By Heather MacDonald
The Wall Street Journal, January 8, 1999
The federal antidiscrimination juggernaut stumbled recently, tripped up by an impediment called the First Amendment. In 1994, the Department of Housing and Urban Development investigated three Berkeley, Calif., residents who had protested planned homeless housing in their neighborhood. HUD demanded that the three — Joseph Deringer and his wife, Alexandra White , and their neighbor Richard Graham — turn over all their correspondence, files and minutes of their meetings. Now a federal judge has resoundingly declared the obvious: HUD’s pursuit of the residents was a patent constitutional violation — so patent, in fact, that the responsible officials will be held personally liable.
The Berkeley Three, as they came to be known, had engaged in textbook First Amendment activities. They had organized their neighbors and argued to their government that the planned homeless facility was poorly conceived and even more foolishly located — across the street from several liquor stores. Their protest was peaceful and wholly within legal channels. HUD’s response was an equally classic abridgment of speech. It initially threatened the group with $100,000 fines if they failed to turn over their written materials. The agency’s regional office then offered to drop its investigation — but only if the three promised never to speak or write about the homeless project again.
In the face of bad publicity, HUD’s headquarters ended the investigation. But the Berkeley Three, represented by the Center for Individual Rights, took the agency to court. Last month Judge Marilyn Hall Patel ruled that any “reasonable person” would have recognized that the investigation was illegal. The actions of the three citizens, Judge Patel wrote, fell clearly within the longstanding definition of “purely expressive activity,” with which government may not interfere.
The HUD officials who pursued the residents saw themselves as serving a higher purpose than mere fidelity to the Constitution, however. They represented the newest vanguard in government: the antidiscrimination attack force, an immense and ever-growing bureaucracy dedicated to eradicating bias in the benighted populace. To the antidiscrimination bureaucracy, statutory or regulatory mandates to punish bias are at least as important as the Constitution. Thus HUD officials explained in 1994 that while yes, of course, the First Amendment was important, equally important was the Fair Housing Act, which prohibits housing bias against an ever-expanding pool of protected classes. This ostensible parity between the statute and the Constitution quickly became a hierarchy, with the bias law easily trumping the First Amendment.
As the government’s vast antidiscrimination force expands, so does the definition of discrimination. The Berkeley Three’s alleged offense against the “disabled” — now defined to include addicts and alcoholics, as well as AIDS patients — consisted in part in publicizing the high prevalence of mental illness and addiction among the homeless. That is, they made an argument based on facts. A lawyer with the National Center for Youth Law explained at the time that if such an argument results in the “denial of housing to a protected class of people,” it ceases to be protected speech and becomes proscribed conduct. Under this logic, political speech enjoys the protection of the Constitution only so long as it fails to persuade anyone.
Bias hounds in government, the media and education see the American people as profoundly bigoted. Policing their prejudice, in this view, demands constant vigilance and strong enforcement mechanisms — and, at times, the cutting of constitutional corners. Campus thought police have long employed similar tactics, charging students who publicize their school’s preferential admissions policies with civil rights violations.
Likewise, housing and poverty advocates routinely intimidate opponents with the charge that opposition to neighborhood social service facilities violates fair-housing laws. And while HUD appears to have lightened up on its investigations of “purely expressive activity,” it continues to sic its investigators on homeowners who organize in other ways, such as by outbidding a group-home operator for a local property. It has also threatened sanctions against local governments that seek to confine homeless shelters to commercial or industrial areas.
The Clinton administration proudly points to large increases in rights-enforcement budgets across the federal bureaucracy, including HUD’s, as proof of its commitment to the antibias crusade. The administration’s zeal to correct the sins of a small-minded populace should worry anyone who cares about constitutional liberties. For now at least, Judge Patel’s ruling may give pause to officials ready to disregard the Constitution in the fight against “discrimination.” Nothing so refreshes a bureaucrat’s respect for the law as the knowledge that violating it may bring personal financial ruin.