is one of the most virulent and intractable forms of discrimination. It occurs when purchase or rental of housing is denied to otherwise qualified individuals because of their *race, ethnicity, *gender, *religion, marital status, or disability. The Court’s contribution to ending housing discrimination was sporadic at first; it became more consistent over time as the *civil rights movement expanded and both the executive branch and the Congress acted to combat discrimination. However, the Court has focused mostly on *discriminatory intent and on action that is not neutral on its face and has generally refrained from invalidating actions where only a showing of a discriminatory impact has been made.
The Court’s earliest positive contribution to ending housing segregation came in *Buchanan v. Warley (1917), in which the Court, applying the *Fourteenth Amendment for the first time in a housing discrimination case, struck down a city ordinance requiring neighborhood racial segregation in housing.
In 1926, the Court, in *Corrigan v. Buckley (1926), appeared to support the constitutionality of *restrictive covenants, which were clauses in deeds restricting the conveyance of real property to members of certain racial, religious, or ethnic groups. In *Shelley v. Kraemer (1948), however, the Court held that judicial enforcement of restrictive covenants constituted discriminatory state action prohibited by the Fourteenth Amendment. In a (p. 476) companion case, Hurd v. Hodge (1948), the Court relied on the Civil Rights Act of 1866 to reach a similar conclusion. The final blow to restrictive covenants came in Barrows v. Jackson (1953), in which the Court prohibited the granting of damages for the breach of a restrictive covenant. Thus, by 1953 the Court had removed the legal enforceability of restrictive covenants.
In the 1950s and much of the 1960s, the Court refrained from hearing housing discrimination cases. In 1967 it returned to the problem when it held unconstitutional an amendment to the California constitution, adopted by referendum, prohibiting the state from acting in any way to prevent racial discrimination in the sale or lease of property. In Reitman v. Mulkey (1967), the Court held that the amendment, in the California environment of state laws prohibiting such discrimination, violated the Fourteenth Amendment by implicating the state in private racial discrimination. Similarly, in Hunter v. Erickson (1969), the Court struck down an amendment to the Akron, Ohio, city charter that blocked implementation of a fair housing ordinance.
When Congress finally acted to ban most housing discrimination in Title VIII of the 1968 Civil Rights Act, the Court upheld the effort. In *Jones v. Alfred H. Mayer Co. (1968), the Court gave an expansive reading to laws prohibiting housing discrimination. The appellee refused to sell a house to the Joneses on the ground that the husband was African-American. The Court held that the 1866 Civil Rights Act barred all racial discrimination in housing, private as well as public. The Court followed this up with another expansive reading, this time of Title VIII of the 1968 Civil Rights Act. In Trafficante v. Metropolitan Life Insurance Co. (1972), a unanimous Court broadly construed standing requirements to allow current tenants in a large apartment complex to sue their landlord on behalf of minority applicants (see standing to sue). The Court also upheld the standing and a claim of discrimination by municipality and four of its residents who alleged that local realtors were destroying integration by racial steering in Gladstone v. Village of Bellwood (1979).
The Court has been more circumspect about allegations that facially nondiscriminatory *zoning has supported housing discrimination. In Warth v. Seldin (1975), the Court denied standing to various parties who alleged that the zoning plan of a Rochester, New York, suburb effectively prohibited the construction of low-income, integrated housing. Similarly, in Village of *Arlington Heights v. Metropolitan Housing Development Corp. (1977), the Court upheld zoning that effectively prevented low-cost, integrated housing from being built. In James v. Valtierra (1971) and City of Eastlake v. Forest City Enterprises, Inc. (1976), the Court upheld a state requirement for referendum approval of subsidized housing projects and zoning changes, respectively; though the discriminatory impact of such actions was conceded.
The Court has decided a number of cases involving communitywide attempts to keep certain kinds of people out. For example, in Village of *Belle Terre v. Boraas (1974), the Court upheld a local ordinance limiting occupancy to nuclear families, against a *First and Fourteenth Amendment challenge by a group of unrelated students. Three years later however, in Moore v. City of East Cleveland (1977), the Court struck down a similar ordinance that was used to prohibit a grandmother from living with her grandson. And in City of Cleburne v. Cleburne Living Center (1985), it struck down a municipality’s attempt to bar a group home for the mentally retarded.
Housing discrimination has not been eliminated by Court action, however. In February 1985, a nationwide study found massive racial segregation in public housing projects sheltering nearly ten million people. The U.S. Commission on Civil Rights noted that in the 1970s housing segregation seemed to worsen as whites fled to suburbs that blacks could not afford or were kept out of by active discrimination. While part of the reason may be the failure of the executive branch to implement existing laws, judicial action has had little impact. Court decisions have resulted in little appreciable change in housing discrimination.
Robert G. Schwemm, Housing Discrimination Law (1983; supp. 1986). Clement E. Vose, Caucasians Only (1967).
Gerald N. Rosenberg