Fair Housing and Freedom of Association

This essay is part of an ongoing dialogue with my nephew. It is a response to his contention that the Fair Housing Act of 1968 outlaws freedom of association, because  it force diversity on people. I had mentioned the history of lynching. Challenging the connection between lynching and the freedom of association argument, he responded: “The number of lynchings fell to essentially 0 well before LBJ was elected: http://xroads.virginia.edu/~MA03/faturoti/harlem/collage/lynchstats.html

Dear Russell,

Lynchings were often not simply hangings:

Victims were also killed by mobs in a variety of other ways: shot repeatedly, burned alive, forced to jump off a bridge, dragged behind cars, and the like. Sometimes they were tortured as well, with body parts sometimes removed and sold as souvenirshttps://en.wikipedia.org/wiki/Lynching_in_the_United_States

I cannot stop feeling haunted by actual accounts of lynchings, and I am particularly horrified by accounts of pregnant women who were lynched. In one case, an eight months pregnant woman was lynched because she complained about the lynching of her husband. After having been tortured, while still alive her belly was slashed open. The fetus fell to the ground, uttered two weak cries, and then a man stomped on and crushed the baby’s head.  Do such accounts not rival ISIS terrorism?

The purpose of these horrors was to terrorize people into compliance with racist norms.  Just being friends with someone of a different “race,” could be dangerous.  You might not get murdered: You might be arrested, beaten. Your house might be burned down. Black people knew that they were powerless to stop the Klan from dragging a family member from their home. The idea that the law offers members of your ethnic group no protection is very familiar to Jews who know about our history.

At least one of my aunts was an immigrant born in Russia, and both of my parents were first-generation Americans whose families had been in this country only about 5 years when they were born. The sense of being part of a community that is unable to protect itself is very real for me, not a theoretical abstraction.

Perhaps it might seem that lynching was insignificant because it happened to a relatively small percentage of the population.  But lynchings were a warning to the entire Black community. Sharecroppers who were short-changed by the landowner, and ended up owing money at the end of the year even though they had, in fact, earned more than they borrowed; knew the consequences of daring to point out “errors” in the arithmetic.

As for freedom of association: The only safe way for an African-American person and a Euro-American person to ride together in an automobile in the Old South, was for the Black man to drive, with the White person sitting in the back — servant and master.  During my lifetime it was illegal in a number of states for a white and black person to get married. Should “the rule of law” always be the highest value, no matter what the law says?  (According to the laws at the time: No one was killed illegally at Auschwitz. If the Jews in the death camps did not like the law, should they have refrained from trying to escape or resist, but instead worked to change those laws?)

I think you are making a valid point in bringing up the fact that the number of lynchings had petered out by the time Johnson was president. (The last time on the official list were 3 lynchings in 1964, two of the 3 were from Queens College, which I was attending at the time and one was a local Mississippi black guy. “White privilege” in this case, meant that, unlike the black guy who was mutilated while still alive, the two white guys were simply shot to death.

Events like that may seem like ancient history, but for me are still vivid memories.) The symbolism of Ronald Reagan having launched his presidential campaign in Philadelphia, Mississippi where this famous crime was done, may have flown under the radar of many people, other than bigots whose votes he needed.

The list is generally accurate, but it does not include a lynching this year in Oklahoma http://www.foxnews.com/us/2018/05/04/2-black-men-found-dismembered-and-chained-in-oklahoma-pond-not-victims-hate-crime-prosecutor-says.html   http://amsterdamnews.com/news/2018/may/10/killing-two-black-men-group-whites-sparks-outrage-/, or the black man who was dragged behind a car to his death, a few years ago, as examples that, in fact, lynching has not ended.

About the valid point you made:

Sometimes, legislation might be at the cutting edge of social change. For example, legally requiring written health warnings on cigarette packs started way before the norms regarding smoking changed. In those days, it was considered impolite not to have ashtrays in your living room for guests, even if no one in your family smokes. And most non-smokers would not even think of insulting their guests by asking them to smoke outside.  Now, decades later, there has been genuine social change. More often, social change drive legal changes rather than the other way around.

