Washington Sued for 'Racially Conscious' Homeownership Program

Washington's Covenant Homeownership Program excludes certain applicants on the basis of race.

The Foundation Against Intolerance and Racism (FAIR) submitted a complaint on Tuesday against the Washington State Housing Finance Commission (WSHFC) for its Covenant Homeownership Program, which explicitly bars certain applicants from eligibility on the basis of race. The commission cites the 2024 Covenant Homeownership Program Study as empirically justifying its "race-conscious" special purpose credit program, but it's unlikely to pass strict scrutiny.

The Washington State Legislature passed the Covenant Homeownership Act in May 2023 to remedy "past and ongoing discrimination and its impacts on access to credit and homeownership for black, indigenous, and people of color." Past discrimination includes 50,000 clauses in home deeds and homeowners associations that were used "between the 1920's and 1960's throughout Washington state to restrict housing based on race, religion, and ethnicity," according to the commission. The Covenant Homeownership's special purpose credit program offers certain first-time homebuyers a zero-interest rate loan for downpayment and closing cost assistance to address discrimination and reduce the racial disparity in homeownership.

The program raises its revenue by collecting a $100 document recording assessment for real estate transactions, which the commission projected will "generate between $75 million and $100 million each year." The program is restricted to those Washingtonians whose ancestors (or themselves) were subjected to state-based racial discrimination in housing contracts before the federal Fair Housing Act of 1968.

Further qualifications for the program include earning the area's median income or less, being a first-time homebuyer, and either being or having an ancestor who was Hispanic, Native American, Alaska Native, Native Hawaiian, other Pacific Islander, Korean, or Asian Indian and lived in the state before April 1968. Limiting access to the program's special purpose credit program in this way "facially discriminates on the basis of race," according to the complaint.

WSHFC acknowledges the program's racial requirements, describing it as going "beyond 'colorblind' or 'race-neutral' assistance" to allow Washington "to directly remedy the harm caused by its discriminatory policies." Although the commission insists the program "does not represent a formal reparations effort," the United Nations, whose definition the commission cites, disagrees. One of the U.N.'s four reparations measures is "compensation…provided for any economically assessable damage, loss of earnings, loss of property, loss of economic opportunities, [or] moral damages."

The Covenant Homeownership Program Study, published by the National Fair Housing Alliance, a nonprofit advocacy group that fights housing discrimination, justifies the program's racial discrimination on the grounds that "state institutions played both active and passive roles in perpetuating housing discrimination against a range of marginalized groups." The researchers also considered disparities in homeownership rates in their recommendations for racial eligibility: 68 percent of non-Hispanic white households are homeowners, compared to only 49 percent of Hispanic and non-white households and 31 percent of Black households.

Japanese and Chinese Americans are ineligible for the Covenant Homeownership Program despite the program's study identifying discrimination against both groups: "Anti-Japanese sentiment led to the passage of the 1921 Alien Land Bill by the Washington Legislature," which restricted the ability of Japanese residents "to own and lease land"; and Chinese people were excluded from land ownership by "the prohibition of 'alien land ownership' in the 1889 State Constitution."

Though the Covenant Homeownership Act states its purpose is to remedy past and ongoing discrimination, it excludes certain "Asian subgroups who…have homeownership rates on par with or…higher than Whites." Nonetheless, the exclusion of Japanese and Chinese Americans from the program undercuts the whole rationale of historical injustice, says Joshua Thompson, director of the Equality and Opportunity Program at the Pacific Legal Foundation (PLF), which is representing FAIR in its lawsuit.

Historical discrimination is rightly recognized as evil, as is present-day discrimination, which is unconstitutional except when narrowly tailored to serve a compelling government interest. Thompson explains that there are only two such interests: "If you need to classify on the basis of race for a short moment to avoid a prison riot…and remedying past discrimination." Though this second interest seems to open the door to race-based programs like Washington's, Thompson explains "that the person receiving the remedy is the person that was injured by the harm." In other words, it is unconstitutional to use race as a proxy for individual injury resulting from illegal discrimination.

