Hello friend, I have 15 sources and I need an annotation. Ma paper topic is An Analysis of The LIHTC with the Focus of Indiana Housing & Community Development (IHCDA): How Does LIHTC Is Implemented to Provide Affordable Rental Housing for Low-Income Households? The paper is an administrative law. It’s based on how the law is implemented and how the administrative law is empowers and limits the administrative agencies. I will attached the all 15 sources here and I will make another order for the outline.
callison__2010_.pdf
desai__2008__.pdf
green__2002_.pdf
incontext.__2001_._.pdf
joint_center__2009_.pdf
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ACHIEVING OUR COUNTRY: GEOGRAPHIC
DESEGREGATION AND THE LOW-INCOME HOUSING TAX
CREDIT
J. WILLIAM CALLISON*
I. INTRODUCTION
In A Theory of Justice, John Rawls challenged the view that
“utilitarianism,” which he described as a structure that “would require a lesser life prospect[] for some simply for the sake of greater
advantage for others,” was the correct way to construct a just social
order.1 Instead, Rawls established a construct based on a “veil of ig*
Partner, Faegre & Benson LLP, Denver Colorado; A.B., Oberlin College,
1977; J.D., University of Colorado School of Law, 1982; LL.M., Yale University,
2000. I dedicate this article to Owen M. Fiss. I thank Sheryll Cashin, Nestor Davidson, and Robert Ellickson for their wisdom and insights. I also thank Laurie
Jaeckel and Sera Chong for their research assistance; and my wife, Maureen A.
Sullivan, both for pushing me to get this article written and for her editorial assistance.
1
JOHN RAWLS, A THEORY OF JUSTICE 13 (rev. ed. 1999) (1971) [hereinafter
RAWLS, THEORY]. Rawls stated that his aim was to work out a theory of justice
that was an alternative to utilitarian thought. Id. at 20. John Stuart Mill defined
utilitarianism as:
The creed which accepts as the foundation of morals, Utility, or
the Greatest Happiness Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to produce
the reverse of happiness. By happiness is intended pleasure, and the
absence of pain; by unhappiness, pain, and the privation of pleasure.
JOHN STUART MILL, UTILITARIANISM, LIBERTY, AND REPRESENTATIVE
GOVERNMENT 6 (Ernest Rhys, ed., J.M. Dent & Sons 1936) (1910); see also
AMARTYA SEN & BERNARD WILLIAMS, UTILITARIANISM AND BEYOND 3–4 (1982)
(describing utilitarianism as a combination of (a) welfarism, through which a state
101
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norance.” 2 Imagine, he postulated, that people are born into a world
where they do not know beforehand their sex, skin color, intelligence, genetic structure, or their parents’ class.3 He concluded that
in such a setting, the social contract chosen would be based on “fairness,” so that if a person drew the short straw, that person would
know, as much as possible, that society had structures to redress the
imbalance.4 This means that society would establish an infrastructure of justice to ensure that each person, despite accident of birth,
had access to key goods that would allow for the chance to develop
talents, participate in the life of society, exercise liberties, and
of affairs is judged exclusively on the basis of utility information related to that
state; (b) sum-ranking, which merges individual utility pieces into one total lump,
losing in the process the identity and separateness of individuals; and (c) consequentialism, in which this information is carried to the judgment of all variables
such as actions, rules and institutions). Sen and Williams note that utilitarianism
neglects personal autonomy and lacks interest in personal integrity. Id. at 5. For a
summary of the development of utilitarian moral theory, see generally HENRY
SIDGWICK, THE METHOD OF ETHICS (7th ed. 1907).
2
RAWLS, THEORY, supra note 1, at 118–23.
3
Id. at 118–19.
4
Id. at 118–23; see also JOHN RAWLS, JUSTICE AS FAIRNESS: A
RESTATEMENT 42–43 (Erin Kelly ed., 2001) [hereinafter RAWLS, FAIRNESS] (stating the two basic principles of justice). The two basic principles of justice are:
[a] Each person has the same indefeasible claim to a fully adequate
scheme of basic liberties, which scheme is compatible with the same
scheme of liberties for all; and
[b] Social and economic inequalities are to satisfy two conditions: first,
they are to be allocated to offices and positions open to all under conditions of fair equality; and, second, they are to be to the greatest benefit
of the least-advantaged members of society (the difference principle).
Id. at 42–43.
