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The Growing Farce of Fair Housing

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In his masterpiece The Totalitarian Temptation, French socialist Jean-Franois Revel wrote, “There is a growing trend in the West to discount freedom as compared to justice.” This trend is clear from the type of moral arrogance that congressmen and bureaucrats show in suppressing freedom in the name of bogus new moral imperatives.

In 1968, Congress passed the Fair Housing Act to outlaw discriminatory real-estate practices. The continual expansion of the list of “unfair” practices since then has made a mockery of any coherent concept of fairness or justice.

For example, newspapers, developers, and realtors are increasingly being hammered by expansive interpretations of the Fair Housing Act Amendments of 1988. The act declares that it is “unlawful to make, print, or publish, or cause to be made, printed, or published, any notice, statement, or advertisement, with respect to the sale or rental of a dwelling, that indicates any preference, limitation, or discrimination because of race, color, religion, sex, handicap, familial status, or national origin.” The federal Department of Housing and Urban Development (HUD) has an expansive interpretation of what constitutes fair-housing ad violations:

“References to a synagogue, congregation or parish may … indicate [an illegal] religious preference. Names of facilities which cater to a particular racial, national origin or religious group such as country club or private school designations … may indicate [an illegal] preference.”

HUD even threatens lawsuits against housing developers who do not patronize foreign-language newspapers:

“The use of English language media alone or the exclusive use of media catering to the majority population in an area, when, in such area, there are also available non-English language or other minority media, may have discriminatory impact.”

Real-estate companies in the Maryland suburbs of Washington have been prohibited from including the phrase “walking distance to the subway” in home ads because it is considered discriminatory against people in wheelchairs. HUD also compels real-estate advertisers to use racial quotas in their models in real-estate ads. While the Supreme Court has ruled that hate speech, such as burning a cross on someone’s lawn, is protected by the First Amendment, speech such as a real-estate ad that does not portray the right quotas of minorities can be penalized.

HUD finances scores of fair-housing advocacy organizations to investigate, entrap, and sue private companies for alleged fair-housing violations. National Review editor Rich Lowry noted in a February 1998 article: “Some housing groups have been known to place allegedly biased housing ads in newspapers, then turn around and sue the papers for running them. Crazy? Maybe, but it’s par for the course.” HUD does little or no policing of how fair-housing advocacy groups use the money Uncle Sam gives them each year.

A suit stemming from a fair-housing advertisement complaint destroyed 22 newspapers in California. The HUD-funded California Fair Housing Council sued the Southern California Community Newspapers chain because one of its newspapers printed an apartment rental classified ad that stated “adults preferred.” This phrase violated the 1988 Fair Housing Act Amendments, which prohibit “discrimination” against renters with children. The publisher, Ric Trent, offered the Fair Housing Council $50,000 in free advertising to promote the need for fair housing, but the council refused. Fair Housing Council attorney Christopher Brancart observed, “We refused to settle this case because we felt the newspaper had an obligation to make things right in the community.” Trent estimated that trial expenses for the ad violation would have cost him $500,000, so he filed for Chapter 11 bankruptcy protection, and a bank foreclosed on the papers shortly thereafter. The 1993 shutdown destroyed more than one hundred jobs.

HUD has systematically sought to financially destroy and intimidate critics in recent years. The Fair Housing Act Amendments of 1988 added drug addicts, alcoholics, and the mentally disabled to “protected groups” covered by the federal Fair Housing Act. As a result, HUD now claims that criticizing group homes for those groups can be a violation of federal law.

Unfortunately, people who enter programs for recovering drug addicts have an extremely strong relapse rate. (Roughly half of recovering alcoholics and 70 percent of recovering drug addicts revert back to the bottle or needle.) And homeless shelters can affect more than a neighborhood’s ambience; the crime rate in Elmsford, New York, doubled after a shelter opened.

In 1994 HUD launched an investigation of the members of the Irving Place Community Coalition, a group of New York City citizens opposed to placing another home for the mentally ill in a neighborhood already saturated with such homes. HUD investigators decided that the residents’ civic activism was a crime and demanded membership lists, written messages, and other documents from the members — and even demanded to see the personal diaries of people involved in the opposition. Arlene Harrison, a member of the Irving Place Coalition, observed: “It was like Big Brother coming to your door with a hammer.”

