- Introduction
In its 1961 report on discrimination in "Housing," the Civil Rights Commission summed
it up this way:
"In 1959 the Commission found that 'housing * * * seems to be the one
commodity in the American market that is not freely available on equal terms to
everyone who can afford to pay.' Today, 2 years later, the situation is not
noticeably better."
"Throughout the country large groups of American citizens mainly Negroes, but
other minorities too are denied an equal opportunity to choose where they will
live. Much of the housing market is closed to them for reasons unrelated to their
personal worth or ability to pay. New housing, by and large, is available only to
whites. And in the restricted market that is open to them Negroes generally must
pay more for equivalent housing than do the favored majority. 'The dollar in the
dark hand' does not 'have the same purchasing power as a dollar in a white
hand.'"2
Where do we stand today, 40 years later? I am going to speak about some events that
played a role in that transition.
In 1960, Senator John F. Kennedy campaigned for President claiming that, if elected, he
would prohibit discrimination in housing built with federal subsidies "by a stroke of the pen."
After two years of no action, for which he was roundly criticized, President Kennedy on
November 20, 1962, "by a stroke of the pen" issued Executive Order 11063 directing all
departments and agencies of the Federal Government to take all action, including litigation by the
Attorney General, necessary and appropriate to prevent discrimination because of race, color,
creed, or national origin in the sale, leasing, rental, or other disposition of federally owned or
operated residential property or residential property provided thereafter with the assistance of the
Federal Government and in lending practices relating to loans thereafter insured or guaranteed by
the Federal Government.
Five-and-one-half years later, Congress weighed in, passing the Fair Housing Act of
1968, and two months thereafter the Supreme Court held in Jones v. Mayer Company that the
Civil Rights Act of 1866, 42 U.S.C. § 1982, a dead letter for the intervening century, was
constitutional, means what it says and secures to Blacks the same rights to contract for housing as
are enjoyed by whites.
As John Doar, a great leader and molder of the Civil Rights Division, First Assistant and
Assistant Attorney General, 1960-67, was fond of saying:
"When this Nation seeks to address a really tough problem, it's best to have all
three branches of the Federal Government publicly on board and faced in the same
direction."
By June 1968, all three branches had lined up against discrimination in housing -- at least on
paper.
134 years have passed since § 1982 was enacted;
37 years since President Kennedy stroked his pen; and
32 years since Congress adopted Title VIII and the Supreme Court decided Jones
v. Mayer.
What has been the effect of these laws and regulations and that Supreme Court decision?
My remarks will focus on 1968. You, I hope, will tell me about the 2000 landscape.
What was the Division like then -- size, organization, and activity?
How did the Fair Housing Act of 1968 come about?
What did the Division do that first year to implement the new statute?
What lessons have been learned?
- What was the Civil Rights Division Like in 1968
First, 1968 was filled with a drumbeat of momentous events affecting civil rights and the
work of the Division.
- Feb. 8
- Demonstrations over denial of access by Blacks to the All Star Triangle Bowling Alley in Orangeburg erupt onto the campus of South Carolina State College. Shooting by the State Patrol kills three students and wounds 27.
- March 31
- President Johnson announces that he will not run for a second full term as President.
- Apr. 4
- Dr. King is assassinated in Memphis, setting off several days of rioting in major cities across the nation, including burnings, looting, martial law, and federalization of the Guard in the District of Columbia and elsewhere.
- Apr. 11
- President Johnson signs the Civil Rights Act of 1968, including the Title VIII on Fair Housing.
- May 27
- Supreme Court decides Green v. New Kent County holding freedom-of-choice school plans insufficient to meet constitutional requirements.
- May-July
- Poor People's Campaign arrives in Washington, D.C., and encamps at Resurrection City on the Mall east of the Lincoln Memorial and petitions its grievances to the Federal Government.
- June
- Presidential candidate Robert F. Kennedy is assassinated in California.
- July
- Anti-Vietnam demonstrations on the streets at the Democratic Party's National Convention in Chicago erupt in police violence
against the demonstrators.
