The forty-year "first step": The fair housing act as an incomplete tool for suburban integration

Columbia Law Review

Volumn 107, Issue 7, 2007, Pages 1617-1654

  Larkin, Brian Patrick ^a  

^a NONE

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EID: 37349106115     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (271)

1. See Wash. Metro. Area Transit Auth., Metrorail System Map, at http://www.wmata.com/metrorail/systemmap.cfm (last visited Oct. 2, 2007) (on file with the Columbia Law Review).
2. See id.
3. 42 U.S.C §§ 3601-3619 (2000).
4. See Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (stating Fair Housing Act's goal of creating "truly integrated and balanced living patterns" (quoting 114 Cong. Rec. 2706, 3422 (1968))); Southend Neighborhood Improvement Ass'n v. County of St. Clair, 743 F.2d 1207, 1210 (7th Cir. 1984) ("The [Fair Housing] Act is concerned with ending racially segregated housing.").
5. See 42 U.S.C. § 3604 (declaring discriminatory practices associated with housing transactions unlawful, such as refusing "to sell or rent after the making of a bona fide offer, or [refusing] to negotiate . . . or otherwise mak[ing] unavailable or deny[ing] a dwelling to any person because of race").
6. See Xavier de Souza Briggs, More Pluribus, Less Unum? The Changing Geography of Race and Opportunity, in The Geography of Opportunity: Race and Housing Choice in Metropolitan America 17, 24-26 (Xavier de Souza Briggs ed., 2005) (discussing statistical ethnic composition of suburban metropolitan neighborhoods);
7. see also Brad Heath, Oralandar Brand-Williams & Shawn D. Lewis, Wealth Doesn't Stop Race Divide; Choice and Mistrust Keep Blacks, Whites Apart, Detroit News, Nov. 3, 2002, at 1A ("Nationwide, it's whites and blacks with the most money who tend to be the most segregated."); infra note 100.
8. One such practice is the steering of prospective homeowners into racially distinct communities by real estate agents. See infra Part III.
9. "Middle-class" is an admittedly amorphous term. It is utilized in this Note to distinguish a segment of the African American population that would be more likely than less affluent counterparts to enter the private housing market. It is not defined as a statistically distinct category. See Bart Landry, The New Black Middle-Class 5-11 (1987) (determining definition of black middle class among multiple sociological theories);
10. Mary Pattillo, Black Middle-Class Neighborhoods, 31 Ann. Rev. Soc. 305, 307 (2005) [hereinafter Pattillo, Black Neighborhoods] (describing various scholarly definitions of "middle-class").
11. This Note focuses on integration from the perspective of African Americans, whose struggles provided the initial impetus for fair housing legislation. See Abraham Bell & Gideon Parchomovsky, The Integration Game, 100 Colum. L. Rev. 1965, 1969 n.14 (2000) ("[T] here is a wide agreement among scholars that the problem of housing segregation is especially acute in the case of African-Americans."). The integration of various other racial and ethnic groups, the Hispanic population in particular, is a growing matter that is beyond the scope of this work. However, some assertions within this Note may generally apply to issues of housing segregation involving a "dominant majority and subordinate minority racial grouping." Id. at 1970 n.14.
12. For a discussion of metropolitan housing discrimination among Hispanic populations, see generally Margery Austin Turner et al., U.S. Dep't of Hous. & Urban Dev., Discrimination in Metropolitan Housing Markets: National Results from Phase I of the Housing Discrimination Study 2000 (2002) [hereinafter HDS2000 Phase I];
13. for results concerning Asian and Pacific Islander populations, see generally Margery Austin Turner et al., U.S. Dep't of Hous. & Urban Dev., Discrimination in Metropolitan Housing Markets: National Results from Phase II - Asians and Pacific Islanders, HDS 2000 (2002);
14. and for results concerning Native American populations, see generally Margery Austin Turner et al., U.S. Dep't of Hous. & Urban Dev., Discrimination in Metropolitan Housing Markets: National Results from Phase III - Native Americans, HDS 2000 (2002).
15. See Sheryll D. Cashin, The Failures of Integration: How Race and Class Are Undermining the American Dream 3 (2004) [hereinafter Cashin, Failures] ("Housing was the last plank in the civil rights revolution, and it is the realm in which we have experienced the fewest integration gains."); Robert G. Schwemm, Housing Discrimination Law and Litigation § 2:2, at 2-6 (2006) ("Housing has proved to be 'the last major frontier in civil rights' and the area most resistant to change."
16. (quoting Charles M. Lamb, Equal Housing Opportunity, in Implementation of Civil Rights Policy 148, 148 (Charles S. Bullock & Charles M. Lamb eds., 1984))).
17. See 114 Cong. Rec. 3421 (1968) (statement of Sen. Mondale) (noting importance of bill "requiring all who engage in housing transactions not to discriminate").
18. For a description of the historical development of the ghetto, see Douglas S. Massey & Nancy A. Denton, American Apartheid 17-59 (1993);
19. David M. Cutler et al., The Rise and Decline of the American Ghetto, 107 J. Pol. Econ. 455, 462-70 (1999). Segregation through urban ghettos has not always described the makeup of American cities. At the turn of the twentieth century, residential integration among races was a much more common occurrence in urban environments. See Massey & Denton, supra, at 17 (describing period of less segregation before 1900);
20. Richard H. Sander, Comment, Individual Rights and Demographic Realities: The Problem of Fair Housing, 82 Nw. U. L. Rev. 874, 876-77 (1988) (noting that most African Americans did not live in predominately black districts at turn of century). One major driver for the growth of housing segregation and the creation of the ghetto was the federal government. During the period of rapid suburban development following World War II, the Federal Housing Administration provided mortgage financing in a racially discriminatory manner. See Massey & Denton, supra, at 52-55 (noting official rating system which favored neighborhoods occupied by those of "same social and racial classes");
21. Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. Pa. L. Rev. 1285, 1308-11 (1995) (reviewing history of federal government's discriminatory lending practices);
22. Adam Weiss, Note, Grutter, Community, and Democracy: The Case for Race-Conscious Remedies in Residential Segregation Suits, 107 Colum. L. Rev. 1195, 1200-02 (2007) (same). Through the practice known as redlining, the government avoided investments in neighborhoods thought to be risky due to the presence of African Americans. Schill & Wachter, supra, at 1310-11.
23. See Landry, supra note 8, at 178 ("Part of the American dream is to own one's own home, in a safe neighborhood and compatible with one's perceived status.").
24. See 114 Cong. Rec. 2276 (statement of Sen. Mondale) ("[E]xpanding job opportunities are going to be in or near suburbia rather than in the core cities. Since 80 percent of the nonwhite population . . . lives in central cities, the handicaps of nonwhite jobseekers are apparent.").
25. See id. at 2278 ("[T] here is a substantial market of financially able Negroes prevented from buying housing of their choice because of deeply entrenched patterns of discrimination in the sale and rental of housing in our country."); Landry, supra note 8, at 180-81 (identifying "racial barriers" as impediment of black suburban growth).
26. 114 Cong. Rec. 2709 (statement of Sen. Kennedy); see also id. at 3422 (statement of Sen. Mondale) (recalling story of black naval officer who could not purchase housing of his choice).
27. Id. at 2274 (statement of Sen. Mondale).
28. See id. at 2281 ("The real evil in the ghetto effects is the rejection and humiliation of human beings." (quoting Fair Housing Act of 1967: Hearings Before the Subcomm. on Housing and Urban Affairs of the Comm. on Banking and Currency, 90th Cong. 179 (1967) (statement of Algernon Black, President, American Civil Liberties Union)).
29. See Brown v. Bd. of Educ, 347 U.S. 483, 494 (1954) ("To separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."). But cf. Roy L. Brooks, Analyzing Black Self-Esteem in the Post-Brown Era, 4 Temp. Pol. & Civ. Rts. L. Rev. 215, 220 (1995) ("[T]he removal of racial segregation does litde to improve an already healthy black self-esteem and, in fact, runs the risk of weakening systems within the black community - such as black schools - that have historically supported black self-esteem." (footnote omitted)). Over fifty years after the Brown ruling, preliminary evidence is suggesting that school desegregation policy has had litde effect on these feelings of inferiority among black children.
30. See Film Documentary: A Girl Like Me (Kiri Davis, Director, Reel Works Teen Filmmaking, 2006), available at http://www.reelworks.org/watch2.php?classs= Spring%202005&title=A%20Girl%20Like%20Me&filmer=Kiri%20Davis&fName= a_girl_like_me.flv (recreating Dr. Kenneth Clark's doll experiment used as evidence in Brown); cf. Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education 259-62 (2004) (describing present disparities in public education).
