Let's say you have a serious, though not life-threatening, medical condition, such as a non-malignant growth in your back that causes considerable pain and impairs your ability to walk. At first, your doctor tells you there is no cure, but then one day, a new drug specifically designed to eliminate this kind of problem is approved. You take this drug, but notice no change. With your doctor's encouragement, you continue to take the drug, hoping that its cumulative effect will achieve the desired result. Twenty years go by with no relief. Then, your doctor tells you that a much stronger version of this drug has been approved, so you begin to take it as directed. You are now in the nineteenth year of taking this "improved" version of the drug, but there is still no relief.
Would you change doctors, get a second opinion, insist on some new approach, or at least stop taking the drug? Or, would you continue with the same course of action indefinitely? If the latter, would your friends and family be justified in believing that you have no hope of a cure and are just going through the motions without really wanting or expecting to get well?
Now, substitute in this story the United States for the patient, the problem of racial discrimination in rental housing for the painful and debilitating ailment, and enforcement of the 1968 Fair Housing Act ("FHA") as amended in 1988, for the supposedly helpful drug. The analogy is apt because both problems have gone on essentially unchanged for the past forty years, despite the administration of a supposed "cure." By now, it is clear not just that the treatment has failed, but also that there has been a failure of imagination on the part of both "patient" and "doctor." Something new must be tried. If we simply go on using the failed treatment, one has to wonder if we really want to get better—or deserve to.
This Article is an attempt to start a new conversation about this issue. It begins with a review of the evidence for the "disease" of ongoing rental discrimination in Part I. Part II surveys the record of the legal "cure" (i.e., enforcement of the FHA), particularly in the two decades since the FHA's 1988 amendments strengthened its enforcement provisions. Part III provides an overview of the rental housing market in the United States, and Part IV reviews what we know—and do not know—about race discrimination in this market. Part V then tries to identify some lessons from other fields, such as economics and psychology, that might help guide the effort to achieve better FHA compliance in rental opportunities for racial and ethnic minorities.
Robert G. Schwemm, Why Do Landlords Still Discriminate (and What Can Be Done About It)?, 40 J. Marshall L. Rev. 455 (2007).