Despite the heavy demands of these events on the Division for example, 10 to 15 attorneys were taken up with Resurrection City and the Poor People's Campaign for 2 ½ months
my memory and the statistics tell me that we were able both to respond to those unique
challenges and to identify, prepare and initiate more new cases (130 compared to 107) and handle
the existing docket without reducing our standards. 1968 saw the Division launch enforcement
of the Fair Housing Act, bring its first northern school desegregation cases, and move into double
digits the number of equal employment lawsuits (8 to 25). And the first 20 days of 1969 were
marked by the filing of 25 additional court suits.
You might ask what were the dimensions of the Division. Here are a few:
- Personnel:
- 83 - 100 attorneys
- 90 - 105 support staff
- Budget (FY '68):
- Travel (FY '67):
- 489,535 miles (air not included)
- 1300 trips
- 7093 travel days
When I took over as AAG, the Division had 83 attorneys and an authorization for 105. Attorney
General Ramsey Clark authorized me to hire as if we had authority for 125.
How were those resources allocated?
Equal Employment Opportunity- 27%
Public Education- 17%
Fair Housing- 17%
Criminal Interference with Protected Rights- 17%
Registration and Voting- 11%
Non-Discrimination in Federally Assisted Programs- 8%
Equal Access to Public Accommodations and Public Facilities- 3%
How was the Division organized? There were seven sections in all, five configured
geographically and two by subject matter. Each of the geographic sections was responsible for
all fields of law enforcement within its boundaries, except for implementation of Title VI of the
Civil Rights Act of 1964 and planning, coordination and appeals which were assigned to the
other two sections.
At the expense of specialization, this organization brought unity and, I believe, esprit to
the Division. All attorneys were expected to be capable of pursuing cases under any of the
statutes committed to the Division for enforcement. This approach still appeals to me, but may
not be feasible given the many new areas of jurisdiction assigned to the Division.
So much, then, for what the Division was in 1968. Now, how did the Fair Housing Act
come about.
- Origins and Enactment of the Fair Housing Act
In his State of the Union Message on January 12, 1966, President Johnson asked for
"Legislation, resting on the fullest constitutional authority of the Federal
Government, to prohibit racial discrimination in the sale or rental of housing."
On April 28, 1966, after consulting in the White House with civil rights leaders including
Dr. King, the President delivered a Special Message to the Congress proposing further
legislation to strengthen civil rights. In that message, he asked "the Congress to enact the first
effective federal law against discrimination in the sale and rental of housing." He described the
bill he was sending up as
"constitutional in design, comprehensive in scope and firm in enforcement. It will
cover the sale, rental and financing of all dwelling units. It will prohibit
discrimination on either racial or religious grounds, by owners, brokers and
lending corporations in their housing commitments."
The House of Representatives on August 9, 1966, passed a civil rights bill which included
a fair housing provision more limited than that recommended by the President. However, the
Congress adjourned without Senate action.
While this was going on, the President established a Task Force to consider the scope of
civil rights legislation to be presented to the next Ninetieth Congress. That Task Force was
chaired by Attorney General Clark and I, then First Assistant in the Division, was its working
chief.
In late November 1966, the Task Force presented 58 proposals to the President, l6 of
them addressed to nondiscrimination in housing. This began an intensive review process
directed by the President's Special Assistant for Domestic Affairs, Joseph Califano (later HEW Secretary under President Carter).
As formulated in a memorandum of December 5, 1966, the priority housing proposal was for
"Legislation to ban discrimination in the sale, rental and financing of housing by
tract developers, apartment house owners and mortgage lenders with enforcement
responsibility in an administrative agency and appeal to the courts."
Major issues to be considered included:
"Whether to propose a 'pure' bill banning discrimination in all housing or to accept
generally the compromise reached by the House in 1966 [excepting room rentals
in a home or Mrs. Murphy's boarding house and rentals by religious and fraternal
organizations].
