I want you to picture this. It's April 1968.
You're in Washington, D .C. And if you're looking
at the photos from that first week, you're not
seeing the famous cherry blossoms. No, you're
seeing smoke. You're seeing smoke rising over
H Street. You're seeing members of the 82nd Airborne
Division, actual soldiers, patrolling the steps
of the U .S. Capitol. The machine guns, I mean,
it literally looked like a war zone. And in so
many ways it was. The entire country was just
convulsing. Martin Luther King Jr. had been assassinated
in Memphis on April 4th. Right. And in response,
you have more than 100 American cities that are,
for all intents and purposes, on fire. And yet
inside the Capitol building, while they can literally
smell the smoke in the air, Congress is in this
frantic race. A frantic race to pass a piece
of legislation that, frankly, felt completely
impossible just a week earlier. It was crisis
legislation. And today... We're doing a deep
dive into what came out of that fire. We're talking
about the Civil Rights Act of 1968. Now, when
people hear Civil Rights Act, they usually think
of the big one. The 64 Act. Exactly. The one
that ended segregation in restaurants, hotels,
public spaces. Or they think of the Voting Rights
Act of 65. The 68 Act, though, it's kind of the
forgotten one. Or it gets reduced to a single
nickname. People just call it the Fair Housing
Act. Which is true. It is the Fair Housing Act.
But, you know, that's kind of like saying an
iPhone is just a calculator. Yeah, that's a great
way to put it. It does that one thing really
well, but it does so much more. Right. It does
the calculation, but it also runs your entire
life. The 1968 Act is this sprawling, almost
bizarre legislative Swiss army knife. I've been
reading through the actual text, and it feels
like a Frankenstein's monster of a bill. It feels
like three totally different laws that were just
stapled together in a panic. And what are the
three parts? Okay, so you've got Title VIII.
which is a famous part. That's fair housing.
It's about ending discrimination, opening up
the suburbs. But then, buried right in the middle,
you have Titles II through VII, which completely
rewrote the legal relationship between Native
American tribes and the U .S. government. Something
most people have no ideas in there. Absolutely
not. And then, tacked on at the end, you have
Title I and Title X. And these are basically
a federal crackdown on hate crimes and riots.
It seems so disjointed at first glance. Housing,
tribal law, riot control. What's the connection?
But when you step back, you see this underlying
theme, right? It's this tension between federal
power and, for lack of a better word, local sovereignty.
Whether that local entity is a white suburban
neighborhood that doesn't want to integrate.
Or a Native American tribe trying to govern itself.
Or even a political protest group in the streets.
This law was the federal government in one single
week asserting its will over all of them. At
the same time. So that's our mission for this
deep dive. We're going to unpack this beast.
We're going to figure out how these three incredibly
different concepts, housing justice, tribal sovereignty,
and riot control all, ended up in the same document
that LBJ signed into law. On April 11th, 1968.
And to do that, you have to start with the context.
Because this wasn't a bill that was, you know,
carefully debated over tea and crumpets in some
quiet chamber. No, this was forged in a pressure
cooker. An absolute pressure cooker. So let's
talk about that pressure cooker. Because before
that week in April 1968, a federal fair housing
bill was completely dead in the water. Oh, it
was worse than dead. It was the political third
rail. You didn't touch it. We hear it was hard
to pass, but I don't think people realize how
hard. Well, listen to this. This is a quote from
Senator Walter Mondale, who was the bill's main
sponsor in the Senate. He later called it the
most filibustered legislation in U .S. history
up to that point. The most filibustered. More
than the 64 Act. More than any of them. He was
just incredibly frustrated. And you have to put
yourself in his shoes. The SIP rights movement
had all this incredible momentum in 64 and 65.
They broke the back of legal Jim Crow in the
South. But then they got to housing. And they
just hit a wall. A complete wall. So why? I mean,
why was housing so much harder? It feels like
if you can force a lunch counter in Alabama to
serve everyone, you should be able to force a
landlord in Chicago to do the same. And that's
the key right there. You said Alabama and Chicago.
Walter Mondale had this very sharp, maybe a little
cynical, but very accurate insight on this. What
was it? He pointed out that the 1964 and 1965
acts were fundamentally the North telling the
South what to do. Right. It was about fixing
their problem. Exactly. It was easy for a senator
from, say, Illinois or New York to vote for the
Voting Rights Act. His constituents were already
voting. The bill was about fixing those racists
down there in Mississippi or Georgia. It's a
morality play. And the villain is someone else
somewhere else. Precisely. But the Fair Housing
Act, that wasn't about the South. about Chicago.
It was about Detroit, New York, Los Angeles,
Philadelphia. It was about the suburbs everywhere.
