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Burlington Commission on Human Rights, 1964-1965

Iowa Law Review, "State Civil Rights Statute: Some Proposals" Page 1106

1106     IOWA LAW REVIEW     [Vol. 49

good tenant but will most often look for an individual with whom he will be socially compatible. Public policy therefore dictates that in this situation, as well as in the situation where he rents rooms in his own home, rights of freedom of association should preponderate.
   Almost every state with a housing statute has recognized at least these two exceptions.136 This reflects a general feeling that they are demanded by the unusual intimacy of landlords and tenants in these circumstances. The widespread acceptance of these two exemptions also reflects a recognition that there is a great interest in permitting every individual some reasonable sphere of absolute privilege in choosing those with whom he will closely associate.
   One last point about the suggested housing statute must be noted. No provision of this kind can be effective unless it covers both real estate brokers and banks. If real estate brokers are not regulated to insure that their conduct conforms to the spirit of the proposed act, its proscriptions can be easily eluded, if not rendered totally meaningless. And if we are to assure minority groups any real or meaningful equal opportunity to obtain housing or commercial space, we must assure them an equal chance to obtain financing. We must also assure that in their lending policies banks do not exert pressure on landlords or vendors of real property to discriminate.
   Although most of the activities of real estate brokers and banks are already covered by the public accommodations and housing sections of the proposed act,137 two specific and comprehensive sections dealing with them are suggested. Almost every state with an effective housing statute has such specific provisions.138 This is because ex-
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136 See, e.g., CONN. GEN. STAT. REV. 53-35 (Supp. 1961); MASS. ANN. LAWS ch. 151B, 1(11) (supp. 1962); MINN. STAT. ANN. 363.02(2) (Supp. 1963); N.Y. CIV. RIGHTS LAW 18-b(6) (Supp. 1963); PA. STAT. ANN. tit. 43, 954(j), (k) (Supp. 1962). The fact that the state does not by law bar landlords in these cases from discriminating should not discourage it from attempting by education to persuade them that such a course of conduct is irrational. Further, even though landlords in the exempted situations are not barred from discriminating, the state should in no way facilitate such conduct on their part. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948).
137 The proposed genral accessory, incitement, and "catchall" provisions, VI(a) & (b), would also cover some of the activities of banks and real estate brokers.
138 Real estate agents and mortgage lenders are specifically barred from discriminating or engaging in any other activity which would undermine the housing statutes policy in California, Colorado, Connecticut, Massachusetts, Minnesota, New Jersey, New York, and Pennsylvania. Real estate agents alone are barred from discriminating, in Alaska, Oregon, and New Hampshire. See Scoreboard, Laws Affecting Discrimination in Housing as of Sept. 30, 1963, Trends In Housing, Sept.-Oct. 1963, p. 7. The Minnesota or New York statutes covering brokers and banks would be a good model. See MINN. STAT. ANN. 363.03(2) (2), (3) (Supp. 1963); N.Y. EXECUTIVE LAW 296(5)(c), (d) (Supp. 1963).

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1106 IOWA LAW REVIEW [Vol. 49 good tenant but will most often look for an individual with whom he will be socially compatible. Public policy therefore dictates that in this situation, as well as in the situation where he rents rooms in his own home, rights of freedom of association should preponderate. Almost every state with a housing statute has recognized at least these two exceptions.136 This reflects a general feeling that they are demanded by the unusual intimacy of landlords and tenants in these circumstances. The widespread acceptance of these two exemptions also reflects a recognition that there is a great interest in permitting every individual some reasonable sphere of absolute privilege in choosing those with whom he will closely associate. One last point about the suggested housing statute must be noted. No provision of this kind can be effective unless it covers both real estate brokers and banks. If real estate brokers are not regulated to insure that their conduct conforms to the spirit of the proposed act, its proscriptions can be easily eluded, if not rendered totally meaningless. And if we are to assure minority groups any real or meaningful equal opportunity to obtain housing or commercial space, we must assure them an equal chance to obtain financing. We must also assure that in their lending policies banks do not exert pressure on landlords or vendors of real property to discriminate. Although most of the activities of real estate brokers and banks are already covered by the public accommodations and housing sections of the proposed act,137 two specific and comprehensive sections dealing with them are suggested. Almost every state with an effective housing statute has such specific provisions.138 This is because ex- _________________________ 136 See, e.g., CONN. GEN. STAT. REV. 53-35 (Supp. 1961); MASS. ANN. LAWS ch. 151B, 1(11) (supp. 1962); MINN. STAT. ANN. 363.02(2) (Supp. 1963); N.Y. CIV. RIGHTS LAW 18-b(6) (Supp. 1963); PA. STAT. ANN. tit. 43, 954(j), (k) (Supp. 1962). The fact that the state does not by law bar landlords in these cases from discriminating should not discourage it from attempting by education to persuade them that such a course of conduct is irrational. Further, even though landlords in the exempted situations are not barred from discriminating, the state should in no way facilitate such conduct on their part. See, e.g., Shelley v. Kraemer, 334 U.S. 1 (1948). 137 The proposed genral accessory, incitement, and "catchall" provisions, VI(a) & (b), would also cover some of the activities of banks and real estate brokers. 138 Real estate agents and mortgage lenders are specifically barred from discriminating or engaging in any other activity which would undermine the housing statutes policy in California, Colorado, Connecticut, Massachusetts, Minnesota, New Jersey, New York, and Pennsylvania. Real estate agents alone are barred from discriminating, in Alaska, Oregon, and New Hampshire. See Scoreboard, Laws Affecting Discrimination in Housing as of Sept. 30, 1963, Trends In Housing, Sept.-Oct. 1963, p. 7. The Minnesota or New York statutes covering brokers and banks would be a good model. See MINN. STAT. ANN. 363.03(2) (2), (3) (Supp. 1963); N.Y. EXECUTIVE LAW 296(5)(c), (d) (Supp. 1963).