The Wall Street Journal is joining the right-wing campaign against President Obama's nominee for Secretary of Labor, Assistant Attorney General for Civil Rights Thomas Perez, by uncritically pushing the unsubstantiated claim that Perez improperly colluded with the City of St. Paul, Minnesota, to withdraw a Supreme Court civil rights case.
In reporting on President Obama's official nomination of Perez to head the Department of Labor, the WSJ repeated the claim that Perez inappropriately interfered with Magner v. Gallagher, a Supreme Court civil rights case that could have provided the conservative justices with an opportunity to strike down decades of civil rights precedent. Specifically, although the City of St. Paul has clearly stated it withdrew Magner v. Gallagher because it feared a split Court might use it to strike down the established practice of proving discrimination by showing the racial effects of challenged policies - “disparate impact” litigation - the WSJ uncritically repeated the allegation that Perez was improperly involved. From the WSJ:
The nomination of Mr. Perez as labor secretary comes as some congressional Republicans have raised questions about his alleged involvement in the Justice Department's decision to stay out of two lawsuits against St. Paul, Minn., in which private plaintiffs alleged the city defrauded the U.S. in its use of housing funds.
Republicans have questioned whether the Justice Department stayed out of those cases in exchange for St. Paul dropping an appeal pending at the Supreme Court in a case that civil-rights advocates had feared would undercut enforcement of U.S. housing-discrimination law.
This recycled right-wing attack focuses on the completely unsubstantiated accusation that Perez acted improperly in conversations with St. Paul officials and ensuing Department of Justice litigation strategy in other cases involving the city. The WSJ previously alleged Perez orchestrated a "shady quid pro quo" for the city in exchange for dropping Magner v. Gallagher. The smear was repeated by Congressional Republicans in the lead up to Perez's nomination.
However, right-wing media's baseless insistence that Perez did something wrong appears to be just an excuse for them to attack the decades-old and highly effective "disparate impact" doctrine. Under Perez's leadership, DOJ has successfully utilized this doctrine in anti-discrimination enforcement ranging from the protection of communities of color from voter suppression to the predatory loaning practices of big banks.
Modern civil rights law has long recognized that constitutional anti-discrimination principles prohibit both discrimination in treatment and discrimination in effect. Because proving racist intent behind violations of anti-discrimination law often runs into the unsurprising fact that on-the-record admissions of racism are rare, using evidence-based analysis to prove the discriminatory effects of challenged policies is critical to combating systemic discrimination. This use of “disparate impact” analysis has been particularly effective in vindicating fair housing law and has been approved by every single appellate court in the country.
As explained by an attorney for the NAACP Legal Defense and Education Fund:
“The search for racists is for the most part a fool's errand. There is no way in a court of law to prove or know what is in someone's hearts or minds,” Damon Hewitt, an attorney at the NAACP Legal Defense and Education Fund, said at the housing conference. “The preoccupation with disregarding racially disparate impact means people are willing to accept racial disparities and then say there is nothing the law should do about it.”
Because the conservative bloc of the Supreme Court had made clear it is willing to overturn progressive civil rights law that protects communities of color in pursuit of a non-existent “colorblind” Constitution, right-wing activists have been eager to present cases to the Supreme Court that provide such an opportunity. When the City of St. Paul sought to prevent landlords of sub-standard housing from cynically using “disparate impact” analysis as a defense in Magner v. Gallagher, civil rights supporters from the NAACP to former Vice President Walter Mondale joined Perez in warning city officials of the danger. As reported by Supreme Court expert Joan Biskupic:
[The intervention by civil rights advocates and DOJ] underscores how liberals today often try to avoid the court while conservatives believe the timing is right for them.
The case that was to be heard on Wednesday, Magner v. Gallagher, centered on local housing-code enforcement but would have tested federal Fair Housing Act protections for racial minorities against predatory lending and other abusive mortgage practices.
The St. Paul case began after the city stepped up enforcement of its housing code against conditions such as rodent infestation, missing dead-bolt locks and inadequate heat. In a set of lawsuits challenging the city's action, landlords contended that “selective” code enforcement was driving up their costs and forcing them to abandon or sell buildings.
In the part of their case that prompted national civil rights leaders to intervene, the landlords claimed the city was engaged in illegal housing discrimination because the tough enforcement ended up mostly hurting African Americans and other racial minorities who make up the majority of low-income renters. The landlords, in an unusual twist on a fair-housing claim, said the city's enforcement was driving them to sell or abandon property, exacerbating the shortage of rentals for racial minorities.
St. Paul ultimately accepted the advice of Perez and others and withdrew its case, reasoning it could require the landlords to raise their housing standards at trial, even if the landlords misuse “disparate impact” precedent. Right-wing media completely ignores this non-scandalous explanation.
Right-wing media also ignores that the DOJ's strategy of choosing which cases to bring before a Supreme Court bitterly split on the last half-century of civil rights precedent follows the non-controversial litigation strategy of previous administrations. As Judge and former George W. Bush Attorney General Michael Mukasey said about the standard Perez should follow in a 2011 interview with Fox News: “the Justice Department has limited resources and you bring cases that have merit and that are clear winners.”