Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the housing context, the Court addressed legal challenges to city ordinances, private covenants, and state constitutional amendments that imposed various racial restrictions. In 1917, for example, the Court in Buchanan v. Warley1 invalidated an ordinance that prohibited “colored people” from occupying houses in blocks where the greater number of houses were occupied by any “white person,” and prohibited “white people” from living on blocks where the greater number of houses were occupied by “colored people.” The Court declined to apply Plessy v. Ferguson because, in Buchanan, the statute barred the plaintiff landowner from living on his property.2 While it had approved the doctrine of “separate but equal” treatment of racial minorities in transportation and education, the Court said, the Fourteenth Amendment would not allow the state to interfere with property rights based on race.3 In 1948, the Court extended Buchanan to invalidate restrictive covenants—private title conditions that barred property transfer based on race. The Court held that although these private arrangements did not themselves violate the Equal Protection Clause, the judicial enforcement of them, either by injunctive relief or through damage actions, did.4

In its 1967 case, Reitman v. Mulkey,5 the Court again considered potential state involvement in private housing discrimination. It reviewed the referendum passage of a California state constitutional amendment that repealed a “fair housing” law and declared that a property seller could turn away any buyer for any reason. The Court held the amendment unconstitutional, pointing out that it aimed to repeal anti-discrimination measures and “intended to authorize, and does authorize, racial discrimination in the housing market.” 6 The Court acknowledged it had no “infallible test” for determining when state involvement in private discrimination was unconstitutional.7 But, deferring to the state supreme court decision invalidating the amendment, it agreed that this provision effectively immunized private discrimination. “Those practicing racial discriminations need no longer rely solely on their personal choice,” the Court noted. “They could now invoke express constitutional authority . . .” 8 In contrast, the Court, in its 1971 decision James v. Valtierra, held that a California constitutional requirement singling out low-rent housing projects for special referendum approval did not violate the Equal Protection Clause.9 The Court did not see the measure as drawing any racial distinctions, ruling that it was race-neutral in its terms and not racially motivated.10 The Court has also held that provision of publicly assisted housing must be nondiscriminatory, ordering the federal Department of Housing and Urban Development to remedy segregative practices.11

Footnotes

1

245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668 (1927); Richmond v. Deans, 281 U.S. 704 (1930).

2

Buchanan, 245 U.S. at 73, 79.

3

Id. at 79–81.

4

Shelley v. Kraemer, 334 U.S. 1, 20 (1948).

5

387 U.S. 369 (1967).

6

Id. at 381.

7

Id. at 378.

8

Id. at 377.

9

402 U.S. 137 (1971).

10

Id. at 141.

11

Hills v. Gautreaux, 425 U.S. 284, 297 (1976). Meanwhile, apart from legal challenges based on the Equal Protection Clause, two federal statutes prohibit private racial discrimination in the sale or rental of housing. Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1982, see Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), 82 Stat. 73, 42 U.S.C. §§ 3601 et seq. The Fair Housing Act, as construed by the Court, reaches some actions that, while not made with discriminatory intent, have a disparate impact based on race. Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Comtys. Project, Inc., 576 U.S. 519 (2015).