Early Federal policy in the housing field accepted and even magnified the attitudes of private industry. FHA, for example, not only acquiesced in discriminatory private industry practices, but encouraged them, to the point of recommending a model racially restrictive covenant to insure against what the agency called "inharmonious racial groups". The Federal Home Loan Bank Board and the Home Owners' Loan Corporation openly espoused policies favoring racial residential exclusion.

In public housing the Federal Government adopted a different policy-one based on the equitable participation of minorities, not only as tenants, but also in construction and management. But equitable participation was not construed to preclude segregation and the majority of public housing projects produced during the first 25 years of the program's operation were either all-black or all-white. Until 1962, this was regarded as a matter strictly within the discretion of local public housing authorities. This was so despite the fact that numerous Federal court decisions had made it clear that such segregation was in violation of the U.S. Constitution. Even in newer programs, such as urban renewal, established in 1949 with the purpose of revitalizing the Nation's cities, discriminatory housing practices by private redevelopers benefiting from Government subsidies were not deemed a matter in which Government should interfere.

By the early 1960's, Federal policy had progressed to the point where open occupancy was considered desirable but not obligatory. No agency concerned with housing and urban development had adopted any measure to assure that this policy was carried out in fact. In 1959, it was estimated that less than 2 percent of the new houses provided in the postwar years through FHA mortgage insurance had been available to minorities.3

Although the order was couched in broad terms, it was, in fact, limited in scope. This was true in at least two senses. First, its command of nondiscrimination by no means affected all housing in which the Federal Government was involved. For example, in the area of home financing, the order was limited to housing "provided in whole or in part by loans insured, guaranteed, or otherwise secured by the credit of the Federal Government. Thus housing provided through mortgage insurance by the Federal Housing Administration (FHA) or loan guarantees by the Veterans Administration (VA) -representing some 25 percent of the new housing market and less than 1 percent of the Nation's entire housing inventory-was made subject to a nondiscrimination requirement. But the great bulk of housing units those conventionally [non-FHA or VA] financed by mortgage lending institutions whose deposits or accounts are insured by the Federal Government were excluded from coverage.'

Second, the principal content of the order, as set forth in section 101, related almost entirely to housing provided through Federal aid agreements executed after the order's effective date of November 20, 1962. Thus, existing housing that previously had received Federal assistance and housing that was still receiving such assistance were unaffected by section 101 if the assistance agreement has been entered into before the order was issued. Moreover, housing not yet even built was, in many cases, unaffected by section 101 for the same reason. This was of particular significance in connec

tion with the urban renewal and public housing programs because of the long time lag between execution of the agreement for Federal financial assistance and the ultimate construction and occupancy of the housing so aided. The critical cutoff date for purposes of section 101 of the Executive order, it must be emphasized, was the date on which the financial assistance was agreed to be given, not the date on which the housing was constructed or occupied, nor even the date on which money changed hands.

Housing provided under pre-Executive order Federal aid agreements was covered by section 102 of the order, known popularly as the "good offices" section. Although it expressly authorized litigation and other appropriate action, as well as good offices, to bring an end to discrimination in pre-order housing, no enforcement action was ever taken. And experience under the Executive order made it clear that the use of "good offices" alone was inadequate to obtain compliance.10

C. Title VI of the Civil Rights Act of 1964

On July 2, 1964, the Civil Rights Act of 1964, containing Title VI, was enacted by Congress and signed into law. Title VI provides a broad guaranty of nondiscrimination with respect to federally assisted programs. It states: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 11

* For example, in the urban renewal program the lapse of time between the execution of the loan and grant contract and the ultimate completion of the project may be as long as 8 years or more.

'Sec. 102 directs Federal departments and agencies "to use their good offices and to take other appropriate action permitted by law, including the institution of appropriate litigation, if required, to promote the abandonment of discriminatory practices with respect to residential property and related facilities heretofore provided with Federal financial assistance. . . ." (Italic added.)

10 For a discussion of the comparative ineffectiveness of the use of "good offices," and the legal basis for more forceful action under sec. 102, see Sloane, One Year's Experience: Current and Potential Impact of the Housing Order, 32 Geo. Wash. L. Rev. 457 (1964).

11 Sec. 601.

Title VI extended nondiscrimination requirements to many of the urban renewal and public housing units left uncovered by section 101 of the Executive order. Pursuant to regulations implementing Title VI 12, all urban renewal projects that had not yet reached the land disposition stage 13 by January 4, 1965 (the date when the regulations became effective) were subject to the nondiscrimination requirements of Title VI, regardless of the date on which the financial assistance agreement was executed. Since the time lag between execution of the assistance agreement and disposition of the urban renewal land frequently is 5 years or more, and since the urban renewal program had only begun to have a significant impact in terms of project completion by 1964, Title VI had the effect of subjecting the great bulk of urban renewal activity to the requirement of nondiscrimination.14

In public housing, all low-rent projects still receiving Federal assistance in the form of annual contributions on January 4, 1965, were made subject to the requirements of Title VI, regardless of the date on which the annual contributions contract was was executed. This meant that virtually every public housing project authorized since 1937, when the program was initiated, was subject to the mandatory requirements of Title VI.

