By Fred Freiberg (Click here to view the entire PDF)
In 1976, I began working as a community organizer for a Milwaukee neighborhood organization, the Sherman Park Community Association (SPCA). Two significant events occurred just prior to my being offered this position.
First, in 1975 a federal court ruled that a key provision in the Wisconsin Open Housing Law prohibiting “testing” could no longer be enforced. The testing ban had been in effect since the Open Housing Law passed in 1965. Recognizing that a prohibition on testing would make it nearly impossible for victims to prove that housing discrimination had occurred, the Wisconsin Realtors lobbied hard for the ban. The 1975 court decision, U.S. v. Wisconsin, found that the testing ban “chilled the exercise” of fair housing rights under the federal Fair Housing Act.1 This paved the way for organizations like the SPCA to conduct testing.
Second, SPCA’s President spoke at an annual luncheon of the Milwaukee Board of Realtors. His prepared remarks focused on the pervasiveness of racial steering and blockbusting and its deleterious impact on efforts to create more integrated communities. He reported back to the SPCA that he had been loudly heckled by many of the brokers and agents who attended the luncheon and his speech was drowned out by chants of “Prove It! Prove It.”
So…prove it, we did. The first project I was asked to coordinate was an investigation of real estate sales practices. Joseph Battle, an African American real estate agent from Cleveland, Ohio who was with an organization called Operation Equality, came to Milwaukee to consult with the SPCA. Battle trained me to coordinate sales testing and he trained a group of volunteers to serve as “testers” in a 14-month investigation into real estate practices. Black and white testers were matched on personal, socio-economic, and homebuying characteristics so that the primary difference between them was their race. The testers were deployed to various offices of four of the largest Wisconsin real estate companies so that we could compare whether homebuyers were being afforded the same information, service, treatment, and ultimately, access to housing without regard to their race. The test results revealed that agents with all four companies engaged in racial steering and other racially discriminatory practices. Examples included the following:
- An agent met a white couple at an open house for a home located in a racially integrated neighborhood. The agent remarked that the white testers might not like the neighborhood because Black families lived on both sides of the home. The agent told the white couple that the home might be better as an “income-producing property.” When an interracial couple visited the same open house and met with the same agent, no comments were made about the racial make-up of the neighborhood, and the agent told them that the home would be a “good starter home.”
- Black and white testers visited a real estate office in a predominantly white southside neighborhood. The testers expressed no neighborhood preferences. An agent provided listing books with homes on the southside to the white testers with a cautionary note not to consider the “near southside” because it had old homes and was a “changing neighborhood” (an area with a Latino population). For the African American tester, the same agent brought out a listing book with homes on the west side of Milwaukee which included many racially integrated neighborhoods.
The SPCA and 39 testers filed a complaint with the U.S. Department of Housing and Urban Development (HUD) in 1977 and later filed a federal lawsuit against the four companies.2 Shortly before the SPCA initiated this legal action, the organization was approached by the National Committee Against Discrimination in Housing (NCDH) to participate in the first HUD-sponsored national study of housing market practices.3 Milwaukee was one of five “in-depth” cities selected where 200 Black/white tests were slated to be conducted: 80 real estate sales tests and 120 rental tests. I was one of two test coordinators who worked on this three-month investigation in Milwaukee. After the testing was completed, and contrary to the directives we received from NCDH, we did our own analysis of the test results in Milwaukee and found that roughly 45% of the rental tests and 63% of the sales tests involved some type of differential treatment based on race. And, as with SPCA’s sales testing investigation from the previous year, the discrimination we found was notably lacking in subtleties.
The results of the HUD study provided compelling evidence of widespread non-compliance with fair housing laws. The housing choices of African American renters and buyers were being severely limited by illegal racial discrimination, including racial steering.
The earlier litigation filed by the SPCA resulted in some dramatic changes. Two of the large real estate companies went out of business and a third closed its residential sales business. A fourth company entered into a settlement agreement with the plaintiffs to pay damages and take specific action to correct their practices. This experience convinced me that testing was a particularly potent tool for creating change and obtaining compliance with fair housing laws.
