Stimulus and civil rights

Columbia Law Review

Volumn 111, Issue 1, 2011, Pages 154-206

  Johnson, Olatunde C A ^a  

^a Columbia Law School ^*

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EID: 78751662678     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (315)

1. Pub. L. No. 111-5, 123 Stat. 115 (2009).
2. During this period, public leaders and policymakers disagreed on the economic benefits of increased federal spending.
3. James T. Patterson, Congressional Conservatism and The New Deal 133, 234 (1967) (describing New Deal advocacy in favor of increased federal spending to stimulate economic recovery);
4. id. at 140-41, 189, 298(describing congressional and public resistance to relief spending and to federal intervention in private markets). New Deal social welfare programs also provoked debates on the proper role of the federal government in providing and administering social insurance.
5. See Robert C. Lieberman, Shifting the Color Line: Race and the American Welfare State 28 (1998) [hereinafter Lieberman, Color Line] (describing southern skepticism of federal intervention through provision of social security);
6. Ann Shola Orloff, The Political Origins of America's Belated Welfare State, in The Politics of Social Policy in the United States 37, 70-71 (Margaret Weir et al. eds., 1988) (describing political resistance to federal centralization of social insurance programs).
7. Compare Cong. Budget Office, Estimated Impact of the American Recovery and Reinvestment Act on Employment and Economic Output from October 2009 Through December 2009, at 1-2 (2010), available at www.cbo.gov/ftpdocs/110xx/doc11044/02-23-ARRA.pdf (on file with the Columbia Law Review) (finding stimulus added between 1million and 2.1 million jobs in fourth quarter of 2009 and GDP was between 1.5% and 3.5% higher than it would have been in absence of stimulus package), and Council of Econ.
8. Advisors, Exec. Office of the President, The Economic Impact of the American Recovery and Reinvestment Act of 2009, Second Quarterly Report 1-2 (2010), available at http://www.whitehouse.gov/sites/default/files/microsites/100113-economic -impact-arrasecond-quarterly-report.pdf (on file with the Columbia Law Review) (claiming stimulus package was responsible for boosting Gross Domestic Product (GDP) and lowering unemployment)
9. Karen Campbell, Ctr. for Data Analysis, Heritage Found., Did the Stimulus Create Jobs? White House Economic Report Is Unclear 1-3 (2010), available at http://www.heritage.org/Research/Reports/2010/02/Did-the-Stimulus-Create -Jobs-White-House-Economic-Report-Is-Unclear (on file with the Columbia Law Review) (arguing White House's benchmarks for GDP and unemployment were arbitrary and claiming economic benefits were illusory).
10. See, e.g., William Yardley, Bids to Push States' Rights Falter in Face of Stimulus, N.Y. Times, May 8, 2009, at A14 ("Frustrated by federal policies like the bank bailout. they drafted so-called sovereignty resolutions, aggressive interpretations of states' rights outlined in the Tenth Amendment.").
11. See id. ("With the recession sparing few corners of the country, the $787 billion federal stimulus package has weakened the resolve of states' rights activists in legislatures across the country."). The Republican Governor of Louisiana opposed the concept of a federal stimulus plan, and has particularly resisted stimulus funds to extend federal-state programs providing health care for the poor, including the uninsured and families moving from welfare to work, as well as expansions in unemployment insurance.
12. See WDSU New Orleans, Jindal Says 'No' to Health Care Stimulus Funds (Mar. 31, 2009, 10:47 PM), at http://www.wdsu.com/money/19057646/detail.html (on file with the Columbia Law Review) (explaining Jindal's opposition to stimulus funds for extended Medicaid for welfare recipients who begin working and for increased amounts of money for hospitals treating a "disproportionate share" of poor and underinsured). The Governor's refusal to accept "disproportionate share" funding may not impact state residents as the state does not currently use its entire federal allocation under the program, and no cuts are expected in the program. Id.
13. See, e.g., Greg Hitt & Jonathan Weisman, Congress Strikes $789 Billion Stimulus Deal, Wall St. J., Feb. 12, 2009, at A1 (describing "economic-recovery package" as "one of the largest economic rescue programs since Franklin Roosevelt launched the New Deal");
14. Steven Mufson, For Insight on Stimulus Battle, Look to the'30s, Wash. Post, Feb. 12, 2009, discrimat D01 (quoting then-Chairman of Council of Economic Advisors Christina Romer's statement that "current stimulus is much bigger than anything Roosevelt tried").
15. See, e.g., William E. Forbath, The New Deal Constitution in Exile, 51 Duke L.J. 165, 203-217 (2001) [hereinafter Forbath, New Deal] (discussing changes to New Deal legislation forced by southern Democrats and how these changes impacted African Americans);
16. Deborah C. Malamud, "Who They Are-or Were": Middle-Class Welfare in the Early New Deal, 151 U. Pa. L. Rev. 2019, 2058-59 (2003) ("It is also undeniable that blacks did in fact face considerable discrimination when they applied for benefits.").
17. Historians and political scientists have produced a wealth of scholarship on the question of the racializing effects of the New Deal and other federal programs. E.g., Ira Katznelson, When Affirmative Action Was White (2005).
18. Cf. Voting Rights Act of 1965, 42 U.S.C. §§ 1973-1973bb-1 (2006) (prohibiting states from engaging in discriminatory voting practices);
19. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (prohibiting discrimination by private employers);
20. Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3631 (prohibiting discrimination in sale, rental, or financing of residential real estate);
21. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (prohibiting disability discrimination by both public and private entities).
22. See generally Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L.J. 345 (2008) (predicting indirect attempts by Roberts Court to limit Congress's spending power);
23. Michael Selmi, Remedying Societal Discrimination Through the Spending Power, 80 N.C. L. Rev. 1575 (2002) (arguing Congress can constitutionally enact affirmative action programs to remedy societal discrimination pursuant to its spending power).
24. See, e.g., Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (holding that proving intentional discrimination under equal protection requires that "thedecisionmaker. selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group");
25. Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1095 (2009) (noting "near impossibility of invalidating legislative acts that are formally race neutral").
26. See, e.g., Richard A. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 979, 1023-24 (2004) (contending that few equal protection cases arise against federal government because Congress and Executive hold same antidiscrimination norms as federal courts).
27. See, e.g., Bagenstos, supra note 9, at 350 (noting "liberal welfare and civil-rights state [is] built on conditional spending legislation").
28. Neighborhoods of intense racial segregation and poverty concentration tend to have lower quality schools. They also tend to be isolated from valuable employment opportunities as well as other resources that facilitate mobility.
29. See Michael K. Brown et al., Whitewashing Race: The Myth of a Color-Blind Society 74-77 (2003) [hereinafter Brown, Whitewashing Race] (arguing black exclusion from postwar federal program for veterans significantly contributed to contemporary wealth and labor market inequality);
30. Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 148-85 (1993) (discussing role of housing barriers in "the perpetuation of the underclass"). 14. See infra Part III.A-B.
31. See, e.g., Katznelson, supra note 7, at 142-43 (noting immense "damage to racial equity" caused by black exclusion from Social Security, veterans' benefits, and other socialcommuniwelfare programs);
32. Massey and Denton, supra note 13, at 149-53 (documenting socioeconomic harm of residential segregation).
33. See Brown, Whitewashing Race, supra note 13, at 68-103 (showing effect of federal government's social welfare programs on persistent racial inequality).
34. See generally Katznelson, supra note 7 (detailing history of African American exclusion from twentieth-century social security, military, and labor programs).
35. Another motivation is to shift the theoretical basis for contemporary remedial and civil rights programs, like affirmative action. Arguing that inequality is both state-generated and the product of recent exclusions strengthens the empirical and moral bases for remedial action. See id. At 162 (proposing renewed program of affirmative action to both transcend race and rectify racial injustice).
36. See supra note 15 (citing sources discussing these effects). 18.
37. See generally Katznelson, supra note 7 (detailing racially discriminatory effects of federal spending programs in the 1930s and 1940s).
38. See supra note 10 and accompanying text (noting legal framework often requires showing of causation and intent).
39. See infra Part II.A (detailing specific programs funded by Act and amounts reserved for those programs). 21. Federal grants have risen from less than one percent of states' GDP in the 1940s to about three percent of GDP since the 1970s.
40. Daniel Klaff & Adam Lawton, Conditional Spending and Other Forms of Cost Sharing 32 fig.3 (Harvard Law Sch. Fed. Budget Policy Seminar, Briefing Paper No. 18, 2008), available at www.law.harvard.edu/faculty/hjackson/ConditionalSpending_18(rev).pdf (on file with the Columbia Law Review). Even more telling is the steep postwar rise in federal support in a few areas: education, income security, and health. See id. at 32 fig.2.
41. See Paul E. Peterson, The Price of Federalism 13-14 (1995) (asserting that through spending programs the federal government maintains some power over states even in areas of state control).
42. See Katznelson, supra note 7, at 43 ("Across the nation, fully 65 percent of African Americans fell outside the reach of the new programs; between 70 and 80 percent in different parts of the South.").
43. See Melvin L. Oliver & Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 40-41 (2006) (documenting how inequities in Social Security contributed to contemporary racial disparities in wealth).
44. See Massey & Denton, supra note 13, at 149-53 ("[T]he persistence of racial barriers [to integration] implies the systematic exclusion of blacks from benefits and resources that are distributed through housing markets.").See infra notes 33-37 and accompanying text. 27.
45. See Massey & Denton, supra note 12, at 42-53 (detailing role of federal programsin creating urban ghettos in South for first time).
46. Residential patterns of segregation had been less pronounced in the South than in the North. See id. at 25-26, 41-42, 48-49(comparing segregation levels and growth in southern cities with those in North).
47. The federal government persuaded some states to enact legislation to provide states and localities with the legal authority to develop public housing.
48. See Nathaniel Keith, Politics and the Housing Crisis Since 1930, at 28-29 (1973) ("When the PWA Housing Division wound up its activities in late 1937, 29 states had passed enabling legislation and 46 local housing authorities had actually been established.").
49. See Arnold Hirsch, The Last and Most Difficult Barrier: Segregation and Federal Housing Policy in the Eisenhower Administration, 1953-1960, at 13-15 (2005) [hereinafter Hirsch, Difficult Barrier], available at http://www.prrac.org/pdf/hirsch.pdf (on file with the Columbia Law Review) (describing Eisenhower Administration's failures to address racial effects of housing policy).
