National Review MLK Day Fail: Disparate impact

Update: While I was out doing things today Scott Lemieux literally wrote this piece for me, ten times wittier and more concise, of course, and leading with a remarkably similar joke. It was the first thing I read after posting. But there's a bunch of other stuff in this one anyhow. Besides I've got the picture, and the National Review piece we're writing about is actually a lot worse than Lemieux even realized once you get to the second paragraph.

From somebody else who likes to run photos of Dr. King smiling and wearing a hat, at Relationships Matter Now.

As most conservatives understand, Dr. Martin Luther King uttered only 35 words in the course of his entire life—

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

—and what he meant by those words, oddly, was, "If a white student scores two points higher on the LSAT than some given black student, then the white student should be admitted to the University of Michigan Law School."

This year, though, it was looking different, and I'd begun to think all the conservatives were fleeing from the usual celebration of the conservative Dr. King (Edroso finds a brand-new strain of condemning the liberal-fascist Dr. King, emitted into the ether by Ann Althouse, discussing how LBJ and MLK plotting the push for new civil rights legislation in 1965 took their inspiration from Hitler, because of course Hitler was totally ruthless in his passion for racial integration and voting rights and whatever it took to get more civil rights legislation passed in Germany), but a Roger Clegg at the National Review hasn't given up, and offers a learned legal four-little-children argument to commemorate the holiday:

It’s felicitous that two days after Martin Luther King Day this year, the Supreme Court will be hearing oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves the “disparate impact” approach to civil-rights enforcement, and that approach is contrary to Dr. King’s famous dream of a day when Americans would be judged by the content of their character rather than the color of their skin.

(Boy, do I hate that bastard use of "felicitous" as an elegant synonym for "appropriate" without attention to the connotation that it should be a particular agreeable or fun surprise, like, "I have Monday off this week, and guess what! Scotus is hearing oral arguments in Texas Department of Housing on Wednesday, isn't that a hoot?" Maybe it's felicitous for you, Roger.)

The piece starts off with a staggeringly dishonest analogy:

Suppose that the owner of an apartment complex decides that she does not want to rent units to people with recent convictions for violent crimes. She makes this decision for obvious reasons, namely that such criminals are unreliable tenants and that their presence makes it harder to rent other units and more likely that current tenants will decide to leave. She does not adopt this policy because she thinks it will disproportionately exclude members of this or that racial or ethnic group — indeed, she is completely unaware of what demographic impact it will have — and she applies it evenhandedly, without regard to skin color or national origin. What’s more, she can prove all this in court.

This is a real issue in the interpretation of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968, last of the great series of Great Society laws passed by Congress in the Johnson Administration with the continual support and spiritual guidance of Dr. Martin Luther King, Jr.) where the federal government has just begun deciding where it stands. According to the Final Rule promulgated by the HUD last March, people with felony convictions are not a protected class, and landlords are entitled to reject ex-cons as tenants as long as they do it in a non-discriminatory way—not, say, doing criminal background checks only on members of one ethnic or racial group, just like Clegg's imaginary landlady.

However, such a rejection could have a discriminatory effect on black men whether the landlady intends it or not, because the proportion of black men with felony convictions is a lot larger than that in other groups, and it's particularly unfair because it isn't because they're more criminal, it's because they get busted more often: black men are overwhelmingly more likely to be convicted and jailed for offenses that white men virtually always get away with, especially drug use—only 6% of marijuana cases lead to a conviction, but of those about 1.5% are white and 4.5% black, although blacks and whites actually smoke about the same amount; and after conviction blacks are ten times as likely to go to jail. Denying them housing can have a multiplier effect on how likely they are to end up in prison again, too, if it prevents them from reuniting with their families and increases their chance of ending up homeless; you're a lot less likely to commit a crime if you have a family and a home.

Accordingly in June 2011, HUD secretary Shaun Donovan wrote not to nice and non-discriminating landladies but to municipal and state-run Public Housing Authorities and to the owners of HUD-assisted housing asking them to use less restrictive criteria; not to admit felons into their projects in spite of their qualms but to look more closely at the individual cases and loosen up the rules so that they could rent to a former felon if that felon had encouraging family and social support.

Via.

It may well turn out, in the next few years, they will find that allowing felons into public housing does not harm anybody, and it may turn out that they will eventually get around to sending Clegg's landlady a letter of her own suggesting some better ways of keeping the axe murderers out of her building than by barring everybody who ever had a blunt in his pocket when an uninvited cop stuck his hand in there on a stop-and-frisk (and maybe put the blunt there himself). But she is not going to be forced to welcome the axe murderers, ever.

Nevertheless, this has exactly nothing to do with Texas Department of Housing. That's the staggeringly dishonest part. If you read Clegg's column in the assumption that he is writing in good faith and coherently, you will literally believe that his fictional landlady is a party in the case to be argued before the Scotus on Wednesday, because he dwells on her nonexistent case at some length, while failing to discuss the Texas case at all, as if he is attempting to hide it from his readers, which he may well be doing.

