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from other cities were held similarly invalid, one where the ban on residence was based upon the Virginia miscegenation statute (City of Richmond v. Deans, 281 U. S. 704), and the other where the proposed resident of a block predominantly occupied by persons of the opposite race was required to secure the written consent of a majority of such persons (Harmon v. Tyler, 273 U. S. 668).

These devices having failed, the Government was then asked to enforce racial residential segregation desired by white property owners through court enforce ment of covenants, and again the United States Supreme Court intervened.

In striking down action by State courts which enforced private agreements barring Negroes from ownership or occupancy of real property, the Supreme Court stated :

"It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the fourteenth amendment are the rights to acquire, enjoy, own, and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that amendment as an essential precondition to the realization of other basic civil rights and liberties which the amendment was intended to guarantee" (Shelley v. Kraemer, — U. S. — (1948)).

And in a companion case similarly striking down enforcement of such restrictions by a Federal district court, Mr. Justice Frankfurter spoke of the rights of Negroes to legal equality in ownership and occupancy property as "so basic to our society that, after the Civil War, their protection against invasion by the States was safeguarded by the Constitution," (Hurd v. Hodge, — U. S. — (1948), concurring opinion).

Indeed, it is well established that the Constitution guarantees "the protection of equal laws” (Yick Wo v. Hopkins, 118 U. S. 356, 369). Such principles apply to the granting of benefits or the imposition of penalties or burdens by any agency exercising governmental power in any form (Virginia v. Rives, 109 U. S. 313 (1880); Civil Rights Ca8c8, 109 U. S. 3 (1883); Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673 (1930) ; Shelley v. Kraemer, U. S. (1948)).

In the restrictive convenant decisions the Supreme Court found that "but for" the active intervention of the courts, the Negro petitioners would have been free to occupy the properties in question without restraint. The Court stated, “These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit” (Shelley v. Kraemer). What was unconstitutional in the restrictive covenant cases was that the States recognized and enforced the private discriminations. The Court stated :

“And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the fourteenth amendment” (Shelley v. Kraemer).

With the decisions in these cases it was hoped that the last source of Government support for residential segregation was destroyed.

Yet the FHA continues to recognize, give weight to, and lend its authority in support of the same private discriminations declared unenforceable by the United States Supreme Court. Just as the ordinance in Harmon v. Tyler did not prohibit absolutely occupancy by Negroes in blocks predominantly white, but conditioned such occupancy upon the will of a majority of the whites, so the FHA conditions the granting of benefits upon white market acceptance. The action of FHA is unconstitutional for the same reasons that the ordinance was unconstitutional,

In Buchanan v. Warley, supra, the Supreme Court examined in detail the objectives by which the ordinance was sought to be justified. Each of such reasons was found insufficient by the Court.

1. Eren the police power of the State in regard to maintaining public peace cannot sustain residential segregation by Government action.

"It is said such legislation tends to promote the public peace by preventing racial conflicts; that it tends to maintain racial purity; that it prevents the deterioration of property owned and occupied by white people, which deterioration, it is contended, is sure to follow the occupancy of adjacent premises by persons of color.

"It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.” (245 U. S. 60, at p. 81).

2. Race of the occupants is not a reasonable measure of depreciation of property.

"It is said that such acquisitions by colored persons depreciate property owned in the neighborhood by white persons. But property may be acquired by undesirable white neighbors, or put to disagreeable though lawful uses with like results” (245 U. S. 60, at p. 82). 3. Governmental recognition of the racial hostility cannot justify depriving citi.

zens of constitutional rights “That there exists a serious and difficult problem arising from a feeling of hostility which the law is powerless to control and to which it must give a measure of consideration may be freely admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges” (245 U. S. 80, 81).

The achievement of racial residential segregation is the purpose and the effect of the FHA's policy. The Supreme Court's interpretation of the fifth amendment has shown concern for the protection of the rights guaranteed from sophisticated as well as simple-minded violations. The most than can be said for the FHA's violation of constitutional rights is that it is the latest and the most sophisticated attempt to lend governmental aid to the imposition of racial residential segregation.

The decisions of the Supreme Court have thus established that State legislatures, State courts, and Federal courts are without authority to impose residential segregation. Congress itself has acted in this field through the adoption of section 1978 of the Revised Statutes, Title 8, United States Code, section 42, reading as follows:

“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.”

Despite these restraints the FHA has asserted an authority it does not possess, for its power cannot be greater than that of the Federal Government.

C. IT IS UNLAWFUL FOR THE FEDERAL HOUSING ADMINISTRATION TO APPROVE PROJECTS

FOR FHA INSURANCE WHERE IT IS ON NOTICE THAT SUCH PROJECTS WILL CONTAIN RACIAL RESTRICTIVE COVENANTS

In Shelley v. Kraemer, supra, the Supreme Court found that the difference between governmental aid in enforcing the rights of private individuals to impose such discrimination as they see fit and nonenforcement of those covenants “is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing," and the Court said:

"State action, as that phrase is understood for the purpose of the fourteenth amendment, refers to exertions of State power in all forms. And when the effect of that action is to deny rights subject to the protection of the fourteenth amendment, it is the obligation of this Court to enforce the constitutional demands."