50. See Massey & Denton, supra note 13, at 36-37 (detailing various forms of resistance to integrated housing).
51. See id. at 45-49 (discussing statistics showing increased residential segregation between 1930 and 1970).
52. See Hirsch, Difficult Barrier, supra note 28, at 38-39 (discussing failure of federal government to require local officials to adopt "workable plan" that would have allowed non-whites to be relocated in "outlying vacant land");
53. see also id. at 48 (describing adherence by housing agencies to pre-Brown policies and refusals which left "[t]he color line at the housing agencies intact"); id. at 59 (detailing dynamic in which urban renewal displaced inner-city residents and sent them to public housing, resulting in radically changed racial demographics of public housing between 1948 and 1959);
54. Massey & Denton, supra note 13, at 55-57 (detailing mobilization by white communities, city councils, and mayors to block construction of public housing in white neighborhoods and concluding that resulting segregation "in economic as well as social terms-was the direct result of an unprecedented collaboration between local and national government"). 32. 347 U.S. 483 (1954).
55. Massey & Denton, supra note 13, at 52-53 (arguing government policies were "responsible for a much larger and more significant disinvestment in black areas by private institutions"). Residential patterns of segregation had been less pronounced in the South than in the North. See id. at 25-26, 41-42, 48-49 (examining statistical evidence of changes in housing segregation). The federal government actually persuaded some states to enact legislation to provide states and localities with the legal authority to develop public housing.
56. See Keith, supra note 27, at 28-29 (noting "President Roosevelt wrote the Governors urging the enactment of. state legislation" to establish local housing authorities).
57. See Massey & Denton, supra note 13, at 54-55 ("[B]y the late 1950s, many cities were locked into a spiral of decline that was directly encouraged. by federal housing policies.").
58. See Keith, supra note 27, at 21-22 (pointing to early federal failures to address housing crisis).
59. "Redlining" describes the government and industry practice that began in the 1920s and 1930s of assigning risks to neighborhoods for the purpose of providing home mortgages. The Home Owners' Loan Corporation (HOLC) formalized a rating system that assigned risks to neighborhoods based on assessments of their quality; neighborhoods with the lowest quality were coded red. See Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States 196-97 (1985) [hereinafter Jackson, Crabgrass Frontier] (providing evidence that HOLC "initiated the practices of 'red lining"');
60. Massey & Denton, supra note 13, at 51-52 (discussing development of "redlining" practices). As a matter of practice, HOLC assigned the lowest rating to majority black neighborhoods, explicitly rating as a negative factor the density of blacks, without regard to other factors.
61. See id. at 199-201 (detailing role of race as factor in HOLC appraisals in St. Louis metropolitan area). The effect of this was to redirect valuable loans away from black neighborhoods, or neighborhoods that looked like they might become predominantly black. Id. at 52.
62. See Massey & Denton, supra note 13, at 52 ("[P]rivate banks relied heavily on the HOLC system to make their own loan decisions, and the agency's 'Residential Security Maps' were widely circulated throughout the lending industry. Thus HOLC not only channeled federal funds away from black neighborhoods but was also responsible for a much larger and more significant disinvestment in black areas by private institutions.").
63. See Keith, supra note 26, at 64 (noting substantial increase in 1946 in construction starts and production of housing building materials was driven in part by the Veterans' Emergency Housing Program);
64. see also Katznelson, supra note 7, at 115-16 (observing that in immediate postwar period Veterans Administration mortgages paid for nearly five million new homes and were especially important in high growth areas like California, where they accounted for half of home mortgages by 1950); cf. id. at 116("Residential ownership became the key foundation of economic security for theburgeoning and overwhelmingly white middle class.").
65. See Katznelson, supra note 7, at 43 (noting majority of blacks at that time occupied lowest sectors of labor market).
66. See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, in In Pursuit of a Dream Deferred: Linking Housing & Education Policy 244 (John A. Powell et al. eds., 2001) (arguing "[r]ace-neutral policies, set against a historical backdrop of state action in the service of racial segregation and thus against a contemporary backdrop of racially identified space predictably reproduce and entrench racial segregation and the racial caste system that accompanies it").
67. Thomas J. Sugrue, The Origins of the Urban Crisis: Race and Inequality in Postwar Detroit 9 (1996).
68. See Arnold R. Hirsch, Making the Second Ghetto: Race and Housing in Chicago, 1940-1960, at 170, 273-74 (1983) [hereinafter Hirsch, Making the Second Ghetto] (describing effect of urban renewal in Chicago);
69. Massey & Denton, supra note 13, at 54-57 (describing how federally funded urban renewal programs razed black neighborhoods and shuttled blacks into high density housing projects with goal of "slum clearance").
70. See Jackson, Crabgrass Frontier, supra note 36, at 199-201 (describing HOLC's real estate appraisal practices).
71. Sugrue, supra note 41, at 9. 45. Susan Eaton's recent account of landmark civil rights litigation to address school segregation and educational inequality in Connecticut articulates this well. Residents rarely imagine themselves as "segregated"; rather, the spatial divide "seemed natural and normal-a fact of life sustained by personal choice and housing costs, not by mandated structures and systems. Segregation was hardly an 'issue' anymore." Susan Eaton, The Children in Room E4: American Education on Trial 36-37 (2007).
72. Dolores Hayden, Building Suburbia: Green Fields and Urban Growth, 1820-2000, at 152 (2003).
73. See David M.P. Freund, Marketing the Free Market: State Intervention and the Politics of Prosperity in Metropolitan America, in The New Suburban History 11-14 (Kevin M. Kruse & Thomas J. Sugrue eds., 2006). As Freund states, "[f]ederal intervention also helped create and popularize a unique postwar political narrative that obscured the origins of race and class inequality in the modern metropolis." Id. at 12.
74. See Bruce Ackerman, We the People: Foundations 105 (1991) (discussing New Deal as triumph of national citizenship over state citizenship);
75. Bruce Ackerman, We the People: Transformations 279-344 (1998) (tracing historical development of New Deal policies and interpreting their impact on society);
76. William E. Forbath, Caste, Class & Equal Citizenship, 98 Mich. L. Rev. 1, 66-70 (1999) [hereinafter Forbath, Caste, Class] (describing New Deal project in part as redefinition of citizenship in United States);
77. Forbath, New Deal, supra note 7, at 176 (exploring tradition of "social citizenship" in constitutional discourse and its impact on New Deal proponents). Professor Forbath has argued that the exclusion of blacks from the New Deal compromised reformers' broad vision of advancing social and economic rights, thus contributing to omissions of social citizenship from debates on the meaning of the Constitution today.
78. See generally Forbath, Caste, Class, supra at 21.
79. See, e.g., Risa Goluboff, The Lost Promise of Civil Rights 142-43 (2007) (detailing how Thirteenth Amendment involuntary servitude cases brought by Department of Justice to combat exploitation of black workers in 1930s "aimed to bring African Americans within the New Deal rights framework");
80. Havard S. Sitkoff, A New Deal for Blacks: The Emergence of Civil Rights as a National Issue 58-59 (1978) (stating that despite racial discrimination perpetuated by New Deal programs, New Deal "played its part [in changing racial relations] by substantively and symbolically assisting blacks to an unprecedented extent, by making explicit as never before the federal government's recognition of and responsibility for the plight of Afro-Americans, and by creating a reform atmosphere that made possible a major campaign for civil rights").
81. Cf. William N. Eskridge, Jr., America's Statutory "Constitution", 41 U.C. Davis L. Rev. 1, 6 (2007) (arguing that administrative and legislative norms can create constitutional norms not found in U.S. Constitution).
82. See The Elementary and Secondary Education Act of 1965 (ESEA), Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.). Precursors to Title I include the 1946 National School Lunch Act, ch. 281, 60 Stat. 230, and the 1950 Impact Aid Act, ch. 1124, 64 Stat. 1100. In 1961, the federal share of education funding increased to four percent of total K-12 revenues. After the establishment of Title I, federal spending rose to about nine percent of K-12 education.
83. See Maris A. Vinovskis, School Reforms & Equal Education Opportunities for All Children: The Changing Federal Role in Education 4 (Jan. 2010) (unpublished manuscript) (on file with the Columbia Law Review).
84. Pub. L. No. 107-110, 115 Stat. 1425 (codified in scattered sections of 20 U.S.C.). NCLB requires that states report achievement data of different racial, ethnic, and socioeconomic groups, and take steps to reduce achievement disparities between groups.
85. See, e.g., 20 U.S.C. § 6301 (2006) (describing Act's goal of "closing the achievement gap between high- and low-achieving children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers").
86. 20 U.S.C. § 6301.
87. See Goodwin Liu, Education, Equality and National Citizenship, 116 Yale L.J. 330, 399-401 (2006) (discussing complexity in defining citizenship and highlighting failures in remedial educational policies). There is considerable debate over the efficacy of NCLB's reforms in the education and legal community.
88. Compare James S. Liebman & Charles F. Sabel, The Federal No Child Left Behind Act and the Post-Desegregation Civil Rights Agenda, 81 N.C. L. Rev. 1703, 1729-30 (2003) (identifying positive objectives and impact of NCLB programs), with James E. Ryan, The Perverse Incentives of the No Child Left Behind Act, 79 N.Y.U. L. Rev. 932, 959-60 (2004) (outlining negative consequences associated with NCLB and countering supporters' arguments for its implementation).
89. Moreover, the Executive and Congress can change the scope of the citizenship guarantee, as with regard to welfare, which changed from an entitlement program (Aid to Families with Dependent Children (AFDC)) to the current, more limited, Temporary Assistance to Needy Families (TANF) program.
90. See Personal Responsibility and Work Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (detailing provisions of TANF program in Title I). Eligible families can only receive TANF aid for five years and many must now participate in work activities. Cf. 42 U.S.C. § 607 (2006) (establishing mandatory work requirements). In addition, the Act gives states great flexibility to set eligibility criteria. See 42 U.S.C. § 602 (directing states to submit plan establishing objective criteria for delivery of benefits and determining eligibility).
91. See Compare James S. Liebman, Color Line, supra note 2, at 31 ("We cannot be satisfied that we have a reasonably complete program for economic security unless some degree of protection is given [to agricultural workers and domestic servants]." (quoting Comm. On Econ. Sec., Need for Security (1935), at http://www.ssa.gov/history/reports/ces5.html(on file with the Columbia Law Review))). The Committee on Economic Security was chaired by the Secretary of Labor and consisted of the Secretaries of Agriculture and the Treasury, the Attorney General, and the Federal Emergency Relief Administrator. See id. at 30.
92. To be sure, commentators have divided on the extent to which racial discrimination motivated Social Security's occupational exclusions.
93. See Gareth Davies & Martha Derthick, Race and Social Welfare Policy: The Social Security Act of 1935, 112 Pol. Sci. Q. 217, 218-20 (1997) (describing debate surrounding Congress's decision to exclude agricultural and domestic workers);
94. see also Compare James S. Liebman, Color Line, supra note 2, at 30-31 (noting Committee on Economic Security was worried about administrability of program as it related to domestic and agricultural workers); id. at 40 (discussing argument by Treasury Secretary about administrative challenges of including agricultural and domestic workers despite his support for inclusion on philosophical grounds). More recently, historian Mary Poole has argued that southern congressional members were actually divided over the question of excluding farmworkers because of the grave impact it would have had on white southern laborers. Mary Poole, The Segregated Origins of Social Security 44 (2006).