The Texas DOH (as ScotusBlog explains) is charged with deciding which landlords could get a federal tax credit for providing affordable housing; the Inclusive Communities Project, a local nonprofit that finds voucher-supported housing for low-income African American families, found that there were landlords willing to rent to their clients, but whenever they asked the DOH for the tax credit for a landlord in the mostly white Dallas suburbs, it was denied; only requests for the credits for landlords in the inner city were approved. So the Project sued the DOH, arguing that the agency was allocating the credits in such a way as to further racial segregation, and the federal district court found in their favor. The state then appealed the decision to the Supreme Court—not that they have any evidence that their procedure does not further racial segregation, but on the grounds that they're not doing it on purpose and therefore immune from suits under the Fair Housing Act.

This is where the concept of disparate impact comes in. It has long been recognized that certain types of discrimination can occur without anybody doing it on purpose, and it has also been recognized that even if they were doing it on purpose it could be really hard to prove it. However you can show that a particular behavior pattern or institutional policy has a "disparate impact" on one community or another and argue not that somebody should be punished for it but that it should be fixed. If your object is to rectify a bad situation rather than call somebody a racist and make them feel bad (trust me: they'll never feel bad), this is the way to go.

The state of Texas says that the text of the Fair Housing Act prohibits only actions that discriminate "because of" race, and that their kind of discrimination is not that kind of discrimination whether it has a disparate impact or not, so they can't be sued. The Inclusive Communities Project

emphasizes that Congress passed the Act to correct the consequences of both intentional racial segregation by the government and practices by the housing industry that had the effect of continuing racial segregation. “Importing an intent requirement” into the text of the FHA, it maintains, would be contrary to Congress’s purpose – to say nothing of the long string of decisions by the courts of appeals holding that the FHA encompasses disparate-impact claims.

And the Obama administration agrees:

That interpretation is consistent with the text and history of the FHA, the government says, which “focuses on the consequences of the action – the unavailability or denial or a dwelling – rather than the motivation of the actor.” Indeed, although Congress amended the FHA in 1988, it did not change the text of the FHA to preclude disparate-impact claims, despite the decisions by the courts of appeals allowing such claims.

You will note that there is no sense here in which anybody is judging anybody by the content of their character or the color of their skin, unless it's the Texas DOH preventing people it knows to be people of color from moving into certain areas. Since they won't tell us why they're doing that, how are we even to guess whether it's racist or not? But it is clear that somebody is being denied a dwelling, and the somebody is always black. That's what a disparate impact is.

Clegg deploys the landlady fantasy to dupe readers into believing that there would be a disparate-impact case with character-content vs. skin-color judgment issues, should it ever be realized, but there wouldn't. He wants you to imagine the poor old thing forced to rent apartments to black people just because they're black, but that's not any part of the deal. There will be no such judgment unless the landlady is really a racist mega-landlady who just doesn't want any black people in her extensive holdings (it has to be pretty big for a disparate impact to be measurable), in which case she'll be the one doing it. She wouldn't be asked to choose a black person over a white one; she would be asked to make a more complex and sensitive judgment of the ex-con applicant's character than just looking at their criminal record, and she would be expected to apply that judgment without regard to the applicant's race.

It is clear to me that what Clegg and his people really want is for state authorities to be able to override federal authorities and create whatever kinds of impact they want. I'm not saying they're racists, I'm saying they don't give a fuck whether their actions have racially harmful consequences, and they should.

As Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund writes, Dr. King would certainly be powerfully on board with the Inclusive Communities Project:

Although the Fair Housing Act has already been successful, it still has more work to do because the legacy of these discriminatory policies persists in many areas. Ferguson, Mo., offers a contemporary example of such ruinous effects. While the recent crisis in Ferguson arose from racial bias in policing, the underlying dynamics can be traced back to discriminatory housing polices....

Yet in the same week that we celebrate Dr. King's life, the Supreme Court threatens to upend a key provision of the Act, and with it a crucial tool for eradicating residential segregation. Shortly, the Court will hear arguments in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. At stake is a legal protection which ensures that banks, landlords, and others use policies that apply fairly to everyone. The protection also prevents mortgage lenders, for example, from adopting policies that seem neutral in theory, but unfairly exclude or segregate particular communities in practice. More than 40 years of legal precedent uphold this central protection of the Fair Housing Act, including rulings by eleven federal circuit courts across the country, and enforcement efforts by Democratic and Republican presidents alike dating back to the Nixon administration.

The outcome in this case will determine whether the Act can continue to be used, as it has for decades, as a tool to replace discriminatory policies with ones that roll back the tide of residential segregation. This is a unique time when the nation's eyes have been refocused on the racial dynamics that undergird our society. Let us seize the moment and celebrate the vision and endeavors of Dr. King -- and hope that the Supreme Court will do the same by allowing his work to continue through the Fair Housing Act.

From the website of Inclusive Communities, where you can see the following:
"We are caught in an inescapable network of mutuality, tied in a single garment of destiny." 
- Dr. Martin Luther King, Jr. in “Letter from the Birmingham City Jail,” 1963
What? What? Where's the skin color and character content in that quote?