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ACHIEVING OUR COUNTRY
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achieve basic living standards; in other words, to achieve full membership in society. In the Rawlsian view, those who are relatively
well-off must recognize that their greater resources should be allowable in a just society only in a manner consistent with ensuring that
the position of the “least-advantaged members of society” is the best
it can be.5 In such a society, the most-advantaged would accept their
position as fair if it were swapped with the position of the leastadvantaged.6 Education is a key component in determining a person’s life chances; therefore, access to a strong education is an integral part of the Rawlsian social contract.7
Even though it predated John Rawls’s seminal philosophical
work,8 Brown v. Board of Education can be viewed as a “justice as
fairness” case.9 In 1954, the United States Supreme Court declared
5
RAWLS, THEORY, supra note 1, at 86–87.
Id. at 88–90, 120–21.
7
Id. at 86–87 (“[T]he difference principle would allocate resources in education, say, so as to improve the long-term expectation of the least favored. . . . And
in making this decision, the value of education should not be assessed solely in
terms of economic efficiency and social welfare. Equally if not more important is
the role of education in enabling a person to enjoy the culture of his society and to
take part in its affairs, and in this way to provide for each individual a sense of his
own worth.”); see RAWLS, FAIRNESS, supra note 4, at 156–157.
8
See RAWLS, FAIRNESS, supra note 4. This work was published in 2001,
nearly fifty years after the Court decided Brown.
9
See generally, Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954). Chief
Justice Warren wrote that the question presented in Brown was: “Does segregation
of children in public schools solely on the basis of race, even though the physical
6
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that public education “is a principal instrument in awakening the
child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”10
The Court unanimously concluded that “separate educational facilities are inherently unequal.”11 Because the government played an
active role in providing education,12 the Court held that racially segregated public schools violated the Fourteenth Amendment’s Equal
Protection clause.13
Notwithstanding Brown’s conclusion, school integration did not
occur of its own volition, much less with “all deliberate speed.”14 By
facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” Id. at 493. The Court concluded
that it did, holding “that in the field of public education, the doctrine of ‘separate
but equal’ has no place. Separate educational facilities are inherently unequal.”
Id. at 495.; see also Robert L. Carter, The NAACP’s Legal Strategy Against Segregated Education, 86 MICH. L. REV. 1083, 1095 (1988) (book review) (stating that
although “the strategy was to attack segregation in education, . . . the real agenda
was the removal of the basic barrier to full and equal citizen rights for blacks in
this country, . . .”).
10
Brown I, 347 U.S. at 493 (1954); see also RAWLS, FAIRNESS, supra note 4,
at 156–57 (discussing several philosophical approaches states can take with regard
to children’s education).
11
Brown I, 347 U.S. at 495.
12
See id. (“[E]ducation is perhaps the most important function of state and
local governments.”).
13
Id.
14
Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 301 (1955); see CHARLES
J. OGLETREE, JR., ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST HALF
CENTURY OF BROWN V. BOARD OF EDUCATION 125–28 (2004). See generally Charles L. Ogletree, Jr. & Susan Eaton, From Little Rock to Seattle and Louisville: Is
“All Deliberate Speed” Stuck in Reverse?, 30 U. ARK. LITTLE ROCK L. REV. 279
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1964, ten years after Brown, only 2.3% of southern black students attended majority-white schools.15 Thereafter, the courts and the federal government enforced desegregation policies, and by 1970,
33.1% of southern black students attended majority-white schools.16
However, beginning in the 1970s, the United States Supreme Court
issued several decisions that contributed to increased racial segregation in schools.17 A study published in 2007 shows that United
States public schools were more segregated in 2005 than in 1970.18
Another study indicates that in 2005, 26% of midwestern black stu(2008) (discussing Arkansas’ struggles with desegregating public schools and related Supreme Court cases).
15
See GARY ORFIELD & CHUNGMEI LEE, THE CIVIL RIGHTS PROJECT,
HARVARD UNIV., BROWN AT 50: KING’S DREAM OR PLESSY’S NIGHTMARE? 19
(2004), available at
http://www.civilrightsproject.ucla.edu/research/reseg04/brown50.pdf.
16
Id.
17
See Missouri v. Jenkins, 515 U.S. 70 (1995) (finding district court exceeded its authority by examining student achievement levels to determine unitary
status and by ordering teacher salary increases in urban schools); Freeman v. Pitts,
503 U.S. 467 (1992) (stating desegregation orders can be terminated one component at a time); Bd. of Educ. v. Dowell, 498 U.S. 237 (1991) (instructing district
court to terminate a desegregation order that had been in place for thirteen years
after sixty-five years of segregation); Milliken v. Bradley, 418 U.S. 717, 744–45
(1974) (finding that segregation in a single school district did not warrant interdistrict remedies).