In Berkeley, California, HUD officials in late 1993 issued a subpoena to three residents who had complained about plans to convert a ratty-looking motel next to a liquor store into a home for alcoholics and mentally disabled AIDS patients. A federally funded fair-housing activist organization complained to HUD about the group’s action, and HUD launched a full-scale investigation of the three. In November 1993, HUD demanded to see any letters they had written to public officials or newspapers, any petitions, names, addresses, and phone numbers of anyone who had indicated support for the group’s efforts. John Deringer, who lived next to the soon-to-be shelter complained: “We didn’t feel we had done anything wrong, but we were very, very intimidated. The threat was we could be fined $100,000 and jailed if we didn’t give them the information they wanted. It was chilling.”

After a tornado of publicity in August 1994, HUD backed down — but only after HUD Assistant Secretary Roberta Achtenberg sought to squelch the controversy over these prosecutions with an op-ed in the Washington Post by explaining, “In every case of this nature, HUD walks a tightrope between free speech and fair housing. We are ever mindful of the need to maintain the proper balance between these rights.”

Apparently, there are two separate versions of the Bill of Rights — one for private citizens and the other for federal bureaucrats and politicians. This is the only possible explanation, since the word “balance” does not occur in the copies of the Bill of Rights which ordinary citizens have access to.

As overt racial discrimination has sharply decreased in recent decades, Congress and HUD have manipulated the law and regulations to ensure that there is still a bumper crop of fair-housing violators for HUD to harvest each year. The 1988 amendments to the Fair Housing Act also prohibited “discrimination” against families with children. Congress thereby effectively labeled landlords’ decisions not to rent to families with children as a hostile act towards children that must be exterminated with increased federal power. Yet rental “discrimination” against children is, in most cases, simply a rational economic decision based on the preferences of existing tenants and prospective tenants.

This ban on “familial discrimination” has resulted in legal nightmares for senior-citizen trailer parks and apartment complexes around the country that were designed specifically for the peace and quiet of older folks. One of the first suits the Justice Department filed under the new law was a case against an apartment owner guilty of restricting families with children to ground-floor apartments. HUD claimed this was an illegal unfair-housing practice, though other tenants were probably grateful not to have children stomping on the floor over their heads. Having a seniors-only part of a building, or reserving one building out of a ten-building complex for seniors, is now a federal crime.

Fair-housing regulations illustrate how contemporary fairness increasingly depends on the byzantine quibblings of government bureaucrats. Housing communities can be exempted from the rent-to-children mandate if 80 percent of the housing units each contain at least one person 55 years or older and provide “significant facilities and services specifically designed to meet the physical or social needs of older persons,” according to federal law. On July 7, 1994, HUD issued 59 pages of proposed rules defining the law’s terms. Among the examples that HUD gives of “significant services and facilities” necessary to qualify as adults-only are: providing dining services and daily meal delivery to residents; having a staff member assigned to read to the elderly; providing daily aerobic courses and tennis courses with rest areas and shaded trees; providing cleaning service for residents’ units; reproducing material in large print and on audio tape (and providing residents with tape recorders); and offering arts and crafts and dancing classes. But mandating such services could easily double, triple, or quadruple the rent that old folks pay in mobile-home parks. HUD’s “fairness” regulations would have effectively banned low- and moderate-income elderly from seniors-only housing.

Comments received by HUD ran approximately 100 to one against the proposed regulations. At meetings around the country, thousands of elderly turned out to denounce HUD’s proposal. In 1995, swamped by the furor arising from the proposed regulations, HUD proposed a new set of requirements. Rather than mandating specific services, HUD offered a Chinese menu approach: as long as housing providers offer at least two facilities or services each from five of 12 categories, the housing could be presumed to not be unfairly discriminating. Among options that HUD proposed for the senior-housing exemption were bingo clubs, bowling trips, and tai chi classes. To meet seniors’ “educational needs,” the housing provider could offer seminars on government benefit programs. The provider could also partially satisfy the law’s requirements by providing certain HUD-recognized “leisure needs” such as having a “lawyer’s office” on-site at the senior housing. Maybe HUD thought that encouraging more frivolous lawsuits is a way to keep old folks entertained.

HUD’s power grab created so much hostility among senior citizens that Congress repealed part of the law applying to senior citizens in December 1995, though HUD continues vigorously prosecuting apartment companies and others for violations. HUD and the groups it bankrolls have attacked occupancy limits set by housing and mobile-home parks as practically an inherent violation of the civil rights of large families looking for a place to park their kids. A 1997 Washington Legal Foundation analysis observed:

“The crux of the argument is that regardless of the fact that a landlord did not intend to discriminate, a violation of the [Fair Housing] Act should be found when a preferred class — in this instance large families with children — is denied housing because of the number of persons in the family.”

Obviously, the rights of private property owners have long since been obliterated from HUD’s moral calculations.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.