The Surprising Career of Federal Fair Housing Law

Journal of Policy History

Volumn 12, Issue 2, 2000, Pages 215-232

  Graham, Hugh Davis ^a  

^a VANDERBILT UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 85011749552     PISSN: 08980306     EISSN: 15284190     Source Type: Journal    
DOI: 10.1353/jph.2000.0012     Document Type: Article

References (72)

1. See, for example, Hugh Davis Graham, Civil Rights and the Presidency New York, 1992
2. Hugh Davis Graham, “Legacies of the 1960s: The American ‘Rights Revolution’ in an Era of Divided Governance,” Journal of Policy History 10 (Summer 1998): 267-88.
3. Harris Wofford, Of Kennedys and Kings (New York, 1980), 124-77
4. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960- 1972 (New York, 1990), 258-77.
5. Walter Dean Burnham, Critical Elections and the Mainsprings of American (New York, 1970)
6. James L. Sundquist, Dynamics of the Party System: Alignment and Realignment of Political Parties in the United $5 fafe5 (Washington, D.C. 1973)
7. Stephen Skowronek, The Politics Presidents Make (Cambridge, Mass. 1993).
8. David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990 (New Haven, 1991)
9. Charles O. Jones, The Presidency in a Separated System (Washington, D.C. 1994)
10. Morris Fiorina, Divided Government, 2d ed. (Boston, 1996).
11. See also David W. Brady and Craig Voldem, Revolving Gridlock (Boulder, Colo. 1998), and
12. Sarah A. Binder, “The Dynamics of Legislative Gridlock, 1947-1996,” American PoliticalScience Review 93 (September 1999): 519-33.
13. Katzenbach to Califano, 9 October 1965, box 66, EX LE/HU 2, White House Central Files (WHCF), Lyndon Baines Johnson Library (LBJL); David Lawrence to Johnson, 10 November 1965, box 47, EX LE/HU 2-2; Califano to Johnson, 20 November 1965, box 65, EX LE/HU 2; Califano to Katzenbach, 5 September 1966, box 12, Task Forces file; Ramsey Clark to Califano, 30 November 1966, box 12, Task Forces file; Clark to Califano, 28 November 1967, box 66, EX LE/HU 2, WHCF, LBJL.
14. Graham, The Civil Rights Era, 258–77.
15. Congressional Quarterly Almanac: 1966 (Washington, D.C. 1967), 134-37
16. David Halberstam, “The Politics of White Backlash,” The New Republic, 12 October 1967, 28–31.
17. Congress and the Nation, Vol. II, 1965-/95 (Washington, D.C. 1969), 378-88.
18. Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, Mass. 1993), 192-200.
19. “Open Housing Law to Cover 80% of Dwellings by 1970,” Congressional Quarterly WeeklyReport (CQWK) 26 (12 April 1968): 791-95.
20. George R. Metcalf, Fair Housing Comes of Age (Westport, Conn. 1988)
21. Hugh Davis Graham, “Civil Rights Policy in the Carter Presidency,” in The Carter Presidency: Policy Choices in the Post-New Deal Era, ed. Gary M. Fink and Hugh Davis Graham (Lawrence, Kan. 1998), 202-23.
22. Roger Davidson, “Subcommittee Government: New Channels for Policy Making,” in The New Congress, ed. Thomas E. Mann and Norman J. Ornstein (Washington, D.C. 1981), 1000-1033.
23. Milliken v. Bradley, 418 U.S. 717 (1974).
24. In Village of Arlington Heights v Metropolitan Housing Development Corporation, 429, U.S. 252 (1977), the Supreme Court ruled that local zoning ordinances barring low-income housing were constitutionally protected unless intern tional discrimination was demonstrated.
25. Fair Housing Act: Hearings before the Subcommittee on Civil and Constitutional Rights of he House Committee on the Judiciary, 95th Congress, 2d sess. (Washington, D.C. 1978)
26. Beth J. Lief and Susan Goering, “The Implementation of the Federal Mandate for Fair Housing,” in Divided Neighborhoods: Changing Patterns of Racial Segregation, ed. Gary A. Tobin (Newbury Park, Calif. 1987), 227-67