31. See 114 Cong. Rec. 3422 (statement of Sen. Mondale) (declaring inability to provide for family as threat to one's humanity).
32. Id. at 3421; see also Jean Eberhart Dubofsky, Fair Housing: A Legislative History and a Perspective, 8 Washburn L.J. 149, 153 (1969) (describing psychological benefit of being able to leave ghetto). Dubofsky served as legislative assistant to Senator Walter Mondale, cosponsor of the Fair Housing Act. Id. at 149.
33. Massey & Denton, supra note 12, at 58.
34. Exec. Order No. 11,365, 3 C.F.R. 674 (Comp. 1967).
35. Nat'l Advisory Comm'n on Civil Disorders, Report of the Commission on Civil Disorders vi (1968) [hereinafter Kerner Report].
36. Id. at 91.
37. Id. at 92.
38. Id.
39. Id. at 91-93. Dr. Martin Luther King, Jr., aptly described the effect of this frustration when he stated that: "A riot is at bottom the language of the unheard." Martin Luther King, Jr., Where Do We Go from Here: Chaos or Community? 112 (1967).
40. Kerner Report, supra note 24, at 92-93.
41. Id. at 225.
42. Id. at 230.
43. See id. at 222-25 (describing preferred policy option of integrating financially empowered African Americans).
44. Id. at 263.
45. See id. at 225 (stating that "[a] national fair housing law is essential to begin . . . movement" out of the ghetto).
46. See Dubofsky, supra note 21, at 158 (documenting Kerner Report's release date and its influence on "fourth attempt at cloture" of Senate debate).
47. See Stokely Carmichael & Charles V. Hamilton, Black Power: The Politics of Liberation in America 23 (1967) ("The colonial power structure clamped a boot of oppression on the neck of the black people and then, ironically, said 'they are not ready for freedom.' Left solely to the good will of the oppressor, the oppressed would never be ready."(emphasis added)).
48. 114 Cong. Rec. 3422 (1968) (statement of Sen. Mondale); see also Dubofsky, supra note 21, at 154 (describing fair housing law's potential effect on black militants and white households).
49. 114 Cong. Rec. 2274-75 (statement of Sen. Mondale); see also id. at 3425 (statement of Sen. Javits) (arguing inaction would justify militancy). As Senator Mondale stated during his argument for fair housing legislation: Our friends in the ghetto who believe in due process - thankfully, they are by far in the majority - have not abandoned their hope that lawful processes can adjust these outrageous wrongs. But we have provided little by way of example from which they can argue. We have not shown in a substantial way that white America in fact is a decent white America, that those who argue for moderation and lawful processes are correct in that strategy. Id. at 2275 (statement of Sen. Mondale). There was widespread concern that any action by the government in response to urban rioting would be a reward to the rioters. See id. at 2708 (statement of Sen. Javits); Kerner Report, supra note 24, at 231. While the Commission's recommendations, and subsequent fair housing legislation, were definitely attempts to quell violence, they have been rationalized as necessary actions so as not to punish the entire black community - especially the seemingly nonviolent middle class - for the actions of a few. See 114 Cong. Rec. 2708 (statement of Sen. Javits).
50. See Massey " Denton, supra note 12, at 193; Dubofsky, supra note 21, at 158.
51. See 114 Cong. Rec. 5992 (recording 71 Yeas and 20 Nays for civil rights bill).
52. See Massey & Denton, supra note 12, at 194; Dubofsky, supra note 21, at 160.
53. Eldridge Cleaver, Minister of Information for the Black Panther Party, responded to Martin Luther King, Jr.'s assassination with the following statement: That white America could produce the assassin of Dr. Martin Luther King is looked upon by black people - and not just those identified as black militants - as a final repudiation by white America of any hope of reconciliation, of any hope of change by peaceful and nonviolent means. So that it becomes clear that the only way for black people in this country to get the things that they want - and the things that they have a right to and that they deserve - is to meet fire with fire. Eldridge Cleaver, Post-Prison Writings and Speeches 74 (Robert Scheer ed., 1969).
54. See Dubofsky, supra note 21, at 160 (stating that assassination "dislodged the Civil Rights Bill of 1968 from the Rules Committee").
55. Massey & Denton, supra note 12, at 194; Dubofsky, supra note 21; see also Richard L. Lyons, Measure Providing for Open Housing Goes to President, Wash. Post, Apr. 11, 1968, at A1 (explaining passage of Fair Housing Act).
56. Massey & Denton, supra note 12, at 194; Dubofsky, supra note 21, at 160.
57. 42 U.S.C. § 3604 (2000). The Act made three major impacts on the housing marketplace: a) it prohibited sellers and renters from discriminating in transactions; b) it forbade intermediary actors such as real estate agents and mortgage brokers from discriminating in their facilitation of transactions; and c) it commanded the federal government to affirmatively promote fair housing. See id. §§ 3601-3616; Bell & Parchomovsky, supra note 9, at 1979 (discussing three effects of Act);
58. John O. Calmore, Race/ism Lost and Found: The Fair Housing Act at Thirty, 52 U. Miami L. Rev. 1067, 1070 (1998) [hereinafter Calmore, Race/ism] ("[Broad legislative intent] suggests that fair housing is not only a remedy for individual claimants, but also that it seeks to eliminate discrimination from the housing market . . . ."); Sander, supra note 12, at 880 (discussing Act as "three-pronged attack upon housing discrimination"). Bell and Parchomovsky also note that from an economic perspective, the Fair Housing Act "passed the cost of maintaining segregation on to white property owners, forcing them to exclude minorities by fencing themselves in, rather than fencing minorities out." Bell and Parchomovsky, supra note 9, at 1981;
59. see also Cashin, Failures, supra note 10, at 185-201 (describing burden of exorbitant housing costs on majority white suburban communities). The costs of segregation, after the passage of the Act, have not been limited to white property owners. See infra Part II.B.4.
60. 42 U.S.C. §§ 3612-3613. The Attorney General may also commence civil actions when diere is "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by [the Act]." Id. § 3614. In 1988, Congress passed the Fair Housing Amendments Act, which strengthened the enforcement ability of the Act and expanded the scope of its protection. Pub. L. No. 100-430, 102 Stat. 1619-39 (codified as amended at 42 U.S.C. §§ 3601-3619, 3631). The Fair Housing Act was originally passed with limitations on the ability of the Department of Housing and Urban Development (HUD) to remedy a discrimination complaint. 42 U.S.C. § 3610(a) (1982) (amended 1988); see also Schwemm, supra note 10, § 24:2, at 24-3 to -4 (describing limited administrative enforcement under original Act). The Fair Housing Amendments Act strengthened HUD's remedial power, and loosened restrictions on the statute of limitations and damages for discrimination claims. Fair Housing Amendments Act § 8; see also Schwemm, supra note 10, §23:1, at 23-2 (explaining increased enforcement mechanisms of amendments).
61. 42 U.S.C. § 3608(e)(5).
62. See id. §3601 ("It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.").
63. 114 Cong. Rec. 2706 (1968) (statement of Sen. Javits); see also Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting Sen. Javits).
64. See john a. powell, Living and Learning: Linking Housing and Education, 80 Minn. L. Rev. 749, 786 (1996) [hereinafter powell, Living] ("[I]t is true that the middle class is likely to see the benefits of a more integrated society first . . . .").
65. 114 Cong. Rec. 2279 (statement of Sen. Brooke).
66. Id. at 2525.
67. See id. at 2282 (drawing from Kerner Commission experience to promote need for fair housing legislation); see also supra notes 30-34 and accompanying text. Although the Kerner Report had not been released until after most of the senatorial debate had ended, Senator Brooke was well aware of the recommendations, as they motivated his push for legislation: I will call [fair housing] essential legislation. I do not want to say what our Commission on Civil Disorders will report. We hope to report on or before March 1 of this year. We have been studying this very problem - among other problems, to be sure. The problem of housing certainly has been one of the great priorities in that Commission in finding the causes for the explosions of 1966 and 1967, so that we can prevent them in the future. 114 Cong. Rec. 2283 (statement of Sen. Brooke).
68. See id. at 2279 ("Fair housing does not promise to end the ghetto . . . but it will make it possible for those who have the resources to escape . . . .").
