Operatively white?: Exploring the significance of race and class through the paradox of black middle-classness

Law and Contemporary Problems

Volumn 72, Issue 4, 2009, Pages 163-196

  McFarlane, Audrey G ^a  

^a UNIVERSITY OF BALTIMORE   (United States)

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EID: 77954265982     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (191)

1. Howard Winant, Remarks at the University of California Irvine Race and Law Workshop (May 2, 2008)
2. Stuart Hall, Race, Articulation, and Societies Structured in Dominance, in BLACK BRITISH CULTURAL STUDIES: A READER 16, 55 (Houston A. Baker, Manthia Diawara & Ruth H. Lindeborg eds., 1996).
3. See Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 27 (1994).
4. ("[T]here is no natural congruence between class and racial interests. At different times, class allegiances may follow or cut across race lines, and vice versa.").
5. john a. powell, The Race And Class Nexus: An Intersectional Perspective, 25 LAW & INEQ. 355, 358 (2007).
6. ("[R]acial practices in the United States help define the meaning and development of our understanding, and the practices of class.").
7. see also DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM 79-80, 182 (2004).
8. (Discussing the "property" right of Whiteness, which benefits even poor Whites, compared with the persistent racial disadvantage for even highly educated Blacks)
9. For a discussion of the different advantages and disadvantages conferred by color, see Taunya Lovell Banks, Colorism: A Darker Shade of Pale, 47 UCLA L. REV. 1705 (2000).
10. Leonard M. Baynes, If It's Not Just Black and White Anymore, Why Does Darkness Cast a Longer Discriminatory Shadow than Lightness? An Investigation and Analysis of the Color Hierarchy, 75 DENV. U. L. REV. 131 (1997).
11. Trina Jones, Shades of Brown: The Law of Skin Color, 49 DUKE L.J. 1487 (2000).
12. see also Arthur H. Goldsmith, Darrick Hamilton, & William Darity, Jr., From Dark to Light: Skin Color and Wages Among African-Americans, 12 J. HUMAN RESOURCES 701 (2007).
13. (Demonstrating through empirical study that light-skinned blacks who are educated and affluent have income and educational attainment measures indistinguishable from Whites)
14. Consider the campaign and election of Barack Obama. There is no other way to characterize his election than as an incredible advancement in the crippling disadvantages of Blackness in the United States. On the other hand, it is quite obvious from the racial contortions he executed during the campaign, in order not to violate the privilege he had been granted, that he would be considered an exception to how Blacks are ordinarily regarded.
15. See John O. Calmore, Whiteness as Audition and Blackness as Performance: Status Protest from the Margin, 18 WASH. U. J.L. & POL'Y 99, 115 (2005).
16. (Noting wryly that all black professionals are the exception that proves the rule: "We, the new people, do not so much represent blacks as we personify the exceptions that prove the rule.").
17. See Deseriee A. Kennedy, Consumer Discrimination: The Limitations of Federal Civil Rights Protection, 66 MO. L. REV. 275, 276-78 (2001).
18. (Detailing consumer racism in retail environments including excessive policing of and disparate security measures towards blacks); see, e.g., Lewis v. J.C. Penney Co., 948 F. Supp. 367, 368-69 (D. Del. 1996).
19. See generally JOE R. FEAGIN & MELVIN P. SIKES, LIVING WITH RACISM: THE BLACK MIDDLE CLASS EXPERIENCE (1994).
20. Joe Feagin, The Continuing Significance of Race: Antiblack Discrimination in Public Places, 56 AM. SOC. REV. 101, 102 (1991).
21. ("[R]ace and class are distinct and at the same time mutually constitutive, recursive processes in the United States. .. .").
22. The traditional racial cleavages were omnipresent. For example, after Katrina, white communities surrounding New Orleans passed ordinances limiting rentals to relatives only and barred storm victims from crossing a bridge to safety.
