Don't Litigate It, Don't Ever Talk About It: Right-Wing Media's Solution to Racial Discrimination

Ta-Nehisi Coates' much-praised essay, “The Case for Reparations,” that recently appeared in The Atlantic has given right-wing media a fresh opportunity to argue that the best way to address racially discriminatory laws or policies -- such as housing segregation -- is to never speak of them, let alone litigate them under civil rights law.

In Coates' essay, which ultimately calls for a congressional study on the long-term effects of the treatment of African-Americans in the United States, he explores the country's history of racism and oppression, from slavery to the Jim Crow laws to the present. Although right-wing media have been known to erroneously claim that racism is no longer a problem, the systemic effect of state and federal laws that favored whites and oppressed people of color is still felt today. As Coates explains, institutionalized oppression of black people was often sanctioned by the federal government, either through legislation that inadequately addressed racial discrimination or by agencies that propagated biased policies rooted in federal law. For example, agencies like the Fair Housing Administration often refused to insure mortgages in neighborhoods that they deemed unsuitable, perpetuating systematic housing segregation that in turn fueled other disparate racial impacts that continue today, such as separate and unequal schools. Despite the fact that redlining was outlawed in 1968 with the passage of the Fair Housing Act, the housing market is still hostile to black buyers and renters, even in neighborhoods that have taken steps to improve residential housing segregation.

Ultimately, Coates argues that the best way to even begin to evaluate how whether the government owes a debt for the generations of stolen wealth and opportunity it sanctioned would be to allow Rep. John Conyers' (D-MI) bill, HR 40, also known as the Commission to Study Reparations Proposals for African Americans Act, to proceed. The bill calls “for a congressional study of slavery and its lingering effects as well as recommendations for 'appropriate remedies.'” Conyers has introduced this bill -- which does not actually authorize the disbursement of any funds -- every year for the last 25 years, but it has never proceeded to the House floor. For Coates, HR 40 represents an opportunity to finally study the impact state-sanctioned discrimination has had and continues to have on black communities, and provide a vehicle for a “a serious discussion and debate ... we stand to discover much about ourselves in such a discussion.”

But yet again, members of right-wing media have no interest in such a discussion. 

According to J.D. Vance at National Review Online (NRO), Coates' essay was “emotionally harrowing,” but Vance still accused him of “cherry-pick[ing] data to score emotional points instead of carefully building an argument for reparations.” Vance also complained that Coates didn't focus enough on “the 75 percent of the southern white population that didn't own slaves, their wages so depressed by slave labor that they lived in arguably the most unequal society in world history.” NRO's Kevin Williamson also took issue with Coates' essay, claiming that advancing HR 40 would be meaningless -- nothing more than “another verse of that Democratic hymn, an honest conversation about race. (As though we ever talked about anything else.)”

Williamson wasn't the only conservative media figure whose solution to racial discrimination includes pretending race-conscious measures are inappropriate. Naomi Schaefer Riley, who once called for the elimination of black studies from college campuses, wrote in a recent New York Post column that we've talked enough about race. According to Schaefer Riley, Americans are “done with a national dialogue on race” and Coates' essay “offers nothing new.” She also complained that Coates' advocacy for HR 40 was evidence that “our country's media elites are still stuck on a liberal baby boomer racial narrative,” and concluded that the way forward now is not discussion, but “colorblindness.”

As far as right-wing media is concerned, Coates' uncontroversial suggestion that we study the deleterious effects of federally- and state-sanctioned discrimination, or merely discuss these issues is a bridge too far. Since talking about race is out of the question, what does right-wing media propose we do about clear racial inequalities that persist?

Right-wing outlets like The Wall Street Journal, NRO, and radio host Rush Limbaugh have come out against governmental efforts to remedy past harms using litigation to enforce fair housing laws and promote residential integration programs. When the Department of Justice went after banks who had racially discriminated against people of color, the WSJ called the lawsuit an attempt to “shake down banks for not lending enough to minorities,” and complained the agency was attempting to impose an unconstitutional “quota” system on lenders. The WSJ also claimed that the lawsuit, and other initiatives on the part of the DOJ, had done nothing more than “saddle a lot of minorities with foreclosed homes, huge debt burdens, and bad credit scores.”

NRO has frequently criticized the government's attempts to use disparate-impact litigation to enforce fair housing law -- an effective legal theory that prohibits housing practices that have a disproportionate and adverse impact on marginalized groups. Although disparate impact litigation has been used for years in other areas of the law (like employment) NRO called it “not grounded ... in sound constitutional theory” and part of a “partisan policy agenda.”

For his part, Limbaugh has argued that the Housing and Urban Development Department's mandate to “affirmatively further” fair housing was nothing more than “social engineering” and a plot on the part of the government to “force” people to move to integrated neighborhoods.

But lawsuits and policies like these are necessary to ensure that people of color have a fair shot at owning a home, especially since not much has changed since the days of the contract sellers Coates discussed in his essay, peddlers of sketchy lending contracts in which “the seller kept the deed until the contract was paid in full,” often at a price well above market value. According to The New Republic, subprime lenders have continued to target black buyers, who are “five to eight times more likely to hold subprime loans than whites. Even homeowners in high income black communities were twice as likely to have subprime loans as homeowners in low-income white communities.”

Even worse, the Supreme Court has contributed to modern racial divisions by rolling back affirmative action policies, gutting key provisions of the Voting Rights Act, and making it nearly impossible for public schools to implement proactive integration initiatives that would help diversify heavily segregated schools. Such decisions have allowed states to impose restrictive voter identification laws, have whitewashed college campuses, and nearly driven a stake through the heart of Brown v.  Board of Education, the case that outlawed state-mandated segregation in public schools. Unsurprisingly, right-wing media also determined that the recent 60th anniversary of Brown, one of the most significant civil rights victories in history, was no time to discuss racial inequalities.

If Chief Justice John Roberts had his way, we'd all follow right-wing media's lead and stop talking about race. As Roberts famously stated, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In her dissent opposing the majority's decision to uphold Michigan's ban on affirmative action, however, Justice Sonia Sotomayor countered, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Right-wing media might want to take her advice. As Coates explained, the conversation isn't close to done.

Photo via Flickr/Nathan Rupert under a Creative Commons License.