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."
Fox News has repeatedly promoted GOP-led efforts to implement voter ID laws, but yet another conservative media figure acknowledged on Fox's own airwaves that there is no widespread voter fraud problem in the country.
Voter ID laws have long been a priority for right-wing media outlets even though experts say that such laws burden the voting rights of millions of Americans, particularly minorities, the poor, and the elderly.
In the last two days, Fox has picked up the torch for voter ID laws again, pointing to a story of a dog in Virginia who apparently received a voter registration card by mail. The group that sent the card said that the registration card went astray because of an error that occurred with the mailing list they received from a vendor and that it is unlikely to be a widespread problem because of the steps the group takes to ensure their lists' integrity.
Furthermore, no new voter ID laws are necessary to deal with this case. No vote can be cast in the dog's name because the Help America Vote Act already requires voters who register by mail to show identification such as a driver's license, a utility bill or the like, in order to vote.
But while pushing voter ID laws, one conservative media source went off-message yesterday. When Democratic strategist Christopher Hahn noted on Fox Business' Lou Dobbs Tonight that there is no evidence of "broad-based voter fraud," Wall Street Journal editorial board member Mary Kissel agreed, saying that "nobody's alleging" that broad-based voter fraud exists.
Following North Korea's failed launch of a long-range missile, conservative media attacked the Obama administration over a deal between the United States and North Korea on nuclear testing, arguing that it was a mistake. But experts have rejected that criticism, saying that the administration's pursuit of the deal was "the smart thing to do" and that not taking "this initiative would have missed an opportunity" to test the intentions of North Korea's new leader, Kim Jong-un.
Last Thursday, North Korea launched a long-range missile, defying international pressure and violating a deal with the United States in which North Korea had agreed to suspend uranium enrichment, nuclear tests, and long-range missile tests in exchange for food aid. The rocket ultimately failed, disintegrating shortly after the launch, but conservatives seized on it to attack the Obama administration for pursuing a deal with North Korea.
Conservative Washington Post blogger Jennifer Rubin wrote:
Once again, engagement with despots and diffidence in the face of provocation have emboldened a brutal dictatorship and lessened U.S. credibility. Watching all of this unfold, no doubt, are the mullahs. The North Korean example is instructive to them, especially given that Obama's approach so closely mirrors his stance toward them: Try fruitless negotiations; defer to international bodies; finger wag and condemn (but not too vigorously); remain relatively mute on human rights; downplay any military option; and have no plan "B" when sanctions fail. Come to think of it, this is also his approach to China, Russia and the other tyrannies on the planet. That's Obama for you: Speak softly and carry a very tiny stick.
On Fox Broadcasting Co.'s Fox News Sunday, Fox News host Mike Huckabee said that "the only thing that fizzled worse than the missiles of North Korea the other day was probably the Obama policy." He continued:
HUCKABEE: Charles Pritchard, who has advised both the Bush administration and the Clinton administration, admitted that Barack Obama's policies toward North Korea have been a miserable failure. Because if you say you're going to hold food, you better do it. Then you look horrible to withhold food from people who are over there eating grass, and even the cows are eating better than the people in North Korea. It's a horrible situation, and it's not going to be made worse, and the U.S. will get the blame, and they're going to keep looking for ways to build those missiles anyway.
Wall Street Journal editorial board member Mary Kissel blasted the administration for having a "schizophrenic foreign policy," and wrote: "The only prudent policy is for the White House to junk its speak softly, carry a little stick approach, but don't count on that happening in an election year."
However, national security experts have rejected that criticism.