18
See GARY ORFIELD & CHUNGMEI LEE, THE CIVIL RIGHTS PROJECT, UCLA,
HISTORIC REVERSALS, ACCELERATING RESEGREGATION, AND THE NEED FOR NEW
INTEGRATION STRATEGIES 23 (2007) [hereinafter ORFIELD & LEE, ACCELERATING
RESEGREGATION], available at
http://www.civilrightsproject.ucla.edu/research/deseg/reversals_reseg_need.pdf
(indicating that in 2005, 27% of southern black students attended majority-white
schools, while in 1970, 33.1% of southern black students attended majority-white
schools).
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dents and 23% of northeastern black students attended schools that
were 99–100% minority, and that nationwide, 38% of black students
attended schools that were 90–100% minority.19 White students are
the most isolated racial group and, on average, attend schools that are
78% white.20
In 2007, the United States Supreme Court, in a fractured and
sharply divided opinion, held that certain voluntary efforts by local
school districts to achieve more racially integrated public schools
were unconstitutional.21 In the parts of his opinion that were supported by a majority of the Court, Chief Justice Roberts reasoned that
because the Seattle, Washington and Louisville, Kentucky school
districts’ plans involved racial classifications, they violated the Equal
Protection Clause unless they were “narrowly tailored” to achieve a
19
See GARY ORFIELD & CHUNGMEI LEE, THE CIVIL RIGHTS PROJECT,
HARVARD UNIV., RACIAL TRANSFORMATION AND THE CHANGING NATURE OF
SEGREGATION 10 (2006), available at
http://civilrightsproject.ucla.edu/research/deseg/Racial_Transformation.pdf (referring to the racial composition of schools for 2003–04).
20
See ORFIELD & LEE, ACCELERATING RESEGREGATION, supra note 15, at 8.
See generally JONATHAN KOZOL, THE SHAME OF THE NATION: THE RESTORATION
OF APARTHEID SCHOOLING IN AMERICA (2005) for a discussion of the effects of
segregation and re-segregation on the education system.
21
See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 747–48 (2007).
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“compelling government interest.”22 Roberts determined that only
two interests are recognized as compelling in the public school context: “remedying effects of past intentional discrimination” and obtaining “diversity in higher education.”23 The first purpose did not
provide traction in Parents Involved because the Seattle schools had
not shown they were segregated by law or under judicial decree, and
the Louisville schools had achieved “unitary status” and had thereby
remedied the original constitutional wrong of race-based school assignments.24 The second purpose did not provide a constitutionally
acceptable basis for the racial-integration plans either, because the
school districts treated race as a “decisive” factor, rather than as a
“part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.’”25
In those parts of his opinion that were joined by three other Justices, Roberts wrote that the districts’ plans were “not narrowly tai22
See id. at 702 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
227 (1995)).
23
See id. at 720, 722 (citing Freeman v. Pitts, 503 U.S. 467, 494 (1992) (past
intentional discrimination) and Grutter v. Bollinger, 539 U.S. 306, 328 (diversity in
higher education)). The Court did not state that these are the only two compelling
interests, and left open whether there might be additional compelling interests. See
id. at 720. The Court also distinguished Grutter based on its application to higher
education, ruling that “[t]he present cases are not governed by Grutter.” Id. at 725.
24
Id. at 715.
25
Id. at 723.
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lored to the goal of achieving educational . . . benefits asserted to
flow from racial diversity,” but they instead attempted to achieve racial balancing because they were tied to the districts’ specific racial
demographics and not any level of diversity needed to obtain educational benefits.26 He concluded that “[a]ccepting racial balancing as
a compelling state interest would justify the imposition of racial proportionality throughout American society”27 with “no logical stopping point.”28 After taking issue with the goal of integration, the plurality portion of Roberts’s opinion concluded with the vague
aphorism that “[t]he way to stop discrimination on the basis of race is
to stop discriminating on the basis of race.”29
26
Id. at 726.
Id. at 730.
28
Id. at 731 (quoting City of Richmond v. J.A. Cronson Co., 488 U.S. 469,
498 (1989)).