Now, fast forward four decades to 2019 on Long Island, New York. Newsday released the results from the largest journalistic investigation into real estate sales practices conducted by any media outlet in the nation. I had the privilege of working as a consultant on this project. Released on November 17, 2019, the investigative report, Long Island Divided, found that nearly half or 49% of the tests conducted by teams of Black and white testers showed evidence of differential treatment or possible racial steering.4 There were many differences between this media investigation on Long Island and the earlier Wisconsin testing. But the striking similarity is that test results from both investigations revealed considerable evidence of differential treatment that appeared to be based on race. Here are two examples from the recent Newsday investigation:
- An agent discouraged a white tester from considering homes in the predominantly minority community of Brentwood by suggesting that he “may want to look into recent gang killings in the Brentwood area,” while the same agent encouraged the African American tester to consider 27 home listings in Brentwood (located in census tracts averaging 17% white) by telling him that people in Brentwood “are the nicest people.” The agent provided no Brentwood home listings to the white tester and instead provided 11 listings in other areas (located in census tracts averaging 86% white).
- An agent requested photo identification from an African American tester and, absent identification, would not agree to show homes, stating it was company policy. The agent provided the Black tester with two listings in East Meadow and Hicksville (located in census tracts that averaged 58% white). The same agent provided a white tester with eight home listings (located in census tracts averaging 88% white) and took the white tester to see homes without requesting any photo identification. The agent also made comments about school districts informing the white tester that Wantagh was “blue ribbon” and touted Seaford, Plainsedge, Bethpage, Levittown, Bellmore, North Bellmore, and Merrick (communities ranging from 79% to 92% white) as good school districts. The agent also suggested the 91% white Massapequa area, but not the part that falls within the Amityville district (92% Black and Hispanic student populations) stating “You’re not going to like those schools.”
While investigations from different time periods and geographic locations cannot be compared to assess progress in achieving compliance with fair housing laws, the testing investigation completed by Newsday raises a serious and legitimate question. Why hasn’t more progress been made by the real estate industry to comply with fair housing laws?
While I do not profess to have all the answers to this question, after more than four decades of experience working in the fair housing field, I have some suggestions.
First, fair housing laws have never been vigorously enforced. We will never achieve a non-discriminatory housing market if the paradigm for enforcing fair housing laws remains purely reactive and only occurs in response to complaints. Housing discrimination is more subtle today. Often people do not know they are being discriminated against. The burden of ensuring that fair housing laws are vigorously enforced should not rest entirely on the shoulders of the victims of discrimination. What is needed is a more pro-active and smarter enforcement approach with systemic testing as the centerpiece. Substantially more federal, state, and local funding should be allocated to support systemic testing investigations aimed at obtaining greater compliance with fair housing laws.
Second, states possess a grossly underutilized tool to regulate the conduct of real estate agents and brokers. The Division of Licensing Services (DLS) for the New York Department of State should investigate allegations of racial steering and housing discrimination by real estate licensees (including those documented in the Newsday investigation) and, when warranted, take disciplinary action, including possible suspension or revocation of licenses. People reporting discriminatory conduct by a licensee should not be required to file a separate complaint with the New York State Division of Human Rights (DHR). Also, the DLS should carefully review and certify the curriculum used to provide the required continuing fair housing education credits to real estate licensees. Finally, New York State should eliminate the current rule that exempts any real estate broker who is engaged full time in the real estate business and who has been licensed prior to July 1, 2008, for at least 15 consecutive years from needing to attend fair housing training as part of their continuing education.5
Third, implementation of a key provision of the Fair Housing Act that requires HUD as well as local and state recipients of federal funds to “affirmatively further fair housing” in all housing and community development activities has largely been ignored.6 Local and state governments have, with few exceptions, have failed to ensure that housing policies and programs are expanding housing choice and reducing residential racial segregation. HUD should fully implement the AFFH rule enacted in 2015, restore the assessment tool that communities could use to identify inequities and barriers to housing choice, require extensive community engagement, and ensure that recipients of federal funds are taking action to affirmatively further fair housing.
