The Supreme Court's ruling last week that factors other than intentional racial discrimination can be considered in determining whether policies promulgated by government or private entities violate the 1968 Fair Housing Act is simply a reminder that the century-long struggle to end such practices — launched following the adoption of racially restrictive housing covenants by Baltimore in 1910 — continues. Historical milestones in this struggle include the court's ruling in 1917 in Buchanan v. Warley that those ordinances violated the Fourteenth Amendment and, three decades later, the ruling in Shelley v. Kraemer that state and federal governments could not enforce them. Nevertheless, federal agencies, banks, insurance and real estate companies established and utilized systemic practices of racial discrimination that, despite the proscription of Fair Housing and state and other laws, still persist.
In an effort to establish a non-discrimination housing policy for the government in the 1930s, Robert C. Weaver, a Harvard-trained economist, led in developing a program in the Housing Division of the Public Works Administration and the U.S. Housing Authority that was a prototype for the goals and timetables principle for subsequent affirmative action programs in the 1960s. A later study by the NAACP Legal Defense and Educational Fund, Inc., then the NAACP's legal department, emphasized that standard residential discrimination practices, which excluded African Americans from most neighborhoods and restricted them to a few sharply defined areas, conditioned the pattern of use for schools, playgrounds, clinics, transportation, playgrounds and other public facilities. Following the end of World War II, Levittowns and programs like urban renewal became notorious examples of how federal money was used to create endemic residential segregation.
Weaver's affirmative action principle is inherent in the Supreme Court's decision enunciated last week by Justice Anthony M. Kennedy in the latest housing discrimination case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project. Justice Kennedy said that discrimination could be inherent in a policy that had a "disparate impact" on blacks. "Much progress remains to be made in our nation's continuing struggle against racial isolation," he wrote in the 5-4 majority decision.
Because Justice Kennedy somewhat followed the now customary pattern of crediting Rev. Martin Luther King Jr. for the 1968 Fair Housing Act, even though he did not participate in the struggle that led to its passage by Congress following his assassination, it should be noted that the key strategist then was Baltimore-native Clarence Mitchell Jr., popularly called the "101st senator," who was director of the NAACP Washington Bureau. Mitchell was the only civil rights leader who supported President Johnson in 1966 when the Texan announced he would seek a law to bar discrimination in housing. While the other leaders wanted Johnson to issue an executive order similar to President John F. Kennedy's for that purpose, Mitchell — who had led the struggle for passage of the 1957 Civil Rights Act, the 1960 Civil Rights Act, the 1964 Civil Rights Act and the 1965 Voting Rights Act — recognized that only a law expressing the national will could begin to correct the housing discrimination malaise.
This was the historical reality that Justice Kennedy sought to address when he said this case "may seem simply as an attempt to second-guess which" remedy is more appropriate for meeting the continuing challenge of segregated housing. But it was important to uphold the will of Congress in 1968.
Denton L. Watson is author of "Lion in the Lobby, Clarence Mitchell, Jr.'s Struggle for Passage of Civil Rights Laws" and editor of the "Papers of Clarence Mitchell Jr.," a historical documentary editing project sponsored by SUNY College at Old Westbury. His email is firstname.lastname@example.org.