Today, more than three decades after the 1968 Fair Housing Act ("FHA") banned such behavior, blatant discrimination—often accompanied by racist slurs and other explicitly discriminatory statements—continues to plague America's housing markets. The FHA not only outlawed discrimination in most housing transactions on the basis of race, color, religion, and national origin, but also contained a specific prohibition, § 3604(c), banning all discriminatory housing statements. Unlike the FHA's more traditional prohibitions against discriminatory refusals to deal and discriminatory terms and conditions, § 3604(c)'s ban on discriminatory statements has not been the subject of much litigation or debate.
Part I of the Article provides an overview of the FHA's basic provisions and its goals of nondiscrimination and integration for America's housing markets, with a specific focus on the legislative history and intent underlying § 3604(c). Part II reviews § 3604(c) cases in a further effort to identify this provision's goals and the elements needed to establish its violation. Part III shows how litigants and courts have underused § 3604(c) by failing to assert it as an independent basis for relief in cases involving discriminatory housing statements. Finally, Part IV offers suggestions for the proper approach to be used in applying § 3604(c) in discriminatory statement cases. These suggestions give due consideration to the potential First Amendment problems raised by an aggressive interpretation of §3604(c) and also address the issues of who might be liable for violating this provision and who might have standing to enforce it. The result is an effort to re-establish the role that Congress envisioned for § 3604(c) as an important part of the nation's fair housing enforcement arsenal.
Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187 (2001).