The persistence of housing discrimination more than forty years after the passage of the federal Fair Housing Act (FHA) of 19681 is among the most intractable civil rights puzzle. For the most part, this puzzle is not doctrinal: the Supreme Court has interpreted the FHA only a handful of times over the last two decades-a marked contrast to frequent doctrinal contestations over the statutory scope and constitutionality of federal laws governing employment discrimination and voting rights.2 Instead, the central puzzle is the inefficacy of the FHA's enforcement regime given that, in formal terms, the regime is the strongest of any civil rights statute.3 Repeated studies document high levels of racial discrimination particularly in the rental market, and particularly against African Americans and people with dark skin.4If the fundamental question of the current post-civil rights era is why racial inequality persists despite federal civil rights laws and positive changes in popular attitudes and norms around race,5 the case of housing discrimination is both simpler and more complex than in other areas of civil rights law. The question in housing is not simply the emergence of more subtle, nuanced forms of "second- generation" discrimination.6 Instead, what is striking about housing has been the stickiness of quite ordinary forms of discrimination: refusals to rent, sell or make properties available to blacks on the same basis as whites.7 Data on housing discrimination reveals some improvement since the passage of the FHA, but rental discrimination and steering have endured at high levels.8
Olatunde C. Johnson,
The Last Plank: Rethinking Public and Private Power to Advance Fair Housing,
U. Pa. J. Const. L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1101