No distinction can be drawn between action of the Federal Government aiding in the initiation of racial discrimination and governmental action in aid of the final achievement of racial discrimination.

Here the FHA asserts its power to grant mortgage insurance to projects built by private builders which from the very beginning are limited by inclusion of a racial restrictive covenant to white residents only. We are not here concerned with the unexpressed intention of the builder of a project to choose among pos. sible purchasers upon any basis which he may desire. We are concerned with the granting of Federal benefits to a private builder who openly announces his intention to refuse occupancy to Negroes and who, even further, seeks to bind by written agreement all future owners to a similar discriminatory policy. If the Government may not "by the active intervention of the

courts supported by the full panoply of State power" deprive a Negro of the right to occupy property, it is similarly true that the Federal Government may not lend any portion of the panoply of governmental benefits to a project designed to deny Negroes the rights of occupancy granted to them by the Constitution.

FHA unashamedly attempts to justify this policy despite the fact that on November 4, 1947, FHA Administrator Foley wrote a letter to the Department of Justice explaining the damage to the national housing program resulting from restrictive covenants which said:

"The existence of such covenants outside these constricted areas makes it inordinately difficult and often impossible for prospective Negro buyers to qualify The brief goes on to say, “It is fundamental that no agency of government should participate in any action which will result in depriving any person of essential rights because of race or color or creed." Apparently the FHA is informed neither of the policy of the United States as interpreted by the Department of Justice and the report of the President's Committee on Civil Rights nor of the policy of the Administrator of the Housing and Home Finance Agency, of which it is a constituent part.

for FHA mortgage insurance. As a result, the middle-income market among Negroes and similar racial minorities is largely excluded from the benefits of the mortgage-insurance program."

The substitution of the words "policy of the FHA" for "covenants outside these constricted areas" in the letter written by Administrator Foley gives an accurate description of the effect of the FHA's policy upon Negro citizens.

D. THE FULL INTEGRATION OF MINORITY GROUPS INTO AMERICAN LIFE IS AN ESSENTIAL

PART OF THE NATIONAL HOUSING PROGRAM

The two preceding arguments have been devoted to the illegality of withholding FHA benefits from members of minority groups in response to the prejudices of a particular community. The responsibility of the Federal Government, however, is based upon an even broader ground than the unconstitutionality of the actions of the FHA.

In a democratic society devoted to the proposition that all men are created equal, even an overwhelming majority may not reach its objective at the expense of constitutional rights of a minority, however small it may be. Applying this basic principle to the program of the FHA, it is clear that within the democratic framework the housing problem of the Nation cannot be resolved by denying to individuals who are members of minority groups the right to full and unrestricted participation in the housing program. This is true for the very practical reason that the housing problems of the minority groups are in a real sense the problems of the Nation and will remain so until they are solved.

Housing, in our society today, is more than shelter. It includes the whole environment in which the home is maintained. A well-built house in a poorly planned, impoverished slum area, without adequate schools, community facilities, etc., does not provide good housing. Nor does a well-built house in a ghetto provide good housing in a democratic society. The FHA has recognized that good neighborhoods are an integral part of good housing, but it has equated “good neighborhood" with a “racially homogeneous” neighborhood. Any such concept can only frustrate the most important objective of the National Housing Act, which is to provide for Americans a healthful home environment, both physically and psychologically, in which they will develop into democratic citizens.

To achieve that end, every agency administering the Federal housing program is responsible for the encouragement of unrestricted housing. This is not the concern of any special interest, for the majority is as much damaged by ghetto living as the restricted minority. Such a program would improve the welfare of the whole Nation and would contribute to the solution of the problems of our society.

The present program, on the other hand, is creating problems which must eventually be solved, and postponement only makes the solution more difficult. The acute nature of the problem was clearly stated by the report of the President's Committee on Civil Rights, which found:

"Today, many of our citizens face a double barrier when they try to satisfy their housing needs. They first encounter a general housing shortage which makes it difficult for any family without a home to find one. They then encounter prejudice and discrimination based upon race, color, religion, or national origin which places them at a disadvantage in competing for the limited housing that is available. The fact that many of those who face this double barrier are war veterans only underlines the inadequacy of our housing record” (p. 67).

Finally, the Justice Department in the United States brief amicus curiae in the covenant cases states: "The Federal Government has a special responsibility for the protection of the fundamental civil rights guaranteed to the people by the Constitution and laws of the United States. The President of the United States recently stated: “We must make the Federal Government a friendly, vigilant defender of the rights and equalities of all Americans.

Our National Government must show the way.'

