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Law Department predicts challenges ahead for equity-based preservation programs

Tuesday, August 9, 2022 by Kali Bramble

The Historic Landmark Commission was in an unusually gloomy mood last Wednesday, as the meeting kicked off with an ominous briefing from the city’s legal department.

At the request of Commissioner Blake Tollett, Assistant City Attorney Neal Falgoust dropped by to discuss the shifting federal court landscape and its implications for city policy. In light of the recent Roe v. Wade ruling, and other high-profile cases in the pipeline, Falgoust warned that municipal anti-discrimination programs could soon become a legal target.

“I think that the legal landscape we face right now in the federal court system is not one where we’d want to end up in court,” Falgoust said. “This upcoming term we have a lot on our watchlist in the areas of civil rights, nondiscrimination and racial equity. I don’t think it will be a particularly good term for any of those cases.”

The news comes just a month after the commission celebrated a year’s worth of progress developing its equity-based historic preservation plan, the first effort to update the city’s preservation policy since 1981. The new plan, which explicitly addresses racial bias in the historic zoning process, was intended to roll out sometime next year.

But based on recent federal court behavior, the city’s Law Department is concerned that such policy could soon be subject to legal attack. Just recently, two of the Biden administration’s Covid relief programs prioritizing marginalized business owners were ruled unconstitutional, with claims they violated the 14th Amendment’s equal protection clause. The two cases, involving a grant program for restaurants and a loan forgiveness program for Black farmers, ended in successful lawsuits and frozen funds.

Particularly troubling is the ruling against the Department of Agriculture’s loan forgiveness program, which began via a suit filed by Texas Agriculture Commissioner Sid Miller. Citing a failure to adequately demonstrate discrimination, the court struck down the program despite having settled a historic, billion-dollar lawsuit against the USDA for discriminatory practices just 12 years prior.

The U.S. Supreme Court is also slated to address two affirmative action cases against Harvard and the University of North Carolina this fall. Though racial considerations in admissions policies have repeatedly been ruled constitutional, the repeal of Roe v. Wade has demonstrated the court’s will to revise its position on long-held precedents. If successful, the Law Department fears these suits could have a profound impact on future racial diversity initiatives.

“The extent to which the court swung for the fences in that case was surprising to a lot of people, and I think that the court is just getting started,” Falgoust said. “They’re finding their footing with those cases and I think next term will provide a challenge for anyone that seeks to remedy the past racial discrimination in our country.”

Still, Economic Development Director Sylnovia Holt-Rabb assured commissioners that there were ways to move forward with equity goals without ending up in court. Holt-Rabb pointed to the recent Music Disaster Relief Fund, developed with the assistance of the city’s legal team, as an example.

“It is discouraging, but the Economic Development Department is still leading with an equity lens; we are just adjusting the questions asked to achieve our outcomes,” Holt-Rabb said. “For example, we asked questions about education attainment, about how many times you’ve moved, about banking history … certain ZIP codes …. We were pleased with the outcome. If we could have done more direct questioning, yes, we would have achieved more.”

The Historic Preservation Office will continue working on its equity-based preservation plan, albeit with heightened scrutiny. Those interested in the saga can expect a preliminary brainstorming of proposals to undergo public review this fall. Read more on the project website.

Photo by Larry D. Moore, CC BY-SA 3.0, via Wikimedia Commons.

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