August 2015 – Peter Marcuse's Blog

From the Just City to the Ideal City: Theory and Practice – Blog #73

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[This is the text prepared for the concluding plenary session of the conference: “The Ideal City: Myth and Reality” of RC21 of the International Sociological Association in Urbano, Italy, in August 2015. Please take as a draft.]

The name of the conference is The Ideal City, and our concluding panel asks, Is the Ideal City a Just City?

That raises two questions:

What actually is the ideal city to begin with, and is it the same as the Just City, or how different?.
And what is the purpose of talking about it? Why are we all here, anyway?

On the first, What is the Ideal city, and is it just a Just City?

The Ideal City should certainly be a just city but I don’t think that is enough. I think achieving justice is a step on the road to the Ideal City, but not the ultimate destination of that road. Justice is essentially a distributive concept, one that calls for the distribution of goods and services according to principles of justice, however justice is defined: as fairness, as equitable, as serving a;; its residents all its resident equally. Justice means, , in the expanded version that I think you , Susan, use it, also means a just distribution of power. So the call for a Just City is a call for a fair redistribution of power, and that is a necessity for any further change in the direction of what we might consider the ideal city. The call for the Just city is necessarily a critique of the city as it now exists, a confession – or an accusation – tha it is unjust, and needs o be changed. But to what? Is a fair distribution of goods and services really all we want of urban life? Or do we also want a city that expands the capabilities of its residents, that promotes their development, which encourages peaceful and supportive interactions among them, which handles the processes of production as well as of distribution and makes work a desirable and fulfilling part of life? Might not the definition of the ideal City be something like a caring city, a city of solidarity, a city of peace and of beauty?

So one advantage of the Just City concept is that it calls attention to the injustice of the existing city, and proposes a redistribution of power that would improve the situation. Implicitly it raises the question of whether the ideal city requires not just an improvement of the conditions of life of the poor, but also a reduction in the hierarchically-gained advantages of the rich. Perhaps unjustly to the rich? Do we really want a city that is just to all, the perps as well as the victims of the existing system?

But – and this is my second question – how can power be redistributed without struggle , and in that struggle, what role does the idea of an Ideal City, or of a Just City, or of a Caring City, play? Indeed, what role do ideas play in struggles for power anyway? I assume that all of us here would acknowledge the desirability of justice, caring, equity, beauty, in cities, and feel some obligation to bring such a city closer to realization. We haven’t come all this way to Urbino (although it a pleasure indeed to be here, and worth coming just for that sake), but we want to do something more, I think, than solve the problem of imagining the Ideal City as if it were a problem like a crossword puzzle or an exercise in logic.

But we also know that ideas are usually weak weapons in struggles over the distribution of goods and services, and certainly in struggles over the distribution of power. Will developing the idea, or even the image, of the ideal city help in that struggle , will it excite urbanites to action, perhaps to revolt, and produce serious change? Are we here simply to enjoy each other’s company, play with ideas, get t meeting different people worth knowing, to publish something we hone here, perhaps, and then go home satisfied that we have done what a good citizen morally ought to be doing? Or is it even possible that developing the Ideal City, as something necessarily remote, hard even to imagine, hardly realistically possible in the real world, is a chimera, and may get in the way of really accomplishing something tangible, something that on the ground will make a difference, something that will produce nothing but papers at conferences and the smiles on the faces of the holders of those who, unlike we academics and thinkers, have the real power?

So the two questions:

Beyond Justice, what do we really want an Ideal City to be? Do we just want a Just City?

And

If we want Justice and even more, how does developing the idea of the Just City and beyond it the Ideal City, help in the struggle to actualize what we have talked about; how, if at all, does it help in the struggles for a better world, of which it must be a part?

I think the answer might lie hidden right in front of us, in an imaginary conversation between David Harvey, Susan Fainstein, and Herbert Marcuse, which I would be happy to conduct. It would be based entirely on passages from recently published works, starting with Susan Fainstein’s Introduction to Just City:

Harvey (as quoted in her intro to the Just City, p. 6: [Susan, your] conception of the Just City falters. From the start, it delimits its scope to acting within the existing capitalist régime of rights and freedoms and is thus constrained to mitigating the worst outcomes at the margins of an unjust system. [1]

Fainstein: (from Intro, p. 6): This critique is accurate in accusing me of accepting that urban policy making will continue within the “capitalist régime of rights and freedoms,”[but] my analysis is limited to what appears feasible within the present context of capitalist urbanization in wealthy, formally democratic, Western countries.

To which I would reply: But Susan, why limit your analysis this way. If you were to always start with what is feasible , but then extend it to a more theoretical discussion of what further would be necessary to bring about the ideal, to move from your feasible just City to the even more desirable but less immediately feasible Ideal City, would you not convert immediate demands into transformative demands, using each one of your recommendations both to achieve immediate improvements but also show the way to what more is necessary, what the next steps would be to transform what is feasible to day to hat is necessary the day after.

To which my father would add (In recently published lectures a Vincennes outside Paris in 1976.): and that is exactly the role of theory is in the Marxist dialectic .Theory is part of practice, not independent of it, not wishful thinking about it, but based on practice theory is avant-guard, educating and leading, showing the alternative lying underneath the immediately visible and feasible.

His discussion came about in response to the slogan of the militant students of Paris, who took to the streets in May 1968 in protest against what David Harvey has summarized as the discontent with capitalism –perhaps the last time in recent memory that there was actually thought of a radical seven revolutionary success in the struggle against capitalism and for socialism, and heir slogan, on picket signs carried through the streets of Paris blocking traffic and causing disruption generally, was : ALL POWER TO THE IMAGINATION.” The meant specifically, the imagination of what a better world might be like, what today we mean, I hope, when we talk, in somewhat more subdued tones, of the Ideal City.

So I would conclude, in memory of those students but in today’s world, but with a raised fist:

ALL POWER TO THE IMAGINATION, IN BOTH THEORY AND PRACTICE,

FOR A DIFFERENT AND MORE IDEAL WORLD TODAY.

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[1] (Harvey with Potter 2009, 46)

Blog #71 – Fair Housing – Remedies and Solutions

Fair Housing – Remedies and Solutions

This Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies, and then some principles for real solutions.

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Turning to remedies and solutions, one way of looking at the reasons to be restrained in celebrating the Court’s decision and the new Affirmatively Furthering Fair Housing Regulation is to ask the question:

“If the Federal government itself were obligated by law to do everything within its legal power to affirmatively further fair housing, what would it be doing?”

There are some immediately available and known policies that could be of substantial help.

They are immediately practicable ideas that might be politically viable even today.