95. See Katznelson, supra note 7, at 36-37 (noting some Georgia counties excluded all blacks from federal relief monies, while in Mississippi relief rates for blacks were under one percent). These programs included the Agricultural Adjustment Act (AAA), the National Recovery Act (NRA), and the Federal Emergency Relief Act (FERA). Poole, supra note 57, at 7. 59.
96. See Katznelson, supra note 7, at 37-38 (noting "ten southern states had lower relief rates for rural blacks than whites" and "[i]n some Georgia counties federal relief monies excluded all blacks"). Despite having broad powers, the FERA Administrative Director succumbed to pressure from southern landowner interests to tailor benefit levels so as not to interfere with their labor needs.
97. See Michael K. Brown, Race, Money and the American Welfare State 42 (1999).
98. See Katznelson, supra note 7, at 45-46 ("In the South state governments used their discretion, including provisions that an ADC home be 'suitable,' to reduce [African American beneficiaries'] numbers.");
99. Compare James S. Liebman, Color Line, supra note 2, at 51-56 (discussing legislative debates surrounding Social Security Act and concluding southern support for Act was contingent in part on belief that state discretion in administration of Act preserved states' "right to maintain an economic and social system of segregation and white supremacy").
100. See United States v. Certain Lands in Louisville, 78 F.2d 684, 686 (6th Cir. 1935) (finding Congress's power "does not carry with it the power here claimed, to condemn private property to the end that appropriations of tax funds may be made for purposes deemed by Congress to be for the public welfare").
101. See Keith, supra note 27, at 28 (detailing development of new system of providing federal loans and grants to local housing authorities which was consistent with Constitution and served to "foster local responsibility");
102. Michael H. Schill & Susan M. Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. Pa. L. Rev. 1285, 1291 (1995) (describing redesign of public housing program). As Schill and Wachter explain: Municipalities that wished to participate in the program would establish a PHA and enter into an Annual Contribution Contract (ACC) with the federal government. Under the ACC, the federal government funded the majority of the capital costs of public housing by paying the debt service on long-term bonds. The PHA, in turn, agreed to operate the housing over the life of the bonds, subject to federal statutes and regulations.
103. See Hirsch, Difficult Barrier, supra note 28, at 58 ("Most important of all, the [Wagner-Steagall Act] exhibited a deference to localism that meant that tenant- and siteselection remained in local hands, as did the decision as to whether or not a town would choose to take advantage of the proffered assistance at all.");
104. Alexander Polikoff, Housing the Poor: The Case for Heroism 12 (1978) ("Local governments, therefore, had the power to decide whether public housing was to be built at all in their communities and could retain control, project by proposed project, over the place and pace of development.").
105. See Certain Lands in Louisville, 78 F.2d at 688 (finding acquisition of private property for public housing program to be beyond eminent domain power of federal government).
106. Alexander Polikoff, supra note 63, at 12. 66.
107. See Hirsch, Difficult Barrier, Making the Second Ghetto, supra note 42, at 10 ("Beginning in the 1930s, and continuing thereafter, the operation of national agencies such as the Federal Housing Administration (FHA) reflected prevailing segregationist attitudes.");
108. Alexander Polikoff, supra note 63, at 12-13 ("More important, hardly any of the completed units were built in white neighborhoods.").
109. See Alexander Polikoff, supra note 63, at 12-13 ("Suburban areas were, of course, unavailable to central city housing authorities; the local cooperation agreement requirement assured that the suburbs could ignore central city housing needs with impunity." (citation omitted)).
110. 347 U.S. 483 (1954).
111. Hirsch, Difficult Barrier, Difficult Barrier, supra note 28, at 25-26 ("Once rendered, the Brown decision sparked a flurry of self-examination among the housing agencies that consumed the spring and summer of 1954.");
112. Id. at 70 ("Brown, potentially, called [the federalgovernment's traditional deference to localism] into question, and at least threatened great change.").
113. See id. at 70 ("The President's criticism of the Warren Court and the Brown decision were well known as [was] his general distaste for the public discussion of racial discrimination.").
114. See id. at 48-49 ("Despite the talk of open occupancy experiments and a handful of 'integrated' projects, [the Eisenhower Administration] continued to adhere to pre-Brown racial policies.").
115. Hirsch describes the failure of the government to assign agents of the Race Relations Service to field offices of the federal Urban Renewal Administration, giving "[l]ocalities a virtual free hand to employ the new federal assistance not only to rebuild aging neighborhoods, but to restructure their racial composition." Id. at 71. He further notes that "[t]his became a particularly salient feature of the program in the wake of the Supreme Court's action in Brown." Id.;
116. see also id. at 41-47 (describing firing of Frank Horne, Administrator of the Racial Relations Service, and accompanying outrage from civil rights and housing advocates);
117. id. at 43 (noting criticism of federal housing policy by George Weaver, acting chair of the National Committee Against Discrimination, and other civil rights advocates); Hirsch, Making the Second Ghetto, supra note 42, at 226-27 (discussing African American critics of placing public housing in already segregated, poor communities).
118. See Hirsch, Difficult Barrier, Difficult Barrier, supra note 28, at 70-71 (describing extreme federal deference to localism, particularly during Eisenhower Administration, and noting "[t]he result was that local elites successfully hitched new federal power and supports to the reinforcement (or establishment) of segregation").
119. See id. at 48-49 (describing positions taken by Albert Cole, head of Housing and Home Finance Agency (HHFA) in 1950s, in defense of HHFA's noninterference with residential segregation).
120. See Peterson, supra note 22, at 16-49 (discussing functional theory of federalism).
121. See Xavier de Souza Briggs, Introduction, in The Geography of Opportunity 1, 3-8 (Xavier de Souza Briggs ed., 2005) (detailing effects of urban sprawl and housing options on racial and economic segregation).
122. The federal government had a more extensive involvement in education than is often recognized. The post-Civil War Freedmen's Bureau was responsible for the education of as many as 100,000 students each year, and the federal Department of Education was established independently in 1867. Liu, supra note 54, at 371-75. As Liu notes, soon after its establishment the Department was "demoted" to an office within the Department of Interior, see id. at 374, and it did not become a cabinet-level agency until 1980.
123. See U.S. Dep't of Educ., The Federal Role in Education, at http://www2.ed.gov/about/overview/fed/role.html (on file with the Columbia Law Review) (last visited Oct. 22, 2010). A major increase in the federal role, however, occurred with the passage of the Elementary and Secondary Education Act of 1965 (ESEA), Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.).
124. Pub. L. No. 110-185, 122 Stat. 613. The Economic Stimulus Act of 2008, enacted February 13, 2008, created a range of economic initiatives to boost the economy, including tax rebates, tax incentives for businesses, and provisions to allow government mortgage agencies Fannie Mae and Freddie Mac to purchase additional mortgages. The cost of the Act was about $152 billion in 2008.
125. Cong. Budget Office, Cost Estimate: H.R. 5140, Economic Stimulus Act of 2008 (2008), available at http://www.cbo.gov/ftpdocs/89xx/doc8973/hr5140pgo.pdf (on file with the Columbia Law Review).
126. Pub. L. No. 110-343, 122 Stat. 3765 (to be codified in scattered sections of 12 U.S.C.). The primary purpose of the Emergency Economic Stabilization Act of 2008 was to bail out foreign and domestic banks saddled with a range of troubled assets including mortgage-backed securities. A key provision, the Troubled Assets Relief Program (TARP) allowed the U.S. Department of the Treasury to purchase or insure up to $700 billion of troubled assets in order to improve the liquidity of these assets.
127. See 122 Stat. at 3767 (authorizing Secretary to establish TARP and "to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary").
128. H.R. 1, 111th Cong. (2009). The lead sponsor was the Chair of the House Appropriations Committee, Representative David Obey (D-WI). Id.
129. See Jackie Calmes, House Approves $819 Billion Plan for Economic Aid, N.Y. Times, Jan. 29, 2009, at A1. Initially, 206 amendments were offered, but the Rules Committee would eventually allow votes on just eleven amendments in order to expedite the process and assure that amendments were germane and relevant to economic growth.
130. See Jonathan Allen, How 206 Stimulus Amendments Became 11, CQ Politics (Jan. 28, 2009, 6:22 AM), at http://www.cqpolitics.com/wmspage.cfm?docID=news-000003019194 (on file with the Columbia Law Review).
131. The Senate bill, S. 1, was introduced in the Senate on January 6, 2009 by Majority Leader Harry Reid (D-NV). S. 1, 111th Cong. (2009). The bill passed the Senate by a vote of sixty to thirty-eight, with three Republicans voting yes. See 155 Cong. Rec. S2312 (daily ed. Feb. 13, 2009) (listing roll call vote).
132. Foon Rhee, With History and Flourish, Obama Signs the Stimulus Bill, Bos. Globe Pol. Intelligence Blog (Feb. 17, 2009, 5:56 PM), at http://www.boston.com/news/politics/politicalintelligence/2009/02/with_h istory_an.html (on file with the Columbia Law Review).
133. See Ike Brannon & Chris Edwards, Barack Obama's Keynesian Mistake, Nat'l Post (Jan. 29, 2009, 7:00 PM), at http://network.nationalpost.com/NP/blogs/fpcomment/archive/2009/01/29/ba rack-obama-s-keynesian-mistake.aspx (on file with the Columbia Law Review) (arguing stimulus plan would fail due to its reliance on flawed Keynesian premise that government spending will spur economic recovery).
134. The Keynesian notion is that, faced with major unemployment and sticky wages, increased government spending will increase aggregate demand for goods and services, and hence reduce unemployment.
135. See John Maynard Keynes, The General Theory of Employment, Interest and Money 27-32, 245-49 (Prometheus Books 1997) (1936) (detailing relationship between consumption, investment and employment levels);
136. see also Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War 66 (1995) (describing as foundationalto the "'Keynesian approach"' the idea that public spending to spur consumption was the best strategy for alleviating recession).
137. ARRA, Pub. L. No. 111-5, § 3, 123 Stat. 115, 116 (2009).
138. See Remarks on Signing the American Recovery and Reinvestment Act of 2009 in Denver, Colorado, 2009 Daily Comp. Pres. Doc. 88 (Feb. 17, 2009) [hereinafter ARRA Signing Statement].
139. ARRA, div. A, 123 Stat. at 116-305.
140. Id., div. B, 123 Stat. at 306-521.
141. Id., div. A, tit. XII, 123 Stat. at 203-26. The Act provides $288 billion in tax cuts. The remaining $499 billion is for funding federal programs, as well as for federal contracts, grants, and loans. See Recovery Accountability and Transparency Bd., The Recovery Act, at http://www.recovery.gov/About/Pages/The_Act.aspx (on file with the Columbia LawReview) (last visited Oct. 22, 2010) (providing high level breakdown of funding allocation).
