Blog #123 – The Funny Hearings, Seriously


THE FUNNY HEARINGS, SERIOUSLY

The Kavanaugh senate hearing was efficient and conclusive.
It gave Kavanaugh a chance to show how abusive
A Supreme Court Judge-in-Waiting could be without ever saying “sorry.”
It simply had to make it sure that her story would end up as his story
Its conclusions were firm without time wasted on thinking and worry.
.
So what really happened in that really irrelevant past?
(We all know youthful characteristics don’t last)
She knows, but don’t believe her, just a teen, and he’s now a very honorable judge,
You can believe she’d have dreams, but such an honorable man wouldn’t fudge.

If only we knew who from behind pushed her in,
We’d know if he committed the original sin.
Maybe it was an immigrant hiding in that hall
Oh, if only they’d let us build up that wall!
After all, maybe it was only a prank,
Just blame it on one too many he drank
And he never got her clothes off and went all the way,
So just tell him how much he has to pay
That satisfied each of the others Trump had had
And they never complained or showed they were sad.
After all, didn’t the man drive his daughter to her classes?
So what if he took a little time out to make a few passes.
And “nothing really happened,” said our worldly Rep, boys will be boys,
And if a future Supreme Court judge doesn’t want to answer questions,
Why upset him by asking for confessions.
And girls should be pleased that they could be their toys.
If everyone knows, a the end of the line,
What the result will be, we’re just wasting our time.
His concern for justice can wait till he’s on the bench,
By then we’ll have forgotten there was a bit of a stench.
It’s time to stop this demeaning charade
And get on with his inaugural parade.
Donald Trump has told us whom to believe in these cases.
With his personal experience he knows what a man such as this faces.
Don’t call in the over-burdened FBI
Why expect them to tell the truth from a lie.
Our leaders can do that much better themselves, they tell us,
And get the job done without anymore fuss.

We’ve spent too much time on this already. Not a single day more.
After all, finding the truth would just be a bore.
—————
Now they’ve got to wait a whole week for a “limited” FBI report
Which won’t have a firm conclusion of any useful sort
Then they’ll draw their own conclusions, from this fact or that fact ,
And move on, greatly relieved, as it’s in their sole power to do, to act
Never mind if the facts show they were right or were wrong,
They’ll do as they’ve wanted to do all along.

And then the voters will finally have their say,
And we’ll thank the strong women who’ve shown us the way!

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Blog #120 — Roe vs. Wade, An Alternate Approach2: Recusal


Roe vs. Wade,  An Alternate Approach2: Recusal

The nomination of Brett Kavanaugh to the Supreme Court has caused much concern among defenders of Roe vs. Wade. They realistically are concerned that that landmark women’s rights decision is in danger of reversal if Kavanaugh is appointed. But that concern should also focus on the actions of President Trump that make a reversal likely, not only on the possible positions of a new judge, whether it be Kavanaugh or another.

Contrariwise, the President’s announcement that he would not nominate anyone to the Supreme Court who would uphold Roe vs. Wade may In fact be a path to protect that decision from reversal for at least the next three rounds of national elections.

The danger of a reversal of Roe vs. Wade is one which Trump has created, and Trump’s involvement may offer the route to a positively desirable solution

Here’s how.

It is inappropriate for a sitting judge to prejudge a case before him, and likewise for a candidate for a judicial position to have a commitment to a particular outcome in any case likely to come before him before hearing that case. We do not know whether Trump asked Kavanaugh for a commitment to overrule Roe vs. Wade, But we do know that  Kavanaugh, in accepting his nomination, knew that  it was made by someone who would not have made it if he believed the candidate would not rule as he had proclaimed was his expressed desire. The appearance is certainly that Kavanaugh would be responsive to that desire. The scale of the controversy about his appointment is testimony to how widely that appearance is shared in the general public.

There is an ethical, constitutional, and just, means of resolving the dilemma that President Trump has created by using his constitutional power of nomination to the Supreme Court to interfere in that Court’s decision in a particular case bound to appear before it . Trump has promised publicly in advance that he would not appoint anyone to the Supreme Court who would support Roe vs Wade. Any person appointed after he made that statement owes his or her appointment to a willingness to prejudge a case that is likely to come before him/her.