69. John O. Calmore noted this goal when arguing that ghetto poor moving to subvirban opportunities would not yield ideal integrated patterns. Rather, such patterns would arise from movement by African Americans considered proper agents for integration - those who are "affluent, have the proper social profile and credentials, and are perceived as great neighbors, not threats to the structural strength of white neighborhoods." Calmore, Race/ism, supra note 46, at 1103. Calmore called this trend the "Huxtable Family Syndrome," named after the popular affluent black integrated family of The Cosby Show. Id.;
70. see also John O. Calmore, Random Notes of an Integration Warrior, 81 Minn. L. Rev. 1441, 1443-48 (1997) (introducing "Huxtable Family Syndrome").
71. See 114 Cong. Rec. 2280 (statement of Sen. Brooke) ("We cannot immediately recreate adequate services in the central city, but we must move toward that goal."); id. at 2708 (statement of Sen. Hart) (arguing that "building up the ghetto" is only partial solution relative to fair housing). For a description of the Kerner Commission's recommendations regarding empowering the ghetto, see supra notes 30-34 and accompanying text.
72. See 114 Cong. Rec. 2708 (statement of Sen. Hart) ("[T]he proposition that nobody has to run a litmus test of religion or race when he goes out to buy a home . . . is what this amendment is all about.").
73. Id. at. 3422 (statement of Sen. Mondale); see also Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211 (1972) (quoting Sen. Mondale); Schwemm, supra note 10, § 2:3, at 2-7 (same).
74. See 114 Cong. Rec. 3422 (statement of Sen. Mondale) ("[F]air housing by itself will not move a single Negro into the suburbs - the laws of economics will determine that"). For a discussion of the desired percentage of 'African Americans within an integrated majority white setting, see infra notes 96-97 and accompanying text.
75. For a discussion of how the fear of ghetto expansion fuels resegregation, see infra Part II.A.
76. 114 Cong. Rec. 2275-76 (statement of Sen. Mondale).
77. See Sander, supra note 12, at 919-21 (arguing that one motivating factor behind Act was belief that removing discrimination was essential for creating economic and political environment in which integration could develop).
78. 114 Cong. Rec. 3422 (statement of Sen. Mondale).
79. Id. (emphasis added); see also Leonard S. Rubinowitz & Elizabeth Trosman, Affirmative Action and the American Dream: Implementing Fair Housing Policies in Federal Homeownership Programs, 74 Nw. U. L. Rev. 491, 538 n.178 (1979) (interpreting Senator Mondale as seeing integration as expected result, but not direct goal of Fair Housing Act).
80. 114 Cong. Rec. 6000 (statement of Sen. Mondale).
81. Id. at 6001 (statement of Sen. Brooke). But see Ankur J. Goel, Maintaining Integration Against Minority Interests: An Anti-Subjugation Theory for Equality in Housing, 22 Urb. Law. 369, 385 (1990) (noting Fair Housing Act drafters assumed oudawing discrimination would result in integration).
82. See Sander, supra note 12, at 920 n.364 (acknowledging political sentiments that fair housing legislation could not end segregation alone); supra notes 31-34 and accompanying text. Even the more moderate civil rights leaders of the 1960s considered the Act to be only the beginning of a series of requisite progressive action. Ralph Abernathy, successor to Dr. Martin Luther King, Jr., as head of the Southern Christian Leadership Conference, stated that the law was "merely a step in the right direction." Lyons, supra note 44. Urban League director Whitney Young Jr. called the legislation "only one step toward a national resurgency of decency." Id.
83. 42 U.S.C. § 3601 (2000); see also id. § 3602. This statutory vagueness is not accidental. See Christopher Bonastia, Knocking on the Door 2 (2006) (describing public concern at federal government intervening in private housing market).
84. See Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 210 (1972) ("The legislative history of the Act is not too helpful."); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 147 & n.29 (3d Cir. 1977) (noting lack of committee reports); Laufman v. Oakley Bldg. & Loan Co., 408 F. Supp. 489, 496 (S.D. Ohio 1976) ("[A] realistic examination of the concerns that led to the adoption of this legislation proves a better guide to congressional intent than the dusty volumes of Sutherland on Statutory Interpretation.").
85. Trafficante, 409 U.S. at 209-12 (applying generous construction of standing to Fair Housing Act claims).
86. The District Court of Maryland, however, has recently defined fair housing, within the meaning of the Act, as "the provision of housing free from discrimination." Thompson v. HUD, 348 F. Supp. 2d 398, 456 (D. Md. 2005).
87. See, e.g., Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 112-15 (1979) (noting that "[w]hile members of minority groups were damaged the most from discrimination in housing practices, the proponents of the legislation emphasized that those who were not the direct objects of discrimination had an interest in ensuring fair housing, as they too suffered"); Trafficante, 409 U.S. at 210. But see Rubinowitz & Trosman, supra note 65, at 537-49 (distinguishing Court's view of integration as primary goal with legislative intent of integration as secondary outcome); Michael R. Tein, Comment, The Devaluation of Nonwhite Community in Remedies for Subsidized Housing Discrimination, 140 U. Pa. L. Rev. 1463, 1467 (1992) (doubting integration as intended goal of FHA).
88. Schwemm, supra note 10, § 7:3 & n.2, at 7-5 to -6; see also Park View Heights Corp. v. City of Black Jack, 605 F.2d 1033, 1036 (8th Cir. 1979) (endorsing Senator Mondale's understanding of Fair Housing Act's integrative purpose as "[t]he primary objective"); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1289 (7th Cir. 1977) ("Conduct that has the necessary and foreseeable consequence of perpetuating segregation can be as deleterious as purposefully discriminatory conduct in frustrating the national commitment [to integration]."); Barrick Realty, Inc. v. City of Gary, Ind., 491 F.2d 161, 164 (7th Cir. 1974) ("[T]he right to open housing means more than the right to move from an old ghetto to a new ghetto. Rather, the goal of our national housing policy is [integration]."); Otero v. N.Y. City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973) ("Action must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat").
89. See supra Part I.B.3.
90. Thompson, 348 F. Supp. 2d at 456 (quoting 114 Cong. Rec. 9563 (1968) (statement of Rep. Celler)).
91. See United States v. Starrett City Assocs., 840 F.2d 1096, 1101 (2d Cir. 1988) (stating congressional intent of antidiscrimination yielding integration); Thompson, 348 F. Supp. 2d at 456 (emphasizing legislative goal of reducing isolation of ghettos); Burney v. Hous. Auth., 551 F. Supp. 746, 769 (W.D. Pa. 1982) ("Congress believed that . . . abolition of racially discriminatory housing practices ultimately would result in residential integration.").
92. See W. Dennis Keating, The Suburban Racial Dilemma 196-97 (1994) (noting disagreement over purpose of Act); Bell & Parchomovsky, supra note 9, at 1979 n.47 (same);
93. see also Alexander Polikoff, Sustainable Integration or Inevitable Resegregation: The Troubling Questions, in Housing Desegregation and Federal Policy 43, 47-50 (John M. Goering ed., 1986) (examining whether Fair Housing Act's intent was to solely eliminate discrimination or actively promote integration).
94. Cases have arisen in which housing opportunities for minorities have been limited in attempts to maintain stable integration. See Starrett City, 840 F.2d at 1098 (discussing housing development's use of racial quotas to help retain white tenants); Otero, 484 F.2d at 1124 (noting public housing authority's practice of rejecting minority applicants in favor of white applicants with lower priority in order to prevent "ghettoization").
95. See Starrett City, 840 F.2d at 1099 (noting defendant's use of residential patterns to rationalize use of racial quotas).
96. See id. at 1101 ("Congress saw the antidiscrimination policy as the means to effect the antisegregation-integration policy."); Burney, 551 F. Supp. at 769 ("Congress perceived antisegregation and antidiscrimination to be complementary."); Schwemm, supra note 10, § 11 A:5, at 11A-20 to -22 (arguing that 1968 Congress would never have intended to limit housing choice for sake of integration); Sander, supra note 12, at 920-21 ("There is no evidence that congressmen who might have foreseen the resilience of segregation intended integration to override free housing choice.").
97. See infra notes 99-101 and accompanying text.
98. See Thompson v. HUD, 348 F. Supp. 2d 398, 450 (D. Md. 2005) (noting testimony from Howard Law School Dean and former Mayor of Baltimore Kurt Schmoke that economics, not race, should be only limit on housing choice); Richard A. Posner, Economic Analysis of Law 15-16 (6th ed. 2003) (discussing relationship between efficiency and voluntary choice);
99. Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. Chi. L. Rev. 1129, 1145 (1986) (identifying circumstances when government must use regulation to protect private choice); Weiss, supra note 12, at 1200 (distinguishing buyer preference from seller preference).