They include, just for instance:

closing the loopholes in the new Affirmatively Furthering Fair Housing Regulation,
requiring a fair housing impact statement analogous to an environmental impact statement for all actions affecting housing provision;
a housing speculation provision in the income tax law denying capital gains treatment or imposing progressively steeper taxes on profits from speculation in land ;
expansion of public housing, housing directly and permanently owned by government, with increased roles for tenant participation in management;
a federal housing trust fund, available to provide subsidies for location actions necessary to prepare and implement fair housing plans;
legislative endorsement of the various Declarations of Rights of the UN;
model local legislation on building codes, affordability, zoning, tax policies, eviction policies, comprehensive planning;
Specific financial and technical support for the preparation of comprehensive local master plans covering land use and the key sectors of public engagement,^[1]

[1] The new AFFH Regulations already contain provisions for such assistance, but are focused on data provision and analysis, not a comprehensive planning process.

But these are remedies; they operate in a situation in which discrimination in housing is recognized as part of the existing landscape. To be effective, however, such actions need to be based on a recognition of the causes of that situation, and incorporate specific substantive prnciples so that they do not become simply empty paper-work bureaucratic requirements. The next Blog, E. suggests what such further action, looking to solutions rather than just remedies, might look like.

To be effective, however, such actions need to be based on specific substantive principles so that they do not become simply empty paper-work bureaucratic requirements.

At least ten concrete principles could address the six weaknesses of the present court decision and governmental regulations:

Close the loopholes in the law and the regulations and the Supreme Court decision that leave open to undesired interpretation terms such as “adverse,” “disproportionate ,” “legitimate purpose,” “reasonable alternative,” “racial” and “ethnic,” etc. Perhaps a blanket provision stating the constitutional priority to be given to the goal of eliminating discrimination in housing might suffice.
Recognize the unjust and discriminatory way in which the housing system as a whole now operates, face up to the limitations of the private market as the mechanism for determining land uses and more broadly the direction of urban development, as matters of fundamental public policy., limiting the perks of private property[2] standing in the way of the development of alternatives.

Apply the standard used in defining fair housing, and the consequent affirmative obligations of government, to the other major policy areas involved in urban life, acting in recognition of the intersectionality of housing, education, environmental quality, accessibility, aesthetics, economic development, health care, security, the administration of justice, campaign financing, electoral procedures, essentially all sectors that ought to be under public control in a democracy.

Plan comprehensively, re-examining and expanding on the tradition of master planning and the experience in making such planning participatory and democratic. Intersectionality might suggest separate “sections” interacting; the reality is that each “section” is from the beginning entwined with all others from the beginning, and they should be planned jointly, not separately.

Provide the funds to implement fair housing goals. If the major problem creating unfair housing is the inequality of wealth and income, we have the power at least to ameliorate its consequences by redistributing some of that wealth and income, and the tax code is can be a major way to do that. By taxing at the top, with a steeply progressive tax system perhaps in this case focusing on income and wealth created within the housing system and redistributing the proceeds, perhaps through a targeted federal Low Income Housing Trust, adequately funding programs such as public housing which permanently take housing out of the profit -driven housing market, could go vastly further than it has – perhaps from 3% of all housing to 30-70%, in spirit from the 1% to the 99%.

Use the tax code to attack directly the maldistribution within the housing sector at its source by confiscatory taxation of speculative profit in the buying and selling of land and interests in land, monopoly profits from the ownership and management of housing, steeply progressive real property taxation of megahomes and ultra-luxury apartments.

Power must be explicitly taken into consideration. Given the obvious pre-existing inequalities in wealth and political, only exacerbated by the Communities United decision, any remedy for local governmental action must deal with the relations of power of the various groups involved, and minorities will generally , in the large picture , be near the bottom of the totem pole. If the undiluted warm welcome given the new Regulation is to be earned, the actions of the Federal government under the provisions of the FHA must deal with the distribution of power. It must be clear that the Federal government is indeed interfering in local matters, is indeed imposing standards of conduct meeting national priorities and national values. Indeed local input is vital, and necessary for effective implementation, but Federal rules must govern. Choices among decisions not contradicting the intent of the Federal law should indeed be left as fully local as reasonably possible, but it is entirely consistent with the distribution of powers among branches of government in the Constitution that issue of national concern, such as the full implementation of the 14^th and 15^th Amendments, be in the hands of the Federal government.

Recognize and welcome as positive the dominant role of the Federal government in setting the guidelines for how housing should be produced, financed, managed, located, and distributed, and enforce those guidelines aggressively. Local discretion (but not autonomy.) is desirable within the framework of national if not global principles, e.g. an enforceable Declaration of Human Rights in Housing.[3]

Spell out, in theory and as implementable guides to practice, what values are intended to be covered by the general concepts of “fair”. Concepts such as justice, democracy, equity, diversity, growth, and sustainability are clearly involved, but their meaning and applicability to action public actions needs to be publicly debated and become ever present considerations in public and private actions.[4]

Require social justice impact statement of all public actions affecting housing and land use, learning from the environmental movement the possibilities of having such statements, as well as an awareness of their limitations with enforcement measures behind them

These nine actions could virtually constitute an agenda for future fair housing and civil rights activity.

Such actions are recognizably not on the immediate political agenda of any social movement, political party, or advocacy group. They sound very theoretical and very idealistic, whether that term is used pejoratively or literally.

But these are actually radical proposals, if their implications are thought through. They call into question fundamental assumptions and values taken for granted in capitalist society, such as the sacrosanct rights of private property, the importance of growth, especially measured in economic terms, as a priority for governmental action, the profit motive as the most effective vehicle for securing efficiency in production and service provision, , the desirability of the market as a mechanism for the allocation of housing or any of the necessities of civilized life, the meaning of equality in the satisfaction of needs.

In Andre Gorz’s phrase, there are reformist reforms and non-reformist reforms. These are reformist reforms; the six concrete principles suggested before them tend towards non-reformist reforms. Even more radical reforms, such as public ownership of all land, income based on need, work based on ability, government based on direct democracy, while perhaps still theoretically attractive, are hardly imaginable in countries such as the United States today.

Making the transition from principles to practice, from reforms to non-reformist reforms , is a major challenge to those critical of the status quo, and goes beyond the discussion here. But one simple suggestion might be useful. The difference between the two is essentially that reform still leave much more to be done; no-reformist reforms are more comprehensive, seek to address the roots of our problems, not just the branches – although those branches are what immediately hurts, and must be addressed before the roots can be gotten at. Making this point, and make it continually and emphatically, is perhaps a way of opening a door to the consideration of more, of non-reformist reforms whose need is made apparent by the limitations of the reformist.

Some reforms lend themselves to opening the door more than others:[5] a speculative property tax on land begs the question of why profit should be made on the sale of land to begin with, zoning issues implicitly raise the question of the priority of exchange over use values, social welfare programs lead to the question of what standard of living we after all want to have everyone be able to have. How far this can be done in any given situation is a question of strategy; its desirability seems to me apparent.