It was coming home. Mondale's words were, this
came right to the neighborhoods across the country.
This was civil rights getting personal. So as
soon as the conversation shifted to who could
buy the house next door to you. Suddenly those
very liberal northern political coalitions started
to get very nervous. They started to fracture.
It's a classic NMBY. Problem, right? Yeah. Not
in my backyard, just on this massive racialized
scale. Absolutely. And you had powerful forces
mobilizing against it. The National Association
of Real Estate Boards, which is the predecessor
to today's National Association of Realtors,
they weren't just lobbying in D .C., they were
weaponizing white homeowners. How so? They were
funding campaigns built on fear, spreading the
idea that if the government could tell you who
to sell your house to, property values would
collapse. That forced integration was a threat
to your biggest investment. And this wasn't just
talk. It actually killed a bill before 68, didn't
it? It did. There was a proposed Civil Rights
Act of 1966. It was a big, ambitious bill. But
the housing provision was its poison pill. It
failed spectacularly, largely because of that
opposition. The issue was just politically radioactive.
OK, so let's fast forward. It's early 1968. The
bill is stuck in the Senate being filibustered.
Everyone, including its supporters, basically
expects it to die a quiet death. What happens?
What breaks the gridlock? Two massive shocks
to the system. The first one lands in March of
68. You get the Kerner Commission report. And
remind us, what was the Kerner Commission? So
this was the government's official investigation
into what was called the Long Hot Summer of 1967.
Right, when cities like Newark and Detroit had
these huge, destructive riots. Yes. And President
Johnson put together this commission, headed
by Governor Otto Kerner of Illinois, to figure
out why. Why is this happening? And the report
they came back with absolutely terrified white
America. What was the conclusion? The most famous
line from the report is this. Our nation is moving
toward two societies, one black, one white, separate
and unequal. It was this brutal, honest assessment.
And did they specifically connect this to housing?
They drew a direct, unmissable line. They basically
said that decades of housing segregation, of
redlining, had created the ghetto conditions
that were now exploding into riots. They explicitly
recommended a national open housing law as a
solution. So that primes the pump. It puts the
idea out there that fair housing isn't just about
fairness. It's about national security. It's
about preventing the country from tearing itself
apart. So that's shock number one. But the spark,
the... The absolute tragedy that blasted the
door off its hinges came on April 4th. Martin
Luther King Jr. is assassinated. And the timeline
from this moment on is just staggering. It's
one of the most compressed and consequential
weeks in American legislative history. So let's
walk through it. Day by day, April 4th, Thursday,
King is shot on a motel balcony in Memphis. And
chaos erupts almost immediately. The King assassination
riots, as they came to be called, break out in
over 100 cities, and D .C. is one of the worst.
So April 5th, Friday, Washington is literally
on fire. Right. And President Johnson, seeing
this unfold, writes a letter and sends it to
the House of Representatives. And he's not asking
nicely anymore. The tone is completely different.
He is demanding that they pass the Fair Housing
Act, framing it as both a tribute to Dr. King's
legacy and as the only way to quell the violence
in the streets. He's using the crisis as leverage.
Maximum leverage. Now, the bill at this point
had passed the Senate, but it was stuck in the
House Rules Committee. Which is where bills usually
go to die, right? The chairman can just sit on
it forever. Exactly. The committee had been sitting
on it, refusing to let it go to the floor for
a full vote. But then comes Monday, April 8th,
and the historical records have this amazing
description of the meeting. They say the committee
members were jolted by the repeated civil disturbances
virtually outside its door. They could hear it.
They could hear the sirens. They could smell
the smoke from their offices. This was no longer
an abstract debate about property rights. It
was about the survival of the city they were
in. It's amazing how quickly political conviction
can evaporate when the building you're in starts
to shake. Fear is a very powerful motivator in
politics. So on April 8th, they suddenly end
the hearings and release the bill to the floor.
Two days later, April 10th, the full House votes.
They pass it 250 to 172. And the very next day,
April 11th, President Johnson signs it into law.
One week. Seven days from assassination to enactment.
That's just incredible. It's unheard of for a
piece of legislation that controversial. And
looking at that final vote count, 250 to 172,
that's not exactly a landslide victory. No, and
the breakdown of that vote is fascinating. It
wasn't a clean party line split, which tells
you how complicated the issue was. How did it
break down? Democrats voted 150 in favor and
88 against. So a lot of Southern Democrats still
voted no. And the Republicans were almost evenly
split. 104, 84 against. So this was a coalition
of Northern Democrats and moderate Republicans
all pushed into action by the crisis. It was
a coalition of the willing, driven by a profound
sense of urgency. I think it's safe to say that
without the tragedy of King's death and the riots
that followed, we almost certainly would not
have the Fair Housing Act of 1968. Which is...
