The Woman in the Shoe and I Would Like One Large Veggie Pizza

It is clear that the governmentally-funded fair housing organizations have pulled back on fighting for enforcement of the Fair Housing Act (see Kelli Dudley, The Last Thing We Do, Let’s Scare All the Lawyers: How Fair Housing Violators Are Intimidating Fair Housing Advocates Instead of Defending Cases and Why It Is Illegal, 8 DePaul J. for Soc. Just. 71 (2014),
available at: http://via.library.depaul.edu/jsj/vol8/iss1/5, last accessed 6/30/2017). However, it is less clear what the meaning of the nursery rhyme “There was an old woman who lived in a shoe” is.

It seems implausible that the woman actually lived in a shoe, especially with so many children she didn’t know what to do. Some opine this nursery rhyme was a criticism of the way England dealt with its colonies. http://englishhistoryauthors.blogspot.com/2012/04/political-meaning-in-18th-century.html, last accessed 6/30/2017. Others say “stew” was a word for “slum.” Id., comments. A woman living in poverty, overwhelmed with children, whipping them, and putting them to bed is certainly a familiar story in any historical period. However, “stew” also might mean a state of consternation or even a brothel. https://en.oxforddictionaries.com/definition/stew, last accessed 6/30/2017. My fascination with shoes as housing (or not) began when a judge dismissed a fair housing case based on selling an inferior housing-related “service” in the black community in part because she worried that it would open the door to suing anyone who opened a shoe store here.

Regardless of whether the shoe is oversized footwear or some other form of housing, the woman is entitled to fair housing under today’s scheme. She is protected by the Fair Housing Act on, at least, the bases of gender and familial status. 42 U.S.C. 3605.

However, with the fair housing community asleep at the wheel, what is the woman to do in the face of unfair treatment? Courts, not having fair housing cases consistently moving through the docket, are less familiar with and skeptical about fair housing. The number of Federal cases filed since 2000 by the U. S. Department of Housing and Urban Development and its partner state and local governmental agencies topped out at 40 nationwide in 2010 and plummeted to 0 by 2016. https://catalog.data.gov/dataset/fheo-filed-cases, last accessed 6/30/2017. The number of Federal appeals and Supreme Court cases has climbed as high as 3 nationwide per year in the distant past, but has held steady at 0 since 2010. Id.

The fair housing community, for whatever reason, has given up. The woman who lives in the shoe may have to walk an extra mile (or two) to find a lawyer and a venue for her concerns.

While abandoning the Fair Housing Act is inexcusable, it appears to be a done deal. A good litigator may have to look further in an effort to stamp out discrimination.

One of my favorite memories was watching 1970s situation comedies—my nursery rhymes–with my grandfather. While some characters may have been painted in broad strokes, the shows offered a rare window into the world beyond our small, narrow community. Grandpa, munching his ever-present bowl of peanuts, would discuss each show with me. I learned that even rich, educated people faced tough choices (Maude) and that racism was not a thing of the past relegated to newsreels (All in the Family). I learned that black people could not be painted with one stroke and could be wealthy businesspeople (The Jeffersons) or struggling working people (Good Times). One of the most heart-wrenching episodes of the latter stuck with me: the family gets food poisoning because of substandard food sold near their subsidized-housing complex. It was unfathomable to me that race or economics should dictate access to food. We grew most of our food, and an early lesson I learned that it was a punishable offense to try to pack my bushels headed for sale with plant material (instead of just beans) to finish work more quickly.

Apparently, Mr. Borgan, the grocer in Good Times, did not have the parenting (and grandparenting) I did. He sold tainted food to people with limited choices. I would not grasp the full extent of Florida Evans’ struggle to feed her family until I moved, decades later, to a home not too far from hers (although her home was slated to be demolished by then). The grocery store near my home in Gary, Indiana regularly sold rotten produce and dusty, expired cans; it still does. The lack of food in my African-American neighborhood drives me to shop online, pick up groceries in Chicago, or drive to patronize different stores belonging to the chain that sold the rotten food—the offerings are increasingly better as stores get further from Gary (whiter).

