In the continuing campaign against effective civil rights law, right-wing media have recently stepped up their attacks against a federal statute that prohibits acts that have a discriminatory effect on housing patterns. Contrary to this misinformation campaign, "disparate impact" analysis (as this technique is known) is not unconstitutional under the Fair Housing Act of 1968, and conservatives' rejection of this analysis abandons its bipartisan origins.
Disparate impact is the legal term for antidiscrimination law that prohibits actions that have a disproportionate effect on vulnerable groups. Despite its effectiveness - most recently, blocking discriminatory mortgage policies and voter suppression that targeted communities of color - conservative media have attacked disparate impact's legitimacy and dismissed it as a partisan technique only progressives support.
The National Review Online is a frequent critic, calling civil rights litigation based on disparate impact "not grounded...in sound constitutional theory" and part of a "partisan policy agenda." The Wall Street Journal has echoed claims about this "dubious legal theory," joining NRO in criticizing a recent withdrawal of a disparate impact Supreme Court case under the Fair Housing Act, Magner v. Gallagher. This week, WSJ columnist Mary Kissel recycled her conspiracy theory that the Obama administration's participation in convincing the parties to withdraw the case was "shady" because the administration "didn't want the High Court to rule on the legal theory[.]"
But these right-wing critics ignore that disparate impact has been legally accepted under numerous civil rights laws for decades, and in the housing context was part of a bipartisan effort to aggressively prevent the segregation of American society. They also ignore basic Supreme Court litigation strategy.
The constitutionality of disparate impact under the Fair Housing Act has never been addressed by the Supreme Court. There has been no need to take up the issue, as all 11 Circuit Courts have recognized it as a legal method of fair housing enforcement. As explained in a recent ProPublica report, this unanimity is expected given that aggressive government attempts to reverse discriminatory effects in housing patterns were originally considered a core function of the bipartisan Fair Housing Act:
The plan, [Republican Secretary of Housing and Urban Development] George Romney wrote in a confidential memo to aides, was to use his power as secretary of Housing and Urban Development to remake America's housing patterns, which he described as a "high-income white noose" around the black inner city.
The 1968 Fair Housing Act, passed months earlier in the tumultuous aftermath of the Rev. Martin Luther King Jr.'s assassination, directed the government to "affirmatively further" fair housing. Romney believed those words gave him the authority to pressure predominantly white communities to build more affordable housing and end discriminatory zoning practices.
Furthermore, with regards to the Obama administration's alleged influence in the Magner dismissal, there is nothing unusual about Supreme Court litigators considering the Court's ideological composition in deciding whether to pursue a legal theory that breaks on ideological lines. The ability to calculate a majority is basic Supreme Court litigation strategy. Indeed, it would be surprising if the Department of Justice did not calculate the odds regarding how justices are likely to rule in its cases. This is especially true of civil rights cases, in which conservative and progressive justices have sharply diverging views on the law. As Reuters recently reported, this is why DOJ's opponents are currently rushing to the Court in their attempts to overturn decades of civil rights law:
[I]n recent years liberals have sought to avoid going to the Supreme Court in cases ranging from affirmative action to voting rights. Advocates for liberal concerns such as abortion rights and gay marriage have also kept a wary eye on the justices while devising strategy in lower courts. Some abortion-rights advocates, for example, have so far declined to challenge state restrictions on abortion based on the notion that a fetus can feel pain, even though they believe the restrictions unconstitutional.
Those on the other side have taken the opposite tack. Conservatives who have labored to get their cases to the court include Edward Blum, director of the Project on Fair Representation, founded in 2005 to challenge race-based policies in education and voting. He recently helped lawyers bring an appeal by a white student who said she was denied admission to the University of Texas because of a policy favoring minorities.
"The timing is fortuitous," said Blum, who for two decades has worked with lawyers to challenge racial policies in education and voting districts. Citing the makeup of the Supreme Court, he said: "It's well-known that there are three members of a conservative bloc who have already expressed opinions on this and it's likely that the two new members of the conservative bloc will fall into that camp as well."
If the right-wing media do not like disparate impact theory because the modern conservative movement has abandoned it, or because the theory rejects the dissenting "colorblind" perspective on modern equal protection law, it should say so and leave it at that. By instead falsely asserting disparate impact laws are illegitimate and thereby calling for the reversal of decades of precedent - and bipartisan legislation - the right-wing media not only misinform their audience, they also disregard the words of Justice Antonin Scalia in one of the Court's most recent Civil Rights Act cases: "If [disparate impact litigation] was unintended, it is a problem for Congress, not one that federal courts can fix."
From the October 25 edition of Fox News' The Five:
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Fox Business host Stuart Varney blamed President Obama for the decline in incomes for American families, for the decrease in Americans' net worth, and for the decrease in home values. In fact, each of these trends started before Obama's presidency.
On the eve of the Democratic National Convention, The Daily Caller has published a four-part, 6,000+ word series alleging that President Obama was "listed as the lead attorney" in a class action discrimination lawsuit decades ago and thus participated in a process the publication claims triggered the economic collapse of 2008. The Caller appears to have conferred the status of "lead attorney" on Obama on the basis of the fact that his name comes first on an alphabetically ordered list of attorneys; moreover, experts have said that such class-action lawsuits did not trigger the mortgage crisis.
In the 1995 class action lawsuit in question, Buycks-Roberson v. Citibank, the plaintiffs alleged that Citibank had racially discriminated against them when they sought home loans. They pointed to bank data indicating that "the percentage of loan applications approved by Citibank was far lower in areas where the racial composition of the neighborhood was predominantly African-American than it was in areas where the composition of the neighborhood was predominantly White," even when the applicants were in the same income bracket.
