Civil Rights Act of 1968

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Civil Rights Act of 1968
Great Seal of the United States
Long titleAn Act to prescribe penalties for certain acts of violence or intimidation, and for other purposes.
Nicknames
  • Indian Civil Rights Act
  • Indian Bill of Rights
  • Open Housing Act
  • Housing Rights Act
  • Anti-Riot Act
  • Federal Anti-Riot Act
  • Rap Brown Act
  • Rap Brown Law
  • Civil Obedience Act
  • Stokely Carmichael Act
Enacted bythe 90th United States Congress
EffectiveApril 11, 1968
Citations
Public law90-284
Statutes at Large82 Stat. 73
Codification
Titles amended
Legislative history
  • Introduced in the House as H.R. 2516 by Emanuel Celler (DNY) on January 17, 1967
  • Committee consideration by Judiciary
  • Passed the House on August 16, 1967 (327–93)
  • Passed the Senate on March 11, 1968 (71–20) with amendment
  • House agreed to Senate amendment on April 10, 1968 (250–172)
  • Signed into law by President Lyndon B. Johnson on April 11, 1968
Major amendments
United States Supreme Court cases
President Johnson signing the Civil Rights Act of 1968

The Civil Rights Act of 1968 (Pub.L. 90–284, 82 Stat. 73, enacted April 11, 1968) is a landmark law in the United States signed into law during the King assassination riots by President Lyndon B. Johnson.

Titles II through VII comprise the Indian Civil Rights Act, which applies to the Native American tribes of the United States and makes many but not all of the guarantees of the Bill of Rights applicable within the tribes[1] (that Act appears today in Title 25, sections 1301 to 1303 of the United States Code).

Titles VIII through IX are commonly known as the Fair Housing Act (FHA), which was meant as a follow‑up to the Civil Rights Act of 1964 (this is different legislation than the Housing and Urban Development Act of 1968, which expanded housing funding programs). While the Civil Rights Act of 1866 prohibited discrimination in housing, there were no federal enforcement provisions.[2] The 1968 act expanded on previous acts and prohibited discrimination concerning the sale, rental, and financing of housing based on race, religion, national origin, and since 1974, sex. Since 1988, the act protects people with disabilities and families with children. Pregnant women are also protected from illegal discrimination because they have been given familial status with their unborn child being the other family member. Victims of discrimination may use both the 1968 act and the 1866 act via section 1983[3] to seek redress. The 1968 act provides for federal solutions while the 1866 act provides for private solutions (i.e., civil suits). The act also made it a federal crime to "by force or by threat of force, injure, intimidate, or interfere with anyone... by reason of their race, color, religion, or national origin, handicap or familial status."[4]

Title X, commonly known as the Anti-Riot Act, makes it a felony to "travel in interstate commerce...with the intent to incite, promote, encourage, participate in and carry on a riot." That provision has been criticized for "equating organized political protest with organized violence."[5]

Background[edit]

The Civil Rights Act of 1866 declared all people born in the United States are legally citizens. That means they could rent, hold, sell and buy property. It was meant to help former slaves, and those who refused to grant the new rights to slaves were guilty and punishable under law. The penalty was a fine of $1000 or a maximum of one year in jail. The 1866 act provided no means to enforce the provisions.

Another impetus for the law's passage came from the 1966 Chicago Open Housing Movement. Also influential was the 1963 Rumford Fair Housing Act in California, which had been backed by the NAACP and CORE.[6][7] and the 1967 Milwaukee fair housing campaigns led by James Groppi and the NAACP Youth Council.[8] Senator Walter Mondale advocated for the bill in Congress, but noted that over successive years, a federal fair housing bill was the most filibustered legislation in US history.[9] It was opposed by most Northern and Southern senators, as well as the National Association of Real Estate Boards.[6] A proposed "Civil Rights Act of 1966" collapsed completely because of its fair housing provision. Mondale commented:

A lot of [previous] civil rights [legislation] was about making the South behave and taking the teeth from George Wallace…. This came right to the neighborhoods across the country. This was civil rights getting personal.:[9]

