Win for Fair Housing Act! (updates: How Much of a Win?)

The Supreme Court’s decision in Texas Department of Housing and Community Affairs Et Al v. Inclusive Communities Project, Inc. Et Al has just been announced. By a vote of 5-4, the application of a disparate impact standard to determine violation of the federal Fair Housing Act by state housing authorities was upheld. As recent events in McKinney, Texas (one of the communities under scrutiny by the Inclusive Communities Project in the cases leading up to this decision) demonstrate, the Fair Housing act is still urgently needed, and cannot function to promote even a meager measure of housing integration without the disparate impact standard. Justice Anthony Kennedy wrote the decision, joined by Ginsburg, Breyer, Sotomayor, and Kagan, while Samuel Alito authored a dissent joined by Scalia, Thomas, and Roberts, with Thomas authoring a separate dissent. I’ll be looking forward to reading that one (update: holy cow he argues Griggs is illegitimate and therefore disparate impact standards in civil rights law should be thrown out) and reporting a bit more on the whole business later.

update 1: 

Thoughts on the impact of the ruling: It still won’t do to get too excited, because of the inherent limits of the Fair Housing Act. The majority decision indeed affirms that courts applying a disparate impact standard to determine the legality of a public or private practice must respect legitimate business interests, and places the burden of proof on plaintiffs (those charging discrimination) to show that there is an alternative practice that also serves the needs of the entity in question. Why? because

Disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain the free-enterprise system.

This becomes inherently problematic in the area of housing because in the vast majority of housing procured through private production and financing, the profit-related decisions that occur under “free enterprise” are inherently racialized. For a suburb like McKinney, which depends fiscally on maintaining the taxable value of privately owned housing, cordoning off low-income housing from more valued properties is exactly such a decision. For a developer, racism likewise makes profit dependent on conformity to the racism embedded in the real estate market, which is elastic enough to accommodate some integration, but only up to very low limits. This has been explored by Reynolds Farley. As Maria Krysan (with Mick Couper, Farley, and Tyrone Forman) found, white opinion of Black Americans and of Black-inhabited neighborhoods was influential independent of social class in setting white neighborhood preferences. This fact of the housing market–that social class creates buying power, but racism helps define desirability and therefore value, helps to create racially isolated islands of affluence as a characteristic socio-spatial form of contemporary metropolitan America (as I’ve written about north Fulton County, Georgia). Seminal works like Arnold Hirsch’s Making the Second Ghetto and more recent ones including Carl Nightingale’s Segregation: A Global History of Divided Cities emphasize this as a key part of American and global urbanization.

Accordingly, when Anthony Kennedy writes for the Court’s majority that

Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision

a glaring asymmetry is evident. Racial considerations already affect housing decisions. The question is merely which racial considerations can be acknowledged.

In the years ahead, pressure to find other means of accomplishing the goal will doubtless continue. Given that the ruling was only 5-4 in favor of maintaining even a standard so deferential to what Nightingale calls the “racist theory of property value” as a core business practice, the Fair Housing Act will continue to face jeopardy. This is reflected in what Kennedy offers as a statement of purpose for the decision, which waters down the core purpose of the Fair Housing Act–preventing racial discrimination–to place it on equal footing with other public and private goals in the housing market:

Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely “remov[ing] . . . artificial, arbitrary, and unnecessary barriers.” Griggs, 401 U. S., at 431. And that, in turn, would set our Nation back in its quest to reduce the salience of race in our social and economic system.

Here, what Kennedy is doing (with deliberate obtuseness, I think), is separating the normal operation of “valid governmental and private priorities” from illegitimate barriers to housing access and housing outcomes. The reason that a much stronger Fair Housing Act is needed, and the reason that it must be superior to some of those profit- and fiscally-driven priorities, is that the normal achievement of those priorities has historically entailed, and continued to entail, racial segregation.

update 2:

There is some particularly significant language used by the Department of Housing and Community Affairs (the defendant) that bears some attention. That is the attempt to draw a distinction between actions taken “because of race” and racially impactful actions. What the Department wanted the Court to accept was that only decisions driven by racial bigotry, apart from any consideration of property value, development interests, the cost of land for low-cost housing, or the housing market, could create legal liability:

Emphasizing that the FHA uses the phrase “because of race,” the Department argues this language forecloses disparate-impact liability since “[a]n action is not taken ‘because of race’ unless race is a reason for the action.” Brief for Petitioners 26.

Kennedy’s decision rejects this argument, but it does it on statutory grounds, noting the consistency of usage in the Fair Housing Act as amended with other civil rights legislation upheld by the courts. This ignores a much better criticism, which is that, from the first invention of racial classification, race itself has not been the reason for racial discrimination. Race as a socially constructed category has been invented and deployed in the interests of allocating material, social, and symbolic resources. Racism as a social system coheres in the intersection of identification and differential allocation. Race itself is never “the reason” for anything. But to say that a group of neighbors organizing to keep Black residents out is not racism because the neighbors are seeking to defend property value would be complete idiocy. People have never discriminated because of any intrinsic power of “race” but because racial categorization is instrumental in preserving advantage and institutionalized as a set of social cognitions.

I’m critiquing Kennedy’s opinion here because it displays a troubling tendency to fudge, per Barbara J. Fields and Karen Fields’ discussion in Racecraft, this distinction between race and racism. In describing permissible (because ostensibly non-racial) criteria for evaluating the appropriateness of allocating housing credits, Kennedy drops this:

If a real-estate appraiser took into account a neighborhood’s schools, one could not say the appraiser acted because of race.

It simply strains credulity that a Supreme Court Justice would blithely separate the questions of school quality, property appraisal, and racial segregation; schools have been central to the dynamics of white flight and metropolitan segregation, which was exactly what the Michigan Supreme Court found before the US Supreme Court created the atrocious doctrine that segregation patterns that cross school district boundaries are an innocent coincidence.

update 3: 

There’s something weird going on in this passage, too:

If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.