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This Blog is part of a set of five:

[Blog #68 – Evaluation of Recent Developments, examined the reception the Court’s decision and the AFFHR have received and their respective roles in dealing with housing discrimination.

Blog #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, took up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both.

Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to both the legacy of slavery and to the present actors behind discrimination, and then the structural context in which they operate.

Blog #72 – Beyond Fair Housing: Some Elusive Principles for Societal Change, will raise some questions about elusive general principles for societal change.]

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[1] The new AFFH Regulations already contain provisions for such assistance, but are focused on data provision and analysis, not a comprehensive planning process.

[2] Michel Sorkin’s striking phrase.

[3] Article 25 of the Universal Declaration of Human Rights could be the beginning of such a process. For a comprehensive survey, see: United Nations Housing rights legislation, Review of international and national legal instruments, publications in support of the Global Campaign for Secure Tenure No. 05. Human Settlements Programme (UN-HABITAT) Office of the High Commissioner for Human Rights (OHCHR) Nairobi, 2002 available at http://www.ohchr.org/Documents/Publications/HousingRightsen.pdf

[4] Susan Fainstein’s The Just City and David Harvey’s Social Justice and the City are current major steps in this direction. See also Peter Marcuse, James Connolly, Johannes Novy, Ingrid Olivo, Cuz Potter, Justin Steil, eds. 2009. Searching for the Just City: Debates in Urban Theory and Practice. Oxford: Routledge.

[5] Nancy Fraser has termed such reforms “transformative,” and I have used that term also from time to time. Susan Fainstein, in the opening chapter to her The Just City, has an insightful general discussion of a similar approach.

#70 – The Causes of Discrimination

Blog #70 – The Causes of Discrimination

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To a large extent the limits of the new Affirmatively Advancing Fair Housing Rule are connected with a weaknesses in the underlying assumptions being made in both of them, specifically, in the implicit causative role assigned to the legacy of slavery as an explanation for why discrimination exists today, to the neglect of addressing the fact that current actors and current interests and current structures maintained in use in fact need to be dealt with if the problem of discrimination is to be solved.

A detour to examine the causes of discrimination is briefly necessary. It involves examining two different emphases in explaining current discrimination — The Legacy of the Past, and the Actors in the Present. Which is adopted makes a real political difference.

The United States is hardly a post-racial society. Certainly black residents don’t think it is; a growing number in recent years, even before the spate of police shootings miscarriages of criminal justice. An increasing number of black Americans regard race relations as one of the most pressing problems facing the country. [1] And much rhetoric has been expended on bemoaning racial prejudice, with frequent references to the lasting legacy of slavery, and the direct reminders of that legacy, as in the controversies about the states flying the Confederate flag by state agencies on state buildings or land. Barack Obama’s election, seen by many hopefully as a turning point, has not turned out to be that; if anything, it has hardened some pre-existing lines of political division. There has been a lot of response focused on the legacy of slavery concept, with real victories on the flag issue, and explicit condemnation of racial and minority stereotyping, as in the condemnation of Donald Trump’s blunt expression of his views. And this aspect of the problem, call it historical, ideological, psychological, remains important – look at the votes Trump garners in even in blue states. But optimism is not so clearly warranted and more analysis of cause as well as effect is required

There is indeed a legacy of slavery, and it does have to be dealt with. But focusing on its historical impact is misleading if it does not deal with the contemporary patterns of discrimination[2] and exploitation that use that inescapable legacy as explanations for contemporary wrongs, present discrimination. An eloquent Opinion piece by Isabel Wilkerson in the New York Times expresses a deep-felt hope:

“The day after the flag went down in South Carolina, an editorial in The Richmond Times-Dispatch made the stunning declaration that it was finally time for a Truth and Reconciliation Commission and that Virginia should take the lead. “Accounting has not occurred,” the paper wrote, “the half remains untold.” This is precisely what history demands and what this moment requires. Perhaps a new reconstruction could truly take hold and inspire the rest of the country if it sprang from the region that resisted it in the first place.”^{^[3]}

Present discrimination is not simply the consequence of that the legacy but it also helps explain its survival. Ignoring or minimizing the present conditions of discrimination leads to exactly the wrong conclusions, reverses cause and effect.

In the debate around public policy dealing with race, the failure of full analysis of causes and results comes about in two ways: 1) Minimizing the extent of the problem, and 2) assigning responsibility for present conditions to the legacy of slavery. There is of course some truth in both points: important aspects of discrimination have been of diminishing impact, particularly since the New Deal days of the 1930’s, anti-discrimination legislation after World War II, and the 60’s. Certainly the legacy of slavery has enduring consequences. Both neither point is the end of the matter. In fact, both may be, if unintentionally, distractions from getting at real causes and framing really effective responsive policies.

On the first point, minimizing the extent of discrimination suggests that things are indeed progressing very well, present policies are already effective, we need no different or more radical governmental policies, one needs to find the sources of what problems remain elsewhere than in the absence of current policies to eliminate racist practices. The conservative Manhattan Institute, in a much publicized study,[4] speaks of the “end of segregation,” and its author is cited as saying:

but the best way to do so is by expanding and improving educational opportunities for poor people of color and “by helping families and investing in kids at an early opportunity and instilling a love of education in them while they’re young. I don’t think that switching them to a different neighborhood is going to accomplish that.”[5]

A classic blaming the victim argument: if only black kids would have “a love of education,” everything would be all right. That their apparent lack of a “love of education” has something to do with the schools to which they are required to go, whose segregated attendance was a primary mover in the whole civil rights movement, is not relevant, and whose continued attendance at segregated schools, segregated today by neighborhood schools in themselves based on segregated neighborhoods, is somehow not the problem. It is the children’s lack of love of education, not the segregation of their neighborhoods, the underfunding of the schools in those neighborhoods, the conditions of life at homes in those neighborhoods, the restricted opportunities children from those neighborhoods face when (if) they graduate from those neighborhoods, which need to be addressed. Changing their neighborhoods can be accomplished by moving them to other neighborhoods, or changing the neighborhoods where ty are, but racial segregation today is a major blockage to any such efforts. And the Fair Housing Act,[6] and the new regulations calling for Affirmatively Furthering Fair Housing (hereafter AFFH)[7]are precisely what is needed, and much, much more. See below.

On the second point, focusing on the legacy of slavery, is often coupled with an unbalanced celebrating of the positive reactions to Ferguson and the Charlestown church shootings, to the significance of the confederate flag removals, HUD’s Affirmatively Fostering Fair Housing Regulations, and similar public responses. But seeing these responses as a turning point, has, intended or not, a similar result to minimizing the extent of actual discrimination in today’s society. The argument here is not so much that which comes from minimizing current discrimination that leads to blaming the victim and his or her mentality (“no love of learning) for what remains, but blame the legacy of slavery and the discriminators’ lack of understanding, or our own lack of understanding, for what discrimination continues to exist. It easily takes changes in discourse for changes in actions and policies.

