“Fair Housing Act”: The Next Assault On Civil Rights
Last Thursday the Supreme Court agreed to hear arguments in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The case concerns the “disparate impact” rule, a legal guideline embedded in the 1968 Fair Housing Act that says discrimination doesn’t have to be intentional to be discrimination. This rule has been at the bedrock of fair-housing enforcement for more than four decades.
Another way to understand disparate impact is this: It’s a way to confront the realities of racial inequality without trying to prove the motivations of an institution, organization, or landlord. In housing especially, it’s rare to get someone as explicit about his discrimination as Donald Sterling. More often, you must look for patterns of unequal results or unfair treatment that stem from “objective” or “neutral” criteria.
In United States v. Wells Fargo, for example, the Department of Justice sued the mortgage lender over its role in the subprime market. According to the suit, Wells Fargo brokers raised interest rates and fees for more than 30,000 minority customers, and encouraged black and Hispanic homeowners to take subprime loans even if they qualified for traditional financing. We don’t know if malice drove this policy, but under disparate impact guidelines, it doesn’t matter: The government can show concrete harm and act accordingly.
This is an expansive power, but given our history, also a necessary one. We built our housing markets on a structure of discrimination, from bias in lending and state-sanctioned segregation to exclusionary zoning and active attacks on minority homeownership. To fix this, you can’t just ban discrimination, you need a countervailing force; otherwise, inequality would reproduce itself.
Beyond this, there’s the simple fact that racial bias is still alive in vast areas of American life, and it’s a fool’s errand to root out racists—most people who discriminate are too smart to broadcast their prejudice. Disparate impact—backed by both courts and the present administration—is a vital tool in fighting these battles.
But it’s also controversial, with opponents who see it as subversive to equal protection. “Instead of promoting equal protection under the law,” wrote Ammon Simon for National Review in 2012, disparate impact “grasps at ‘ensuring equal results,’ treating people like depersonalized ‘components of a racial, religious, sexual or national class.’ ” Likewise, in his concurrence in Ricci v. DeStefano—an affirmative action case—Justice Antonin Scalia swings at the doctrine, calling disparate impact provisions in employment practices a “racial thumb on the scales” that forces discriminatory “racial decisionmaking.”
Scalia and the conservative bloc of the Supreme Court are hostile to almost all race-conscious policies—from affirmative action (which Justice Clarence Thomas once compared to segregation) to important parts of the Voting Rights Act—and want to end disparate impact as a federal tool. Last year they almost had a chance; a group of New Jersey residents challenged disparate impact in Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., a fight over a neighborhood revitalization plan that plaintiffs claimed would dislocate and disproportionately harm minority residents. But the case was settled before it could reach the high court.
With the latest case, a settlement is unlikely. The court will hear disparate impact, and most likely—following Chief Justice John Roberts’ infamous declaration that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—end it.
It’s hard to overstate the magnitude of such a decision. In the last decade, with Roberts at the forefront, the Supreme Court has chipped away at the major provisions and policies of the civil rights era. With Parents Involved in Community Schools v. Seattle School District No. 1 in 2007, the Roberts court struck down voluntary integration efforts in Seattle; with Shelby County v. Holder, it struck down the preclearance formula for the Voting Rights Act, gutting the law and opening the door to voter suppression; and with Schuette v. BAMN, it gave Michigan voters free rein to block affirmative action through constitutional amendment. At the moment, it’s poised to uphold strict voter identification laws and—if the opportunity presents itself—strike at the core provisions of the VRA.
There’s a reason Justice Sonia Sotomayor swiped at Roberts in her now-famous Schuette dissent—the chief justice has launched an astounding assault on civil rights law that promises huge consequences for efforts against racial inequality. And indeed, Roberts is joined by a whole host of right-wing legislators and conservative intellectuals—perched at think tanks like the Heritage Foundation and the misnamed Center for Equal Opportunity—all united in a “colorblind” vision of American life that doesn’t see a public role for fighting racial inequality, and often holds it as overstated or attributable to “culture,” not the accumulated effects of past discrimination.
What’s interesting is the degree to which this isn’t new. In fact, it sits parallel to our past, where large gains for minorities—and blacks in particular—sit flush with setbacks and challenges.
