The Administration Attack on Anti-Discrimination Laws

August 6, 2019

It was reported recently that the current Administration is trying to eliminate so-called disparate impact cases under the Fair Housing Act.[1] The press reported it as forcing plaintiffs to prove intent to discriminate. Actually it would make it all but impossible to prove housing discrimination in any form. So, even though the regulations haven’t been finalized, I’d like to get out ahead of it.

Think about the problem from the point of view of an attorney. A client tells you he or she has been discriminated against. What evidence do you look for?

You can look for an admission – “I refuse to give you a job or sell you a house or rent you an apartment because you are Black, brown, or yellow, or because you pray to the wrong God.” There are occasions when people will scream out such language. Maybe an email. It’s rarer on paper. But their lawyers have told them to shut up with the racist language because it will open them to litigation. So you keep your eyes and ears open but don’t expect such gifts to land in your legal file.

The alternative is circumstantial evidence. Circumstantial evidence is a pretty ordinary method of proving things whether in a criminal case, racial discrimination case or many others. Discrimination is easily defined, and Congress has legislated that there is discrimination where the impact on people of one race, sex or religion is very different from those of another race, sex or religion and there is no decent justification for that behavior.

The late Justice John Paul Stevens, concurring in the case that first demanded evidence of intent,[2] made it clear:

“Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor.”

And he continued:

“the line between discriminatory purpose and discriminatory impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court’s opinion might assume.”

Because, to put it clearly, evidence of unjustified impact is evidence of intention. So what the Administration and its conservative supporters are saying is that there shouldn’t be a way to prove a violation of the Fair Housing Act or the 14th Amendment Equal Protection Clause. Discrimination happens, get over it. Just another example of people with the power to act with impunity, injuring others without fear of paying the price.

Put it another way, prejudiced judges and administrators will have a fig leaf – you couldn’t prove misbehavior because all you have is consequential evidence. And, with the exception of Kennedy and occasionally O’Connor, the conservative justices on the Rehnquist and Roberts Courts have made the most of that fig leaf, blind to discrimination in front of their faces.

There are people who believe they have no stake in the welfare of African-Americans. But they do. When communities decay, they affect us all. They bring down wages, cost us for the services needed because of the problems in those communities, and cost us the benefits that people in functional communities provide the rest of us – the doctors, scientists, teachers, people in all the professions that serve us all. There is a huge cost in substituting disfunctional for functional communities. Undermining people’s ability to take care of themselves and their families undermines the ways communities work, and we all pay the cost.

[1] Chris Arnold, A New Trump Rule Could Weaken A Civil Rights Era Housing Discrimination Law, All Things Considered, July 31, 2019, 5:20 PM, available at https://www.npr.org/2019/07/31/747006108/a-new-trump-rule-could-weaken-a-civil-rights-era-housing-discrimination-law.

[2] Washington v. Davis, 426 U.S. 229, 253, 254 (1976) (Stevens, J., concurring).

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Why Its Values Made America Great & the alt-Wrong Would Impoverish It

March 25, 2019

Last week I spoke about Trump’s other threats to American principles, unity, democracy and world power. This week I’d like to address why they matter.

Equality is a central American value, enshrined in the Declaration of Independence and throughout the Constitution. Racial, religious and ethnic discrimination are at the heart of Trump’s attacks on refugees from Islamic countries, the so-called caravan from Central America, Puerto Ricans after the hurricane, and kudos to his alt-wrong loyalists after deadly attacks. But discrimination is extremely costly to all of us, not just to the victims. It denies us the best available people for jobs and wastes our efforts in unproductive battles with each other. Lincoln told us that “a house divided cannot stand.” Economists describe such battles as deadweight loss – deadweight because they add nothing to national welfare, income or resources; loss because the battle is expensive in time, money, and lives. The Civil War was an extreme example, killing and maiming a large proportion of American men. Economists add opportunity costs – all the time, money and lives that could have been put to productive and useful purposes. In effect by dividing us and dividing our politics on unproductive issues, the alt-wrong is beggaring America, making it poor again.

Democracy is also central to American values, enshrined in our founding documents. But Trump tries to shred the freedom of the press to criticize elected leaders, principally him. He tries to dismantle the obligation of office-holders to obey the law. And he tries to dismantle democratic processes to solve issues by verbal discussion, not guns, what he has called “Second Amendment rights.” His misbehavior proves that democracy makes mistakes. But democracy invites America to focus on the general welfare, not the welfare of the “dear leader” as Kim is described in Korea or his American friend here. Sure, there is plenty of corruption which our emoluments clause would have reduced had the Republican leadership paid more attention to our Constitution. But the Constitution provides the means to kick the bastards out, encourages competitors to try and parties to appeal to the great bulk of us, not just the rich and famous. Democracy could do better if more Americans took the principles of democracy seriously, including fair elections with universal adult suffrage and honest campaigning. Democracy is the scaffold; we get its benefits only if we cling to it.

American values of equality and respect have had a unique power in this world, allowing people across this globe to see the value of our principles to them, as respected members of the world that America tried to create. Chris Giannou said on Alternative Radio that people in much of the globe “love you for your values. They hate you for your hypocrisy, because you do not live up to your values.” Our values galvanized a unified free world. They underlay all the institutions the free world created to keep us united and working together. We still talk freely about working together in the context of sports. But Trump and his alt-wrong see no value in unity and working together and despise it in politics and world affairs. They waste their energy and ours in destroying the ways this country spread its influence across the world and led the world in the protection of freedom and democracy.

So yes, America can be torn apart. But what awaits is the whirlwind, the war of all against all, in which none of us is safe. All the blessings of unity, democracy and world power are at stake.

—  This commentary is scheduled for broadcast on WAMC Northeast Report, March 26, 2019. For comments on the Mueller report that I included on air, see the next post.


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