"Whether to lodge enforcement responsibility in an administrative agency as
against enforcement in the courts by the Attorney General or some mixture of the two.
"Whether to emphasize conciliation by postponing the effective date of
enforcement machinery for one year and providing a program to encourage voluntary compliance (regional conferences, public education) during that year."
A memorandum prepared December l6, 1966, for President Johnson indicates that the
scope of the legislation to be proposed was still in flux. It states that three possible approaches
had been considered:
One, apparently preferred, was for legislation patterned in part along the lines of
Title VII which would become fully effective over a period of a few years and
which would ultimately bar discrimination in the sale, rental and financing of all
housing of whatever size; with enforcement responsibility to be lodged in an
administrative agency with cease and desist power, and in the Attorney General
who would be authorized to bring pattern or practice suits in federal district court.
Two other approaches, "considered and not rejected," were for a bill similar to
that proposed by the President in April 1966 barring, with no time delay,
discrimination in the sale, rental and financing of housing of all sizes; and for a
bill patterned after the compromise adopted by the House in August 1966.
The President revealed his choice of the preferred alternative in a Special Message to the
Congress on Equal Justice delivered February 15, 1967. The legislation he proposed was drawn
to go into effect in progressive steps, with the prohibition against discrimination in the sale or
rental of housing to apply immediately to housing already covered by Executive Order 11063; the
following year, 1968, to dwellings sold or rented by someone other than their occupant and to
dwellings for five or more families; and in 1969 the prohibition was to apply to all housing. The
bill outlawed discriminatory practices in financing housing and in providing real estate brokers'
services; and prohibited "block-busting." It directed the Secretary of HUD to seek to conciliate
violations, but authorized the Secretary, after a hearing, to issue cease-and-desist orders. The
Attorney General was authorized to bring pattern or practice suits.
No action was taken by the First Session of the Ninetieth Congress on the legislation.
At the opening of the Second Session, the President in a Message on Civil Rights again
urged passage of the legislation he had sent up the prior year. He said, perhaps a little sadly, "A
fair housing law is not a cure-all for the Nation's urban problems. But ending discrimination in
the sale or rental of housing is essential for social justice and social progress."
In fact, however, there was ambivalence in the Administration about the feasibility of
passing the Fair Housing title. Our concern was that Congress would reject it, as did the prior
Congress, and with it would go other titles strengthening the criminal laws against interference
with civil rights and guaranteeing fair, nondiscriminatory selection of juries. I credit two great
men, Clarence Mitchell and Joe Rauh of the Leadership Conference on Civil Rights, with
keeping the Congress's feet to the fire and preventing the Administration from giving up on the
Fair Housing title.
The problem was in the Senate where we had to have the votes of the Republicans to
achieve cloture, since the Southern Democrats would filibuster and, of course, vote no on cutting
off debate. The Minority Leader of the Republicans was Senator Everett Dirksen of Illinois who
in 1965 had teamed with Majority Leader Mike Mansfield to bring about passage of the Voting
Rights Act. To get the Republicans, we had to have Dirksen. And Dirksen, until the last
moment, withheld support for the Fair Housing title in the belief that it could not pass.
However, at the eleventh hour, Senator Dirksen changed his mind. Here's the way I
described the dramatic events in an oral history interview by the Archives 10 months after the
Senate acted:
"Dirksen played a lesser role in the achievement of the legislation. The Mondale-Javits-Percy-Brooke effort in the end forced Dirksen's hand. While it may have
seemed that Senator Dirksen rewrote the Fair Housing statute, it was much less
than in 1965 with respect to the Voting Rights Act. We did in the last day have a
meeting in Senator Dirksen's office, and there was a crush redrafting of portions
of the bill, which was almost a mirror of the 1965 effort. I again put myself in the
position of being the scribe and was able to maintain some coherency to the
legislation in the midst of great confusion. They called for the Attorney General
and me to come up to Dirksen's office literally two or three hours before the bill
was due on the floor. There had been a lot of prior discussions. In those two or
three hours, there was really a wild concatenation of discussions about changes in
the Fair Housing bill. I kept the existing draft in front of me and methodically and
ploddingly kept moving through it, sort of being unwilling to hear the conflicting
suggestions so that the bill wouldn't just entirely blow into smithereens. In the
end I shoved the draft into Senator Dirksen's hand as he went running out on the
floor, and that was the bill that was then introduced by him and on which cloture
was ultimately voted."