That the discourse has changed, and that more understanding all around is need, is certainly true and needs to be said, but one could easily draw very wrong conclusions from it. For instance, David R. Williams, a Harvard sociologist, is quoted in Isabelle Wilkerson’s piece, above,[8] as writing:

“We have to come to grips with the reality that this racism is so deeply embedded in our culture that it shapes how we see the world, it shapes our beliefs, our behavior, our actions toward members of other groups. We have to examine ourselves in a profound way.”

Who “we?”

The problem – and it’s an important one – is that there isn’t just one “we.” There are multiple “we’s,” and they are very different and often n conflict with each other. There are actually three “we’s,” and realizing that they are different is crucial if anything is to be changed. Certainly everyone has to come to grips with how deep racism lies in us, but its manifestation is very different in different “we’s”, their resulting behavior is very different, and it has to be very differently addressed. It was Martin Luther King Jr. who said, “Morality cannot be legislated but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”

The “we” that is written about in the Williams quote is not the heartless, not those who deliberately and intentionally discriminate, but those with hearts who do not do enough to implement what their hearts know they should be doing.[9]

Ignoring who holds what beliefs, whose behavior it is that must be changed, and assuming “we” are all in the same boat, denies the fact that not all of us have the same interests in ending discrimination, that there are those that are victimized by racism and those that benefit from it. This ignores the necessity of some redistribution of power and wealth if racism is to be ended. It leads to conclusions like the Manhattan Institute’s that the answer is instilling a love f education in black kids. That is pure blaming the victim, and at best may help some of the poor but ignores the need for redistribution that would affect the rich as well as poor.

In broad terms, three different categories of actors can be distinguished, whose beliefs and actions need to be addressed to defeat discrimination.

The thoughtless. Perhaps the large majority of individuals, subject to all the influences of the world around them and the country’s history and prevalent prejudices, conditioned by prevailing stereotypes , and thus reflecting prejudicial beliefs and largely acting on them, but without reflection, without thought about the impact on others, on minorities, acting essentially reflectively. Many, perhaps of good will, simply not realizing the confederate flag is painful to so many of their fellow citizens, are not struck by the fact that their proud tradition of valor and Southern culture is a painful tradition of slavery and despair for others.

For them, David Williams’ advice is appropriate, and needs to be affirmatively supported with funding, research, policies across the board of government and private actors. They should read Go Set a Watchman and support taking down the confederate flag.

The perpetrators. At the other end of the spectrum, there are those would directly benefit from discrimination, for whom talk of culture or historical legacy is simply an ideological legitimation for what they do. When Donald Trump attacks immigrants as rapists, he is consciously appealing to a prejudiced segment of the voters in the quest for votes to sustain his own ambitions. When real estate developers build gated communities, they are directly profiting from the concerns of potential buyers about the dangers of racial and class mixing. When employers pay minority workers less than white workers, give them the most menial jobs, they are not only profiting directly by the discriminatory treatment, but using it to keep white workers from complaining too much because they are still treated better than those others of a different color. The discrimination in the criminal justice system which imposes harsher treatment on African-Americans than on whites contributes to the maintenance of a law and order which controls the militant protest of the worst off of the 99% and their potential disruption of the ordinary course of profitable business, for the benefit of the 1%

These are the perpetrators of discrimination, the actors who directly benefit from the gap between whites and blacks. Williams’ advice is directly against their own interests, and will not be followed. Their conduct directly produces the adverse disparate impact that parts of the law are being targeted to remedy. It is their behavior, motivated at least as much by their self-interest as their beliefs, that needs to be controlled by law. And public policy and the law must deliberately take into account the impact of their behavior in all of its actions.

The unwitting collaborators. The unpleasant truth is that the majority of white people in the United States benefit indirectly discrimination. Prices at Walmart are lower because it pays its workers less, and prejudice dampens their protests and their breadth of their appeal. If the combination of poverty and discrimination leads to a criminal response, peace loving citizens benefit from a police force that keeps them secure. If teachers do not have to struggle with the difficulties of likely very differently prepared youngsters in integrated classes, their jobs are easier and their students and their parents happier. If neighborhoods are segregated, and if infrastructure, education, public services, parks community facilities and parks, sanitation, are all worse in minority neighborhoods than in exclusionary wealthier ones, white taxpayers achieve a savings through the disparate public expenditures in what are typically white and black districts.

But, although the beneficiaries of these disparities, of this discrimination are indeed collaborators in the discrimination, they in a sense have little reasonable alternative. They collaborate unwittingly. If the system works in such a way that white schools are better than black schools, reasonable persons will send their children to white schools. And shop at Walmart. And report criminal behavior to the police. And seek higher rather than lower paying jobs, interesting work over routine menial labor. They are, in a sense, trapped in a system that provides real benefits for them, even though it may actually violate their own personal belief in justice or equality. Williams’ advice may give them a guilty conscience, but for them following their conscience to its logical conclusions will not be an easy choice.

The victims/opponents/critics.. For every disparate impact of discrimination benefiting a perpetrator there is a symmetrical victim disadvantaged by that impact. Profits for some mean losses for others; a favorable economic climate for some is bad weather for others; competition inevitably means, at least in the first instance, victory for some and losses for others. In old-fashioned terms, the exploitation of labor means profit for capital, housing that is deliberately exclusionary leads to enclaves of the rich and ghettoes for the poor. But those at the losing end of the competition, are not likely to be passive. There will be actors in a resistance to disparate distribution of benefits and costs. And there will be opponents and critics pained by the system, ideologically critical, culturally injured, morally repelled, in various stages of resistance. The more democratic the political system, the greater the disparities, the more intuitive rules of fairness are violated, the more active will that resistance be. And, to complicate things, some are both victims and perpetrators, unwilling collaborators or simply thoughtless, whose actions may be self-contradictory and unpredictable.

And of course of all actors operate within the rule laid down by the system, the political, economic, social, and ideological patterns of the society, established over the course of history by the outcomes of the various conflicts and the relative powers of the various actors involved. Ultimately, whether specific problems can really solved, and even the extent they can be superficially remedied, depends on what those rules are: how the economy functions, how the law defines private property, what goods and what services are distrusted through the market and what through the state, what ideologies are developed and supported, and by whom, that support the status quo and what that critique it. The complexity the inter-relatedness of allof these structures , what makes capitalism the name of a single system affecting all that is done within it, the importance of what is coming to be called intersectionality, all this is strikingly apparent in the housing field. Think of just one issue: “home ownership.” Private ownership of land is historically a recent development, and what priority the law gives to rights of “ownership” is bitterly contested. How real estate taxes are calculated, who benefit and who pays, is important. What security it provides fluctuates. , and the psychological importance placed on what security it does provide is centrally determinant of the actions of many actors. The financialization of housing plays a large role, and has global causes and consequences. Even the aesthetics of architecture and its link to social status is are involved. The actors specified above determine their own actions and make their own policy decisions, but not under circumstances and structures of their own choosing.

