Racial Classification?

[Earl Maltz]

I don't think this is a Yick Wo case because the local zoning code probably 
includes criteria for the grant of a permissive use permit.

At 05:06 PM 10/4/2006 -0400, davidebernstein at aol.com wrote:
>  Yick Wo v. Hopkins is relevant.  Not the e.p. component, which would 
> require proof of discriminatory application, but the due process part 
> about not putting wholly arbitrary power over what we'd today call a 
> fundamental right in the hands of local officials.
>
>
>-----Original Message-----
>From: isomin at gmu.edu
>To: dcruz at law.usc.edu
>Cc: conlawprof at lists.ucla.edu
>Sent: Wed, 4 Oct 2006 3:19 PM
>Subject: Re: RE: Racial Classification?
>
>
>The relevant precedent here is Village of Arlington Heights v. Metropolitan
>Housing Development Corp., 429 U.S. 252 (1977),  which establishes the 
>burden of
>proof a plaintiff must meet in order to show that a facially neutral law 
>is in
>fact racially discriminatory. That case, too, dealt with housing ordinances.
>
>The plaintiff has a fairly steep hill to climb. He would have to show that
>racially discriminatory intent existed. Even if such intent is proven, the
>Parish could still prevail if they can prove they would have adopted the same
>policy in the absence of racial intent.
>
>Ilya Somin
>Assistant Professor of Law
>George Mason University School of Law
>3301 Fairfax Dr.
>Arlington, VA 22201
>ph: 703-993-8069
>fax: 703-993-8202
>e-mail: <mailto:isomin%40gmu.edu>isomin at gmu.edu
>Website: <http://mason.gmu.edu/~isomin/>http://mason.gmu.edu/~isomin/
>SSRN Page: <http://ssrn.com/author=333339>http://ssrn.com/author=333339
>
>
>Rice v. Cayetano might suggest that the question here is whether ancestry 
>is being used as a proxy for race.  In Rice, the majority thought that 
>Hawai`i was using the classification “for a racial purpose,” by which 
>I suppose they meant trying to preserve a racial group or people’s sense 
>of themselves as racially distinct.  The Court did not offer very clear 
>guidance as to how closely to scrutinize a classification for 
>proxy-ness.  But off the top of my head and without further study or 
>reflection, I could see arguments either way here:  the Parish is trying 
>to preserve the racial character of itself as a region (perhaps 
>perpetuating past de jure racial segregation?), or it is trying to 
>minimize dislocation (although the seven generation spread may call this 
>into question).
>
>David B. Cruz
>Professor of Law
>University of Southern California Gould School of Law
>Los Angeles, CA 90089-0071
>U.S.A.
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Griffin, Stephen M
>Sent: Wednesday, October 04, 2006 11:21 AM
>To: conlawprof at lists.ucla.edu
>Subject: Racial Classification?
>
>St. Bernard Parish, just to the southeast of New Orleans Parish and 
>hard-hit by Katrina, recently passed this ordinance:
>
>“No person or entity shall rent, lease, loan, or otherwise allow 
>occupancy or use of any single family residence located in an R-1 zone by 
>any person or group of persons other than a family member(s) related by 
>blood within the first, second or third direct ascending or descending 
>generation(s), without first obtaining a Permissive Use Permit from the 
>St. Bernard Parish Council.”  Ordinance SBPC #670-09-06.
>
>St. Bernard Parish is overwhelmingly white.  To the extent they have 
>justified this ordinance, the council members made reference to 
>encouraging the former residents of the parish to return.  How does this 
>strike people – a racial classificaation or not?  One of my colleagues 
>suggested the relevance of Kotch v. Board of River Port Pilot 
>Commissioners, 330 U.S. 552 (1947) which upheld La pilotage laws that 
>limited the privilege to relatives and friends of incumbents, but this 
>case predates “modern” strict scrutiny law and I doubt it would come 
>out the same way today.
>
>Stephen M. Griffin
>Vice Dean of Academic Affairs
>Rutledge C. Clement, Jr. Professor in Constitutional Law
>Tulane Law School
>6329 Freret Street
>New Orleans, LA 70118-6231
>Voice: 504-865-5910
>Fax: 504-862-8857
><javascript:parent.ComposeTo('sgriffin at tulane.edu', '');>sgriffin at tulane.edu
>
>
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