We don’t think of it this way in the popular imagination, but the United States had two periods of “Reconstruction.” The first came after emancipation, when freed slaves worked in alliance with sympathetic whites to rebuild the South and forge a new path after the Civil War. But weakened by President Andrew Johnson, it never came to fruition. Instead, it was destroyed by ex-Confederates who terrorized the South with violence and drove blacks out of political life. With the Democratic Party as their vehicle, these “Redeemers” would set the stage for Jim Crow, convict leasing, and the march of horrors that marked black life for the next century.
The Second Reconstruction was the civil rights movement, and—as historian Eric Foner writes in his magisterial book on the first Reconstruction, it marks a time when “the nation again attempted to come to terms with the implications of emancipation and the political and social agenda of Reconstruction.”
Where the first Reconstruction had politicians, the second had preachers (and later, again, politicians). And where the first gave us a new Constitution—through the 13th, 14th, and 15th amendments—the second gave force to their provisions, through the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. It’s these laws—and the court cases that followed—that dismantled Jim Crow and integrated blacks into American political life.
Outside the far, far fringes of American life, there’s no challenge to that inclusion. But as we see with large parts of the Republican Party—including today’s conservatives on the Supreme Court—there is a challenge to the race-conscious policies and measures we use to protect and secure the political participation of blacks and other minorities.
This attack has far more to do with partisan advantage than any racial animus—as Texas Attorney General Greg Abbott explained in his defense of the state’s voter ID law, the goal is to limit Democrats, not minorities. Still, the effect is the same: applying new state limits on participation that have their largest impact on minorities, with shrinking protection from the federal government.
In his 1883 ruling against the 1875 Civil Rights Act—which prohibited black exclusion from jury service and guaranteed equal treatment in public accommodations, public transportation—Justice Joseph P. Bradley took a stand that should sound familiar to contemporary opponents of so-called racial entitlements:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.
Replace “slavery” with “Jim Crow” and you have the popular conservative view of race and Constitution. And small setbacks aside, that view is on the march, with its crosshairs aimed at disparate impact and the Fair Housing Act.
Put another way, if the civil rights movement was Second Reconstruction, then—if we need a name for today’s push against its key measures—you could do worse than the Second Redemption.
By: Jamelle Bouie, Slate, October 10, 2014
“Clever Assaults On The Right To Vote”: Restrictive Voting Laws Deserve Justice Department Scrutiny
In certain circles, it has become fashionable to believe that the Voting Rights Act is an outdated vestige of a crueler time, an unnecessary bit of bureaucracy that imposes its own injustices. Last year, the U.S. Supreme Court endorsed that view when it threw out one of the act’s more powerful provisions.
Those who believe that the Voting Rights Act is an artifact of a bygone era eagerly point out that the nation has elected its first black president — proof, they say, that racism is dead. In that view, the right to vote is guaranteed and each person is equally represented in the political system of this great democracy.
Eric Holder, the outgoing attorney general, knew better. He understood that the right to vote is under assault, and he did what he could to protect it, starting with a rehabilitation of the Civil Rights Division, which had fallen into dysfunction in the administration of George W. Bush. That may be Holder’s defining accomplishment.
During the Bush era, conservative partisans launched the most insidious onslaught against minority voting rights since the 1960s: the voter ID movement. Claiming, falsely, that the ballot needs more protection against fraud, they promoted restrictive voting laws in state legislatures around the country. Those partisans had their own agents within the Civil Rights Division, where they worked to ensure that dubious voter ID laws would not undergo any scrutiny.
Their mischief making has largely succeeded, not only in disenfranchising legitimate voters, but also in fooling the public about their intent. Polls show overwhelming support for laws that supposedly protect against fraud.
But make no mistake about it: Voter ID laws have next to nothing to do with protecting the ballot box. Instead, they are a relatively clever assault on the right to vote. As the nation has become browner, the GOP has found that neither its politicians nor its policies are popular among voters of color. So, rather than adopt a more inclusive brand of politics, the party has decided that denying the franchise to even a few hundred Democratic-leaning voters can be useful.
How do they accomplish that? Most of the state legislatures that have enacted such laws — and most of those are dominated by Republicans — have insisted that voters use a driver’s license as proof of identity. Research has shown that poor black and Latino voters, who usually vote for Democrats, are less likely to have automobiles than white voters.
