Noah Kazis's important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Kazis surfaces two dimensions of housing that generate inequality and that are sometimes invisible. Kazis highlights the role of planning and design rules – the seemingly identity-neutral zoning, code enforcement, and land-use decisions that act as a form of law. Kazis also reveals how gendered norms underlie those rules and policies. These aspects of Kazis's project link to commentary on the often invisible, gendered norms that shape the design of ordinary objects, public space, data, and automated algorithms. As to housing specifically, Kazis's emphasis on gender is noteworthy; most examinations of exclusion in housing and land use concern race and class. Kazis takes up the invitation of Professor Dolores Hayden, a prominent urban historian, to imagine how we might redesign urban spaces and rethink the connection between the city and suburb. Kazis's focus on "sex" means not just women as a broad category, but women who own businesses, participate in the wage economy, and need childcare zoned in their neighborhoods, as well as men who are low-income and need single-room occupancy (SRO) and other housing arrangements to make housing affordable.
The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The pandemic has had a particularly grave impact on people of color and low-income individuals, while also affecting a wide array of tenants, students, and health care, service and "gig" workers. One consequence for law and policy is that addressing the social dislocations caused by the pandemic might lead to profound changes in what Americans consider essential goods for a sustainable society. This chapter examines government efforts to buttress the social infrastructure in response to the pandemic in the area of family and sick leave, employment discrimination, unemployment insurance and income security, and housing and utilities (including broadband access). The chapter considers the promise and the limitations of this emerging response. It then provides a practical guide to key legal and policy changes relevant to tenants, workers, students, and low-income individuals.
American society is facing a daunting array of political and social challenges. The ascendance of Trump reflects deep political fissures that seem to have calcified over the last four years. Blatant racist appeals have become part of ordinary politics and our core democratic foundations have been shaken by the emergence of an ethno-nationalist populist ethic that is skeptical of government and evidence based expertise. The killings by police of unarmed black people, and the convulsive protests in response, made plain the persistence of racism. The pandemic has further ravaged our society: exposing pre-existing race- and class-based inequalities, and — by destabilizing health, income, housing, and neighborhoods — threatening to exacerbate those inequalities. As we recover from the pandemic amid government budget cuts and unemployment, the political possibilities risk being constrained by a narrative of scarcity.
The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the pandemic are borne disproportionality by low-income workers and workers of color. For instance, lower-income workers are more likely to be employed in jobs that increase their risk of exposure to the virus such as working in sanitation and janitorial services, food services and grocery stores, and in delivery. Yet the pandemic also eschews the imagined categories of who is deemed vulnerable or not. Its effects cannot be so easily contained, extending broadly into society – affecting a wide array of "gig" and service workers, health care workers, tenants, and students – and revealing our inevitable connections to one other.
What does gentrification mean for fair housing? This article considers the possibility that gentrification should be celebrated as a form of integration alongside a darker narrative that sees gentrification as necessarily unstable and leading to inequality or displacement of lower-income, predominantly of color, residents. Given evidence of both possibilities, this article considers how the Fair Housing Act might be deployed to minimize gentrification's harms while harnessing some of the benefits that might attend integration and movement of higher-income residents to cities. Ultimately, the article urges building on the fair housing approach but employing a broader set of tools to advance a more robust form of integration. This broader framework would attend to how public and private goods are distributed in gentrifying cities, and build governance and participation mechanisms that enhance the voice and participation of traditionally excluded groups.
This contribution to the Constance Baker Motley Symposium examines the future of civil rights reform at a time in which longstanding limitations of the antidiscrimination law framework, as well as newer pressures such as the rise of economic populism, are placing stress on the traditional antidiscrimination project. This Essay explores the openings that nevertheless remain in public law for confronting persistent forms of exclusion and makes the case for greater pluralism in equality law frameworks. In particular, this Essay examines innovations that widen the range of regulatory levers for promoting inclusion, such as competitive grants, tax incentives, contests for labor agreements and licenses, requirements attached to land-use development, and scoring systems for public contracts that reward entities for pursuing equity goals. Relying on these types of regulatory incentives and levers expands the mechanisms typically employed to advance integration and equity and builds on tools available not just at the federal level but also at the state and local level. Even in the present political environment, this Essay argues there is utility in advancing new regulatory regimes that move beyond the formalist, liberalist assumptions of traditional civil rights regimes and that seek to link questions of identity inclusion to economic inequality and the distribution of public goods.
