Some of the most prestigious and powerful members of the United States Senate have also raised questions regarding the constitutionality of the proposed fair housing legislation.

The record shows, however, that in every case but one the courts have held laws prohibiting discrimination in privately-financed housing constitutionality permissible limitation on the use and disposition of private property within the bounds of the police power. Three examples follow: The Massachusetts Supreme Court, in the case of Colangelo v. The Massachusetts Commission Against Discrimination, upholding the Massachusetts fair housing laws, said that:

"The Legislature possesses a large measure of discretion to determine what the public interests require and what means should be taken to protect those interests. The field for the legitimate exercise of the police power is co-extensive with the changing needs of society *** neither property rights nor contract rights are absolute; for the government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest."

Similarly, the New Jersey Supreme Court in the case of Jones v. Harido Realty Corporation

"There is no doubt that the right to acquire, own and dispose of real property is within the protective scope of the Fourteenth Amendment ***But the private right is not absolute. It is subject to the reasonable exercise of the police power, the reach of which is not capable of precise delineation. Exercise of that power by the state is valid so long as the regulation of limitation on the use of property bears a reasonable relation to public health, safety, morals or general welfare.

"If the means are reasonable (and the presumption is strong in that direc tion), the fact that some pecuniary detriment may fall on individual property owners affected thereby does not signify an invasion of due process * * *

"Discrimination against Negroes (compels) large numbers to live in circumscribed areas under substandard, unhealthy, unsanitary and crowded living conditions (producing) increased mortality, unstable family life, moral laxity, crime, delinquency, risk of fire, loss of tax revenue and intergroup tensions *** "In addition, substandard and segregated housing seriously complicates the problem of public school integration. Manifestly, in their totality these conditions reveal an evil which it is within the compentence of the law makers to correct *."

Finally, the Pennsylvania High Court in the case of Stanton Land Company v. Pittsburgh:

"There is no doubt that the possession and control of private property is a fundamental right in a free and open society *** None the less our commitment to liberty is even deeper than our commitment to property as may be observed in various pronouncements of national policy beginning with the Declaration of Independence."

The State Supreme Courts of Massachusetts, Connecticut, California, New York, Colorado and New Jersey have also upheld laws prohibiting discrimination in both publicly-assisted and privately-financed housing.

When one contemplates the variety and number of restrictions on property owners such as housing and building codes, zoning regulations and rent control, the favorable response of the courts to this legislation should not be surprising. The lone dissent from the pattern of total acceptance of the constitutionality of fair housing legislation occurred in 1961 in the State of Washington where the Washington Supreme Court, by a 5-4 decision, held the state law prohibiting discrimination in publicly-aided housing, including FHA and VA, to be unconstitutional. Three of the five judges voting in the majority, however, condemned the law not for interfering with private property, but for making an unreasonable and arbitrary distinction between homes having governmentinsured loans and all other housing. A close reading of the various decisions establishes the strong presumption that the Washington law would have been sustained, 7-2, had its coverage applied to the entire housing market.

It should be emphasized that the Washington case represents the only adverse court decision on the issue of constitutionality involving any anti-discrimination housing law. In every instance where the validity of a law prohibiting discrimination in the general housing supply has been challenged, the courts have upheld the statute.

SCOPE OF THE LAWS

The fair housing laws vary considerably in the portion of the housing market covered and in their enforcement provisions. They range in comprehensiveness from Alaska, where an official commission administers a law covering all sale and rental housing accomodations, with no exception, to Maine, where no enforcement machinery is provided for a statute barring discrimination in a limited part of the rental housing supply.

There is, however, a marked trend toward broad coverage of the housing market. As pointed out above, New York City's pioneering fair housing ordinance, which applied only to the sale of new homes in developments of 10 or more and to apartment rentals when it went into operation in April 1958, has subsequently been amended until it now covers all housing transactions except the rental of apartments in owner-occupied two-family houses and the rental of rooms in private residences.

The nine states which prohibit discrimination in all residential property put on the market for sale are Alaska, Colorado, Connecticut, Indiana, Massachusetts, Michigan, New Jersey, New York, and Rhode Island. [Appended to this testimony is an NCDH report as of June 1, 1966, "The Fair Housing Statutes and Ordinances," which includes a digest of the coverage of all state anti-discrimination housing laws.]