First of all, Kennedy seems to be suggesting that the fear of a Fair Housing lawsuit, rather than the lack of profitability, is the main deterrent to the construction of low-income housing. I’ll wait for you to stop giggling and read on.

Second, is Kennedy really asserting that the purpose of the Fair Housing Act is to encourage the construction or renovation of low-income housing units? Federal low-income housing policies are aimed at doing that, but the language of the statute, around which the entirety of the opinion resolves, and as the opinion itself states,

addresses the denial of housing opportunities on the basis of “race, color, religion, or national origin.”

At first I thought that Kennedy had switched to refer to the Federal Housing Administration as an agency, which would make sense in terms of the focus on LIH as a policy goal, but no. FHA as an acronym refers to the Fair Housing Act throughout the opinion. So, is Kennedy conflating the civil rights statute with the federal agency? Why would he do that? I couldn’t say for sure, but I think what’s going on here is that Kennedy wants to keep disparate impact, but define huge areas of relief from liability from a judgment based on disparate impact. He does that by fudging the core purpose of the Act–preventing racial discrimination in housing and, under disparate impact, encourage housing integration–with a sometimes-but-not-always related purpose of creating more low-income housing.

And specifically, this links back to Kennedy’s suggestion that reviving inner-city housing and integrating the suburbs are both equally valid and commensurate policy goals:

From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa.

As a matter of fact, though, this isn’t exactly true. Urban revitalization frequently displaces low-income residents and accompanies racial transition that pushes people of color out, even when a quota of units is set aside for low-income residents (who are frequently made to feel completely unwelcome). And, while suburban integration is not itself a complete path to racial justice, it does tend to integrate minority youth into more complete communities of opportunity. And Kennedy seems to be hinting that if the State of Texas encourages enough of the former, it does not have to do very much of the latter. That makes this a very troubling victory indeed.

Special Issue of JAH on Mass Incarceration

The current issue of Journal of American History centers on a much-anticipated special section on the history of mass incarceration in the United States. Edited by Kelly Lytle Hernández, Khalil Gibran Muhammad, and Heather Ann Thompson, the issue is at its most effective when, whether explicitly or by implication, the assembled authors’ findings address the current policy debates around incarceration that have been catalyzed by Michelle Alexander’s The New Jim Crow. Many of the contributions also promote understanding of the particular spaces created and transformed by mass incarceration, including the sun belt, the US-Mexico border, and, in telling shadows of each other, America’s urban neighborhoods and its affluent suburbs.

As the editors note in an effective introduction to the section, understanding incarceration is essential to understanding many of the problematics that previous generations of scholars have framed, particularly for the post-WWII period.

Needless to say, when a nation chooses to police and cage many millions of people who reside within its borders, the implications for everything else that takes place in that country are vast. Mass incarceration has had a major impact on everything from how urban and suburban spaces have evolved to how electoral maps are drawn to how national borders are defined and maintained to how state and federal resources are distributed to how social movements are made and unmade to how gender roles are bolstered and undermined to how cultural norms and identities are forged and reinforced to how sexuality is profiled and policed.

Or, as Alex Lichtenstein argues in “Flocatex and the Fiscal Limits of Mass Incarceration,”

Pick up any recent textbook on modern U.S. history, turn to the last few chapters, and you will find an outline of key developments that have shaped the past four decades or so of the nation’s domestic history. Some chapter headings include “The Decline of Manufacturing,” “Retreat from Liberalism,” “The Beleaguered Social Compact,” “The Rising Tide of Conservatism,” “The Problem of Inequality,” “The End of the Long Boom,” and “Conservatism in the Courts.” Yet few of these textbooks pay attention to one of the most dramatic social transformations of this period. Only Eric Foner’s Give Me Liberty! includes as subheadings “The Spread of Imprisonment” and “The Burden of Imprisonment,” signaling to students that one of the changes that makes the world they inherit radically different from that of their parents is the huge numbers of Americans behind bars.

The claims for the significance of mass incarceration are bold, and it’s not always the case that the connection of mass incarceration to just about everything else is compellingly articulated. As the editors note,

The essays in this volume provide only a brief sketch of new work by historians mapping the terrains of a burgeoning field.

Indeed, some of the articles read like distillations (but intriguing ones) of book-length research projects, which suggests that many historians are poised to register significant contributions to the debate, enriching knowledge of the process of building mass incarceration and complicating analogies between old and new Jim Crow. As a metropolitan historian, I’m particularly drawn to the accounts of how urban and suburban places figured in the development of the carceral state and how those places were transformed by it.

On this score, Donna Murch’s “Crack in Los Angeles: Crisis, Militarization, and Black Response to the Late Twentieth-Century War on Drugs” is particularly effective. Murch exposes the complexity of intraracial political activity around the emergence and social costs of the cocaine trade in communities of color in and around Los Angeles, particularly the role of Black elites in elevating policing as a response in the early stages of the crisis and of left and working class activists in responding to the harms to individuals and communities created by Chief Daryl Gates. Although Murch is clear that Black and Brown communities in Los Angeles were irreparably harmed by the escalation of the Drug War, her analysis, which is of a piece with recent work by Michael J. Fortner, shows that a narrative of imposition, or of a “New Jim Crow” imposed unilaterally by white law-and-order conservatives, is reductive.

In hindsight, it is clear that the state appropriated real anxieties from black urban areas (such as Harlem and South Los Angeles) that were experiencing rapid economic decline and used these concerns to rationalize its war(s) on drugs. Not only did this strategy appeal to racial antipathies among white voters but it also hindered political opposition to the drug war by African Americans who were desperately seeking solutions to the public health and social crises facing their neighborhoods.