So what are the possibilities for affecting housing and planning outcomes to end discriminatory adverse disparate impacts?

The answer is two-fold:

First, public policy must act aggressively against the perpetrators of discrimination and penalize discriminatory behavior, for not only will that action prevent its undesired disparate consequences, but also by seeing it penalized, it will help unwitting collaborators regain their wits and motivate them to change their own behavior, producing the results that Williams hopes for from self-examination.

Second, however, and in the longer view, that system, those structures, that produce the chains of discrimination, with its consequent aligning of the interests of collaborators with those of the perpetrators, must be changed.to change the system that gives them the guilty advantage, the system that chains together discrimination in one field to effects on another, low wages for Walmart workers to low prices for collaborators as consumer, segregation and exclusionary enclaves to safety on the streets for their resident collaborators, profits from technological advances for some to unemployment for others. And since that system benefits the perpetrators and harms the victims more than it benefits the collaborators, there is are complex underlying conflicts of interests involved that must be faced and worked with if discriminatory behavior is to be banished.

In one reading, the aspects of today’s societal system that account for the undesired disparities of discrimination with which we are here concerned is its reliance on profit-seeking as it motors, acceptance of wealth creation as its goal, the market as its means. What is needed instead is rather solidarity and mutual caring as its motor, social welfare for all as its goal and informed democratic discussion as its means. But that is topic for another and broader discussion!

[This blog is one of 5 taking up the Supreme Court’s decision in Texas vs. Inclusive Communities and HUD’s Affirmatively Furthering Fair Housing Regulation (AFFHR), and some general principles dealing with the meaning of social change and the efforts to accomplish it

.Blog #68 – Evaluation of Recent Developments, examined the reception the Court’s decision and the AFFHR have received and their respective roles in dealing with housing discrimination.

THIS Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to the legacy of slavery and to present actors—the thoughtless, the perpetrators, the collaborators, and the victims, the structural context in which they operate.

Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies, and then some principles for real solutions.

Blog #72 – Beyond Fair Housing: Some Elusive Principles for Societal Change, raises some questions about elusive general principles for societal change.]

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[1] According to a Gallup poll cited by the New York Times, Magazine section, July 5, 2015, p. 14.

[2] A note on terminology: “discrimination” is not the same as “differentiation,” though the Supreme Court seems not to acknowledge the difference (See Justice Kennedy’s comment in the Texas case calling for remedies that do not differentiate by race, that are “race-neutral”) “Discrimination” as used here means causing an adverse disparate impact to protected minorities, with a focus on African-Americans or Blacks. “Race” is used, although an outdated concept, simply as shorthand for those adversely affected by discrimination.

[3]

[4] THE END OF THE SEGREGATED CENTURY: Racial Separation in America’s Neighborhoods, 1890-2010,

Edward Glaeser, Senior Fellow, Manhattan Institute for Policy Research

Jacob Vigdor, Adjunct Fellow, Manhattan Institute for Policy Research

http://www.manhattan-institute.org/html/cr_66.htm

[5] Experts Attack Manhattan Institute Study Claiming End to Segregation in U.S. Cities.By Marjorie Valbrun. America’s Wire, available at http://americaswire.org/drupal7/?q=content/experts-attack-manhattan-institute-study-claiming-end-segregation-us-cities-0.

[6] The Fair Housing Act, text available at http://www.justice.gov/crt/about/hce/title8.php or https://www.law.cornell.edu/uscode/text/42/3604

[7] Federal Register / Vol. 80, No. 136 / Thursday, July 16, 2015 / Rules and Regulations, available through http://www.huduser.org/portal/affht_pt.html#final-rule.

[8] Supra note 2.

[9] A reviewer in The Nation long ago formulated in: when I write “we” I mean “me and my friends.” Period.

#69 – Fair Housing: Limitations of Supreme Court decision and AFFHR

[The 5 blogs in this set take up the Supreme Court’s decision in Texas vs. Inclusive Communities and HUD’s Affirmatively Furthering Fair Housing Regulation (AFFHR), and some general principles dealing with the meaning of social change and the efforts to accomplish it.

Blog #68 took up how the large argument is organized in this set of 5 Blogs, the reception the decision and the AFFH Rule has received, the attribution of causes to the legacy of slavery and to present actors, and the problems that the analysis of causes has created.}

THIS BLOG #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, takes up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both. This was: Blog #67-2a – Fair Housing Act and Disparate Impact Claims]

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#69 – Fair Housing: Limitations of Supreme Court decision and AFFHR

The AFFHR[1] and the recent Supreme Court win in a Texas Fair Housing case^{^[2]} is a significant win for measures aimed at contesting racial discrimination in housing, especially given the composition of the Supreme Court today. However:

The AFFT Rule is, in its practical impact, far less important that the Court’s decision. The purpose of the AFFT Rule is very limited. As its summary in the Federal Register states:

Through the availability of such data and available local data and knowledge, the approach provided by this rule is intended to make program participants better able to evaluate their present environment to assess fair housing issues.[3]

The AFFHR is an aid to others to comply to the pre-existing mandates of the Fair housing Act, and will specifically help those bring claims under the Act to show statistically disparate impacts of challenged actions. It provides no new penalty for violations, gives no new enforcement powers, sets no new higher standards for behavior. It does commendably provide a boost for efforts at planning, but does not mandate any standards that would make planning more effective than what local authorities. Its greatest effect will probably be to simplify the application of the disparate impact standard that the new Supreme Court decision has legitimated by helping to assemble the data that would show such an impact. So the focus of examination should be on that decision of the Court.

There are also reasons not to get complacent about the meaning of that decision, in some of the language of the Court’s opinion.

Overt racial discrimination in public actions has long been condemned in the United States, and recent events in a staunchly southern state such as South Carolina in the aftermath of the recent murder of nine African-Americans during church services by a white racist suggest that at least the overt display of racially offensive beliefs and conduct meets widespread, if not unanimous, popular condemnation. But there is also substantial evidence of continuing discrimination based on race and ethnicity is many aspect of U.S. life, and very visible in patterns of inequality and racial segregation in housing and urban planning practices. The result is a pattern in which racist conduct is denied as being racist, is explained by many other considerations but not by prejudice, in which practices having a demonstrable discriminatory effect are justified by all manner of claims as to innocent intentions and legitimate non-racist goals. Housing discrimination in many communities are clear examples.

The Supreme Court’s decision recognizes this history, and that apparently innocent non-discriminatory purposes for actions may have in fact a prohibited discriminatory impact. It may open the door to extensive controversy and perhaps litigation around what legitimate public concerns may justify actions that do have a discriminatory impact. But in such litigation the decision also creates problems.

