Overcoming Structural Barriers to Integrated Housing: A Back-to-The-Future Reflection on the Fair Housing Act's 'Affirmatively Further' Mandate

Kentucky Law Journal, Vol. 100, 2012

52 Pages Posted: 22 Apr 2012  

Robert G. Schwemm

University of Kentucky - College of Law

Date Written: April 22, 2012

Abstract

A key goal of the 1968 Fair Housing Act (“FHA”) was to replace the ghettos by truly integrated and balanced living patterns. Today, however, residential segregation remains a key feature of America’s urban landscape, continuing to condemn new generations of minorities to a second-class set of opportunities and undercutting a variety of national goals for all citizens.

But recent developments dealing with an underutilized provision of the FHA – § 3608's mandate that federal housing funds be used “affirmatively to further the [FHA’s] policies” – hold out new hope that this law may yet prove effective in dismantling segregated housing patterns. These patterns, however, are deeply entrenched, and their powerful defenders are already mounting a counter-attack. Thus, the ultimate fate of the new § 3608-based effort to advance residential integration remains to be determined – as does resolution of the larger question of whether Americans will ever truly embrace the FHA’s goal of an integrated society.

Part I of this article provides some background, first on the FHA’s integration goal, then on the particular mandate of § 3608, and finally on the data showing that, despite the FHA, high levels of segregation continue to plague the Nation’s housing markets. Part II examines the forty-year history of § 3608 law from the FHA’s inception through modern times. Part III describes a recent § 3608-based lawsuit involving Westchester County, New York, the resolution of which in 2009 may start a new era of more aggressive enforcement of § 3608. Finally, Part IV reviews post-Westchester developments, which have produced a number of specific ideas for pro-integration initiatives, but also raise the possibility that § 3608's new promise might yet be undermined.

Keywords: fair housing, housing discrimination, segregation, affirmatively further, integrated housing

Suggested Citation

Schwemm, Robert G., Overcoming Structural Barriers to Integrated Housing: A Back-to-The-Future Reflection on the Fair Housing Act's 'Affirmatively Further' Mandate (April 22, 2012). Kentucky Law Journal, Vol. 100, 2012. Available at SSRN: https://ssrn.com/abstract=2043818

Robert G. Schwemm (Contact Author)

University of Kentucky - College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States

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