Deeply ironic, given that a big part of the bill
is an anti -riot act, which we're going to get
to. A huge irony. But let's start with the crown
jewel. Let's dig into Title VIII, the Fair Housing
Act itself. What did it actually do? OK, so this
is the part of the law that really changed the
face of American real estate. At its core, it
was about ending discrimination in the sale,
rental and financing of housing. And originally
it established four protected classes, right?
That's right. The original text from 68 covered
race, color, religion and national origin. And
the prohibitions are pretty broad. They were.
It made it illegal to do the obvious things like
refuse to sell or rent to someone because of
their race. It also made it illegal to lie and
say an apartment was already rented when it wasn't,
which was a common tactic. The sorry it's already
gone line. Exactly. But importantly, it also
went after the machinery of housing segregation.
It didn't just target individual bigots. It targeted
discriminatory business practices. And the big
one there was something called blockbusting.
Yes. I've read about this and it just sounds
like a. a predatory con game. Can you walk us
through how blockbusting actually worked on the
ground in a real neighborhood? It was purely
predatory. So let's say you have a stable, middle
-class white neighborhood in, say, the 1950s
or 60s. A real estate agent, who we'd call a
blockbuster, would move in to deliberately destabilize
it for profit. How would they start? They'd use
these really insidious tactics. They might hire
a black woman to walk down the street pushing
a baby in a stroller. Or they'd pay a few black
teenagers to stage a loud fake fight on a street
corner. Just to create a visible presence. A
visible and deliberately scary presence. Then
that same agent goes door to door to the white
homeowners and says something like, did you see
what's happening? They're moving in. The whole
neighborhood is about to turn. I've seen it happen
before. Your property values are going to crash.
You need to sell to me now while you can still
get something for your house. So they're manufacturing
a panic, inducing panic selling. Exactly. They
get the terrified white family to sell their
house at a rock bottom, below market price. And
then what? Then they turn right around and sell
that exact same house to a black family. But
because that black family has been systematically
shut out of other neighborhoods by redlining
and restrictive covenants, their housing options
are severely limited. So they're desperate. They're
desperate. And the blockbuster exploits that
desperation, selling him the house at a massively
inflated price, often with very predatory contract
terms. So the agent is profiting on both ends
of the transaction. Huge profits on both ends.
And in the process, they destroy the neighborhood's
social fabric and drain all the equity out of
it. Title VIII of the 68 Act made those specific
representations going door to door and trying
to induce panic based on race illegal. That's
a really crucial piece of consumer protection
that's disguised as a civil rights law. It absolutely
is. But the law didn't just stop there in 1968.
It evolved. It grew over time. It had to. Society
changed. In 1974, Congress came back and added
sex as a protected class. This was a huge step
for single women, divorced women who were often
denied apartments or mortgages. And then there
was an even bigger expansion later on. Yes. The
biggest changes came in 1988 with the Fair Housing
Amendments Act. That's when we added two more
crucial categories, familial status and disability.
Familial status sounds like legal jargon. That
just means you can't discriminate against people
with kids. That's the main thrust of it, yes.
Before 1988, adults -only apartment complexes
were perfectly legal and very common. Landlords
could just flat out say, we don't want the noise,
we don't want the hassle, no children allowed.
And the amendment made that illegal. It did,
with one major exception. You can still have
senior housing, like a 55 plus retirement community,
but... General purpose apartment buildings can
no longer ban kids. The protection also extends
to pregnant women and people in the process of
adopting. OK, but the disability protections
added an 88. This is where the law gets really
technical and interesting. It's not just a negative
command like don't discriminate. It actually
creates a positive duty for landlords to do things.
That's right. It creates an affirmative duty
on the part of the housing provider. And we usually
divide this into two buckets, reasonable modifications
and reasonable accommodations. Let's drill down
on modifications first. This is the physical
stuff, the bricks and mortar. Correct. So let's
take a classic example. A tenant uses a wheelchair
and the doorway into the bathroom in their apartment
is too narrow for the chair to fit through. Under
the act, the landlord must allow the tenant to
modify the unit by widening that doorway. They
can't just say, no, you can't change my property.
But who pays for it? Does the landlord have to
pay to widen the door? And this is the critical
part. Generally, no. The tenant has to pay for
the modification themselves. Okay, so I'm the
tenant. I pay a contractor a few hundred dollars
to whiten the door. I live there for five years,
and then I decide to move out. What happens then?
