from its inception through his nomination in 1965 to the Court of General Sessions of the District of Columbia. Judge Greene was a leader in building the Division and its standards of excellence and, among his many outstanding contributions, were the conception and drafting of major parts of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. 2. 1961 U.S. Commission on Civil Rights Report on Housing, p. 1. 3. 318 F. Supp. 669 (W.D.N.Y. 1970).