Any person then appointed would be required ethically, to recuse himself for consideration of the case n question. The candidate cannot be asked, prior to appointment, what his position would be should such a case arise. Any answer he might give would taint his participation if the case did arise.  The Judicial Code of the United States Code  provides[1], in the section captioned “Disqualification of justice, judge, or magistrate judge,” that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” And Canon 1, of the Model Code of Judicial Conduct holds that “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety’.[2] Kavanaugh should disqualify himself from hearing Roe vs. Wade if it comes before him.

So, President Trump, by his attempt to impose an unethical restraint on any appointee in his power to appoint to the Supreme Court has undermined his own ability to achieve his own objective, undermining Roe vs. Wade. Kavanaugh should ethically refuse to accept the appointment unless he first affirms in advance that he will not follow the desires of his appointing authority, an unlikely scenario.[3] The result will be that it will be a court with only eight voting members that will review and decide a new Roe and Wade. Justice will have been served

If, however, Kavanaugh nevertheless accepts the appointment, he may still recuse himself from hearing Roe vs. Wade if it should come before him. If he or she does not, the other 8 members of the Court will have it in their power to ask the new appointee to disqualify himself from joining them in the consideration of that case

If they do not, :a lawsuit might  be filed enjoining the Supreme Court from permitting a new appointment to sit on any case involving Roe and Wade, because of the inevitable taint arising from Trump’s intervention. . If that suit reaches the Supreme Court, it is obvious that the new appointee whose qualification to sit on the case is at issue must recuse himself from hearing or voting on the matter.  That suit will thus again be heard by the other eight sitting members of the bench.

In any case, Roe vs. Wade will have been saved from being put to a vote by a Court                                                    under the unconstitutional pressure of a hostile President’s invasion of the independence established by the Constitution for the Court.

The advantage of focusing on the appropriateness of recusal as a solution to the problem of Kavanaugh’s anti-Roe vote is two-fold. First, to protect that decision in keeping with the Constitutional provisions for separation of powers[4] and the Judicial Code’ provisions on impropriety, and in accordance with intuitive feelings of fairness and justice, with those political consequences.  But, Second, to place the responsibility for the problem squarely on the shoulders of the President, and in fact to go further and prevent his achieving his desires for the rest of any term in office he may enjoy. Any new appointee to the Supreme Court will face the necessity of recusal just as Kavanaugh does. Thus Roe vs. Wade will be better protected at least from any future action of Donald Trumps if a new appointment should again come within his power.

 

[1] Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned “Disqualification of justice, judge, or magistrate judge,”

[2] Canon 1 of the American Bar Association’s Model Code of Judicial Conduct.

[3] There are   in fact calls by Senator Schumer  for Kavanaugh to recuse himself because of his own freely-offered opinions about  Roe vs. Wade in a 2017 lower court case (see https://www.vox.com/policy-and-politics/2018/7/12/17564048/brett-kavanaugh-roe-wade-views), and for opinions in another matter, the Mueller investigations, but on the grounds of Kavanagh’s own prejudgment. Those do not rest on the constitutional argument made here.

[4] While Trump ’s commitment to achieve a particular result in a matter before the Supreme Court could well be considered a violation of the Constitution. It is not readily apparent how such a challenge might be made effective other than through the political process.

 

Blog #119 – Roe vs. Wade, an Alternate Approach: Recusal


Blog #119 – Roe vs. Wade and Supreme Court Appointments

Trump’s promise not to appoint anyone to the Supreme Court who would hesitate to overturn Roe vs. Wade is unethical and an act which invalidates any appointee to the Court who if appointed ruled pursuant to it.  It would violate the U.S. Judicial Code and the ABA’s Model Code of Judicial Conduct. Were Kavanaugh to be appointed, he would have to recuse himself from take part in the consideration of that case, leaving the decisions on it in the hands of the remaining 8 court members. And that obligation to recuse himself would be an on gong one, as long as Trump remains in office – an obligation which might be thrust upon him by the remaining members in considerations from which he would need to recuse himself. .