In the employment discrimination case cited by the Court, for instance, a “legitimate business purpose” may validate an action having a disparate impact, depending on the circumstances.

To be specific:

The Court’s Syllabus states:

“Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to design race-neutral remedies. Remedial orders that impose racial targets or quotas might raise difficult constitutional questions. “

In Kennedy’s opinion, citing the employment discrimination cases:

“…not all employment practices causing a disparate impact impose liability under §703(a)(2). In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims.”

Further, “These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system…. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.”

And later:

“disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. Griggs, supra, at 431. The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.”

“It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a community’s quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities. As HUD itself acknowledged in its recent rulemaking, disparate-impact liability “does not mandate that affordable housing be located in neighborhoods with any particular characteristic.” 78 Fed. Reg. 11476. “

Terms such as “race –neutral remedies,” or “a mix of factors contribut[ing] to a community’s quality of life,” or “legitimate needs” that may outweigh disparate impacts, or prohibiting taking a community’s “particular characteristics” into account in locating housing, may well lead to delegitimize such frequent progressive goals of public planning and zoning actions as achieving diversity, promoting equality, distributing based on need, all of which to be meaningful must clearly take racial and ethnic characteristics into account in formulating policies. “Race neutrality” may be an ultimate objective, but on the way there it can prevent many needed responses to discrimination.

This is all language that, depending on how it is interpreted in the future, may turn disparate impact cases into long-drawn-out technical planning debates about what “a community’s quality of life” is, or whether economic development is an appropriate public purpose and how it might be achieved, etc. Indeed, it is a disservice to logical thinking that the Court’s opinion frequently uses the term “minority” but nowhere defines it, uses the term “racial or ethnic minority” once but seems to equate “minority” with “racial minority” in its discussion of race in dealing with remedies. It would be ironic if the law were to be interpreted to hold that racial discrimination in housing is bad unless it “serves a legitimate business purpose,” as the bald language often cited in employment discrimination cases reads. And it would be upsetting indeed if the cautious language of the decision limiting disparate impact claims to those challenging practices that have a “disproportionately adverse effect on minorities” were broadly interpreted to strike down the disparate positive impact on minorities that plaintiffs often in fact seek in remedies, a disparate impact that favors minorities but adversely affects other minorities, e.g. small property owners, or, for that matter, the wealthy.

The affirmative actions required of governments to implement the Fair Housing Act within their jurisdictions is not touched on in the Court’s decision. The explicit holding that race may not be part of any remedial order, after a finding of adverse impact in violation of the Act, is a potential crippling threat to efforts at affirmative action to overcome findings of racial disparities. If statistical measures can be used as evidence of a disparate impact on race of a governmental action. And be a valid reason to invoke the Fair Housing Act, why is it not appropriate to ask for a remedy likewise taking statistical and other measures of impact on race into account, even having a “racial quota” as a measure of success – as part of the remedy?

It’s time to recognize calls for “color -blindness,” in Scalia’s opinion, or “race-neutral measures,” in Kennedy’s, for the logical inconsistencies and red herrings that they are?

The Court holds that “the FHA does not decree a particular vision of urban development.” But many of its proponents certainly thought it did: a vision of an urban development that is socially, economically, and physically just, in which minorities will be full and equal citizens entitled to share in all the benefits of urban life, without discrimination. Such a vision implies affirmative action, as well as the absence of negative, by government. It would be a shame if this decision buried that vision.

Finally, The Court’s structuring of the desired approach to adjudicating disparate impact claims opens a Pandora’s Box that may become a job creation program for planers. After a prima facie case of disparate impact claim has been established, as by statistical evidence with background, the defendant is given the opportunity to legitimate that impact by some alternate overriding purpose. In turn, the plaintiffs must then show that other legitimate means were available to achieve that purpose that did not have such a disparate impact. That may mean having to develop a full-blown alternate plan, backed up by expert testimony, that the defendants could follow. That’s a pretty substantial burden to put on any plaintiff—in effect, to fulfill the government’s responsibility to plan fairly.

Six further problems with the Court’s decision can be identified:

The Supreme Court has limited, as least in dicta, the potentially far-reaching possibility of voiding measures based on a showing of adverse impact. While those praising the holding argue that it looks at consequences of actions, not motives or intentions, the Court specifically holds that a “simple” showing of statistical disparity is not enough. Further information is needed, for which the proponent had the burden of proof, was that it had a “legitimate purpose.” Once that was shown, the burden of proof shifted to the challenger to show that that the claimed other “legitimate purpose ” could be as well served by other measures not having such a disparate impact. The contested action might survive if the claimed legitimate purpose could not be served in any other reasonable manner. This is the ”burden-shifting ” provision. It leaves open the question whether every alternate legitimate purpose will have priority over a purpose further fair housing, whatever the magnitude of each, or how such magnitude should be measured, if relevant.

Let us take a typical case. A zoning change for a parcel of land hitherto zoned as open space is zoned by a zoning board in a disproportionately white town (by county or state standards. None mentions race in the process of adopting the zone change; no direct evidence of intent is available. There is statistical evidence that the zone change would make occupancy by minority group members more unlikely than by whites , so a disparate impact, but a precise measure of what constitutes “disparate” is unclear in the Act) for housing, at a density of 4 units an acre. A fair housing group proposes a density of 12 units an acre to make it more affordable for low-income and minority groups. It challenges the more restrictive zoning under the Fair Housing Act’s provisions. It must hire a planner or statistician to show that there is a shortage of housing for minority group members, and that this would be an opportunity its members. The Town says that will increase traffic and lead to pollution. The fair housing group needs to show its alternate would not. Perhaps it puts forward a plan for investment in public transportation to reduce car traffic. It needs environmental science testimony to the resultant reduction in pollution. It needs to show what the user demand would be, what the costs, what the consequences elsewhere along the route. Suppose net costs to service 12 units are very high; case closed? Then those benefiting from the discriminatory zoning will have simply bought its legitimacy

At least six problems with that:

First the burden of proof is heavy and expensive. Challenger must develop a stasticial analysis, then an alternative plan, presumably show its feasibility with actual studies.

Second, no standard is given for what constitutes a “legitimate purpose” of such a nature as to over-ride the discriminatory effect. Would preserving “community character” be legitimate? It is a common and widely desired goal for good planning, and likely democratically established. As most would define it, changing it racial balance or class balance would interfere with that goal, by definition.

Third, whose “purpose” is involved here? The zoning boards? The town council’s? The majority of voters? Are the interest of those who would like to move into the town to be considered? The developers who would like to build the four units? And how is anyone’s purpose determined, simply by what they say it is? No one will ever say publicly their purpose is to limit black occupancy, exclude Hispanics, etc.? What purpose, and who’s, is considered legitimate: making a profit? Reducing taxes? Beautifying the area? Winning voters for the next election?

