When the Fair Housing Act became law in 1968, high levels of residential segregation had already become entrenched. However, the Act’s promise as a tool for deterring discrimination and dismantling segregation remains unfulfilled. During the 40 years since the Act was passed, these segregated housing patterns have been maintained by a continuation of discriminatory governmental decisions and private actions that the Fair Housing Act has not stopped.

For example, some local governments have used the zoning power delegated by state governments to indirectly control who may live within their boundaries.^[66] There has been a consistent pattern of exclusionary zoning and land use decisions that have been barriers to the building of affordable housing in predominantly White neighborhoods in local jurisdictions with a predictable segregative and discriminatory impact on minorities.^[67] Similarly, low-density-only zoning has been common, despite its tendency to reduce the rental housing available and thus effectively excluding African Americans and Latinos from living in certain neighborhoods or even entire communities.

Private actions have continued to contribute to the maintenance of segregated housing patterns since the passage of the Fair Housing Act. The number of discriminatory acts has persisted even with the increased enforcement authority given to the federal government by the Fair Housing Amendments Act of 1988.^[68] Although national surveys of housing discrimination over the past three decades show some declines in the most blatant forms of discrimination, overall levels of discrimination remain unacceptably high. Indeed, the practice of "steering" appears to be on the rise. ^[69] The Supreme Court has described steering as a "practice by which real estate brokers and agents preserve and encourage patterns of racial segregation in available housing by steering members of racial and ethnic groups to buildings occupied primarily by members of such racial and ethnic groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups."^[70] The most recent national study, HUD’s 2000 Housing Discrimination Study, reported very high levels of discrimination and steering against Black, Latino, Asian and Native American home seekers based on the experience of paired testers (investigators posing as renters or homebuyers) in major metropolitan housing markets.^[71]

Another study conducted by HUD through the Urban Institute about lending practices found that African American and Hispanic homebuyers in the two cities tested – Los Angeles and Chicago – faced a significant risk of unequal treatment when they visited mainstream mortgage lending institutions to make pre-application inquiries.^[72] Specifically, African Americans and Hispanics were told about fewer loan products, offered less assistance, and denied basic information about loan amount and house price.^[73]

Housing discrimination distorts the real estate market in ways that both harm home seekers and frustrate the clear majority of real estate professionals who work hard to practice fair housing in their day-to-day business. When rates of discrimination are high it is difficult for those who are strong supporters of fair housing to function efficiently in the marketplace.

People with disabilities have also suffered a long history of residential discrimination and exclusion. For people with disabilities, whether physical, developmental, cognitive, or psychiatric, housing choice has always been quite limited. Historically, the nation’s policy was to segregate people with disabilities in every aspect of community life. Housing providers were free to discriminate against people with disabilities, and housing, especially multifamily housing, was typically inaccessible to individuals with disabilities. Even today, many people with disabilities are forced into institutional settings that resemble medical centers and cannot find appropriate, affordable, accessible housing. ^[74]

Although some progress has been made in expanding housing options for people with disabilities, testing has shown that discrimination is still common. In fact, "net measures of systemic discrimination against persons with disabilities are generally higher than the net measures of discrimination on the basis of race and ethnicity."^[75]

Families with children also have had great difficulty finding housing historically, whether due to individual discrimination by owners or rental agents, exclusionary zoning policies, or the disparate impact of seemingly neutral policies.^[76] Use of occupancy restrictions that limit the number of occupants in a unit to fewer than two persons per bedroom, or rental agents who emphasize the lack of children or play areas in a building, tend to disproportionately exclude families with children and also violate the Fair Housing Act.^[77] As one witness explained, "individual suburbs tend to discourage the building of new housing for families with children" because of a desire to maximize tax revenues with the fewest service expenditures.^[78] Moreover, "in urban areas families with children in the rental market tend to be minority group members, while White families with children tend to be suburban homeowners. Thus, policies against children can carry significant racial impact."^[79]

Although much of the discussion about housing issues for the poor focuses on those living in metropolitan areas, the rural poor are generally poorer than their counterparts in metropolitan areas.^[80] Rural minorities are more likely to live in poverty than are rural whites, with housing quality a salient problem.^[81] For instance, in Southern and Western states, some towns and cities have expanded their borders but excluded long-standing communities of color at the towns’ fringes.^[82] Such exclusion creates enclaves with inferior or no access to basic public services such as water, sewer, or police protection that are enjoyed by White residents.^[83]

The rural poor live in terrible housing conditions, if in housing at all. A 1999 survey found that 11 percent of California’s farmworkers lived in dwellings not known to county tax assessors or the U.S. Postal Service — mostly structures not intended for human habitation, such as garages, sheds, shacks, or "under the trees." Overcrowding is another problem, especially for rural Latinos. The same survey found that 48 percent of California farmworkers lived in crowded conditions and 25 percent in extremely crowded conditions. Children live in the majority of these overcrowded homes.^[84] Studies have also linked adverse health outcomes to substandard rural housing conditions, including high rates of autism among children whose mothers lived near fields sprayed with pesticides.^[85]

Rural communities have been affected by the issues facing the poor generally, such as high rates of foreclosures of subprime loans, and rising housing costs as a result of sprawl extending from metropolitan areas.^[86] Language barriers are only increasing, as large numbers of indigenous people who speak neither English nor Spanish make up an increasing number of migrants.^[87]

