Separate spheres

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2878-2905

  Franklin, Cary ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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EID: 84902774876     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (155)

1. Matt Apuzzo, Holder Urges States to Lift Bans on Felons' Voting, N.Y. TIMES, Feb. 11, 2014, http://www.nytimes.com/2014/02/12/us/politics/holder-urges-states-to-repeal -bans-on-voting-by-felons.html
2. Adam Goldman, Eric Holder Makes Case For Felons to Get Voting Rights Back, WASH. POST, Feb. 11, 2014, http://www.washingtonpost.com/world/national-security/eric-holder-makes-case-for-felons-to-get-voting-rights-back/2014/02/11/b0556492-932b-11e3-84e1-27626c5ef5fb_story.html.
3. Eric Holder, U.S. Att'y Gen., Remarks on Criminal Justice Reform at Georgetown University Law Center (Feb. 11, 2014), http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140211.html.
4. id. Nearly one in thirteen African-American adults in the United States is currently barred from voting as a result of felony disenfranchisement laws, and in three states- Florida, Kentucky, and Virginia-that number soars to one in five.
5. Id. Hunter v. Underwood, 471 U.S. 222, 227-229 (1986) (invalidating an Alabama law disenfranchising persons convicted of crimes involving moral turpitude because it was "part of a movement that swept the post-Reconstruction South to disenfranchise blacks" and continued to have this effect a century later)
6. Johnson v. Governor of the State of Fla., 353 F.3d 1287, 1293-96 (11th Cir. 2003) (invalidating Florida's felon disenfranchisement law on the ground that it was part of a moderate Republican and ex-Confederate campaign to disenfranchise blacks in the wake of the Civil War and continued to do so into the twentyfirst century)
7. 405 F.3d 1214 (11th Cir. 2005).
8. Holder, supra note 2.
9. Id. Holder argued that part of what makes felony disenfranchisement laws so intolerable is that they seem to contribute little, if at all, to public safety. Id. (citing evidence that former prisoners whose voting rights are restored are significantly less likely to return to the criminal justice system, including a recent study by a parole commission in Florida which found that the recidivism rate among individuals who were re-enfranchised after they had completed their sentences was a third of the overall three-year recidivism rate).
10. id. (suggesting that felony disenfranchisement laws, "with their disparate impact on minority communities, echo policies enacted during a deeply troubled period in America's past-a time of post-Civil War repression"); see also Apuzzo, supra note 1 (noting that the Attorney General "has made racial inequities a consistent theme, and in recent months ...has made it clear he sees criminal justice and civil rights as inescapably joined").
11. Holder, supra note 2.
12. Michelle Alexander, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 137-53 (2010) (discussing the severely disabling collateral consequences of a felony conviction across a wide range of social and legal contexts).
13. Gary Orfield & CHUNGMEI LEE, RACIAL TRANSFORMATION AND THE CHANGING NATURE OF SEGREGATION 4 (2006), http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/racial-transformation-and-the-changing-nature-of-segregation/orfield-racial-transformation-2006.pdf ("[S]egregation is not gone. In fact, in communities that were desegregated in the Southern and Border regions, segregation is increasing ...and appears to be clearly related to the Supreme Court decisions in the 1990s permitting return to segregated neighborhood schools. These changes, and the continuing strong relationship between segregation and many forms of educational inequality, compound the already existing disadvantage of historically excluded groups.").
14. Kevin Stainback & Donald Tomaskovic-Devey, DOCUMENTING DESEGREGATION: RACIAL AND GENDER SEGREGATION IN PRIVATE-SECTOR EMPLOYMENT SINCE THE CIVIL RIGHTS ACT 320 (2012) ("At this point in the history of private-sector equal opportunity, the dominant pattern is inertia. Little or no national aggregate progress is being made in terms of either desegregation or access to good jobs. Nationally, progress toward workplace equal opportunity has stalled. Moreover, it is disturbing to note that in many workplaces, communities, and industries segregation is increasing ....").
15. Lyndon B. Johnson, "To Fulfill These Rights": Commencement Address at Howard University (June 4, 1965), http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp.
