Wednesday, January 24, 2018

Johnston on Segregation and the DC Federal Courthouse (and Zasloff on DOJ and the Fair Housing Act)

James H. Johnston, a lawyer, writer, and lecturer in Washington D.C., has just published Segregation in the Federal Courthouse in Washington D.C. Before and After Brown v. Topeka Board in the Howard Law Journal.  To borrow from the introduction of this thoroughly researched article:
Attempts to eliminate the [DC Bar] Association’s whites-only policy [including access to its library] began in 1950 and included seven proposed votes by members, two lawsuits trying to integrate the Bar, two lawsuits trying to block integration, three court of appeals opinions, one federal district court opinion, and several dead cats before integration was achieved in 1958.   The judiciary hardly distinguished itself. All but one of the federal judges hearing the lawsuits held honorary memberships in the segregated Association.  And, two legal titans involved in settling [African American lawyer Huver]  Brown’s original complaint [seeking access to the library in 1939], Robert Jackson and E. Barrett Prettyman, revisited the constitutionality of segregation in the 1950s as Supreme Court justice and Court of Appeals judge in the school cases. Both seemed to forget the precedent set in the library case. Court of Appeals Judge Prettyman saw nothing wrong with segregated schools in Washington, D.C.  Supreme Court Justice Jackson struggled with the same issue before joining a unanimous Court in the landmark desegregation case Brown v. Board of Education.
Update: You may now read the article as it appears in volume 61:1 of the Howard Law Review, where it appears with Al Brophy's Black Power in a Prison Library and Jonathan Zasloff’s “Between Resistance and Embrace: American Realtors, the Justice Department and the Uncertain triumph of the Fair Housing Act, 1968-1978."  Here is the abstract for Professor Zasloff's article:
Despite the historical consensus that the Fair Housing Act was ineffective and toothless, the first decade after the Act’s passage saw sharply reduced rates of discrimination. After demonstrating that such a significant drop could not have been the result of overall changing racial attitudes, this Article attempts to show that it resulted from the enforcement of the Act itself – especially the vigorous efforts of the Department of Justice. Not only did DOJ successfully sue hundreds of landlords and developers across the country (including the heretofore unknown New Yorker Donald J. Trump), but it focused its efforts on America’s real estate agents – a linchpin of the system of housing discrimination. These actions succeeded: this Article presents evidence from the realtors themselves and from fair housing advocates – who did not figure to be overly optimistic – that substantial changes in behavior resulted from aggressive litigation by federal civil rights law enforcement. The efforts were not a universal success, for by the end of the 1970’s discrimination rates remained far too high. And they did not alter patterns of segregation. But they represented a significant policy success. The Article concludes how the story of successful civil rights enforcement generates important theoretical implications in the psychology of law, theories of social norms, and the celebrated “Convergence Thesis” of American civil rights law.