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RECOMMENDATIONS

In order to secure fair and equitable participation of Negroes in the benefits of FHA, it is necessary that the following steps be taken to eliminate discriminatory practices :

1. That the Underwriting Manual and regulations be revised and supplemented by explicit instructions that exclude all considerations predicated upon racial, religious, or national distinctions for the purpose of making commitments for insurance under the National Housing Act.

2. That the FHA in the future refuse mortgage insurance on property in which the applicant for insurance has inserted a restrictive covenant based upon race, religion, or national origin.

3. That the FHA in the future refuse approval for insurance purposes of projects submitted for approval where it appears on the application that the occupancy of such project will be limited by race, religion, or national origin.

4. That wherever, after approval of a project for mortgage insurance, it is shown that racial or similar covenants or regulations are being invoked in deeds of sale or leases covering the project, FHA will withdraw further mortgage insurance until the practice is discontinued.

5. That explicit instructions be publicly amended and sent to all field officers and representatives of the FHA setting forth the above changes in policy. Respectfully submitted.

THURGOOD MARSHALL,
Special Counsel, National Association for the

Advancement of Colored People,
FEBRUARY 1, 1949,
The CHAIRMAN. Are there any questions?
Mr. COLE. I have a question.

Mr. Perry, I am interested in what you have called displaced persons. Have you had experience with people who know of situations where people were displaced by a slum-clearance program, and they were not permitted to gain admittance in the public housing projects?

Mr. PERRY. I believe the bill specifically provides that there shall be some measure of preference in public housing. What you run into, Congressman, is this: There are a lot of Negroes who are living in what are designated as slum areas who are ineligible for public housing because of the size of their income, and who are displaced and have nowhere to go.

If I may make a personal reference, the area in which I live, and in which I have lived for 20 years in Washington, is desiganted as a slum area, and is set down as a slum-clearance project area.

I am not eligible, under the present income requirements, for public housing. I do not know where I would You know recent surveys tended to show-I know of one in Chicago which indicated that approximately 80 percent of the property in Chicago is subject to restrictive covenants.

A large part of the real property in the District of Columbia is subject to restrictive covenants; and, although they are unenforceable through the courts, you do have private enforcement; you have effective enforcement by a "private government,” operating through lending institutions, building and loan associations, title companies, banks, real-estate boards, and the rest. The information that we have been able to gather tends to indicate that the enforcement by this "private government” is just about as effective today as it was before restrictive covenants were outlawed by the high Court. For that reason it seems to me that it is important that the Congress take cognizance of this question.

I have one other observation I should have made earlier. The principal point which concerns me in terms of this legislation is this, Mr. Congressman: In this legislation you are undertaking to set up a long-range fairly comprehensive housing program. You intend to fix the pattern of communities for the next 50 or a hundred years. Now, the general housing situation in regard to racial minority groups is notorious; it represents not only a national disgrace but an international scandal. To me it would be a great travesty for the Congress to consider basic long-range legislation such as here proposed without taking any cognizance whatever to the questions of where Negroes are going to live; of whether or not you are going to simply set up new ghettos; or whether or not you are going to develop a sound program whereby healthful, democratic living, integrated Îiving, will be achieved.

But, to answer your question directly, it seems to me that public housing does not answer the total problem which is involved. Public housing is an important and necessary contribution, but it is only a trickle in relation to the need. It does not deal with the large and ever-increasing number of Negroes who are ineligible for public housing and who want to go in to the open market and buy or rent a decent home.

Mr. Cole. I assume you are in favor of public housing.
Mr. Perry. Very definitely.
Mr. COLE. And would like to have a public-housing bill passed.
Mr. Perry. Very definitely.

Mr. Cole. This is going to be a difficult question, perhaps. It has been said that we should not consider questions of civil rights in this bill, because it might defeat the bill. Before going any further, I will

you

that I am not in favor of the bill. However, I do want to get an expression from you—or perhaps your organization—as to whether or not you would prefer that the amendment be attempted to be placed in, irrespective of that, or whether it should be in there irrespective of whether the bill is passed or not.

Mr. PERRY. Mr. Congressman, I want to make our position clear. We favor sound housing legislation. We want more housing built, public and private. The American people, all Americans, are entitled to a decent home and a decent environment.

Now, I did not agree with the statements which were made over in the Senate with respect to the inclusion of such an amendment defeating the bill. I do not think that estimate is correct on just a straight count. If we count the Senators from the South who would presumably vote against it, they would probably hardly be in excess of 30, the total body being 96. As I recall, only 13 Senators voted against the bill on the final vote. Thus, the outside figure of those who would have voted against the bill would be 43.

But I have this further observation to make: There are things which are basic in terms of principle. I do not think the Congress should surrender to the threats—threats to enforce the undemocratic customs of a small section of this country. It seems to me it is a question as to whether or not the Constitution means what it says; whether or not the Supreme Court, the highest Court of the land, means what it says. It is a question as to whether or not our solemn treaty obligation under the United Nations—we have just subscribed to the human rights declaration means what it says. It is a question as to whether or not we believe in the Sermon on the Mount.

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