16. ALEXANDER, supra note 10, at 137-53
17. INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 13-58 (Marc Mauer & Media Chesney-Lind eds., 2002)
18. Margaret Colgate Love, Jerry Roberts & Cecelia Klingele, COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS: LAW, POLICY & PRACTICE2:17-2:24 (2014).
19. For more on the development of the Court's current interpretation of the Equal Protection Clause as a bar against racial animus, but not against policies that have a disparate impact on racial minorities
20. Reva B. Siegel, The Supreme Court, 2012 Term-Foreword: Equality Divided, 127 HARV. L. REV. 11-28 (2013)
21. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111-1113 (1997)
22. Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. REV. 1779, 1861-73 (2012).
23. Holder, supra note 2 ("[D]uring the last half-century, we've brought about historic advances in the cause of civil rights. And we've secured critical protections like the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Yet-despite this remarkable, onceunimaginable progress-the vestiges, and the direct effects, of outdated practices remain all too real.").
24. Johnson, supra note 13 (describing this as the goal of the landmark civil rights statutes of the Second Reconstruction).
25. Bruce Ackerman, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION (2014) [hereinafter ACKERMAN, CIVIL RIGHTS].
26. Bruce Ackerman, WE THE PEOPLE: FOUNDATIONS (1991)
27. Bruce Ackerman, WE THE PEOPLE: TRANSFORMATIONS (1998)
28. ACKERMAN, CIVIL RIGHTS, supra note 19.
29. ACKERMAN, CIVIL RIGHTS, supra note 19, at 3 ("Americans have occasionally used the formula for formal amendment laid out by the Founders in Article V-under which Congress proposes, and state legislatures ratify, changes in our higher law. But the greatest political movements of the past have often displayed far more creativity in gaining popular consent to their new constitutional settlements.")
30. id. at 27-28 ("Whatever the future may hold, one thing is clear: don't expect big changes through formal amendments. We the People can't seem to crank out messages in the way described by Article V of our Constitution. Our writing machine has gone the way of the typewriter.").
31. Id. at 18-19 (urging the legal community to "recognize[] the New Deal and civil rights revolutions for what they are: the greatest higher lawmaking achievements of the American people during the twentieth century," and contending that "[o]nly a professional commitment to formalism blocks an encounter with this commonsense truth").
32. id. at 44-47 (summarizing the five defining stages of a "constitutional moment").
33. 347 U.S. 483 (1954).
34. ACKERMAN, CIVIL RIGHTS, supra note 19, at 81.
35. Id. at 311 ("There were giants on earth during the Founding and Reconstruction-men who spoke for the American people in an enduring fashion. But the twentieth century was an age of political pygmies who never gained comparable authority-no constitutional amendments defining the nature and limits of activist national government, none codifying the central achievements of the civil rights revolution. We the People have made no big decisions for almost a century. Or so the lawyers say. Americans deserve better. They should learn how their parents and grandparents contributed greatly to the tradition of popular sovereignty, creating twentieth-century foundations for the constitutional pursuit of economic and racial justice.").
36. Id. at 80.
37. Id. at 321.
38. Id. at 337.
39. Id at 18-19, 328-37 (discussing, inter alia, the Court's decision to invalidate a crucial part of the Voting Rights Act in Shelby County v. Holder, 133 S. Ct. 2612 (2013)).
40. Id. at 337.
41. Id. at 12.
42. Id. at 325 ("Since different spheres posed different regulatory problems, the landmark statutes displayed a distinctly pragmatic form of constitutionalism, deploying different operational principles to achieve the same objective: genuinely equal opportunity within each sphere.").
43. id. at 173 (observing that officials in the 1960s demonstrated "remarkable sophistication in adapting the regulatory powers of the administrative state to the distinctive real-world problems posed by racism in ...different spheres").
44. Id. at 326.
45. Id. at 186.
46. Id. at 326 (arguing that the law's "refus[al] to recognize interspherical impacts .... [m]eant that poor blacks benefitted less than their middle-class counterparts from the landmark statutes-when they entered each sphere as adults, they could not enjoy the latter's education, money, or respectability"). To illustrate the problematic class distributions of the gains associated with the landmark statutes of the Second Reconstruction, Ackerman asserts that it has proven easier for rich women to invoke the protections of Title VII than it has for poor blacks to do so. "For example, if an upper-class woman was humiliated by sexual harassment in the workplace, this was enough to invoke the guarantees of Title VII. She did not need to show that she also suffered systematic disadvantages in other spheres of life, let alone that they were comparable to those imposed on blacks in the Jim Crow South." Id.
