The current controversy regarding “affordable housing” in New Berlin illustrates the weakness of federal law regarding housing discrimination based on socioeconomic class.
By way of backdrop, New Berlin is a suburb southwest of Milwaukee on the eastern edge of Waukesha County. When a developer came forward with plans for low-cost rental housing in New Berlin, some members of the City’s largely white, bourgeois population expressed opposition. New Berlin’s Plan Commission then hastily nixed the affordable housing idea. This led in turn to an investigation by the United States Department of Justice’s Civil Rights Division.
I anticipate the investigation will not lead to legal action. No information has emerged suggesting New Berlin’s actions were explicitly aimed at racial or ethnic minorities, and this is significant when federal law is applied. The federal Fair Housing Act, for example, was enacted with race and ethnicity rather than socioeconomic class in mind. In addition, while race is surely a viable basis for an equal protection argument under the Fourteenth Amendment, socioeconomic classifications are not “suspect” and therefore can be justified with a conventional claim of rationality.
Has New Berlin engaged in housing discrimination by excluding affordable housing and the poor and working-class people who might rent such housing? It appears that the dominant ideology as re-packaged by the federal law offers little help when facing exclusionary practices geared to socioeconomic status. Under the law, the United States has no class.
You can see this ideology at work in asylum law, too, in that denial of economic opportunities generally does not constitute “persecution,” and in that socioeconomic classes are not the sort of “social groups” that receive protection from persecution. What’s more surprising, to me, is that even when government, or a non-state actor whom the government can’t control, targets a group based on its opinion about economic matters, that opinion may be deemed “not political but economic.” So, for instance, actions taken against union supporters (or opponents) may not qualify as persecution based on “political opinion,” because supporting or opposing the union is an economic activity, not a political opinion, according to this reasoning.
Intersting post.
I once spent a lot of time litigating cases like this one and David is right to suggest that it can be very difficult to locate indicia of racial bias. One strategy for plaintiffs is to try to run multiple regressions to identify a pattern and practice that wouldn’t have occurred “but for race” but that is difficult because of the way in which many nonactionable characteristics are highly correlated with race. (This type of approach would probably not be available in the New Berlin situation.)
But, under a different “ideology” or legal regime, what would discrimination based on socioeconomic class look like? Would it be limited to assumptions about what “those people” would do if permitted into the community? What if all that could be proven is that New Berlin knows that the proposed housing will consume more in city services than it would generate in tax revenue (something that is almost certainly true)?
In other words, would this expanded equal protection right include some type of affirmative right to subsidy?
Rick and Jessica,
Thank you for your comments on my post. Housing discrimination directed against the urban poor is a practice I find especially disturbing.
It’s true that it is much easier to sustain a race-related disparate impact claim against a private party than against a municipality, and that’s one reason I would like to see considerations of socioeconomic class included in our understanding of equal protection. Furthermore, I don’t think an expansion of equal protection doctrine to include class would equate to forced subsidies. Who receives the “subsidy”?
Jessica’s point that our “legal regime” (in Rick’s language) seems unable or unwilling to see economic bias as political is well- taken. The separation of the “economic” from the “political” is in itself ideological and surely well suited to preserve the immense inequalities of advanced capitalism.
David
Prof. Papke’s post is also a reminder of what a difference a single U.S. Supreme Court decision can make. Had Village of Arlington Heights v. Metropolitan Housing Authority, 429 U.S. 252 (1977) gone the other way, the situation in New Berlin would be very different.
That case involved a challenge to an ordinance of the Chicago suburb of Arlington Heights that prohibited the construction of multi-family housing units in a residential district. The effect of the zoning law was to limit the ability of lower income residents of the Chicago metropolitan area–particularly African-Americans–to move to the overwhelmingly white and middle class Arlington Heights.
The plaintiffs, a group of developers and African-Americans, sought to have the ordinance made subject to the “strict scrutiny” test of the Equal Protection Clause of the 14th Amendment, or in the alternative, allow the plaintiffs to invalidate the law simply by showing that that it disproportionately affected specific racial groups.
The plaintiffs lost at the district court level, but prevailed on appeal to the Seventh Circuit on 14th Amendment grounds.
However, by a 5-3 vote, the Supreme Court ruled that the ordinance was valid, unless the plaintiffs could demonstrate that it was motivated by an overt desire to discriminate against a suspect or protected class. This standard, the Court concluded, had not been met by the plaintiffs.
The three dissenters, all holdovers from the Warren Court, were Justices Brennan, Marshall, and White. Fellow holdover Potter Stewart voted to uphold the ordinance, and he joined by the four Richard Nixon appointees, Burger, Blackmun, Powell, and Rehnquist. (The most recently appointed justice, Chicagoan John Paul Stevens, did not participate in the decision.)
Had Arlington Heights reached the Supreme Court before 1969, it most likely would have been decided differently. Similarly, had Hubert Humphrey been elected President in 1968, his four appointees (or at least two of them) would likely have voted with Brennan, Marshall and White. This would have had the effect of making the zoning ordinances of cities like New Berlin directly subject to constitutional scrutiny, whether or not they explicitly discriminated on the basis of race.
What’s more, Gordon, had that case gone the other way, one can imagine a number of other equal protection challenges that might have been raised to the way that government funds are used to support the interests of the better off, in ways that negatively impact the lives of poor people. For instance, other municipal controls of the use of property, such as setback requirements, have the effect of keeping out people who cannot pay for such setbacks. Another example that comes to mind is the way that the interstate highway system, as it passes through major cities (at least in the cities I have lived in, which is about four), seems arranged to inhibit easy travel from poor parts of the city to wealthier parts of the city.