100. Not all sellers in the private housing market are covered by the antidiscriminatory legislation. The "Mrs. Murphy" exception provides that owner-occupied housing with fewer than four units may be sold in a discriminatory manner if not publicly advertised. See 42 U.S.C. §3603(b)(1) (2000).
101. William J. Levitt, one of the nation's largest homebuilders in the 1960s, testified to Congress that in a discriminatory marketplace, sellers who choose not to discriminate are hurt financially by those who choose such practice, making a fair housing law essential to a healthy marketplace. 114 Cong. Rec. 3421 (1968) (statement of Sen. Mondale) (recounting testimony of William J. Levitt).
102. For a discussion of the tension between private preference and legislative intervention, see generally Sunstein, supra note 83.
103. 114 Cong. Rec. 3422 (statement of Sen. Mondale); see also supra Part I.B.2.
104. See Bell & Parchomovsky, supra note 9, at 1966 (stating that "one's neighborhood largely determines one's achievements"); John O. Calmore, Spatial Equality and the Kerner Commission Report: A Back-to-the-Future Essay, 71 N.C. L. Rev. 1487, 1489-90 (1993) [hereinafter Calmore, Kerner Commission] (stating that "'[h]ousing . . . is much more than shelter: it provides social status, access to jobs, education and other services, a framework for the conduct of household work, and a way of structuring economic, social, and political relationships'" (quoting Critical Perspectives on Housing xviii (Rachel G. Bratt et al. eds., 1986)));
105. John a. powell, Opportunity-Based Housing, 12 J. Affordable Housing & Community Dev. L. 188, 195 (2003) (arguing that housing unlocks many other desired opportunities, "including self-sustaining employment, a high level of educational attainment, good health, and the capacity to engage in political and civic processes").
106. See Massey & Denton, supra note 12, at 50 (discussing surveys and studies finding discrimination in real estate industry).
107. See Cuder et al., supra note 12, at 496 ("Over time, formal barriers to integration were eliminated, but discriminatory white tastes remained. White [ ] [families] still prefer to live with other white[ ] [families] more than black[ ] [families] prefer to live in white areas."); Weiss, supra note 12, at 1200 (explaining homebuyer freedom to segregate oneself).
108. Massey & Denton, supra note 12, at 165-66. But see Olati Johnson, Book Note, integrating the "Underclass": Confronting America's Enduring Apartheid, 47 Stan. L. Rev. 787, 804 (1995) [hereinafter Johnson, Apartheid] (reviewing Massey & Denton, supra note 12) (critiquing Massey and Denton's failure to compare ghetto culture with characteristics of dominant culture). A visible example of this negative perception is the popular reappropriation of the word "ghetto" in American vernacular as an adjective to describe anything that is considered of low quality.
109. See Massey & Denton, supra note 12, at 166-67; see also Bell & Parchomovsky, supra note 9, at 1983 (describing "vices" associated with lower economic status); Camille Zubrinsky Charles, Can We Live Together? Racial Preferences and Neighborhood Outcomes, in The Geography of Opportunity, supra note 6, at 45, 64 (noting belief of many white households that black residents lead to increase in "female head[s], unemployed adult members, and [number of] residents per [home]"). These racial stereotypes are false, when controlling for level of poverty.
110. See Ingrid Gould Ellen, Sharing America's Neighborhood 156 (2000).
111. Cf. Lawrence Bobo & Camille L. Zubrinsky, Attitudes on Residential Integration: Perceived Status Differences, Mere In-Group Preference, or Racial Prejudice?, 74 Soc. Forces 883, 904 (1996) (explaining that white Americans "tend to view integration with any of the minority groups as threatening or undermining a previous status relation of superiority").
112. See Calmore, Race/ism, supra note 46, at 1105 & n.215 (describing stigma of ghetto for middle-class African Americans).
113. See Ellen, supra note 92, at 47-48 (arguing that stereotypes against
114. Several scholars view the integration ideal as one in which African Americans disperse themselves among majority white neighborhoods such that they are only a minimal proportion of neighborhoods everywhere. See Anthony Downs, Opening Up the Suburbs: An Urban Strategy for America 99 (1973) (supporting quotas to ensure white majorities remain);
115. Orlando Patterson, The Ordeal of Integration: Progress and Resentment in America's "Racial" Crisis 46 (1997) (arguing that it is not "unreasonable" for Euro-Americans to expect to be overwhelming majority in communities); infra note 124. Studies indicate that many white American homeowners would tolerate such levels of integration. See Massey & Denton, supra note 12, at 111 (noting that most white Americans are comfortable living in proximity to small numbers of African Americans);
116. W.A.V. Clark, Residential Preferences and Neighborhood Racial Segregation: A Test of the Schelling Segregation Model, 28 Demography 1, 2-3 (1991) (describing nearly unanimous view among white households that small numbers of minority neighbors are acceptable); but see infra Parts II.B.1-3.
117. This percentage is known as the "tipping point.& See Bell and Parchomovsky, supra note 9, at 1985-86 (detailing "tipping point" hypothesis); Thomas C. Schelling, Dynamic Models of Segregation, 1 J. Mathematical Soc. 143, 181-86 (1971) (same).
118. But see generally William Easterly, Empirics of Strategic Interdependence: The Case of the Racial Tipping Point (N.Y. Univ. Dev. Research Inst., Working Paper No. 5, 2005), available at http://www.nyu.edu/fas/ institute/dri/DRIWP/DRIWP05.pdf (on file with the Columbia Law Review) (arguing that exodus of white families from integrating community is continuous and not based on particular point).
119. See Bell & Parchomovsky, supra note 9, at 1996 ("[P] erceptions (even inaccurate ones) are crucial in determining how white homeowners will respond to racial change." (emphasis added)); Sander, supra note 12, at 900-01 (concluding that preferences force most integrating communities to resegregate).
120. This process is further fueled by the fact that white and black households differ on their perception of a comfortable integrated percentage of African American neighbors. See Comm. on the Status of Black Americans et al., A Common Destiny: Black and American Society 141-44 (Gerald David Jaynes & Robin M. Williams, Jr. eds., 1989) (describing desired level of integration for African Americans being unacceptable for white Americans); Bell & Parchomovsky, supra note 9, at 1987 (describing influence of racial preferences on resegregation); Charles, supra note 92, at 51 (noting resegregation process even when neighborhood is affluent); Pattillo, Black Neighborhoods, supra note 8, at 318 ("[B]y the time blacks' compositional preferences are met, the black population has exceeded the tolerance levels (or attraction levels) of most whites, and the neighborhood 'tips.'" (citation omitted)); Sander, supra note 12, at 896-97 (noting discrepancy between white and black Americans' definitions of racial balance).
121. See Sheryll D. Cashin, Middle-Class Black Suburbs and the State of Integration: A Post-Integrationist Vision for Metropolitan America, 86 Cornell L. Rev. 729, 741 (2001) [hereinafter Cashin, Middle-Class]. Cashin notes the difficulty in quantifying the exact number of black suburban enclaves, but provides the following clear examples: "Prince George's County, Maryland; DeKalb County, Georgia; Dade County, Florida; and suburbs to the south of Chicago and to the northeast of St. Louis." Id. at 742.
122. Mary Pattillo-McCoy, Black Picket Fences: Privilege and Peril Among the Black Middle Class 27 (1999) [hereinafter Pattillo-McCoy, Black Picket Fences];
123. see also Drew S. Days. III, Rethinking the Integrative Ideal: Housing, 33 McGeorge L. Rev. 459, 468-69 (2002) (describing development of affluent black communities); cf. Sander, supra note 12, at 884 11.87 ("Perhaps the most common fallacy among students of racial segregation is that black 'suburbanization' is a good measure of increasing integration.").
124. Sec Mae Gentry, Niskey Lake, Atlanta's Exclusive Black Neighborhood, Atlanta J.-Const., Sept. 25, 2002, at 10A (profiling affluent black community with residents who chose enclave over majority while options);
125. Haya El Nasser, Minorities Make Choice to Live with Their Own: Many Are Picking Less-Integrated Neighborhoods in the Suburbs, USA Today. July 9, 2001, at 8A (examining trend of African Americans who are choosing not Io integrate in part because "the need to integrate decreases" with socioeconomic gains).
