The Washington PostDemocracy Dies in Darkness

He wrote the law to end housing discrimination. Fifty years later, he’s still fighting

Walter Mondale expected, as a lot of people did in 1968, that the Fair Housing Act would really change things. He thought it would break down segregation, force communities that had long discriminated to do the right thing, and foster more places where blacks and whites live as neighbors.

Nearly 50 years later, however, the change has been much less dramatic. American cities still remain heavily segregated by race. And diverse places, he fears, are re-segregating.

"I was younger and more naïve," Mondale says now, "and more certain that the law took care of all problems."

Today, the former vice president and Minnesota senator who co-sponsored the landmark law will explore its unfinished legacy in a speech at the Department of Housing and Urban Development. Over the last five decades, the law has been undermined by obstinate local officials and interminable court cases and entire administrations that did not care to enforce it. ("Ronald Reagan," Mondale recalls, "almost celebrated the fact that he wasn’t going to enforce this stuff. And he picked people who followed through on that negative view.")

This year, though, the Fair Housing Act has been given new life first by a major Supreme Court victory, then a new regulation from HUD. Those events together, Mondale says, are the most important new developments in fair housing since 1968.

"I am disappointed," he says about the rate of progress that he once believed would move much faster. "And I think we’ve lost a lot of time in this ambiguous debate over what the law means. Hopefully that will end now."

Much of the power of the Fair Housing Act has been curtailed by legal fights over what Congress intended when it passed the law — even as Mondale, and, until January, its other architect Edward Brooke have remained vocal about their own intentions in 1968.

In June, the Supreme Court ruled in a 5-4 decision that the law prohibits housing policies that disproportionately harm minorities even when those policies weren't built on intentional discrimination. That legal tool, known as "disparate impact," has been used by advocates and upheld by courts for 40 years to root out practices, like subprime lending tactics, that don't look overtly racist.

The Supreme Court's staunch conservatives, though, argued that the Fair Housing Act was never designed to cover such claims.

"I’ve been saying 'til I’m blue in the face for 50 years now that we intended 'disparate impact,'" Mondale says. "That’s not a mystical principle. We knew that if you had to prove actual segregation intent, nothing would ever get done."

The new Supreme Court decision, written by Justice Anthony Kennedy, puts that question finally to rest. New rules HUD announced in July, meanwhile, have stripped the uncertainty from another key phrase in the law. The Fair Housing Act requires locals governments that receive funds from HUD to "affirmatively further" fair housing — to not just end discrimination, but to promote integration in its place.

That part of the law has been widely ignored for decades, and HUD itself acknowledged that it didn't clearly tell communities what they needed to do to comply with it. The new rules spell that out, ending ambiguity about what the phrase "affirmatively furthering" really means.

"[Opponents] are arguing that it doesn’t mean anything," Mondale says. "I think it does. And the whole framework of the law is designed to eliminate discrimination and move toward integration. That’s certainly what we said, that’s what Ed Brooke said, that’s what several judges have interpreted this as."

That people still dispute the fundamental intent of the law, he adds, "tells you that the fight isn't over."

In his prepared comments, he will will cite other signs of that unmet promise:

When a black family with an income of $157,000 a year is less likely to qualify for a prime loan than a white family with an income of $40,000 a year, the goals of the Fair Housing Act are not fulfilled.
When real estate agents only show integrated schools and suburbs to black and Latino middle-class families, and steer white families away from those same neighborhoods and schools, the goals of the Fair Housing Act are not fulfilled.
When the federal and state governments will pay to build new suburban highways, streets, sewers, schools, and parks, but then allows these communities to exclude affordable housing and non-white citizens, the goals of the Fair Housing Act are not fulfilled.