47. Although Ackerman does not mean to "minimize the dignitarian advances that all stigmatized groups ...gained from the landmark statutes," he views this example as an illustration of the Civil Rights Act's failure to attend to the most serious and pervasive forms of disadvantage. Id.
48. Id. at 337-40.
49. Gerald Torres, "We Are on the Move": Second Annual Dr. Martin Luther King, Jr. Lecture (Jan. 20, 2009), in 14 LEWIS & CLARK L. REV. 355-363 (2010) (noting "that the median income of the parents of the students who attend the University of Texas is sixty percent higher than the national average").
50. Id. (observing that these counties "sent their taxes to UT, but they never sent their students").
51. Caroline M. Hoxby & Christopher Avery, The Missing "One-Offs": The Hidden Supply of High-Achieving, Low-Income Students, Brookings Papers on Economic Activity (Spring 2013), http://www.brookings.edu/~/media/Projects/BPEA/Spring%202013/2013a_hoxby.pdf (demonstrating "that a large number-probably the vast majority-of very high-achieving students from low-income families do not apply to a selective college" despite the fact that their chances of admission are good and they would pay less at these schools than the lower-ranked institutions to which they do apply, and hypothesizing that these students lack the knowledge, support, and connections that enable wealthier students to find their way to selective colleges).
52. Although Texas is not generally known for its progressive policies in the area of class, the state's battles over affirmative action have resulted in a 10% Plan, which allows any student who graduates from an accredited Texas high school in the top 10% (now 8%) of his or her class to attend the University of Texas at Austin. There is, of course, great debate in Texas about the wisdom of this plan, but whatever else may be said about it, it does forthrightly seek to address interspherical impacts by preventing discrimination and disadvantage in the contexts of housing, employment, and secondary schooling from interfering with one's ability to take advantage of a particularly desirable set of higher educational opportunities.
53. For more on the Texas 10% Plan, see Torres, supra note 40, at 363-70.
54. Cynthia Harrison, ON ACCOUNT OF SEX: THE POLITICS OF WOMEN'S ISSUES, 1945- 1968, at 192-96 (1988).
55. Statement of Purpose, Nat'l Org. for Women (Oct. 29, 1966), reprinted in FEMINIST CHRONICLES, 1953-1993, at 161-62 (Toni Carabillo et al. eds., 1993).
56. Id. at 162.
57. Ruth Rosen, THE WORLD SPLIT OPEN: HOW THE MODERN WOMEN'S MOVEMENT CHANGED AMERICA 92-93 (2000)
58. Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943, 1988-89 (2003)
59. Judy Klemesrud, A Herstory-Making Event, N.Y. TIMES, Aug. 23, 1970,6 (Magazine), at 6, 14.
60. Post & Siegel, supra note 47, at 1989 (internal quotation marks and citations omitted).
61. NOW's 1967 Task Force on the Family advocated the repeal of all laws restricting women's right to abortion for this reason, arguing that "[i]f women are to participate on an equitable basis with men in the world of work and of community service, child-care facilities must become as much a part of our community facilities as parks and libraries are."
62. Nat'l Org. for Women, Task Force on the Family (1967), reprinted in FEMINIST CHRONICLES, supra note 45, at 202.
63. NOW incorporated these demands into its 1968 Bill of Rights.
64. Nat'l Org. for Women, Bill of Rights in 1968, reprinted in FEMINIST CHRONICLES, supra note 45, at 214.
65. Post & Siegel, supra note 47, at 1990-2004 (discussing the constitutional significance of the movement's decision to stage the Strike on the anniversary of the Nineteenth Amendment).
66. For more on the legislative accomplishments of the Ninety-Second Congress in the area of women's rights
67. Jo Freeman, THE POLITICS OF WOMEN'S LIBERATION: A CASE STUDY OF AN EMERGING SOCIAL MOVEMENT AND ITS RELATION TO THE POLICY PROCESS 202-04 (1975)
68. Post & Siegel, supra note 47, at 1995-96.
69. Title IX was enacted to expand the protections of both Title VI, which afforded access to educational opportunities, and Title VII, which concerned employment, of the 1964 Civil Rights Act. See Education Amendments of 1972, Pub. L. No. 92-318,901, 86 Stat. 235, 373- 74 (instituting Title IX, which prohibited sex discrimination in all education programs or activities receiving federal funds).