23. See David D. Troutt, Katrina's Window: Localism, Resegregation, and Equitable Regionalism, 55 BUFF. L. REV. 1109, 1110-11 (2008).
24. (Discussing the Gretna Bridge incident and the Jefferson Parish ordinance)
25. Leslie Eaton, In New Orleans, Plan to Raze Low-Income Housing Draws Protest, N.Y. TIMES, Dec. 14, 2007, at 28.
26. Adam Nossiter, A Class Struggle over Housing in New Orleans: Poor Tenants Oppose Post-Katrina Plans, INT'L. HERALD TRIB., Dec. 27, 2006, at 2.
27. Coleman Warner & Leslie Williams, N.O. May Idle Housing in East; Multifamily Sites Worry Neighbors, TIMES-PICAYUNE, March 8, 2007, at 1.
28. For a description of a similar conflict, see also Leonard Moore, Class Conflict over Residential Space in an African American Community: Cleveland's Lee-Seville Public Housing Controversy, 111 OH. HIST. 25 (2002).
29. Bruce Eggler, East N.O. Apartment Dispute Rages on; New Limits May Pass Legal Test, Council Told, TIMES-PICAYUNE, Aug. 25, 2007, at 1.
30. Brian Thevenot, Displaced Voices: Two Cynthias-Willard-Lewis and Hedge-Morrell-Find Themselves as City Council Members Representing Virtual Ghost Towns, TIMES-PICAYUNE, Jan. 29, 2006, at 1.
31. MARY PATILLO-MCCOY, BLACK PICKET FENCES: PRIVILEGE AND PERIL AMONG THE BLACK MIDDLE CLASS 6 (1999)
32. (Noting that racial segregation places black, middle-class neighborhoods near or next to black, poor neighborhoods)
33. Other examples are disproportionate siting of group homes in black neighborhoods. See, e.g., Gladden v. D.C. Bd. of Zoning Adjustment, 659 A.2d 249, 255 (D.C. Cir. 1995).
34. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 258 (1977); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 929 (2d Cir. 1988), aff'd per curiam, 488 U.S. 15 (1988).
35. For the history of racial discrimination and public housing, see Michelle Adams, Separate and Unequal: Housing Choice, Mobility, and Equalization in the Federally Subsidized Housing Program, 71 TUL. L. REV. 413, 447 (1996).
36. See STEVE MACEK, URBAN NIGHTMARES: THE MEDIA, THE RIGHT, AND THE MORAL PANIC OVER THE CITY 37, 199-200, 257-62 (2006)
37. (Discussing how filmmakers, advertisers, and journalists contributed to the morally decayed, violent image of the inner city-the invention of the "savage urban Other"-in the popular imagination)
38. Under current laws, these conflicts are race problems, not problems of class. It is now acknowledged that a big gap in the Fair Housing Act's protections was its emphasis on race, when, in fact, a theme of class discrimination can be viewed as effectively protecting racial discrimination.
39. See Wendell E. Pritchett, Where Shall We Live-Class and the Limitations of Fair Housing Law, 35 URB. LAW. 399 (2003).
40. BELL HOOKS, CLASS MATTERS 140 (2001)
41. GUY STUART, DISCRIMINATING RISK: THE U.S. MORTGAGE LENDING INDUSTRY IN THE TWENTIETH CENTURY 148 (2003).
42. ("[N]eighborhoods have established borders that serve to constrain the gentrifying housing market and thus constrain the supply of houses and allow gentrifiers to capture the externality effects of each other's actions for themselves.").
43. (Discussing the sensitivity to color in neighborhoods and real estate)
44. See Martha R. Mahoney, Class and Status In American Law: Race, Interest, and The Anti-Transformation Cases, 76 S. CAL. L. REV. 799 (2003) (arguing that class is misconstrued as identity when it really is a reflection of social status and power relations).
45. 272 U.S. 365 (1926).