Does the landlord just get a free, upgraded,
more accessible apartment? Maybe, but here's
the nuance. The landlord can require you to restore
the unit to its original condition when you leave,
if the modification would interfere with the
next tenant's use or enjoyment of the apartment.
Wait, hold on. How would a wider doorway interfere
with the next tenant? If anything, it seems like
a benefit. And you've hit on the exact legal
test. In the case of a widened doorway, it almost
certainly wouldn't interfere. The regulations
say that if the modification doesn't affect the
usability for the next person, the landlord can't
require you to restore it. But what's an example
of something I would have to change back? Let's
say you're in a wheelchair and you pay to have
all the kitchen cabinets and countertops lowered
by a foot so you can reach them. that might very
well interfere with the next tenant who might
be 6 '4 and can't comfortably use that kitchen.
Okay, that makes sense. So in that case, the
landlord could require you to put the cabinets
back at their original height when you move out.
And I remember reading something about an escrow
account. How does that work? Yes, this is another
protection for the landlord. If the restoration
is going to be expensive, the landlord can actually
require the tenant to pay a little extra money
each month into an interest -bearing escrow account.
To save up for the future repairs. Exactly. So
the money is guaranteed to be there to restore
the apartment when they leave. Wow. That seems
like a really high hurdle for a low -income tenant
with a disability to clear. It is. It's a compromise
written into the law. The law grants the right
to access, but it doesn't always provide the
funding to achieve it. Okay, so that's modifications.
What about the other bucket, accommodations?
So accommodations are about changing rules, policies,
or procedures. Not physical structures. Give
me the classic example. The classic example is
the no pets policy. An apartment building says
absolutely no pets allowed. But a person who
is blind applies to live there and they have
a seeing eye dog. The dog has to be allowed.
The landlord must make a reasonable accommodation
and waive the no pets rule for that assistance
animal. And they can't charge a pet fee or a
pet deposit because it's not a pet. It's a medical
aid. What about parking? I feel like parking
disputes are the number one cause of strife in
apartment living. A huge area for accommodations.
Let's say your building has a first come, first
served. parking lot, no assigned spots. But a
tenant has a mobility impairment that makes it
very difficult for them to walk long distances.
So they need a spot near the door. Right. They
can request an accommodation and the landlord
would be required to assign them a specific reserved
working space close to their unit, even though
no one else gets an assigned spot. That's a change
in policy. So the law is pretty comprehensive.
But it's not universal. We have to talk about
the big loophole, the Mrs. Murphy exemption.
Yes, Mrs. Murphy's boarding house. When I first
heard about this, I seriously thought it was
an urban legend. But it's real. It's very real.
The name actually comes from the legislative
debates around the bill. The idea was to protect
a hypothetical elderly widow, a Mrs. Murphy,
who rents out a spare room in her own home to
make ends meet. The question was, should the
federal government be able to force her to live
with someone she's not comfortable with? Congress
decided no. They decided no. They wanted to balance
civil rights with an individual's right to privacy
and association within their own home. So what's
the specific rule? How does the exemption work?
Okay, it's a two -part test. First, the building
has to have four or fewer units. And second,
the owner of the building has to live in one
of those units. So a duplex, a triplex, or a
fourplex where the owner is also a resident.
Exactly. If both of those conditions are met,
the owner is exempt from the Fair Housing Act's
non -discrimination standards when they choose
their tenants. Let me be really clear about this.
If I own a fourplex and I live in Unit A, I can
legally tell a prospective tenant for Unit B,
I'm sorry, I'm not renting to you because...
you're Muslim or because you're black? Under
federal law, in that very specific scenario,
yes, you can make that discriminatory choice.
However, and this is a massive, massive asterisk
that trips up a lot of small landlords. The exemption
only applies to the final selection of the tenant.
It does not apply to discriminatory advertising.
Explain that distinction. That's huge. So you,
the owner -occupant of the fourplex, can discriminate
in your head and in your final decision. But
you cannot place an ad on Craigslist or in the
local paper that says no kids or Christians only.
Title VIII's ban on discriminatory advertising
applies to everyone, even Mrs. Murphy. That seems
psychologically contradictory. The law is saying
you can be a bigot. You just can't announce it
publicly. That's a good way to put it. The law
is trying to prevent the public humiliation and
the creation of a hostile segregated marketplace
while still preserving that small sliver of private
right to choose who literally sleeps under your
own roof. It's a very fine line. And speaking
of fine lines in modern interpretations, let's
talk about LGBTQ plus rights. The words sexual
orientation and gender identity are not in the
text of the 1968 Act. They are not. But the word
sex is. And this is a perfect example of how
a law passed decades ago can live and breathe
and adapt to new social and legal understandings.