Shortly thereafter, on March 11, 1968, the Senate passed by an overwhelming vote, 71 to
20, the Civil Rights Act of 1968, including a Fair Housing title somewhat restricted from that
recommended by Johnson. It prohibited discrimination in the sale or rental of housing as
follows:
Upon enactment, government-owned housing and housing financed by the
government since November 1962 -- housing covered by Executive Order 11063,
estimated to be about 1,000,000 units;
After December 3l, 1968, other housing except for single family houses sold or
rented by a private owner who owns no more than three houses, and rooms or
units in dwellings of four or fewer family units where the owner occupies one of
the units -- adding coverage of about 43,000,000 units;
After December 3l, 1969, coverage would extend to single-family houses sold or
rented with use of a broker or where there has been discriminatory advertising.
Commencing January 1, 1969, the bill made it unlawful for businesses to deny real estate loans
or financial assistance for housing or to discriminate in terms or conditions therefor on account
of race, color religion or national origin.
The bill authorized HUD to conciliate, but gave the Secretary no cease-and-desist
authority. Private suits to enforce the right to nondiscrimination in housing were authorized and
the Attorney General was empowered to bring pattern or practice suits. Interference with the
right to fair housing was made both a criminal offense and grounds for a civil action by the
victim.
The assassination of Dr. King 24 days later did the rest. On the day following that
"senseless act of violence," the President wrote to the Speaker of the House urging, "We should
pass the Fair Housing law when the Congress convenes next week."
The House responded, adopting the Senate-passed bill on April 10, 1968, and the
President signed the legislation in the East Room the next day. The message he delivered is short
but stirring, particularly when one remembers the uprisings over the slaying of Dr. King were
only just subsiding and that the President had announced his decision not to stand for reelection
just 11 days earlier:
- "[T]his bill has had a long and stormy trip."
- "We did not get it in 1966."
- "We pleaded for it again in 1967. But the Congress took no action that year."
- "We asked for it again this year."
- "And now -- at long last this afternoon -- its day has come."
- "I do not exaggerate when I say that the proudest moments of my Presidency have
been times such as this when I have signed into law the promises of a century."
So, fair housing had become a matter of federal law enforcement and a prime
responsibility of the Division.
Here is what we did to carry that responsibility in the nine months and nine days that
remained of the Johnson Administration.
- Implementation and Enforcement of the Fair Housing Act
Prior to April 11, 1968, the Division had done virtually nothing to address the problem of
discrimination in housing. I recall no action to support enforcement of Executive Order 11063
and, surprisingly, no action to enforce Title VI of the Civil Rights Act of 1964 with respect to
moneys flowing from HUD into housing. Possibly, the vacuum as to Title VI is explained by
Congress' exclusion of "contract[s] of insurance or guaranty" from its coverage.
One major exception to this record of inaction was support given to the resuscitation of
the Civil Rights Act of 1866, § 1978 of the Revised Statutes, now 42 USC § 1982, guaranteeing
to citizens "of every race and color" the "same right * * * to inherit, purchase, lease, sell, hold
and convey real and personal property * * * as is enjoyed by white citizens." Attorney General
Clark signed the Government's amicus brief in Jones v. Mayer Company filed in January 1968
and argued the case before the Supreme Court. Interestingly, the United States' position was that
the discriminatory exclusion of the Joneses from purchasing a home in Mayer's subdivision was
state action barred by the Fourteenth Amendment and was also within the proscription of § 1978.
As you know, on June 17, the Supreme Court upheld the constitutionality and reach of § 1978 as
a valid exercise of the power of Congress to enforce the Thirteenth Amendment.