46. See Rachel D. Godsil, Viewing The Cathedral From Behind The Color Line: Property Rules, Liability Rules, and Environmental Racism, 53 EMORY L.J. 1807, 1862-63 (2004).
47. (Discussing the zoning pyramid that created a hierarchy that was the most protective of residential districts and least protective of industrial districts. Existing black residential areas were classified as industrial districts with the least protection from uses incompatible with residential use.).
48. Euclid, 272 U.S. at 394-95.
49. See Richard H. Chused, Euclid's Historical Imagery, 51 CASE W. RES. L. REV. 597, 604 (2001).
50. ("[I]mages about race, immigration and poverty were central parts of the Euclid litigation itself.").
51. Euclid, 272 U.S. at 395 ("[In single-family residential areas,] apartment houses. .. come very near to being nuisances.").
52. Richard F. Babcock & Fred P. Bosselman, Suburban Zoning and the Apartment Boom, 111 U. PA. L. REV. 1040, 1048 (1963).
53. see also EDWARD C. BANFIELD & MORTON GRODZINS, GOVERNMENT AND HOUSING IN METROPOLITAN AREAS 71-92 (1958).
54. (Discussing the wisdom of economic segregation)
55. Norman Williams, Jr., Land Planning in a Democracy: Planning Law and Democratic Living, 20 LAW & CONTEMP. PROBS. 317, 343-48 (1955).
56. (Discussing the constitutionality of economic segregation)
57. Ambler Realty Co. v. Vill. of Euclid, 297 F. 307, 312 (N.D. Ohio 1924) (invalidating zoning ordinance as taking without due process of law).
58. see Martha A. Lees, Preserving Property Values? Preserving Proper Homes? Preserving Privilege?: The Pre-Euclid Debate over Zoning for Exclusively Private Residential Areas, 1916-1926, 56 U. PITT. L. REV. 367 (1994).
59. See also David D. Troutt, Katrina's Window: Localism, Resegregation and Equitable Regionalism, 55 BUFF. L. REV. 1109, 1147-66 (2008).
60. (Arguing that Supreme Court doctrine has enabled localism to become "the Instrumental Successor to Segregation")
61. Euclid, 297 F. at 316; see Corrigan v. Buckley, 271 U.S. 323 (1926) (rejecting a constitutional challenge to the enforcement of a racially restrictive covenant against a black homebuyer in a Washington, D.C. neighborhood).
62. 163 U.S. 537 (1896).
63. 416 U.S. 1 (1974).
64. ("A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs.").
65. 429 U.S. 252 (1977).
66. Similar examples are towns that have required popular referendums to allow multifamily housing in a jurisdiction. See, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003) (affirming the use of the referendum).
67. Brief for Respondent at 16-17, Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 292 (1977) (No. 75-616).
68. In Metropolitan Housing Development Corp. v. Village of Arlington Heights ("Arlington Heights II"), 558 F. 2d 1283 (7th Cir. 1977), on remand for review under the Fair Housing Act (FHA), the result was different. Under the FHA, an independent disparate-impact or discriminatory-effects argument was available to establish a violation of the Fair Housing Act.
69. The town was found to be in violation of the FHA although the court observed that it considered the matter to have been a close case
70. The standard under Arlington Heights II continues to this day to be one of two competing analytical standards for FHA disparate-impact claims. The other is found in Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), aff'd, 488 U.S. 15 (1988) (per curiam), in which a less-stringent disparate-impact standard is applied. Nevertheless, very few other successful exclusionary zoning cases have been brought under the FHA.
71. ("Racial meaning, identity, and practices have helped shape class identity and inhibit class consciousness.").
72. Christopher Silver, The Racial Origins of Zoning, in URBAN PLANNING AND THE AFRICAN AMERICAN COMMUNITY: IN THE SHADOWS 23-42 (June Manning Thomas & Marsha Ritzdorf eds., 1997).
73. 245 U.S. 60 (1917).
