Ellen Griffith Spears: End Toxic Discrimination

We welcome a guest post from Ellen Griffith Spears, author of Baptized in PCBs: Race, Pollution, and Justice in an All-American Town. In the mid-1990s, residents of Anniston, Alabama, began a legal fight against the agrochemical company Monsanto over the dumping of PCBs in the city’s historically African American and white working-class west side. Simultaneously, Anniston environmentalists sought to safely eliminate chemical weaponry that had been secretly stockpiled near the city during the Cold War. In this probing work, Spears offers a compelling narrative of Anniston’s battles for environmental justice, exposing how systemic racial and class inequalities reinforced during the Jim Crow era played out in these intense contemporary social movements.

In today’s post, Spears comments on the recent Supreme Court decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

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One Supreme Court decision announced this June received limited notice, in part because it came out the same week as momentous decisions on marriage equality and the Affordable Care Act, and following the horrific tragedy at Charleston’s Emanuel African Methodist Episcopal Church. But the Court’s decision in a fair housing dispute, Texas Department of Housing and Community Affairs et al. v. Inclusive Communities Project, merits serious attention as LGBTQ activists and their allies move on to tackle employment and housing discrimination and as the momentum from the campaign to remove the Confederate flag from public places turns toward a broader agenda. The ruling could be especially significant for activists working to end the disproportionate placement of polluting factories and hazardous waste facilities in low-income neighborhoods and communities of color.

The Inclusive Communities case concerned whether housing for low-income persons in Dallas should be built in the city or in the suburbs. A 5-4 majority of the Court acknowledged that segregated housing persists and reaffirmed the use of disparate-impact analyses—statistical findings that institutional policies have the effect of discriminating whether or not the agency or party in question intended to do so—as a way to tackle bias in housing.

By contrast, proving discriminatory intent or motive can be difficult. The shooter in the Charleston assault blatantly espoused his racist motivations, but much systemic discrimination hides behind facially neutral policies. But the effects—patterns of discrimination—can be measured. Moreover, the Court stated, disparate-impact analyses help uncover “unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” The Court specifically affirmed a lower court’s criteria to be considered in siting decisions, including “disqualify[ing] sites that are located adjacent to or near hazardous conditions, such as high crime areas or landfills.”

In Baptized in PCBs: Race, Pollution, and Justice in an All-American Town, I document decades of “slow violence” from chemical exposures that disproportionately affected African American residents and working-class whites in the Alabama city of Anniston. In this segregated community, proximity to the polluting plant was a key indicator of exposure to PCBs, the toxic chemicals. Anniston residents won a major legal settlement after their neighborhood and their bodies were polluted by the chemicals. But that victory came only after the damage—to residents’ health and to their homes and community—was done.

Environmental justice advocates have attempted to employ Title VI of the Civil Rights Act, which prohibits discrimination in government-supported programs, to challenge practices by private entities and government that have resulted in discriminatory exposure to toxic hazards, even absent demonstrable racial animus. EPA regulations prohibit discriminatory effects unless they are “justified and there is no less discriminatory alternative.” But success in such cases has been limited.

The Inclusive Communities case focused on the precise language of the Fair Housing Act, and the Court retained several limitations on such claims. But the Court’s decision to continue to take disparate impact into account suggests an avenue for raising broader claims of discrimination that must be pursued if we genuinely want systemic race and gender bias to end.

Ellen Griffith Spears is associate professor in New College and the Department of American Studies at the University of Alabama and author of Baptized in PCBs: Race, Pollution, and Justice in an All-American Town.