What has remained poorly understood about the rollout of LA’s notorious anti-gang and militarized police tactics is

how deeply divisive punishment campaigns proved for African American populations.

Particularly as the transformative impact of militarized policing on individuals and on Los Angeles became apparent:

Punitive campaigns against drugs and gangs in Los Angeles rationalized a new martial infrastructure. The state applied militarization unequally by focusing on historic African American and Latino neighborhoods in the south central part of the city. As in counterinsurgency strategy, the geographic application of force meant that particular populations were at high risk not only because of their age and race but also because of their location. Indeed, by 1992 city sheriffs listed nearly half of the African American men under age twenty-five in Los Angeles County as gang members. The ultimate carceral effects of this mass criminalization can hardly be overstated. The California Department of Corrections (CDC) prison population increased from 19,623 in 1977 to 162,000 in the year 2000 with over 40 percent drawn from Los Angeles and 70 percent from southern California.

The spatial inequality inherent in counterinsurgent policing within the context of a Drug War is demonstrated in Matthew Lassiter’s contribution, “Impossible Criminals: The Suburban Imperatives of America’s War on Drugs.” Lassiter shows the ways that spatial referents of urban and suburban communities, freighted with racial and social class assumptions about their inhabitants, worked to in effect police policing of drugs. The strongest claim Lassiter makes is not a rejection of but certainly a complication of the ideas driving The New Jim Crow: the drug war and the police state it has justified are not only about the project of criminalizing minorities, but also about the project of preemptively de-criminalizing whites, a project enabled by the cultural currency of suburban community as morally legitimate.

Closer attention to the suburban imperatives of the war on drugs helps explain why policy formation in this area generally has operated within a framework of consensus, especially when political and cultural forces converge around the issues of protecting middle-class communities from external threats, subduing narcotics traffickers in urban and international markets, and keeping law-breaking white youth out of prison.

Inasmuch as affluent outer-ring suburbs are marked as places from which the poor and black are appropriately excluded, those areas have likewise been marked as places from which the aggressive tactics of police and prosecutors have also been excluded–except, as recent events have shown, when such aggression targets perceived intruders.

Exploration of the deep historical roots of these contemporary disparities demonstrates that the exemptions created for white middle-class participants in the underground marketplace were not merely epiphenomenal but rather constitutive of the expansion of the carceral state. Situated on the real and imagined landscapes of affluent suburbia, white teenagers have represented the most sympathetic victims of the narcotics trade, the distinctively illegitimate targets of law enforcement crackdowns, and the chief beneficiaries of public health prevention campaigns.

In other words, as Lassiter demonstrates, successive waves of drug-related panic have inspired and necessitated particular political responses. In circumstances where the core behavior–drug use, and particularly recreational marijuana use–has promiscuously crossed spatial and social borders, legislation has been crafted through the deliberate and conscious political efforts of empowered suburban politicians to steer a course between two unacceptable political alternatives: ignoring drugs entirely, or subjecting white suburban youth to the same punitive system as youth of color.

The racial and spatial logics of the drug war reflect not only the bipartisan mandate for urban crime control but also the balancing act required to resolve the impossible public policy of criminalizing the social practices of tens of millions of white middle-class Americans.

This tension was resolved in many cases by assigning differential roles to the white and nonwhite, suburban and urban, participants in drug transactions. Although suburban conservative politicians embraced a broad view of the market as an organizing principle of society, in this case they refused to recognize suburban drug deals as exchanges between rational actors seeking the mutual benefit (of getting high or making money). Rather, those marked as “other” by racial identity or urban residence, were cast as corruptors and suburban youth as innocents. And, although it takes little faith to imagine that the apparatus of the American state would adopt a punitive stance against urban minority drug dealers, the particular shape of the state’s response–particularly the refinement of criminal law to separate, with room for police and prosecutorial discretion, the acts of possession and distribution–was conditioned by the imperative of protecting both suburban “innocents” and the political illusion of suburban innocence.

Julilly Kohler-Hausmann’s “Guns and Butter: The Welfare State, the Carceral State, and the Politics of Exclusion in the Postwar United States” explores  how

Welfare policy and criminal policy were principal sites where society negotiated the state’s responsibility to poor and socially marginalized people, and these policy areas became central staging grounds for the post-1960 chapter in the long historical struggle over the terms of citizenship.

finding that

Despite the racial and social diversity of the populations subject to penal and welfare administration, Americans typically imagined welfare and crime as problems emanating from the same places: low-income African American and Latino urban communities.

Noting that historians have been slower than social scientists to interrogate the inverse trends of social welfare spending and criminal justice and punishment spending, Kohler-Hausmann proposes an investigation of the ways both trends, and perceptions of both, figured in the political and social processes of stripping the social welfare state while building the carceral state. Are the two, in fact, purposefully connected? Though it seems like a fine distinction, the key historiographical intervention of the work, indeed its key demand on other scholars, is to resist a reflexive assumption that the rise of the latter necessarily followed from or was a product of the former.

This perspective also reveals the limitations of relying on a series of oppositional pairings in our analysis of these transformations: liberal/conservative, welfare state/carceral state, rehabilitation/punishment, or big government/small government. These binaries structured the historical debates, but reproducing them in our scholarship risks overstating polarization and ruptures, obscuring continuities and overlaps, and masking the imprecision and political assumptions of the categories. I propose understanding the relationship between these institutions not as separate or sequential, where the carceral state supplanted the welfare state, but as deeply integrated. The penal system and welfare system have long coexisted—sometimes symbiotically—and their gendered systems interacted and developed together. Elites have deployed these systems together in various combinations, especially when faced with disorder or political insurgency, to secure social stability. Instead of stepping into the welfare state’s void or representing its antithesis, the growing carceral apparatus often built upon the welfare state, particularly through its efforts to enforce social norms through coerced rehabilitation and treatment.

