50. The ALJ concluded that the landlord had violated 42 U.S.C. § 3604(b), which forbids discrimination on the basis of sex "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith," and 42 U.S.C. §3617, which makes it unlawful "to coerce, intimidate, threaten, or interfere" with any person in the exercise of rights secured by the Fair Housing Act. Krueger, 115 F.3d at 491-92. 51. See Trafficante, 409 U.S. at 211 (quoting Senator Mondale, 114 Cong. Rec. 3422 (1968). 52. See note 24 above. 53. City of Parma, 494 F. Supp. at 1049. 54. See The Cleveland Plain Dealer, (1998), which notes that "interest is high in a downpayment aid program geared to attract Black homebuyers to this predominantly White suburb❞ and that "the suburb clearly is building bridges to people who a Federal judge said city leaders once tried to exclude." 55. The United States filed its complaint in United States v. First Real Estate Corp., C.A. No. CV-98-N1212-S (N.D. Ala. May 14, 1998) simultaneously with a consent de cree. 56. Village of Addison, 988F. Supp at 1135. 57. 42 U.S.C. §3601. References The Cleveland Plain Dealer. 1998. "Parma Hopes Financial Incentives Encourage Blacks to Buy Houses," August 17, p. 1B. The Columbus Dispatch. 1997. "Parma Opens Office to Woo Blacks to City," Fair Housing Council of Greater Washington. 1998. The Fair Lending Index, An Audit of Race and National Origin Discrimination in the Greater Washington Mortgage Lending Marketplace. (Available on the Internet at http://www.fairhousing.org/Gateways/ index_temmp.html). Federal Financial Institutions Examination Council. 1998. Press Release, August 6. (Available on the Internet at http://www.FFIECG.OVv/pr080698.htm). Hancock, Paul F. 1997. Testimony before the Subcommittee on the Constitution, Committee on the Judiciary, United States House of Representatives, concerning H.R. 589 ("Fair Housing and Freedom of Speech Act of 1997”), 105th Cong., 1st Sess. (April 17, 1997). (Available on the Internet at http://www.house.gov/judiciary/549.htm). Jet Magazine. 1994. "Chicago Landlord Agrees to Pay $180,000 to Settle Suit Charging He Sexually Harassed Six Female Tenants," December 19, p. 7. Ladd, Christine Robitscher. 1997. in "Federal Fair Housing Enforcement: The Clinton Record at the End of the First Term," The Continuing Struggle: Civil Rights and the Clinton Administration-Report of the Citizens' Commission on Civil Rights. National Advisory Commission on Civil Disorders. 1968. Report of the National Advisory Commission on Civil Disorders. Patrick, Deval. 1996. Statement, before the Subcommittee on HUD Oversight and Structure, Committee on Banking, Housing, and Urban Affairs, United States Senate, concerning S. 1132: A Bill to Amend the Fair Housing Act and for Other Purposes ("Fair Housing Reform and Freedom of Speech Act of 1995"), 104th Cong., 1st Sess. (September 18, 1996), WL 10831070. Schwemm, Robert G. 1988. "The Fair Housing Act After Twenty Years: Private Enforcement and the Fair Housing Act," Yale Law and Policy Review 6: 375, 376. Wilke, John. 1996. "Mortgage Lending to Minorities Shows a Sharp 1994 Increase,” The Wall Street Journal, February 13, pp. A1, A8. The Fair Housing Michael H. Schill Samantha Friedman Thirty years ago, Congress enacted the landmark Fair Housing Act of 1968, which outlawed for the first time private as well as public discrimination in housing. Twenty years later, Congress passed the Fair Housing Amendments Act of 1988, a law that significantly expanded the scope of the original legislation and strengthened its enforcement mechanisms. Like most important pieces of Federal legislation, the Fair Housing Act and the 1988 Amendments Act embody a series of careful compromises crafted by members of Congress. In this article, we examine the first decade of experience under the 1988 Amendments. We briefly describe the unusual enforcement process created by the Amendments, that permits either party to choose which branch of government will adjudicate their dispute. Using contemporaneous legislative history, we also explain why Congress devised such an enforcement mechanism and how members expected it would operate in practice. In the remainder of the article, we use administrative data obtained from the Federal Government as part of an ongoing effort to evaluate fair housing enforcement to describe the first 10 years under the Amendment. Particular attention will be paid to the question of whether the enforcement mechanisms contained in the 1988 Amendments Act have fulfilled the expectations of its sponsors. The Enforcement Provisions of the Fair Housing Act of 1968 Congress passed Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act, on April 10, 1968, just 6 days after the Reverend Martin Luther King, Jr., was assassinated in Memphis. The Act made it illegal to discriminate in the sale or rental of housing on the grounds of race, color, religion, or national origin.' Despite the fact that several States and localities had already adopted laws forbidding discrimination in privately owned housing, Title VIII was the product of several years of contentious legislative debate. Indeed, the difficulty the sponsors had in amassing sufficient votes to overcome a Senate fillibuster is reflected in several compromises throughout the Act. : A Journal of Policy Development and Research • Volume 4. of Housing and Urban Development Office of Policy Development For example, the so-called Mrs. Murphy provision exempts landlords who occupy apartments in buildings of fewer than five units from the prohibitions against discrimination. Similar exemptions apply to sellers of single-family homes and religious institutions. Perhaps the legislative compromise that would have the most profound impact on the Fair Housing Act's efficacy in fighting housing discrimination was its enforcement provisions. The original bill sponsored by Senator Walter Mondale contained provisions that would have empowered HUD to investigate discrimination of complaints, hold evidentiary hearings, and issue enforcement orders. After several successful filibusters, Senator Everett Dirksen introduced an amendment that stripped the bill of most of its enforcement provisions. Under the Act, persons who felt that they had been discriminated against could file complaints with HUD, but the agency only had the power to investigate and seek conciliation. If efforts to achieve voluntary settlements failed, as they often did, the complainant would be left to file a private lawsuit. Private litigants could seek actual damages and injunctive relief, but punitive damages were capped at $1,000. The Fair Housing Act also provided for the payment of legal