Fourth, are we back at a variation of the “intended” definition discrimination: did the proponents of the zone change “intend” it to be discriminatory? They may be big contributors to the NAACP, and some of their best friends may be black. Is that relevant? There is little difference discussed between “motive” and “intent.” “Motive” is actual state of mind, “intent”, in criminal and negligence law, is often held to be acting in knowledge of the likely result of an action, acting based on the knowledge a reasonable person would have of the expected consequence of the action, and therefore intending that result.

Fifth, neither the problem nor the remedy can be logically considered piece-meal, in isolation. The new regulation recognizes that; a remedy, the provision of integrated (non-disparate?) housing must take into account transportation, infrastructure, libraries, schools, needed by that housing’s residents. But no town wants to just make decisions based on FH criteria for these 12 units there needs to be, a town-wide comprehensive plan that deals with the whole range of urban problems. Not only does this particular decision demand that, but absent it there may well new disparate impacts imposed on other parts of the two. Zoning, in many states, needs to be in accordance with a comprehensive plan; doing it piece-meal is on its face unfair. Minorities will generally haves less control over their own residential areas than whites; on its face that is disparate, discriminatory.

Sixth, gentrification is a process ignored in the Regulation, yet is it is a major example of the need for a comprehensive approach allowing the application of fair housing principles. Yet it is an important consideration in many urban areas today. In a previously segregated area located near earlier employment in the “inner ring” around a central city area, as the economy develop and manufacturng gives place to services the area may become very attractive to white, who move in, at one point displacing blacks. At that point, technically, the area becomes less segregated. Yet minority group members are adversely and disparately affected. Where in a white area a neighborhood preference in new housing adversely affects minorities, in a black gentrifying area is favors them. One-rule-fits-all approaches will not do; individual communities must be comprehensively reviewed in deciding what rules to apply. Just like with piece-meal zoning, the answer is comprehensive planning, not provided for in the AFFH regulation.^{^[4]}

Underlying all this is the failure to recognize the real causes of the problems the Act is intended to deal with. The biggest problem creating unfair housing is the inequality of wealth and income, and power; combine that inequality with a market-based distribution of housing, and inadequate housing for those at the bottom will result. Combine that with continuing if declining racism[5] and its after-effects, and with the resulting systemically lower wealth and income of minorities, and you have the direct cause for the conditions the Fair Housing Act is designed to remedy. And the causes operate at the national, if not the global, level, as must the remedies as well.

Lawyers, planners, and advocates for diversity and racial justice should remain wary of unconditional approval of the decision or praise of the AFFHR.

More positively, perhaps this otherwise welcome decision can be seen as a step forward in crafting stronger positive role for the federal government in the area of housing and urban development. The logic of the decision, although limited by foreboding language by this Court, suggest there is much that could be done at the federal level to in fact develop a broad vision of a desirable urban policy in the cities of the nation. It would be a vision hardly to be expected of this Court or of this Congress, but perhaps could be thought through for what a progressive urban platform for 2016 might be and the longer-range future.

Continuing the discussion will be:

Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies, and then some principles for real solutions.

Blog #72 – Social Change: Some Elusive Principles for Societal Change, goes beyond Fair Housing to raise some questions about elusive general principles for societal change.]

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[1] Federal Register /Vol. 80, No. 136 /Thursday, July 16, 2015 /Rules and Regulations, p. 42283. Available through http://www.huduser.org/portal/affht_pt.html#final-rule.

[2] Texas Department of Housing and Community Affairs et al. vs. Inclusive Communities Project, Inc., et al

Texas Dep’t of Housing & Communit. Affairs v. Inclusive Communities Project, No. 13–1371, 2015 U.S.

LEXIS 4249 (June 25, 2015). Available at: http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

[3] Federal Register / Vol. 80, No. 136 / Thursday, July 16, 2015 / Rules and Regulations, p. 42272

[4] The provision for data gathering, analysis, and sharing by the Federal with local governments can indeed be helpful in local comprehensive planning efforts, but is not the same as directly fostering such efforts.

[5] See the discussion at Blog #68 warning of minimizing the extent of discrimination today.

#68 – Evaluation of Fair Housing: HUD AFFHR and Supreme Court Decision

#68 – Fair Housing: Evaluation of Recent Developments.

[The 5 blogs in this set take up the Supreme Court’s decision in Texas vs. Inclusive Communities and HUD’s Affirmatively Furthering Fair Housing Regulation (AFFHR) (Blogs #68 and #69), posting today) and the broader questions they raise about some elusive general principles dealing with the meaning of social change and the efforts to accomplish it(Blogs #70, 71, 72) posting in the next few days..

This Blog #68 – Evaluation of Recent Developments, examines the reception the Court’s decision and the AFFHR have received and their respective roles in dealing with housing discrimination.

Blog #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, takes up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both.

Then:

Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to the legacy of slavery and to present actors—the thoughtless, the perpetrators, the collaborators, and the victims, the structural context in which they operate.

Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies and some principles for real solutions.

Blog #72 – Social Change: Some Elusive Principles for Societal Change, goes beyond Fair Housing to take up some elusive issues raised by the preceding four blogs.]

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#68 – Fair Housing: Evaluation of Recent Developments.

There is an element of unrestrained welcome in the responses to two recent major Federal actions on fair housing, one the Supreme Court’s Decision in Texas vs. Integrated Community Policies, the other is the Regulation Concerning Affirmatively Furthering Fair Housing (AFFH) of the Department of Housing and Urban Development. The New York Times, for instance, editorially says “The new rule …provides a clear, forceful definition of the law… which means replacing segregated Living patterns with truly integrated and balanced living patters.”^{^[1]} The National Resources Defense Council Staff blog speaks of it as an historic and overdue final rule. ^{^[2]}

The reaction on the other side has been more than just the opposite: The conservative National Review, for instance, went so far as to call the new Regulation “easily one of President Obama’s most radical initiatives.”^{^[3]} And “AFFH could spell the end of the local democracy that Alexis de Tocqueville rightly saw as the foundation of America’s liberty and distinctiveness.^{^[4]}

But both reactions are overdone. And this aspect, fulsome praise of the AFFH, can seriously detract from efforts to remedy the very serious problems of discrimination that we still face in this country.
Seen in perspective, the advance since Ferguson, Charlestown,, the flag lowering and the AFFH Regulation is limited,[5] and in the AFFH case has within it possible seeds of serious steps backwards in the route to full justice for minorities (an increasingly dubious term) and for racial justice (likewise a term still to be used with caution (African-American justice doesn’t quite cut it either).