27. Massey and Denton, American Apartheid, 51–82.
28. Mondale to Carter, 18 January 1980
29. Eizenstat to Carter, 21 January 1980, box 161, Presidential Handwriting file, Jimmy Carter Library (JCL). Agenda, Fair Housing Legislative Meeting, from Anne Wexler and Louis Martin, 16 April 1980; Eizenstat to Carter, 20 May 1980, box 205, Eizenstat file, JCL.
30. “State ofthe Union Address,” 21 January 1980
31. Public Papers ofthe Presidents: Jimmy Carter, 1980 (Washington, D.C. 1981), Book I, 114.
32. “Battle Lines Drawn Over New Enforcement Powers by HUD,” CQWR 38 (3 May 1980): 1175-78
33. “Fair-Housing Bill Passed by House,” CQWR 38 (14 June 1980): 1613-15
34. “Don Edwards: Fair Housing Engineer,” CQWR 38 (14 June 1980): 1614.
35. Congressional Quarterly Almanac: 1980, 373–77
36. Martin Tolchin, “Battles in Congress Over 2 Rights Issues Block Adjournment,” New York Times, 5 December 1980. On 9 December the Senate voted 54-43 for cloture on HR 5200, six votes short of the 60 needed.
37. Byron E. Shafer and William J. M. Claggett, The Two Majorities: The Issue Context of Modern American Politics (Baltimore, 1995)
38. Byron E. Shafer, ed. Postwar Politics in the G*7: Orders and Eras in Comparative Perspective of Aadison, 1996.
39. On the problem of independence for administrative law judges, see Daniel J. Gifford, “Federal Administrative Law Judges: The Relevance of Past Choices to Future Directions,” Administrative Law Review (Winter 1997): 1-60.
40. Μ. B. Oglesby and John F. Scruggs to Edwin Meese III and James A. Baker III, 10 January 1983, box 1, HU-014, White House Office of Records Management (WHORM), Ronald Reagan Library (RRL).
41. Address to Congress on the State of the Union, 23 January 1983, Published Papers of the Presidents of the US.: Ronald Reagan 1983, Book I (Washington, D.C. 1983), 107.
42. Hugh Davis Graham, “The Politics of Clientele Capture: Civil Rights Policy in the Reagan Administration,” in Redefining Equality, ed. Neal Devins and Davison Douglas (New York, 1997), 103-19.
43. On curbing HUD enforcement in the Reagan administration, see Denton and Massey, American Apartheid, 207–12.
44. Robert G. Schwemm, “Private Enforcement of the Fair Housing Act,” Yale Law and Policy Review (1988): 375-92.
45. The Reagan Justice Department during the 1980s brought an average of ten patternor-practice lawsuits a year against housing discrimination. In the twenty years between the Fair Housing Act (Title VIII) of 1968 and the 1988 amendments, only 400 private lawsuits were filed under Title VIII in the entire country. Schwemm, “Private Enforcement,” 387.
46. The Grove City bill, sponsored by the civil rights coalition in Congress and opposed by the Reagan administration, would expand the authority of federal agencies, narrowed in 1984 by the Supreme Court in Grove City College v. Bell, to require public and private institutions receiving federal financial assistance to abide by federal agency rules concerning equal employment opportunity for minorities, women, and the handicapped, consumer and environmental protection, and workplace and transportation safety. See Hugh Davis Graham, The Storm over Grove City College: Civil Rights Regulation, Higher Education, and the Reagan Administration, History of Education Quarterly 38 (Winter 1998): 407-29.
47. Norman C. Amaker, Civil Rights and the Reagan Administration (Washington, D.C. 1988)
48. Robert R. Detlefsen, Civil Rights under Reaganzn Francisco: Institute for Contempt rary Studies, 1991
49. Hugh Davis Graham, “The Politics of Clientele Capture: Civil Rights and the Reagan Administration,” 103–19
50. Nicholas Laham, The Reagan Presidency and the Politics of Race (Westport, Conn. 1999).
51. Curtis v Loether, 415 U.S. 189 (1974)