70. The Comprehensive Child Development Act, H.R. 6748, 92d Cong. (1971), was added as a new title to the Economic Opportunity Amendments of 1971, H.R. 10351, 92d Cong. (1971), but never became law because the President vetoed the entire set of amendments.
71. Revenue Act of 1971, Pub. L. No. 92-178,210, 85 Stat. 497, 518-20 (instituting a childcare tax deduction of up to $400 per month for working parents with combined incomes of up to $18,000 per year, and affording a smaller deduction to those with combined incomes above $18,000).
72. Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. REV. 91-142 (2010) (identifying the origins and tracing the development of this argument in constitutional sex discrimination law from the 1960s to the present day).
73. Brief for Appellant at 32-35, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4).
74. Id. at 35-37.
75. Brief for Appellee at 25, Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (No. 73-1892).
76. Serena Mayeri, REASONING FROM RACE: FEMINISM, LAW, AND THE CIVIL RIGHTS REVOLUTION (2011)
77. Franklin, supra note 55, at 108-09.
78. Franklin, supra note 55, at 135-38.
79. 518 U.S. 515 (1996).
80. Quoting an amicus brief by twenty-six private women's colleges, the Court in Virginia noted that "it is the mission of some single-sex schools 'to dissipate, rather than perpetuate, traditional gender classifications.'"
81. Id. at 534 n.7 (quoting Brief for Twenty-six Private Women's Colleges as Amici Curiae in Support of Petitioner at 5, Virginia, 518 U.S. 515 (Nos. 94-1941, 94-2107)).
82. The Court suggested that sex classifications dedicated to this purpose- helping to combat forces pressing men and women into traditional roles-are consistent with equal protection. Sex classifications become constitutionally problematic, the Court noted, in cases where they "create or perpetuate the legal, social, and economic inferiority of women."
83. Id. at 534.
84. Id. at 553 (internal quotation marks omitted).
85. Id. at 552 (internal quotation marks omitted).
86. 538 U.S. 721 (2003).
87. 29 U.S.C.2612(a)(1)(C) (2006).
88. Hibbs, 538 U.S. at 738 (holding that "a statute ...that simply mandated gender equality in the administration of leave benefits[] would not have achieved Congress' remedial object")
89. id. at 736-37 ("Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees.... We believe that Congress' chosen remedy, the family-care leave provision of the FMLA, is congruent and proportional to the targeted violation." (internal quotation marks omitted)).
90. The problem is not that are no precedents to support interspherical reasoning in this context, but that judges and legislators today tend not to think in these ways about reproductive rights. For a current example of interspherical reasoning in the context of reproduction
91. Gonzales v. Carhart, 550 U.S. 124-171 (2007) (Ginsburg, J., dissenting) ("Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Their ability to realize their full potential ...is intimately connected to their ability to control their reproductive lives." (internal quotation marks omitted)).
92. 42 U.S.C.1973-1973bb-1 (1964 ed., Supp. I).
93. The Court first used this language in reference to voting in two cases associated with the First Reconstruction.
94. Yick Wo v. Hopkins, 118 U.S. 356-370 (1886)
95. Minor v. Happersett, 88 U.S. 162, 164 (1874). But this phrase did not resurface, at the Court or in popular discourse, until the Second Reconstruction-when it became a constant refrain in discussions about the right to vote. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Oregon v. Mitchell, 400 U.S. 112, 241 (1970); Williams v. Rhodes, 393 U.S. 23, 38 (1968); Katzenbach v. Morgan, 384 U.S. 641, 652 (1966); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966); Harman v. Forssenius, 380 U.S. 528, 537 (1965)
96. Reynolds v. Sims, 377 U.S. 533-562 (1964).
97. 384 U.S. 641.
98. Id. at 652. The Court explained that, by enacting this provision of the VRA, "Congress has ...prohibited the State from denying to [the Puerto Rican] community the right that is preservative of all rights."
