For a case to reach the Supreme Court, it must involve a big principle of Constitutional law and there must be some jurisprudence along the litigation trail to suggest current precedents are in conflict with one another.
[New York City involuntary landlord James Harmon didn't have conflicting jurisprudence – however wrong I think all the jurisprudence was (and it was), it was all consistent, so the court denied him certiorari. Which was too bad. – Ed.]
Thus any case that reaches the Court is seen, for better or worse, as Symbolic of Something Larger. Yet few are the cases that begin as symbols; instead, most of them start with local people in a local dispute – though along the way, something may happen, as the Constitutional lawyers and the Washington punditocracy take over, until the facts are lost and only the symbol remains.
Polita Rodriguez, resident of Mount Holly Gardens, NJ.
The Mount Holly Gardens residents [of Mount Holly Township, New Jersey] were never seeking to be at the center of a major civil rights dispute. They just wanted to stay in their neighborhood. Many of the remaining residents were simply elderly people who didn’t want to give up homes they owned and expected to live their lives in just to become tenants again.
The irony is greater if the symbol that supplants the case was the wrong one from the beginning, as in the case of Mount Holly Gardens, as reported on MSNBC.com (November 15, 2013):
Mount Holly settlement spares Fair Housing Act—for now
Now, the story I used as raw material is so far in the tank for a particular symbolic outcome that the editorial drowns the news, but by rearranging the paragraphs and applying some actual knowledge, one can scrape away the varnish of political orientation and discover the real story underneath, a story entirely missed by MSNBC and for that matter almost everybody else, all of whom were off chasing the wrong symbol.
Scraping away varnish
This story isn’t about ‘disparate impact’ as a basis for civil right discrimination, but about eminent domain for economic development … though you wouldn’t know that to read the MSNBC story.
The settlement came too late to save Mount Holly Gardens –
That statement, like so many in the MSNBC piece, is both judgmental and wrong. No one was arguing that most of Mount Holly Gardens should remain – the available photographs show clearly obsolete homes that needed to go somewhere to die.
Standing but not inhabitable: a Mount Holly relic under demolition
(The spray paint reads, “W&S done”, meaning water and sewer disconnected.)
At issue was whether the occupied homes could be taken (with compensation) and the residents evicted from their neighborhood to make way for an improved neighborhood.
– but it spared the Fair Housing Act, for now.
Not the Act, but rather the Obama Administration’s novel (both new and questionable) redefinition of a critical civil-rights provision in the Fair Housing Act:
Disparate impact is a legal concept that says a practice may be discriminatory if it has a disproportionate effect on minorities, even if discrimination is not intended.
I’m sure you were discriminating, and I’m going to extract the discriminatory element
Over the past five years [That is, ever since President Obama took office – Ed.] , the Obama administration has used disparate impact and the Fair Housing Act to extract record settlements from banks and financial institutions that they say charged minorities more for loans or steered them into lower quality loans than similarly qualified white borrowers.
In other words, the Administration found a legal argument, disparate impact, to claim that activities with a stated neutral purpose were discriminatory if the results were not socioeconomically neutral.
If you think about it for ten seconds, this almost certainly applies to every set of rules. They will have disparate impact on some group of some bodies, and if that group believes itself to e a protected class, then it can sue, either to stop something or to be paid something.
After a decade-long legal fight over the destruction of its only predominantly minority neighborhood –
Though I shall do as little textual correction as I can manage, it helps to highlight the spin that precedes the facts. To call it the “destruction of the only minority neighborhood” is to see the case solely in racial terms, and hence to decide it on the politics, not the law.
A place that reports the free rabies clinic and the Kate’s Tract Trash Collection
– the New Jersey Township of Mount Holly agreed to a settlement late Wednesday that will end the litigation and deprive the Supreme Court of the opportunity to
weaken the Fair Housing Act [adjudicate the Constitutionality of the Administration's interpretation. Couldn't let that go by unremarked. – Ed.]
Here, for example, is a different perspective:
The high court was expected to revisit a controversial legal principle known as “disparate impact,” which has been used for decades to enforce the antidiscrimination Fair Housing Act of 1968. Opponents of the principle had hoped the high court would rule it unconstitutional, while civil rights groups hoped that it would be upheld.
Attorney Phil Stein (Pstein@bilzin.com) with Bilzin Sumberg Baena Price & Axelrod LLP writes, “Many held out great hope that the Supreme Court argument would take place as scheduled, and would ultimately lead to a strong rebuke to ‘disparate impact’ allegations by the CFPB and other oversight bodies in fair lending and UDAAP cases. Those allegations essentially make lenders vulnerable to civil liability and enforcement in instances in which no one contends that the lender had any discriminatory intent, and no one disputes that the lender’s policies are anything but neutral and even-handed. The claim, therefore, is that those neutral, fair-minded policies nevertheless led somehow to inequitable results for a protected group. The settlement prevents the highest court in the land from having the opportunity to perhaps rein in disparate impact claims or eliminate them altogether.”
I remember passage of the Fair Housing Act, which was presaged in Simon and Garfunkel’s 1966 Silent Night:
Silent night … holy night … all is calm … all is bright
President Johnson originally proposed an outright ban covering discrimination
by everyone for every type of housing but it had no chance from the start
and everyone in Congress knew it.
A compromise was painfully worked out in the House Judiciary Committee.
Fair Housing was a signature civil rights initiative (Title VIII of the 1968 Civil Rights Act) of the Johnson Administration. Its goal was simple – to prohibit outright discrimination by private owners against ‘those people’ (at the time, universally understood to mean principally Negroes, as they were called then) and banned four things (see Section 804):
1. Refusal to sell or rent a dwelling to any person because of race, color, religion, sex, or national origin.
2. Discrimination based on race, color, religion or national origin in the terms, conditions or privilege of the sale or rental of a dwelling.
3. Advertising the sale or rental of a dwelling indicating preference of discrimination based on race, color, religion or national origin.
4. Coercing, threatening, intimidating, or interfering with a person’s enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of fair housing rights.
All that is pretty black and white (as it were): if a person was discriminated against by overt action (refusal to sell or rent, showing only the bad apartments, advertising a preference, coercion), there was a viable complaint. All these practices had, sad to say, been if not common then at least recurrent features of landlord and realtor behavior in the racially tense 1960s
Dr. Martin Luther King says he does not intend to cancel plans for an open
housing march Sunday into the Chicago suburb of Cicero.
Cook County Sheriff Richard Ogleby asked King to call off the march and the
police in Cicero said they would ask the National Guard to be called out
if it is held.
King, now in Atlanta, Georgia, plans to return to Chicago Tuesday.
The Cicero march, 1966
From there the law’s regulatory and administration reach expanded, as administrative reaches do. (I once participated in a HUD organizational redesign session in which the facilitator commented, “If you have a Department of Firefighting, you can be pretty sure that 49% of the employees are clandestine arsonists.”) Attempts have been made to apply it to refusal to reconfigure apartments for the handicapped, and the range of ‘protected’ classes has range as the number of individuals in each one has shrunk. In purely administrative terms, the eventual endgame is that every individual is a protected class of one.
None of that was on the minds of the mayor and city council of Mount Holly when they started their eminent domain taking of Mount Holly Gardens:
[Continued tomorrow in Part 2.]