The principal programs for which section 102 of the Executive order was still a live issue after Title VI was enacted were those involving assistance solely in the form of insurance or guarantees. Section 602 of Title VI, which is the implementing provision of that law, expressly excludes from coverage, "a contract of insurance or guaranty." This meant, for example, that apartment houses built with the aid of pre-Executive order FHA insurance agreements, but still receiving the benefits of that insurance, were excluded from Title VI

12 29 Fed. Reg. 16280 (1964).

"In the urban renewal program land typically is acquired by a local public agency, cleared, and then disposed of to private redevelopers for a fair market price.

"For example, by the end of 1962, only 86 projects had been completed, while more than a thousand projects, already under assistance agreements, were in various stages of planning and execution. U.S. Housing and Home Financial Agency, Annual Report, 280 (1962).

coverage. It also meant that housing conventionally financed by federally insured mortgage lending institutions continued to be outside the scope of Federal nondiscrimination requirements.15

D. Title VIII of the Civil Rights Act of 1968

In 1968 Congress acted again, closing both coverage gaps that had existed under the Executive order and under Title VI. On April 11, 1968, Congress passed Title VIII of the Civil Rights Act of 1968, providing: "It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." 16

The Act provided coverage in phases. The first phase, extending to the end of 1968, provided for coverage identical to that in section 101 of the Executive order on equal opportunity in housing-that is, housing provided under Federal aid agreements entered into after November 20, 1962.17 The second phase, covering the period January 1, 1969 through December 31, 1969, extended coverage generally to private, nonfederally assisted housing except single-family housing and buildings containing no more than four housing units, one of which is occupied by the owner.18 A further exception permits religious organizations to sell or rent housing to persons of the same religion and permits private clubs to limit occupancy to their members.19 The third phase, which went into effect on January 1, 1970, further broadens coverage by limiting the exception of single-family housing to such housing sold or rented without the use of a real estate broker. 20 In view of the fact that

the great majority of single-family housing is sold or rented through a broker, this provision has the effect of bringing most single-family housing within the coverage of Title VIII. Title VIII also expressly prohibits discrimination in financing of housing," the advertising of housing for sale or rent,22 and the provision of brokerage services.23 Further, the practice of "blockbusting" is prohibited.24

While under the Executive order on equal opportunity in housing and Title VI of the Civil Rights Act of 1964 only a small fraction of the Nation's housing inventory of some 70 million units was covered, under Title VIII nearly 80 percent is now subject to a Federal nondiscrimination requirement.

If the Executive order and Title VI are weak in coverage, however, their strength is in the sanctions available for enforcement. Both provide for enforcement through the leverage of the substantial assistance provided through Federal housing and urban development programs. Thus, if discrimination persists the "recipients," 25 such as FHA-aided builders, local urban renewal agencies, and local public housing authorities, may be debarred from receiving the benefits of these programs. This is a potentially powerful enforcement weapon.

Under Title VIII, by contrast, while coverage is a strong point, enforcement is weak. In fact, enforcement is limited largely to resort to litigation, either by the person discriminated against or by the Department of Justice in the case of "pattern or practice" lawsuits. In housing, where the need for relief is frequently urgent, the time involved in litigation,

21 Sec. 805.

22 Sec. 804 (c).

23 Sec. 806.

"Sec. 804(e). "Blockbusting" is defined under the statute as: "For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, or national origin."

25 The term "recipient" is defined in HUD's Title VI regulations to include: Any State, political subdivision of any State, any public or private agency, institution, organization, or other entity, or any individual, to whom Federal financial assistance is extended, directly or through another recipient, for any program or activity, or who otherwise participates in carrying out such program or activity. 24 C.F.R. 12(f).

as well as the cost, make it a relatively ineffective enforcement mechanism.

The Department of Housing and Urban Development is charged with the principal responsibility for enforcement and administration of the fair housing law, but the only weapons expressly at its command are "informal methods of conference, conciliation, and persuasion".26

The Secretary of Housing and Urban Development also is directed to "administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this title." 27 In addition, all other executive departments and agencies are directed to administer their own programs and activities relating to housing in the same manner and also to "cooperate with the Secretary (of Housing and Urban Development) to further such purposes." 28 The use made by HUD and other relevant departments and agencies of these two broad directives from Congress is a key determinant of the success of the fair housing law.

E. Jones v. Mayer

On June 17, 1968, 2 months after the Federal fair housing law had been enacted, the U.S. Supreme Court, in Jones v. Mayer and Co.,29 held that a provision of an 1866 civil rights law "bars all racial discrimination, private as well as public, in the sale or rental of property." ." 30 The statute, which was enacted under the authority of the 13th amendment, says: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."