99. Id. (internal quotation marks omitted).
100. Voting Rights: Hearings on S. 1564 Before the S. Comm. on the Judiciary, 89th Cong. 22 (1965) (statement of Nicholas Katzenbach, Att'y Gen. of the United States).
101. id. at 656 (statement of Sen. Hart) (asserting that excising the ban on literary tests from the VRA would "reward-I should not say 'reward'-will permit a State or States which, over a long period of time ...in a variety of fashions, made the attainment of comparable educational levels very difficult for Negroes as compared to whites").
102. Id. at 995 (statement of Walter P. Reuther, President, AFL-CIO).
103. At one point, Attorney General Nicholas Katzenbach felt compelled to respond to this line of argument by insisting "that there is quite a bit of evidence in many local[e]s that the separate schools for Negroes were not in fact equal schools. We have a great deal of data which would tend to establish that point."
104. Id. at 141 (statement of Nicholas Katzenbach, Att'y Gen. of the United States).
105. id. at 1017-1174.
106. 395 U.S. 285 (1969).
107. The Court detailed at some length the disparities between black and white schools in Gaston County, noting, inter alia, that teachers in black schools were paid less than teachers in white schools, that many more black children than white children attended one-room, wooden schoolhouses without desks, and that the proportion of the black population with no schooling was double that of the white population.
108. Id. at 293-95.
109. "From this record," the Court concluded, "we cannot escape the sad truth that throughout the years Gaston County systematically deprived its black citizens of the educational opportunities it granted to its white citizens."
110. Id. at 296-97.
111. The district court in Gaston County found that "the Negro schools were of inferior quality in fact as well as in law," and that imposing a literacy requirement in the face of actual educational disparities, regardless of how they came about, would discriminatorily deprive black citizens of equal opportunity in voting.
112. Id. at 288
113. Gaston Cnty. v. United States, 288 F. Supp. 678, 689-90 n.23 (D.D.C. 1968)
114. The Supreme Court in Gaston County did not reach the question of whether the VRA "would achievements for which a government bore no responsibility."
115. Id. at 293 n.8.
116. Note that there was no evidence in Gaston County that the literary test at issue was itself discriminatory or that it was currently being administered in a discriminatory manner. The case was focused entirely on disparities in the educational opportunities afforded blacks and whites in Gaston County and on the subsequent abilities of these two groups to meet the County's voting qualifications.
117. Oregon v. Mitchell, 400 U.S. 112-283 (1970) (Stewart, J., concurring in part and dissenting in part) (making this point about Gaston County).
118. Gaston County, 395 U.S. at 289.
119. Id. (quoting Voting Rights: Hearings on S. 1564 Before the S. Comm. on the Judiciary, 89th Cong. 22 (1965) (statement of Nicholas Katzenbach, Att'y Gen. of the United States) (internal quotation marks omitted)).
120. Id. at 297.
121. In his classic article, Gaston County v. United States: Fruition of the Freezing Principle, 1969 SUP. CT. REV. 379, Owen Fiss observed that the logic of the case was fundamentally interspherical: it made the voting inquiry sensitive to "discrimination in areas of human activity other than voting." Id. at 424. Fiss argued that this key move did not depend on any unusual facts about Gaston County, but could apply across the country, id. at 417-20, and that the principle applied equally "in other areas of human activity, such as employment, housing, and education."
122. Id. at 440.
123. ACKERMAN, CIVIL RIGHTS, supra note 19, at 165.
124. Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. 314-315 (1970).
125. Oregon v. Mitchell, 400 U.S. 112-133 (1970) (Black, J.) (observing that "[t]he hearings [on the 1970 amendments to the VRA] are filled with references to educational inequality").
126. Id. at 233 (Brennan, White & Marshall, JJ., concurring in part and dissenting in part) ("In substance, Arizona argues that it is and has been providing education of equal quality for all its citizens; that its literacy test is both fair and fairly administered; and that there is no evidence in the legislative record upon which Congress could have relied to reach a contrary conclusion.").
127. Id. at 133 (Black, J.).
128. Id. at 234 (Brennan, White & Marshall, JJ., concurring in part and dissenting in part).
129. Id. at 235.
130. Concern about interspherical impacts in voting rights law was not confined to the context of literacy tests. Proponents of the VRA made a similar argument with regard to the poll tax.