Those concerned about the future of Roe vs, Wade to the next Supreme Court if Kavanaugh is on it are properly barking loudly out of concern, but up the wrong tree. The problem is one which Trump has created, not Kavanaugh, and which an attack on Trump’s involvement offers the route to the best solution: the prospect of a recusal of anyone he nominates from consideration of the case any time within his own term of office. .

for a more detailed statement of the argument, see pmarcuse.Wordpress.com, Blog #120 – “Roe vs Wade, An Alternate Approach: Recusal2,”

 

 

Blog #95a – Questioning “So-Called President” Donald Trump’s Mandate, Immediate Actions


#95a – Questioning “So-Called President” [1] Donald Trump’s Mandate:
Immediate actions, Long-Term Possibilities, Constitutional Questions.

This blog, and the blog before it, Blog #95 – “Given the Electoral College, who “won” the 2016 Election?” – summarize the findings of Blogs #92a to #95 on “so-called President” Donald Trump’s claim to have won the election as president of the United States, and suggests some Immediately practical reforms of the Election Process in the United States They raise some longer-term issues about the constitutionality of the Electoral College per se, issues whose results in the 2016 election deserve wide discussion. [1a]

IMMEDIATE ACTION POSSIBILITIES.

First and foremost, questions about the legitimacy of the 2016 election process and its results must become matters of wide-spread concern and debate. That means raising in the public debate the question of the legitimacy of Trump’s Electoral College “win,” challenging every boast that Trump or his positions represent a landslide, a majority, a popular consensus, a mandate, etc., every time such claims are made. It is in fact estimated at only 27.2% of all eligible voters at Blog #93.

Watching how the question is formulated is important.

It’s not “What did Trump do to win the Presidency, “ but “what aspect of the Electoral process enabled him to claim that office when he in fact only received a minority of the popular vote in the election for it?”

Nor is “what did Clinton do wrong that cost her the election?” the key question. She in fact got almost three million more votes than the nearest contender for the office. The question is rather, “Why, if Clinton got a significant plurality of all votes cast in the election, did she not get the Presidency?”

And it’s not, “How could Trump convince a majority of the voters of his ultra-conservative agenda,” but “How was it a relatively small proportion of the electorate (my estimate above was 27.2% of those eligible to vote} could impose such an agenda on the rest of the country?”

Perhaps even more important in the public discourse, a recurrent theme among those defending Trump and his policies, and many presumably “neutral” commentators” is that,” after all, he was elected the President of the country, and, whether you agree with him or not, you have to respect that he is the legally chosen representative of the people and must be recognized as speaking for them in what he says and does.” “He got elected; live with it,” goes the line.

But that’s precisely wrong, and runs against across the grain of the whole theory of democratic government Trump is not entitled, now that he has “won the election,” to impose his particular agenda on the country by executive mandate or administrative fiat. On the contrary; he was elected by the
votes of 62,980,160 voters out of a total population of eligible voters of 231,556,622, or 27.2 % of the electorate. He has an obligation to represent all of those 231,556,622, whether they voted for him or not, or didn’t vote at all. [1b]. His voters actually represent a minority of the American citizenry , and in fact not even a plurality of the actual voters.{See Blog #93} He not only has no over-riding mandate behind his policy positions, he in fact has a positive mandate to compromise, to consult, to listen, to bring people together. Supporters or interviewers who are content to stop at, “after all, he’s the President,” mistake how a real democracy functions.

LONGER TERM ACTIONS

Longer term but needing to be kept constantly on the table, is the National Popular Vote proposal (NPV}. It is simple. It would have every state have its Electors in the Electoral College allocate their votes in the same proportion as the national popular vote. If states with a majority of the electoral vote now adopted it, it would guarantee that the Electoral College result would be the same as the national popular vote.[2].

NPV has three big advantages: It is intuitively fairer, more democratic, and is simple and relatively easy to understand. And it does not necessarily favor either major political party today. It has already bi-partisan support in at least 11 states, with more considering it. And it solves the constitutional problem that Electoral College votes are weighted in favor of small states, because however many electoral votes a given state has, they will be cast to accord with the national popular vote result.