The decline in number of lynchings coincides with social change, particularly the civil rights movement. After WW I and WW II, black soldiers who had “fought for freedom” and black people in general who had supported the war effort (as well as white people who respected the contribution of black GIs) found it distasteful to confront the reality that the “freedom” they had fought for was made a mockery of what they faced when they returned home. A white man in Georgia could still call any black man, “boy,” and the black man knew he risked his life if he did not say: “Yassir.” 

There were freedom riders in 1948, including a white pacifist named Jim Peck, who got beaten badly for exercising his freedom of association. (I met Jim Peck in 1963, shook his hand, and said, “It’s an honor to meet you, Mr. Peck.” I don’t think that he thought of himself as being someone special because, as he accepted my handshake, he looked puzzled, apparently at why someone would call it an honor to meet him. 

In the 1950s, the civil rights movement grew. School integration was the big issue. In the 1960s, with the Montgomery bus boycott, and later the Montgomery children’s crusade, and lunch counter sit-ins: a tipping point was reached. There was a lot of support generally for civil rights, so that it was not simply that laws changed the society: To a large extent the new laws reflected social change, and helped to consolidate it.

When I grew up, Black people and White people barely spoke to one another. The North was as much or more segregated than the South. I used to think that segregation in the North was solely causes by custom and individual decisions. I now know that The National Housing Act of 1934 required red-lining to enforce segregation. http://www.bostonfairhousing.org/timeline/1934-1968-FHA-Redlining.html

Before the Fair housing Act of 1968, the Federal Government actively opposed freedom of association:


  • The Federal Housing Administration’s Underwriting Manual recommended the use of restrictive covenants as they “provide the surest protection against undesirable encroachment and inharmonious use.”
  • The continued use of racially restrictive covenants and “steering” of black residents to non-white neighborhoods by real estate agents, severely limited access for buying homes. 
  • While no longer legally sanctioned, the residential patterns created by racially restrictive covenants still persist today

Perhaps this is new information for you, and like a true scientist, perhaps you will adjust your theory to accommodate new evidence?

It is actually new information for me, so I would not fault anyone for having mistakenly believed that the Fair Housing Act of 1968 restricted freedom of association. In fact, prior to 1968 the Federal Government actively opposed freedom of association, and the Fair Housing Act removed legal impediments to freedom of association.

In one notable case, the Federal Government provided a financial incentive for a developer to build a wall separating white from black housing:


“In the late 1930’s, as Detroit grew outward, white families began to settle near a black enclave adjacent to Eight Mile Road. By 1940, the blacks were surrounded, but neither they nor the whites could get FHA insurance because of the proximity of an inharmonious racial group. So, in 1941, an enterprising white developer built a concrete wall between the white and black areas. The FHA appraisers then took another look and approved the mortgages on the white properties.”

What could be a more dramatic example blocking freedom of association than a wall? 

Restrictive Covenants:

There are deeds in West Keene which forbid owners from selling their property to Jews. In 1948 the U.S. Supreme Court ruled that deed covenants restricting to which race or ethnic group the owner can sell their property are legal.  But the same ruling also said that it is illegal for government to enforce those covenants because that would violate the 14th Amendment’s equal protection. So the discriminatory covenants are legal, but no court can enforce them.

Exceptions to Fair Housing Law:

The Fair Housing Act of 1968 allows me to refuse to sell my house to a member of a race or other protected group, if I wish. But a real estate licensee cannot broker the transaction because it would violate the laws and regulations governing their license. I can also refuse to rent to members of protected groups if I so choose, so long as my property is owner occupied with 4 or fewer units. Discrimination in sale or rental is not illegal for single family homes if the owner possesses 3 or fewer single family homes, and does not use a real estate agent. Even when discrimination is legal: You cannot use discriminatory advertising, so you still can advertise the property (without discriminatory ad copy) but you can discriminate when the actual renting or selling takes place.

Private clubs can discriminate so long as they offer housing only to their members and do not offer housing to the general public.

