By Bob Needham
Michigan Law
The federal Fair Housing Act deserves wider recognition for the powerful logic at its core, according to Professor Noah Kazis.
In a recent article in the Virginia Law Review, Kazis, an assistant professor of law at Michigan Law, argues that the “radical” approach of the Fair Housing Act goes well beyond the transactional focus of the employment protections in the Civil Rights Act.
“For all the Fair Housing Act’s many weaknesses, for all its ineffectiveness in practice, the act has always had radical ambitions,” Kazis writes. “If those ambitions are recognized, they can, perhaps, be built upon.”
Kazis recently answered five questions about his insights:
—————
1. How big a problem is housing discrimination in 2025?
It’s one of those things where you can look at the glass as half full or half empty.
Half full: The amount of discrimination goes down every year in surveys, and residential segregation goes down.
Half empty: Discrimination is still common, and given how intense residential segregation was in the midcentury, segregation levels are still quite high. The average Black/white segregation level is closer to complete segregation than complete integration, with segregation worst in the Northeast and the Midwest. Hispanic/white segregation has not been improving, partly because it has increased in New York and Los Angeles.
There’s racial discrimination in how many units are shown to renters and home buyers based on race, along with many other elements of the housing process. There’s also discrimination on the basis of all the other protected characteristics, like disability, family status, religion, and gender.
All of this has immense implications for which homes people buy at what price, and, therefore, for wealth; for where people live, and, therefore, for integration, for access to schools, and for all the other things that neighborhoods offer.
—————
2. Your paper acknowledges some common criticisms of the Fair Housing Act. What are some of the issues with it?
The conventional wisdom on the Fair Housing Act is that it has been underwhelming and relatively unsuccessful, compared to the other two major pillars of the 1960s civil rights statutes: the Civil Rights Act and the Voting Rights Act. We saw fast transformations in those other areas, but not in housing, for a number of reasons.
The Fair Housing Act was, in some ways, more controversial at the time because it was controversial in the North, not just in the South. So to get it passed, the compromise included weak enforcement provisions.
Those were fixed in 1988, but that weakness certainly defined the first 20 years of the act.
There are also differences in how housing works. It’s much more fragmented than employment or election law. It involves individual homeowners and small landlords. It can be harder to find the central nodes where litigation can drive systemic change.
—————
3. You argue that in spite of its problems, the Fair Housing Act actually has a radical core. In what way?
If you look at either the text of the Fair Housing Act (FHA) or the case law, it’s really quite different from the Civil Rights Act, to which it is normally compared. Title VII of the Civil Rights Act talks about discrimination against an employee or an applicant—that is, individuals in relation to particular jobs. It’s about fairly matching people with jobs. The FHA looks beyond discrimination in individual transactions.
The FHA says we need to think about the structure of the market itself—the structure of opportunity. It’s not enough that people have fair access to whatever housing opportunities already exist, in the form they already exist. Those opportunities must be fairly created in the first place.
That means things like prohibiting redlining, so there’s access to lending, and sometimes requiring that a zoning code allows for multifamily housing. It’s ensuring that there are opportunities, that there are available homes to move into.
—————
4. That addresses the seller’s side. What about the buyer?
There’s a line of cases that says that even though it’s not specifically mentioned in the act, discrimination in homeowner’s insurance is covered. The logic is that you can’t buy a house without a mortgage, and you can’t get a mortgage without insurance.
What these cases show is that the act intervenes on both sides of the market. It’s making sure there are housing opportunities but also that the buyer has nondiscriminatory access to certain prerequisites to securing housing. This isn’t unlimited—it does not say that you get to have the income to buy the home—but it sometimes ensures that households can obtain the necessary qualifications for more and better housing.
—————
5. Why hasn’t this radical logic been more widely recognized?
It’s not that courts are consistently misapplying the act. This article is a description of the law as it has existed, not as it should be. Courts do apply the text differently than they do for Title VII cases; but too often, they don’t recognize those differences. Part of the motivation for writing this paper was to make sure that that didn’t create confusion or allow the weakening of important precedent.
Things like redlining and discriminatory zoning—those are core to the Fair Housing Act, not periphery. This article is not calling for a reworking of fair housing law. It’s calling for a recognition of the strength that’s already in fair housing law.