To begin with, the existence of a serious problem is indisputable. About 25% of African—Americans live in poor census tracts (where more than 30% have incomes under the poverty level), only about 16% of white households do. A non-poor African-American is more likely to live in a poverty census tract than a poor white household. For the first time in 2014 non-white students are a majority of students in public schools in the United States, and “black students are just as segregated today as they were in the late 1960s, when serious enforcement of desegregation plans first began.”^{^[6]} Infant mortality rates are almost two and a half times higher for African-Americans in the U.S than they are for whites, and not just because of poverty in the southern states. In Massachusetts, the rate of infant deaths per thousand for white is the lowest the country, 3.8 per 1,000, but for African-Americans it is 9.2 per thousand, almost 3 times higher. ^{^[7]}

But there are several limitations to the progress represented by these most recent two actions, the Supreme Court decision and the HUD regulation.

The two events, a Supreme Court decision in a Texas case, and the issuance of a Final Rule by HUD dealing with Affirmative Action to Further Fair Housing, are closely linked, and treated essentially as one in much of the discussion, and in the blogs that follow. Taken together, they have impact in two ways: first on the on-the-ground ability to enforce the established negative goals of the Fair Housing Act, specifically the prevention and remediation of discriminatory acts in housing, acts defined in general terms unchanged since its adoption in 1968, and second, on the impact of such positive provision of housing as there now is on racial patterns of segregation, thus provoking re-examination of the goals of that law, and the public policies relating to race and space of which it is a part.

The first of these impacts, on the negative prevention of acts of discrimination by others, e.g. realtors may not show some houses just to whites, not to blacks. The second is providing that the government does not itself discriminate in such positive provision of housing as it undertakes, e.g. it may not locate subsidized affordable housing only in areas segregated by race. The language of “affirmative” action could be more broadly interpreted to require government to in fact provide housing, in a manner aimed at integration, but neither the Supreme Court decision nor the AFFH program confront that possibility. There is a brief interchange in the Federal Register[8] on the final rule that goes as follows:

Commenters stated that even if the [zoning] ordinance does not violate the nondiscrimination provisions of the Fair Housing Act the jurisdiction may need to adopt an inclusionary zoning ordinance because such a policy would be the most effective means of addressing the identified contributing factors under the circumstances…

HUD Response: The proposed rule provided that program participants would take meaningful actions to further the goals identified in an AFH conducted in accordance with the requirements of this rule and would take no action materially inconsistent with their obligation to affirmatively further fair

They would “take meaningful actions” and “take no actions.” Prohibiting exclusionary zoning is “a meaningful action,” but it falls short of being “the most effective means,” which might be mandating[9] inclusionary zoning. Zoning is never elsewhere mentioned by HUD. There is little in the history of HUD’s use of the Act to suggest it holds to such a broader use of “affirmative.” So there is really nothing new in either the Supreme Court’s decision or HUD’s AFFH rule to suggest that HUD would go beyond “take no actions” to enforce anything as meaningful” as inclusionary zoning.[10]

So the real contribution of the AFFH is its facilitation of the application of the disparate impact standard that the Supreme Court’s decision has legitimized.

The contribution that the decision and the rule make in fact lies in the implementation of the negative prohibitions of the Fair Housing Act, not expanding the meaning of “affirmative.” On the negative side the issue has been what proof is necessary to invoke the Act’s prohibition of housing discrimination. The Act has two definitions of prohibited conduct: acts of “intentional” discrimination, and acts having an “adverse disparate effect” on minorities.

That proof on an “intent” to discriminate” is hard to come by. That is universally recognized, including by the courts, but defendants charged with violation of the FHA have long stoutly maintained it is necessary under the law. The Supreme Court has now validated the use of the disparate impact standard instead, and HUD, through the AFFH Rule, had made it easier for local governments to come up with evidence that there has in fact been an adverse disparate impact.

On the reach of affirmative action neither the Supreme Court’s opinion nor HUD’s AFFH rule provide anything that is really new. What they do do is raise in the minds of many what the ultimate goal of broad and effective affirmative action should be, and specifically what the desirable nature of integration of minorities is and how it is best accomplished. The blogs that follow argue that both the Court’s opinion and the impact of the AFFH will make resolving that issue even harder.

And both the Court’s holding and the AFFH rule have severe limits. Blog #69 now turns to a detailed examination of the specific weaknesses in the Court’s decision and the AFFHR. Blog #70 explores the causes of those weaknesses, suggested to lie in their avoidance of the underlying causes of discrimination in housing and planning.

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[1] It goes on: “[the Regulation means] transforming racially and ethnically concentrated areas of poverty into areas of opportunity and fostering and maintaining compliance with civil rights and fair housing laws. ”The End of Federally Financed Ghettos,” The New York Times, July 12, 2015, p. Sunday Review, p. 10.

[2] Deron Lovaas’s Blog. “Taking the First Big Step Toward Affirmatively Furthering Fair Housing” Posted July 8, 2015. The Department of Housing and Urban Development (HUD) issued a historic and overdue final rule requiring its grantees to leap forward by “Affirmatively Furthering Fair Housing.” http://switchboard.nrdc.org/blogs/dlovaas/taking_the_first_big_step forward.htm. l Natural Defense Council Staff Blog.

[3] It goes on: “AFFH gives the federal government a lever to re-engineer nearly every American neighborhood — imposing a preferred racial and ethnic composition, densifying housing, transportation, and business development in suburb and city alike, and weakening or casting aside the authority of local governments over core responsibilities, from zoning to transportation to education. Not only the policy but the political implications are immense — at the presidential, congressional, state, and local levels.” National Review, July 8, 2015. Available at http://www.nationalreview.com/corner/420896/massive-government-overreach-obamas-affh-rule-out-stanley-kurtz.

[5] On the present state of racism, see my Blog # , Racism After Ferguson – A Turning Point? at pmarcuse.wordpress.com.

[6] Reed Jordan, “America’s public schools remain highly segregated.” Urban Wire, http://www.urban.org/urban-wire/americas-public-schools-remain-highly-segregated August 24, 2014.

[7] Kaiser Family Foundation, Infant Mortality Rate (Deaths per 1,000 Live Births) by Race/Ethnicity, available at http://kff.org/other/state-indicator/infant-mortality-rate-by-race-ethnicity/

[9] Zoning is indeed typically a local government activity over which the Federal government has no general jurisdiction, but the final rule is clear that the basis of the Final Rule is HUD’s threat to withhold funding, a threat generally considered adequate to achieve compliance with HUD’s requirements. HUD could if it would.

[10] A Westchester case is a notable exception, and in fact was settled including an agreement that the County provide 450 units of new affordable housing within five years o when the suit was first brought, and its implementation has been tied up in litigation over almost 5 years and the results to date have been not been large, and whether it could have been mandated by HUD under the FHA was never tested in court. See http://homes.westchestergov.com/housingsettlement and http://www.propublica.org/article/westchester-county-could-lose-millions-for-fair-housing-failures.

Blog #69 now turns to a detailed examination of the specific weaknesses in the Court’s decision and the AFFHR

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