131. Rep. Moorhead, 111 CONG. REC. H16,274 (daily ed. July 9, 1965) (arguing that "[j]ust as literacy tests discriminate against the victims of a segregated educational system, so poll taxes discriminate against the victims of a segregated economic system").
132. White v. Regester, 412 U.S. 755 (1973), a foundational constitutional voting rights case in which the Court upheld a finding that a Texas law providing for the election of state representatives from Bexar County on an at-large voting basis invidiously discriminated on the basis of race. The Court noted that the Mexican-American community in the county "had long suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others."
133. Id. at 768 (internal citations omitted). The Court reasoned that, in part because of the effects of these (public and private) forms of discrimination outside the context of voting, the Mexican-American community was unable to exert political strength in proportion to its numbers, and was therefore "invidiously excluded" by an at-large voting system "from effective participation in political life."
134. Id. at 769.
135. The Senate Report accompanying the 1982 Amendments to the Voting Rights Act noted that one of the factors that could help to establish that a racial minority group had less opportunity to elect candidates of its choice was "the extent to which members of the minority group ...bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process."
136. S. REP. NO. 97-417, at 29 (1982).
137. In its decision interpreting the 1982 Amendments, the Court cited this factor and endorsed its interspherical logic.
138. Thornburg v. Gingles, 478 U.S. 30-69 (1986) ("Both this Court and other federal courts have recognized that political participation by minorities tends to be depressed where minority group members suffer effects of prior discrimination such as inferior education, poor employment opportunities, and low incomes." (citations omitted)).
139. Fair Housing Act of 1968, Pub. L. 90-284,801-819, 82 Stat. 73, 81-89.
140. 114 CONG. REC. S2,707 (daily ed. Feb. 15, 1968) (statement of Sen. Hart) ("This problem of where a family lives, where it is allowed to live, is inextricably bound up with better education, better jobs, economic motivation, and good living conditions.")
141. 114 CONG. REC. S3,133 (daily ed. Feb. 15, 1968) (statement of Sen. Mondale) ("The pattern of racial segregation in housing affects employment opportunities and the racial composition and quality of schools.")
142. 114 CONG. REC. S3,132 (daily ed. Feb. 15, 1968) (statement of Sen. Mondale) ("One of the means the Senate and this Congress can [use to] begin to remedy [hard-core unemployment and ...the deplorable state of ghetto area schools] is through the passage of a fair housing law.").
143. U.S. COMM'N ON CIVIL RIGHTS, RACIAL ISOLATION IN THE PUBLIC SCHOOLS 18-19 (1967) ("The goals of equal educational opportunity and equal housing opportunity are inseparable.... The Commission recommends, therefore, that the President and Congress give consideration to legislation which will ...[p]rohibit discrimination in the sale or rental of housing, and ...[e]xpand programs of Federal assistance designed to increase the supply of housing throughout metropolitan areas within the means of low- and moderate-income families.").
144. 114 CONG. REC. S3134 (daily ed. Feb. 15, 1968) (statement of Sen. Mondale).
145. 114 CONG. REC. H9589 (daily ed. April 10, 1968) (statement of Rep. Halpern) ("[W]e will never achieve desegregation of public schools-we will never bring it about that Negro pupils and white pupils go to school together-until we make it possible for Negroes to obtain housing outside the ghetto areas of our cities. We must enact Federal fair housing legislation so that Negro children will not be deprived of equal opportunity in education.").
146. 114 CONG. REC. S3134 (daily ed. Feb. 15, 1968) (statement of Sen. Mondale).
147. John F. Kain, Housing Segregation, Negro Employment, and Metropolitan Decentralization, 82 Q.J. ECON. 175 (1968)
148. John F. Kain, The Spatial Mismatch Hypothesis: Three Decades Later, 3 HOUSING POL'Y DEBATE 371-373 (1992) (noting that he first articulated the concept of spatial mismatch in 1964).
149. 114 CONG. REC. 3133 (statement of Sen. Mondale) (1968).
150. Pub. L. No. 88-352, 78 Stat. 241.
151. 401 U.S. 424 (1971).
152. Id. at 427-28.
153. Id. at 430.
154. Id. at 431.
155. Id. ("[Congress] has-to resort again to the fable-provided that the vessel in which the milk is proffered be one all seekers can use.").