Affirmatively Furthering Fair Housing in Regional Housing Markets: The Baltimore Public Housing Desegregation Litigation

The Article provides an overview of and introduction to the housing desegregation litigation and considers in some detail the most recent of those cases, Thompson v. United States Department of Housing and Urban Development. While much has been written about the public school desegregation cases and the campaigns that led to and followed Brown v. Board of Education, relatively little has been written about the similar cases involving the desegregation of public housing. Thompson was filed in 1995 to challenge the intentional racial segregation of public housing in Baltimore, Maryland. In January of 2005, District Judge Marvin Garbis entered an opinion absolving the local defendants of any liability but holding that HUD had violated § 3608(e)(5) of the 1968 Civil Rights Act, which directs that the Secretary of Housing and Urban Development shall “‘administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this title.”’ Specifically, Judge Garbis held that HUD had violated its statutory duty “affirmatively to further” fair housing because HUD had failed adequately to consider regional approaches to ameliorating racial segregation in public housing. Second, Judge Garbis directed that further proceedings be conducted with respect to remedy. He said that this remedial phase also would consider whether HUD had violated constitutional as well as statutory duties. To the claims against HUD, he applied a six-year statute of limitation, requiring a showing of an actionable wrong committed after January 31, 1989 (the “Open Period”). During the supplemental proceedings, four issued were addressed, but this Article considers only the first: should the court reconsider its holding that HUD violated § 3608(e)(5). Critically, the Supreme Court and other courts that have interpreted the 1968 Fair Housing Act have held that it imposes on HUD and other federal agencies the obligation to act regionally to remedy racial segregation. Moreover, the confinement of African-Americans to the cities, and the necessity of enabling them to move to the suburbs, was the central problem that the “affirmatively further” language was intended to solve. HUD’s role in creating the problem was fully recognized by Congress; the “affirmatively further” language was included specifically to address that. Even the Nixon Administration, which was charged with implementing the legislation immediately after its enactment, recognized this. It would be a complete distortion of this reality to accept HUD’s argument—forty years after the language first was introduced—that the provision does not justify ordering metropolitan relief to remedy urban concentration of Blacks. Considering the background of the “affirmatively further” language, such a reversal in and distortion of interpretation of the Fair Housing Act would be particularly inappropriate in light of the growing recognition of the crucial role of regionalization in promoting the physical, mental, educational, environmental, social, and economic health of individuals and communities. The 1968 Act requires affirmative action by the government to undo and counteract these powerful segregatory influences. HUD’s failure to perform its duty in this regard rightly was identified and can and should be remedied by the courts.