Category Archives: Race

New Book: “Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973”

Racial TaxationNew Book: Camille Walsh, Racial Taxation: Schools, Segregation, and Taxpayer Citizenship, 1869–1973 (2018). Summary below:

In the United States, it is quite common to lay claim to the benefits of society by appealing to “taxpayer citizenship”–the idea that, as taxpayers, we deserve access to certain social services like a public education. Tracing the genealogy of this concept, Camille Walsh shows how tax policy and taxpayer identity were built on the foundations of white supremacy and intertwined with ideas of whiteness. From the origins of unequal public school funding after the Civil War through school desegregation cases from Brown v. Board of Education to San Antonio v. Rodriguez in the 1970s, this study spans over a century of racial injustice, dramatic courtroom clashes, and white supremacist backlash to collective justice claims.

Incorporating letters from everyday individuals as well as the private notes of Supreme Court justices as they deliberated, Walsh reveals how the idea of a “taxpayer” identity contributed to the contemporary crises of public education, racial disparity, and income inequality.

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New Article: “Undignified: The Supreme Court, Racial Justice, and Dignity Claims”

New Article: Darren Hutchinson, Undignified: The Supreme Court, Racial Justice, and Dignity Claims, 69 Fla. L. Rev. 1 (2017). Abstract below:

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the concept of dignity in order to redress discrimination against disadvantaged classes. Other opinions make appeals to dignity in order to protect or recognize fundamental rights or liberties for marginalized groups. These rulings—together with progressive uses of dignity in foreign constitutional law and in human rights and humanitarian law—have led some scholars to promote dignity-based litigation as an alternative to the Court’s formal equality doctrine. Advocates of racial justice, however, should approach these arguments with extreme skepticism. Current doctrine relies upon dignity to invalidate race-based remedies and civil rights statutes. The Court, however, does not recognize the stigmatizing nature of de facto discrimination. Equal protection doctrine extends greater protection to privileged classes than to disadvantaged groups. Judicial ideology, rather than lack of a persuasive theory of equality, explains these results.

[Self-promoting post] Jotwell Review of Rothstein’s The Color of Law

9781631492853_198My review of Richard Rothstein’s The Color of Law: A Forgotten History of How Our Government Segregated America (2017) has now been published by Jotwell. I highly recommend the book.

New Article: “A Poor Mother’s Right to Privacy: A Review”

New Article: Danielle Keats Citron, A Poor Mother’s Right to Privacy: A Review, 98 B.U. L. Rev. (2018, Forthcoming). Abstract below:

Collecting personal data is a feature of daily life. Businesses, advertisers, agencies, and law enforcement amass massive reservoirs of our personal data. This state of affairs—what I am calling the “collection imperative”—is justified in the name of efficiency, convenience, and security. The unbridled collection of personal data, meanwhile, leads to abuses. Public and private entities have disproportionate power over individuals and groups whose information they have amassed. Nowhere is that power disparity more evident than for the state’s surveillance of the indigent. Poor mothers, in particular, have vanishingly little privacy. Whether or not poor mothers receive subsidized prenatal care, the existential state of poor mothers is persistent and indiscriminate state surveillance.

Professor Khiara Bridges’s book, The Poverty of Privacy Rights, advances the project of securing privacy for the most vulnerable among us. It shows how the moral construction of poverty animates the state’s surveillance of poor mothers, rather than legitimate concerns about prenatal care. It argues that poor mothers have a constitutional right not to be known if the state’s data collection efforts demean and humiliate them for no good reason. The Poverty of Privacy Rights provides an important lens for rethinking the data collection imperative more generally. It supplies a theory not only on which a constitutional right to information privacy can be built but also on which positive law and norms can develop. Concepts of reciprocity may provide another analytical tool to understand a potential right to be as unknown to government as it is to us.

Three articles about MLK and poverty

New Article: “Buchanan and the Right to Acquire Property”

New Article: James W. Ely Jr., Buchanan and the Right to Acquire Property, Cumberland L. Rev., SSRN 2017. Abstract below:

This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the due process clause of the Fourteenth Amendment. The article stresses that the right to acquire property, as in Buchanan, serves to protect the interests of the economically disadvantaged, racial minorities, and fledgling entrepreneurs.

Although courts continued to invoke the right to acquire property, by the early twentieth century such right was increasingly limited by the spread of occupational licensing and enactment of laws hampering competition in certain businesses. This trend was facilitated by the emergence of New Deal jurisprudence which downplayed the rights of property owners and emphasized judicial deference to the economic judgment of legislators. As judicial review of economic regulations became largely perfunctory, occupational licensing and entry barriers proliferated in the years following World War II. Recently, however, some courts have looked skeptically at laws restricting entry into common occupations. The article concludes that the right to acquire property, although often ignored, retains some vitality.

New Article: “Side by Side: Revitalizing Urban Cores and Ensuring Residential Diversity”

New Article: Andrea J. Boyack, Side by Side: Revitalizing Urban Cores and Ensuring Residential Diversity, forthcoming Chicago-Kent L. Rev. Abstract below:

Fifty years ago, the Reverend Martin Luther King, Jr. expressed a hope that someday people of all races would “live side by side in decent, safe, and sanitary housing.” Residential patterns in America today, however, remain highly segregated by race and income. The Fair Housing Act outlawed overt housing discrimination and unjustified discriminatory impacts, but zoning laws and housing finance structures have continued to impede housing integration, leaving communities nearly as racially homogenous as they were in the mid 20th century. These separate neighborhoods are far from equal. The majority of people who reside in financially distressed city-center neighborhoods are non-white. Historically, efforts to renovate city centers have perpetuated racial housing segregation by moving impoverished minority residents out of gentrifying areas. City-center revitalization is a key way to promote community health, wealth, and safety, but revitalization efforts must improve diversity as well as infrastructure. Revitalization efforts that include housing for all income levels and amenities that enrich all residents can help combat not only continuing racial disparity of opportunity in this country, but also the indicia of un-resolved racial animus that both geographically and psychologically divides the nation.

