The Story of \u3ci\u3eBob Jones University v. United States\u3c/i\u3e: Race, Religion, and Congress\u27 Extraordinary Acquiescence

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

Unjust Cities? Gentrification, Integration, and the Fair Housing Act

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

Overreach and Innovation in Equality Regulation

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new “inclusive regulation” can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation

The Agency Roots of Disparate Impact

The disparate impact strand of antidiscrimination law provides the possibility of challenging harmful employment, education, housing, and other public and private policies and practices without the often-difficult burden of proving intentional discrimination. And yet the disparate impact standard seems to be facing its own burdens. Rulings by the Supreme Court in recent years have shaken the disparate impact standard\u27s footing. In Ricci v. De- Stefano, the Court rejected a frontal assault to the disparate impact standard under Title VII of the Civil Rights Act of 1964, but cast the standard as at odds with Title VII\u27s true core – its prohibition of intentional discrimination. In its 2001 decision in Alexander v. Sandoval, the Court refused to allow private enforcement of the disparate impact regulations issued pursuant to Title VI of the Civil Rights Act of 1964, and though it assumed the validity of these regulations, the Court noted their considerable tension with the dictates of the statute. Then, in May 2013, the Court granted certiorari on the validity of the federal courts\u27 longstanding interpretation of the Fair Housing Act ( FHA ) to prohibit unjustified disparate impacts in Township of Mount Holly, New Jersey v. Mt. Holly Gardens Citizens in Action, Inc.The Supreme Court appeared poised to decide the question, but the case was settled by the parties shortly before oral argument. The Supreme Court has had past waves of skepticism about the doctrine. The Court\u27s 1989 opinion in Wards Cove Packing Co. v. Atonio made it harder for plaintiffs to establish disparate impact claims; congressional rejection of this decision spurred the 1991 Civil Rights Act\u27s codification of a burden-shifting standard for Title VII. Indeed, even commentators supportive of disparate impact\u27s inclusionary goals question the efficacy of the disparate impact standard and ask whether the standard detracts from the assumed more important goal of addressing intentional discrimination. This Article argues that casting disparate impact as a disfavored, illegitimate, judicially created branch of antidiscrimination law fails to grapple adequately with disparate impact\u27s longstanding roots as a tool employed by agencies to implement statutory antidiscrimination precepts. Nor does this view fully appreciate the continuing role that federal administrative agencies play in shaping the meaning of disparate impact today. Investigating the role of agencies in shaping disparate impact has new urgency: the Department of Housing and Urban Development ( HUD ) recently promulgated regulations formalizing the FHA\u27s disparate impact standard.The rule\u27s legality as well as its broader legitimacy crucially depend on one\u27s view of agencies\u27 formal powers, expertise, and capacity to define and shape disparate impact. This rulemaking brings to the fore the role of civil rights and federal agencies in shaping and interpreting disparate impact. The new FHA regulations, I suggest, provide an occasion to examine afresh the disparate impact standard\u27s origins in agency lawmaking and practice. Understanding the role of agencies in developing and shaping disparate impact standards has the potential to shore up the disparate impact standard\u27s seemingly shaky normative foundations in a number of key ways. For one, including agencies in our account allows us to understand disparate impact not as a separate offshoot of antidiscrimination law invented by courts, but as a reasonable agency implementation choice given the potentially broad and conflicting meanings of the antidiscrimination directive of civil rights law. Agencies, not courts, first developed disparate impact under the Civil Rights Act of 1964, and, under standard administrative deference principles, agencies have authority to define the capacious term discrimination to include disparate impact. In addition, agencies\u27 implementation of disparate impact draws on their distinctive set of competencies relative to courts. For instance, in the context of fair housing, HUD\u27s promulgation of disparate impact rules has the capacity to stabilize disparate impact law and to provide clarity to regulated entities subject to different judicial standards. Disparate impact\u27s fate is intimately connected with civil rights\u27 hybrid enforcement regime – one that lodges implementation power not just in courts, but also in agencies

The Missing Half: Revisiting Monetary Remedies To Redress Racial Segregation

This Essay considers whether courts should have awarded monetary remedies in housing desegregation cases. By examining the relief awarded in public housing desegregation cases brought in United States federal courts between 1966 and 1994, this Essay reveals the limitations of the almost exclusive reliance on forward-looking integration relief as a remedy. The Essay argues that there is a “missing half” of remedies that courts never awarded: compensatory damages for the loss of wealth and opportunity caused by housing segregation. Forward-looking remedies that promised integration have often gone unfulfilled. Understanding these “missing” damages is crucial given recent Supreme Court rulings on race-conscious programs, as well as political and cultural debates about how to provide a remedy for the harms done by structural racism. The Essay encourages a greater focus on the role of monetary relief as compensation for racial harm going forward, while also urging that commentators and advocates move beyond calcified debates about integration versus equalization (or “place-based” approaches) as a remedy for housing segregation. As a legal and policy matter, redress for housing segregation should include a spectrum of remedies including individual compensatory damages, community-based compensation, and forward-looking injunctive relief. The Essay also has implications for the current discussions in the United States about how and whether to provide reparations for Black Americans. The Essay suggests that repair should include individual payments, given what we learn from the mixed success of injunctive relief remedies in litigation