The chain that sold the rotten food recently filed a well-deserved bankruptcy. While it would be wonderful to assume that the lesson learned about the unprofitability of racism will be heralded by the retail community, it will not. Year after year, Chicagoans let their fear of seeing a black child playing in the yard next door drive them to segregated neighborhoods. This irrationality and hatred cost them $8.8 billion per year in gross domestic product (Metropolitan Planning Council, The Costs of Segregation; Chicago, 2017; available at http://www.metroplanning.org/costofsegregation/default.aspx#cos-lost-income, last accessed 6/30/2017).

For those crushed under the economic boot heel of racism, litigation options are closing. For example, the enemies of fair housing (and “advocates” who don’t want to work too hard) latch on to recent Supreme Court language requiring those alleging that policies and practices make a prima facie case by showing an effect falls more heavily on one protected class than other people and provides wiggle room for the accused to offer a non-discriminatory explanation. Tex. Dep’t of Housing & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2513 (2015).

A different venue of enforcement—and broader—may be the Civil Rights Act. 42 U.S.C. 2000a. Title II of the Civil Rights Act covers public accommodations.  It does not include as many protected classes as the Fair Housing Act, only covering race, color, religion, or national origin. It does not cover housing, but public accommodations like restaurants, inns, and theatres. 42 U.S.C. 1981 covers all contracts, and that can include housing. However, it is limited to granting the same rights as “white citizens,” so could only extend to identities defined as a “race” at the time the act was passed (1866).

While the limits of Title II and Section 1981 make them seem far inferior to the Fair Housing Act, the Fair Housing Act is only as broad as it is enforced. If lawyers and judges ignore it, it is a dead letter.

Title II does not cover housing. However, many of today’s discriminatory practices radiate out from historical unfair housing practices. Segregation is how Mr. Borgan knew it was okay to sell the Evans family tainted meat.

If the woman who lives in the shoe is living a black community (as may well be the case if some of the explanations are accepted—“slum” long being a racist appellation for any community with a couple of brown faces), it is likely she not only faces housing discrimination but also the broad span of differential treatment exemplified by the Evans’ family’s tainted meat. Black and Latino residents of hyper-segregated areas like Gary, Indiana and Chicago, Illinois might improve their circumstances through focused litigation addressing the inferior services offered.

In addition to tainted food, food is often made unavailable. Grocery stores do not exist, a “food desert”—a condition noted only in passing in case law to date. See Haynes v. City of Chi., 12-cv-2980, (N.D. Ill., 2013).

Even where establishments exist, black people are often subject to inferior service. Robinson v. Power Pizza, Inc., 993 F.Supp. 1462 (M.D. Fla., 1998). Some success has been had in addressing issues like refusal to serve retail customers [Christian v. Wal-Mart Stores, Inc., 252 F.3d 862 (6th Cir., 2001)], refusal of facility rentals [Lindsey v. Slt Los Angeles, LLC, 447 F.3d 1138 (9th Cir., 2005)],  and other public accommodations [Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964); Ross v. Choice Hotels International, 882 F.Supp.2d 951 (S.D. Ohio, 2012)].

One of the most promising areas of litigation is refusal of corporations to allow franchisees to locate stores in predominantly African-American neighborhoods. In Jones v. Culver, a franchise was steered away from black neighborhoods in Chicago despite good financial incentives–$800,000.00 in tax increment financing funds. 13-cv-3269 (N.D. Ill., 2013). Similarly, refusal to enter new franchise agreements because of a franchisee refusal to carry some meat products (based on Muslim faith) was enough to state a prima facie case in Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827 (7th Cir., 2007).

Focused, diligent and consistent pursuit of justice for civil rights violations that thrive in the economic environment created by hypersegregation may do what the Fair Housing Act has been unable to do: affect complete desegregation. If the economic incentive for segregation (a ready pool of victims for tainted meat, spoiled food, and inferior products) is removed, perhaps the racism will follow.

In short, I have not gotten a morsel of food delivered to my door since I moved to Gary in 2000. Really, I just want a pizza. I’ll share with the woman in the shoe.