142. ARRA, div. A, tit. XII, 123 Stat. at 217-20. "All activities, other than administrative costs, must meet one of the CDBG's three national objectives: provide benefits to low- and moderate income persons; eliminate slums and blighting conditions; or address urgent needs and/or imminent threats within the community."
143. U.S. Dep't of Hous. & Urban Dev., Program-Level Plan: Community Development Block Grant (CDBG) Entitlement Grants, at http://portal.hud.gov/portal/page/portal/RECOVERY/PLANS/Community%20Deve lopment%20Block%20Grant%20(CDBG)%20Entitlement%20Grants.pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010). Ten million dollars of the appropriation is directed to the Office of Public and Indian Housing's Indian CDBG program. Id. 91. ARRA, div. A, tit. XII, 123 Stat. at 217.
144. Id. at 221-22.
145. Id. at 221.
146. Henry C. Jackson, Housing and Urban Development Releases $1.2 Billion in Stimulus Funds to Combat Homelessness, Associated Press, July 9, 2009, available at Factiva, Doc. No. APRS000020090709e579001jm.
147. Press Release, Andrea Mead, U.S. Dep't of Hous. & Urban Dev., Donovan Announces $300 Million in Recovery Act Funding to Prevent Homelessness (Sept. 23, 2009), at http://portal.hud.gov/portal/page/portal/HUD/press/press_releases_media_ advisories/2009/HUDNo.09-181 (on file with the Columbia Law Review).
148. ARRA, div. A, tit. XII, 123 Stat. at 217. The funds are available for five uses: "establishment of financing mechanisms for purchase of foreclosed homes; purchase and rehabilitation of abandoned or foreclosed homes; land banking of foreclosed homes;demolition of blighted structures; and redevelopment of vacant or demolished property."
149. U.S. Dep't of Hous. & Urban Dev., Program-Level Plan: Neighborhood Stabilization Program (NSP), at http://portal.hud.gov/portal/page/portal/RECOVERY/PLANS/Neighborhood%20S tabilization%20Program%20(NSP).pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010) (detailing funding, objectives, activities, characteristics, schedule, and metrics for CDBG program).
150. U.S. Dep't of Hous. & Urban Dev., Notice of Fund Availability (NOFA) for the Neighborhood Stabilization Program 2 Under the American Recovery and Reinvestment Act, 2009, at 20-30, 68 (2009), available at http://portal.hud.gov/portal/page/portal/RECOVERY/programs/NEIGHBORHOOD_ RESOURCES/Funding%20Notice%20for%20the%20Neighborhood%20Stabilization%20 Program%202.pdf (on file with the Columbia Law Review).
151. ARRA, div. A, tit. XII, 123 Stat. at 222. HUD will use $2 billion to fund Section 8 contract renewals on a full twelve month cycle. Id.
152. Id., div. A., tit. XII, 123 Stat. at 214-15. ARRA requires that $3 billion of these funds be distributed "by the same formula used for amounts made available in fiscal year 2008, except that the Secretary [of HUD] may determine not to allocate funding to public housing agencies currently designated as troubled or to public housing agencies that elect not to accept such funding." Id. In addition, public housing agencies must "give priority consideration to the rehabilitation of vacant rental units" and to those "capital projects that are already underway or included in the 5-year capital fund plans required by the Act." Id.
153. See Press Release, Andrea Mead, U.S. Dep't of Hous. & Urban Dev., HUD Makes Nearly $1 Billion Available in Recovery Act Funds to Improve Public Housing (May 11, 2009), at http://portal.hud.gov/portal/page/portal/HUD/press/press_releases_media_ advisories/2009/HUDNo.09-057 (on file with the Columbia Law Review). In June 2009,
154. HUD announced that it was "lower[ing] the threshold that public housing agencies must meet" to get a portion of the $1 billion in competitive funds. Initially, grants were available only to "high performers"-housing authorities whose properties were in good physical condition and well-managed. But after complaints by legislators that housing authorities in many of the nation's largest cities would be ineligible for the funding due to poor past performance, HUD decided that only half the funds in the first round of competitive grants would be given to high performers.
155. Kevin Freking, HUD Revises Rules for Stimulus Money, Seattle Times, June 3, 2009, at http://seattletimes.nwsource.com/html/politics/2009235970_apusstimuluspu blichousing.html (on file with The Columbia Law Review).
156. Kevin Freking, supra note 100. 102. See id.
157. HUD awards the Tax Credit Assistance Program funds by formula grant "to state housing credit agencies to complete construction of qualified housing projects that will ultimately provide affordable housing to an estimated 35,000 households." ARRA, div. A, tit. XII, 123 Stat. at 220;
158. U.S. Dep't of Hous. & Urban Dev., Program-Level Plan: Tax Credit Assistance Program (TCAP) [hereinafter TCAP Plan], at http://portal.hud.gov/portal/page/portal/RECOVERY/PLANS/Tax%20Credit%20A ssistance%20Program%20(TCAP).pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010).
159. ARRA, div. A, tit. XII, 123 Stat. at 220; TCAP Plan, supra note 103.
160. Id., div. A, tit. XII, 123 Stat. at 203-14.
161. Id. at 206-07, 212-14. To constitute an economically distressed area, an area generally must (1) have "a per capita income of 80 percent or less of the national average"; or (2) have "an unemployment rate that is, for the most recent 24-month period for which information is available, at least 1 percent more than the national average unemployment rate." 42 U.S.C. § 3161(a) (2006). For areas that fail to satisfy either of these criteria, the Secretary of Commerce can decide that an area has experienced or will experience "a special need arising from actual or threatened severe unemployment or economic adjustment problems resulting from severe short-term or long-term changes in economic conditions." Id. Another $1.5 billion will be competitively awarded to states, local governments, and transit agencies for capital investments in highways and bridges, public transportation, and rail. ARRA, div. A, tit. XII, 123 Stat. at 203-12.
162. See ARRA, div. A, tit. XII, 123 Stat. at 206. The program will fund projects eligible under the Surface Transportation Program. 23 U.S.C. § 133 (2006).
163. ARRA, div. A, tit. XII, 123 Stat. at 208.
164. Id. at 209; see also American Recovery and Reinvestment Act of 2009 Public Transportation Apportionments, Allocations and Grant Program Information, 74 Fed. Reg. 9656 (Mar. 5, 2009) (providing guidance for formula grants to be distributed through "Federal Transit Administration assistance programs"). The Recovery Act gave Amtrak $1.3 billion for capital improvements. ARRA, div. A, tit. XII, 123 Stat. at 209.
165. ARRA §§ 14001-14013, 123 Stat. at 279-86.
166. A formula grant program is a noncompetitive grant to states administered according to a formula. See U.S. Dep't of Educ., Formula Grant Definition, at http://www2.ed.gov/fund/grant/about/formgrant.html (on file with the Columbia Law Review) (last visited Oct. 22, 2010). By contrast, an agency awards discretionary grants to states on a competitive basis.
167. See U.S. Dep't of Educ., Discretionary Grant Definition, at http://www2.ed.gov/fund/grant/about/discgrant.html (on file with the Columbia Law Review) (last visited Oct. 22, 2010);
168. see also Kamina Aliya Pinder, Using Federal Law to Prescribe Pedagogy: Lessons Learned From the Scientifically-Based Research Requirements of No Child Left Behind, 6 Geo. J.L. & Pub. Pol'y 47, 53 (2008) (describing Department of Education's grant process).
169. ARRA §§ 14001-14005, 123 Stat. at 279-83.
170. Id. §§ 14006-14007, 123 Stat. at 283-84.
171. Id. § 14005(d), 123 Stat. at 282-83;
172. U.S. Dep't of Educ., Guidance on the State Fiscal Stabilization Fund Program 3-4 (2009), available at http://www.ed.gov/programs/statestabilization/guidance.pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010).
173. As described above, a state seeking stabilization funds must provide an assurance that it will establish a longitudinal data system that has the capacity to link preschool, K-12, postsecondary education, and workforce data. ARRA makes a separate, non-SFSF allocation of $250 million available in the form of grants to states to develop and implement these systems, which will enable states to monitor student- and teacher-related reforms and make particular changes to advance them.
174. See ARRA, div. A, tit. VIII, 123 Stat. at 183-84 (funding Institute of Education Sciences);
175. see also Fact Sheet, U.S. Dep't of Educ., Statewide Longitudinal Data Systems, available at http://www2.ed.gov/programs/slds/factsheet.pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010) (describing elements of data systems).
176. See State Fiscal Stabilization Fund Program, 74 Fed. Reg. 37,837-41 (July 29, 2009) (establishing data reporting requirements for grant recipients). States are not required to demonstrate progress in the reform areas in order to get funds, but they have to ensure that the data regarding their progress is available to the public. Id.
177. ARRA § 14006, 123 Stat. at 283-84; Fact Sheet, U.S. Dep't of Educ., Race to the Top, available at http://www2.ed.gov/programs/racetothetop/factsheet.pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010).
178. ARRA § 14005(c), 123 Stat. at 282.
179. Delaware received $100 million in funding; Tennessee $500 million. Press Release, U.S. Dep't of Educ., elaware and Tennessee Win First Race to the Top Grants (Mar. 29, 2010), at http://www2.ed.gov/news/pressreleases/2010/03/03292010.html (on file with the Columbia Law Review).
180. See Press Release, U.S. Dep't of Educ., Nine States and the District of Columbia Win Second Round Race to the Top Grants (Aug. 24, 2010), at http://www.ed.gov/news/press-releases/nine-states-and-district-columbia- win-second-round-race-top-grants (on file with the Columbia Law Review) (announcing award of grants to District of Columbia and nine states-Florida, Georgia, Hawaii, Maryland, Massachusetts, New York, North Carolina, Ohio, and Rhode Island).
181. ARRA § 14007, 123 Stat. at 284; Press Release, U.S. Dep't of Educ., Secretary Duncan Releases Application for $650 Million to Support Innovation (Mar. 8, 2010), at http://www.ed.gov/news/press-releases/secretary-duncan-releases-applicat ion-650-millionsupport-innovation (on file with the Columbia Law Review).
182. 124. Fact Sheet, U.S. Dep't of Educ., Teacher Incentive Fund, at http://www2.ed.gov/programs/teacherincentive/factsheet.pdf (on file with the Columbia Law Review) (last visited Oct. 22, 2010). The goals of the Teacher Incentive Fund are: "improving student achievement by increasing teacher and principal effectiveness; [r]eforming teacher and principal compensation systems so that teachers and principals are rewarded for increases in student achievement;
183. [i]ncreasing the number of effective teachers teaching poor, minority, and disadvantaged students in hard-to-staff subjects [c]reating sustainable performance-based compensation systems." U.S. Dep't of Educ., Teacher Incentive Fund, at http://www2.ed.gov/programs/teacherincentive/index.html (on file with the Columbia Law Review) (last visited Oct. 22, 2010).