So for a long time, courts just interpreted sex
to mean biological male or female. For decades,
yes. But the tectonic plates of legal interpretation
shifted in a huge way in 2020 with a Supreme
Court decision called Bostock v. Clayton County.
Right. That was a big employment discrimination
case. It was an employment case, not a housing
case. But the logic it established was revolution.
It was a 6 -3 decision. And Justice Neil Gorsuch,
a conservative, wrote the majority opinion. And
what was his reasoning? It was this really elegant
piece of textualism, basically a logic puzzle.
He said, imagine you have two employees who are
both attracted to men. One is a woman, one is
a man. If you fire the male employee for being
attracted to men, but you don't fire the female
employee for being attracted to men, then you
have made a decision that is based in part on
the employee's sex. You can't separate the two.
You can't. He argued that to discriminate against
someone for being gay or transgender, you necessarily
have to take their sex into account. Therefore,
it is a form of sex discrimination. It's a logic
game. that results in protection. A brilliant
one. And almost immediately after that decision,
people started asking, well, if that's what sex
means for employment law, doesn't it have to
mean the same thing for housing law? And the
Biden administration said yes. They did. In February
of 2021, the Department of Housing and Urban
Development, or HUD, issued a formal directive.
It said that based on the Supreme Court's reasoning
in Bostock, HUD will now enforce the Fair Housing
Act to prohibit discrimination based on sexual
orientation and gender identity. So as of right
now, LGBTQ plus status is effectively a protected
class in housing. Correct. But it's not because
Congress passed a new law. It's because we are
rereading a single word sex. That's been in the
law since 1974. Exactly. And that's an important
distinction because it's based on an administrative
interpretation and a Supreme Court case. It could
theoretically be reversed by a future court or
a different administration. It's legally solid
for now, but it's not codified in stone the way
race or religion are. OK, this is a perfect place
to pivot. We've talked about the suburbs and
apartments. Now we need to leave all that behind
and head to the reservation. This is the part
of the bill that I have to admit. Completely
shocked me. Titles two through seventh, also
known as the Indian Civil Rights Act of 1968.
This is the forgotten middle child of this legislation.
Absolutely. My first question is just why? Why
is a law that we associate with Martin Luther
King and fair housing suddenly dealing with the
intricacies of tribal courts? Because it was
designed to solve a massive legal paradox, a
rights vacuum that had existed for nearly a century.
OK, you have to go back in time for us. We have
to go back to 1896. There was a Supreme Court
case called Talton v. Mays. And in that case,
the court laid out a really strange but powerful
doctrine. They ruled that because Native American
tribes are distinct, independent political communities,
essentially, sovereign nations that predate the
Constitution, the U .S. Constitution does not
apply to them. Wait, stop there. So if I were
a member of the Navajo Nation living on a reservation
in, say, 1960, the First Amendment's guarantee
of free speech didn't protect me. Not from your
tribal government. The Bill of Rights was written
to limit the power of the federal government.
Later, the 14th Amendment applied most of those
rights to limit state governments. But a tribe
is neither a state nor the federal government.
It's a third sovereign. It's a third sovereign.
So if a tribal council in 1960 wanted to ban
a certain newspaper or seize your property without
due process or establish an official religion,
the U .S. Constitution had absolutely nothing
to say about it. That's a huge black hole for
civil rights. It was an enormous vacuum. And
by the 1960s, Congress started holding hearings
and they heard absolute horror stories. The official
committee reports use the phrase corrupt, incompetent
or tyrannical tribal officials. There were stories
of people being banished or having their property
taken with no recourse. Congress felt it had
to step in. So they passed the Indian Civil Rights
Act or ICRA as part of this big 1968 package.
Did they just? Copy and paste the U .S. Bill
of Rights and apply it to the tribes? Mostly,
but not entirely. And the omissions are just
as important as the inclusions. They did grant
Native Americans on reservations most of the
big protections. Free speech, freedom of the
press, freedom of assembly, protection from unreasonable
search and seizure, from double jeopardy, the
right to a speedy trial. All the greatest hits
are in there. But what did they leave out? They
made some very specific, intentional omissions
to try and respect tribal culture and sovereignty.
Like what? For one, they left out the establishment
clause. That's the part of the First Amendment
that creates the separation of church and state.
Right. And they left it out because many tribal
governments are, for lack of a better word, theocratic.
Their system of governance and their spiritual
leadership are often one in the same. If you
forced a strict separation of church and state
on them, you would effectively dissolve the traditional
structure of their tribe. So ICRA allows for
that to continue. It does. Another big omission
has to do with lawyers in criminal cases. Okay.