The Court held that this statute represented a valid exercise of the power of Congress to enforce the 13th amendment, which outlawed slavery, and that it barred all racial discrimination in housing. The Court said: when racial discrimination herds men into ghettos and makes their ability to buy prop

66

erty turn on the color of their skin, then it too is a relic of slavery." 31

The Jones decision rendered all housing, with no exception, open without regard to race, at least as a matter of legal right. Again, however, the means available to secure this right in fact are limited at present to litigation by persons discriminated against.

There is, then, a full and complex array of laws which, taken together, provide broad protection against racial discrimination in housing. While the main enforcement mechanism is litigation, in many cases opportunities are afforded for assuring compliance by means other than this time-consuming and burdensome process. The laws also afford authority for a coordinated Federal effort by all departments and agencies that have programs and activities relating to housing. These would include not only the Department of Housing and Urban Development, but also agencies such as the Veterans Administration, which administers a home loan guaranty program; financial regulatory agencies, which supervise and benefit the great majority of the Nation's mortgage lending institutions; the General Services Administration, which is responsible for determining where and under what conditions most Federal installations shall be located; and the Department of Defense which, through the economic benefits generated by the presence of military installations, can be a strong influence on housing patterns in many communities throughout the Nation. Further, the Department of Justice, through its authority to bring pattern or practice suits, can play a key role. The current and potential role of each of these Federal departments and agencies will be discussed in detail.

sisted housing programs, including programs aimed at meeting the housing needs of lowerincome families, a disproportionate number of whom are minority group members.

To carry out the variety of civil rights responsibilities of the Department, Congress has provided HUD with an additional Assistant Secretary.32 HUD is the only Federal department or agency apart from the Department of Justice whose chief civil rights officer is at this level in the agency hierarchy. This means that HUD's civil rights chief is of the same rank as those who administer programs and can participate on an equal footing in discussions with the secretary concerning key agency policy.

Among the responsibilities of the Assistant Secretary for Equal Opportunity are the following: Title VIII of the Civil Rights Act of 1968; Title VI of the Civil Rights Act of 1964; Executive Order 11063 (equal opportunity in housing); Executive Orders 11246 and 11375 (nondiscrimination in employment under Government contracts); and Executive Order 11478 (nondiscrimination in Federal employment).

In addition to these specific duties, the Assistant Secretary is charged with the following overall civil rights responsibility within the Department:

"[He] serves as the principal advisor to the Secretary on all matters relating to equal opportunity in housing, facilities, employment, business opportunity, and all civil rights and other matters relating to equal opportunity. He also is responsible for assuring that all Department policies, procedures, issuances, and activities effect and promote equal opportunity for all, and he exercises a special affirmative duty in this regard under Title VIII."

Since enactment of Title VIII in April 1968, two persons have occupied the position of Assistant Secretary for Equal Opportunity: Walter B. Lewis, who was appointed in November 1968 and served until February 1969, and Samuel J. Simmons, the incumbent.34

A. Organization and Staffing

To carry out the various civil rights responsibilities under the jurisdiction of the Assistant Secretary for Equal Opportunity, Congress appropriated $6 million for fiscal year 1970.35 Of this amount, more than $5.5 million is allocated for the salaries of the 313 equal opportunity staff positions, of which 224 are devoted to fair housing activities.36 Other staff members are occupied with such matters as in-house employment, contract compliance, promoting minority business entrepreneurship, and general administration. For fiscal year 1971, the President requested $11.3 million, a substantial increase in appropriations for HUD's equal opportunity program. This would have permitted an increase in the number of positions to 407, of which 276 would have been to administer fair housing. Congress however, approved only $8 million, $2 million more than the previous year's appropriation, but $3.3 million less than the President had requested.37

1. CENTRAL OFFICE

As currently organized, the central office for equal opportunity consists of the immediate office of the Assistant Secretary and seven offices under his direction.38 For fiscal year 1970, the Assistant Secretary's immediate office had 11 authorized positions including that of the Deputy Assistant Secretary held by Malcom Peabody, Jr.

The other seven offices under Mr. Simmon's direction were as follows:

Departmental Equal Opportunity Office -seven positions

35 The President requested $10.5 million, nearly twice the amount Congress actually appropriated.

"Statement of Samuel J. Simmons, Assistant Secretary for Equal Opportunity, at a meeting with the members of the Committee on Compliance and Enforcement, Leadership Conference on Civil Rights, Apr. 7, 1970. As of Apr. 30, 1970, 246 of the 313 positions actually were filled. Letter from George Romney, Secretary of Housing and Urban Development, to Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights, attachment A, Aug. 10, 1970.

ST

The President vetoed the fiscal year 1971 HUD appropriations bill and as of Aug. 15, 1970, the bill was still pending.