fees, but only in instances where the complainant could not afford to pay his or her own attorney. Although HUD had little power to enforce the law, the U.S. Department of Justice (DOJ) was given the authority to bring lawsuits under the Act when it uncovered a pattern or practice of discrimination. During the next 20 years, despite the fact that housing discrimination remained endemic in the United States, the Federal Government was either powerless or unwilling to take major steps to enforce the Act. HUD's conciliation efforts were often fruitless, and politics frequently constrained the DOJ from aggressively pursuing pattern and practice cases. Indeed, in legislative debates over the 1988 Amendments Act, the consensus for change was bipartisan and widespread. One of two cosponsors of the bill in the Senate, Edward Kennedy, characterized the Fair Housing Act as a "toothless tiger" (Kennedy, 1988). Former HUD Secretary Patricia Roberts Harris was quoted as saying that filing a complaint was a “useless task” (Henderson, 1987), and her successor Secretary Samuel Pierce cited the lack of effective HUD enforcement power as the "most glaring deficiency in Title VIII" (Pierce, 1987). The Fair Housing Amendments Act of 1988 Efforts to bolster Federal enforcement powers date back to the late 1970s when Congress repeatedly considered legislation to give HUD the power to enforce the Fair Housing Act, subject to judicial review in the Nation's courts of appeal. Despite significant support in Congress for amending the law, deep disagreements surfaced over the scope of power to be accorded to HUD and its administrative law judges. The major source of concern was whether Congress had the authority to vest sole jurisdiction over discrimination complaints in HUD administrative law judges. A 1974 Supreme Court case, Curtis v. Loether (415 U.S. 189, 1974), had interpreted the Seventh Amendment to the Constitution to provide respondents with the right to jury trial when they were sued for damages under the Fair Housing Act. In addition, the Reagan Administration questioned whether administrative law judges (ALJs) would be as efficient and cost-effective as proponents suggested (Reynolds 1987). Representative Hamilton Fish of New York State broke the logjam by crafting a new enforcement mechanism in 1988. Fish, working in cooperation with civil rights groups and the National Association of Realtors, devised a compromise that sidestepped the constitutional issue. Upon the filing of a complaint alleging housing discrimination, HUD simultaneously seeks to achieve conciliation and to investigate the claim. If the complaint comes from a State or locality whose law has been deemed by HUD to be substantially equivalent to the Fair Housing Act, it must be referred to that States's human rights agency. For complaints over which it retains jurisdiction, HUD must determine whether reasonable cause exists to believe that the complainant has been discriminated against. If HUD finds that reasonable cause exists, it files a charge with the Office of ALJS in HUD. Within 20 days either party can elect to have the case adjudicated in Federal district court rather than by an ALJ. If no election takes place, an ALJ hears the case and issues a ruling. In election cases, DOJ represents the interests of the complainant and the Government in Federal district court; in cases before the ALJS in HUD, the complainant is represented by an attorney from HUD's Office of General Counsel. Complainants also have the option of filing claims directly in Federal district court, bypassing the Federal enforcement apparatus altogether. Remedies available to successful complainants vary depending upon the forum in which their claims are adjudicated. ALJs in HUD are empowered to grant compensatory damages, injunctive relief, and civil penalties up to $50,000 in the case of three offenses within a 7-year period. In addition to compensatory damages and injunctive relief, Federal district court judges or juries may award punitive damages. In addition to strengthening Title VIII's enforcement provisions, the 1988 Amendments also brought within its protective embrace two additional groups. Under the Amendments, it is now illegal to discriminate against families with children and against persons with physical or mental disabilities. Builders of housing must also ensure accessibility in certain units and landlords and condominium associations must make reasonable accommodations to meet the needs of disabled tenants. Congress retained the preference reflected in the 1968 Fair Housing Act for having complaints enforced by State and local human rights agencies. If an agency is certified by HUD to have laws with protections and enforcement mechanisms that are substantially equivalent to those of the Federal Government, HUD must refer the case to that agency for enforcement. Typically, these State and local agencies receive financial assistance from the Federal Government under the Fair Housing Assistance Program (FHAP) to defray the costs of enforcement. Indeed, the State and local agencies themselves are typically referred to as FHAP agencies. The 1988 Amendments gave FHAP agencies 40 months to bring their laws into compliance with the Fair Housing Act, which for many agencies meant adding protections based upon familial status and disability. Although inferring legislative intent is seldom clear-cut, it seems that members of Congress had certain expectations at the time the 1988 Amendments were passed about how the legislation would work out in practice. Under the existing law, there was little incentive for respondents to conciliate discrimination claims because HUD had no power to penalize recalcitrant or culpable parties. Private litigation was, for the most part, an empty threat because it took too long for matters to be resolved and cost too much money. Therefore, several members of Congress, including the chairman of the House Committee on the Judiciary, Peter Rodino, expressed the view that the strengthened enforcement provisions would make parties take HUD's conciliation efforts more seriously and thereby promote settlements (Rodino, 1987).3 In addition, retention of the requirement that complaints from States and localities with substantially equivalent laws be referred back to State and local human rights commissions led many members of Congress to believe that most cases of housing discrimination would bypass the Federal Government altogether (see, for example, Fish, 1988). One member of Congress recounted that, of the 4,699 complaints received by HUD in 1987, 72 percent had been referred to State and local agencies (Thurmond, 1988). |