In a U .S. court under Gideon v. Wainwright,
if you're poor and accused of a serious crime,
the government has to provide you with a lawyer.
Correct. Under ICRA, a tribal member has the
right to a lawyer. but only at their own expense.
The tribal government is not required to provide
a public defender. That's a massive difference.
What was the reasoning? Purely financial. Congress
realized that many tribes were very poor and
simply did not have the money or the infrastructure
to fund a public defender system. Requiring them
to do so would have bankrupted their governments.
So they were trying to thread this very delicate
needle granting individual rights, but also trying
to preserve the tribe's ability to function as
a sovereign entity. That was the goal. But then
came the court case that blew this whole arrangement
wide open and really defined what ICRA means
today. And that's Santa Clara Pueblo v. Martinez.
A landmark case from 1978. It's a tragic story,
but it is a masterclass in this conflict between
individual rights and collective sovereignty.
So introduce us to the woman at the center of
this, Julia Martinez. Julia Martinez was a full
-blooded member of the Santa Clara Pueblo tribe
located in New Mexico. She lived her whole life
on the reservation. She fell in love with and
married a man who was Navajoso, another Native
American, but not a member of her specific tribe.
They had children and raised them on the Santa
Clara Pueblo reservation. But the tribe had an
old membership ordinance dating back to 1939.
And this ordinance said that if a female member
of the tribe marries someone from But what about
the men? What if a Santa Clara man married an
outsider? If a man married an outsider, his children
were automatically granted tribal membership.
It was strictly patrilineal. That is the most
textbook, clear -cut case of sex discrimination
I have ever heard. And you just told me that
the ICRA explicitly guarantees equal protection
of the laws. Exactly. And that was her argument.
Julia Martinez sued the tribe. She argued that
this membership rule violated her rights under
the Indian Civil Rights Act. And this wasn't
just about a title. It had real world consequences.
Her children couldn't vote in tribal elections.
They couldn't hold office. And crucially, they
couldn't inherit her home on the reservation.
So when she died, her kids could have been evicted
from the house they grew up in. That was the
fear. This sounds like an open and shut case.
Federal law says equal protection. The tribe's
rule is a clear violation. She should win. And
that's what the lower courts wrestled with. But
when the case got all the way to the U .S. Supreme
Court, the legal question shifted. The question
before the court wasn't, is this rule sexist?
Everybody knew it was. The question became, who
gets to decide if it's illegal? The tribe or
the federal courts? Precisely. And in a 7 -1
decision, the Supreme Court ruled against Julian
Martinez. Why? What was the logic? The court's
majority, led by Justice Thurgood Marshall, said
that while Congress passed the ICRA and granted
these rights, it did not explicitly create what's
called a private cause of action in federal court
to enforce them. Can you translate that legal
jargon for us? They basically said, yes, you
have these rights on paper, but the only place
you can go to enforce them is a tribal court.
The Supreme Court held that allowing a tribe
to be sued by its own members in a U .S. federal
court would be a massive intrusion on their sovereignty.
It would undermine their status as self -governing
nations. So they prioritized the sovereignty
of the group over the civil rights of the individual.
They did. They essentially ruled that a tribe
has the sovereign right to define its own identity,
to decide who is and who is not a member, even
if that definition appears discriminatory by
outside American standards. So the federal government
gave with one hand and took away the enforcement
mechanism with the other. They said, here's a
list of your rights, but good luck getting your
tribal council to enforce them if they're the
ones violating them. That is the central paradox
of the ICRA today. It stands as a powerful statement
of values. But because of the Martinez decision,
federal courts will generally not get involved
in internal tribal civil rights disputes. The
tribe's own court system is the final word. It's
a really powerful reminder that sovereignty isn't
just a flag or a name. It's the power to make
your own rules and even the power to be wrong
by someone else's standards. Or, as the tribe
would argue, the power to be different. They
argued that their control over lineage and membership
was essential to their cultural survival. If
the federal government could dictate who's a
member, they would cease to be a distinct people.
Okay, we need to move to the third and final
pillar of this act. the one that deals directly
with the fire and the fury of 1968. We're talking
about Title I and Title X, the hate crimes and
anti -riot provisions. Right. And you have to
see these two sections as the political tradeoff.
This was the law and order meat that was thrown
to the conservative members of Congress to get
them to vote for the fair housing part of the
bill. Let's start with Title I. This created
a new category of federal hate crimes. It did.