Failing urban cores represent one of today’s biggest societal problems. Decades of population and income loss have left many urban neighborhoods trapped in a physical, economic, and social death spiral. Cities present great potential sources of wealth and culture for society. It will be challenging for municipalities, regions, and states to create and execute plans to rebuild decaying urban neighborhoods in a way that will both generate economic opportunity and sustainably integrate people of different races, ethnicities, and income levels. Federal financing structures and local zoning laws should be harnessed to achieve that vision. At the very least, financing and zoning programs and policies must be reformed so that they are no longer barriers to integrated gentrification.

Market trends support the city investment effort. The “American dream” concept of home is no longer unitary, focused solely on single-family detached homes on large lots in far-flung suburbs. Housing preferences seem to be shifting toward denser, more walk-able, urban-feel mixed-use neighborhoods; provided, however, that those neighborhoods are safe and provide adequate amenities and services. The market’s renewed demand for quality urban housing presents an opportunity for urban revival. Municipalities can salvage their city centers by aligning their land use laws and affordable housing policies to catch and ride this wave of consumer demand. Financial institutions and zoning approaches need to modernize in order to encourage and enable the creation of multi-use neighborhoods and properties. Innovative zoning and financial tools can be employed not only to achieve a redesigned city’s integrated physical infrastructure, but also its income, racial, and cultural diversity.

This article discusses the need to reform financial structures and zoning approaches in the context of needed urban redevelopment. Part I explains the inadequacy of historic affordable housing programs, pointing out that these have been insufficient to provide equitable housing opportunities and have, in fact, entrenched the problems of city-suburb divide and racial and income segregation. Part II posits that federal housing assistance should be re-imagined in a more holistic way, focused first on improving a neighborhood rather than individual renters or units. It also discusses some creative ways that federal and local agencies may enlist private investment and involvement in community revitalization efforts while retaining necessary control. Part III advocates that city planners move away from use-segregated zoning approaches and embrace inclusionary approaches that will promote neighborhoods that are diverse with respect to property uses and types of residential housing options. With the proper foresight and incentive structures, urban gentrification can be channeled to maximize housing integration and neighborhood stability.

Op-Ed: “How US authors worried over white poverty in 2017 – and forgot about everyone else”

Op-Ed: Rafia Zakaria, How US authors worried over white poverty in 2017 – and forgot about everyone else, The Guardian, Dec. 28, 2017.

New Article: “Disparate Impact and the Limits of Local Discretion after Inclusive Communities”

New Article: Stacy E. Seicshnaydre, Disparate Impact and the Limits of Local Discretion after Inclusive Communities, 24 George Mason L. Rev. (2017). Abstract below:

In upholding the disparate impact theory of liability under the Fair Housing Act (FHA), the Court simultaneously made sweeping pronouncements in favor of residential integration and issued safeguards protecting the legitimate exercise of local discretion in the area of housing policy. Some commentators see these pronouncements as irreconcilable. This Article harmonizes the Court’s competing pronouncements using history, precedent, and the Inclusive Communities opinion itself.

The Court eases the tension between federal mandates and local prerogatives by articulating a vision of FHA disparate impact liability as a targeted “barrier removal” mechanism rather than a blunt instrument “displac[ing] valid governmental and private priorities.” As I have explored in earlier work, this is the vision largely implemented by the lower courts for forty years. Justice Kennedy cited this work in acknowledging that “the heartland of disparate-impact suits target[s] artificial barriers to housing.”

In particular, the Court’s safeguards address three interrelated concerns implicating how disparate impact theory might curb the legitimate exercise of local discretion and lead to unintended consequences, particularly in the siting of affordable housing. The Court disapproves challenges to racial imbalances alone without identifying policies causing the imbalances; challenges based on second guessing valid local priorities; and “abusive” challenges to legitimate neighborhood revitalization efforts.

Justice Kennedy’s opinion does not privilege local government discretion over fair housing objectives. It merely gives local governments running room to tackle the objective in a manner suited to the jurisdiction. Thus, the question is not whether local governments may work to overcome segregation, but how. This concept is reinforced by Justice Kennedy’s use of the term “valid” in referring to the governmental priorities requiring deference. A priority tending to perpetuate segregation and racial isolation cannot possibly be valid, under any construction of the Fair Housing Act text, purpose, regulations, and Inclusive Communities opinion.

Moreover, revitalization activities are not immune from challenge if they perpetuate racial isolation and limit housing choices. Strategies consisting solely of placing low-income housing in distressed neighborhoods function as barriers to integration; the remedy for segregation is not more segregation. On the other hand, a city’s revitalization activities are consistent with the FHA if they expand housing choices and ultimately serve as redress for practices that have perpetuated racial isolation.

The only principled reading of Justice Kennedy’s opinion, therefore, is that the exercise of local discretion to overcome housing barriers and “mov[e] the Nation toward a more integrated society” is legitimate and entitled to deference. Local discretion used to erect housing barriers and perpetuate racial isolation, even under the auspices of “community revitalization,” is not legitimate and is subject to challenge.

Interactive Map: “Racial imbalances in U.S. public schools”

Interactive Map: “Racial imbalances in U.S. public schools” – Brookings Institute, Nov. 20, 2017.