Butler, Patrick H.

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Urban Law Annual ; Journal of Urban and Contemporary LawVolume 1968January 1968Voluntary Plans to Prevent De Facto Segregation inHousing Receive Statutory Protection in IndianaPatrick H. ButlerFollow this and additional works at: https://openscholarship.wustl.edu/law_urbanlawPart of the Law CommonsThis Statutory Comment is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has beenaccepted for inclusion in Urban Law Annual ; Journal of Urban and Contemporary Law by an authorized administrator of Washington University OpenScholarship. For more information, please contact digital@wumail.wustl.edu.Recommended CitationPatrick H. Butler, Voluntary Plans to Prevent De Facto Segregation in Housing Receive Statutory Protection in Indiana, 1968 Urb. L. Ann.154 (1968)Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol1968/iss1/10VOLUNTARY PLANS TO PREVENT DE FACTOSEGREGATION IN HOUSING RECEIVESTATUTORY PROTECTION IN INDIANAPATRICK H. BUTLERjIndiana's Civil Rights Commission has long agonized over the prob-lem of preventing de facto segregation in housing. Shortly after thefirst Negro moves into an all white area, the whites depart and thearea again becomes racially segregated. This departure of the whitefamilies is caused as much by their fear of finding themselves in theminority as by their fear of declining property values.The Civil Rights Commission felt that Section 608 of the ModelAnti-Discrimination Act, was an instrument which could be used ef-fectively in solving this problem. It thought that instead of exiting,the whites in a newly integrated area would take advantage of an op-portunity to develop a plan to prevent a disproportionate number ofNegroes from moving in. The Model Anti-Discrimination Act, Section608 provides:It is not a discriminatory practice for any person subject to thischapter to adopt and carry out a plan to eliminate or reduce im-balance with respect to race, color, religion or national origin, ifthe plan has been filed with the Commission under regulationsof the Commission and the Commission has not disapproved theplan.The Indiana Civil Rights Commission recommended enactment ofa statute that would legalize plans to prevent de facto segregation.The Indiana Real Estate Association initially opposed the Amend-ment, apparently because many realtors in small communities feltthat they would have to sell to Negroes and partly out of a habit ofopposing any legislation in this area. Once it was understood thatno one would have to sell to Negroes, this opposition was overcome.The Negro Real Estate Association felt that the state should enacta much stronger fair housing law, without exemptions and with pro-visions for vigorous enforcement.By one vote, the Indiana Convention of the State National Associa-tion for the Advancement of Colored People opposed the Amendment.t Assistant Professor of Law, Indiana University.1. Uniform Law Commissions Model Act, Discrimination Act § 608 (1966).Washington University Open ScholarshipSTATUTORY COMMENTSThey said it was too close to a quota system, and they feared that itcould be misused by an unsympathetic administration.In March of 1967, the Governor signed the 1967 Amendment to theCivil Rights Act. That part of the 1967 Amendment dealing withde facto segregation in housing provides: that no cease and desistorder shall issue against... Any person who has engaged in a discriminatory practice pur-suant to a voluntary plan adopted to prevent or eliminate de factosegregation if such plan establishes no fixed numbers or percentfor any race, religion or nationality and is found by the Commis-sion to be reasonably designed to prevent de facto segregationand consistently followed by persons privy to the plan.2The regulations to be immediately issued under this statute re-quire only that the plan be filed with the Commission and thus be-come a public record. The plans thus filed will be neither approvednor disapproved by the Commission.Indiana's failure to enact the provision of the Model Act whichwould give the Commission authority to disapprove a plan in ad-vance is an apparent source of future difficulty. For example, withsuch authority to approve or disapprove, such questions as the per-missible geographic area to be included in a plan would be settledin advance, and the reasonableness of the plan as an instrument forpreventing de facto desegregation would be tested at the Commissionlevel prior to attack in court.Although Indiana's statute specifically outlaws a plan that fixes aquota for any race, religion or nationality, it is difficult to imaginea workable plan that is not based upon a numbers concept. If a planprovides that one-half of the occupants of the area should be of agiven race, religion or nationality, it would be invalid as a quota;2. Indiana Acts, ch. 276, § 3(1) (1967). The Commission shall have the powerand duty . .To state its findings of facts after a hearing and, if the Commission findsa person has engaged in an unlawful discriminatory practice, it may causeto be served on such a person an order requiring such person to cease anddesist from such unlawful discriminatory practices and requiring such per-son to take further affirmative action as will effectuate the purposes oF thisact. Provided, however, that no cease and desist orders shall be issued againstan owner-occupant with respect to a residential building containing less thanfour housing units, nor against any person who has engaged in a discrimina-tory practice pursuant to a voluntary plan adopted to prevent or eliminatede facto segregation if such plan establishes no fixed numbers or percent forany race, religion or nationality and is found by the Commission to be reason-ably designed to prevent de facto segregation and consistently followed bypersons privy to the plan.https://openscholarship.wustl.edu/law_urbanlaw/vol1968/iss1/10URBAN LAW ANNUALand if it provides that every other house would be available for saleto the previously excluded group, it would appear that this wouldbe just another way of saying the same thing. Without a fixed goalsuch as a quota, a party to the plan will not know whether it is con-sistently followed by others.The absence of a quota in a plan does not necessarily give it moreprotection from constitutional attack. To the extent that one is pre-cluded from buying a house in an area because of race, etc., his injurywould appear to be the same regardless of whether he offers to buyafter the area has reached the planned quota or after the area hasabsorbed what the participants in the plan consider to be a reasonablenumber of people of the race, religion, or nationality identical to thatof the would-be buyer.A possible benefit from the 1967 Amendment is that areas previ-ously closed to racial, religious, and nationality minorities will be-come open if the inhabitants of such areas take the initiative andadopt their plans before there is any penetration of the area by thosepreviously excluded. Probably such areas will not seek to come underthe Amendment until after its constitutionality has been clealy es-tablished, because, if the plan is not valid or if the statute is notconstitutional, a participant would be admitting that he was practic-ing discrimination subjecting himself to the issuance of a cease anddesist order. Evasionary devices, such as taking the house off the mar-ket, telling the purchaser that there is an offer on the house, or refus-ing to show it for any number of reasons, do not so clearly show dis-crimination against the purchaser as a plan sanctioned under the 1967Amendment.To make the 1967 Civil Rights Amendment effective, it appearsthat the Civil Rights Commission must become more involved with aplan prior to the stage at which it is challenged. There should besome definition of the area which a plan can legitimately encompassand guidelines to help the Commission determine whether a plan isreasonably designed to prevent or eliminate de facto segregation.More is required in the way of regulations than merely a filing require-ment.Washington University Open Scholarship

Voluntary Plans to Prevent De Facto Segregation in Housing Receive Statutory Protection in Indiana

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Voluntary Plans to Prevent De Facto Segregation in Housing Receive Statutory Protection in Indiana

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