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    The Most Important Housing Law Passed in 1968 Wasn’t the Fair Housing Act

    As we embark upon celebrations commemorating the enactment of the Fair Housing Act, it may be useful to look more deeply into some of the details of American housing history from this period.  Fifty years on, it is important for us to take stock of what worked and what didn’t.

    On April 11, 1968, President Lyndon Johnson signed into law the Civil Rights Act of 1968, also known as the Fair Housing Act.  The law was a follow-up to the Civil Rights Act of 1964 and also updated the Civil Rights Act of 1866, which–unbeknownst to many–also prohibited discrimination in housing after the Civil War.

    Passage of this law should be seen in historical perspective.  At the time that Johnson signed the bill, Martin Luther King, Jr. had just been assassinated a week earlier and the so-called King Riots were still happening.  Photo and video of urban rioting and of the Vietnam War had become fixtures on the nightly news.  Much to Johnson’s chagrin, the Kerner Commission had also just released its findings and recommendations on February 29, 1968.  The country–and the world–were on fire.

    By 1968 it had become apparent, especially to King, Whitney Young and other members of the “Big Six,” that solving the problem of racism in northern cities was going to prove a significantly more daunting challenge that could not be confronted as effectively by nonviolent direct action as in the South.   “I Have a Dream” and Selma had been superseded.  According to groups such as the Student Nonviolent Coordinating Committee (SNCC) It was now about Black Power.

    The idea of anti-discrimination legislation in housing was not new.  It had been an objective of liberal African-American civil rights leaders since at least the 1930’s.  Robert Weaver, whom Johnson appointed as the first African-American cabinet secretary in 1965, had been fighting for fair housing since his days as a member of the short-lived United States Housing Authority (USHA) created by the 1937 Housing Act.  By the late 1940’s Weaver had become the nation’s foremost expert on housing discrimination with the publication of his 1948 classic The Negro Ghetto, which in its analysis and policy formations was something of an African-American liberal version of Gunnar Myrdal’s An American Dilemma, which had been released four years prior.

    Has the Fair Housing Act Worked?

    In a word:  No.  Not only does racial discrimination in housing still exist (click here for a recent example), class segregation has worsened.  Scholars have offered numerous explanations.

    One major explanation for this unfortunate state of affairs is that the law has no teeth.  Compliance with the Fair Housing Act has mostly become a paperwork exercise.  Over the act’s fifty year existence thousands of “Impediments to Fair Housing Choice” reports have sat on municipal shelves gathering dust, their findings and analyses unread and their recommendations unheeded. 

    Enforcement is another problem.  Proving discrimination in housing is notoriously difficult and expensive.  The HUD civil rights division’s record in investigating, much less prosecuting, Fair Housing Act complaints is spotty at best.  I found out about how difficult it can be to investigate Fair Housing Act violations while working as a fair housing tester for the Austin Tenants’ Council in the late 1990’s; heroic levels of persistence are necessary.

    Perhaps most importantly, this civil rights law failed because of its race and class neutrality, also a weakness of the predecessor civil rights laws enacted in 1964 and 1965.  Perhaps the single most important lesson the past fifty years should have taught us by now is this:  we cannot fix discrimination in housing via an anti-discrimination framework.  Conscious race and class measures are needed that tackle the inherent problems of American inequality at their root.

    Housing is a Human Right

    All of the fair housing talk of the previous five decades has missed an obvious point:  safe, decent and affordable housing is a human right.  That right is ensconced in the Universal Declaration of Human Rights, Article Twenty-Five, Section One.

    The United States once understood this:

    The general welfare and security of the Nation and the health and living standards of its people require housing production and related community development sufficient to remedy the serious housing shortage, the elimination of substandard and other inadequate housing through the clearance of slums and blighted areas, and the realization as soon as feasible of the goal of a decent home and suitable living environment for every American family.

    —Housing Act of 1949

    The Forgotten 1968 Housing Law

    The most important housing law passed in 1968 was not the Fair Housing Act, it was the Housing and Urban Development Act of 1968.  But that is not how history has remembered it.  If you Google “Housing Act of 1968” nearly every result refers to the Fair Housing Act instead.  This misremembering is not accidental–it reflects the race and class trajectory of America over the past five decades.

    The Housing Act of 1968 was the true capstone on Lyndon Johnson’s housing career, and had its promise been fulfilled, many of the problems beleaguering American cities today might have been avoided or at least mitigated.  Johnson did not just consider it one of the most important pieces of legislation he ever signed, he considered it one of the most important pieces of legislation in American history:

    “I have signed more than 500 major measures as a member of Congress, and perhaps in a century from now, ten of those measures will be remembered as outstanding.  If I were to look back upon the ten measures that I know that have been passed in the 188 years of our government, I would list the Housing Act of 1968 as one of the ten most important.”

    At the August 1, 1968 signing ceremony for the bill, President Johnson proclaimed “Today, we are going to put on the books of American law what I genuinely believe is the most farsighted, the most comprehensive, the most massive housing program in all American history.”  He was right.  The 1968 Housing Act was the biggest housing bill in the history of the United States by a considerable margin.  It eclipsed the Housing and Urban Development Act of 1965, a law that Johnson at the time also considered to be one of his most important accomplishments.*  

    *(The 1965 law created the Department of Housing and Urban Development, and Johnson reluctantly appointed Robert Weaver as the department’s first director, making him the first African-American cabinet secretary.)