Two developments revived the bill.[9] The Kerner Commission report on the 1967 ghetto riots strongly recommended "a comprehensive and enforceable federal open housing law,"[10][11] and was cited regularly by Congress members arguing for the legislation.[12] The final breakthrough came with the April 4, 1968 assassination of Martin Luther King, Jr., and the civil unrest across the country following King's death.[13][14] On April 5, Johnson wrote a letter to the United States House of Representatives urging passage of the Fair Housing Act.[15] The Rules Committee, "jolted by the repeated civil disturbances virtually outside its door," finally ended its hearings on April 8.[16] With newly urgent attention from legislative director Joseph Califano and Democratic Speaker of the House John McCormack, the bill (which was previously stalled) passed the House by a wide margin on April 10.[13][17]

History[edit]

Bill H.R. 2516 was passed by the 90th United States Congress and signed by the 36th President of the United States Lyndon Johnson on April 11, 1968.[18]

Parts[edit]

Title I: Hate crimes[edit]

The Civil Rights Act of 1968 also enacted 18 U.S.C. § 245(b)(2), which permits federal prosecution of anyone who "willingly injures, intimidates or interferes with another person, or attempts to do so, by force because of the other person's race, color, religion or national origin"[19] because of the victim's attempt to engage in one of six types of federally protected activities, such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.

Persons violating this law face a fine or imprisonment of up to one year or both. If bodily injury results or if such acts of intimidation involve the use of firearms, explosives or fire, individuals can receive prison terms of up to 10 years, while crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison or the death penalty.[20]

Though sexual orientation and gender identity were also excluded from this law, they are included in a more recent Federal hate-crime law, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

Title II–VII: Indian Civil Rights Act[edit]

Title VIII–IX: Fair Housing Act[edit]

Housing discrimination[edit]

Title VIII of the Civil Rights Act of 1968 is commonly referred to as the Fair Housing Act of 1968. Later, the disabled and families with children were added to this list.[21] The Office of Fair Housing and Equal Opportunity within the U.S. Department of Housing and Urban Development is charged with administering and enforcing this law.

Types of banned discrimination[edit]

The Civil Rights Act of 1968 prohibited the following forms of housing discrimination:

  • Refusal to sell or rent a dwelling to any person because of his/her race, color, religion or national origin. People with disabilities and families with children were added to the list of protected classes by the Fair Housing Amendments Act of 1988; gender was added in 1974 (see below).
  • Discrimination against a person in the terms, conditions or privilege of the sale or rental of a dwelling.
  • Advertising the sale or rental of a dwelling indicating preference of discrimination based on race, color, religion or national origin (amended by Congress as part of the Housing and Community Development Act of 1974 to include sex[21] and, as of 1988, people with disabilities and families with children.)
  • Coercing, threatening, intimidating, or interfering with a person's enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of [fair housing] rights.

Types of allowed discrimination[edit]

Lawful discrimination

Only certain kinds of discrimination are covered by fair housing laws. Landlords are not required by law to rent to any tenant who applies for a property. Landlords can select tenants based on objective business criteria, such as the applicant's ability to pay the rent and take care of the property. Landlords can lawfully discriminate against tenants with bad credit histories or low incomes, and (except in some areas) do not have to rent to tenants who will be receiving Section 8 vouchers. Landlords must be consistent in the screening, treat tenants who are inside and outside the protected classes in the same manner, and should document any legitimate business reason for not renting to a prospective tenant. As of 2010, no federal protection against discrimination based on sexual orientation or gender identity is provided, but protections exist in some localities.[citation needed]

The United States Department of Housing and Urban Development has stated that buyers and renters may discriminate and may request real estate agents representing them to limit home searches to parameters that are discriminatory.[22] The primary purpose of the Fair Housing Act is to protect the buyer's (and renter's) right to seek a dwelling anywhere they choose. It protects the buyer's right to discriminate by prohibiting certain discriminatory acts by sellers, landlords, and real estate agents.

Sexual orientation and gender identity

Sexual orientation and gender identity are not protected under the Fair Housing Act; federal law in general does not protect gays and lesbians or other sexual minorities (transgender or transsexual) against discrimination in private housing. There are 22 states that have passed laws prohibiting discrimination in housing based on sexual orientation and gender identity and have passed fair housing laws in regards to both sexual orientation and gender identity:[when?] California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Puerto Rico, Rhode Island, Utah, Vermont and Washington State. In addition, these three states prohibit discrimination in housing based only on sexual orientation: New Hampshire, New York and Wisconsin.[23] Additionally, Austin, Texas, has passed a law making discrimination based on sexual orientation illegal.[24]

In 2012, the United States Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity issued a regulation to prohibit LGBT discrimination in federally assisted housing programs. The new regulations ensure that the Department's core housing programs are open to all eligible persons, regardless of sexual orientation or gender identity.