And it does not require a Constitutional Amendment to be effective, just agreement of the states having entitled to the majority of Electoral College votes.

It has two disadvantages: It does not solve the plurality/minor parties’ problem. But to do that would complicate the initial reform effort substantially. And it might still permit a plurality to win the Presidency. Only adding even more complicated (although fairer) Proportional voting methods would solve that problem (and be fairer to minor party voters as well), but seems too cumbersome for at least the first effort at reform.

Politically, the National Popular Vote Proposal is however a positive demand, for four reasons:

First, it is both intuitively and logically right. It improves democracy in government, and is likely (although not guaranteed) to advance social justice in its substantive results.

Second, it is a unifying demand, putting the leftish, Sanders wing of the Democratic Party into contact with the mainstream, and facilitating communication and persuasion in on-going political work.

Third, it highlights Trump’s minority support status, accentuating how far he is from a mandate for his policies, how strong the argument is that he must recognize the needs and demands of the majority of the voters in what he does while still in office. And,

Fourth, it is achievable –.it has already been enacted into law in 11 states with 165 electoral vote, and has further been passed by one chamber in 3 Republican and 1 Democratic-controlled legislatures. Only 270 are needed for it to become effective.

Then, a problem with both short and longer term approaches. The proportion of actual voters casting ballots among present and potential voters is strikingly less in the United States than in other developed democratic countries. Part of the reason no doubt lies in the skepticism about the difference it makes, with neither major party offering a break-through in meeting voters’ deepest concerns. But a part of the explanation for the fact that 40% of those eligible to vote did not do so lies also in the obstacles placed in the way of registration to vote in many states, which the courts are partially remedying. Strong national legislation would help.

As this is written, Trump is maintaining that that perhaps 3,000,000 votes, even among the limited numbers actually voting, were illegal. That’s been met with wide-spread incredulity. In fact, if the winner-take-all provision part of the Electoral College voting process, adopted at the discretion of each state, were dropped, the number of actually effective votes might be increased by a least an equal number.

Restoring the “preclearance” provisions of the 1965 Voting Rights Act,”, requiring with appropriate language, advance approval by a federal court or the Department of Justice for questionable state changes to voting regulations under the Voting Rights Act would surely increase the number of eligible voters significantly, removing inappropriate barriers to participation by many.

And there is a simple non-controversial measure that would undoubtedly be helpful in increasing the number of voters actually voting:

Make Election Day a national holiday

Perhaps even provide that it be a paid holiday in covered employment, as many state laws and some government contracts now provide for sick leave—perhaps by requiring Election Day as a paid holiday under the Fair Labor Standards Act.

Like NPV, the call for Election Day as a holiday is simply a good government measure, one that advances democracy, and should not become a partisan political issues. It would surely have a healthy, and progressive, impact both on how many vote and who votes; no one should object to it. And the country is surely rich enough so that it can afford one day a year of less production in the cause of better and more responsive government. And, for that matter , wouldn’t one day less of being required to go to work to make a living advance the quality of life for all our people?

CONSTITUTIONAL QUESTIONS

The constitutional questions surrounding the Electoral College are fundamental questions.
Article I of the Constitution as first adopted, provided

Article I

“…in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” [2a]

It has been almost unanimously implemented through state action since then to provide that the votes of a state shall be that resulting from a winner-take-all count, i.e. a state’s one vote shall be for whoever gets a plurality of that state’s votes,. Thus the votes of all losers in the state’s votes are disregarded in determining who has won the final vote in the Electoral College.[3]

But the Twelfth Amendment, Article II, adopted in 1804, provides:

Article II
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress
Under that provision all states have, a least since 1824, adopted a winner take all election procedure [4]. Its effect, of course, is to make the minority votes in any state irrelevant in the final count for Electors. While it might seem unfair to any party coming in second in any individual state’s race, any party winning a plurality will appreciate the rule, and thus, since winning parries make the rules it has apparently remained unchallenged over time.
But winner-take-all does seem to abridge the rights of a substantial number of voters in any Presidential election, and arguably to violates the intent of the 15th amendment.[3]
So the U.S. Constitution does not mandate that system, however. Instead, it is left up to the states to determine how they select their representatives in the Electoral College, and the states have followed the winner-take-all arrangement without serious challenged since its adoption in 1804. For the first 13 presidential elections, spanning the first four decades of the history of the United States, states experimented with many different electoral system. By 1836, all but one state, South Carolina, uses the winner-take-all method based on the statewide popular vote to choose its electors. South Carolina continues to have its legislature choose electors until after the Civil War. [4]