52. Tullv United States, 481 U.S. 412 (1987). In Loether the Court held that a claim to actual or compensatory damages under the Fair Housing Act “sounds basically in tort” and under the Seventh Amendment requires a jury trial in an Article III court. In Tull the Court required a jury trial in federal district court in an action brought by the United States seeking equitable relief and civil penalties pursuant to the Clean Water Act. Because the court had not ruled on administrative remedies, it was unclear in such circumstances whether a civil penalty levied by a HUD administrative law judge constituted equitable make-whole relief and hence was not covered by the Seventh Amendment, or was a punitive action at law impermissible without a jury trial in federal district court. Under Tull, punitive damages were subject to the Seventh Amendment's jury trial requirement.
53. Larry A. Hammond to Ruth T. Prokop, 25 January 1978, box 6, Addington files, RRL.
54. “Fair-Housing Bill Begins Uncertain Journey,” CQWR 46 (23 April 1988): 1082–1123.
55. “Fish Plays Pivotal But Difficult Judicial Role,” CQWR 46 (30 April 1988): 1160
56. “Fair-Housing Protagonists May Have a Deal,” CQWR 46 (18 June 1988): 1682
57. “Prognosis Good as Fair-Housing Bill Goes to Senate,” CQWR 46 (2 July 1988): 1838.
58. Press release, “Remarks by the President at Signing Ceremony for Fair Housing Act,” 13 September 1988, box 98, White Office of the Executive Clerk files, RRL. After summarizing the bill's main features, Reagan added: At the same time, “I want to emphasize that this bill does not represent any Congressional or Exeecutive Branch endorsement of the notion, expressed in some judicial opinions, that Title Eight violations may be established by a showing of ‘disparate impact’ or ‘discriminatory effects' of a practice that is taken without discriminatory intent. Title Eight speaks only to intentional discrimination.
59. U.S. Bureau of the Census, Current Population Reports, Household Economic Studies, Series P-70-47, Asset Ownership of Households: 1993 (Washington, D.C. 1995), table F.
60. Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United Statesmen York: Oxford University Press, 1985
61. R. Allen Hays, The Federal Government and Urban Hous-/ (Albany, N.Y. 1985)
62. Massey and Denton, American Apartheid, 51–55.
63. Economic Report ofthe President: Annual Report of the Council of Economic Advisory Washrington, D.C. 1998, 129-31.
64. Eugene R. Gaetke and Robert G. Schwenn, “Government Lawyers and Their Private ‘Clients' Under the Fair Housing Act,” George Washington Law Review 65 (March 1997): 329–78.
65. U.S. Commission on Civil Rights, The Fair HousingAmendments of 1988: The Enforcement Report Washington, D.C. 1994
66. John R. Walter, “The Fair Lending Laws and Their Enforcement,” Federal Reserve Bank ofRichmond Economic Quarterly (Fall 1995): 61-77
67. Robert G. Schwenn, Housing Discrimination: Law and Litigation, Release #7 (St. Paul, Minn. 1997).
68. Council of Economic Advisors, Annual Report, 10 February 1998 (Washington, D.C. 1998), 129-31.
69. The State of the Nation's Housing / $9P7 (Cambridge, Mass. 1998), 17-19.
70. But see Michael Janofsky, “HUD Plans Nationwide Inquiry on Housing Bias,” New York Times, 17 November 1998, All.
71. For claims by conservative critics that the Clinton administration has pressed affirmative-action enforcement in housing policy, applying disparate impact standards not only to providers of housing but to lenders and insurers as well, see Robert R. Detlefsen, “Thin Red Line,” National Review 50 (21 December 1998): 34-35; and
72. Roger Clegg, “The Bad Law of Disparate Impact,” The Public Interestll (Winter 2000): 79–90.