In short, but for Jones v. Mayer, the Division was starting from ground zero on fair
housing. Of course, many of us had had experience launching enforcement of the 64 Act's
proscriptions of discrimination in public accommodations, public facilities, public education and
private employment as well as the Voting Rights Act of 1965, and we drew on this experience in
implementing the Fair Housing Act of 1968.
We framed the Division's objective this way:
"[T]o maximize the elimination of discriminatory practices connected with the
purchase, lease or financing of housing."
To achieve this objective, we set our priorities on:
"[E]limination of housing discrimination in metropolitan areas having large concentrations of Negro residents;
"Establishment of case law under Title VIII and § 1982 which can guide realtors,
home owners, and financing agencies in complying with the law, can assist HUD
in conciliating, and can serve as a foundation for litigation; and
"Supplementation and support of the enforcement programs of other agencies of
the government -- particularly HUD and Department of Defense -- that have fair
housing responsibilities, and the bringing of prompt civil actions on cases referred
by HUD for possible litigation, where we determine there has been a pattern or
practice of discrimination."
Division attorneys and interns, in twos, threes and fours, fanned out across the nation
in July 1968 (l4 metropolitan areas) and again in January 1969 (10 metro areas) to conduct
"surveys" aimed at educating law enforcement officials, including U.S. Attorneys and HUD
personnel, military base housing officers, community and fair housing leaders, and citizens,
including potential complainants, about the applicable provisions of the new statute and
developing leads on specific complaints that could be the subject of § 813 pattern or practice
suits by the Attorney General. There was a sense of urgency. The instructions provided:
"Once good leads are uncovered, the survey team will be expected to drop the
general survey and begin development of evidence looking toward development
of Section 813 litigation."
We gave instructions to FBI Director Hoover outlining the preliminary investigation to be
conducted by the FBI upon receipt of complaints relating to housing discrimination. I wrote
letters to 217 owners of apartments with more than 150 units available and to 667 fair housing
and civil rights organizations alerting them to the nondiscrimination requirements effective
January 1, 1969, and, in the case of the civil rights organizations, inviting them to bring instances
of noncompliance "to our attention." We surveyed the real estate columns of southern
newspapers for discriminatory advertising, with the intent of writing to the newspapers carrying,
and the advertisers presenting, such ads asking them to cease their unlawful conduct. We held a
year-end press conference to publicize the expansion of the Act's coverage.
As to housing litigation, by my count through January 20, 1969, the end of the Johnson
Administration,
The Division Filed five civil actions to enjoin discrimination, two aimed at
opening to Negroes, respectively, three all-white private subdivisions in Baton
Rouge, Louisiana, and an all-white cooperative apartment building in the District
of Columbia, and three seeking to end segregated assignment of tenants by
municipal housing authorities, in Little Rock, Albany, Georgia, and Gadsden,
Alabama;
We moved to intervene in a sixth case, Kennedy Park Homes Ass'n v. City of
Lackawanna,3 alleging a pattern and practice of discrimination by the City in
violation of § 813 in blocking the availability of land for development of a low
income housing subdivision, with the effect of depriving Negroes of their right to
purchase or rent dwellings in Lackawanna;
We defended the HUD Secretary in a seventh case which sought to enjoin funding
of construction of segregated public housing as a violation of Title VI of the Civil
Rights Act of 1964; and
We secured one indictment and one information charging criminal interference
with Blacks seeking housing in all-white neighborhoods.
Nine cases in all. We were underway!
Your colleague Sandy Ross initiated one of those criminal cases, presenting the evidence
to a grand jury in the Eastern District of New York which indicted Dennis Feise for setting fire to
his next-door neighbor's home in West Babylon, Long Island, and defacing the neighbor's two
cars to intimidate the neighbor from selling the home to a Black.
Our very first fair housing case was United States v. Knippers and Day Real Estate, Inc.,
filed three months and 11 days after Title VIII was signed by President Johnson. The suit
charged six Baton Rouge real estate firms and their officers, with a pattern or practice of racial
discrimination in refusing to sell, offer or show homes to Negroes in three all-white subdivisions.