    The 1968 Housing Act included a smorgasbord of housing ideas:  Model Cities (in Austin that included Austin Oaks and the Rebekah Baines Johnson Center), Section 235 homeownership subsidies, Section 236 rental assistance (which gave us the term “Fair Market Rent”), business insurance, and a robust increase in public housing construction.  The act declared that the goal “can be substantially achieved within the next decade by the construction or rehabilitation of 26 million housing units, six million of these for low and moderate income families.”

    The 1968 Housing Act also reaffirmed the nation’s commitment, first articulated in the 1949 Housing Act, of a decent home and suitable living environment for every American family.  All of the programs included in the act were funded at historic levels–by a considerable margin.

    Looking back, it seems somewhat ironic that the HUD secretary who presided over the single largest construction of federally subsidized housing in American history was George Romney, father of recently declared Senate candidate from Utah Mitt Romney.  American housing production between 1968 and 1972  was both robust and diverse.  It was also experimental.*  This, more than anything else, influenced what a later generation of urbanists would go on to simplistically proclaim as “missing middle” housing, not architectural design or local zoning politics.

    *(it is not commonly acknowledged that much of modern “greenbuilding” is a government creation.  The federal government sponsored high-design public housing projects in the 1930’s that utilized an early version of what today would be termed “Passive Solar” heating.  It also sponsored the installation of solar panels at public housing projects in Miami in the early 1940’s.  The 1968 Housing Act sponsored housing research that examined the feasibility of large scale construction of pre-fab housing that would be affordable as well as energy efficient.)

    What happened?  What happened was this:  it was working. 

    Then around 1972 it died.  More specifically, it was killed.

    White resistance to integration as well as overall hostility to government housing efforts, especially in northern cities, was strong.  Old fashioned racism once again also reared its ugly head.  Consequently, President Richard Nixon declared a moratorium on the entire federal housing effort in 1971, and the liberal era of American housing policy started during the New Deal in the 1930’s came to an end.

    Nixon declared that the old approach was a failure and called for a new approach, a more conservative approach.  What America got was this:  block grants and a new tenant based voucher program known as Section 8.  In other words, deregulation and delegation.  This era also marks the beginning of steep reductions in direct federal funding for affordable housing construction and maintenance, and the encroachment of the so-called FIRE Sector (Finance, Insurance, Real Estate) into affordable housing provision in America.  Government was on the retreat:  mortgage backed securities, first introduced in February, 1970, were termed “the real estate financing innovation of the 1970’s.”

    In 2018 even the thought of direct federal provision of affordable housing is nigh unimaginable.  The “public/private partnership” has been so thoroughly drilled into the collective consciousness of the American mind that it has now become common sensical to destroy Austin’s historic public housing and to invest private entities with public development rights and taxpayer subsidies instead, something the Austin City Council will proclaim as virtuous in four days at its March 22, 2018 meeting in discussions about the future of Austin’s historic Rosewood Courts public housing project.

    Meanwhile the waiting list for public housing in Austin is over 20,000 people, nearly 10,000 families.  The waiting list is perpetually closed, so the actual number is even higher.

    After Nixon and Carter, it was all downhill; Ronald Reagan dramatically cut housing funding in the early 1980’s and utilized a stereotyped public housing welfare queen (who, it turned out, wasn’t just a stereotype, she didn’t actually exist.  Reagan used a variety of versions, depending upon the audience) to do it.  His HUD secretary Samuel Pierce, an earlier version of current HUD secretary Ben Carson, oversaw the dismantling of what his predecessor Robert Weaver had helped to create, and was also embroiled in scandal.

    Under Reagan, our neoliberal era began in earnest.  Funding for the poor and working class was redistributed upward. In 1981 the remaining War on Poverty initiatives that had survived the Nixon era were consolidated into a Community Services Block Grant program housed in the Health and Human Services department, not HUD.  Deficit spending, mostly on “defense” increased dramatically.  At the same time that the federal government was cutting funding for affordable housing programs and other initiatives that actually helped the American people, it increased taxpayer funding for the construction of prisons.  It escalated the drug war started under Nixon.  It deregulated and delegated further.  

    It would be wrong to only blame Ronald Reagan:  these things took place under both republican as well as democratic administrations.  CSBG was enacted by a democratic congress.  It took Bill Clinton to give us the 1994 Crime Bill, the 1996 Welfare Reform Bill, the 1998 “Quality Housing” Bill, and the end of Glass-Steagall.

    Chances are you won’t hear this history discussed at the upcoming Austin Fair Housing Conference.  Chances are you won’t hear about the provision of housing by right, regardless of income.  One of the reasons why is this:  the Fair Housing Act did succeed in creating a lot of jobs for Fair Housing Act experts.  These specialists have become a powerful constituency, and make up an important part of the housing portion of the non-profit industrial complex now governing important parts of contemporary American neoliberal capitalism.  

    Lastly, you most certainly will not hear about the most important insight of New Deal liberals in the 1930’s:  that the private real estate market is structurally incapable of furnishing safe, decent and truly affordable housing for families of low income.  Until contemporary crusaders for desegregation can bring themselves to terms with this basic law of American real estate, their efforts will continue to be well intentioned, but misguided.

    The provision of that human right, is government’s, not the private sector’s, job.