A key goal of the 1968 Fair Housing Act (“FHA”), which was passed as an immediate response to Dr. Martin Luther King, Jr.’s assassination, was to replace the ghettos with “truly integrated and balanced living patterns.” It hasn’t happened. Today, more than four decades after the FHA’s passage, “residential segregation remains a key feature of America’s urban landscape,” continuing to condemn new generations of minorities to a second–class set of opportunities and undercutting a variety of national goals for all citizens.
But recent developments dealing with an underutilized provision of the FHA – § 3608’s mandate that federal housing funds be used “affirmatively to further the [FHA’s] policies”—hold out new hope that this law may yet prove effective in dismantling segregated housing patterns. These patterns, however, are deeply entrenched, and their powerful defenders are already mounting a counter-attack. Thus, the ultimate fate of the new § 3608–based effort to advance residential integration remains to be determined—as does resolution of the larger question of whether Americans will ever truly embrace the FHA’s goal of an integrated society.
Part I of this Article provides some background, first on the FHA’s integration goal, then on the particular mandate of § 3608, and finally on the data showing that, despite the FHA, high levels of segregation continue to plague the Nation’s housing markets. Part II examines the forty–year history of § 3608 from the FHA’s inception through modern times. Part III describes a recent § 3608–based lawsuit involving Westchester County, New York, the resolution of which in 2009 may start a new era of more aggressive enforcement of § 3608. Finally, Part IV reviews post–Westchester developments, which have not only produced a number of specific ideas for pro–integration initiatives, but also raise the possibility that § 3608’s new promise might yet be undermined.
Robert G. Schwemm, Overcoming Structural Barriers to Integrated Housing: A Back-to-the-Future Reflection on the Fair Housing Act's "Affirmatively Further" Mandate, 100 Ky. L.J. 125 (2011-2012).