Some elderly voters don’t even have birth certificates because they were born at home in an era when such documents were not required for daily life. In Texas, for example, voting rights groups say some rural residents would have to travel 100 miles to get proper documents.
But isn’t this necessary to prevent voter fraud? In fact, research has also shown that in-person fraud of the sort that voter ID laws are designed to prevent is virtually nonexistent. No matter what you’ve heard about voter fraud, you’ve probably not heard of a case of voter impersonation. In other words, no one shows up at the polls claiming to be John Boehner except John Boehner.
With that in mind, Holder entered the fray, sending Justice Department lawyers to challenge onerous voting requirements, including provisions in some states that sought to roll back conveniences such as early voting. They mounted successful challenges in Texas, South Carolina and Florida.
Even after the Supreme Court gutted the VRA, the Justice Department has kept up the good fight. It has filed suit against a restrictive law in North Carolina and joined lawsuits in Ohio and Wisconsin. Ultimately, some of those cases will likely end up before the nation’s highest court — and many civil rights lawyers are predicting the worst. A Supreme Court that doesn’t mind showing its partisan stripes could effectively abolish the Voting Rights Act.
But that will only make the work of the Civil Rights Division more important, not less. Here’s hoping that Holder’s successor is up to the job.
By: Cynthia Tucker, The National Memo, October 4, 2014
“Obligations To Justice”: Eric Holder And Robert F. Kennedy’s Legacy
When he announced his leave-taking last week, Attorney General Eric Holder spoke of Robert F. Kennedy as his inspiration for believing that the Justice Department “can — and must — always be a force for that which is right.”
There are many reasons our nation’s first African American attorney general might see Kennedy as his guide, but this one may be the most important: If ever a public figure was exempt from Holder’s much contested depiction of our country as a “nation of cowards” on race, it was RFK, a man who was in constant struggle with his demons and his conscience.
Few white men were as searing as Kennedy in describing how the world looked to a young black man in the late 1960s. “He is told that the Negro is making progress,” Kennedy wrote, following the racial etiquette of his time. “But what does that mean to him? He cannot experience the progress of others, nor should we seriously expect him to feel grateful because he is no longer a slave, or because he can vote or eat at some lunch counters.”
“How overwhelming must be the frustration of this young man — this young American,” Kennedy continued, “who, desperately wanting to believe and half believing, finds himself locked in the slums, his education second-rate, unable to get a job, confronted by the open prejudice and subtle hostilities of a white world, and seemingly powerless to change his condition or shape his future.”
Yet Kennedy was never one to let individuals escape responsibility for their own fates. So he also spoke of others who would tell this young black man “to work his way up, as other minorities have done; and so he must. For he knows, and we know, that only by his efforts and his own labor will the Negro come to full equality.”
Holder and his friend President Obama have lived both halves of Kennedy’s parable. Like social reformers in every time, they strived to balance their own determination to succeed with their obligations to justice. Doing this is never easy. It can’t be.
Kennedy was not alone among Americans in being tormented by how much racism has scarred our national story. That’s why I was one of many who bristled back in 2009 when Holder called us all cowards. For all our flaws, few nations have faced up to a history of racial subjugation as regularly and comprehensively as we have. And Holder and Obama have both testified to our progress.
Yet rereading Kennedy is to understand why Holder spoke as he did. That the young man Kennedy described is still so present and recognizable tells us that complacency remains a subtle but corrosive sin. One of Holder’s finest hours as attorney general was his visit to Ferguson, Mo., after the killing of Michael Brown. Many young black men still fear they will be shot, a sign that the “open prejudice and subtle hostilities of a white world” have not gone away. We have moved forward, yet we still must overcome.
Holder leaves two big legacies in this area from which his successors must not turn away. In the face of a regressive Supreme Court decision gutting the Voting Rights Act, he has found other ways to press against renewed efforts to disenfranchise minority voters. And it is a beacon of hope that sentencing reform and over-incarceration, central Holder concerns, are matters now engaging conservatives, libertarians and liberals alike.
