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January 24, 2008

Civil rights eroding, Falk Foundation president says

While numerous civil rights laws have been enacted, “structural exclusion” has contributed to disparities still being felt today, according to the Falk Foundation’s president.

Kerry O’Donnell outlined historic examples of discrimination and new affronts to civil rights in her Jan. 14 talk, “The Erosion of Civil Rights and Community Responses.”

The lecture, hosted by Pitt’s Center for Race and Social Problems, drew an audience of more than 100 to campus.

In keeping with the Falk Foundation’s mission to reform racially discriminatory practices, as well as the center’s focus, O’Donnell concentrated her talk on racial disparities and on only a few of many civil rights issues.

Admitting that her overview would be “a mile wide and an inch deep,” she acknowledged that laws prohibiting racial discrimination exist for public accommodations and facilities, education, housing, employment, borrowing and credit, police misconduct and voting rights. “There’s no way to cover the overwhelming amount of erosion that’s happening in every one of these areas of civil rights,” she said.

“Typically opponents of affirmative action like to argue that, with the civil rights laws that are in place, in fact everybody has equal opportunity now,” she said, challenging the audience to ponder the difference between “equal opportunity” and “equal access.”

She noted that while median household income for whites is $50,673, for black households it is $31,969. An even wider gap exists in median net worth: $88,651 for white households and $5,998 for blacks. “Home equity represents more than four-fifths of the typical family’s wealth,” she said, adding that white homeownership is 75 percent versus 48 percent for blacks.

Impediments to homeownership stretch back more than a century. The Homestead Act of 1862, which granted 1.5 million families title to a portion of 246 million acres of land, excluded African Americans. O’Donnell said up to a quarter of the nation’s population traces its legacy of property ownership directly to that act. And, when the Federal Housing Administration began backing home loans in 1934, integrated communities were viewed as a financial risk ineligible for home loans, she said. “In effect, the government created redlining.”

More recent examples have shown race is a factor in mortgage lending, she said, citing studies that show blacks and Latinos are more likely to be turned down for a loan than are equally qualified white applicants; sub-prime loans are five times more prevalent in black neighborhoods, and that African Americans are about one-third more likely to be charged higher interest rates than equally qualified whites.

She cited a variety of ways in which communities have responded to expand opportunities to build home equity:

• Limited equity cooperatives in which residents form a corporation to own the building in which they live.

• Shared equity ownership, pioneered in the United Kingdom and being piloted in a handful of cities in America. The plan enables low-income families to partner with other investors who share in a home’s gain in equity when the house is sold.

• Community land trusts, which separate the cost of land from the cost of the home on it and lower the cost of home ownership.

• Lower-cost manufactured housing.

• Lease-purchase plans in which sponsoring groups allow families to rent-to-own while they clean up their credit or save for a down payment.

• Self-help plans such as Habitat for Humanity, in which homebuyers contribute sweat equity.

• Employer-assisted housing that offers forgivable loans to employees in exchange for a promise to remain with the company.

• Inclusionary zoning ordinances that require new residential developments to include some affordable housing.

• Community benefits agreements (CBAs) negotiated between prospective developers and community representatives. CBAs typically have focused on living wage jobs, local hiring and affordable rental units, “but there are a lot of opportunities there for asset-building for homeownership.”

Several recent Supreme Court decisions have chipped away at civil rights. One 2001 decision held that victims of unlawful discrimination may not recover attorneys’ fees unless there is a court judgment, even if their cases provide the catalyst for a defendant’s change of conduct. O’Donnell said this limits the ability of plaintiffs to retain lawyers and discourages settlement of claims.

In another 2001 case, the court held that a worker can be required to give up the right to sue in court for discrimination as a condition of employment.

O’Donnell labeled most damaging a 2001 case, Alexander v. Sandoval, that ruled individuals have no right to sue unless they can show discriminatory intent. “It actually reverses nearly 40 years of civil rights law,” she said, adding that the decision has stalled numerous other discrimination cases.

“Policy makers cannot possibly know the effects of public policies that they pass. They can’t foresee who it’s going to affect, who it’s going to affect disproportionately and what disparities it will create. Policy makers are not God,” she said, adding that a mechanism is needed to correct the problem when unforeseen consequences occur.

She cited one bright spot, Grutter v. Bollinger in 2003, which upheld that race may be considered as a factor in admissions at colleges and universities.

“Many college and university officials talk about really scrambling to try to figure out how to admit more students of color. They all say across the board that no other model results in as much diversity as using race. Just purely using race. There’s no proxy. There’s no substitute in terms of diversifying the student body.”

Disparities in access to educational opportunities begin before college. The Falk Foundation is funding a grassroots campaign for Pennsylvania school funding reform, O’Donnell said. Ongoing segregation, unequal school resources and lack of access to advanced placement or gifted programming create barriers to equal opportunity in K-12 education.

In Pennsylvania, per-student expenditures vary by more than 2:1, with the richest districts spending $17,000 per student compared with $7,000 in the poorest districts, she said. In addition, the gap in graduation rates — 81 percent for whites compared with 35 percent for blacks — is third worst in the nation, she said.

Affirmative action has been banned in four states (California, Washington, Michigan and Florida) with five more (Colorado, Mississippi, Nebraska, Arizona and Oklahoma) set for ballot initiatives in November.

The language — “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting,” — “sounds great” when read quickly, O’Donnell said. But the wording that bans preferential treatment is what kills affirmative action, she added.

Since a 1996 ban in California on preferences, she said, Berkeley law school admissions for blacks have fallen 81 percent and for Hispanic students, 50 percent. Women also have been affected: Statewide, hiring of women faculty fell as did woman-owned business contracting awards and the number of women employed in construction trades, O’Donnell said.

In states with ballot mechanisms, community responses have included alternate ballot measures or seeking “truth in advertising” language.

“The language itself is so misleading,” she said.

O’Donnell said another major community response is through community benefits agreements (CBAs) in which developers provide benefits to the community in exchange for the community’s support, “particularly when the developers are receiving large public subsidies,” she said. Often, the community benefits are negotiated as a percentage of the total, typically 10-12 percent, she said.

O’Donnell visited the Los Angeles Alliance for a New Economy, which assisted groups in coming together to seek a CBA in conjunction with the renovation and rebuilding of the Los Angeles airport.

Among the benefits agreed to was noise insulation for nearby residences and schools, barriers to block jet fuel emissions, access to job opportunities and living wage jobs.

“When I saw that and I realized how much development was coming down the pike in our region over the next three to five years, I thought, ‘This is a really great model and I’d love to replicate it here in Pittsburgh.’”

A group of foundations, including the Falk Foundation, banded together and sought proposals for replicating the CBA efforts here.

That resulted in the formation of Pittsburgh United, which has focused on CBAs for Hill District residents near the planned new Penguins arena development and for North Side neighbors of the planned Majestic Star casino.

—Kimberly K. Barlow

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