There is also a noticeable movement toward achieving more effective implementation of the laws: 11 of the 16 state commissions administering fair housing legislation now have specific power to take affirmative action by initiating complaints and investigations of discrimination on their own motion; and seven are authorized to ask for court injunctions or have other means of holding the housing in question in status quo until cases are settled. In addition, several commissions are moving to streamline their operating policies and practices. Some states have established the right of an applicant to see a unit in which he may be interested, and refusal to show the unit is a violation of the law.

It seems clear that the trend toward broader coverage of the market and for provisions to insure more effective implementation are in response to demonstrated needs and weaknesses, and to widespread recognition that affirmative, vigorous action is essential if the fair housing laws are to achieve their purpose: the end of discrimination and segregation in housing and the development of a free society in which every man in fact receives equal treatment and equal service in his search for a home.

Real estate brokers

Most of the statutes have express language making them apply not only to owners but also to their "agents." Even without such provisions, it may be assumed that a real estate agent who discriminates on instructions from his principal is participating with the owner in an illegal practice where the housing at issue is covered by the law. However, that does not, by itself, take care of the whole problem of discrimination by real estate brokers. As we have seen, there is substantial evidence that much of the discrimination in housing is generated by real estate brokers who, on their own motion and independent of instructions from home owners, refrain from showing property in specified areas to minority groups they regard as undesirable. Moreover, even when the broker's discrimination has the approval of the principal, that fact cannot always be shown. Hence, the laws in Massachusetts, Minnesota, New Jersey, New York State and New York City contain specific provisions prohibiting discrimination by real estate brokers and salesmen in all housing in which discrimination is prohibited on the part of the owner. The Oregon and Pittsburgh laws go further. Although the primary coverage of the Oregon law is limited to persons engaged in the business of selling real property, a separate provision makes it illegal for a real estate broker or salesman to accept a listing of any "real property" with the understanding "that a purchaser may be discriminated against." The Pittsburgh law, in which the primary coverage has a limitation of five or more units, prohibits discrimination by real estate brokers and salesmen as to all housing and vacant land available for housing.

In California and Connecticut, the activities of real estate agents have been reached by a different route. In each of these states, it has been ruled that real estate agents fall within the scope of the law prohibiting discrimination in places of public accommodation.

Financial institutions

As in the case of real estate brokers, there is substantial evidence that discrimination often originates with banks, insurance companies, and other financial institutions, independent of the instructions of the seller or renter. Thus it is claimed that minority groups are sometimes prevented from buying property in specified areas, even after they have concluded a sales agreement with a willing owner, because they find it impossible to obtain a mortgage from any financial institution.

The laws in Colorado, Minnesota, New Jersey. Pennsylvania, and New York City deal with this by expressly prohibiting discrimination by financial institutions in housing within the primary coverage of the various laws. New York State and Pittsburgh go further. New York State prohibits discrimination by financial institutions as to all housing accommodations and commercial space, and Pittsburgh as to all housing and vacant land available for housing, without regard to the limitations in the primary coverage.

OPERATION OF THE LAWS

According to a 1965 NCDH survey of the operation of state and local fair housing laws which had been in effect for two or more years, 7.300 formal complaints had been filed under the 15 laws covered by the survey. These ranged from 103 in Oregon to 3.906 in New York State, the latter figure representing the combined total for both state and New York City legislation. The Oregon, New York State and New York City records covered a six-year reporting period.

Forty-two percent of the complaints were reported as "satisfactorily closed." In general, satisfactory closing means the complainant got or was offered the housing at issue or a comparable unit, or was placed on a waiting list, and the respondent agreed to comply with the law in future housing transactions.

However, no more than 12 percent of those filing complaints actually secured the housing they sought or a comparable unit. About 15 percent were offered housing but refused it. Many complainants found it impossible to wait out the period of investigation and settlement; some found the housing offered unsuitable; others were no longer interested.

Forty-three per cent of all complaints were dismissed. Some involved housing not covered by the law; the largest number were dismissed on the grounds of insufficient evidence to substantiate the complaint; some cases were dropped by the complainants.