29
Id. at 748. As noted above, one can view the Court’s unanimous decision
in Brown I as based on the liberal theories of “justice as fairness” that animate
Rawlsian philosophy. See generally RAWLS, FAIRNESS supra, note 4 (discussing
the Rawlsian “justice as fairness” philosophy in depth). One can view Roberts’s
majority and plurality opinions in Parents Involved as rooted in a utilitarian tradition in which society must live with unfairness, inequality, and injustice, but only
as long as this is offset by sufficient general well being—either at present or in the
future. See RAWLS, FAIRNESS supra, note 4 and accompanying text. In this utilitarian view, unconstrained individual liberty is a fundamental value. Id. It allows
positive discrimination in favor of some on the basis of race while depriving others
of their unrestrained right to equal treatment in choosing their public schools. One
sees a glimpse of this utilitarian analysis in Justice Roberts’s statement that:
Accepting racial balancing as a compelling state interest would justify
the imposition of racial proportionality throughout American society,
contrary to our repeated recognition that “[a]t the heart of the Constitu27
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ACHIEVING OUR COUNTRY
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Justice Kennedy concurred in part, and dissented in part, with
the Roberts opinion.30 He criticized the opinion for minimizing the
compelling public interest of “diversity” in public education.31 Kennedy agreed that race contributes to diversity, but he ruled that the
Seattle and Louisville plans failed to pass constitutional muster because their proponents did not demonstrate how blunt, binary racial
distinctions furthered the espoused educational goal.32 In Kennedy’s
view, the goal of diversity is constitutionally acceptable, but the use
of straightforward, voluntary means to achieve that goal could be un-
tion’s guaranty of equal protection lies the simple command that the
Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Allowing racial
balancing as a compelling end in itself would “effectively assur[e] that
race will always be relevant in American life, and that the ‘ultimate
goal’ of ‘eliminating entirely from governmental decision making such
irrelevant factors as a human being’s race will never be achieved.’”
Id. at 705 (citations omitted). Similarly, Roberts cites City of Richmond v. J.A.
Croson Co., 488 U.S. 469 (1989) for the argument that “government action dividing us by race is inherently suspect because such classifications promote ‘notions
of racial inferiority and lead to politics of racial hostility.’” Parents Involved, 551
U.S. at 746 (quoting Croson, 488 U.S. at 493). One can argue that the Court’s
heightened focus on equality creates a diminished focus on justice; and that by invoking standards of color-blindness, the Court allows direct competition for resources even though certain people are less able to compete due to lower educational standards, community vulnerability and the like.
30
Parents Involved, 551 U.S. at 748–782.
31
Id. at 783 (“Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.”).
32
Id. at 777, 82.
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acceptable.33 Kennedy then identified general and indirect strategies
that were race-conscious without creating binary racial definitions,
and he urged school districts to “continu[e] the important work of
bringing together students of different racial, ethnic, and economic
backgrounds.”34 Among the strategies Kennedy identified for enhancing diversity were strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood
demographics; allowing resources for special programs; applying
targeted recruiting of students and faculty; and using race-based
tracking of enrollment, performance, and other statistics.35
In his opinion, Roberts noted that some proponents of the Seattle plan defended it “as necessary to address the consequences of racially identifiable housing patterns,” but Roberts thought that “[t]he
sweep of the mandate claimed by the district [was] contrary to [the
Court’s] rulings that remedying past societal discrimination does not
33
However, Kennedy did not entirely close the door on plans such as those in
Seattle and Louisville; rather, he indicated that he would permit use of racial classification in assigning students after less invidious means have been tried and
failed. Id. at 798 (“[M]easures other than differential treatment based on racial
typing of individuals first must be exhausted.”).
34
Id.
35
Id. at 789.
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ACHIEVING OUR COUNTRY
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justify race-conscious government action.”36 However, Roberts’s
conclusion that “societal discrimination” created segregated housing
is incorrect; instead, housing segregation was initiated and institutionalized with governmental support. Indeed, Parents Involved is
one in a line of cases that fallaciously adopt a theory of “suburban
innocence” and governmental noninvolvement in housing patterns,
and thereby, in school patterns.37
36
Id. at 731 (emphasis added).
See generally Freeman v. Pitts, 503 U.S. 467(1992); Bd. of Educ. v. Dowell, 498 U.S. 237(1991); Milliken v. Bradley, 418 U.S. 717 (1974). Generally, the
Milliken, Dowell, and Freeman decisions rest on findings about housing segregation and its relationship to school segregation. See also Gary Orfield, Housing and
the Justification of School Segregation, 143 U. PA. L. REV. 1397, 1398 (1995)
(“The primary constitu …
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