The Future of Fair Housing Litigation

This article is a revised version of the keynote address I gave at a conference entitled Where is Fair Housing Headed in This Decade? sponsored by The John Marshall Law School in the Fall of 1992. As its title implies, the conference focused on the future of fair housing, and my address dealt with certain developments that I felt were not only observable in the early years of the 1990s, but were also likely to be important in the remaining years of this decade. Many of these developments—such as the growing role of the federal government in fair housing enforcement and the evolution of the United States Department of Housing and Urban Development\u27s (HUD\u27s) system for handling fair housing complaints—are directly traceable to the 1988 Fair Housing Amendments Act (FHAA). The FHAA amended the original Fair Housing Act (Title VIII of the Civil Rights Act of 1968) in a number of significant ways, most notably by adding handicap and familial status to the types of discrimination outlawed by the statute and by creating a new enforcement mechanism for handling administrative complaints to HUD. It is already clear that implementation of the changes wrought by the FHAA will occupy a major part of the fair housing agenda throughout the 1990s. It is also clear, however, that many of the key developments in fair housing law in this decade will involve provisions of Title VIII that were not changed by the FHAA, including the basic prohibitions against racial and national origin discrimination that have been in place since 1968. Courts are still struggling with a number of important issues under the 1968 Act, such as whether it covers racial discrimination by home insurers, how far it goes in barring the use of only white models in housing ads, and what constitutes a proper damage award in a Title VIII case. Meanwhile, studies published in the early 1990s show that black and Hispanic homeseekers continue to encounter high levels of discriminatory treatment in their efforts to buy, rent, and finance housing, levels that may well be as high as they were in the 1970s. The highly segregated nature of America\u27s housing is a fact known to virtually every citizen, from the casual observer of the Rodney King trial to the professional demographer intent upon dissecting the results of the 1990 census. Obviously, much work remains to be done if Title VIII\u27s original goals of eradicating racial discrimination in housing and replacing the ghettos with truly integrated and balanced living patterns are to be fulfilled. This article attempts to provide a rough sketch of what the fair housing landscape will look like for the rest of this century. Part II reviews the changes in fair housing law made by the FHAA five years ago. Part III then surveys the major substantive issues that have engaged and are likely to continue to engage the courts in this decade, both under Title VIII and the FHAA. The discussion of these issues leads to a description in Part IV of how the federal government\u27s role in enforcing fair housing is becoming increasingly important. Part V focuses particular attention on the new HUD complaint process established by the FHAA and raises questions about whether this process can live up to the expectations of those who created it. Finally, Part VI raises a broader issue regarding the role that litigation plays in helping to achieve the goal of fair housing