This view encourages thinking not of one mode of state activity supplanting another, or of a sudden shift from “soft” to “hard” policy, but of the ways in which both the welfare state and the carceral state grew out of specific political circumstances in response to particular sets of questions about who would control and who would benefit from social resources. Kohler-Hausmann’s analysis of New York State’s notorious Rockefeller Laws is compelling. Rather than viewing the laws as a divergence from a treatment-oriented approach to drug abuse, the Rockefeller Laws proceeded from a common logic that drug abuse was an individual failing, and that, whether through treatment or incarceration, the most useful social response was isolation of the drug user. Of course, these laws intersected with the racial, socioeconomic, and geographic assumptions with which policymakers had freighted the drug issue, meaning that the full draconian impact of the laws fell on the usual suspects. And, both the Rockefeller Laws and the regime of treatment that they nominally replaced asserted the power of the state to isolate individual drug offenders through penal or quasi-penal institutions, rather than through democratic and community-based ones.

From this perspective, the rise of punishment appears less as a radical break than as a redirection of the state’s power to classify and control. And, the collateral impacts of punishment on individuals and communities, including economic exclusion and disenfranchisement, justified a growing social cognition of welfare recipients as criminal and non-integrable elements.

Increasingly, policies helped produce the political reality they purported to reflect, erecting barriers to the civic and economic participation of poor people, particularly in urban African American and Latino communities.

On this point, it seems fitting to conclude. There are plenty of apt bases for comparison between today’s carceral state and Jim Crow caste society. But one has not followed directly from the other. It will be the task of future historians, building on the work presented in this issue, to explore how particular impulses: to control, to contain, to protect, and to punish, were expressed in the state, local, and federal context of American politics, and how a country that locks up a historically unprecedented proportion of its people differs from the country we might inhabit if it hadn’t.

 

 

Charleston, Racist Violence, and Fair Housing (updates)

Dylann Roof, a 21 year old white man, has been arrested in connection with the deadly shooting in Charleston’s Emanuel AME Church. Roof allegedly killed 9 congregants including the church’s pastor, Clementa Pinckney. It’s entirely possible that Roof was mentally ill, but that’s frankly irrelevant to the conversation, because his actions reflect a current of racist suspicion and hatred of Black and other minority communities. Roof’s alleged crime is not that of an irrational actor going against the mainstream of society’s values (update: as journalists have investigated Roof’s online presence, it seems pretty clear that he was a committed white supremacist well versed in the rhetoric of organizations like the Council of Conservative Citizens).

Let’s begin with Roof’s reported last statement before opening fire:

“I have to do it. You rape our women and you’re taking over our country. And you have to go.”

This is right out of Birth of a Nation, though it has some more recent instantiations:

 

Pictures from Roof’s Facebook page also show him wearing the regalia of the former white supremacist states of Rhodesia and apartheid-era South Africa, places where, apparently, things were better before Black people took over.

A lot of people are probably going to frame the story, and Roof’s public display of white supremacist totems, in terms of mental illness, which one can only imagine will be diagnosed in short order after his arrest this morning. But although Roof’s veneration of white supremacist regimes is surprisingly cosmopolitan, he does live in a state where symbols of a home-grown racist terror regime fly on the grounds of the Capitol in Columbia (and other public and private places beyond count–update: including on Roof’s car).

So it matters that Emanuel AME is a historically significant site for Black Charleston and the struggle for Black Freedom. It’s the oldest AME Church in the South. Denmark Vesey, leader of a planned slave revolt thwarted in 1822 was a founding member of the congregation, and it has been central to the movement against white supremacist terrorism in South Carolina since. Megan Specia offers a nice summary here. And Jamell Bouie here.

It may well be attributing too much intent to Roof to argue that he targeted Emanuel AME as an assault on that legacy, though on the other hand, I don’t know what more appropriate target would present itself to a man convinced Black people were “taking over” in Charleston (update: and, as Greg Grandin writes, the assault did take place on the anniversary of the day Vesey’s planned, but thwarted, rebellion. Perhaps just a staggering coincidence….). But it is nonetheless a reminder of the historical precariousness of Black public spaces, of their vulnerability to violence, and of the unreliability of the state’s protection of their security, a reminder that is more pointed in a state where the Confederate flag still flies on the Capitol grounds. 

Indeed, while Roof may well turn out to be delusional, his targets weren’t randomly chosen but socially overdetermined. When social categories hold material and ideological significance–determining who can access resources, who can participate fully in the privileges of a society, or who can expect protection from the law or respect from strangers in public–people tend to be perceptive to those categories, and in turn to affirm the categories as valid and to attribute the social position of individuals to the characteristics of the group.

This process is called social cognition, and it explains why, despite the ideological ascendance of color-blindness as an ideal, negative perceptions of Black Americans and other minority groups remain tenacious, and why the visibility of Black people in public, whether it’s at a swimming pool in McKinney, Texas or in a historic AME Church in Charleston, can spark the reaction that those people threaten the social order (“taking over our country”) in ways that seem to justify violent repression. If we focus on the context of shared social cognition, instead of on the severity of an individual’s action in response to that social cognition, the continuity is more readily apparent. Tracey Carver-Albritton perceived that black teenagers were outsiders to her community pool and threatened to “take over,” taunted them to return to “Section 8 housing,” and physically assaulted one of them while others called the police to help expel the teens, rather than to stop the assault. The difference is of degree, not of kind. The teens in McKinney, too, “had to go.”

Sometimes these social cognitions play out in ways that aren’t as readily apparent as instances of racism, because they work through institutional mechanisms rather than through interpersonal animus. They express themselves through a spatial ordering of bodies and material and symbolic resources that George Lipsitz calls a “public pedagogy of race” by which the perceived characteristics of places and the presumed characteristics of groups of people are mutually reinforcing. Because social cognition works so profoundly through places, it can and indeed frequently is maintained through mechanisms that are not overtly racial but produce disparate impacts.