Almost all settlements were made by conciliation, with less than one per cent of the cases reaching the courts. Slightly more than one per cent were scheduled for public hearing and many of these were settled by conciliation before the hearing opened or while it was in progress.

The number of complaints pending on June 30 amounted to approximately 13 per cent of the total number of cases filed under the 15 laws. Disposition of a small number could not be determined.

A comparison with figures reported in an NCDH survey made two years earlier showed that the number of citizens who had used law to protect the equal right to shelter almost doubled in the two years before the 1965 survey. However, the 1963 analysis covered six state and two city laws which had been in operation for periods ranging from one to four years, whereas the later study covered 15 measures. Even with expanded coverage and greater experience in implementation, it is apparent that use of the laws had accelerated only slightly. The complainants

As was found in 1963, more than 90 per cent of all complaints have been filed by Negro Americans. Persons of Puerto Rican ancestry account for about 3 per cent of the cases. Charges of discrimination have been filed by a few Jews, an occasional Roman Catholic, some Mexican-Americans, etc. A few have been wealthy, more have been poor, but the vast majority have come from the great American middle class. There is, however, some increase in the percentage of complaints coming from the lower-income group.

The typical complainant is in the 25-45 age group, married, and has a small family. Both husband and wife have better-than-average educations and are apt to have attended college: both have white collar jobs-professional. managerial, clerical. They may want to buy a home in the suburbs; they are more apt to be seeking a rental apartment in a good city neighborhood with first-class schools.

The impact of the laws

Fair Housing laws in states and cities have been an important factor in the slow but steady movement of Negro families of predominantly middle-class status into the general community during recent years. In many sections of the country, a considerable increase in the number of neighborhoods which are integrated to some degree can be attributed to existence of the laws.

On the other hand, the growing body of legislation designed to wipe out housing discrimination and segregation has had little impact thus far on the restrictions faced by the overwhelming majority of non-white Americans. Even the most comprehensive statute has failed to halt or to substantially deter expansion of the racial ghettos.

Other conclusions

Other major conclusions drawn from the NCDH surveys include the following: The intent of the fair housing laws cannot be realized unless prevailing concentration on the individual complaint process is broadened to include affirmative and extensive action to achieve integration. A fundamental weakness in implementation of the fair housing laws is the heavy reliance placed on individual initiative when the need is for massive social action.

Even with respect to complaint loads, the laws are under-utilized in every jurisdiction. Only modest acceleration in the filing of complaints has occurred where the coverage of laws has been expanded and with the passage of time. The figures indicated widespread lack of information about the laws, and that relatively few minority-group homeseekers who are informed about them have faith in their effectiveness.

The fact that only a small percentage of the aggrieved persons who file complaints get the housing to which they are entitled creates a negative attitude about the value of the laws, and indicates major weaknesses in enforcement procedures.

The high percentage of cases which are dismissed for lack of evidence underscores the need for greatly expanded educational programs on how to use fair housing statutes and ordinances. It also suggests the need for more liberal interpretation of the laws and a more imaginative approach toward achieving their goal.

Fair housing legislation is but one of many tools required to break up the racial ghettos. An increase in the supply of low-to-moderate cost housing, with dispersion of such housing throughout cities and suburbs, is absolutely essential in order to move beyond tokenism and develop an integrated community.

THE FEDERAL GOVERNMENT'S RESPONSIBILITY FOR ENDING HOUSING DISCRIMINATION The legislation before this Committee succeeds by one hundred years the passage of the nation's first fair housing law. That law guaranteed that "all citizens of the United States shall have the same right in every State and Territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." It may be of interest to this Subcommittee, and to concerned citizens everywhere, to point out that the 1866 legislation was based not on the Fourteenth Amendment-which was ratified only in 1868but on the Thirteenth Amendment, the Slavery Amendment. In enacting this legislation the Congress gave effect to a fundamental concept of American democracy, namely that political freedom is premised on the ownership and control of private property. It was Thomas Jefferson who said that widespread ownership and cultivation of the land is the best guarantee of a stable, orderly and prosperous society.

