This July, America will celebrate 250 years of independence. Our nation was founded on a radical idea: “that all men are created equal.” Our civil rights laws embody this proposition, making them some of the most consequential legislation in American history. We have made immense progress as a society since their passage in the 1960s.
Yet since the 1960s, self-proclaimed civil rights leaders, racial opportunists, and a permanent government bureaucracy have distorted the guarantee of equal protection under the law and constructed a racial spoils system that doles out rewards to favored constituencies. As April is Fair Housing Month, we should reflect on how the progressive understanding of civil rights laws deviates from American constitutional principles, and how we can restore these laws to their original purpose.
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Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act, was enacted just seven days after the assassination of Martin Luther King Jr., in an effort to secure his legacy. The Act prohibits intentional discrimination in housing transactions—including purchasing, selling, and renting property as well as advertising and mortgage lending—with the core objective of eradicating such discrimination.
Since then, however, bureaucrats charged with enforcing the Act have instead applied it to serve an ideological project. Using exotic ideas about legal liability, fair housing bureaucrats have pursued social engineering of American communities and whole industries to achieve a racial composition they deem desirable. This behavior is sustained and encouraged by legacy civil rights organizations with a vested interest in such policies.
Indeed, in a 1988 essay, then Equal Employment Opportunity Commission Chairman Clarence Thomas explained how civil rights laws got hijacked by the bureaucracy:
Typically, Congress enacts laws that are quite general, noncontroversial, and apparently beneficial to all. There is the expectation, however, that the bureaucracy charged with administering the laws will be responsive to the demands of interested parties and their spokesmen, whether committee members or special-interest groups. In doing so, policy implementation reflects the interests of the few taking precedence over the interests of the many. The outcome can be an administration of the laws in a manner that produces results that are diametrically opposed to the language of the law itself.
This is precisely what happened with the Fair Housing Act. Its political capture has spanned Democratic and Republican presidential administrations alike. Republican acquiescence is, in my judgment, a byproduct of conservatives ceding the fair housing field entirely to the Left.
Unchallenged left-wing dominance of fair housing has resulted in policies and enforcement priorities untethered from the statutory text of the Fair Housing Act. Consider “racial steering,” for instance—the unlawful practice of directing prospective homebuyers or renters to equivalent properties in different areas according to their race. The prohibition of such a practice makes good sense. But under pressure from fair housing activists, real-estate brokerage leaders and trade associations apply the concept to mean that real-estate agents cannot engage in any discussion with their clients about neighborhood crime rates and school quality.
This is wrong. First, the Act must not be enforced in a manner that infringes on the free speech of American real-estate professionals and their clients. Second, only someone who believes in woke shibboleths about race and statistical disparities could accept the idea that discussing crime rates and school quality violates the law. Accordingly, I sent a “Dear Colleague” letter last week to real-estate industry leaders and fair housing organizations clarifying that agents and brokers do not violate the Fair Housing Act by discussing these topics in a truthful, equal, and consistent manner with prospective homebuyers and renters. Progressive ideological capture of civil rights laws has not only suppressed free speech but also rewarded favored racial constituencies.
Under the Biden administration, the Department of Housing and Urban Development inserted itself into the appraisal industry over concerns with its racial composition. Though statistical disparities exist in all human affairs and are typically unrelated to intentional discrimination, Biden’s HUD used its enforcement powers to force the industry to adopt, in essence, racial preferences for certain minority groups. Such social experiments are a corruption of the civil rights movement’s aims. I terminated this agreement in January.
Civil rights laws mean nothing if they don’t involve treating everyone equally under the law. No racial group carries unique moral burdens; no racial group has a monopoly on protection under law.
In the almost six decades since the Fair Housing Act was enacted, no one has attempted to break the grip that special interests hold on fair housing law—until now.
Our civil rights restoration project begins by returning to the text of the Fair Housing Act: “It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” In its zeal to advance fair housing, HUD has not always honored the limitations that the Constitution places on its fair housing work—whether by failing meaningfully to respect the due process rights of housing providers or by abusing disparate impact liability in violation of the Equal Protection Clause.
No more. HUD’s Office of Fair Housing and Equal Opportunity is a federal law enforcement agency, not a social-justice NGO.
Under President Trump’s leadership, we have reoriented fair housing enforcement to ensure that it meets its core statutory objective of eliminating intentional discrimination; that the civil rights and liberties of all Americans be protected; and that the Fair Housing Act be enforced within constitutional limitations. This approach is consonant with the text of the Act and prioritizes individual rights over the discredited theory of group rights.
If our project of restoration is to succeed, we need American conservatives to embrace civil rights, properly understood—including fair housing enforcement—as an extension of our philosophical commitments. Conservatives have ignored the civil rights space at our peril, yielding too much power, rhetorical and otherwise, to the Left.
In his 1988 essay, Justice Thomas lamented how the Reaganites did not sufficiently communicate that civil rights laws protect individual liberty to counter the Left’s conception of group-based interests. The Trump administration will not make this mistake.
America at 250 presents an ideal moment to recommit civil rights enforcement to the Declaration of Independence’s core proposition “that all men are created equal” and that all Americans possess civil rights that must be protected equally.