The justification memorandum to the Attorney General recited that defendants, in May and June
of 1968, had refused to sell any home in their subdivisions to Paul J. Brown, a 34-year-old,
Grade 13 employee of the Department of Labor who had been a First Lieutenant bombardier and
navigator, 1954-61, in the U.S. Air Force. One of the defendants had said that to do so would
"bankrupt" his company.
We filed the case with full knowledge that there was a serious issue whether the housing
fell within § 803(a)(1)(B) and (C) which limited coverage to dwellings provided with the aid of
federal loans or federally insured loans under agreements entered after November 20, 1962. The
FHA and the VA had, in response to the developers' applications, preapproved two of the
subdivisions, thereby allowing the homes to be advertised as eligible for FHA and VA financing
and making them attractive to a broader spectrum of potential buyers. Also, in response to
applications and payment of $35 to $45 fees by the developers, the FHA and VA had made on-site inspections and approved for financing individual homes which had then been purchased by
buyers with such financing.
We advised the Attorney General that the text of the subsections was "tailored to the
situation where the discriminating party itself secured aid or other assistance from the Federal
Government or obtained a loan guaranteed by the credit of the U.S." I went on to say, perhaps
over-optimistically, "However, I believe there is enough here to bring these three developers
within the coverage of the statute."
Attorney General Clark approved our recommendation, and on July 22, 1968, we filed the
action in the Eastern District of Louisiana. It was assigned to Judge Gordon West who, as
anticipated, dismissed the complaint nine months later on grounds that the subdivisions were not
covered by the statute.
Did we make the right decision? Was it worth the risk of loss at the District Court level
to get a case on file?
On January 17, 1969, we filed United States v. Ontario Owners, Inc., the first suit
anywhere based on the expanded coverage of Title VIII and the Division's first housing suit in the
District of Columbia. The case involved the all-white Ontario Apartments, a 110-unit
cooperative, located at 2853 Ontario Road Northwest. Its charter and bylaws required approval
of any would-be buyer and, according to the complaint, approvals were uniformly denied to
Blacks.
The justification memorandum is interesting in many respects, one of them being its
analysis of the proof of a pattern and practice of discrimination:
"While there is only one post-Act refusal, however, there is ample proof of the
existence of a prohibited pattern. The stated intention of the defendant's Acting
President to keep the Ontario white, together with the existing statistical racial
pattern, make it apparent that the rejection of Mrs. Williams' application is not a
mere 'isolated' incident but part of a general policy. In addition, proof of
discrimination prior to January 1, 1969, is also relevant to show the existence of a
pattern and practice, especially where, as here, the conduct was unlawful under 42
U.S.C. 1982 and the D.C. Police Regulations."
In addition to litigation, the Division made substantial efforts to enlist other federal
departments and agencies with responsibilities relating to housing in efforts to secure compliance
with the Fair Housing Act. We worked directly with Secretary of Defense McNamara to educate
personnel on securing their rights under the new law and to make nondis-crimination a condition
to inclusion of off-base rental housing on DOD's "approved" list. We also asked DOD to alert us
to the reasons given by owners and managers who refused to be listed with hopes to use this as
proof in suits for noncompliance with Title VIII.
On August l5, 1968, I met with HUD Secretary Weaver to explore possibilities for using
termination of insurance and other administrative sanctions by the bank regulatory agencies, such
as the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance
Commission, as a means of aiding in the enforcement of the Fair Housing statute. My
memorandum to the Attorney General reported general agreement that regulations by these
agencies respecting the practices of their member institutions would provide a useful means for
enforcement of Title VIII's nondiscrimination-in-lending provisions. I noted that those at the
meeting felt there was ample authority in § 808(d) for issuance of regulations making
nondiscrimination a condition of loans for purchase, construction or improvement of housing. I
identified as a "more troublesome question" the issue whether the regulations should prohibit
insured financial institutions from doing business with builders or developers who operate in
violation of Title VIII, saying that such a sanction had elements of "over kill" and would involve
the bank regulatory agencies in the business affairs of persons not normally subject to the
regulations. Secretary Weaver asked for the development of a legal memorandum and a set of
procedures before he would approach the regulatory agencies. The Division committed itself to
work with HUD. Attorney General Clark initialed the memorandum signifying "O.K."