Fourth, the real estate industry is still highly segregated by race and many of the major white-owned companies do not even serve predominantly minority communities. The industry should promote more diversity in hiring, locate offices in predominantly minority communities, and develop and enforce fair housing policies that govern their marketing and sales practices.
Fifth, educational programs and resources should be used in our schools to teach students about our history of residential racial apartheid, focus on the values of equity and fairness, and promote integrated neighborhoods and schools. Such programs should be based on the premise that the responsibility for creating and sustaining open and inclusive communities does not only rest with the real estate industry. Government, private institutions, the housing industry, and each of us can do our part to advance these values and societal goals.
Also, it is important to recognize that from the time the real estate industry organized in 1908 until the passage of the federal Fair Housing Act in 1968, racial bias infected most real estate transactions. In 1913, the National Association of Real Estate Exchanges (NAREE) informed its members not to contribute to race mixing.7 In 1916, NAREE changed its name to the National Association of Real Estate Boards (NAREB) and began advocating for the use of race restrictive covenants on property deeds to segregate the races. From 1924-1950, NAREB (the former name of the National Association of Realtors) made it the ethical duty of a Realtor to engage in racial discrimination.8 During the same period, realty boards promoted the use of a model race restrictive covenant, enforceable in state courts, and, by the 1940s these covenants blanketed many of our metropolitan regions. In the 1930s, the federal government adopted many of the policies and practices that had been promoted by the real estate industry and codified them in federal housing policy.
It is difficult to even grasp the sheer number of people involved, the immense devotion of resources, and the level of private-public coordination needed to create the racially segregated living patterns in our metropolitan regions over more than six decades. That segregation was eventually so pronounced and entrenched that it became self-perpetuating long before fair housing laws were enacted. Changing deeply ingrained attitudes and learned behavior shaped by structural racism and decades of segregated living is not easily accomplished. Eradicating housing discrimination is essential if we hope to dismantle the architecture of segregation and the self-sustaining cycle of inequality that continues to deliver unfair advantages, privileges, and economic gains to most white people while locking many African American people out of social, political, and economic opportunities.
I confess that I tire of having to periodically “prove” to the real estate industry (and white people generally) that racial bias continues to infect housing transactions. It is time we stipulate that this lawless, abhorrent, unequal, and often systemic behavior continues in our nation’s housing markets and we must do all that we can to root out and stop violators from harming people and dividing communities. That would be in the best interest of the real estate industry and the communities that they purport to serve.
Finally, for local, state, and federal policy-makers who insist that they support fair housing, it is our turn to shout “Prove It!” Prove you support bold initiatives to substantially increase resources for pro-active testing investigations and more vigorous fair housing enforcement. Prove that State real estate licensing agencies are capable of sanctioning real estate licensees for engaging in unlawful discrimination and only certifying qualified instructors with approved curriculums to provide fair housing training to the real estate industry. Prove that the cities, counties, housing authorities, and states you represent take their duty to “affirmatively further fair housing” seriously and are willing to develop and implement meaningful action plans with measurable goals aimed at removing barriers to housing choice and reducing residential racial segregation. Prove it! Prove it!
Fred Freiberg (firstname.lastname@example.org), is the Executive Director and Co-Founder of the Fair Housing Justice Center (FHJC) based in New York City.
1 United States v. Wisconsin, 395 F. Supp. 732 (W.D. Wis. 1975).
2 Sherman Park Community Ass’n v. Wauwatosa Realty et al., Civ. No. 77-C-541 (E.D. Wis. 1977)
3 Measuring Racial Discrimination in American Housing Markets: The Housing Market Practices Survey, Wienk, Ronald E. and others, 1979.
4 Newsday, Long Island Divided, Nov. 17, 2019.
6 42 U.S.C. §3608
7 Stephen P. Meyer, As Long As They Don’t Move Next Door: Segregation and Racial Conflict in American Neighborhoods 7 (2001).
8 Joe R. Feagin, “A House is Not a Home: White Racism and U.S. Housing Practices,” in Residential Apartheid: The American Legacy (1994).