It made it a federal crime to injure, intimidate,
or interfere with someone because of their race,
color, religion, or national origin. But, and
this is a key detail, there was a catch. What
was the catch? The victim had to be engaged in
one of a specific list of federally protected
activities at the time of the attack. Okay, so
what's on that list? What counts as a federally
protected activity? Things like voting or campaigning
for a candidate. Attending a public school, applying
for a job, serving on a jury, traveling from
one state to another. Things that have a clear
federal government interest. Exactly. But the
biggest one, the one that covered the most ground
in daily life, was enjoying the goods, services,
or facilities of any place of public accommodation.
So, eating at a diner. Eating at a diner, staying
at a motel, going to a movie theater. So let
me get this straight. If you assault someone
on the street because they're black, That's a
state level crime handled by local police. But
if you assault someone inside a restaurant because
they're black and they're trying to order a sandwich.
That is now a federal felony under the 1968 Civil
Rights Act. You've got it perfectly. That brings
the FBI into the investigation. And that was
the whole point, right, to bypass local law enforcement
in the South that was often unwilling or unable
to prosecute these kinds of crimes. That was
the entire point. It gave the federal government
jurisdiction. Okay, but then we get to Title
X, the Anti -Riot Act. This is the section that
feels like it was written with a laser focus,
directly targeting the people who are protesting
in the streets. It absolutely was. In fact, it
was unofficially known as the H. Rapp Brown Law.
OK, we hear that name a lot in this context.
But who was H. Rapp Brown? So H. Rapp Brown took
over as the chairman of the Student Nonviolent
Coordinating Committee, or SNCC, after Stokely
Carmichael. He was a very prominent and fiery
black power advocate, much more militant in his
rhetoric than someone like Dr. King. And why
was the law named after him? In the summer of
1967, he gave a very inflammatory speech in Cambridge,
Maryland. A riot broke out in the town shortly
after the speech. He was later arrested on federal
charges for carrying a gun across state lines
while he was under indictment for inciting that
riot. And this played right into the dominant
narrative at the time of the... outside agitator.
The perfect narrative. You had southern governors
and big city mayors who loved to claim that their
local black populations were perfectly happy
and content and that all the riots and unrest
were being caused by these outside agitators,
communists, radicals from the north who were
parachuting in just to stir up trouble. So Title
X essentially turned that political narrative
into a federal crime. It did. It made it a felony
to use interstate commerce, which means to travel
or use the mail or the telephone. or a radio
broadcast with the intent to incite, organize,
promote, encourage, or participate in a riot.
That phrase interstate commerce is doing a lot
of heavy lifting in that sentence. It's the hook
that gives the federal government power. And
today, of course, that includes the internet.
If you send a tweet or a Facebook post from one
state to another trying to organize a protest
that turns violent, you are theoretically in
the crosshairs of this law from 1968. But this
seems to run headlong into the First Amendment.
Where do you draw the line between a passionate,
fiery political speech and the crime of incitement?
And that has been the huge legal battleground
ever since. There's a very famous legal standard
from a 1969 Supreme Court case called Brandenburg
v. Ohio. Just a year later. Just a year later.
And the Brandenburg test says you can't punish
inflammatory speech unless it is directed to
inciting imminent lawless action and is likely
to produce such action. Can you break that down?
So standing on a stage and saying we need a revolution,
we should burn this corrupt system down eventually
is generally protected speech. OK. But pointing
to it. specific building and saying, let's go
burn that courthouse down right now is incitement.
It's the difference between advocating and an
abstract idea and inciting an imminent specific
crime. And the courts have had to apply that
standard to the Anti -Riot Act. They have, and
it's been a struggle. In fact, very recently,
in 2020 and 2021, two different federal courts
of appeals, the Fourth Circuit and the Ninth
Circuit, actually struck down parts of this law
as unconstitutional. Really? Which parts? They
looked at the list of verbs in the statute. One
of them was to urge a riot. And the court said,
no, the word urge is too vague. It's too close
to constitutionally protected political advocacy.
So they struck down the part of the law that
banned urging a riot. But they kept the other
parts. They did. They upheld the bans on inciting,
organizing, and participating. So if you're a
protest organizer today, you have to be very
careful with your verbs. And this law isn't just
a historical artifact. It's still being used.
Oh, absolutely. Federal prosecutors used it against
some of the protesters during the widespread
demonstrations. in 2020 after the murder of George
Floyd, it is still a very live wire in American
law. OK, so let's zoom out. We have this massive,
complicated document. It opened up the suburbs
with Title VIII. It applied a modified Bill of
Rights to Native American tribes with the ICRA.