74. See MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 80-81 (2004).
75. (Noting that concerns of racial equality played no role in cases like Buchanan v. Warley, 245 U.S. 60 (1917), which was instead concerned about property rights).
76. Warren B. Hunting, Constitutionality of Race Distinctions and the Baltimore Negro Segregation Ordinance, 11 COLUM. L. REV. 24, 34 (1911).
77. (Arguing that the Baltimore racial zoning ordinance was equally fair to Blacks and Whites)
78. For a discussion of a similar refusal to extend legally sanctioned racial discrimination into otherwise racially neutral common-law doctrine, see generally Rachel D. Godsil, Race Nuisance: The Politics of Law in the Jim Crow Era, 105 MICH. L. REV. 505 (2006).
79. See Richard Chused, Euclid's Historical Imagery, 51 CASE W. RES. L. REV. 597, 604 (2001).
80. ("[I]mages about race, immigration and poverty were central parts of the Euclid litigation itself," Chused argues that Euclid used code words to get the otherwise conservative Supreme Court to uphold zoning by appealing to upper middle-class sensibilities about protecting house and home by excluding nuisances in the form of apartment housing used by poor immigrants and people of color from single family enclaves.).
81. Ambler Realty Co. v. Vill. of Euclid, 297 F. 307 (N.D. Ohio 1924), rev'd on other grounds, 272 U.S. 365 (1926).
82. For an example of racially disparaging statements intended to be affirmative made in cases, see Falloon v. Schilling, 29 Kan. 292 (1883) (rejecting a cause of action for nuisance against a house occupied by Blacks because they were not "worthless negroes").
83. See Corrigan v. Buckley, 217 U.S. 323, 330 (1926) (holding that the Fifth and Thirteenth Amendments do not prohibit "private individuals from entering into contracts respecting the control and disposition of their own property").
84. See also Leland B. Ware, Invisible Walls: An Examination of the Legal Strategy of the Restrictive Covenant Cases, 67 WASH. U. L.Q. 737, 739 (1989).
85. (Arguing that the great migration of southern rural Blacks to northern cities prompted the popularity of racially restrictive covenants)
86. 334 U.S. 1 (1948).
87. See Kenneth Fox, The Suspectness of Wealth: Another Look At State Constitutional Adjudication of School Finance Inequalities, 26 CONN. L. REV. 1139, 1155-56 (1994).
88. (Arguing that commentators have mistakenly downplayed the fact that state courts in California, New Jersey, and eight additional states-Connecticut, Wyoming, West Virginia, Arkansas, Washington, Kentucky, Montana, and Texas-have actually invalidated school finance systems for wealth discrimination, grounding these holdings under either equal-protection or state educational provisions)
89. KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 208 (1985).
90. Civil Rights Act of 1968, tit. VIII, Pub. L. No. 90-284, 82 Stat. 81 (codified as amended as 42 U.S.C. §§ 3601-3631).
91. See Martha R. Mahoney, Shaping American Communities: Segregation, Housing and the Urban Poor, 143 U. PA. L. REV. 1659, 1670-75 (1995).
92. See POLLY J. SMITH, THE IMPACT OF MILITARY DESEGREGATION ON SEGREGATION PATTERNS IN AMERICAN CITIES: A CASE STUDY OF COLORADO SPRINGS, NEW LONDON AND FAYETTEVILLE (2007).
93. See SHERYLL CASHIN, THE FAILURES OF INTEGRATION: HOW RACE AND CLASS ARE UNDERMINING THE AMERICAN DREAM 174-75 (2004)
94. See Margalynn Armstrong, Protecting Privilege: Race, Residence And Rodney King, 12 LAW & INEQ. 351 (1993).
95. Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841 (1994).
96. A similar black-on-black class conflict example could also be made with schools. Conflicts between the Blacks divided by class have also centered around public schools. In Prince George's County, middle-class Blacks have fought to have poor Blacks not attend schools near their homes.