Is racial inequality an unwelcome intruder to the new discourse on economic inequality? The present discourse on economic inequality emphasizes decades-long trends that have increased economic inequality, whether as a result of reoccurring features in the structure of capitalist economies or more recent changes in institutional, structural, and economic conditions. Researchers direct us to the rising fortunes of the top earners and asset holders relative to the rest, the declining fortunes of the middle class harmed by stagnating wages, and the declining share of industries (like manufacturing) in the economy. This new economic inequality discourse has preoccupied economists, garnered its own "beat" in leading publications, led to bestselling books, transfixed current political debates, and now (finally) seduced legal academia. The new economic inequality is salient in part because it is a phenomenon not fully constrained by race, ethnicity, or geography that risks altering the fortunes of all "our kids," including those formerly firmly ensconced within the American dream. Racial inequality, by contrast, is not new. One might debate the extent, trend line, and causes of racial inequality, but the fact of racial inequality (that socioeconomic status differs on the basis of race or ethnicity) is neither much in contention nor novel. Perhaps for this reason, the role of racial inequality in this new calculus is uncertain. One may note that certain racial, ethnic, or gender groups have experienced greater income and wealth losses from the recession, losses as yet unrecovered. Or even that trends that affect many Americans, such as wage stagnation for lower skilled jobs, declines in unionization, or changes in the relative share of manufacturing jobs, affect some groups more than others. But the fact of racial inequality is a given. Indeed, what is "new" about the present discourse on American inequality is that it emphasizes changes that affect us all. As one commentator recently put it pointedly: "[S]tructural inequity has leapt the racial barrier." Add to the unremarkable, un-newness of racial inequality that race may complicate the search for solutions. The proffered solutions to the new economic inequality are not typically targeted at particular racial or ethnic groups. Rather, solutions seek to increase the rewards from work for all (through stronger worker organizations and wage gains), alter the general tax structure, and increase investments in and the quality of training and credentialing institutions like college and apprenticeship programs. And momentum on economic inequality seems most vigorously organized behind movements such as minimum-wage increases and paid sick leave that eschew a racial lens not just, it seems, for expedience, but because these remedies urgently address the immediate harm of wage and work conditions. Indeed, even highlighting racial inequality as a distinct problem does not necessarily require adopting race- or ethnicity-specific solutions. Many of the interventions needed for everyone in the emerging economic reality – better education and training, higher wages – may simply be needed more urgently for historically disadvantaged groups. But the interventions are not fundamentally different. Given this account, what does one gain from highlighting racial inequality in contemporary inequality discourse? One can start by acknowledging that sometimes nothing is gained. For reasons of social-movement solidarity, tactics and strategy, and efficacy of solutions, race is often not the point. The workers who benefit from recent wage reforms or affordable housing creation are typically racially and ethnically diverse, and a majority are women. The role of racial, ethnic, or gender stratification may be salient in the condition of these workers and families, but it need not always be the dimension around which the remedies are organized.
Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history. This deployment of subnational power is not new to civil rights. Many of the laws and regulatory frameworks that are now core to the national civil rights framework started at the state level. Before the landmark Civil Rights Act of 1964, states such as Wisconsin, New York, Massachusetts, and California banned discrimination on the basis of race in employment and housing. New York's administrative disparate impact standard was the precursor to the disparate impact standard that would eventually become ensconced in federal employment law. And more recently, the 1980s and 1990s saw proliferations of state antidiscrimination laws that prohibited sexual orientation discrimination, even as legislative protections have stalled on the national level. What does appear novel, however, is the number of these initiatives in recent years alongside the possibility that these state measures might not end inevitably with national civil rights legislation. Indeed, for reasons of both political economy and institutional design, some of the most innovative examples of legislation and regulation to advance equality are likely to permanently reside at the subnational level. Many of these innovations build on recent movements to use local regulatory frameworks to increase wages and work conditions for lower income workers, and these innovations address not just identity exclusion based on race or ethnicity but also exclusions based on socioeconomic status. The political economy that sustains their emergence and implementation depends on demographics and political cultures that are largely centered on cities and large metropolitan regions. In addition, some of the innovations proliferating at the state and local levels such as local first-source hiring, community-benefits agreements (CBAs), and inclusionary zoning depend on regulatory powers exclusive to subnational governments. These proliferating state and local interventions present a different conception of civil rights than one centered on the promulgation of federal frameworks and the deployment of federal regulatory power. The aim of the civil rights project is typically national – the goal is to advance rights that belong to all citizens.That some states and localities are first-movers or have moreexpansive legislation can be consistent with civil rights as a national project. Consistent with classic accounts of states and cities as laboratories of legislation and problemsolving, states and localities can provide the regulatory models for nationally adopted civil rights legislation. States and localities can also build support among citizens and political leaders to advance adoption of these initiatives at the national level. But what if these initiatives are not in the service of an inevitable federal project of legislation and regulation? Today, one sees very little legislative activity at the federal level related to civil rights; all the interesting and important moves appear to be taken on by subnational governments. And amid uncertainty about whether these initiatives will be adopted by the federal government and diffuse "vertically," there is some evidence that these regulatory and legislative initiatives are spreading among jurisdictions. The question, then, is whether the "local turn" in civil rights law can ever be a satisfactory equilibrium for those interested in advancing civil rights and equality law. This local approach raises questions concerning the mechanisms by which these innovations will spread from one locality to another, and whether localities will have the legal, regulatory, and financial power to advance a meaningful civil rights regime. This article explores these questions and offers a cautiously hopeful account of these subnational innovations. As a practical matter, when large cities and metropolitan areas adopt these innovations, they are likely to have expansive demographic reach. Functionally, measures such as CBAs or inclusive zoning build on regulatory or legislative tools unavailable at the federal level. They thus expand the domains and points of intervention for advancing inclusion – diffusing civil rights norms to state and local actors. As a matter of political economy, these innovations, particularly those that address questions of economic inclusion like bans on source-of-income (SOI) discrimination and limitations on credit history depend on local movements and local politics. These local movements are hard to sustain at a national level and can play a crucial role in the politics of implementation. Finally, these subnational innovations are remaking the very nature of what we call "the civil rights project." Whether or not these innovations are fully successful yet, they demand a serious look if one is concerned with expanding regulatory models of inclusion. These new state and local measures provide routes around the limitations of the federal civil rights model in addressing subtle bias and structural exclusion.
Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history. While the deployment of subnational power is not new to civil rights, what does appear novel is the number of these initiatives in recent years alongside the possibility that these state and local measures might not end inevitably with national civil rights legislation. Many of these innovations build on recent movements to use local regulatory frameworks to increase wages and work conditions for lower income workers, and these innovations address not just identity exclusion based on race or ethnicity but also exclusions based on socioeconomic status. The political economy that sustains their emergence and implementation depends on demographics and political cultures that are largely centered on cities and large metropolitan regions. In addition, some of the innovations proliferating at the state and local levels such as local first-source hiring, community-benefits agreements (CBAs), and inclusionary zoning depend on regulatory powers exclusive to subnational governments. This article explores whether this "local turn" in civil rights law can ever be a satisfactory equilibrium for those interested in advancing civil rights and equality, and offers a cautiously hopeful account of how these subnational innovations might succeed and even spread beyond particular localities.
In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act"). In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," a series of Supreme Court decisions interpreting the Equal Protection Clause, which some claim achieved much of what was sought by the ERA. Without diminishing the gains of the "de facto ERA" or revisiting the failed ERA itself, Seith's narrative shifts attention to the legislative gains achieved by the Equity Act. My aim in this response is to connect Seith's account to a broader discussion about the role of statutes and legislatures in advancing equity and to locate the Equity Act in relation to other civil rights statutes. Seith offers at least three important insights into the capacity of legislative lawmaking to further equity goals. First, Seith's account shows how Congress can serve as a key site for advancing constitutional norms. As I discuss below, Seith's insight can be extended further to other civil rights contexts. Civil rights statutes like the Equity Act, the Civil Rights Act of 1964, and the Fair Housing Act of 1968 have the potential to advance a more capacious and affirmative conception of equity than can be attained merely through a constitutional lens. The equity norms advanced by these statutes are connected in crucial respects to constitutional norms but are more expansive. Second, Seith's account allows us to consider the limitations of the antidiscrimination conception in advancing equity. Seith crucially notes that the provisions of the Equity Act sought economic equity and substantive equality, rather than "equality in theory." I show that the Equity Act is not unique among civil rights statutes in moving beyond prohibitions of antidiscrimination to advance equity. As I discuss below, other civil rights statutes – both the paradigmatic civil rights statutes of the 1960s and a newer wave of statutes – do more than prohibit discrimination; they adopt a broader set of tools for advancing inclusion. Third, Seith reveals differences between the Equity Act and the typical civil rights statute: the Equity Act does not centrally engage courts, and it is not framed in the language of rights. Indeed, the Equity Act may be marginalized in legal commentary for these reasons. I argue that more generally, legal commentary should provide greater discussion of civil rights statutes that do not depend on court enforcement. I point to statutory and regulatory interventions that do not rely on private enforcement in courts, but rather on implementation through legislative and administrative bodies. Seith's account of the Equity Act should encourage legal commentators to expand our conception of law to encompass the full range of legal interventions in courts and in legislatures that seek to promote equality. In this Article, I discuss these three key points, bringing in examples of both longstanding civil rights statutes and some more recent enactments. The majority of my examples come from efforts to address racial and ethnic equality, but the models extend beyond these examples. Finally, I argue that Seith's account of the Equity Act raises important questions for future exploration by scholars of civil rights law. To best promote equity one must understand the relationship between various modes of societal change: constitutionalism and legislative change; antidiscrimination and substantive equality; and litigation and nonlitigation strategies. These explorations should prove valuable not simply to academic commentators but also to those seeking to effect change in society.
Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities. Exploring these features has relevance for understanding the current stimulus. Key aspects of the stimulus entrench funding and programmatic structures that promote racial inequality, defer to states and localities rather than advance explicit civil rights rules and norms, and miss key opportunities to innovate to promote racial inclusion and equity. Yet, this Essay argues that even with these limitations, the stimulus presents opportunities for civil society groups to learn from the lessons of New Deal and postwar programs by using the stimulus to promote racial inclusion and equality. Indeed, this Essay shows that the magnitude of the stimulus is generating a new set of laws and regulatory institutions designed to promote transparency and accountability in federal spending. These interventions, this Essay suggests, provide promise for interrupting the mechanisms through which federal spending perpetuates inequality, and for leveraging the stimulus to advance racial inclusion.
On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute's broad purpose and placed significant weight on Congress' failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court's opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a Congress divided on this issue, and a presidency at war with itself. In the end, the story suggests that Bob Jones may have a limited role in shaping interpretive methodology, but that the case reveals how all three branches of government (as well as the public) interact to shape a statute's meaning.
Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best presented to the legislative bodies" and that "it is not the responsibility – or indeed even the right – of this Court to determine the appropriate punishment for particular crimes." Putting aside the question of whether the Court's concerns about institutional competence are sincere, the Court has raised similar concerns in other constitutional cases involving racial disparate impact claims. For instance, in Washington v. Davis – the Court's first clear holding that violations of the Fourteenth Amendment require proof of intentional discrimination – the Court held that rules affecting disparate impact "should await legislative prescription." Similarly, in Administrator of Massachusetts v. Feeney, the Court established a standard for proving intentional discrimination approaching malice, and again directed disparate impact claims to legislatures, stating that "[t]he calculus of effects, the manner in which a particular law reverberates in a society is a legislative and not a judicial responsibility." Thus, the Court has repeatedly argued that the legislature is the appropriate venue for addressing disparate impact claims. The problem, of course, is that advocates turn to courts precisely because legislatures are seen as unresponsive. The legislature may be unwilling to critically examine the death penalty or other criminal justice issues because of a weak constituency militating in favor of reform and political pressures to expand rather than curtail criminal justice penalties. Even when public sentiment may drift away from favoring harsh punishments – as, for instance, in recent polls that show declining support for incarceration for non-violent drug offenders – legislatures may be slow to act because the constituency favoring reform is diffuse, while the constituency favoring tougher penal laws is well-organized and vocal. A central theory justifying judicial review is that legislatures are often unresponsive to issues affecting racial minorities, and, by some accounts, the United States' relatively harsh criminal justice policies (as compared to other Western democracies) are in part a result of the confluence of race with criminal justice. David Garland, for instance, casts punitive responses as resulting from the "criminology of the other," the meting of harsh punishments to perceived social outcasts – at this time in history largely poor blacks – who "lack political power and are widely regarded as dangerous and undeserving."
In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination orjustified by "legitimate" agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage. This Article casts the DMC standard as a partial response to the failure of constitutional and statutory standards to discourage actions that produce racial disparity. A limitation of the disparate impact framework, particularly in the context of Title VI of the 1964 Civil Rights Act, is that courts adopted a narrow view of causation, unwilling to risk holding public actors responsible for broader racial inequality. By contrast the DMC standard, enforced not through litigation but through federal government oversight and advocacy by nongovernmental organizations, requires public actors to address how their practices interact with conditions of racial inequality, even apart from their complicity in creating those conditions. The DMC approach innovatively responds to the complex mechanisms that sustain contemporary racial inequality. Legal commentary has properly focused on the role of implicit bias, but this Article argues that one must look beyond bias to combat structural patterns of racial inequality. The Article concludes by discussing federal statutes similar to DMC, and suggests that these approaches might be the manifestation of a new civil rights politics
Douglas Massey and Nancy Denton's American Apartheid argues that housing integration has inappropriately disappeared from the national agenda and is critical to remedying the problems of the so-called "underclass." Reviewer Olati Johnson praises the authors' refusal to dichotomize race and class and the roles both play in creating and maintaining housing segregation. However, she argues, Massey and Denton fail to examine critically either the concept of the underclass or the integration ideology they espouse. Specifically, she contends, the authors fail to confront the limits of integration strategies in providing affordable housing or combating the problem of tokenism. Massey and Denton also fail to explain why, given the intractability of racism, they believe integration is more likely to be successful or politically viable than economic investment in inner cities. Ms. Johnson concludes that the book's proposals would not aid most poor African Americans.