And it criminalized the very riots that helped
get it passed with Title X. 50 plus years later,
what's the legacy? Did it work? It's such a mixed
bag. And you almost have to evaluate each part
separately. So let's start with housing. That's
the part people know best. On one level, it was
a profound success. It officially ended the era
of legal overt housing discrimination. Those
whites only signs came down. You could no longer
run a classified ad that said no Jews. That world
is gone. And that is a direct result of this
law. But the weak link has always been enforcement.
Because the government doesn't have an army of
inspectors checking every single lease application
in the country. Exactly. The system relies heavily
on what lawyers call private attorneys general.
The law is designed for individual victims of
discrimination to go out, hire their own lawyers
and sue the landlord or the real estate company.
It creates a private solution to a huge public
problem. And that assumes the victim knows their
rights, has the time and the emotional energy
to pursue a lawsuit. And has the money to hire
a lawyer, though the 1988 amendments did help
by allowing successful plaintiffs to recover
their attorney's fees. But just look at the raw
numbers. HUD itself estimates that there are
around 2 million instances of housing discrimination
every single year in America. The National Fair
Housing Alliance, a private group, puts the number
closer to 4 million. 4 million. And how many
of those actually result in a formal complaint?
A tiny, tiny fraction, maybe 25 ,000 or 30 ,000
a year. Because the discrimination isn't overt
anymore. It's what people call smile discrimination.
That's the perfect term for it. The landlord
smiles, shakes your hand, seems very friendly,
and then says, oh, I'm so sorry, we just rented
that unit 10 minutes ago. How do you prove that
was a lie based on your race without going through
the trouble of hiring testers to check your story?
For most people, you can't. And there's an even
deeper, more systemic critique of the law's success,
right? That even if you get the apartment. Exactly.
Housing advocates like Elizabeth Julian and Michael
Daniel have made this point very powerfully.
They say the act focuses on achieving a unitary
housing market where money is the only barrier.
But that's not enough. What do they mean? So
let's say the law successfully stops a landlord
from denying you an apartment because of your
race. But the landlord is still allowed to deny
you because you have a low credit score or a
minor criminal record from your youth. And if
historical and systemic factors have made it
more likely for certain racial groups to have
lower credit scores or a criminal record. Then
you've just laundered the discrimination through
a seemingly neutral objective spreadsheet. You
haven't solved the problem. You've just changed
its name. Precisely. And they make another point.
Opening the door to a neighborhood doesn't fix
the neighborhood itself. If a low income minority
family uses a housing voucher to move into a
certain area, but that area has crumbling schools,
lead pipes, no grocery stores and high crime
rates. Well, the Fair Housing Act didn't cause
those problems, but it didn't solve them either.
It just gave you equal access to a disadvantaged
place. Before we wrap this all up, there was
one small, almost poetic detail that you found
buried in the text of the law that I wanted you
to share. Yeah, this is a real deep cut. It's
in Title VII, right in the middle. of the Indian
Civil Rights Act. And it's just this one sentence
where Congress officially recognizes the centennial
of the 1868 Treaty of Peace between the Navajo
tribe and the United States. A hundred years.
1868 to 1968. And you have to know what that
1868 treaty was. That was the treaty that allowed
the Navajo people to return to their ancestral
homeland after the Long Walk, which was their
forced removal and exile by the U .S. Army, a
brutal traumatic event in their history. And
exactly 100 years later, Congress is passing
this law. It's this moment where the timeline
just folds in on itself. You see this hundred
year arc from forced exile to a treaty recognizing
their homeland to a federal law in 1968 that's
trying to redefine what their sovereignty even
means. It really shows you that history isn't
a straight line. It's a circle. It's a cycle.
And we are all still living inside that cycle.
So that's the Civil Rights Act of 1968. It's
so much more than just a housing law. It's really
a snapshot of a nation at a breaking point in
April of 1968. A nation that was terrified of
riots, grieving a martyr, trying to fix the suburbs,
and trying to figure out its relationship with
native nations all in one chaotic, contradictory
document. It's a legislative Swiss army knife
forged in a fire that we are still pulling out
and using every single day whether we realize
it or not. And so here's a final provocative
thought for you to chew on as we finish. The
act was designed to stop individual acts of discrimination.
A landlord saying, I won't rent to you because
of your race. But it wasn't really designed to
fix the systemic inequality that made you more
likely to have bad credit in the first place.
It treats the symptom, not the disease. So the
question is, if we achieve a world where everyone
has an equal opportunity to rent an apartment,
but we still have vast historically driven inequality
in the ability to pay that rent, is that justice?
Or is that just capitalism working with perfect,
brutal efficiency? That is the question that
the law itself can't answer. That's the one that's
left for us to figure out. Something to think
about the next time you walk through your own
neighborhood and consider how it came to be.
Thanks for joining us for this deep dive. We'll
see you next time.