97. DAVID RUSK, CITIES WITHOUT SUBURBS (1995)
98. (Discussing racial segregation and poverty indices in metropolitan areas with inelastic central cities)
99. See generally Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 VA. L. REV. 437 (2006).
100. (Arguing that developers perpetuate segregation and avoid antidiscrimination laws by offering amenities that exclude by price and by signal the development's demographic makeup)
101. See Stephen R. Holloway, Exploring the Neighborhood Contingency of Race Discrimination in Mortgage Lending in Columbus, Ohio, 88 ANNALS OF THE ASSOCIATION OF AMERICAN GEOGRAPHERS 252 (1998).
102. See generally MORTGAGE LENDING, RACIAL DISCRIMINATION, AND FEDERAL POLICY (John Goering & Ron Wienk eds., 1996).
103. (Illustrating substantial racial disparities in ability to obtain mortgages and home insurance)
104. See generally Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
105. See WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 5 (2001).
106. ("[C]oncern for home values is the central motivator of local government behavior.").
107. See Lee Anne Fennell, Properties of Concentration, 73 U. CHI. L. REV. 1227, 1276-77 (2006).
108. Simon Parker, Emma Uprichard, & Roger Burrows, Class Places and Place Classes: Geodemographics and the Spatialization of Class, 10 INFO., COMM. & SOC'Y 902 (2007).
109. (Describing the process by which appraisers and real-estate brokers engage in boundary-setting between newly desirable and undesirable neighborhoods to create hot markets and rising property values)
110. john a. powell & Marguerite L. Spencer, Giving Them The Old "One-Two": Gentrification and The K.O. of Impoverished Urban Dwellers Of Color, 46 HOW. L.J. 433, 436-39 (2003).
111. See Huntington Branch NAACP v. Huntington, 844 F.2d 926, 933-35 (2d Cir. 1988) (adopting and explaining the disparate impact standard for proof of racial discrimination in violation of the Fair Housing Act).
112. See generally LANCE FREEMAN, THERE GOES THE HOOD: VIEWS OF GENTRIFICATION FROM THE GROUND UP (2006)
113. (Highlighting the different perspectives on gentrification held by Harlem residents)
114. Jacqueline Olvera, Book Review, 30 J. URB. AFF. 106 (2008).
115. (Reviewing DAVID MAURRASSE, LISTENING TO HARLEM: GENTRIFICATION, COMMUNITY, AND BUSINESS (2006))
116. ("[N]eighborhood revitalization often occurs with little effort made to 'economically empower' local residents. .. especially those who have lived faithfully through the highs and lows of neighborhood change. Focusing on development policies in Harlem, Maurrasse argues that even though the Upper Manhattan Empowerment Zone (UMEZ) program was intended to reinvigorate commercial activity it failed to help the long-standing African-American community. According to Maurrasse, the UMEZ's principal flaw is the lack of balance in its execution. Specifically, development choices made for Harlem seem to favor corporate retailers over small businesses that continue to lack adequate access to financial resources.").
117. See generally Kathe Newman & Elvin K. Wyly, The Right to Stay Put, Revisited: Gentrification and Resistance to Displacement in New York City, 43 URB. STUD. 23 (2006).
118. (Responding to empirical studies suggesting the poor are not displaced by gentrification)
119. August Wilson, Radio Golf, New York: Theatre Communications Group, Inc., 2007.
120. (Detailing an argument between wealthy black developer and working-class resident over impact of class on racial identity and behavior)
121. (Redevelopment requires tearing down all existing buildings or as one character observes, "We might as well turn them apartment houses over to the projects.").
122. (Discussing redevelopment plan centered around luxury apartments and upscale neighborhood retail: Whole Foods, Starbucks and Barnes & Noble)
123. See generally Nancy Ehrenreich, Subordination and Symbiosis: Mechanisms of Mutual Support Between Subordinating Systems, 71 UMKC L. REV. 251, 257 (2002).