Title X: Anti-Riot Act[edit]

The Act included the "Anti-Riot Act," enacted at 42 U.S.C. § 2101 which make it a federal crime to use interstate or foreign commerce routes (such as by crossing state lines or through mail or phone calls) to incite a riot, organize, promote or participate in a riot or to extend activities of a riot, or to aid and abet any person performing such activities. The provision has been informally referred to as the "H. Rap Brown Law" since the arrest and trial of H. Rap Brown in 1967 for carrying a gun across state lines.[25]

Titles[edit]

Title I—interference with federally protected activities[edit]

Title II—rights of Indians[edit]

The Indian Civil Rights Act of 1968 applies to the Indian tribes of the United States and makes many but not all of the guarantees of the Bill of Rights applicable within the federally recognized tribes.[26] The Act appears today in Title 25, sections 1301 to 1303 of the United States Code.

Events before passage[edit]

The US Supreme Court had made clear that tribal internal affairs concerning tribal members' individual rights were not covered by the Fifth Amendment to the US constitution. However, the tribes were ultimately subjected to the power of Congress and the Constitution.[27] The court case Talton v. Mayes helped establish the principles. There were other court cases over the following years to continue the thoughts "that tribes were not arms of the federal government when punishing tribal members for criminal acts and that Indian tribes were exempt from many of the constitutional protections governing the actions of state and federal governments."[27]

In the 1960s, Congress held a series of hearings on the subject of the authority of tribal governments. The hearings told about the abuses that many tribal members had endured from the "sometimes corrupt, incompetent, or tyrannical tribal officials." In response, the Indian Civil Rights Act was enacted.[27]

Provisions of the Indian Civil Rights Act[edit]

No Indian tribe in exercising powers of self-government shall—

  1. make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
  2. violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
  3. subject any person for the same offense to be twice put in jeopardy;
  4. compel any person in any criminal case to be a witness against himself;
  5. take any private property for a public use without just compensation;
  6. deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
  7. require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both;
  8. deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
  9. pass any bill of attainder or ex post facto law; or
  10. deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.[28]

According to the US Government Publishing Office, in "imprisonment for a term of one year and a fine of $5,000, or both" in paragraph 7, "and" should probably be "or."[29]

The act also requires tribal courts to afford due process and other civil liberties. Also, Native American courts try to provide a setting similar to that of a US courtroom, which is familiar to lawyers.[30] That aided the attorneys and helped to divert non-Indian ridicule and established the view that tribal courts were legitimate courts. Tribal courts adopted rules of evidence, pleading, and other requirements similar to those in state and federal courts.[30]

The ICRA incorporated many constitutional protections, but it modified others or did not include them at all: "The law did not impose the establishment clause, the guarantee of a republican form of government, the requirement of a separation of church and state, the right to a jury trial in civil cases, or the right of indigents to appointed counsel in criminal cases."[27] The provisions were excluded because the government recognized the different political and cultural status of the tribes.

Even though the federal government respected their individuality in this respect, the establishment of the ICRA caused the tribal governments to "mirror" modern American courts and procedures.[27]

The impact of ICRA was greatly limited by the Supreme Court by the Santa Clara Pueblo v. Martinez court case (1978). Martinez involved a request to stop denying tribal membership to those children born to female (not male) tribal members who married outside of the tribe. The mother who brought the case pleaded that the discrimination against her child was solely based on sex, which violated the ICRA. The courts decided that "tribal common-law sovereign immunity prevented a suit against the tribe."[27] Martinez ultimately strengthened tribal self-determination by further proving that generally, the federal government played no enforcement role over the tribal governments.[31]

Title III—model code governing courts of Indian offenses[edit]

Title IV—jurisdiction over criminal and civil actions[edit]

Title V—offenses within Indian country[edit]

Title VI—employment of legal counsel[edit]

Title VII—materials relating to constitutional rights of Indians[edit]

Title VIII—fair housing[edit]

The 1968 Fair Housing Act is a federal act in the United States intended to protect the buyer or renter of a dwelling from seller or landlord discrimination. Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's inclusion in a protected class.[32] The goal is a unitary housing market in which a person's background (as opposed to financial resources) does not arbitrarily restrict access. Calls for open housing were issued early in the twentieth century, but it was not until after World War II that concerted efforts to achieve it were undertaken. The fair housing act played an important part in the civil rights movement causing people to see how they needed to give African Americans equal rights with things including fair housing.