I have a feeling it was a first step on a long road to eliminate discrimination in lending
practices, a goal which is yet to be achieved.
A myriad of other issues relating to fair housing enforcement, legal and administrative,
confronted us. Here are just a few.
Right after the Fair Housing Act was signed, there was a question as to which division,
Civil or Civil Rights, should defend HUD against a class action by residents of Bogalusa,
Louisiana, seeking to enjoin, as violative of Title VI of the Civil Rights Act of 1964, a grant of
federal funds for construction of 98 new low-rent public housing units on 19 sites, each of which
was allegedly located in "all-Negro or virtually all-Negro" neighborhoods. Citing 28 C.F.R.
§ 0.50(a) which assigned to the Civil Rights Division "Enforcement of all Federal Statutes
affecting civil rights," I recommended that this suit and "any future suits involving interpretation
and application of Title VI should be assigned to the * * * Division, regardless of whether we are
affirmatively seeking compliance with Title VI, or defending the actions of another Federal
agency as being consistent with it." After securing the concurrence of the Civil Division, the
Attorney General agreed. Thus, one of our 1968-69 cases became Hicks v. Weaver. I wonder
what the allocation of responsibility is today for defending the United States against charges of
funding discriminatory activities?
Looking toward the expansion of coverage on January 1, 1969, we addressed the question
whether we should search out, as quickly as possible, post-January 1 acts of housing
discrimination and limit our cases to those acts, or whether we should work up possibilities for
lawsuits based on complaints already at hand. Grady Norris, who was directing the emerging
enforcement program, colorfully urged boldness, saying: "If * * * the Division is willing to just
this once fly by the seat of its pants on the facts, I think our legal basis for bring pattern or
practice cases based on pre-1969 discrimination is tenable." My memorandum to the Attorney
General dated a few days later indicates we pursued the more conservative course: "It was
decided that attempts to bring pattern or practice litigation based on pre-coverage conduct would
risk adverse decisions which would endanger any possibility of encouraging widespread
voluntary compliance through selective litigation."
We also considered whether by virtue of Title VIII or 42 U.S.C. § 1982 the Division
could sue to enjoin housing discrimination by persons with no dealings or dwellings covered by
§§ 803-06 and whether we had standing to sue to enjoin intimidation of persons seeking to
exercise equal rights to housing, whether covered or not.
As you can see, enactment of the Civil Rights Act of 1968 and its Title VIII mandating
fair housing kicked off an exciting and challenging nine months.
- Lessons Learned
What lessons did we learn?
A good dose of humility, I would say, plus a feeling of confidence in our work product. I left the Division believing that judgment, planning and execution of plan, setting priorities, and, most of all, high standards in preparation -- get the facts right -- are what count.
And, of course, hiring and training top flight people. We certainly had the best when it came to
personnel.
The Division didn't have in 1968 the resources to enforce all the laws committed to its
responsibility and to perform all the other functions asked of it. I am confident that it doesn't
have those resources today and that it never will. Thus, another lesson I learned is that priorities
must be set and choices made. If the leadership doesn't set them and make them, events,
unguided by any hand, will do so.
Finally, I learned that laws and law enforcement make a difference new laws bring
about change. But when a statute, such as the Fair Housing Act, seeks to change conditions as
longstanding as racially separate housing, founded as it had been on governmental and private
discrimination running back to the beginning of this Republic, that change will come hard and
take time, intense commitment, hard work, and leadership. Strong and visible enforcement of
fair housing laws, supported by elected leaders and their major appointees are necessary to
change ingrained behavior. In the end, there must be voluntary compliance for law enforcement
can only point the way.
Stephen J. Pollak