124. (Discussing "hybrid intersectionality": the dilemma of individuals who are both burdened by a subordinating characteristic and personally advantaged by other aspects of their identity). Ehrenreich argues that "on the one hand, hybrid intersectionality sometimes enables singly burdened individuals or groups to dilute the effect of their low status by engaging in compensatory acts of subordination against others. But, on the other hand, such acts, might also, paradoxically, increase the vulnerability of those engaging in them, making it more difficult for them to resist their own oppression."
125. See generally Audrey G. McFarlane, The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power, 8 U. PA. J. CONST. L. 1 (2006).
126. John Calmore, Whiteness as Audition and Blackness as Performance: Status Protest from the Margin, 18 WASH. U. J.L. & POL'Y 99, 115 (2005).
127. Camille Zubrinsky Charles, Can We Live Together? Racial Preferences and Neighborhood Outcomes, in THE GEOGRAPHY OF OPPORTUNITY: RACE AND HOUSING CHOICE IN METROPOLITAN AMERICA 45, 48 (Xavier De Souza Briggs ed., 2005).
128. john a. powell, Reflections on the Past, Looking to the Future: The Fair Housing Act At 40, 18 J. AFFORDABLE HOUS. & CMTY. DEV. L. 145, 147-48 (2009).
129. (Noting that as of 2000, black homeownership rates have increased from approximately thirty percent to nearly fifty percent)
130. Stuart Gabriel & Gary Painter, Mobility, Residential Location, and the American Dream: The Intra-Metropolitan Geography of Minority Homeownership: Los Angeles, Chicago, and Washington D.C., Report to the National Association of Realtors 1 (Mar. 2004), available at http://www.novoco.com/homeownership/resource_files/reports/LUSK_043004.pdf.
131. (Analyzing the geography of household mobility by race and showing that notwithstanding "substantial upward gains in economic status and homeownership for blacks, their urban settlement patterns remain substantially more concentrated than those of whites or Latinos")
132. [D]ata. .. show relatively high levels of population racial segregation. Whereas black households comprised a full 64 percent of Washington, D.C. households in 1990, that same group accounted for only about 6 percent of the households in suburban Fairfax County, Virginia. The Chicago area evidenced similarly high levels of racial segregation; there black households comprised 33 percent of the 1990 population of the City of Chicago, but only 1-3 percent of households in DuPage County and the North Suburbs. In Los Angeles, black households accounted for 15 percent of the population of the City of L.A., but only a marginal 2 percent of the households of suburban Orange and Ventura Counties. By contrast, Latino households were more uniformly represented among the geographic subdivisions of our sampled metropolitan areas.
133. See Robin R. Means Coleman, The Gentrification of "Black" in Black Popular Communication in the New Millennium, 4 POPULAR COMM. 79, 91 (2006).
134. (Arguing that black popular culture is mistakenly belittled and devalued unless it is gentrified)
135. See Roland G. Fryer, Jr. & Paul Torelli, An Empirical Analysis of "Acting White" 5 (Nat'l Bureau of Econ. Research, Working Paper No. W11334, 2006).
136. ("[E]mpirical patterns are most consistent with a simple model of peer pressure. The principal idea is that individuals face a two-audience signaling quandary: signals that beget labor market success are signals that induce peer rejection.. .. 'Acting white' is more salient in public schools and schools in which the percentage of black students is less than twenty, but non-existent among blacks in predominantly black schools or those who attend private schools.").
137. ("[H]igh achieving students and students in environments with more interracial contact are most burdened by 'acting white.").
138. See KARYN R. LACY, BLUE CHIP BLACK: RACE, CLASS AND STATUS IN THE NEW BLACK MIDDLE CLASS 73 (2007).
139. Another scholar refers to this racial performance as "covering" and observes that "the work of covering, unlike the work of conversion or passing, is imposed on all groups outside the mainstream."