Which is why, as I wrote a week ago, we should be paying attention to the links between the Supreme Court’s pending decision on the Fair Housing Act and the kind of incidents we’ve seen in McKinney and, tragically, in Charleston. The court today made a somewhat surprising decision that touched on the veneration of white supremacy, ruling that the State of Texas can exercise its own inherent free speech rights by banning a license plate honoring the Sons of Confederate Veterans (I should mention that I touch on the major precedent in this case, and the issue of speech by cities as corporate bodies, in my article “Uniting Citizens After Citizens United“ now published in American Studies). This is nice, and it’s a pleasant surprise that the State of Texas would exercise its speech rights in this fashion, in response to the concerns of civil rights advocates, considering the prominence of Confederate memorials on the Capitol grounds in Austin. But the court’s decision on whether the Fair Housing Act can be invoked in cases of disparate impact, or only in cases where public officials explicitly segregate or deny housing by race, will, as Kriston Capps writes for Citylab, be far more important in the long run.

Recently in McKinney, Texas, a white woman cut right to the heart of this case when she reportedly told a black teenager to “go back to your Section 8 home.” The Supreme Court might as well have broken up that pool-party fight in McKinney. The woman’s callous taunt is utterly germane to the serious constitutional question before the court.

This case is literally about whether a local government can apply federal housing tax credits to segregate, as long as it doesn’t openly proclaim it. Can state and local governments decide where minorities belong? Can they support a “public pedagogy of race” with the spatial distribution of tax credits for low-income housing? Can they collaborate in constructing systems of social cognition that make Black presence in particular places appear as a crisis of the social fabric? Unfortunately those questions have got far more to do with the Charleston crime than a license plate, and from most accounts of the oral arguments, the decision could go either way.

Preempting Local Worker Protections–Michigan’s Turn

More of the right turning a state legislature against municipal democracy. Which you can read more about here. And here. And in my article in American Studies. This time it’s the restaurant industry working to stop Michigan cities from raising local minimum wages:

“Hopefully we can pre-empt local laws on all labor standards, but in particular, wage and benefit issues,” said Justin Winslow, spokesman for the Michigan Restaurant Association. “We don’t think it’s the proper purview of local government.”

Affordable Housing and McKinney, Texas

Let’s get this out of the way: the police response to the McKinney pool party worked from the (false, it turns out) assumption that black teens were intruders in a middle-class neighborhood, to be repelled by force and intimidation, and an in-the-field decision that assault on one of those teens by a white adult was of no concern to the police. It’s wrong, regardless of whether the music being played offended the sensibilities of the other poolgoers. Regardless of whether some teens climbed a fence. Regardless of whether the party was permitted. Regardless of whether all of the attendees were residents of the development. And there’s certainly much to say about the interaction between the teens and the police (and one middle-aged white dude who managed to insert himself into the situation and physically restrain a teenaged girl without either being cussed out by the cops, manhandled, or having a gun pointed at him).

Larry Wilmore’s got that on The Nightly Show:

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But, of course, there is are two significant historical elements to this incident that should cause us to look at it as more than simply a reflection of present-day racism. The genesis of the conflict–presumptions about who belongs where, backed by police force–speaks to conflicts over recreational spaces that are described by Yoni Appelbaum on The Atlantic, as well as by Victoria Wolcott in Race, Riots, and Roller Coasters (among other works on the color line in recreational spaces) and Kevin Kruse in White Flight (which describes how whites in Atlanta closed some public swimming facilities and created new private alternatives to avoid mandates to integrate in the 1950s). As Appelbaum writes,

The decisions of other communities were rarely so transparent, but the trend was unmistakable. Before 1950, Americans went swimming as often as they went to the movies, but they did so in public pools. There were relatively few club pools, and private pools were markers of extraordinary wealth. Over the next half-century, though, the number of private in-ground pools increased from roughly 2,500 to more than four million. The declining cost of pool construction, improved technology, and suburbanization all played important roles. But then, so did desegregation.

The pool in McKinney was operated by such a private entity, a homeowners association in the Craig Ranch development.  Here, following Clarissa Rile Hayward’s explanation in How Americans Make Race, publicly desirable goods (to wit, a swimming pool on a 90 degree Texas day) are effectively privatized by means of residence. Hayward describes this in terms of “public” education being privatized by unequal local funding and residency requirements, but it works for recreation as well. And, this privatization extends beyond the legal right of use that stems from residence; the stories that residents of “good” or “safe” or “middle class” neighborhoods (terms, Hayward points out, that are generally associated with whiteness) tell about their communities become institutionalized, and create a script for discerning who belongs and who doesn’t.

This sneaky privatization is where McKinney’s own history, and the history of suburban diversity and housing access, emerges as the key contextual element for understanding the day’s events as a white and police riot in defense of suburban territory. As witnesses have corroborated, the precipitating incident for police involvement and teen anger was not the presence of unruly black teens from outside the residential association boundaries, but racial insults from an adult white woman toward black teen partygoers. Although subsequent investigation has shown that the party’s organizers, and many, if not most, of the attendees lived in Craig Ranch, the instigator’s remarks were aimed at telling the teens to leave a neighborhood where they were perceived as unwelcome.

And, as if McKinney weren’t already receiving sufficient attention, it’s worth mentioning that the city is intimately involved in a lawsuit that is heading for hearing by the United States Supreme Court that could potentially destroy the disparate impact standard for equal housing. The events precipitating this suit, in turn, have emerged out of the privatization of housing policy and the adoption of market-based practices–Section VIII rent subsidies and tax credits–for the construction of low-income housing. These programs have allowed municipalities like McKinney to respond to vague mandates for affluent suburban communities to promote economic inclusion in housing (that followed the 1975 Mount Laurel decision) in ways that have limited and isolated affordable housing, facilitated the exclusionary zoning that Mount Laurel nominally prohibited, and encouraged racial segregation. See this ProPublica report, for example.