126. Pattillo, Black Neighborhoods, supra note 8, at 322.
127. Robert For man, Black Ghettos, White Ghettos, and Slums 46 (1971).
128. Cf. Richard Epstein, Forbidden Grounds 68-69 (1992) (arguing voluntary segregation to be economically efficient); Keating, supra note 78, at 27 (observing alternative Io ghetto of small black enclaves in suburbs).
129. See infra Part IIB.1.
130. Sec infra Part II.B.2.
131. See Charles, supra note 92, at 74 (describing attitudinal studies of middle-class African Americans); Sander, supra note 12, at 893 (explaining how neighborhood hostility can serve as cost for black households moving into majority white neighborhoods).
132. Ellis Cose, The Rage of a Privileged Class 38-39 (1993); see also Heath, Brand-Williams & Lewis, supra note 6 ("Decades of discrimination and not-so-subtle steering have bred wariness about crossing traditional boundaries. And some just prefer living in places where their neighbors look like they do.");
133. see generally Joe R. Feagin & Melvin P. Sikes, Living with Racism: The Black Middle Class Experience (1994) (interviewing over 200 middle-class African Americans and sharing their constant experiences with racial hostility).
134. Cose, supra note 109, at 40. It appears that a fear of this white hostility is a major factor in the neighborhood decisions of black households. Pattillo, Black Neighborhoods, supra note 8, at 319.
135. See supra Part II.A.
136. See Calmore, Race/ism, supra note 46, at 1108 ("When I speak of black [families] 'choosing' to live in black neighborhoods I do not mean to suggest that segregation is literally voluntary. In reality, this option is often one of default or retreat."); cf. Sander, supra note 12, at 886 ("[M]iddle-class [African Americans] experience virtually the same level of segregation as the black community as a whole.").
137. Sunstein, supra note 83. at 1146-48; see also Bell & Parchomovsky, supra note 9, at 2026-27 (describing adaptive preference within context of neighborhood integration).
138. See Sunstein, supra note 83, at 1147 ("[P]eople fail to obtain goods that would turn out to be extremely rewarding, precisely because thev do not want those goods, and their lack of desire turns on a lack of opportunities.").
139. Calmore, Kerner Commission, supra note 88, at 1499.
140. Id.
141. See id.
142. See Cynthia Horan, Racializing Regime Politics, 24 J. Urb. Aff. 19, 25 (2002) (arguing that "[n]ew access to city' government . . . facilitates] the economic advancement of middle class African Americans").
143. See Keating, supra note 78, at 22-23 (documenting movement of black political power); Timothy Bledsoe et al., Residential Context and Racial Solidarity Among African Americans, 39 Am. J. Pol. Sci. 434, 434-35 (1995) (using empirical evidence to argue that majority black communities foster more racial solidarity than integrated communities with smaller populations of African Americans); Cashin, Middle-Class, supra note 100, at 754 (noting ease of forming "collective vision" with homogeneity); Goel, supra note 67, at 390-91 (discussing political benefits of African American concentration);
144. John a. powell, Race and Space, in Challenges to Equality: Poverty and Race in America 20, 25 (Chester Hartman ed., 2001) (noting importance of political power to minority communities).
145. In Prince George's County, Maryland, a majority black suburban district, the former County Executive Wayne K. Curry tried to utilize these mobilization tactics to influence that state's U.S. senatorial election - a race crucial for Democratic hopes of taking control of Congress. Curry, a Democrat, joined several black county council members in crossing party lines to support black Republican candidate Michael Steele. Ovetta Wiggins, Black Democrats Cross Party Lines to Back Steele for U.S. Senate, Wash. Post, Oct. 31, 2006, at B1. According to Curry, the political move was an attempt to make the concerns of African Americans "primary to those who always take our votes for granted . . . . Steele made a case of politics being local and about the issues that were resonant here."
146. Avis Thomas-Lester, Leaders Say They Endorsed Republican to Wake Democrats, Wash. Post, Nov. 6, 2006, at B4.
147. See Bell & Parchomovsky, supra note 9, at 1976-77 & nn.29-30 (comparing immigrant pooling benefits with effects of black segregation); Cutler et al., supra note 12, at 475 (describing immigrant preferences for living together).
148. For a description of the economically empowering benefits of majority black communities, see Kevin Chappell, America's Wealthiest Black County, Ebony, Nov. 2006, at 88. Ebony is a periodical that has served an African American readership for over sixty years. Id. at 12. Ebony's publisher, Johnson Publishing Company, notably describes its mission as: [increasing African-Americans' pride in themselves by presenting their past and present achievements to America and to the world. This has been done by portraying the Black American experience in all its dynamics through the medium of printed words, images, cosmetics and fashion. Through the years the company has also labored to provide irrefutable proof to millions of Black Americans, young and old, that their dreams can and do come true. About Johnson Publishing Company, at http://www.johnsonpublishing.com/assembled/about_overview.html (last visited Oct. 2, 2007) (on file with the Columbia Law Review).
149. See Cashin, Middle-Class, supra note 100, at 747-48 (describing healing qualities of black suburban enclaves).
150. Derrick Bell, Race, Racism and American Law § 2.14, at 67 (4th ed. 2000); Pattillo, Black Neighborhoods, supra note 8, at 317 (quoting Patterson, supra note 96, at 46). According to Patterson, this demand on African Americans is "not an unreasonable bargain. Euro-Americans are, after all, over 80 percent of the population, so there is some give on their part in their willingness to live in neighborhoods with less than their proportion of the population." Patterson, supra note 96, at 46.
151. See Calmore, Kerner Commission, supra note 88, at 1505 (describing integration imperative as threat to black culture and community); Goel, supra note 67, at 393-94 (arguing that protecting cultural identity may motivate spatial proximity); Alex M. Johnson Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African Americans Again, 81 Cal. L. Rev. 1401, 1431 (1993) [hereinafter Johnson, Bid Whist] (recalling black nationalist perspectives on threat of integration in preservation of black culture);
152. Gary Peller, Race Consciousness, 1990 Duke L.J. 758, 793-94 (explaining black nationalist perspective that individual and distinct African American identity has developed).
153. See Sam Fullwood III, Waking from the Dream: My Life in the Black Middle-class 204-05 (1996) ("So much goes on at the job that we have to endure, the slights and the negative comments and feelings that we're unwanted . . . . [B]y the time I come home I don't want to have to deal with white people anymore.");
154. Calmore, Race/ism, supra note 46, at 1106-08 (arguing that retreating from damaging experiences of other integrated contexts motivates nonsegregation);
155. Pattillo, Black Neighborhoods, supra note 8, at 321 ("I like to come home to a place and be surrounded by folks who would not think of asking me, why?" (quoting Cora Daniels, Black Power Inc.: The New Voice of Success 178 (2004))).
156. Calmore, Kerner Commission, supra note 88, at 1507 (describing black parents who expressed "a critical need to have their children come home to a black neighborhood . . . otherwise the children could lose a social and cultural grounding that would militate against their growing up 'lost, not knowing who they are'"); see also Gentry, supra note 102 (quoting resident of Atlanta black enclave, ";I have white friends. I've worked for years with white folks. I used to live in an all-white neighborhood . . . but when my son started to listen to Guns N'" Roses and Van Halen, I looked at my wife and we knew it was time to go.'"); Johnson, Bid Whist, supra note 125, at 1419-22 (distinguishing unique normative culture of African Americans based on historical victimization transferred from generation to generation).
157. See Charles, supra note 92, at 56-59 (examining racial makeup as quality of life factor in neighborhood selection).
158. See Cashin, Failures, supra note 10, at 134-35 (describing quality of life tradeoffs of black middle-class majority); Massey & Denton, supra note 12, at 150-53 (explaining prioritization of quality of life factors over integrative preferences).
159. See Monifa Thomas, Suburbs No Guarantee of Opportunity, Chi. Sun-Times, Nov. 15, 2005, at 6 (examining lack of amenities for black middle-class enclaves in Chicago).
160. Cashin, Middle-Class, supra note 100, at 756; see also Michael A. Stoll, The Brookings Inst., Job Sprawl and the Spatial Mismatch Between Blacks and Jobs 3-9 (2005), available at http://www.brook.edu/dybdocroot/metro/pubs/ 20050214_jobsprawl.pdf (on file with the Columbia Law Review) (identifying disparity in proximity of African Americans to job opportunities in areas of job sprawl).