140. Kenji Yoshino, Covering, 111 YALE L.J. 769, 885 (2002).
141. He demonstrates that, in particular, "racial minorities find themselves largely unprotected from demands to cover [in the areas of grooming and language]."
142. (Elaborating on why public identities are necessary in a racialized society)
143. See, e.g., Athena D. Mutua, The Rise, Development and Future Directions of Critical Race Theory and Related Scholarship, 84 DENV. U. L. REV. 329, 377-92 (2006).
144. (Calling for critical race theory to more meaningfully embrace class as an axis of analysis of material subordination)
145. One notable exception is powell's recent tour de force description of how race and class are not mutually exclusive
146. Arguably there are legal disadvantages and advantages of class. See, e.g., Euclid v. Ambler Realty's protections for the single-family residential zone against the multifamily house protect financial security, social status and image, Buckley v. Valeo, 424 U.S. 1 (1976) (money is equated with free speech); Gideon v. Wainwright, 372 U.S. 335 (1963) (declaring right to counsel in criminal cases); San Antonio v. Rodriguez, 411 U.S. 1 (1973) (ratifying wealth discrimination in education).
147. See IAN HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 152-53, 155-56 (2006)
148. (Explaining the phenomenon of honorary Whiteness as a current reality for nonwhite minorities in the United States. Lopez explains that this status is most accessible to those who are phenotypically similar to Whites).
149. The current financial crisis sadly suggests that this reality may yet be a dream deferred. The foreclosure crisis has disproportionately hit black and Latino communities.
150. See Rachel D. Godsil & David V. Simunovich, Protecting Status: The Mortgage Crisis, Eminent Domain, and The Ethic of Homeownership, 77 FORDHAM L. REV. 949, 959-64 (2008).
151. (Detailing the severe negative impact of the mortgage crisis on minority homeowners)
152. See also Mary M. Chapman, Black Workers Hurt by Detroit's Ills, N.Y. TIMES, Dec. 29, 2008, at A1.
153. (Reporting that autoworker layoffs are hitting black Americans the hardest)
154. Steven Gregory, The Changing Significance of Race and Class in an African-American Community, 19 AM. ETHNOLOGIST 255, 272 n.8 (1992).
155. (Quoting a neighborhood activist and veteran of the civil-rights movement, after an NAACP meeting in East Elmhurst-Corona, Queens, New York)
156. (Discussing the perceptions and attitudes of black residents of historically black neighborhoods towards gentrification based on the growing presence of Whites in the community)
157. (Discussing black middle-class protection of class-based identities)
158. (Describing the structural defects of geographically concentrated, black-owned neighborhoods)
159. E. FRANKLIN FRAIZER, BLACK BOURGEOIS 126 (1957).
160. (Quoted in Kesha Moore, What's Class Got to Do With It? Community Development and Racial Identity, 27 J. URB. AFF. 437, 439 (2005)).
161. See also WILLIAM JULIUS WILSON, DECLINING SIGNIFICANCE OF RACE 129 (1978)
162. (Noting improvements in black occupations since 1940)
163. See Rolf Pendall, Opposition to Housing: NIMBY and Beyond, 35 URB. AFF. REV. 112, 115 (1999).
164. ("Many white non-Hispanic Americans are prejudiced against minorities and can be expected to fight high-density and assisted housing for that reason. Such racist and classist anti-housing action-still a common occurrence-must be distinguished from other opposition to housing, if only because policy responses to prejudice-based opposition will differ markedly from those based on the real impacts of new housing on neighborhood quality.").
165. See, e.g., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3639 (2008).
166. C. Theodore Koebel, Robert E. Lang, & Karen A. Danielsen, Community Acceptance Of Affordable Housing, Report to the National Association of Realtors 11 (June 2004), available at http://www.realtor.org/wps/wcm/connect/53c08d0048be37cab4a1fe0c8bc1f2ed/koebellangfr.pdf?MOD=AJPERES&CACHEID=53c08d0048be37cab4a1fe0c8bc1f2ed.