The commission describes the Covenant Homeownership Act as "the first programmatic use by a government agency to remove persistent structural barriers to homeownership," but numerous policies have already been enacted at the federal, state, and local levels to decrease inter-group disparities in facially discriminatory ways. Thompson says PLF has around fifty ongoing cases against the preferential treatment of disadvantaged/minority/woman business enterprises for public contracts, racial and gender quotas for state boards and commissions, federal contracts favoring minority-serving institutions, and preferential licensing for certain racial groups, such as marijuana dispensary licenses for black New Yorkers.

One might wonder how these programs can exist at all if they're flatly unconstitutional. The answer is that even unconstitutional programs must be identified and challenged by someone with legal standing—by some particular person or group of people damaged by exclusion from a particular program—in order for courts to prohibit them through a permanent injunction.

Nonetheless, Thompson is optimistic that the continuous game of legal Whac-A-Mole can be ended in the next five years not just through appellate opinions but by changing hearts and minds. Ending race-based policies is "the moral result that will happen eventually," says Thompson, but "it's not going to happen without the work that needs to be done."

Comments

[Rick James]

One might wonder how these programs can exist at all if they're flatly unconstitutional.

Would you like the long explanation or the short one?

[Minadin]

Is the short explanation: the progressives don't give a rat's ass if something they want to do is constitutional?

[JasonT20]

Another possible short explanation:

White conservatives find it really convenient to insist on color blindness now after centuries of non-white people being kept down.

[Crackers Boy]

Hahahahahahaha... yeah.

CB

[Fire up the Woodchippers! (5-30 Banana Republic Day)]

Yes, because white conservatives finally stopped your kind from oppressing non whites. Or at least we did for awhile. The slaving ways of the democrat infestation have made a comeback as of late.

[Sevo, 5-30-24, embarrassment]

Possible explanation for Jason T20's bullshit: He's a slimy pile of imbecilic lefty shit:
JasonT20
February.6.2022 at 6:02 pm
“How many officers were there to stop Ashlee Babbitt and the dozens of people behind her from getting into the legislative chamber to do who knows what?...”

[Junkmailfolder]

How dare you point out that we're actually immortals (or vampires?) and have lived for centuries?!

Or are you just projecting one group's sins onto another group because they have the same skin color?

I feel like there's a word for that kind of behavior...

[Michael Ejercito]

Colorblindness is part of the supreme law of the land.

[Minadin]

LOL. Yeah. That's the other reasonable take.

If you want to stop discrimination on the basis of color or national / ethnic origin, then STOP DISCRIMINATING ON THE BASIS OF COLOR OR NATIONAL/ETHNIC ORIGIN.

It's fucking easy.

[JohnZ]

You mean white liberal Democrats.

[Don't look at me!]

Skin color is the most important thing.

[holmegm]

And if you keep telling people that, there is the danger that at some point, they may start believing you.

[CE]

Just like if you tell people over and over that they are entitled to reparations, they start to collect on their own.

[Nobartium]

Integration, mistake, assembly required.

[SQRLSY]

Government Almighty will practice racism until racism withers away to nothing!

(Has this ever worked, and if so, when and where?)

[JasonT20]

I don't think it has ever worked because the groups that had been doing the discriminating still have the power to keep it from happening.

[Marshal]

the groups that had been doing the discriminating still have the power to keep it from happening.

What's most revealing about this is how the sins of some white people create guilt of all white people.

Left wingers are just racist. It's particularly amusing from people who pretend to be libertarian.

[JasonT20]

It’s not about guilt or “sins” of some white people. It is about the fundamental unfairness of an economic and social system where groups of people, based on race, were systematically disadvantaged for many generations. They were blocked from building generational wealth. And if we are going to have a non-socialist system where building generational wealth is a goal for people to strive for, then that is a serious contradiction.

