The Surprising Career of Federal Fair Housing Law

Unlike the breakthrough civil rights legislation of 1964-65, which dismantled the South's Jim Crow system and led to rapid advances in job access and educational opportunity for minorities throughout the nation, the federal fair housing legislation of the 1960s produced little substantive change. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 quickly became case studies in the dominant tradition of presidential leadership in legislative reform, joining such modern classics as Social Security and the Marshall Plan. The Open Housing Act of 1968, however, belongs to a different era of national policy development. History textbooks commonly locate the watershed dividing the two eras in the second week of August 1965, when the Watts riot in Los Angeles shattered the confident national mood surrounding President Johnson's signing of the Voting Rights Act on August 6. As a consequence, the politics of fair housing policy was shaped in the late 1960s in a context of urban race riots, political assassinations, and conservative backlash. The election of 1968 and the Nixon presidency brought a new era of national policymaking characterized by divided partisan governance and resurgent congressional leadership. The politics of federal fair housing policy belongs to this era.

In previous writings I have emphasized continuities in civil rights policy in the decades following the 1960s, continuities that include effective leadership by the civil rights coalition in expanding coverage and enforcement by federal agencies and courts. ¹ In this article I presume those continuities, but emphasize four differences surrounding fair housing policy. First, government regulation of private housing is the most controversial of the nondiscrimination proposals of the 1960s. It affects the major equity stake of American families, and triggers both racial and class-based fears of neighborhood deterioration. President Kennedy backed away from his campaign promise to sign an executive order against housing discrimination when northern Democrats in Congress, eager to attack racial discrimination in the South, warned against fair housing enforcement in the North. President Johnson withheld his fair housing proposal until 1966, when it was pigeonholed even by the liberal 89th Congress. ²

The second difference involves the timing of the legislative debate cycle in Washington. For the nondiscrimination campaign targeting job discrimination, segregated public accommodations, and black disfranchisement, this was 1948-65. It coincided with the presidential drive begun by Truman and completed by Johnson. For nondiscrimination in housing, the drive for an enforceable federal statute ran from 1966 to 1988. The legislative environment for civil rights policy during those years was hardened by the national backlash against the urban riots and Black Power rhetoric of the late 1960s, and by the rising controversy over race-conscious affirmative action in the 1970s and 1980s.

These differences in the nature of the fair housing issue and the timing of its legislative career coincided with two structural changes in the national policymaking process that conditioned its outcome. One was the shift from presidential to congressional leadership in legislative policy. The other was the new dynamics of divided party goverment.

The traditional model of presidential leadership in liberal reform eras, which nicely fits the accomplishments of Lyndon Johnson's Great Society legislation, does not work for subsequent presidencies. Students of American politics (this one included) have concentrated their research and writing too much on great transformations led by presidents armed with decisive electoral mandates. The party systems model of the American political system, which emphasizes critical elections, partisan realignment, and periodic bursts of reform, has focused on the major realigning presidencies and their legislative reconstructions. In this century, the literature has clustered around Franklin Roosevelt, Lyndon Johnson, and Ronald Reagan, with their huge popular mandates and their "hundred day" drives to capitalize on it. In this familiar tradition, presidents as party leaders speak for the will of the people, overcoming vested interests and driving reforms through Congress. ³

In the past decade, however, the presidential leadership model has come under attack...