161. Cashin, Middle-Class, supra note 100, at 757;
162. see also Dahleen Glanton, Lingering Lines of Discrimination: The Neighborhood Is Solidly Middle Class, but Its Residents Have Trouble Getting Even a Pizza Delivered to Their Front Door, Chi. Trib., Mar. 1, 1998, at C1 (describing reluctance of delivery retailers to serve black middle class Chicago community);
163. Ernest Holsendolph, Capital Investors Turn Backs on Affluent Blacks, Atlanta J.-Const., July 21, 1997, at E9 (depicting departure of businesses such as Kmart and Cracker Barrel after affluent African Americans entered area);
164. Jackie Spinner, Pr. George's 'Shop at Home' Campaign Means Tough Choices for Many, Wash. Post, Jan. 18, 1998, at B1 (observing lack of retail options for black middle-class residents).
165. For a detailed description of the dilemma of commercial disinvestment within black middle-class suburbs, see Mary Jo Wiggins, Race, Class, and Suburbia: The Modern Black Suburb as a 'Race-Making Situation,' 35 U. Mich. J.L. Reform 749, 770-76 (2002).
166. Cashin, Failures, supra note 10, at 154 (describing complaints of poor service by retailers in black suburb of Prince George's County, Maryland).
167. Id. at 146-47.
168. Id. at 141-47 (describing challenges faced by schools in Prince George's County, Maryland).
169. Pattillo-McCoy, Black Picket Fences, supra note 101, at 27;
170. see also Ron Grossman & Byron P. White, Poverty Surrounds Black Middle Class; Upscale Neighborhood Virtually an Island, Chi. Trib., Feb. 2, 1997, at C1 (observing proximity of Chicago black middle-class community to region's poverty).
171. See Massey & Denton, supra note 12, at 9 (noting that while middle class always tries to avoid the poor, middle-class African Americans are least likely to do so); Pattillo-McCoy, Black Picket Fences, supra note 101, at 29 (describing socioeconomic differences of white and black suburban populations).
172. Cashin, Failures, supra note 10, at 158. In Prince George's County, Maryland, many middle-class African Americans are moving to neighboring counties in search of these amenities. See Phillip Rucker & Avis Thomas-Lester, Shifting Migration Patterns Alter Portrait of Pr. George's, Wash. Post, July 26, 2007, at A1 ("[Thousands of middle-class people, many of them African American, have left for neighboring counties in search of better schools, less crime and bigger houses.").
173. See Sander, supra note 12, at 893 ("Discrimination today can be characterized as a deterrent rather than a wall."). While the focus of this section is on racial steering, many other discriminatory forces are at work within the private housing market, especially in mortgage lending and insurance. Thus the elimination of racial steering may not fullv eliminate all aspects of discrimination in the housing sales process. Therefore this Note will be considering the eradication of racial steering as at minimum a marginal improvement in overall housing choice for consumers. For an analysis of how discrimination in mortgage lending and insurance can lead to a "tax" on black homebuyers, see John Yinger, Closed Doors, Opportunities Lost 244 (1995).
174. See generally Stephen L. Ross & John Yinger, The Color of Credit: Mortgage Discrimination, Research Methodology, and Fair Lending Enforcement (2002) (summarizing economic evidence on discrimination in mortgage markets).
175. Havens Realty Corp. v. Coleman, 455 U.S. 363, 366 n.l (1982).
176. See id. at 370 n.7 (noting that while lower court found racial steering to be violation of Fair Housing Act, Supreme Court would not express view of ruling's correctness); Gladstone Realtors v. City of Bellwood, 441 U.S. 91, 115 n.32 (1979) ("The federal courts . . . have concluded that racial steering is prohibited by [the Fair Housing Act]. We do not reach this issue, as it is not presented by this case.").
177. Cabrera v. Jakabovitz, 24 F.3d 372, 390 (2d Cir. 1994); City of Chi. v. Matchmaker Real Estate Sales Ctr., Inc., 982 F.2d 1086, 1096 (7th Cir. 1992); Vill. of Bellwood v. Dwivedi, 895 F.2d 1521, 1529 (7th Cir. 1990); Sanders v. Dorris, 873 F.2d 938, 943-44 (6th Cir. 1989); Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 139-41 (6th Cir. 1985); McDonald v. Verble, 622 F.2d 1227, 1233 (6th Cir. 1980); United States v. Mitchell, 580 F.2d 789, 791-92 (5th Cir. 1978); Schwemm, supra note 10, § 13:5 & n.6, at 13-13 to - 14 (citing lower federal court cases applying FHA to steering).
178. 42 U.S.C. § 3604(a) (2000).
179. See id. § 3608(a) ("The authority and responsibility for administering this Act shall be in the Secretary of Housing and Urban Development.").
180. See 24 C.F.R. § 100.70(c) (2007).
181. See generally Rose Helper, Racial Policies and Practices of Real Estate Brokers (1969) (examining racial steering as foundation of real estate broker policy).
182. HDS2000 Phase I, supra note 9, at 6-1.
183. Id. at 8-8. For further discussion of these results, see Margery Austin Turner & Stephen L. Ross, How Racial Discrimination Affects the Search for Housing, in The Geography of Opportunity, supra note 6, at 81, 94-96. HUD has also financed a National Fair Housing Alliance study of racial steering.
184. Nat'l Fair Hous. Alliance, Unequal Opportunity - Perpetuating Housing Segregation in America: 2006 Fair Housing Trends Report 4 (2006), available at http://www.nationalfairhousing.org/resources/newsArchive/ resource_24256802754560627686.pdf (on file with the Columbia Law Review). The study estimated that steering to particular neighborhoods based on race occurred in eighty-seven percent of consumer interactions with real estate agents. Id. at 9-10.
185. HDS2000 Phase I, supra note 9, at 6-1.
186. Id.
187. Id.
188. Id. at 6-1 to -2.
189. Id. at 6-16.
190. Id.; see also Bo Zhao, Jan Ondrich & John Yinger, Why Do Real Estate Brokers Continue to Discriminate? Evidence From the 2000 Housing Discrimination Study 20 (Ctr. for Policy Research, Working Paper No. 67, 2005), available at http://www-cpr.maxwell.syr.edu/cprwps/pdf/wp67.pdf (on file with the Columbia Law Review) (using empirical research to determine that agents are motivated by personal prejudice, as well as prejudice of their white customers, when engaging in racial steering).
191. See Goel, supra note 67, at 392-93 ("[I]t may be difficult to distinguish between 'voluntary' and 'involuntary' segregation. If true, no form of separation should be permissible." (footnotes omitted)).
192. See Sander, supra note 12, at 892 ("[O]vert discrimination is unusual today; when a black [homebuyer] is the victim of discriminatory treatment, he or she is likely to not even know it."); infra note 196 and accompanying text.
193. 895 F.2d 1521 (7th Cir. 1990).
194. Id. at 1525.
195. Id. at 1530. Posner stated that "the broker who shows a black person houses in an integrated community because that person requests to see houses there is not treating him differently because of race." Id. One of the earliest racial steering cases, Zuch v. Hussey, also noted this difference between illegal agent steering and buyer expectation. 394 F. Supp. 1028, 1039 n.9 (E.D. Mich. 1975). The court noted that: [I]n this instance [the court] can enjoin the defendant from attempting to channel prospective buyers into areas which he feels would be better suited to the race of the buyers, but the Court cannot stamp out the expectations of the buyers. The result is that a thin line is drawn between illegal conduct and satisfying the customer, until eventually the two (2) are merged. Id. The Supreme Court has also respected the role of private choice in the area of race and segregation. In the school desegregation case of Freeman v. Pitts, the Court determined that segregation created by private housing choices was out of its jurisdiction. 503 U.S. 467, 495 (1992). Also, in another school desegregation case, Missouri v. Jenkins, Justice Clarence Thomas emphasized that current segregated living patterns may simply be the effect of "voluntary housing choices" or "other private decisions." 515 U.S. 70, 116 (1995) (Thomas, J., concurring).
196. See Dwivedi, 895 F.2d at 1533-34; cf. Leadership Council for Metro. Open Cmtys., Inc. v. Rossi Realty, Inc., No. 98 C 7852, 2001 WL 289870, at *5 (N.D. Ill. Mar. 15, 2001) (stating that jury in racial steering case "could conclude that Defendants were honestly trying to serve the individual preferences of the customers").
197. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) ("[Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation."). The disparate impact standard was first introduced within the context of employment discrimination under Title VII. The Supreme Court has yet to apply this standard to claims under the Fair Housing Act, but every lower circuit court has allowed such claims. See, e.g., 2922 Sherman Ave. Tenants' Ass'n v. District of Columbia, 444 F.3d 673, 679-81 (D.C. Cir. 2006) (reviewing development of disparate impact standard within context of Fair Housing Act); see also Schwemm, supra note 10, § 10:6, at 10-42 to -52 (describing standard and listing relevant lower court cases).
198. When comparing government and private sector actors, the court noted: It is one thing to require a municipal government to consider the impact of its zoning decisions on the racial composition of the municipality, another to require an individual broker to consider and take steps to prevent the aggregate impact of many brokers' efforts to give individual customers what those customers want individually, though not collectively. Dwivedi, 895 F.2d at 1533; see also Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977) (applying disparate impact standard to municipal government defendant); Sander, supra note 12, at 906 ("In the housing field, it is far more difficult to identify a single governmental entity with responsibility for the housing market . . . .").
199. Dwivedi, 895 F.2d at 1530.
200. Id. at 1529-31.
201. See Schwemm, supra note 10, § 13:7, at 13-23 to -26 (describing difficulties raised by Dwivedi decision).
202. Dwivedi, 895 F. 2d at 1531.
203. See id.; Note, Racial Steering: The Real Estate Broker and Tide VIII, 85 Yale L.J. 808, 811-12 (1976) (describing real estate broker assumptions based on race).
204. Dwivedi, 895 F.2d. at 1532.
205. See Chris Sicks & Stacie Zoe Berg, Fair Housing Loophole or Bad Idea?, Wash. Times, Nov. 22, 1996, at F1 (summarizing debate among housing industry over HUD's letter supporting agent accommodation of consumer racial preference).
206. Id.
207. Letter from Elizabeth K. Julian, Assistant Sec'y, HUD, to Jill D. Levine, Legal Counsel, The Buyer's Agent Inc. (Oct. 2, 1996), available at http://www.fairhousing.com/index.cfni?method=page.display&pagename= HUD_resources_buyers_agent (on file with the Columbia Law Review).
208. Id. Julian described several examples, including the following: [I]f a white buyer said to his/her agent, 'I want to live in a white neighborhood,' or 'Don't show me any houses where a lot of minorities live,' the agent would not violate the Act if he/she acted upon his/her client's instruction. On the other hand, the agent would violate the Act if he/she said, 'I don't blame you for wanting to live in a white neighborhood,' 'I would never do fhat (i.e., show a white homebuyer houses where a lot of minorities live),' or something similar that indicated the agent shared or encouraged the buyer's preference/ dispreference. Id.
209. See Sicks & Berg, supra note 170 (quoting disapproving agent who complained that "letter invites agents to cross the line and mistakenly violate the law"); Letter from Aurie A. Pennick, President, Leadership Council for Metro. Open Cmtys., to Elizabeth K. Julian, Assistant Sec'y, HUD (undated), available at http://www.fairhousing.com/index.cfm?method=page. display&pagename=HUD_resources_buyers_agent (on file with the Columbia Law Review) ('Your letter to Jill D. Levine . . . was received with shock and dismay by fair housing advocates and many real estate professionals.").
210. Letter from Elizabeth K. Julian, Assistant Sec'y, HUD, to Jill D. Levine, Legal Counsel, The Buyer's Agent Inc. (Dec. 3, 1996), available at http://www.fairhousing.com/index.cfm?method=page.display&pagename= HUD_resources_buyers_agent (on file with the Columbia Law Review).
211. See Letter from Elizabeth K. Julian, Assistant Sec'y, HUD, to Jill D. Levine, Legal Counsel, The Buyer's Agent Inc. (Nov. 8, 1996), available at http://www.fairhousing.com/index.cfm?method=page.display&pagename= HUD_resources_buyers_agent (on file with the Columbia Law Review) ("The fact that Section [3604] (a) of the Fair Housing Act may, under limited circumstances, not prohibit such accommodation does not make it right, does not make it ethical, and it is not the policy of [HUD] to endorse such conduct").
212. See Schwemm, sitpra note 10, § 13:7, at 13-20 to -31 (noting continuing problems and ambiguities in racial steering law).
213. See Nat'l Fair Hous. Alliance, supra note 149, at 12 (exposing use of schools by agents as proxy for racial composition).
214. Warth v. Seldin, 422 U.S. 490, 501 (1975).
215. Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 114 (1979); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 377 (1982) (supporting Bellwood definition of racial steering injury); Schwemm, supra note 10, § 13:7, at 13-29 to -30 (interpreting Bellwood to mean that "defendants could escape liability if their steering activities were not shown to be significant enough to influence the local housing market").
216. See supra Part III.B.1.
217. See supra Part II.
218. See supra Parts I.B-C.
219. See supra Part II.A.
220. See supra Part II.B.4.
221. See supra Part I.C.
222. See supra Part I.B.
223. See Cashin, Failures, supra note 10, at 321 ("Anti-discrimination enforcement, though necessary, is not a sufficient condition for achieving true integration."); Xavier de Souza Briggs, Politics and Policy: Changing the Geography of Opportunity, in The Geography of Opportunity, supra note 6, at 310, 314-15 [hereinafter Briggs, Politics] ("[W]e should disabuse ourselves of the notion that mere enforcement of antidiscrimination law is a powerful tool for reducing segregation by race and class in America.").
224. See Massey & Denton, supra note 12, at 4 ("Following the passage of the Fair Housing Act . . . residential segregation dropped off the national agenda."); Xavier de Souza Briggs, Introduction, in The Geography of Opportunity, supra note 6, at 1, 5 (describing disappearance of equal geographic opportunity from public focus).
225. See supra Part I.B.3.
226. See supra Part I.C.
227. See supra Part III.A.
228. See supra Part III.B.
229. See Zuch v. Hussey, 394 F. Supp. 1028, 1054 (E.D. Mich. 1975) ("This Court cannot compel people of different races to live together in any neighborhood."). The Zuch court also noted that racial steering as a legal issue is "complicated by conduct and attitudes of people of the city which cannot be reached by laws or the Court." Id. at 1053.
230. See supra Part III.B.1.
231. See Briggs, Politics, supra note 188, at 313 (noting that editorializing by realtors is difficult for racial steering victims to identify);
232. George C. Galster, The Evolving Challenges of Fair Housing Since 1968, Cityscape: J. Pol'y Dev. & Res., No. 3, at 123, 132 (1999) ("The fundamental flaw in The Fair Housing Act is that it relies on the victim to recognize and formally complain about suspected acts of discrimination. Given the subtlety of discrimination . . . there is minimal chance of deterrence." (citations omitted)).
233. See 42 U.S.C. §§ 3612(k), 3613(c) (2000) (authorizing relief of damages and equitable relief for private and administrative claims).
234. See 42 U.S.C. § 3614(a). It states: Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this subchapter, or that any group of persons has been denied any of the rights granted by this subchapter and such denial raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. Id.
235. See Nat'l Fair Hous. Alliance, supra note 149, at 23 (declaring that lack of federal funding for fair housing enforcement shows lack of government dedication to integration); Briggs, Politics, supra note 188, at 314 (arguing that federal government resources have never been prioritized for Fair Housing Act enforcement);
236. William Tisdale, Fair Housing Strategies for the Future: A Balanced Approach, Cityscape: J. Pol'y Dev. & Res., No. 3, at 147, 147 (1999) ("[Residential racial integration has not been high on the national priority agenda. This country has never had a national housing policy . . . ."); Sander, supra note 12, at 888-90 (describing history of poor Fair Housing Act enforcement).
237. Bill Lann Lee, An Issue of Public Importance: The Justice Department's Enforcement of the Fair Housing Act, Cityscape: J. Pol'y Dev. & Res., No. 3, at 35, 43 (1999). In 1998, the Department of Justice settled a racial steering claim with First Real Estate Corporation, an Alabama company. The resulting consent decree required not only compensatory damage payments, but also the promotion of fair housing in general and the specific integration of its own developments. Id. (citing United States v. First Real Estate Corp., CA., No. CV-98-N1212-S (N.D. Ala. May 14, 1998)).
238. See Bell & Parchomovsky, supra note 9, at 1980 ("Law, after all, is not the only incentive affecting human behavior."); Briggs, Politics, supra note 188, at 314 ("Simply put, reducing bad behavior in the market will not clearly change what people desire, only their ability to realize those desires.").