The thesis of our capitalist, free-market system is that hard work and innovation pay off because people with capital will invest in the activities that are the most productive and efficient at meeting society’s wants and needs. Those owners of capital get a return on that investment, all while the people actually providing the labor to produce the goods and services, along with the intelligence and creativity to solve problems and come up with new ideas, are able to receive fair compensation for their work. We know from long experience, though, that it is the owners of capital that make the largest gains from this system. Their contribution, in theory, is that they have the knowledge and intelligence to decide where the capital is best invested. And they are taking risks, as they have the potential to actually lose money, whereas the workers at a failed business lose a job and thus their income, they don’t lose anything that they’ve already earned.*

The problem with this system is that one has to have capital already to be an owner or investor. Breaking into the investor class is difficult, as one has to either start small and build up gradually, or one has to hit on the big idea that will grow exponentially in a short time and maintain ownership of that idea as it draws in capital. It all comes down to upward mobility. If the system is fair, for some value of what we consider fair to be, then good ideas and hard work are rewarded with increased earnings and people can move up the economic ladder freely based on their merit. Working against fairness, though, are factors like education.

Inequality in access to education leads inevitably to unequal outcomes. All other things being equal (intelligence, work ethic, family stability and morality, etc.), there is no doubt that a family with wealth will see that their children receive a much better education than the family that is poor. The family with wealth can draw on home equity, networking, a good credit history, and more advantages, if someone in the family wants to start a business.

The myth, then, is that we live in a meritocracy. Rather, we live in a society where merit matters, but so does the wealth one already has, and existing wealth often matters more than merit. I ran the numbers here. With $5 million starting investment in a S+P 500 index fund, one could probably earn $300k annually.** That is a typical annual salary for a cardiologist. And that would be entirely passive income, requiring no effort or expertise, certainly not the 8 years of college and med school + 3 years residency + 3 years fellowship becoming a cardiologist requires.

So tell me how you long you think it would take for Black people (and other groups that experienced systematic discrimination in the U.S.) to catch up, on average, with white people purely on their own merit? If they ever could, given that they would really need to outperform white people to do that?

I can foresee one response to that already. “Race shouldn’t matter at all,” you might say. I absolutely agree. But “shouldn’t matter” is an aspiration, not a reality. When there are still some white people that have Confederate symbols that they display proudly, whether maliciously or just out of ignorance of what those symbols really represent, or go to rallies to protect those symbols and chant, “Jews will not replace us!” and other hateful rhetoric, then we can’t pretend that we are at a place where race doesn’t matter. We can’t pretend that it doesn’t matter when the openly hateful bigots like that are barely kept at arms length by some elected officials.

It isn’t some kind of reverse discrimination to try and correct for historical oppression. It is the responsibility of anyone that wants to make a society where race truly doesn’t matter.

*A worker could lose a pension that they've earned when a business they worked at goes bankrupt, depending on how the pension fund is set up. My grandfather worked at Honeywell for over 30 years, and while that company continues to this day successfully, his pension fund was separate from the company in that it would have remained even if the company did go down.

**The S+P 500 index goes up and down a lot more than that from one year to the next, but the long term average return, adjusted for inflation, is around 6%

[Beezard]

We’re all blocked from building generational wealth now. And are twice as obsessed about race as we were twenty years ago. Your logic is specious.

It sucks that gov schemes to cure poverty helped trap millions in poverty. I shouldn’t be getting punished to help rectify that with a new gov scheme to save people from poverty.

You’re also completely ignoring cultural factors that make this premise untenable.

[Michael Ejercito]

What are these cultural factors?

[Sevo, 5-30-24, embarrassment]

^ This shit-stain is a slimy pile of lefty shit:

JasonT20
February.6.2022 at 6:02 pm
“How many officers were there to stop Ashlee Babbitt and the dozens of people behind her from getting into the legislative chamber to do who knows what?…”

[Junkmailfolder]

I had (past tense) an inkling that you were actually a thoughtful commenter albeit quite left-leaning. There is absolutely nothing true or thoughtful about your comment.

Only a tiny percentage of the population has any access to generational wealth. It may not be evenly split across racial demographics, BUT IT ALSO ISN'T EVENLY SPLIT ALONG ANY OTHER demographic or characteristic. Beautiful people make more money (and have more access to generational wealth) than ugly people. Tall people, thin people, intelligent people, people without genetic abnormalities, risk-takers, ambitious people, extroverted people, and an infinite number of other characteristics can have an even greater impact on one's ability to get ahead via merit or otherwise.

