The Fair Housing Act

Segregation in housing can be traced back to 1890 to 1940, and the racially segregated climate of society (Rotem, 2010). The Fair Housing Act (FHA) was enacted by Congress, and added as, Title VIII of the Civil Rights Act of 1968. It addresses discrimination on the basis of race, color, national origin and religion in the purchase or rental of a home, in obtaining a mortgage in the purchase of a home, in seeking assistance with housing assistance, or in engaging in other activities related to housing (www.

hud.gov). This research paper will explore the application of the incrementalism policy model to the Fair Housing Act and its subsequent amendments. This paper will also discuss the symbolic and material typologies in the context of the implementation and enforcement of the FHA. Finally, a discussion will follow regarding the enactment of the FHA to correct the market failure and government failure created by disparate impact discrimination.

Incrementalism And The Fair Housing Act

The history and timeline of events surrounding the enactment of the Fair Housing Act (FHA) are best explained in the incrementalism policy model. According to Charles Dye, the incrementalism policy model involves past government decision making made with changes in steps or increments. This type of decision making is slow in implementation and involves limited modifications to existing policies (Id.). As a policy model, incrementalism is viewed as “politically expedient” because any policy modifications are limited to existing programs rather than viewed as policy matters of significance (Anyebe, 2018). Policy makers generally may not have the time or resources to examine policy alternatives, and political tension in passing new laws each year is costly and requires major investment (Dye, 2012 and Anyebe, 2018). Incrementalism is a conservative policy model because an existing base program or policy is added to or modified in a manner in which attention is given to new programs or policies (Id.).

Incrementalism is applicable to the FHA because the FHA itself is codified as part of the Civil Rights Act of 1968, but it is not a statute separate and independent of itself. In the 1948 United States Supreme Court case Shelley v. Kraemer, the Court struck down a racially restrictive covenant in a neighborhood that limited the use or occupation of property solely to Caucasians violated the Equal Protection Clause of the Fourteenth Amendment. The Civil Rights Act of 1964 is landmark legislation passed when racial tensions were high after the assassinations of Malcolm X, and President John F. Kennedy, Jr. Fair housing modifications to the Civil Rights Act of 1964 came quickly after the assassination of Martin Luther King, Jr.; President Lyndon B. Johnson specifically requested that Congress pass the Act in the honor of King before his funeral to cease riots (Editors, 2010). It was said that President Johnson found “a way that would work” (Dye, 2012, p. 35). The FHA was passed, and it was added to the Civil Rights Act in 1968 as Title VIII to specifically address discrimination by race, color, national origin and religion. In 1974, the FHA was amended to prohibit discrimination based on sex. In 1988, The Fair Housing Amendment Act (FHAA) was enacted to expanding protections of the FHA to individuals from discrimination based on familial status, due to pregnancy and the presence of children under the age of 18 in the household, and disability (www.hud.gov). The FHAA is an amendment to Title VIII of the FHA. Incrementalism is plainly demonstrated in the gap of the attachment of the FHA to the Civil Rights Act of 1964, and the decades long gap ranging from the enactment of the FHA and the FHAA; there is no annual review of the entirety of the FHA within the context of the Civil Rights Act (Dye, 2012).

Although it appears that there is a clear case of the incrementalism policy model as the best policy model to explain the FHA, there are some activities that incrementalism does not explain. A cost-benefit analysis of alternative policies is unable to be conducted with political limitations and the diversity of values on the political-social-economic-racial spectrum (Dye, 2012). Similarly, during times of crisis, incrementalism does not address how to handle the tasks of decisions, is conservative and stifles innovation (Anyebe 2018).

Incrementalism also does not address the weaknesses in oversight for feedback and correction (Lindblom, 1979). Since its inception, and its subsequent amendments, the FHA has been successful at lessening discrimination since the enforcement process begins with a HUD complaint and can end up in federal court if the dispute cannot be resolved (Anderson, 2015). However, in only lessening rather than eradicating housing discrimination, the existence of housing discrimination is still problematic in both urban and suburban areas and the percentage of complaints actually filed is significantly less than the amount of discrimination experienced by individuals and families (Id.).