The Fifteenth Amendment, passed during Reconstruction, contradicts , in spirit if not in terms, this Electoral College provision. Adopted in 1870, it reads:
Amendment XV
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2.
The Congress shall have power to enforce this article by appropriate legislation

In adopting the 15th Amendment, the intent was to grant all citizens, including the recently liberated black slaves, a full “unabridged” right to vote, implicitly with a vote equal to that of all other voters. The Electoral College procedure favoring some voters over others {See Blog #94} distorted – abridged — that result. If 65,845,063 Clinton voters in the 2016 popular election had their vote discounted by 29% [See #blog 95} compared to the vote of the 62,980,160 Trump voters there is clearly something wrong. Such a discounting is an “abridgement” of their right to vote, in the terms of the 15th Amendment.

But it did not make any practical difference in the outcome then, and when it much later did, the 15th Amendment argument seems not to have been made to challenge it.

It might be argued that the language of the 15th Amendment created a class of particularly protected citizens: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” and that category of voter is not affected by the current procedures in either the national popular vote nor the votes in the Electoral College. But it should not be hard to demonstrate factually that those whose votes have been abridged in 2016 by the Electoral College winner-take –all system were indeed disparately voters who individually or as a group were disparately of a particular race and had suffered then or earlier by conditions of servitude of members of the group.. The minority voters, many of the 65,845,063 Clinton voters, were in a minority in their states although in a majority in the national vote, should be entitled to the protection of this language of the 15th Amendment

The Fourteenth Amendment’s language, with its equal protection language, does not single out any particular group for special protection, but applies to all. Its reach protects “citizens of the United States” and extends to “any person within its jurisdiction the equal protection of the law.”
While not directly referencing voting rights it contains a broad edict:

Amendment XIV, Article I

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court ruled in Bush vs. Gore.

Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966). “…once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”.”[5]

Ironically, Donald Trump himself left the door open to a challenge of the legitimacy of the results of the ‘Electoral College vote when, in the course of the election campaigning Ohio, he flatly refused to commit himself to respect the vote, whatever it would be. Trump told supporters that “the bottom line is we’re going to win.” He would “accept a clear election result,” but he would also “reserve my right to contest or file a legal challenge in the case of a questionable result.[6] Presumably, if he were to consider rejecting the vote of the Electoral College because it was rigged, he would object whether the rigging was in his favor or in Clinton’s. He simply wanted to reserve the right to challenge the results when the appropriate time came.

The public needs to engage with these questions, and the courts and the legislature should now be asked to address them directly. Until they are resolved, a dark cloud will hang over any claim of Donald Trump to the Presidency of the United States.

————————-

[1] I would never have thought it appropriate to use this phrase had not Trump himself spoken of the recent decision of Federal District judge Roberts of the Federal District Court in Washington state, with which he disagreed, as the decision of ”this so-called judge.” It may however not be inappropriate in this case; see our conclusion below.
[1a] The six most relevant recent blogs, all at pmarcuse.wordpress.com, are:
#91 – Explaining the Election in 10 Sentences – Preliminary
#92a – Electoral Reform: Outing the 1%
# 93 – Election Figures Show Trump with Only 27.2% of Eligible Voters-What Mandate?
#94 – In What Ways is the Electoral College Illegitimate Today? #95 – Given the Electoral College, who “won” the 2016 Election
#95a – Questioning “So-Called President Donald Trump’s Mandate+
[1b]https://docs.google.com/spreadsheets/d/1VAcF0eJ06y_8T4o2gvIL4YcyQy8pxb1zYkgXF76Uu1s/edit#gid=2030096602 https://twitter.com/totalogic
[2} http://www.nationalpopularvote.com.
[ 2a] Somewhat ambiguous language, but interpreted as meaning all the Electors from each state share one vote, that plurality in that state’s vote, and it shall be for both President and Vice President, so that those two offices will be filled by the same party..
[3] See “The Equal Protection Argument Against Winner Take All in the Electoral College: The Constitution doesn’t require the Electoral College to count votes the way it traditionally has”. By Lawrence Lessig | December 12, 2016,, available at http://billmoyers.com/story/equal-protection-argument-winner-take-electoral-college/ and Blog #94,“In What Ways is the Electoral College Illegitimate Today
[4] http://www.fairvote.org/how-the-electoral-college-became-winner-take-all.
[5] http://caselaw.findlaw.com/us-supreme-court/531/98.html
[6] http://www.usatoday.com/story/news/politics/elections/2016/10/20/donald-trump-election-results-debate-hillary-clinton/92450922/

