Municipal Liability under the Fair Housing Act: An Update

Abstract

Congress adopted the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, “to provide, within constitutional limitations, forfair housing throughoutthe United States.” 42 U.S.C. §3601. The Act prohibits public or private activities that would “make unavailable or deny, a dwelling to any person because of race, color, religion, sex, or national origin.” 42 U.S.C. §3604(a). Courts have held that the Fair Housing Act prohibits a broad range of discrimination related to the provision of housing, including discriminatory rental practices, insurance and mortgage “redlining,” and even individual acts of violence. The Act is of particular importance to municipalities because courts have interpreted it to prohibit land use policies and decisions that make housing unavailable to racial minorities. See, for example, Metropolitan Housing Development Co. v. Village of Arlington Heights, 558 F. 2d 1283 (7th Cir. 1977), 29 ZD 245, cert. den'd, 434 U.S. 1025 (1978) (Arlington Heights II). Although the Fair Housing Act has been in existence for many years, federal courts have differed in applying it to local land use decisions. This variety of federal court intrepretations of the Act has sparked much controversy. See, for example, Schwartz, The FairHousing ActAnd “Discriminatory Effect”: A New Perspective, 11 Nova L. Rev. 71 (1986); Kmiec, Exclusionary Zoning And Purposeful Discrimination: Two Separate Wrongs Deserving Separate Remedies, 18 Urb. L. 393 (1986).