Lastly, incrementalism does not consider the availability of better strategic alternatives because the focus is only upon existing programs and limitations to the modifications to those programs (Lindblom, 1979; Anyebe, 2018). The enactment of the FHA was clouded by need to quickly respond to the assassination of Martin Luther King, Jr., the ensuing riots thereafter, and the sting of the inability of the families of minority military servicemembers in the Vietnam War to obtain housing (www.hud.gov). Enforcement problems occurred in the enforcement of the FHA after its passage leading to the need of the proposal of new legislation in the 1970s to expand its protections and strengthening the enforcement of the complaint process (Bullock, Lamb, & Wilk, 2018).

Policy Type Of The Fair Housing Act

Of the various typologies of policy, the FHA is both symbolic and material. According to James E. Anderson, public policy is either material or symbolic based on the allocation of benefits. Namely, policies that are material are tangible in the benefit that it provides; namely, that there are substantive benefits to those it is intended to benefit (Anderson, 2015). Symbolic policies are the opposite and are intangible in that the appeal is to values, including social justice (Id.).

At the outset, the FHA was a symbolic policy due to “no readily discernible changes in societal conditions” (Anderson, 2015, p. 294). The enforcement powers of the FHA enacted in 1968 were based on the complaint filing system with its enforcing agency, the Department of Housing and Urban Development (HUD) (Bullock, Lamb, & Wilk, 2018). At the inception of the FHA, HUD was granted mediation powers of enforcement of the discriminatory practices alleged by individuals against other involved parties, but the enforcement powers were deemed “toothless” because the Department of Justice could not step in unless a “pattern or practice of discrimination” was found which was rare (Anderson, 2015, p. 294).

The 1988 amendments to the FHA, also known as the FHAA, significantly changed the enforcement provisions to the Act changing the policy type to a material one. The FHAA was supported by President Ronald Reagan and was modified to prohibit discrimination in housing based on disability and familial status. The enforcement provisions were strengthened to either permit the initiation of a lawsuit by the attorney general or for the case to be referred to a HUD administrative law judge, where resolution of the complaint failed in mediation (i.e., conciliation) and HUD found a breach in FHA protections (Bullock, Lamb, & Wilk, 2018). Additionally, where a violation of the FHA was found, consequences could include actual damages, injunctive relief, attorney’s fees, or fines (Id.).

Despite the amendments to the FHA to strengthen enforcement, it is worth noting that the symbolic-material typology is really a continuum since a policy is neither completely symbolic or fully material (Anderson, 2015). To illustrate, recipients of vouchers under the Section 8 Voucher Program, an FHA housing program assisting low-income citizens with financial rental assistance, are experiencing problems in the use of their vouchers to obtain housing. Landlord participation in the Section 8 Voucher Program is voluntary, and courts are finding it increasingly difficult to resolve cases where landlords withdraw from the Program (Rotem, 2010). In Salute v. Stratford Greens Garden Apartments, the Second Circuit has held that a landlord cannot be sued for withdrawal from the FHA program for racial discrimination using a disparate impact argument. The Sixth Circuit, in Graoch Associates #33 v. Louisville/Jefferson County Metro Human Relations Commission, ruled the exact opposite of the Second Circuit finding that the disparate impact analysis can be used to demonstrate a violation of the FHA by withdrawing as a landlord with the Section 8 program. Since the courts have been divided on this issue, the variation in these rulings demonstrates that the FHA policy prohibiting the withdrawal of landlords from the Section 8 Voucher Program for discriminatory reasons is symbolic (Rotem, 2010).

Roles Of Market And Government Failure

The existence of discrimination in markets, particularly the disparate treatment of individuals in the rental, sale and purchase of housing was a market failure that led to the enactment of the FHA and its subsequent amendments. Profit is the purpose of private firms (Gable, 2019). As such, it is generally unprofitable for housing-related firms, such as apartment complexes or real estate brokerages, to focus on the resulting harm of discrimination that arises as part of doing business (Id.). Alternatively, discrimination existed among those that participated in markets that found a correlation between raising profitability and below average productivity and poor credit among minorities (Henderson, 2002). The market ultimately failed by excluding specific citizens from obtaining housing. Generally, market failure can be corrected through rule changes, but the market failure could not be corrected prior to the enactment of the FHA because segregation was determined to be lawful in the Supreme Court ruling of Plessy v. Ferguson (which validated segregation where there were separate but equal facilities).