239. Sander, supra note 12, at 902-03; see also Paul Boudreaux, An Individual Preference Approach to Suburban Racial Desegregation, 27 Fordham Urb. L.J. 533, 546 (2000) (noting sociological observations that anti-discrimination legislation may do litde to alter white preference to not live near black households);
240. Briggs, Politics, supra note 188, at 314-15 (observing black and white preferences as obstacle to integrated society).
241. See supra Part I.B.
242. See supra Part I.A.
243. See Calmore, Race/ism, supra note 46, at 1124-25 (promoting reflection back to Kerner Report in creating present day integration); supra Part I.B.3.
244. John Yinger, Sustaining the Fair Housing Act, Cityscape: J. Pol'y Dev.
245. Integration maintenance programs seek to encourage white residents to remain in neighborhoods with growing black populations, and may also encourage black residents to move into neighborhoods that are overwhelmingly white. These programs often use financial incentives to influence the housing decisions of residents. See Myron Orfield, American Metropolitics: The New Suburban Reality 125-26 (2002) [herinafter Orfield, American Metropolitics] (noting effectiveness of financial incentive programs within a plan for managing integration). They may take the form of mortgage subsidies for residents who choose to live in an area where they are the racial minority'.
246. See, e.g. Myron Orfield, Land Use and Housing Policies to Reduce Concentrated Poverty and Racial Segregation, 37 Fordham Urb. L.J. 877, 925-26 (2006) (describing Shaker Heights, Ohio, program which offered low cost mortgage loans to integrating homebuyers). These programs may also seek to provide equity' insurance for residents who live in a neighborhood where the large entry of African Americans drives fear of a drop in area property values. See Bell & Parchomovsky, supra note 9, 2005-09 (describing how equity insurance may reduce resegregation, but may also reward "the most bigoted" residents of a community); Sander, supra note 12, at 930-31 (arguing benefits of equity insurance).
247. Kerner Report, supra note 24, at 224 ("Enrichment must be an important adjunct to any integration course[,] . . . a means toward the goal; it is not the goal."); see also Cashin, Failures, supra note 10, at 305 (noting that enrichment policies of Kerner Report were "largely ignored"); Calmore, Kerner Commission, supra note 88, at 1488 (recalling enrichment recommendations of Kerner Report). Alex M. Johnson Jr. has examined the role of transitory phases with regards to school desegregation, and his analysis seems equally applicable in the housing context.
248. See Johnson, Bid Whist, supra note 125, at 1434-35.
249. There is a present reality, future ideal, and implementing bridge that transitions the reality towards the ideal. See id. (citing Richard A. Wasserstrom, Racism, Sexism, and Preferential Treatment: An Approach to the Topics, 24 UCLA L. Rev. 581, 583 (1977)). The bridge must be a policy that works to empower segregated and impoverished African Americans where they are, so that they might be in a position to integrate in a manner that maximizes their desired quality of life. See id. at 1438 ("[O]nly after the process of integration has been accomplished can the ideal of integration be achieved.").
250. See Calmore, Kerner Commission, supra note 88, at 1495 ("Fair housing must be reconceptualized to mean not only increased opportunity for black[ ] [residents] to move beyond their socio-territorial disadvantage but also to mean enhanced choice to overcome opportunity-denying circumstances while continuing to live in black communities.").
251. See Johnson, Bid Whist, supra note 125, at 1437 (emphasizing integration that benefits all and not just white Americans to detriment of African Americans). According to John O. Calmore, the failure to recognize the legitimacy of ghetto communities is another form of white domination forcing the dispersal of the ghetto into white America. Calmore, Kerner Commission, supra note 88, at 1493. But see Gary Orfield, The Movement for Housing Integration: Rationale and the Nature of the Challenge, in Housing Desegregation and Federal Policy, supra note 78, at 18, 20 (dismissing ghetto enrichment as costly and politically unpopular).
252. See generally John F. Kain & Joseph J. Persky, Alternatives to the Gilded Ghetto, Pub. Int., Winter 1969, at 74 (supporting complete dispersal of black ghetto due to its unfavorable metropolitan position relative to suburbs).
253. Briggs, Politics, supra note 188, at 318 (arguing that leveraging enrichment must accompany integration efforts). In light of recent trends in urban development, it must be noted that enrichment is distinguishable from gentrification. Gentrification has been defined as the process "by which people of higher incomes move into lower income urban areas and seek to change its physical and social fabric to better meet their needs and preferences."
254. J. Peter Byrne, Two Cheers for Gentrification, 46 How. L.J. 405, 406 (2003). It often involves the displacement of the African American residents.
255. See John a. powell & Marguerite L. Spencer, Giving Them the Old "One-Two": Gentrification and the K.O. of Impoverished Urban Dwellers of Color, 46 How. L.J. 433, 436 (2003) ("Although studies of it often ignore ethnicity and race, gentrification has a very clear racial component. Commonly, higher-income white households replace lower-income minority ones . . . ." (footnote omitted)). This process does not represent an empowerment of the ghetto community, but another potential form of resegregation.
256. See supra note 199. In light of the federal government's role in creating segregated communities, this policy trend is unfortunate. See supra note 12.
257. See generally Richard Briffault, Localism and Regionalism, 48 Buff. L. Rev. 1 (2000) (comparing and contrasting regionalist perspective to municipally local perspective); Richard Briffault, Beyond City and Suburb: Thinking Regionally, 116 Yale L.J. Pocket Part 203 (2006), at http://thepocketpart.org/ 2006/12/11/briffault.html (on file with the Columbia Law Review) (promoting benefits of regional policy perspective).
258. See Cashin, Middle-Class, supra note 100, at 774 (noting that affluent suburbs "reap disproportionate benefits in the competition for public and private resources, export some costs to the rest of the region, and undertake few regional burdens").
259. See id. at 773 (promoting regionalism as tool "to redress the inequalities that flow from racial and economic segregation").
260. See Orfield, American Metropolitics, supra note 207, at 175 (arguing importance of collaboration of "at-risk" communities in development of regionalist policy); Sheryll Cashin, Localism, Self-interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism, 88 Geo. L.J. 1985, 2033-36 (2000) (using example of Minnesota regionalism efforts to argue importance of coalition building in seeking fiscal equity).
261. See Calmore, Race/ism, supra note 46, at 1123 (stating difficulty of maintaining stereotypes when African Americans and white Americans "stand on equal footing").
262. See Pattillo, Black Neighborhoods, supra note 8, at 323 (arguing that change in white attitudes is prerequisite to integration); Sander, supra note 12, at 901-02 ("[T]o increase white demand, whites must believe that black entry into their neighborhoods will not culminate in resegregation.").
263. Cf. supra note 85.
264. See Bell & Parchomovsky, supra note 9, at 1974 (admitting that racial animus remains irrational obstacle to elimination of racial segregation); Calmore, Race/ism, supra note 46, at 1071 ("In many ways, racism has simply overwhelmed fair housing.").
265. Forcing African Americans to assimilate within a mostly white community negates the legitimacy of the culture and is a practice of racial supremacy, powell, Living, supra note 51, at 774-78; see also Goel, supra note 67, at 397 (warning that forced integration subverts race consciousness).
266. See Massey & Denton, supra note 12, at 15 (arguing that moral preparedness of white community is prerequisite to integrative change).
267. See Johnson, Bid Whist, supra note 125, at 1418 ("African-Americans will not choose to integrate . . . until it is in their interest to do so."). But see Massey & Denton, supra note 12, at 213-16 (proclaiming that black choice not to integrate is decision of unhealthy human beings). In critique of Massey and Denton, Olati Johnson notes that the two scholars "find litde that is valuable or self-affirming about African American community." Johnson, Apartheid, supra note 91, at 807.
268. Calmore, Kerner Commission, supra note 88, at 1495 (promoting spatial equality even when integration is not present). Such decisions toward nonsegregation will not end stereotypes, but according to Patricia Williams, stereotypes are a "lesser historical evil" than the cultural disappearance caused by assimilation. Patricia Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 414 (1987).
269. See Bell & Parchomovsky, supra note 9, at 2027 (emphasizing that racial stereotypes are rooted in lack of information, misconceptions, and prejudices).
270. See Calmore, Kerner Commission, supra note 88, at 1497 (discussing theory of integration leading to interaction, and noting fields where integration has occurred). Calmore does not see integration in these spaces as enough contact to break down stereotypes. See Calmore, Race/ism, supra note 46, at 1122 ("Sharing work space or public space is not enough. Now we must go out of our way to make quality contact . . . .").
271. For arguments that integration can be achieved only by fostering voluntary choice, see Keating, supra note 78, at 4, 222; Goel, supra note 67, at 408.