The New York Times’ Matt Apuzzo captured the irony of Holder’s tenure with the observation that his time as attorney general “is unique in that his biggest supporters are also among his loudest critics.” Many progressives have been troubled by his record on civil liberties in the battle against terrorism, his aggressive pursuit of journalists’ e-mails and phone records in leak investigations, and his reluctance to prosecute individual Wall Street malefactors.
That these issues will long be debated is a reminder that Holder was first a lawyer and public servant, most of whose work had nothing to do with race. That he singled out Kennedy as his hero shows that none of us need be imprisoned by race. That Holder cajoled and provoked us on the need “to confront our racial past, and our racial present” is itself an achievement that transcends the color line.
Kennedy, who spoke of those who braved “the disapproval of their fellows, the censure of their colleagues, the wrath of their society,” would understand the risks that Holder ran.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, September 29, 2014
“Why Bigotry Persists”: The Neanderthals Among Us Are Getting Better At Camouflaging Their Prejudices
Soon after Barack Obama’s electoral victory in 2008, conservatives began depicting the event as a triumph of cosmopolitan and secular intellectuals, people of color, liberal pieties, and “socialist” hopes. Grassroots organizing accompanied an agenda of legislative sabotage led by the Republican congressional hierarchy. Media demagogues stoked the flames of resentment. President Obama was mockingly called “The One” and excoriated as an Arab, an imam, even the Antichrist. Posters identified him with Hitler, placed his head on the body of a chimpanzee, implied that he was a crack addict, portrayed him with a bone through his nose, and showed the White House lawn lined with rows of watermelons. Six years later, the fury has hardly subsided: Thousands of young people check on racist websites like Stormfront every month, anti-Semitism is again becoming fashionable, Islamophobia is rampant, and conservative politicians are suing President Obama in the courts for his supposed abuse of power while their more radical supporters are labeling him a traitor.
Most of these people don’t see themselves as bigots. They long to reinstate the “real” America perhaps best depicted in old television shows like Father Knows Best and Leave It to Beaver. This completely imaginary America was orderly and prosperous. Women were happily in the kitchen; gays were in the closet; and blacks knew their place. But this world (inexplicably!) came under attack from just these (ungrateful!) groups thereby creating resentment especially among white males on the political right. They feel persecuted and wish to roll back time. Their counterattack is based on advocating policies that would hinder same-sex marriage, champion the insertion of “Christian” values into public life, deny funds for women’s health and abortion clinics, cut government policies targeting the inner cities, protect a new prison network inhabited largely by people of color, eliminate limits on campaign spending, and increase voting restrictions that would effectively disenfranchise hundreds of thousands of disadvantaged citizens.
Neanderthals still exist along with blatant examples of old-style prejudice and hatred. But the bigot is adapting to a new world. The bigot now employs camouflage in translating his prejudices into reality. To forestall criticism, he now makes use of supposedly “color-blind” economic and anti-crime policies, liberal notions of tolerance, individualism, the entrepreneurial spirit, local government, historical traditions, patriotism, and fears of nonexistent voter fraud to maintain the integrity of the electoral process. The bigot today is often unaware either that he has prejudices or that he is indulging them.
Unfortunately, popular understandings of the bigot remain anchored in an earlier time. His critics tend to highlight the personal rather than the political, crude language and sensational acts rather than mundane legislation and complicated policy decisions. Many are unwilling to admit that bigotry has entered the mainstream. It is more comforting to associate bigotry with certain attitudes supposedly on the fringes of public life. Words wound but policies wound even more. Everyday citizens grow incensed when some commentator lets slip a racist or politically incorrect phrase. But they are far more tolerant when faced with policies that blatantly disadvantage or attack the bigot’s traditional targets whose inferiority is still identified with fixed and immutable traits: gays, immigrants, people of color, and women.
Reactionary movements and conservative parties have provided a congenial home for true believers, provincial chauvinists, and elitists of an aristocratic or populist bent. Not exclusively: Liberals and socialists—though usually with a guilty conscience—have also occasionally endorsed imperialism, nationalism, racism, and the politics of bigotry. But while the connection between right-wing politics and bigotry does not hold true in every instance, it is true most of the time. It is certainly true today. Ideologues of the Tea Party provide legitimacy and refuge for advocates of intolerance while the GOP provides legitimacy and refuge for the Tea Party.