A market failure also existed where the families of minority infantrymen fighting or killed in the Vietnam War were not able to rent or buy homes in certain residential areas because of their race, national origin and color (www.hud.gov). This externality is a side effect, or an unintended cost of doing business (Gable, 2019). The role of the government was then to redress discriminatory practices with regulation and legislation (Id.).

Although the FHA was enacted to correct the market failure, there were irregularities when it was initially enacted. Initially, the FHA did not adequately serve the citizens it was enacted to protect because it was deemed “toothless” (Anderson, 2015). The amendments codified in the FHAA provided substantial remedies that previously did not exist. Currently, however, the percentage of housing discrimination complaints filed is unquestionably less than the discrimination experienced by individuals (Anderson, 2015).

The existence of discrimination in housing also created a government failure. The FHA was enacted due to the lack of equal representation to citizens and the failure of the government to represent citizens affected by segregation (Id.). The Housing Act of 1949, which was similarly enacted to assist in the development of housing for the middle class by way of mortgage assistance, ultimately failed (Hoffman, 2000).

In 1954, prior to the enactment of the FHA, the Supreme Court struck down segregation in education as unconstitutional in in Brown v. Board of Education. The Court ruled that changes would be made “with all deliberate speed,” but it took many years beyond the enactment of the FHA for changes to be nationally implemented, and there has been litigation regarding busing to desegregate schools as late as 2015 (Id.).

Although the FHA was enacted to remedy government failure, there have been inconsistencies. First, the remedies under the FHA may not provide redressable remedies to individuals who are unable to identify the party discriminating against them, or where the other party is deceased or unable to pay (Katz, 1991). Second, the remedies under the FHA may refused by a court because there is another entity determined to more appropriate to award the remedy (e.g., Congress), or because the remedy is not constitutional (Id.). Additionally, by 1987, 70 percent of all FHA complaints were being processed by state and local FHAP agencies rather than at the federal level (Bullock, Lamb, & Wilk, 2018). President Reagan supported the Fair Housing Assistance Program (FHAP), in which HUD provides funding to state and local agencies that administer fair housing laws in a manner that HUD determines to be substantially equivalent to the Fair Housing Act as part of his government reduction platform, permitting state and local governments to locally enforce the FHA (Id.).

More recently, in the Section 8 Voucher Program, a program of the FHA that provides rental assistance to low-income citizens, some courts are not holding landlords responsible for their withdrawal from participation in the Section 8 Voucher Program even though a protected class of citizens are disproportionately impacted (Knapp v. Eagle Property Management Corp.). Government failure is also demonstrated in subtle discrimination. Statistically, landlords have discriminated because of a correlation between Caucasian tenants and maximized profits (Hanson, et al., 2011) Research has shown that landlords use more language inviting individuals with names traditionally associated with Caucasians (as opposed to any other race) to view a unit or respond to email communications (Id.).

Conclusion

This paper explored the application of the incrementalism policy model to the Fair Housing Act and its subsequent amendments. The FHA was a response to the racial discrimination experienced by minorities spanning many decades and was also a response to discrimination by those who served in the military, and their families, during the Vietnam War who experiences discrimination in obtaining housing. It was added to the Civil Rights Act of 1964 in memoriam of Martin Luther King, Jr. to honor the fair housing efforts of Martin Luther King, Jr., and to cease rioting occurring upon news of his death, and subsequently amended to provide further protections to additional individuals. Although incrementalism best explains the enactment of the FHA and its subsequent amendments, there are limitations to the policy model applicability – it is conservative, stifles innovation, does not address weaknesses in oversight, and, among other concerns, does not consider the availability of better strategic alternatives.

The symbolic and material typologies were also discussed in the context of the implementation and enforcement of the Fair Housing Act. Initially, there were no substantive remedies resulting from the filing of a complaint alleging discrimination under the FHA, making any this Act symbolic. However, amendments expanding individuals included in the definition of discrimination, and detailing enforcement provisions with specific remedies, including financial, changed the typology to material. The FHA is on a continuum of the symbolic and material typologies; several aspects of the FHA, to include some programs, are more symbolic than material in nature, despite the existence of the Act for over fifty years.

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