How I am seeing this:

The major impact of the Fair Housing Act of 1968 was NOT to restrict freedom of association, but to remove legal support for impeding freedom of association: Most notably by the Federal Government.

I do not think that there is much of a case that Fair Housing makes freedom of association illegal. To the extend that you could make a case based on restrictions on discriminatory selling or renting beyond owner-occupied 4 or less units, or prohibition of discriminatory advertising: Those restrictions are fairly minor, and in my opinion they are simply good public policy. In a debate, I would reflect back to you the words: If you don’t like the law, work to change it (and I’ll work against changing it).

If a group of Eskimos do not want to mingle with Czechoslovakians, they can purchase property where they can all enjoy one another’s company. But if a family of Czechoslovakians purchase the house nextdoor and these Eskimos just hate it: Well… that’s life. I may like my roses, my morning glories, and ground cover and hate my neighbor’s neatly manicured lawn; and they can hate how my garden looks. But freedom of association does not mean that I can band together with other like-minded people in Brattleboro and organize a coercive system to force everyone in Brattleboro to plant roses and morning glories.

Sorry, Eskimos who don’t like Czechoslovakians. Sorry white people who do not like black people. Sorry black folks who hate to see your white neighbor’s Dixie battle flag. The United States is a free country: You cannot force your neighbor not to sell their home to an Eskimo.  When I hear people on Youtube complain that their freedom of association is being restricted, their real complaint generally seems to be that they are not able to control more than their own space.

People can feel that they want to live in a neighborhood with only white people. But they cannot band together with other like-minded white people in order to coerce their neighbors to sell only to white people. You can want to live in a town with only white people, but the world does not owe you a guarantee that you will be able to. 

The law allows a private organization to sell only to their own members. So unless white people feel committed enough to the ideal of living only in a neighborhood solely populated with white people that they will go to the trouble of forming a club and getting themselves organized to the extent that they can actually pull together the resources that they need to build their all-white neighborhood: Then why are they belly-aching? Who do they expect is suppose to provide them with what they want but are unable to create for themselves?

There are large, all Hasidim neighborhoods. (For example in Monroe, NY. Other Monroe residents may complain about the insular Hasidim community, and it is their right to feel whatever way they feel.)

No doubt these Hasidim have a cohesive society and are able to act in concert to create their communities in a way which does not expose them to prosecution for Fair Housing violations. Of course cohesion and coercion are related words.

To achieve the freedom of association goal of being able to exist in an insular all Hasidic, or all Eskimo, or all white neighborhood: there is little doubt that a trade-off in that it will be necessary. You will probably have to give up much of your personal freedom in order to act in lock-step with your fellow Hasidim, or fellow Eskimos, or fellow white people.

I wonder if the white folks who want to live in an all white neighborhood really want to give up their individual freedom in order to achieve racial cohesion?

One another matter:

What is your opinion about the Voting Rights Act? 


Your Uncle Mark

Comments | 1

  • Lots to ponder

    It seems like there are far more insidious threats to freedom of association than Fair Housing laws. The semi-secret complete tracking of all people, their movements, and so on is what comes to my mind first.

    Our spy agencies use metadata to make assumptions about associations. You called a suicide prevention hotline at 2 am? Your phone was at an abortion clinic for 3 hours? Your bank card was used at a gun store? Your license plate was read crossing a bridge into NYC? Your image was identified in a photo of a crowd at a political rally?

    Social media companies add to this. Your are “friends” with an untrustworthy person? You “like” puppies that surf?

    It all goes on the permanent record, and then gets used by others. And it impedes free association by causing people to second guess who they associate with, where they go, and what they do.

    Want a real threat? California police sent out an email blast to support a political candidate recently. Someone tried to unsubscribe from the mailing list, then saw the names of all the lists being used. They had lists designated by race – special messages just for non AF residents.


    Being worried about Fair Housing and freedom of association seems, to me, a bit like someone saying they are a victim of reverse racism, or that “all lives matter.” Yes, I kinda get what you are trying to say, but no, that’s not how it works.

Leave a Reply