167. ("In some cases concern over adverse impacts may be a smokescreen for deeper conflicts over a just society and the role of government. But smokescreen or real, the fear of adverse impacts and questions about the benefits of affordable housing have to be addressed before increased levels of production can be achieved.").
168. (Citing BART LANDRY, THE NEW BLACK MIDDLE CLASS (1987))
169. (Quoting Lawrence Bobo, Racial Attitudes and Relations at the Close of the Twentieth Century, in AMERICA BECOMING: RACIAL TRENDS AND THEIR CONSEQUENCES 263, 269, 294 (Neil J. Smelser, William Julius Wilson, & Faith Mitchell eds., 2001).
170. See also STEVE MARTINOT, THE RULE OF RACIALIZATION: CLASS, IDENTITY, GOVERNANCE, 33-36, (2003)
171. (Undertaking a historical analysis of how Whiteness was invented and class was formed in the United States)
172. See CRITICAL RACE THEORY: THE CUTTING EDGE xvii (Richard Delgado & Jean Stefancic eds., 2d ed. 2000).
173. ("[R]acism is normal, not aberrant, in American society" and is "an ingrained feature of our landscape.").
174. Cheryl Harris, Whiteness as Property, in BLACK ON WHITE 103, 116 (D. R. Roediger ed., 1993).
175. Rose M. Brewer & Nancy A. Heitzeg, The Racialization of Crime and Punishment: Criminal Justice, Color-Blind Racism, and the Political Economy of the Prison Industrial Complex, 51 AM. BEHAV. SCIENTIST 625, 633 (2008).
176. (Detailing the size and cost of the prison system); see also ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 29 (2003) (tracing the initial rise of the penitentiary system to the abolition of slavery).
177. Black in America Part II: Black Men (NBC television broadcast July 24, 2008)
178. Loïc Wacquant, From Slavery to Mass Incarceration: Rethinking the 'Race Question' in the US, 13 NEW LEFT REV. 41, 53-55 (2002).
179. See generally DALTON CONLEY, BEING BLACK, LIVING IN THE RED: RACE, WEALTH AND SOCIAL POLICY IN AMERICA (1999)
180. (Discussing the black-white wealth gap and structural obstacles to Black's accumulating wealth)
181. See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1849-57 (1994).
182. Daria Roithmayr, Barriers to Entry: A Market Lock-In Model of Discrimination, 86 VA. L. REV. 727, 732-33 (2000).
183. See Cecil J. Hunt, II, The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence, 11 MICH. J. RACE & L. 477, 496 (examining Whiteness and innocence).
184. Martha R. Mahoney, Segregation, Whiteness, and Transformation, 143 U. PA. L. REV. 1659, 1663-65 (1995) (discussing the construction of Whiteness as neutral and normal).
185. See, e.g., Civil Rights Act of 1866, 42 U.S.C. § 1981 (declaring that all citizens shall have the same rights to contract as white people).
186. (Refuting calls for class-based remedies and arguing persuasively that class has been and continues to be an actively racialized concept in the United States)
187. See generally DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II (2008).
188. (Chronicling the unappreciated history of how the oppression of slavery was reimposed in thinly veiled forms following Emancipation)
189. Lacy's work, which focuses on suburban Blacks, also discusses key insight that Blacks living together in a gentrifying community create a black unity, in the sense that middle-class Blacks see their identity and interests as tied to poor Blacks. That does not exist, she implies, in the upper-middle-class black enclave.
190. MARY PATILLO, BLACK ON THE BLOCK 300 (2007)
191. But see Optimism about Black Progress Declines: Blacks See Growing Values Gap Between Poor and Middle Class-A Social and Demographic Trends Report, PEW RESEARCH CENTER 1-4 (2007) (reporting that a significant number of Blacks identified the black poor as being a different race than themselves)