We live in as close to a meritocracy as you can get, although granted we are moving quickly away from it with your thought processes.

"It isn’t some kind of reverse discrimination to try and correct for historical oppression." I'm sorry, I was wrong. This statement is, in fact, true. You're right, it's not reverse discrimination, it is just plain old discrimination. Taking something from someone innocent (like most people born within the last 60 years) in order to give it to someone who experienced no wrong (like most black people born within the last 60 years) based on nothing but the color of their skin is categorically discrimination, immoral, and unfair. No matter where you decide to start your "historical oppression," you're demonstrating significant bias by ignoring all the history that came before it. Even if you could account for all of human history, the obvious conclusion is that righting past wrongs, especially when those wrongs were done by OTHER PEOPLE is at best a fool's errand and at worst a worse travesty than anything you are trying to right.

The key you're missing that causes your brain to misfire is thinking of people as groups. Don't compare "Black people" (why capitalize black but not white?) with "white people" because there is no useful comparison to be made. Every single person in your artificial groups is an individual wholly separate from others in or outside of that group.

[Sevo, 5-30-24, embarrassment]

"...Tall people, thin people, intelligent people, people without genetic abnormalities, risk-takers, ambitious people, extroverted people, and an infinite number of other characteristics can have an even greater impact on one’s ability to get ahead via merit or otherwise..."

As Thomas Sowell points out, he had an exactly equal opportunity to play pro basketball as did Shaq.
Skills also, are not equally distributed.

[JasonT20]

why capitalize black but not white?

That's fair, but I don't see many white people (myself included) asking for it to be capitalized in print. I don't identify with being "white" as a culture heritage, for one thing. I might think about my Norwegian (1/8th) or French (~1/2, I think) ancestry, or my national identity as an American, but my whiteness has no meaning to me. Most racial and ethnic groups use capitalization as proper nouns, such as Jew, Hispanic, Asian, and Native American (or Indigenous, as some prefer). Mainly, I think Black people chose to be referred to that way at a time when they started to reject "negro" or "colored" as terms imposed on them by racists. And while some still prefer "African American", others reject that as well, because it implies a recent connection to that continent that doesn't exist. (I'd never refer to myself as French-American when there are at least 4 generations between me and any ancestor born in France.) Nor can they pinpoint where in Africa their ancestry actually originates because of, you know, the whole slavery thing where those ancestors were forcibly taken from their homelands. Bottom line: If they want to claim "Black" as their ethnic group, then they have as much right to have it be capitalized as do Jews, Latinos or Hispanics, Asians, or anyone else.

[EISTAU Gree-Vance]

“…..but my whiteness has no meaning to me.”

Nonsense. You’re consumed with guilt.

Have fun with that. Haha.

[JasonT20]

Only a tiny percentage of the population has any access to generational wealth.

If you define generational wealth as an inheritance, maybe. But I define it as anything of monetary value being transferred from parent to child (or other relative of earlier generations, like aunts/uncles or grandparents). That includes gifts, trusts, paying tuition + room and board while in college, paying medical debt, helping with a down payment on a house, etc. That definition, used by economists, is not a "tiny fraction" of anything.

[Junkmailfolder]

Say what? How many middle-class families provide trusts, material monetary gifts, or college tuition for their children? A small percentage at best. The vast majority of whites do not have some piggy bank they can call on when times are tough and end up (like all of us) with tens of thousands in debt if they attend college.

You're falling for the same cognitive failure as the rest of the grievance-hustlers. 90% of CEOs are white does not equal 90% of whites are CEOs. It means that the majority of white people are wage workers but might have a statistically insignificantly better chance of being a CEO than the average black person.

[Michael Ejercito]

When there are still some white people that have Confederate symbols that they display proudly, whether maliciously or just out of ignorance of what those symbols really represent, or go to rallies to protect those symbols and chant, “Jews will not replace us!” and other hateful rhetoric, then we can’t pretend that we are at a place where race doesn’t matter.
That is beside the point.