The legislation was the culmination of a civil rights campaign against housing discrimination in the United States, including the 1966 Chicago open housing movement, and was approved by President Lyndon B. Johnson one week after the assassination of Martin Luther King, Jr.[33]

The Fair Housing Act was enacted as Title VIII of the Civil Rights Act of 1968, and codified at 42 U.S.C. 3601-3619, with penalties for violation at 42 U.S.C. 3631. It is enforced by the United States Department of Housing and Urban Development.[34]

Summary[edit]

The Fair Housing Act (Title VIII of the Civil Rights Act of 1968) introduced meaningful federal enforcement mechanisms. It outlaws:

  • Refusal to sell or rent a dwelling to any person because of race, color, disability, religion, sex, familial status, or national origin.
  • Discrimination based on race, color, religion, sex, disability, familial status, or national origin in the terms, conditions or privileges of sale or rental of a dwelling.
  • Advertising the sale or rental of a dwelling indicating preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, disability or national origin.
  • Coercing, threatening, intimidating, or interfering with a person's enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of fair housing rights.

A guide to legal and illegal acts in selling one's home under the Act is available here:[35]

When the Fair Housing Act was first enacted, it prohibited discrimination only on the basis of race, color, religion, and national origin.[36] Sex was added as a protected characteristic in 1974.[37] In 1988, disability and familial status (the presence or anticipated presence of children under 18 in a household) were added (further codified in the Americans with Disabilities Act of 1990).[36] In certain circumstances, the law allows limited exceptions for discrimination based on sex, religion, or familial status.[38]

In 2017, a federal judge ruled that sexual orientation and gender identity are protected classes under the Fair Housing Act.[39][40] As of May 2018, there is an additional pending effort to amend the Fair Housing Act to make this explicit (HR 1447).[41] In a meeting on May 16, 2018 with the National Association of Realtors (NAR), Rep. Dana Rohrabacher (R-Calif.), who was campaigning for his 16th term, said he believed that homeowners should be allowed to refuse to sell their home to gay and lesbian homebuyers. The NAR disagreed and withdrew its endorsement of the Congressman over the matter.[42]

The United States Department of Housing and Urban Development is the federal executive department with the statutory authority to administer and enforce the Fair Housing Act. The Secretary of Housing and Urban Development has delegated fair housing enforcement and compliance activities to HUD's Office of Fair Housing and Equal Opportunity (FHEO) and HUD's Office of General Counsel. FHEO is one of the United States' largest federal civil rights agencies. It has a staff of more than 600 people located in 54 offices around the United States. As of August 2017, the head of FHEO is Assistant Secretary for Fair Housing and Equal Opportunity Anna Maria Farias, whose appointment was confirmed on August 3, 2017.[43]

Individuals who believe they have experienced housing discrimination can file a complaint with FHEO at no charge. FHEO funds and has working agreements with many state and local governmental agencies where "substantially equivalent" fair housing laws are in place. Under such agreements, FHEO refers complaints to the state or locality where the alleged incident occurred, and those agencies investigate and process the case instead of FHEO. That is known as FHEO's Fair Housing Assistance Program (or "FHAP").

There is also a network of private, non-profit fair housing advocacy organizations throughout the country. Some are funded by FHEO's Fair Housing Initiatives Program (or "FHIP"), and some operate with private donations or grants from other sources.

Victims of housing discrimination need not go through HUD or any other governmental agency to pursue their rights, however. The Fair Housing Act confers jurisdiction to hear cases on federal district courts. The United States Department of Justice also has jurisdiction to file cases on behalf of the United States where there is a pattern and practice of discrimination or where HUD has found discrimination in a case and either party elects to go to federal court instead of continuing in the HUD administrative process.

The Fair Housing Act applies to landlords renting or leasing space in their primary residence only if the residence contains living quarters occupied or intended to be occupied by three or more other families living independently of each other, such as an owner-occupied rooming house. Restrictions on discriminatory advertising do apply to all landlords without reservation.[44]

Enforcement[edit]

The Fair Housing Act has been strengthened since its adoption in 1968, but enforcement continues to be a concern among housing advocates. According to a 2010 evaluation of Analysis of Impediments (AI) reports done by the Government Accountability Office, enforcement is particularly inconsistent across local jurisdictions.[45]

Title IX—prevention of intimidation in fair housing cases[edit]

Title X—civil obedience[edit]

Amendments[edit]

In 1988, Congress voted to weaken the ability of plaintiffs to prosecute cases of Housing discrimination. But the Fair Housing Act was also amended in 1988 to allow plaintiffs' attorneys to recover attorney's fees. Additionally, the 1988 amendment added people with disabilities and families with children to the classes covered by the Act.