Not every bigot is a conservative and not every conservative is a bigot. Yet they converge in supporting an agenda that aims to constrict intellectual debate, social pluralism, economic equality, and democratic participation. Either the bigot or the conservative can insist that his efforts to shrink the welfare state are motivated solely by a concern with maximizing individual responsibility; either can claim that his opposition to gay rights is simply a defense of traditional values; and either can argue that increasing the barriers to voting is required to guarantee fair elections. Whatever they subjectively believe, however, their agenda objectively disadvantages gays, immigrants, women, and people of color.
Reasonable people can disagree about this or that policy as it applies to any of these groups. Any policy, progressive or not, can be criticized in good faith. But ethical suspicions arise when an entire agenda is directed against the ensemble of what President Reagan derisively termed “special interests.” No conservative political organization today has majority support from women, the gay community, or people of color. There must be a reason. It cannot simply be that the conservative “message” has not been heard; that members of these groups are overwhelmingly parasitical and awaiting their overly generous government “handouts;” or that so-called special interests are incapable of appreciating what is in their interest. A more plausible explanation, I think, is that those who are still targets of prejudice and discrimination have little reason to trust conservatism’s political advocates.
Is the conservative a bigot? It depends. Is the particular conservative intent upon defending traditions simply because they exist, supporting community values even if they are discriminatory; and treating political participation as a privilege rather than a right? Critics of the bigot should begin placing a bit less emphasis on what he says or feels than what he actually does. That conservative can always rationalize his actions—platitudes come cheap. But then perhaps, one day, he will find himself looking in the mirror and (who knows?) the bigot might just be staring back.
By: Stephen Eric Bronner, Distinguished Professor of Political Science at Rutgers University; The Daily Beast, September 28, 2014
“The Usual Sorry For Your Loss”: Ferguson Police Chief’s Sad Excuse For An Apology
It took four hours for the police in Ferguson, Mo., to remove the body of Michael Brown, the unarmed teenager killed by a police officer, from the street where it lay. It took the police chief nearly seven weeks to issue an apology to Mr. Brown’s family. His videotaped comment was late, oddly staged and very unclear about what exactly he was apologizing for and why (apart from perhaps a desire to keep his job).
The videotape (http://nyti.ms/1BceEnw) by the police chief, Thomas Jackson, was bizarre in many ways. Appearing before an American flag and what looks like a city flag of Ferguson, he was not just in plain clothes instead of his uniform but he was wearing a golf shirt.
He started by talking about how the shooting of Michael Brown had sparked a national “conversation” about race and the role of the police “in that conversation.” Well, no. It sparked angry protests that were met by police armed to the teeth with automatic weapons, armored vehicles and tear gas. It sparked some rioting and looting. And it sparked outrage among African Americans around the country and not just in Ferguson, a suburb of St. Louis that is heavily black but has a town government and police force that is almost entirely white.
If that is Mr. Jackson’s idea of a conversation, I’d hate to see his idea of an argument.
Mr. Jackson allowed that Mr. Brown’s death was “the central issue that brought us here today.” And he said to the slain teenager’s family: “I’m truly sorry for the loss of your son. I’m also sorry that it took so long to remove Michael from the street.”
Please note: He’s not apologizing for the actual killing of Mr. Brown. He’s just offering the usual “sorry for your loss” that police offer people whose loved ones are killed – say in an automobile crash. And as for his apology for the four-hour delay in which the boy’s body lay on the street, that seemed pretty conditional too.
“The time that it took involved very important work on the part of investigators who were trying to collect evidence,” he said, adding that the investigators “meant no disrespect” and were “simply trying to do their jobs.”
He then apologized — actually seeming sort of sincere about it — to “peaceful protesters who did not feel I did enough to protect their constitutional right to protest.”
But it was not that you did not do enough to protect that right, Mr. Jackson, but you sent your small-town trained, big-war equipped cops out to deny them that right with the threat of deadly force.
As I said, I’m not sure why Mr. Jackson made this video. But it’s far too late, far too confused and far too self-serving to matter a whole lot.
By: Andrew Rosenthal, Taking Note, The Editorial Page Editors Blog; The New York Times, September 26, 2014
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