As long as the Negro was denied the right to "purchase, lease, sell, hold and convey real and personal property," he would remain a slave; the free status guaranteed him by the Thirteenth Amendment would have little practical meaning. The purpose of the legislation, then, was to enfranchise the freedom by establishing, as a Federal entitlement, their right to acquire, own, and dispose of real and personal property.

Subsequent to the passage of the Fourtheenth Amendment, the 1866 legislation was repassed to strengthen and give increased weight to the Federal Government's responsibility for making real the Negro's right to political and economic freedom. Unlike many of its companion Reconstruction measures, this legislation survives to the present day as Title 42, Section 1982, of the United States Code. However, it has had little impact on the course of housing segrega

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tion. For the prevailing view, in our opinion not the correct view, is that it limits only government action and thus reiterates the limitations of the Fourteenth and Fifteenth Amendments. Nevertheless, this legislation has repeatedly been used as a makeweight in considering cases decided on other Fourteenth Amendment grounds.

In considering again the question of fair housing legislation, therefore, the Committee ought not to be diverted by the spurious question of the power of Congress to legislate in this area. It remains to be seen, however, whether the instant legislation will be adequate to the pressing and explosive conditions which exist in the Negro ghettos today. We feel we can contribute to this Subcommittee's deliberations on the matter of Title IV by stating, on the basis of our experience with state and local fair housing laws, what we consider to be four elements that must be present in such legislation and in its administration to make it an effective instrument for achieveing a racially-integrated housing market.

First, detailed findings showing the extent of residential segregation, its destructive effect on the health, welfare and safety of milions of minority citizens, and its relationship to the economic, social and political problems of urban areas. Secondly, comprehensive coverage of the housing market, applying to owners, builders, brokers, mortgage lenders, and advertising. Limited fair housing laws guarantee citizens only part of an established right; partial coverage creates complications and confusion for everyone-homeseekers, the industry and the enforcement commission.

Thirdly, vigorous and affirmative implementation, backed up by provisions for an enforcement commission to initiate complaints (including industry-wide investigations), issue subpoenas, hold hearings, issue orders, seek injunctive relief, award compensatory damages, and go to court for enforcement.

Fourthly, liberal interpretation of the law and recognition by the administrative agency, by the political power structure, and by the Executive Branch of the Federal Government that its basic objective is to break up the racially impacted ghettoes and promote residential integration. This emphasizes moving both the suppliers of housing, and homeseekers, beyond the case-by-case concept. The Federal Government's goal must be to create positive business practices and home-shopping habits which will encourage non-white families to seek housing outside the ghetto.

A Federal fair housing law containing these elements will set a national tone and a public ethic of nondiscrimination in the housing market which will stimulate voluntary compliance and cooperation, and open up countless numbers of housing units to Negroes and other minorities in areas formerly closed to them. Additionally, such a law will have a substantial and favorable impact on the real estate and home-building industry in all sections of the country. For at the same time that housing discrimination restricts the potential nonwhite housing market, builders and real estate agents across the country report that oversupply in one-family houses and in apartments has become a major factor in retarding their housing and construction programs. It is our firm belief that. the failure to market these vacant units to Negroes and other minorities, and the refusal of builders to market new housing on a racially-inclusive basis is a major contributing factor to the recent sharp decline in the level of new housing starts. While many vacant units are substandard and exist in ghetto areas 35,000 such units are "available" in North Philadelphia alone the majority of vacancies are of high quality and are located in all-white or predominantly white neighborhoods and in all income ranges.

Los Angeles, California, for example, which normally has about 70,000 to 80,000 vacancies, now has 150,000 vacancies, or more than enough to accommodate the entire nonwhite population of Watts in South Los Angeles. If ways were found to enable the nonwhite population of South Los Angeles to move into these units, the aspirant relationship between housing and income, coupled with the proximity to downtown jobs, would undoubtedly have made a major impact on the nonwhite employment picture in the area. Doubtless, the hopelessness, alienation, and dependency which are prevalent throughout the ghettos of Los Angeles and which were at the root of the rebellions in the Watts district last August and in recent months would have been significantly reduced. Although Rochester, Chicago, and New York City-among other municipalities-continue to suffer from low vacancy rates, what is true for Los Angeles is true for a significant number of both large and small cities throughout the country. A