Case law[edit]

In the early 1990s, in Trouillon v. City of Hawthorne, the NAACP Legal Defense and Educational Fund successfully challenged an urban renewal plan on the basis of race discrimination by bringing suit under the Fair Housing Act. Previous litigation under the Act had largely been limited to discrimination in buying or renting housing.

Although he ruled in favor of the plaintiffs, Judge Davis nevertheless disputed the allegations of discrimination. He said he based his ruling in part on the city's failure to prove that the area had a higher crime rate and lower property values than other parts of the city. The city "did not act in bad faith or fraudulently," Davis wrote. It "did not discriminate against any minority or low or moderate income person and did not violate any person's Due Process, Equal Protection or other Civil Rights."[46]

The Anti-Riot Act of Title I had been rarely used; it notably had been used to prosecute the Chicago Seven, but had not faced strict legal scrutiny. In the late 2010s, with growing concerns over activities of the far right, white nationalists, and white supremacists, the Anti-Riot Act had been used to prosecute organizers of various rallies that had turned violent, such as the Unite the Right rally in 2017. However, in June 2019, a federal district court in California, overseeing the case of members of the Rise Above Movement related to both the Unite the Right rally and other protests in California, ruled that the Anti-Riot Act was unconstitutional in that it was "overbroad in violation of the First Amendment."[47]

Legacy[edit]

U.S. states[edit]

New York State Human Rights Law[edit]

Extends the protection to marital status and age, aimed to prevent non-racial discrimination.

Section 236 and 237 of the New York State Property Law[edit]

Further extends the protection to include dwellings with children and mobile home parks. That is meant to protect renters and sellers from discriminating based on number of children in a family. Currently the Fair Housing Act protects against discrimination of race, color, national origin, religion, sex, familial status, and disability. The law applies to all types of housing, rental homes, apartments, condos and houses. The only exception to the act is if an owner of a small rental building lives in the same building he lets. Since he owns the building and also resides there, he can decide who lives there.

Violations of the Fair Housing Act[edit]

There are an estimated 2 million cases of housing discrimination each year according to HUD. The National Fair Housing Alliance, the largest fair housing non-profit in the country, estimates that number to be closer to 4 million per year, excluding instances of discrimination due to disability or familial status.[48] Housing projects have also come under fire by researchers and NGOs alike. Housing advocates Elizabeth Julian and Michael Daniel state:[49]

in addition to the inequality in the actual housing provided to low-income African-American families under the federal programs, the neighborhoods in which they receive assistance are usually subject to various adverse conditions not found in the neighborhoods surrounding the housing units in which whites receive the same assistance. The conditions include inferior city-provided facilities and services, little or no new or newer residential housing, large numbers of seriously substandard structures, noxious environmental conditions, substandard or completely absent neighborhood service facilities, high crime rates, inadequate access to job centers, and little or no investment of new capital in the area by public and private entities.

See also[edit]

References[edit]

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  44. ^ US Government Accountability Office (2010). "Housing and community grants: HUD needs to enhance its requirements and oversight of jurisdictions' fair housing plans". Archived from the original on June 12, 2019. Retrieved May 19, 2019. Cite journal requires |journal= (help)
  45. ^ Kim Kowsky, TIMES, July 10, 1992
  46. ^ Sclafani, Julia (June 4, 2019). "Judge dismisses federal charges against 3 members of H.B.-based white power group". The Los Angeles Times. Archived from the original on June 4, 2019. Retrieved June 5, 2019.
  47. ^ "Dr. King's Dream Denied: Forty Years of Failed Federal Enforcement: 2008 Fair Housing Trends Report." National Fair Housing Alliance. April 8, 2008
  48. ^ Shapiro, Steven R. (1993). Human Rights Violations in the United States: A Report on U.S. Compliance with The International Covenant on Civil and Political Rights. Human Rights Watch. p. 23. ISBN 9781564321220. Retrieved April 9, 2018.

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