184. See supra notes 20-27 and accompanying text.
185. In low-income housing, for instance, the federal government funds programs to help maintain and revitalize public housing.
186. See 42 U.S.C. §§ 1437c(a), 1437i (2006) (detailing funding for capital costs for public housing); Quality Housing and Work Responsibility Act of 1998, Pub L. No. 105-276,
187. Stat. 2461, 2473 (codified at 42 U.S.C. § 1437) (creating "HOPE VI" program to revitalize public housing). It also operates the country's largest program for creating low-income rental housing.
188. See Philip D. Tegeler, The Persistence of Segregation in Government Housing Programs, in The Geography of Opportunityz, supra note 76, at 197, 201 (describing Low-Income Housing Tax Credit Program and arguing that it "has operated with little civil rights oversight"). Through a variety of programs, the federal government has provided seventy-five to ninety percent of the funding for urban mass transit programs and the interstate highways since the 1950s.
189. See Peter W. Salsich, Jr., Saving Our Cities: What Role Should the Federal Government Play, 36 Urb. Law. 475, 485 n.71 (2004).
190. See supra Part II.A.3 (detailing various education initiatives under ARRA).
191. See Steven Brill, The Teachers' Unions' Last Stand, N.Y. Times, May 23, 2010, at MM32 (detailing dramatic education reforms and shifting power balances as states pursue Race to the Top Fund grants).
192. See Amanda Logan & Christian E. Weller, Ctr. for Am. Progress, The State of Minorities: The Recession Issue (2009), at http://www.americanprogress.org/issues/2009/01/state_of_minorities.html (on file with the Columbia Law Review) (describing minorities' particular vulnerability to economic downturns).
193. See ARRA Signing Statement, supra note 86 (describing recovery plan as first step in economic recovery process by saving jobs and investing in education, health care, and technology).
194. See, e.g., H.R. Rep. No. 111-16, at 94, 470 (2009) (allocating $20 million for highway surface transportation and technology training, $20 million for disadvantaged business enterprises bonding assistance, and additional set asides for "on-the-job training programs focused on minorities, women, and the socially and economically disadvantaged").
195. See Mark Muro et al., Brookings Inst., Metro Potential in ARRA: An Early Assessment of the American Recovery and Reinvestment Act 20-21 (2009) [hereinafter Muro et al., Metro Potential] (discussing $53 billion budgeted for transportation improvements in American Recovery and Reinvestment Act, $9.5 billion of which will go toward passenger rail projects).
196. See supra text accompanying notes 117-124.
197. See Michael A. Rebell et al., Stimulating Equity?: A Preliminary Analysis of the Impact of the Federal Stimulus Act on Educational Opportunity 6-13 (2010), available at http://www.equitycampaign.org/i/a/document/12857_Stimulating_Equity_Repo rt_FINAL.pdf (on file with the Columbia Law Review) (finding SFSF has proved useful in stemming effects of recession but few of twenty surveyed states have used funds to promote reforms);
198. see also Alyson Klein, Dual Aims in Stimulus Stir Tension, Educ. Week, June 10, 2009, at 1, 24 (noting states face tension between using stimulus funds for reform purposes and using them to fill preexisting deficits).
199. Researchers disagree on the benefits of encouraging more charter schools. Compare Nat'l Ctr. for Educ. Stat., A Closer Look at Charter Schools Using Hierarchical Linear Modeling, at vi (2006) (analyzing 2004 and 2006 data and finding traditional public schools outperform charter schools on reading and math standardized tests), and Steven M. Ross et al., Achievement and Climate Outcomes for the Knowledge Is Power Program in an Inner-City Middle School, 12 J. Educ. for Students Placed at Risk 137, 137 (2007), with Erik W. Robelen, KIPP Success Cited, with Caveats, Educ. Week, Nov. 12, 2008, at 5 (reporting on study findings that students in charter schools tend to perform better, although noting rigorous programs of charter schools may select out less motivated or prepared students and their families).
200. See Alyson Klein, Budget Would Boost Incentive Pay, Turnaround Aid, Educ. Week, May 13, 2009, at 20 (detailing concerns of critics of incentive pay systems).
201. See supra text accompanying note 56 (describing New Deal's effect of defining and circumscribing citizenship). Professor John Powell has called this "false universalism." John A. Powell, Post-Racialism or Targeted Universalism?, 86 Denv. U. L. Rev. 785, 791-92 (2009) (arguing "Social Security Act, often described as the quintessential universal policy, was universal, only insofar as the universal was a white, male, able-bodied worker").
202. The Recovery Act provides $2.25 billion in capital investments for the LIHTC program through grants to state housing finance agencies under the HOME Investment Partnership Program. ARRA, Pub. L. No. 111-5, div. A, tit. XII, 123 Stat. 115, 220-21 (2009). The portion of the program that is funded as a grant should be covered by Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d-2000d-4a (2006), as well as by Title VIII of the Fair Housing Act, 42 U.S.C. §§ 3601-3608, but HUD has not made clear the civil rights requirements of these provisions.
203. As discussed earlier, the stimulus also advances civil rights with respect to LIHTC by mandating for the first time that state housing finance authorities collect data on therace and ethnicity of residents of LIHTC developments. Housing and Economic Recovery Act of 2008, Pub. L. No. 110-289, § 2835, 122 Stat. 2654, 2874-75.
204. Cf. Carissa Climaco et al., Abt Assocs. Inc., Updating the Low-Income Housing Tax Credit (LIHTC) Database: Projects Placed in Service Through 2006, at 55-57 (2009), available at http://www.abtassociates.com/reports/Climaco_[1]_LIHTC%20through%202006. pdf (on file with the Columbia Law Review) (finding "tax credit units are more likely than households in general or rental units in general to be located in high poverty areas" and "more likely to be located in tracts with large minority populations or large proportions of female-headed households, compared to households in general or rental units in general");
205. Jill Khadduri et al., Abt Assocs. Inc., Are States Using the Low Income Housing Tax Credit to Enable Families with Children to Live in Low Poverty and Racially Integrated Neighborhoods? (2006), available at http://www.prrac.org/pdf/LIHTC_report_2006.pdf (on file with the Columbia Law R eview) (describing study of "theextent to which each of the states administering the tax credit program has used the program to place rental housing in" low-poverty, racially integrated neighborhoods);
206. Tegeler, supra note 126, at 202 & n.20 (finding LIHTC program "mirrors existing conditions of racial and economic segregation" in many states and citing testimony of Fair Housing Center of Greater Boston before Massachusetts Department of Housing and Community Development stating "almost two-thirds of LIHTC projects within Boston are very heavily concentrated in census tracts whose residents are predominantly black and Hispanic" (internal quotation marks omitted)). Studies also reveal the program's great potential to promote mixed-income, racially integrated neighborhoods. In a few regions, the program appears to be encouraging the development of low-income housing outside of poor, minority areas.
207. See, e.g., Khadduri et al., supra, at 11-21.
208. On January 14, 2010, HUD awarded $1.93 billion under the Recovery Act's Neighborhood Stabilization Program (known as NSP2). U.S. Dep't of Hous. & UrbanDev., Neighborhood Stabilization Program 2, at http://hud.gov/offices/cpd/communitydevelopment/programs/neighborhoodspg /arrafactsheet.cfm (on file with the Columbia Law Review) (last updated Apr. 12, 2010).
209. See ARRA, div. A, tit. XII, 123 Stat. at 217-18 ("[I]n selecting grantees, the Secretary of Housing and Urban Development shall ensure that the grantees are in areas with the greatest number and percentage of foreclosures.").
210. Courts and federal agencies have interpreted the Fair Housing Act's provisions that require federal agencies and grant recipients to affirmatively further fair housing as mandating that federally subsidized housing be sited in low-poverty, nonminority areas. See infra Part III.B. Under ARRA, NSP2 funds are treated as Community DevelopmentBlock Grant (CDBG) funds, which are governed by explicit civil rights objectives. See 42 U.S.C. § 5301 (stating CDBG's goal of promoting neighborhood "diversity and vitality," reducing isolation of low-income groups, and increasing "spatial deconcentration" of lowincome individuals).
211. See supra note 140 (detailing data from LIHTC program). 45. No doubt the relevant equity norm is more contested here than in the area of civil rights protections in public housing programs in the 1950s. The fair housing goal of integration is frequently in tension with the goal of creating affordable housing opportunities in high-poverty neighborhoods. See Myron Orfield, Racial Integration and Community Revitalization: Applying the Fair Housing Act to the Low Income Housing Tax Credit, 58 Vand. L. Rev. 1747, 1803-04 (2005) [hereinafter Orfield, Racial Integration] (noting tension between duty to affirmatively further fair housing and LIHTC siting preferences).
212. See, e.g., Letter from Peter Orszag, Dir., Office of Mgmt. & Budget, Exec. Office of the President, to David Obey, Chairman of House Appropriations Comm. (Jan. 27, 2009), available at http://www.whitehouse.gov/sites/default/files/omb/assets/legislative_let ters/obey_012709.pdf (on file with the Columbia Law Review) (urging direct federal boost to lift nation out of recession).
213. See ARRA, div. A, tit. XII, 123 Stat. at 203-214 (setting bligation schedule for ARRA transportation funding).
214. See Bracken Hendricks & Matt Golden, Ctr. for Am. Progress, Taking on the Tool Belt Recession 1-4 (2010), available at http://www.americanprogress.org/issues/2010/03/pdf/construction_jobs_mem o.pdf (on file with the Columbia Law Review) (finding unemployment rate for construction workers was 24.7% in January 2010).
215. See, e.g., Kris Paap, How Good Men of the Union Justify Inequality: Dilemmas of Race and Labor in the Building Trades, 33 Lab. Stud. J. 371, 376 (2008) (documenting underrepresentation of blacks and women in construction trades and role of labor unions in preserving discriminatory status quo); Roger Waldinger & Thomas Bailey, The Continuing Significance of Race: Racial Conflict and Racial Discrimination in Construction, 19 Pol. & Soc'y 291, 292, 300 (1991) (asserting "persistence of discrimination in construction is not simply an unpleasant exception to the general case"). 150. See ARRA, div. A, tit. XII, 123 Stat. at 204, 206 (requiring priority funding be given to transportation projects that can be completed in three years).
216. See Muro et al., Metro Potential, supra note 132, at 20 (noting half of transportation infrastructure funds are channeled through Surface Transportation Program).
217. See id. at 10, 20 (finding that in twenty-three states' plans only half of funding would go to largest metropolitan areas, where minorities disproportionately reside).