Lawyering That Has No Name: Title VI and the Meaning of Private Enforcement

On the occasion of the fiftieth anniversary of the Civil Rights Act of 1964, this Essay examines the problem of private enforcement of Title VI. The Essay reviews the unduly constrained approach to private enforcement taken by courts in prominent decisions such as Regents of the University of California v. Bakke and Alexander v. Sandoval. Yet the Essay argues that to focus primarily on private court enforcement of Title VI will continue to relegate the provision to the margins of civil rights discourse, to make the provision appear largely as the sleeping giant of civil rights law. The practice of Title VI lawyering entails not just efforts to seek compliance in courts, but oversight, implementation, expansion, and elaboration of the provision in agencies and policy contexts, through which Title VI gains meaning and helps transform institutional practices

Towards a Law of Inclusive Planning: A Response To “Fair Housing for a Non-Sexist City”

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

Leveraging Antidiscrimination

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew on a broad set of private and public implementation tools to respond to evolving problems of exclusion. I argue that there is a value in retaining hold of the Act’s civil rights infrastructure, even as reformers develop other tools and strategies for promoting equity and inclusion. The Act continues to provide an important regulatory framework for addressing problems of exclusion facing a broad range of groups, across a range of domains (education, employment, transportation, environment, agriculture and more) and using a range of potentially powerful public and private enforcement strategies. For pragmatic as well as expressive reasons, there is value in continuing to leverage the Act’s great aspiration and powerful design

Social Engineering : Notes on the Law and Political Economy of Integration

On the occasion of the Fiftieth Anniversary of the Fair Housing Act, progress towards the Act’s goals of non-discrimination and integration is uneven. On both fronts, the last fifty years have seen some progress, but by several accounts more progress has been made on the anti-discrimination front than in advancing integration. The last fifty years have also given us a wealth of knowledge about the types of policy and planning devices — such as mobility voucher programs and inclusionary zoning — that might help achieve the goal of integration and ample data about the harms of segregation versus integration’s benefits. But what remains elusive is the political economy—understanding what will persuade, encourage, and compel governments and communities to adopt integration-advancing remedies, and how these policies might endure. The persistence of segregation seems overdetermined: the political, market, and legal incentives point largely away from integration. Segregation, though constructed and sustained by traceable government and institutional decisions, is often cast as a natural and inevitable product of geography; indeed, obscuring the mechanisms that created and sustained segregation seems part of the plan. The attempt to reverse course and move towards integration inevitably seems forced and top-down, disruptive of natural arrangements, market mechanisms, and individual choice. Even supporters of integration remedies often cast existing efforts largely as failures. This Article shifts the question of how to achieve integration away from the technocratic questions of planning and policy devices, however important, to the equally important questions of political economy — how to move a legal and political infrastructure that is engineered for segregation towards integration. No doubt this question is not fully answerable in a short Article and perhaps at all. Yet, it might be possible to gather some of what is already known about the dynamics of social change towards integration, build on that knowledge, and find openings in current law, politics, and social movements for charting a future course of action. The spirit of the Article is against the prevailing narrative of despair in fair housing, examining (1) where top-down litigation might have contributed to enduring housing reform; (2) local governments that reject the incentives towards exclusion to adopt inclusionary legal and regulatory infrastructures and regulation; and (3) where communities are organizing for bottom-up legal and regulatory reforms outside of courts

(How) Can Litigation Advance Multiracial Democracy?

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival. This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key location in which rights and social policies are contested and elaborated upon, even when progressive social justice groups may not choose the domain. Given this reality, there is value in determining what role courts can and should still play, while being attentive to movement lawyering and democratic critiques of litigation reliance. In Part I, this Essay begins by examining the current skeptical commentary on the role of courts and constitutionalism in progressive social justice advocacy. Part II considers the example of current affirmative action litigation, which illustrates the challenges that progressive racial justice movements face in advancing their conception of equal protection from a defensive litigation posture, as well as the profound stakes of such litigation. Part III sketches potential avenues for pursuing litigation that engage social movements and fill in litigation’s potential democratic deficits