Fixing Up Fair Housing Laws: Are We Ready for Reform?

55 Pages Posted: 28 Jul 2008

See all articles by David A. Thomas

David A. Thomas

Brigham Young University - J. Reuben Clark Law School

Date Written: July, 28 2008


This Article proposes and documents the following ten points concerning the provisions restricting private conduct in the federal Fair Housing Act (FHA), which was enacted as Title VIII of the Civil Rights Act of 1968 and later amended: 1. The FHA declares that it is subject to constitutional limitations.

2. No language in the FHA indicates the basis of its constitutional authority.

3. The legislative history of the FHA shows that constitutionality was discussed in Senate debates, but was not mentioned in committee reports.

4. During the debates, FHA proponents argued that the FHA was constitutional because of federal legislative power implicit in the Fourteenth Amendment and in the Commerce Clause.

5. Court decisions on FHA constitutionality have not relied on the Commerce Clause or on the Fourteenth Amendment, but rather on the Thirteenth Amendment, mostly because of the Jones v. Alfred H. Mayer Co. decision in 1968. No U.S. Supreme Court decision has ruled directly on the constitutionality of the FHA. All of the rationales employed in the other federal courts are seriously flawed; no persuasive basis for FHA constitutionality can be shown. No rationale for constitutionality has ever been suggested that justifies prohibiting any type of private discrimination except against African Americans.

6. In its application, the FHA's constitutionality has been adjudicated only with respect to possible conflicts with freedom of speech. The FHA in those cases has been upheld only because the plaintiffs' speech was deemed to be unprotected commercial speech, a rationale which today is probably no longer valid. In other areas, such as private, noncommercial expression, religious exercise and takings, the FHA appears plainly in violation of the Constitution.

7. If the FHA is vulnerable to full or partial invalidation, alternative approaches to open housing should be sought. Suggested solutions include amending the FHA and relying more heavily on state law and traditional property law concepts with no risk of unconstitutionality.

8. FHA vulnerabilities easily can be eliminated by confining its prohibitions to state action, which can be based on the Equal Protection provision of the Fourteenth Amendment.

9. States, which are the sources of most common and traditional law governing private property rights, already heavily support open-housing measures of various kinds and can be expected to act responsibly.

10. Some features of servitudes--specifically, of real covenants and easements--may be employed to protect property from unwanted private discrimination without any risk of unconstitutionality and with full respect to traditional private property rights. To the extent these servitude forms are not completely suitable, corrective legislation to authorize an open-housing easement is proposed, similar to legislation authorizing conservation or historic preservation easements. The rights of property disposition surrendered in such servitudes, either by donation or eminent domain condemnation, should be treated as rights of value for which compensation is appropriate.

Keywords: Fair Housing Act, private conduct restrictions, state action, open housing, servitudes, discrimination, constitutionality

Suggested Citation

Thomas, David A., Fixing Up Fair Housing Laws: Are We Ready for Reform? (July, 28 2008). 53 South Carolina Law Review, Vol. 53, pp. 7-61, Fall 2001, Available at SSRN:

David A. Thomas (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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