Michigan Law
The federal Fair Housing Act deserves wider recognition for the powerful logic at its core, according to Professor Noah Kazis.
In a recent article in the Virginia Law Review, Kazis, an assistant professor of law at Michigan Law, argues that the “radical” approach of the Fair Housing Act goes well beyond the transactional focus of the employment protections in the Civil Rights Act.
“For all the Fair Housing Act’s many weaknesses, for all its ineffectiveness in practice, the act has always had radical ambitions,” Kazis writes. “If those ambitions are recognized, they can, perhaps, be built upon.”
Kazis recently answered five questions about his insights:
—————
1. How big a problem is housing discrimination in 2025?
It’s one of those things where you can look at the glass as half full or half empty.
Half full: The amount of discrimination goes down every year in surveys, and residential segregation goes down.
Half empty: Discrimination is still common, and given how intense residential segregation was in the midcentury, segregation levels are still quite high. The average Black/white segregation level is closer to complete segregation than complete integration, with segregation worst in the Northeast and the Midwest. Hispanic/white segregation has not been improving, partly because it has increased in New York and Los Angeles.
There’s racial discrimination in how many units are shown to renters and home buyers based on race, along with many other elements of the housing process. There’s also discrimination on the basis of all the other protected characteristics, like disability, family status, religion, and gender.
All of this has immense implications for which homes people buy at what price, and, therefore, for wealth; for where people live, and, therefore, for integration, for access to schools, and for all the other things that neighborhoods offer.
—————
2. Your paper acknowledges some common criticisms of the Fair Housing Act. What are some of the issues with it?
The conventional wisdom on the Fair Housing Act is that it has been underwhelming and relatively unsuccessful, compared to the other two major pillars of the 1960s civil rights statutes: the Civil Rights Act and the Voting Rights Act. We saw fast transformations in those other areas, but not in housing, for a number of reasons.
The Fair Housing Act was, in some ways, more controversial at the time because it was controversial in the North, not just in the South. So to get it passed, the compromise included weak enforcement provisions.
Those were fixed in 1988, but that weakness certainly defined the first 20 years of the act.
There are also differences in how housing works. It’s much more fragmented than employment or election law. It involves individual homeowners and small landlords. It can be harder to find the central nodes where litigation can drive systemic change.
—————
3. You argue that in spite of its problems, the Fair Housing Act actually has a radical core. In what way?
If you look at either the text of the Fair Housing Act (FHA) or the case law, it’s really quite different from the Civil Rights Act, to which it is normally compared. Title VII of the Civil Rights Act talks about discrimination against an employee or an applicant—that is, individuals in relation to particular jobs. It’s about fairly matching people with jobs. The FHA looks beyond discrimination in individual transactions.
The FHA says we need to think about the structure of the market itself—the structure of opportunity. It’s not enough that people have fair access to whatever housing opportunities already exist, in the form they already exist. Those opportunities must be fairly created in the first place.
That means things like prohibiting redlining, so there’s access to lending, and sometimes requiring that a zoning code allows for multifamily housing. It’s ensuring that there are opportunities, that there are available homes to move into.
—————
4. That addresses the seller’s side. What about the buyer?
There’s a line of cases that says that even though it’s not specifically mentioned in the act, discrimination in homeowner’s insurance is covered. The logic is that you can’t buy a house without a mortgage, and you can’t get a mortgage without insurance.
What these cases show is that the act intervenes on both sides of the market. It’s making sure there are housing opportunities but also that the buyer has nondiscriminatory access to certain prerequisites to securing housing. This isn’t unlimited—it does not say that you get to have the income to buy the home—but it sometimes ensures that households can obtain the necessary qualifications for more and better housing.
—————
5. Why hasn’t this radical logic been more widely recognized?
It’s not that courts are consistently misapplying the act. This article is a description of the law as it has existed, not as it should be. Courts do apply the text differently than they do for Title VII cases; but too often, they don’t recognize those differences. Part of the motivation for writing this paper was to make sure that that didn’t create confusion or allow the weakening of important precedent.
Things like redlining and discriminatory zoning—those are core to the Fair Housing Act, not periphery. This article is not calling for a reworking of fair housing law. It’s calling for a recognition of the strength that’s already in fair housing law.
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