218. See, e.g., Brookings Inst., MetroPolicy: Shaping a New Federal Partnership for a Metropolitan Nation 36-37 (2008), available at http://www.brookings.edu/~/media/Files/rc/reports/2008/06_metropolicy/06_metropolicy_fullreport.pdf (on file with the Columbia Law Review) (describing efforts in Denver, New York, and Portland to better coordinate regional transit systems and address affordable housing needs across metropolitan areas).
219. See Mark Muro et al., Brookings Inst., Implementing ARRA: Innovations in the Design in Metro America 8-9 (2009), available at http://www.brookings.edu/~/media/Files/rc/reports/2009/0723_american_rec overy_reinvestment_act/0723_americanrecovery_reinvestment_act_brief.pdf (on file with the Columbia Law Review) (arguing few provisions would allow creative communities to link, align, or mix even obviously related funding flows to achieve synergistic effects).
220. U.S. Gov't Accountability Office, GAO-09-926T, Recovery Act: States' Use of Highway and Infrastructure Funds and Compliance with the Act's Requirements 2 (2009).
221. See, e.g., Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. No. 109-59, § 1101(b), 119 Stat. 1144, 1156-57 (2005) ("Except to the extent that the Secretary determines otherwise, not less than 10 percent [of certain transportation programs] shall be expended through small business concerns owned and controlled by socially and economically disadvantaged individuals."); 49 C.F.R. § 26.21 (2009) (requiring recipients of federal highway funds and those receiving certain planning and capital grants above $250,000 to participate in disadvantagedbusiness program); id. § 26.3 (listing statutes subject to disadvantaged business enterprise requirement); see also 15 U.S.C. § 637(d) (2006) (defining "socially and economically disadvantaged individuals" while presuming minority businesses meet definition).
222. See, e.g., Letter from Will Kempton, Dir., Cal. Dep't of Transp., to Transp.Constr. Cmty. (Mar. 4, 2009), available at http://www.dot.ca.gov/hq/bep/documents/ DBEAnnouncement-Construction_v4_.pdf (on file with the Columbia Law Review) (urging state transportation community to meet federal targets for disadvantaged contractor hiring);
223. Aaron Glantz, Minority Contractors Unite to Demand Share of Stimulus Dollars, New Am. Media, July 23, 2009, at http://news.newamericamedia.org/news/view_article.html?article_id=fed888 cd4172f69e3283d024371a4008 (on file with the Columbia Law Review) (noting minority and disadvantaged contractors have failed to receive substantial share of contracts even though California law banning affirmative action does not apply to stimulus contracting);
224. Jason Hoppin, MnDOT Shorting Disadvantaged Firms on Stimulus Projects, Report Says: But MnDOT Predicts More Work for Disadvantaged Firms, Pioneer Press, Oct. 14, 2009, at http://www.allbusiness.com/society-social/religion-spiritualityreligion/ 13201054-1.html (on file with the Columbia Law Review) (noting Minnesota Department of Transportation has failed to meet state goal of fifteen percent disadvantaged contractor participation rate in construction projects).
225. See supra Part I.B-C.
226. See Poole, supra note 57, at 97-139 (recounting lobbying efforts of NAACP, National Urban League, and Joint Committee on National Recovery to eliminate discriminatory provisions of New Deal federal spending programs).
227. See id. at 116-39.
228. See id. at 130-39 (detailing NAACP's simultaneous efforts to define its legal agenda and pressure Congress for inclusion of African Americans in Social Security Act).
229. See id. at 108-11 (describing NAACP's efforts to generate support for antilynching legislation).
230. See id. at 130-39 (noting that although "New Deal programs provided many African Americans, for the first time, genuine and substantial federal support through emergency relief," civil rights groups faced difficulty of contesting exclusion without alienating white liberal supporters of Social Security Act).
231. See Peter Skerry, Racial Politics in the Administrative State, Society, Jan./Feb. 2005, at 38 (noting mobilized black community and st ronger public interest politics werekey legacies of social upheavals during 1960s).
232. See Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy 1960-1972, at 467 (1990) ("The civil rights laws of 1964, 1965, and 1968, with their nationwide bans on discrimination in public facilities and accommodations, and private jobs and housing, became politically unassailable."). Cf. id at 190-210 (noting EEOC's role as "subversive bureaucracy" in civil rights and women's rights movements).
233. See infra notes 171-181 and accompanying text (analyzing civil rights laws as weapons against state discriminatory action).
234. See infra notes 189-190 and accompanying text.
235. See Office of Mgmt. & Budget, Exec. Office of the President, Open Government Plan, at i (Apr. 7, 2010), available at http://www.whitehouse.gov/sites/default/files/microsites/100407-omb-open gov-plan.pdf (on file with the Columbia Law Review) ("OMB'scentral mission is to assist the President in overseeing the preparation and implementation of the Federal Budget and to oversee and coordinate the Administration's legislative, management, performance management, and regulatory policies.").
236. Memorandum from Peter R. Orszag, Dir., Office of Mgmt. & Budget, Exec. Office of the President, to the Heads of Dep'ts & Agencies § 1.6, at 7 (Feb. 18, 2009), available at http://www.recovery.gov/About/Documents/Initialrecoveryactimplementing guidance_feb18.pdf (on file with the Columbia Law Review).
237. See id. at 7. Section 1.6 of the guidance provides: 1.6 What additional responsibilities exist for Executive Branch agencies? The Executive Branch shall distribute Recovery Act funds in accordance with: All anti-discrimination and equal opportunity statutes, regulations, and Executive Orders that apply to the expenditure of funds under Federal contracts, grants, cooperative agreements, loans, and other forms of Federal assistance. Grantmaking agencies shall ensure that their recipients comply with Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and any program-specific statutes with anti-discrimination requirements. Generally applicable civil rights laws also continue to apply, including (but not limited to) the Fair Housing Act, the Fair Credit Reporting Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the Equal Educational Opportunities Act, the Age Discrimination in Employment Act, and the Uniform Relocation Act. 171. Section 601 of Title VI prohibits discrimination based on race, color, or national origin in any "program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (2006).
238. Rehabilitation Act of 1973, 29 U.S.C. § 794 (2006).
239. Education Amendments of 1972, tit. IX, 20 U.S.C. §§ 1681-1688 (2006).
240. 42 U.S.C. §§ 6101-6107.
241. See Stephen C. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act 1 (1995) ("Heralded as 'one of the legislative milestones in modern American history' the 1964 Civil Rights Act was a watershed event in American law and politics."). The roots of conditioning federal spending to advance civil rights stem from efforts in the New Deal and postwar period. In the 1930s, President Roosevelt, and his officials, harnessed executive power to combat discrimination, issuing an executive order prohibiting employment discrimination in federal agencies, see Exec. Order No. 8802, 3 C.F.R., ch. 2, at 234 (Supp. 1941) (prohibiting racial, ethnic and national origin discrimination against workers in defense industries and in government); Exec. Order No. 7046, microformed on CIS No. 1935-EO-7046 (Cong. Info. Serv. 1935) (forbidding discrimination in newly established Works Progress A dministration WPA)); Sitkoff, supra note 49, at 321 (discussing Executive Order 8802, which also established Committee on Fair Employment Practices (FEPC) in Office of Personnel Management to administer the order). Harold Ickes, President Roosevelt's long-serving Secretary of the Interior, "insisted that the Public Works Administration (PWA) construction projects hire [blacks] as skilled as well as unskilled laborers" despite the fact that the statute was silent on the question of discrimination. Id. at 66-67. He also required that all PWA contractors hire a percentage of blacks equal to blacks' proportion in the 1930 occupational census. See id. at 67 (noting provision was sometimes ignored by local officials and contractors). Congress in 1939 amended the New Deal's Emergency Relief Act to prohibit discrimination by relief officials on the ground of "race, creed, or color." Id. at 69. President Eisenhower in 1951 extended prohibitions on employment discrimination to recipients of federal contracts. See Exec. Order No. 10,479, 18 C.F.R. § 4899 (1953) (banning discrimination by contractors on federally financed construction sites); Goluboff, supra note 49, at 42 ("In 1953, even Eisenhower, a reluctant supporter of African American civil rights, followed the by then decade-long precedent of taking executive action to eliminate discrimination in government contracting.").
242. See Charles F. Abernathy, Title VI and the Constitution: A Regulatory Model for Defining "Discrimination," 70 Geo. L.J. 1, 1 (1981) ("Congress passed title VI during a period of intense concern with public school desegregation.").
243. See 42 U.S.C. § 2000d (prohibiting discrimination in any "program or activity receiving Federal financial assistance");
244. see also Kenneth Wing, Title VI and Health Facilities: Forms Without Substance, 30 Hastings L.J. 137, 152 & n.56, 153 n.58 (1978) (documenting legislative concern with prohibiting discrimination in health care, particularly in hospital services). 178. President Kennedy and other members of Congress initially opposed the idea of withholding federal aid, as an affront to localism in education, and as a potentially dangerous accumulation of federal power.
245. See Gary Orfield, The Reconstruction of Southern Education: The Schools and the 1964 Civil Rights Act 31-32 (1969).
246. 109 Cong. Rec. 11,178 (1963). Twenty years later, the U.S. Civil Rights Commission, the federal agency charged with issuing reports and recommendations on the federal enforcement of Title VI and other civil rights provisions, would describe the statute as intended to "demolish the lingering barriers to full participation faced by minorities," and argue that these "barriers are the legacy of legally mandated or tolerated segregation and discrimination, and, experience has shown, can be dismantled only with the leadership and assistance of the Federal Government." U.S. Comm'n on Civil Rights, Federal Civil Rights Commitments: An Assessment of Enforcement Resources and Performance 2 (1983).
247. Title VI does not define the prohibited discrimination, but, in section 602 of the Act, it directs agencies that distribute federal funds to "effectuate" the regulations by issuing "rules, regulations, or orders of general applicability." Pub. L. No. 88-352, § 602, 78 Stat. 241, 252 (1964) (codified at 42 U.S.C. § 2000d-1). Congress required presidential approval of the regulations, and also directed that the regulations be "consistent with achievement of the objectives of the statute authorizing the financial assistance."
248. See, e.g., 28 C.F.R. § 42.104(b)(2) (2009) (proposing regulations by Justice Department that would prohibit "arrangements which have the effect of subjugating individuals to discrimination"); 45 C.F.R. § 80.3(b)(3) (2009) (establishing Department of Health and Human Services regulations prohibiting "mak[ing] selections with the purpose or effect of defeating the objectives of the Act or this regulation"). The first regulations promulgated under Title VI-drafted in 1965 by the same executive branch officials who contributed to the drafting of the statute-included regulations extending the statute to practices having a racially discriminatory effect. Cf. Comment, Title VI of the Civil Rights Act of 1964-Implementation and Impact, 36 Geo. Wash. L. Rev. 824, 845-46 (1968) (explaining how Justice Department officials compiled agency plans for implementing Title VI).