According to the Caller, Obama's participation in the lawsuit makes him "a pioneering contributor to the national subprime real estate bubble" and part of a movement that "contributed greatly to a housing bubble that burst in 2007, crashed the nation's economy in 2008." But both their discussion of his role in the case and their analysis of its result are deeply flawed.
Despite its flaws, the Caller piece has already been promoted by Fox News. Caller editor in chief Tucker Carlson appeared on Fox & Friends yesterday to discuss the piece and claimed that Obama "was the lead plaintiff on some of these cases," adding that the lawsuit is "significant" because it is "at the heart of the 2007-2008 economic meltdown."
Throughout its 5,000 word lead story and multiple side pieces, the Caller repeatedly inflates Obama's role in the lawsuit. In the lead piece, Neil Munro reports that Obama "helmed" the lawsuit as "the lead plaintiff's attorney." While he writes that Obama's "role was limited," he also claims that it was "his lawsuit" and that Obama "sought public credit for the lawsuit: His employer submitted a docket to the court that listed him as the lead attorney for two of the three named plaintiffs in the case." Three other Caller stories refer to Obama as the "lead attorney" or "lead counsel" for the plaintiffs.
The sole basis the Caller articles cite for this claim is the case docket. That document lists Fay Clayton as "LEAD ATTORNEY" and lists her first among the attorneys representing plaintiff Selma S Buycks-Roberson. It then provides a list of attorneys for Buycks-Roberson listed alphabetically by first name; "Barack H. Obama" is listed first. That list of attorneys includes Judson Hirsch Miner, who was a name partner at Obama's firm; at the time, Obama was an associate.
With regard to plaintiffs Calvin R Roberson and Renee Brooks, whom the Caller claimed Obama served as "lead attorney," no separate lead attorney is indicated as Clayton was for Buycks-Roberson. While Obama is the first lawyer listed representing each plaintiff, followed by Clayton and the other attorneys, these lists again are ordered alphabetically by first name. But even for Roberson and Brooks, the docket does not ask the court clerk to provide notices regarding the case to Obama; instead such notices are directed to Miner and other attorneys involved in the case.
Moreover, Obama is not listed as one of the attorneys who worked on the complaint filed on behalf of the plaintiffs. Obama also did not speak or even register an appearance during a court hearing in which the judge considered whether to dismiss the case without holding a trial. Nor did Obama sign the agreement that settled the case.
Indeed, a 2007 Chicago Sun-Times article indicates that Obama did not have an extensive role in the lawsuit, with the lead attorney for the plaintiff stating that Obama was "the very junior lawyer in that case" and "not visible" to him during court proceedings.
From the August 16 edition of Fox News' The Five:
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A recent Federal Reserve study found that the wealth gap increased during the recent recession with the median net worth of the wealthiest Americans increasing between 2007 and 2010, while the median net worth for all Americans decreased. But right-wing media have ignored or misrepresented this aspect of the report in order to attack President Obama.
Right-wing media are attacking President Obama over a recent Federal Reserve report that found that the median net worth of American families contracted between 2007 and 2010. However, right-wing media are ignoring the effects of the burst of the housing bubble and its central role in causing the decrease in the median wealth of families.
From the February 10 edition of Fox News' The Five:
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Right-wing media have responded to the $25 billion foreclosure settlement between banks and government authorities by attacking struggling homeowners who could potentially benefit from the deal -- calling it a "deadbeat bailout" -- and by whitewashing banks' alleged foreclosure malpractice. This is yet another right-wing media attack on efforts to assist struggling Americans.
From the February 1 edition of Fox News' The Five:
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"If you challenge [him], he's in your face. If you point out his failures, he denies them. If you disagree with him on anything, you're a moron."
"He loves power. He believes he is good for the nation."
For frequent viewers of Bill O'Reilly's show, the above descriptions, from the November 29 O'Reilly Factor, call to mind one person: Bill O'Reilly.
Here's O'Reilly getting in the face of Jeremy Glick, the son of a 9-11 victim who challenged O'Reilly on his pro-war views. O'Reilly called Glick's views "a bunch of crap" and repeatedly told him to "shut up."
"Good for the nation"? O'Reilly wrote a book titled Culture Warrior. He clearly thinks he's on the right side of that war.
But O'Reilly wasn't having a moment of introspection. He was attacking retiring Rep. Barney Frank (D-MA). A case of projection rather than introspection?:
O'Reilly also used Frank's announcement to celebrate his confrontation with the congressman over Frank's role in overseeing Fannie Mae and Freddie Mac. O'Reilly joined his "straight news" colleagues on Fox in falsely suggesting that Frank opposed reforming those entities.
Full transcript below the jump.
Conservatives in the media have used the occasion of Rep. Barney Frank's retirement announcement to rehash old theories of how he, through his support for Fannie Mae and Freddie Mac, caused the subprime bubble and subsequent meltdown. In fact, Wall Street -- not affordable housing programs -- was the primary cause of the financial crisis.
Right-wing media recently pushed the discredited attack that President Obama called Americans "lazy." But right-wing media figures themselves have a history of suggesting that Americans -- particularly the poor, the unemployed, and union workers, among others -- are lazy or lack work ethic.
From the November 8 edition of Fox News' Fox & Friends:
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From the November 2 edition of Fox News' The Five:
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