McKinney settled a suit brought by the Inclusive Communities Project, a Dallas-area advocacy group in 2009 that alleged the city concentrated low-income housing in the area east of US-75, while preserving the area to the west of the highway (where Craig Ranch is located) as a market-rate and mostly white set of neighborhoods. The legal justification for the suit was that, while McKinney’s actions nominally aimed to segregate low-income housing east of the highway, the implementation of the policy created a disparate impact owing to the higher proportion of prospective low-income residents who are Black or Latino. Thus, by purposefully concentrating housing for the poor away from more affluent areas, the city could effectively keep black residents out of those areas as well. Federal Judge Michael Schneider wrote in dismissing McKinney’s motion to dismiss in The Inclusive Communities Project, Inc. v. City of McKinney, Texas: 

Here, ICP has pleaded facts that “permit the [C]ourt to infer that [ICP] is entitled to relief.” Id. (quoting Fed. Rule Civ. Proc. 8(a)(2)). ICP alleges that the City and MHA are in violation of the Fair Housing Act (“FHA”), 43 U.S.C. § 3604(a), for perpetuating racial segregation by making dwellings unavailable because of race. COMPLAINT at 2. ICP alleged that McKinney, Texas is racially segregated where East McKinney, east of U.S. Highway 75, is 49% white, while West McKinney, west of U.S. Highway 75, is 86% white. Id. at 4. According to ICP, all of the public housing and most of the landlords willing to accept Section 8 vouchers are located on the east side of McKinney. Id. ICP alleges that the population of housing procured through such programs is predominantly made up of racial minorities. Id. at 6. ICP argues that the City and MHA are in violation of the FHA because they are willing to negotiate for and provide low-income housing units in east McKinney, but not west McKinney, which amounts to illegal racial steering. Id. at 10.

This type of practice is not at all uncommon in the suburban United States, and not a legacy of backward bywater towns, either. McKinney is a fast-growing and affluent suburb in prime position to benefit from the northward sprawl of Dallas’s corporate growth.  So much so that Money magazine recently ranked it as the best place to live in the United States (ed: although the awesome Franconia Brewery tour is there, I think this is going overboard, and Money’s list is heavily skewed toward affluent outer suburbs.) And, if the Supreme Court follows a pattern established in its Voting Rights Act cases, the disparate impact standard will be thrown out and cities like McKinney will be legally able to practice this form of segregation.

The racial and class effects of the cities policies seem to be quite well understood by residents, and indeed have been woven into residents’ conceptions of quality of life and community in McKinney. When racial segregation is institutionalized, instances of racial integration, or of cross-racial interaction in public or semi-public space can seem to violate the social order in ways that disturb and frequently derange members of the dominant racial group. The adult white woman whose insults started the confrontation is alleged by multiple witnesses to have told black teens (who lived in Craig Ranch, for the most part) to “go back to Section VIII housing.” Her conception of McKinney as a city was clearly disturbed by the presence of Black teens in Craig Ranch; although we can and should decry her comments, she was not exactly wrong in assuming that the city would act to preserve socially and racially homogenous neighborhoods, since that’s clearly what it had been doing through its low-income housing programs. Why wouldn’t that kind of institutional prerogative be reflected in policing, too? As Olga Khazan writes:

Perhaps now that so many have come to McKinney to claim what they feel is theirs—a better job, a bigger house, a more private swimming pool—people feel more entitled than ever to push away anyone unlike themselves. Perhaps some cops believe they have an even bigger mandate to crack down on those who pester the well-heeled.

 

Oklahoma Pre-Empts Fracking Bans

The use of state legislatures to prevent local governments from acting in the interests of their residents proceeds apace. First Texas, and now neighboring Oklahoma have passed state laws that preempt local ordinances that ban hydraulic fracturing. In Oklahoma’s case, the law restricts local regulation of nuisances caused by oil and gas activity to a standard of “reasonableness.” Here, “reasonable” can be translated to “see you in court.”

 

 

LaCour and the Neoliberalization of the Academy (Update 6/5)

I’m not a political scientist, and I had somehow missed the initial wave of press for the now-retracted Michael LaCour/Donald Green article in Science on the persuasive power of canvassers to increase support for gay marriage. So I can’t really discuss what the findings, had they been legitimate, import for the issue of gay marriage, for the general prospect of canvassing as a persuasive technique, or for experimental methods in the social sciences.

But as an academic, I’ve been pretty much unable to avoid the controversy that has erupted so quickly about the apparent fraudulence of both the study and of LaCour’s academic credentials. I’m trying to avoid gratuitous schadenfreude at LaCour’s downfall. There’s certainly enough of that already. But one thing I’ve noticed that bears some analysis is the way that critiques from both the non-academic right and from within the academy miss the point.

For right-wingers, the low-hanging fruit has been LaCour’s focus on public opinion on gay marriage. Although the impact of the article in disciplinary terms touched on research methods, and in broader political terms touched on general methods of persuasion, conservatives have identified LaCour with a normative support for the liberal cause of gay marriage, and, in commentary that I don’t feel like excerpting, have suggested that academic research is simply propaganda for gay/environmental/minority/feminist causes.