Blog #79 – The logic of filling the Supreme Court vacancy.


 

If

The President, because his term of office runs out in January 2017, should delay executing his constitutionally mandated duties until his then newly-elected successor takes office, in the interests of full democracy

Then

The Congress, because all of its members in the House and 1/3 of its members in the Senate have their terms running out in January 2017, should delay executing its constitutionally mandated duties until its then newly elected members take office, in the interests of full democracy.

And then

The President should not nominate a candidate to fill a seat on the Supreme Court, nor undertake any other discretionary action, until January 2017, in the interests of full democracy.

And

Congress should not pass any legislation, nor undertake any other discretionary action, until January 2017, in the interests of full democracy.

And then

The President should limit himself to only administrative actions till then, in the interests of full democracy,

And

Congress should likewise limit itself to only administrative actions until then, but because it has no essential administrative duties, Congress should adjourn immediately, not to reconvene till its newly elected members take office in January, 2017, in the interests of full democracy.

 

 

#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.]

****

#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.

[4] Read more 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

Blog #52 – Place, Not Race: The Slippery Slope of Non-Affirmative Action


Place, Not Race: The Slippery Slope of Non-Affirmative Action

Sheryll Cashin argues that “we should use place, rather than race, in diversity programming” – specifically, in admissions policies to higher education.[1] She admits that that there is “an achievement gap that has made race-based affirmative action necessary,” but, because ”affirmative action is on life support” in the present Court, she argues that “the use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure.” But she is on a slippery slope, where justified disappointment with the Supreme Court’s decision in the Schuette case and efforts to get around it lead acceptance of it as permanent public policy and to a questionable legal strategy of injecting place, seeing it as race at one remove as a substitute, mistaking a spatial indicator of the existence of racism for racism itself, and in the process abandoning the political recognition of racism as an ongoing evil still needing to be fought by all possible means, including affirmative action itself. A possible legal ply because rationalized as an empirically justified retreat from the recognition of racism as an evil in itself.

Cashin’s suggestion of the greater emphasis on place, theoretically by-passing the Supreme Court’s objects to using race per se, is certainly a possibility lawyers can explore where affirmative action is actually the goal but seems legally blocked. But it is itself a vulnerable approach. Logically, if racial composition of an applicant’s place of residence is i one of the factors considered in defining what characteristics of a place should give be given extra weight in judging an application of admission, then race is indeed still being taken into account, and the approach will fall victim to the Supreme Court’s present slim majority’s apparent dedication to color-blindness. Indeed, HUD’s interest in mapping that “combines basic demographic data (age, race, disability status, English proficiency, and poverty)” is explicit in the reference to race, and may yet be successfully challenged before the present Supreme Court.[2]

The very title of Cashin’s book and subsequent article reveals the problem: “Place, not Race.” “Place Reveals Race” would be defensible, added to an already substantial body of scholarship showing the ongoing existence of discrimination and segregation by race in shaping geographic patterns. Instead, the proposal substitutes place equity for racial equity. Inequity of place is certainly statistically correlated to inequities of race, but the causal path goes from racism to spatial pattern, not vice versa.[3]

The issue of racism, and of affirmative action as among possible remedies, is not simply a legal issue. It is inherently political. Cashin’s defense for dropping consideration of race in college admissions is that including it “raises the question of whether the marginal benefits of getting more blacks into elite institutions… are worth the political costs of continued racial division.”[4] She advocates “race-neutral reforms” as the path to creating a racially diverse politics in which “white working class whites and people of color share a common agenda,” an eminently desirable goal, but until it is reached ducking the question of racism is not race-neutral, but supports the status quo.