249. See Olatunde C.A. Johnson, Disparity Rules, 107 Colum. L. Rev. 374, 396-401 (2007) (discussing difficulty in enforcement of Title VI's prohibition on disparate impact). The Supreme Court essentially curtailed judicial enforcement of Title VI's disparateimpact standard. See Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (holding Title VI's disparate impact regulations are not privately enforceable).
250. A telling example is an early disparate impact case in which the Second Circuit declined to interpret Title VI to require the City of New York to consider less discriminatory alternatives to closing a hospital that served a predominantly minority population. See Bryan v. Koch, 627 F.2d 612, 618-619 (2d Cir. 1980) (holding Title VI, unlike Title VII, did not require courts to consider less discriminatory alternatives as Title VI's breadth would mean such an inquiry would be too "open-ended" and thus beyond capacity of courts).
251. 532 U.S. at 293. For a critique of the Court's decision in Sandoval
252. see Pamela H.S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183, 198-99 (arguing that Court improperly framed issue as whether Title VI created individual rights,rather than allowing private parties to enforce federal regulations, and failed to consider that at time of Title VI passage Congress would have assumed private lawsuits would be central pillar of enforcement, even in absence of express right of action).
253. Following the Supreme Court's 2002 decision in Gonzaga University v. Doe, 536 U.S. 273, 285 (2002) (holding § 1983 analysis of whether Congress intended to create enforceable right is no different than in implied right of action cases), lower courts have declined to find the effects regulations enforceable under § 1983. See, e.g., S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 774 (3d Cir. 2001) (holding § 1983 could not be used to enforce disparate impact regulations).
254. Early enforcement of Title VI to mandate school desegregation often mirrored relatively weak judicial standards.
255. See Halpern, supra note 175, at 72-75 (noting agency tasked with enforcing Title VI had "standards [that] were little more than the requirements of the Constitution as federal judges had interpreted those requirements"). Indeed, when the Department of Education adopted requirements to promote school integration that went beyond remedying intentional, explicit exclusion, critics faulted the agency for arbitrarily interpreting the statute and for going beyond what federal courts required. See id. at 54-57 ("Critics maintained that in mandating the percentages of students who had to be in desegregated schools, HEW had exceeded its authority under Title VI.").
256. Johnson, supra note 182, at 401, 414 & n.176. There have been some instances of attempted formal rulemaking under Title VI to enforce an affirmative norm. For instance, the Environmental Protection Agency in 2000 issued draft guidance advising funding recipients to affirmatively consider racial impacts in the operation of their funding programs, but this draft guidance was never formally adopted. See Draft RecipientGuidance, 65 Fed. Reg. 39,650, 39,657 (June 27, 2000) (providing guidance regarding environmental permitting programs).
257. See Complaint Under Title VI of the Civil Rights Act of 1964 & Executive Order 12,898 at 17-23, Urban Habitat Program v. Bay Area Rapid Transit Dist. (Dep't of Transp. Sept. 1, 2009), available at http://issuu.com/transform/docs/fta_title_vi_complaint_09-1-09_final (on file with the Columbia Law Review) (al leging failure to "comply with Title VI and Environmental Justice requirements");
258. see also Press Release, Pub. Advocates, On Eve of Stimulus Anniversary,
259. Fair Housing Act of 1968, tit. VIII, 42 U.S.C. § 3608(d) (2006).
260. See 42 U.S.C. § 3608(d), (e)(5) (establishing requirements to affirmatively further fair housing goals). 191. 42 U.S.C. § 3608(d).
261. Because it prohibited racial discrimination in federally funded programs, Title VI covered public housing and other government-subsidized programs. Even prior to Title VI, President Kennedy's 1963 executive order required federal agencies to take "appropriate action" to abandon discriminatory practices in federal housing programs. Exec. Order No. 11,063, 3 C.F.R. 261 (Supp. 1962), reprinted as amended in 42 U.S.C. app. § 1982. Civil rights groups argued that both were insufficient: The executive order was not well enforced by federal agencies, see, e.g., Civil Rights: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary on S. 3296, Part 2, 89th Cong. 1430-31 (1966) [hereinafter 1966 S. Hearings] (statement of Jack E. Wood, Associate Executive Director, National Committee Against Discrimination in Housing) ("This massive misuse of federal funds [for projects that reinforce segregated housing patterns] flows from a lack of firm and determined action by the Secretary of HUD to affirmatively implement Executive Order 11063."), and Title VI failed to require agencies to undertake affirmative remedial measures. See Citizens Comm'n on Civil Rights, A Decent Home: A Report on the Continuing Failure of the Federal Government to Provide Equal Housing Opportunity 16-25 (1983) (detailing structural weaknesses and lack of enforcement of Kennedy's executive order); Florence Wagman Roisman, Keeping the Promise: Ending Racial Discrimination and Segregation in Federally Financed Housing, 48 How. L.J. 913, 913-14 (2005) (arguing Title VI was "not an effective interdiction of racial discrimination and segregation").
262. See, e.g., Fair Housing Act of 1967: Hearing on S. 1358, S. 2114, and S. 2280 Before the Subcomm. on Hous. & Urban Affairs of the S. Comm. on Banking & Currency, 90th Cong. 6 (1967) (statement of Ramsey Clark, Att'y Gen. of the United States) ("[T]he Federal Government fostered discrimination in housing ");
263. see also Orfield, Racial Integration, supra note 145, at 1767-68 (noting in debates surrounding the FHA several lawmakers alleged direct government role in segregation and proposed strengthening provisions of Title VI);
264. Florence Wagman Roisman, Affirmatively Furthering Fair Housing in Regional Housing Markets: The Baltimore Public Housing Desegregation Litigation, 42 Wake Forest L. Rev. 333, 389 (2007) [hereinafter Roisman, Regional Housing Markets] ("HUD's role in creating the problem was fully recognized by Congress; the 'affirmatively further' language was included specifically to address that.").
265. Similar language appeared in the Civil Rights Bill first introduced by President Lyndon B. Johnson in 1966, and was retained when-after a long struggle-the Fair Housing Act was eventually enacted in 1968. See Roisman, Regional Housing Markets, supra note 193, at 389 (discussing intended purpose of "affirmatively further" language).
266. See supra text accompanying notes 58-75 (discussing both local and federal governments' use of deference to "avoid complying with antisegregation norms").
267. 5 U.S.C. §§ 551-559, 701-706 (2006). 197. See Hills v. Gautreaux, 425 U.S. 284, 299 (1976) (holding regional remedy was appropriate because "the wrong committed by HUD confined the respondents to segregated public housing. The relevant geographic area for purposes of the respondents' housing options is the Chicago housing market, not the Chicago city limits"); id. at 301-02 ("An order directing HUD to use its discretion under the various federal housing programs to foster projects located in white areas would be consistent with and supportive of well-established federal housing policy.");
268. Gautreaux V. Chi. Hous. Auth., 503 F.2d 930, 938 (7th Cir. 1974) (discussing duty to promote integration);
269. Shannon V. U.S. Dep't of Hous. & Urban Dev., 436 F.2d 809, 816, 819-820 (3d Cir. 1970) (finding HUD liable for constructing low-income subsidized housing in area with already high concentrations of poor minorities, which violated HUD's duty to affirmatively further fair housing in "non-ghetto areas" with lower race and poverty concentrations). Shannon involved the construction of Section 221 public housing, also known as project-based Section 8. The court read the affirmative duty to further in conjunction with Title VI. See Shannon, 436 F.2d at 817;
270. see also NAACP v. Sec'y of Hous. & Urban Dev., 817 F.2d 149, 155 (1st Cir. 1987) (authorizing review pursuant to APA and holding the statute requires "that HUD do more than simply not discriminate itself [but] use its grant programs to assist in ending discrimination and segregation to the point where the supply of genuinely open housing increases").
271. See Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002) ("[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied rightof action.").
272. See, e.g., Asylum Hill Problem Solving Revitalization Ass'n v. King, 36 Conn. L. Rptr. 422 (Super. Ct. 2004), aff'd 890 A.2d 522 (Conn. 2006). For a discussion of the problems of enforcing the FHA's affirmatively furthering provisions pursuant to § 1983, see generally Michelle Ghaznavi Collins, Note, Opening Doors to Fair Housing: Enforcing the Affirmatively Further Provision of the Fair Housing Act Through 42 U.S.C. § 1983, 110 Colum. L. Rev. 2135 (2010). The judicial enforcement strategy recently bore some fruit with the August 2009 settlement of a case against Westchester County for failing to comply with the duty to affirmatively further. The settlement stemmed from an August 2006complaint which, unlike the Connecticut case, did not claim a direct right to enforce the statute. Instead, the plaintiffs-the Anti-iscrimination Center of Metro New York (ADC)-brought a qui tam action on behalf of the federal government claiming that Westchester County had, over a six-year period, received over $50 million dollars in HUD funds under the Community Development and Block Grant program, in violation of the False Claims Act, by falsely certifying each year that it was affirmatively furthering fair housing. United States ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cnty., 668 F. Supp. 2d 548, 550-51 (S.D.N.Y. 2009). After a district court granted partial summary judgment in favor of the plaintiffs, HUD decided to intervene to secure a settlement in the case. Memorandum of Law of the United States of America in Support of Its Application to Intervene at 7, Anti-Discrimination Center, 668 F. Supp. 2d 548 (No. 06 Civ. 2860). In the end, the brokered settlement required Westchester County to create more than $50 million in affordable housing in predominantly white areas of the county. Sam Roberts, Housing Accord in Westchester: Seeks to Desegregate Mostly White Towns, N.Y. Times, Aug. 11, 2009, at A1. 200. See In re Adoption of the 2003 Low Income Hous. Tax Credit Qualified Allocation Plan, 848 A.2d 1, 13-26 (N.J. Super. Ct. App. Div. 2004) (reviewing andapplying various tests for "establishing a discriminatory impact in a Title VIII case" and holding that agency's "'affirmatively to further' duty must be defined congruent with its statutory powers"); Orfield, Racial Integration, supra note 145, at 1784-90 ("Although agencies administering [housing] program[s] are bound by the duty [to further integrate], substantial disagreement remains as to the scope of that duty and its importance in relation to other statutory commands." (footnote omitted));
273. Kenneth H. Zimmerman, The Low Income Housing Tax Credit Pr ogram and Civil Rights Law:Updating the Fight for Residential Integration, in Nat'l Low Income Hous. Coal., The NIMBY Report, Fifty Years Later: Brown v. Board of Education and Housing Opportunity 24, 24-31 (2004), available at www.nlihc.org/doc/2004-1.pdf (on file with the Columbia Law Review) (discussing In re Adoption of the 2003 Low Income Hous. Tax Credit and noting "the most troubling aspects of the decision concern its failure to provide any substance, content, or standards to the 'affirmatively to further' mandate").