And, within the academy, concern has centered on the personal integrity of LaCour, his co-author Green, and the peer reviewers who apparently failed to exercise critical judgment over the findings and methods. There’s something to this, and there’s certainly resentment to spare for the young academic who achieved mainstream media attention and a tenure-track job at Princeton. Tom Bartlett’s article here at the Chronicle is eye-opening for putting the scope of LaCour’s apparent deception in a concise summary. If Bartlett’s right, this was a complex and well-orchestrated long con. And, if you can’t cheat an honest man, its success raises questions about those proximate to the con:

Who, if anyone, was supervising Mr. LaCour’s work? Considering how perfect his results seemed, shouldn’t colleagues have been more suspicious?

But the elements of that con are noteworthy in that, had they been legitimate achievements, they would reflect perfectly an emergent script for professionalization in the neoliberal academy. Bartlett hints at this more structural problem

Is this episode a sign of a deeper problem in the world of university research, or is it just an example of how a determined fabricator can manipulate those around him?

but orders his clauses in a way that draws attention to the latter half of the sentence. It’s the front half that ought to concern us.

I’ve just been reading Wendy Brown’s Undoing the Demos: Neoliberalism’s Stealth Revolution (about which more in the future), and, among many other areas the book discusses, its evaluation of professionalization in an academy shaped by the values of the market is astute.

One irony of neoliberal entrepreneurialism and debt-financed investment is that it often draws producers and investors into niche industries and products that are unsustainable over time-derivatives, bubble markets, and so forth. Current norms and metrics for academic success are an example of this. Faculty gain recognition and reward according to standing in fields whose methods and topics are increasingly remote from the world and the undergraduate classroom. Graduate students are professionalized through protocols and admonitions orienting them toward developing their own toeholds in such fields. This professionalization aims at making young scholars not into teachers and thinkers, but into human capitals who learn to attract investors by networking long before they “go on the market,” who “workshop” their papers, “shop” their book manuscripts, game their Google Scholar counts and “impact factors,” and above all, follow the money and the rankings. “Good investment” is the way departments speak of new hires, and “entrepreneurial” has become a favored term for describing exceptionally promising young researchers; it is deployed to capture both a researcher’s capacity to parlay existing accomplishments into new ones and the more quotidian business of grant getting. These commonplaces in the sciences, social sciences, business, and law schools will soon dominate the entirety of university and scholarly activity. (195)

Back to Bartlett’s account, then. What’s amazing about it, read against Brown’s summation of neoliberal professionalization, is how many of the bases LaCour’s story illustrates. If Wendy Brown, or any critic of the neoliberal academy/political science within it, wanted to find a better parable, they’d have to, uh, fabricate it themselves.

Let’s start with the attention given to LaCour’s initial findings. Ethnographers have long discussed how social interactions can highlight differences in perspective and modify behavior. I don’t think that any of them would find the conclusion that canvassing can produce some shifts in opinion to be controversial (though a good ethnographer would find it extremely simplistic). LaCour’s and Green’s article got traction because it was published in Science and assumed the mantle of experimental quantitative methodology. As Malcolm Gladwell, Freakonomics, and sports analytics have demonstrated, the media has an insatiable appetite for any analysis that can be expressed in a number, and to be “data driven” is a lazy, but widely accepted synonym for credibility. As the New York Times reported on LaCour and Green’s article on publication, their method was more reliable than the fuzzy suppositions of psychologists about persuasion:

Psychologists have long suspected that direct interaction, like working together, can reduce mutual hostility and prejudice between differing groups, whether blacks and whites or Christians and Muslims. But there is little evidence that the thaw in attitudes is a lasting one.

The study, published Thursday by the journal Science, suggests that a 20-minute conversation about a controversial and personal issue — in this case a gay person talking to voters about same-sex marriage — can induce a change in attitude that not only lasts, but may also help shift the views of others living in the same household. In other words, the change may be contagious. Researchers have published similar findings previously, but nothing quite as rigorous has highlighted the importance of the messenger, as well as the message.

It’s not an accident, therefore, that LaCour’s credibility hinged on his association with Green, who, as Bartlett notes,

 is well known for pushing the field to become more experimental.

What does that mean in practice? Per the Times,

Mr. LaCour and Donald P. Green, a professor of political science at Columbia, designed an experiment that mimicked a drug trial. They recruited 972 voters from these precincts, broadly surveyed their attitudes — including on same-sex marriage — and then randomly assigned them to receive either the “treatment” or a placebo.

There’s of course nothing inherently wrong with this approach, but praising the importation of methods from pharmaceutical trials is problematic. The placebo/treatment model even in medical research can yield highly dysfunctional results if the complex interaction of multiple factors is not accounted for, a tendency that is exacerbated by the fact that the purpose of most of these studies is to bring drugs to market. And, of course, people don’t respond to social interaction in the way they respond to pharmaceuticals. Yet, despite these weaknesses, the application of industry methods is regarded as inherently “rigorous.”

Which means that, structurally, studies that produce counterintuitive findings through the application of the sort of methods that are emerging as “best practices” through transferal into new fields and disciplines, are ripe to create the kind of buzz and “impact” that are valuable in the market. Consider Bartlett’s description of the piece’s media reception:

That paper, written with Donald P. Green, a professor of political science at Columbia University who is well known for pushing the field to become more experimental, had won an award and had been featured in major news outlets and in a segment on public radio’s This American Life. It was the kind of home run graduate students dream about, and it had helped him secure an offer to become an assistant professor at Princeton University. It was his ticket to an academic career, and easily one of the most talked-about political-science papers in recent years. It was a big deal.

Why would LaCour initiate this kind of fraud? Because he clearly recognized that a fraudulent publication, if not discovered, would accomplish as much for him in terms of professionalization and his own human capital as an academic as would a legitimate one.