To suggest that it can be avoided by measures dealing with poverty, “neighborhood characteristics,” “oppositional culture,” or other characteristics of place, should be recognized as questionable policy. Justice Sotomayor’s dissent in the Schuette case is eloquent testimony to the continued importance of race. Taking race out of the equation diminishes the opportunity to address racism. Cashin’s implicit legitimation of the practice is counter-productive.

A New York Times story,[5] seen after I wrote the above, reinforces the point. It compares an “economic diversity” approach with a “racial diversity” approach, favoring the latter as an alternative to affirmative action in college admissions, and citing the Cashin book as a source. The article doesn’t pretend to compare either approach to an affirmative action approach. In the figures it presents, black/Hispanic comes out at 10% of admissions, in “racial diversity”, using income as a factor, and 16% with “economic diversity,” using income as a factor. Even completely randomizing, Black/Hispanic are at least 30%. There’s no doubt affirmative action would produce a much higher result.

But beyond that, the logic is treacherous. The “economic diversity” approach includes “parents’ income education, and occupation.” Blacks and Hispanics are of course disproportionately in the low end of those categories include a majority of whites. If race were also taken into account, the proportion of blacks admitted would be substantially higher, and if race were the sole factor, even much higher.

Logically, the argument is strange. It is in the first place passing strange to hold that race, a constitutionally protected category, cannot be considered and positively addressed in admissions policies, but parentage or occupation, not constitutionally protected, can.[6] And if the standard of success is indeed measured by the proportion of black/Hisp in the student body under the different approaches, and if it is accepted, as it should be, that race enters clearly into parents’ income, education, and occupation, then if one wants to remedy the injustices of racism, one has to isolate it as a factor in income, education, and occupation as well as in applications for college admission. The best indicator of how racism has affected the lot of applicants to college is to look at the percentage of black/Hisp admissions compared to their percentage in the population as a whole. Assuming the good will of college admissions officers, using parents’ incomes as a criteria in admissions indeed favors blacks/Hisp, because race affects income, but so do other factors; it’s not a 100% correlation. If one want to deal with the impact of race, one needs to deal with race, not just with one partial correlative of race. Adding other partial correlatives, e.g. place, or occupation or education, helps only marginally.

Lawyers in constitutional litigation of course have to deal with Justice Roberts’ vacuous proclamation:

“The way to stop discrimination on the basis of race is to stoop discriminating on the basis of race” [1].

as best they can. But perhaps the court will one day go back to Justice Blackmun’s “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.” [8]

In the meantime, it should be remembered, certainly by social scientists and professors, that the purpose of affirmative action is not simply to get more black/Hispanic applicants into universities, but to help end racism, the unconstitutional discrimination against individuals because of their race.

[1] “Place, Not Race: Affirmative Action and the Geography of Opportunity.” Poverty and Race Research Action Council, vol. 23, No. 3, May-June 2014.

[2] Indeed, another well-reasoned argument for “Community-Driven Exclusion Mapping” by Peter Gilbert, in the same issue cited above, is explicit in its advocacy of racial composition and segregation in viewing patterns of housing use.

[3] It is unclear if Cashin shares this view. She writes: “…racial and economic segregation beget racial inequality,” p, 2. “Beget” may simply be an unfortunate choice of words.

[4] Op. cit., p. 10.

[5] David Leonhardt, “If Affirmative Action is Doomed, What’s Next?” New York Times, June 17, 2014, p.3.

[6] Countless anti-discrimination laws explicitly list race as a protected category, and a statistical evidence showing impact by race is widely allowed in evidence to help judge the existence of an impermissible disparate racial impact.

[7] Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

[8] Regents of the University of California v. Bakke, 438 U.S. 265 (11978)