274. See ARRA, Pub. L. No. 111-5, div. A, tit. XII, 123 Stat. 115, 221-22 (2009).
275. Dep't of Hous. & Urban Dev., Notice of Allocations, Application Procedures, and Requirements for Homelessness Prevention and Rapid Re-Housing Program Grantees Under the American Recovery and Reinvestment Act of 20 09, Docket No. FR-5307-N-01, at 41-42 (2009), available at http://portal.hud.gov/portal/page/portal/RECOVERY/nofa_portlet/hrp-notic e.pdf (on file with the Columbia Law Review).
276. See id. at 42.
277. See supra notes 198-200 and accompanying text. 205. President Obama has repeatedly sounded the open government theme as an executive branch goal, stating that the ARRA will be implemented "with an unprecedented level of transparency and accountability." See ARRA Signing Statement, supra note 86. 206. Executive Office of the President, Transparency and Open Government: Memorandum for the Heads of Executive Departments and Agencies, 74 Fed. Reg. 4685 (Jan. 26, 2009).
278. Id. 208. Office of Mgmt. and Budget, M-10-06, Memorandum for the Heads of Executive Departments and Agencies: Open Government Directive 1 (Dec. 8, 2009), available at http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_2010/ m10-06.pdf (on file with the Columbia Law Review).
279. Id. at 3-4.
280. See Recovery Accountability & Transparency Bd., Mission Statement, at http://www.recovery.gov/About/board/Pages/TheBoard.aspx (on file with the Columbia Law Review) (last visited Oct. 23, 2010) ("The Recovery Accountability and Transparency Board was created by the American Recovery and Reinvestment Act of 2009 ").
281. The Board is chaired by Earl E. Devaney, who was appointed by President Obama, and includes twelve federal Inspectors General from various government agencies. Recovery Accountability & Transparency Bd., Board Members, at http://www.recovery.gov/About/board/Pages/BoardMembers.aspx (on file with the Columbia Law Review) (last visited Oct. 23, 2010).
282. In addition, President Obama appointed Vice President Joe Biden to oversee implementation of the stimulus plan. Press Release, White House Office of the Press Sec'y, Vice President Biden to Oversee the Administration's Implementation of the Recovery Act's Provisions (Feb. 23, 2009), available at http://www.whitehouse.gov/the_press_office/Vice-President-Biden-to-Overs ee-the-Administrations-implementation-of-the-Recovery (on file with the Columbia Law Review).
283. Recovery Accountability & Transparency Bd., Power and Functions, at http://www.recovery.gov/About/board/Pages/Powers_Functions.aspx (on file with the Columbia Law Review) (last visited Oct. 23, 2010).
284. ARRA, Pub. L. No. 111-5, § 1526, 123 Stat. 115, 293 (2009).
285. See Recovery.gov, at http://www.recovery.gov (on file with the Columbia Law Review) (last visited Oct. 23, 2010).
286. See, e.g., OMB Watch, Recovery Act Transparency: Implementation and Current Issues 18 (2009), available at http://www.accountablerecovery.net/sites/default/webfiles/Transparency%2 0in%20the%20Recovery%20Act.pdf (on file with the Columbia Law Review) (expressing "guard[ed] optimis[m]" about new transparency and accountability measures but suggesting specific improvements in what data is collected and in public dissemination of that data).
287. See, e.g., David Robinson et al., Government Data and the Invisible Hand, 11 Yale J.L. & Tech. 160, 161 (2009) (advocating government's role as information provider to ensure "private parties [can] compete on equal terms").
288. Federal Funding Accountability and Transparency Act (FFATA) of 2006, Pub. L. No. 109-282, § 2(b), 120 Stat. 1186, 1187. The FFATA builds on prior efforts to ncrease accountability and public availability of information on federal spending. See, e.g, EGovernment Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2919-20 (codified as note to 44 U.S.C. § 3501 (2006)) (requiring OMB to develop and maintain repository and website that provides information about research and development funded by federal government); Federal Financial Assistance Manage ment Improvement Act of 1999, Pub. L.No. 106-107, 113 Stat. 1486 (codified as amended as note to 31 U.S.C. § 6101 (2006)) (requiring each federal agency to create and implement plan for reporting agency's disbursement of federal funds).
289. See Pamela M. Prah, Downturn Creates State Spending Czars, Stateline.org (Apr.9, 2009), at http://www.stateline.org/live/details/story?contentId=391122 (on file with the Columbia Law Review) (describing creation of state stimulus czars).
290. Id. (noting that states with budget or chief operating officers include Idaho, Illinois, Maine, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, Tennessee, and Washington).
291. See Philip Mattera et al., Good Jobs First, Show Us the Stimulus (Again): An Evaluation of State Government and Recovery Act Websites 1 (2010), at http://www.goodjobsfirst.org/pdf/ARRAwebreportjan2010.pdf (on file with the Columbia Law Review) ("Every state government has a website reporting on its role in implementing the American Recovery and Reinvestment Act.").
292. E.g., Coalition for an Accountable Recovery, at http://www.coalitionfor anaccountablerecovery.org/ (on file with the Columbia Law Review) (last visited Oct. 23, 2010); ProPublica, Eye on the Stimulus, at http://www.propublica.org/ion/stimulus (on file with the Columbia Law Review) (last visited Oct. 23, 2010);
293. States for a Transparent and Accountable Recovery, at http://www.accountablerecovery.org/ (on file with the
294. Columbia Law Review) (last visited Oct. 23, 2010);
295. see also Mattera et al., supra note 219 (evaluating state government websites).
296. See Office of Mgmt. & Budget, Webinar, Prime Recipient Reporting (July 22, 2009), at http://www.whitehouse.gov/assets/documents/Webinar_5_ARRA_Recipient_Repo rting_-_Prime_Recipient_1.pdf (on file with the Columbia Law Review) (describing reporting requirements tied to receipt of ARRA funding).
297. See Housing and Economic Recovery Act of 2008, Pub. L. 110-289, sec. 1125, § 1324, 122 Stat. 2654, 2693-2695.
298. See, e.g., Exec. Order No. 11,246, 3 C.F.R. 167 (Supp. 1965) (prohibiting discrimination and requiring affirmative action for most contractors and subcontractors with federal contracts involving more than "specified amounts of money or specified numbers of workers").
299. See generally John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America 19-35 (1996) (cataloguing conventional arguments against affirmative action).
300. See supra note 157 and accompanying text (noting failure of some states to meet minority hiring goals set in conjunction with stimulus funding).
301. E.g., Complaint for Declaratory and Injunctive Relief, Associated Gen. Contractors of Am., San Diego Chapter v. Cal. Dep't of Transp., No. 2:09-CV-01622-JAMGGH (E.D. Cal. June 11, 2009).
302. See supra note 200 and accompanying text (noting disagreements among courts regarding extent to which FHA requires grantees to further integrate housing programs).
303. See, e.g., Opportunity Agenda, The Opportunity Impact Statement: Expanding the American Dream 2-5 [hereinafter Opportunity Agenda, Impact Statement], at http://opportunityagenda.org/files/field_file/The%20Opportunity%20Impact %20Statement.pdf (on file with the Columbia Law Review) (last visited Oct. 23, 2010) (detailing components of opportunity impact statement).
304. See id. at 8-11 (proposing process for agency incorporation of opportunity impact assessments and statements).
305. See Opportunity Agenda, Ensuring Equal Opportunity in Our Nation's Economic Recovery Efforts 3-5 (2009) [hereinafter Opportunity Agenda, Ensuring], at http://opportunityagenda.org/files/field_file/Fact%20Sheet%20-%20Ensurin g%20Equal%20Opportunity%20in%20Our%20Nations%20Economic%20Recovery%20Eff orts.pdf (on file with the Columbia Law Review) (detailing how advocates can monitor stimulus effort).
306. See, e.g., Kirwan Inst. for the Study of Race & Ethnicity at Ohio State Univ., Ten Recommendations, at http://fairrecovery.org/docs/tenrecommendations.pdf [hereinafter Kirwan Institute, Ten Recommendations] (on file with the Columbia Law Review) (last visited Oct. 23, 2010) (outlining ten principles for "fair" recovery); Opportunity Agenda, Impact Statement, supra note 228, at 11-12 (proposing assessment of minority inclusion in contracting and employment opportunities).
307. See, e.g., Kirwan Institute, Ten Recommendations, supra note 231. 233. See supra notes 182-203 and ccompanying text (describing enforcement history of Title VI and Title VIII).
308. See, e.g., Opportunity Agenda, Ensuring, supra note 230, at 1 ("This fact sheet describes the ways in which existing laws require equal opportunity in jobs, housing, health care, transportation, and other sectors, and offers specific ideas for holding public and private officials accountable.").
309. See Glantz, supra note 157 ("Minority contractors say they're seeing only a small fraction of the stimulus dollars.").
310. See Powell, supra note 137, at 798-800 ("Once a race-blind position is adopted, it becomes difficult to justify race-sensitive or race-specific policies or laws.If race is irrelevant, what is the justification legally or otherwise for using it?").
311. See Poole, supra note 57, at 97-139 (discussing challenges New Deal-era civil rights groups faced in promoting equity during development of Social Security Act).
312. See supra text accompanying notes 40-47. 239. See, e.g., Kirwan Inst. for the Study of Race & Ethnicity at Ohio State Univ., Beyond the Quick Fix: ARRA Contracting, Jobs, and Building a Fair Recovery for Florida 1, 24-25 (2010), available at http://fairrecovery.org/docs/beyondthequickfix.pdf (on file with the Columbia Law Review) (measuring impact of ARRA and recommending policychanges in order to "maximiz[e] job creation from ARRA funding and help[] hard hit communities of color to get their fair share of jobs");
313. Kirwan Inst. for the Study of Race & Ethnicity at Ohio State Univ., How Fair Is Florida? Recession, Recovery, Equity and Opportunity in Florida 3-4, 16-22 (2009), available at http://fairrecovery.org/docs/fl2.pdf (on file with the Columbia Law Review) (analyzing data on ARRA contracts and proposed projects, finding ARRA's resource allocation follows current race and gender opportunity disparity, and arguing for holistic plan for "ensur[ing] that [ARRA] funds are disbursed in a fair and equitable manner");
314. Office of Research, Advocacy, and Legislation, Nat'l Council of La Raza, The American Recovery and Reinvestment Act of 2009: Key Components of Interest to Latino Communities 3-6 (2009), available at http://www. nclr.org/index.php/publications/memo_to_nclr_affiliates_the_american_rec overy_and_reinvestment_act_of_2009_key_components_of_interest_to_latino_ communities/ (on file with the Columbia Law Review) (outlining key ARRA program investments of interest to Latino community and requesting information regarding secured ARRA funding for tracking purposes).
315. See Poole, supra note 57, at 97-139 (discussing work of civil rights groups who sought to challenge New Deal exclusions).