Other parts of LaCour’s long con flow from this basic shift toward market norms in academe. If the value of research is measured by the money thrown at it in the form of grants, forcing the social sciences to catch up to fields with close and lucrative ties to industry, then the professional value of grants increases. LaCour apparently went on the job market with nearly $800,000 in research grants listed on his CV. Grants that he never received, in some cases from organizations that don’t actually exist. And, while on one level, it’s tempting to dismiss this sort of lying as pathological, is it, really? LaCour was astute enough to observe that claiming the grants was the next best thing, and in one of those displays of hubristic recklessness that came thiiiiis close to being converted by success into genius, he doubled down on–and nearly cleaned up on– the bet that no one would check. When entrepreneurialism becomes the highest value in academe, junior scholars are encouraged to pad their human capital portfolios. When funding for research is devolved to proliferating foundations and agencies outside the walls of the university, the better to encourage that competitive entrepreneurialism, is it any surprise that, like subprime mortgages in a derivative, the individual grants get tough to track down for due diligence?

Back to Bartlett. Where, then, do we go from here après LaCour? What is there to be learned?

Several of those who have worked with Mr. LaCour say that they are still waiting for an explanation, that they hope he will answer some of the outstanding questions. There are a host of factual issues — like why he didn’t try harder to obtain funding, or why he offered multiple accounts of what happened to the raw data — but the overriding question is simple: Why do this in the first place? Was it ambition run amok? Was it one minor deception that grew into a tapestry of falsehoods?

I don’t doubt that if Michael LaCour elects to tell his own story in the future, the answers to those questions might prove very interesting, even if only from a voyeuristic point of view or for schadenfreude. 

Maybe though, instead of continuing to interrogate Michael LaCour, or to ritually stone him for his crimes, we should consider saving some rocks for the institutions that enabled him and that articulated the incentives that drove his fraud in the first place. If LaCour’s story is How to Succeed in Academe Without Really Researching, then understanding what exactly constitutes “success” ought to be the first step.

UPDATE 6/5:

This article by Steve Kolowich in the Chronicle illustrates another point of connection to the problem that adapting the methodology of a pharmaceutical trial to social science research sometimes entails adopting both the impacts and the purposes of pharmaceutical trials. To wit, the experiments may in fact influence rather than simply evaluate political behavior, and, more troublingly, the method accordingly sets itself up for sponsorship by organizations outside academe who are willing to pay for whatever possible impact the experiment creates. While researchers may genuinely approach whether canvassers can persuade skeptics to vote for gay marriage as a research question, if this method gets adopted, it will increasingly give power to the funders to determine the questions based on the instrumental value of the impacts.

Kolowich is attuned to the disciplinary shifts in political science toward experimental methods:

Still, the fact that Mr. LaCour had embraced an experiment-based approach to political-science research was no accident. Such methods have “captured political science’s imagination,” says Arthur Lupia, a professor at the University of Michigan at Ann Arbor, especially among ambitious young scholars

And, he also explains one aspect of the institutional relations driving the shift: as academic researchers are pushed by neoliberal adminstrative rationality to become “entrepreneurial,” the rational response is to align with sources of funding and to accommodate to their priorities. In some fields, the logical partnership is with industry. For political scientists, the logical partners are parties and increasingly wealthy issue advocacy groups. Kolowich:

The embrace of field experiments in political science marks a historical shift, says Mr. Lupia. For centuries, scholars relied on qualitative methods, and later statistics, to understand how politics works. Since the turn of the century, however, scholars have increasingly teamed up with campaigns and political-action groups to run field tests on the American electorate.

Isn’t it proper for political scientists to impact electoral politics? Kolowich quotes Notre Dame Associate Professor David Nickerson, who enthuses about the way that involving researchers in campaigns is a win-win.

“The fact that you’re looking at real-world outcomes and working with real-world organizations means that you’re going to have a more direct effect and policy significance.”

But as with many questions of academic freedom and public involvement, the question really hinges on the means by which academics are engaging the public, and how the research questions are formed. If researchers are along for the ride measuring the impact of poll-tested issues or phrases developed by campaigns, how free is the inquiry? And how beneficial to society is the public outreach of academics?

Here’s where I don’t think Kolowich really gets it, because, after arguing that the discipline of political science should come up with rules and standards for how much research can interfere with the ecosystem of politics, he defines the question as one of research ethics:

The unraveling of Mr. LaCour’s study and the problems with the Montana experiment have important differences. The Montana case has to do with the question how much of a footprint researchers ought to leave. Meanwhile, “the LaCour story has really nothing to do with experiments,” says Mr. Krosnick. “It’s a guy who made up data.”

And yet the alleged sin, in both cases, has been deception. In politics anything goes; not so in academe. Researchers who take the tools of experimentation out of the laboratory and into the field walk a fine line between observing the game, and playing it.

Again, what this misses is the way that the institutional transformation of academe has created significant pressures for researchers to seek out sources of funding and align themselves with the questions that matter to the funders. Put it another way: The Supreme Court decision in Caperton v. Massey involved a West Virginia Supreme Court decision in a mining industry controversy. The US Supreme Court got involved because Don Blankenship, the owner of Massey Energy, inserted himself into a campaign for a state Supreme Court seat by paying for ads insinuating that one candidate was friendly to child molesters. These ads contributed to the election of the Massey-friendly candidate and Massey prevailing in the lawsuit (the USSC ultimately ruled he should have recused himself). Now, think of what could be learned if political scientists were brought on board to participate in Blankenship’s independent media blitz? We might be able to learn from the inside precisely how much voters are persuaded by ads suggesting a candidate will give free rein to pedophiles. If political scientists had been brought on board by Karl Rove for the 2000 South Carolina primary, maybe we could have learned from the inside exactly how much voters were influenced by Rove’s push polls that insinuated John McCain had fathered a black child out of wedlock. In the coming election cycle, political scientists could run all kinds of experiments to see whether voters respond to the message that Hillary Clinton murdered Vince Foster or that the government is using chemtrails for mind control.

We could know. Would we be better off? Would this indicate the discipline of political science engaging with the public or simply with interested non-academic actors?