Next Section: Fair Housing Enforcement at HUD is Failing

Footnotes

[66] Rolf Pendall et al., From Traditional to Reformed: A Review of the Land Use Regulations in the Nation’s 50 Largest Metropolitan Areas 3 (2006) (noting that zoning has long been used to separate people by race and by class); see, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (finding that a zoning ordinance that barred construction of multi-family housing, effectively barring African American families from moving to neighborhood) did not intentionally discriminate and did not violate the Constitution). On remand, the Court of Appeals found this ordinance did violate the Fair Housing Act under a disparate impact analysis, 558 F.2d 1283 (7th Cir. 1977) (Arlington Heights II)

[67] See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977); Huntington Branch, NAACP v. Huntington, 844 F.2d 926 (2d Cir.), aff'd per curium, 488 U.S. 15 (1988); United States v. City of Parma, Ohio, 661 F.2d 562 (6th Cir. 1981), U.S. v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), etc.

[68] Testimony of Robert G. Schwemm (Atlanta), at 3.

[69] Margery Austin Turner et al., Urban Inst., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000, at 6-16 (2002).

[70] Havens Realty Corp. v. Coleman, 455 U.S. 363, 366 n.1 (1982).

[71] Rates of African American and Latino discrimination are based on 4,600 paired tests in 23 metropolitan areas while rates of discrimination suffered by Asians are based on 889 paired tests in 11 metropolitan areas. Margery Austin Turner et al., Urban Inst., Discrimination in Metropolitan Housing Markets: National Results from Phase I HDS 2000, at i (2002); Margery Austin Turner et al., Urban Inst., Discrimination in Metropolitan Housing Markets: National Results from Phase II HDS 2000, at iii (2002). Native American discrimination rates were studied in the metropolitan areas of three states. Margery Austin Turner et al., Urban Inst., Discrimination in Metropolitan Housing Markets: National Results from Phase III HDS 2000, at 2-1 (2003).

[72] Margery Austin Turner, et al., Urban Inst,, All Other Things Being Equal: A Paired Testing Study of Mortgage Lending Institutions, at iii (2002).

[73] Id., at iv.

[74] Testimony of Marca Bristo (Chicago), at 3.

[75] Testimony of Marca Bristo (Chicago), at 5, 7 (citing U.S. Dep’t of Hous. & Urban Development, Discrimination Against Persons with Disabilities: Barriers at Every Step (June 2005), available at http://www.hud.gov/offices/fheo/library/dss-dounload.pdf).

[76] See Daniel Barkley, Beyond the Beltway: Familial Status Under the Fair Housing Act, 6-WTR J. Affordable Hous. & Community Dev. L. 93, 93. A pair of 1980 HUD surveys found "that 99 percent of respondents reported numerous problems relating to housing discrimination against children"; "that 25 percent of all rental units did not allow children; 50 percent were subject to restrictive policies that limited the ability of families to live in those units; and almost 20 percent of families were living in homes they considered less desirable because of restrictive policies." See id. (citation omitted).

[77] See Testimony of Keenya Robertson (Atlanta), at 2 (discussing litigation against an affordable housing developer and property manager in Florida that imposed occupancy restrictions). See, e.g., United States v. Tropic Seas, 887 F. Supp. 1347 (D.C. Haw. 1995); S. Cal. Hous. Rights Ctr. v. Krug, 564 F. Supp. 2d 1138 (C.D. Cal. 2007); Snyder v. Barry Realty, Inc., 953 F. Supp. 217 (N.D. Ill. 1996).

[78] See Testimony of Gail Schecter (Chicago), at 2.

[79] James A. Kushner, Gov. Discrimination: Equal Protection Law & Litig., § 5:15, Children (2008); Testimony of Keenya Robertson (Atlanta).

[80] Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 3.

[81] "Housing Poverty in Rural Areas" (Los Angeles exhibit), at 4, 6.

[82] Charles S. Aiken, Race as a Factor in Municipal Underbounding, 77 Annals Ass’n Am. Geographers 564, 564–79 (1987); Daniel T. Lichter et al., Municipal Underbounding? Annexation and Racial Exclusion in Small Southern Towns, 72 Rural Soc. 47 (2007) (finding White communities less likely to annex African American communities); U.N.C. Ctr. for Civil Rights, Invisible Fences: Municipal Underbounding in Southern Moore County (2006),

[83] See, e.g., James Dao, Ohio Town’s Water at Last Runs Past a Color Line, N.Y. Times, Feb. 17, 2004, at A2 (describing Zanesville, Ohio’s denial of water to an African American community for more than fifty years); Lee Romney, Poor Neighborhoods Left Behind, L.A. Times, Sept. 18, 2005, at B1 (describing exclusion of four Latino neighborhoods from the city of Modesto, California). See Kennedy v. City of Zanesville, Oh., 505 F. Supp. 2d 456 (S.D. Ohio 2007).

[84] Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 7-8; "The Challenge of Housing California’s Hired Farm Laborers" (Los Angeles exhibit), at 5.

[85] Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 7; "The Challenge of Housing California’s Hired Farm Laborers" (Los Angeles exhibit), at 6-7.

[86] Testimony of Jose Padilla and Ilene Jacobs (Los Angeles), at 8, 10-11.

[87] "Justice at the Margins" (Los Angeles exhibit), at 32.