The 14th Amendment's equal protection clause forbids racial discrimination.

[JasonT20]

Well, since some Justices think that "history and tradition" matter so much, did the Reconstruction-era Congress that passed and submitted the 14th Amendment to the states, and the states that ratified it think that the Equal Protection Clause prevented state or federal governments from providing benefits to the freed slaves? Any such benefits would have been barred from being given to any white people, so that would have violated equal protection, according to your framing.

[Junkmailfolder]

Why? The slaves would have been eligible for benefits based on actual harm. That would not have been based on race but on provable harm.

[Medulla Oblongata]

I seem to recall that blacks were historically not allowed to play collegiate sports or professional sports for the longest times. And almost as soon as the rules changed to allow their participation, NCAA football and basketball, NBA, MLB, NBL rosters are dominated disproportionally by black athletes. Many of whom are beloved by fans of all races, and among the richest people in the world.

OTOH, that disproportional representation might just be a problem. People continue to complain about lack of black coaches, demanding quota systems for them (even though black coaches are close to proportionally represented). But if anyone ever mentions the disproportional representation on the field, they are called racists, because *clearly* only the best players make the team and get on the field. Trying to apply that logic to say "Well, maybe the best coaches get hired, no matter their race." are met with more cries of racism.

My overall point is that it certainly didn't take blacks from "getting over" or "catching up" after the prohibitions against their participation in major sports were--quite properly--sent to the trash heap. Expecting that it will take decades and decades of handouts to overcoming not being able to get a mortgage in the 40's and 50's seems like another example of the soft bigotry of low expectations.

[JasonT20]

I seem to recall that blacks were historically not allowed to play collegiate sports or professional sports for the longest times. And almost as soon as the rules changed to allow their participation, NCAA football and basketball, NBA, MLB, NBL rosters are dominated disproportionally by black athletes. Many of whom are beloved by fans of all races, and among the richest people in the world.

You're wrong about MLB. The Black player proportion topped out at around 18% in the 70s and 80s, which is reasonably close to their percent of the population in the U.S. Latino players today make up a larger share than Black players ever did. White players are still the majority of MLB players, as Black players have fallen to less than 10%.

NFL? NBA? Sure, they are over-represented in those leagues. But that has probably the same reason as why there are so few in the MLB and NHL. More young black athletes play those sports more than play baseball or hockey.

And even that isn't the sign of equality that you think it is. Maybe Black coaches are close to their proportion of the population, but they certainly are not in proportion to the players. And then there are the general managers, and executives, and well, the owners. Is there an explanation for this that you can imagine?

My overall point is that it certainly didn’t take blacks from “getting over” or “catching up” after the prohibitions against their participation in major sports were–quite properly–sent to the trash heap. Expecting that it will take decades and decades of handouts to overcoming not being able to get a mortgage in the 40’s and 50’s seems like another example of the soft bigotry of low expectations.

Physical skills can be developed to the highest levels in many sports without access to wealth. I mean, football even has built in opportunities for young men to play for free at highly competitive levels. It isn't the "bigotry of low expectations" to look at the facts and find no explanations that fit those facts besides the history of discrimination and the lack of access to wealth that history caused. Some people just think that younger people of those groups just need to pull themselves up by their bootstraps. And they don't understand what that saying originally meant.

[Sevo, 5-30-24, embarrassment]

^ This ass-wipe is a slimy pile of lefty shit:

JasonT20
February.6.2022 at 6:02 pm
“How many officers were there to stop Ashlee Babbitt and the dozens of people behind her from getting into the legislative chamber to do who knows what?...”

[Longtobefree]

Leftists are racist.
Hardly news.

[Iwanna Newname]

Reparations now, reparations tomorrow, reparations forever!

[Idaho-Bob]

All you need to know about government-sponsored, present-day American racism:

Japanese and Chinese Americans are ineligible for the Covenant Homeownership Program despite the program’s study identifying discrimination against both groups.

Though the Covenant Homeownership Act states its purpose is to remedy past and ongoing discrimination, it excludes certain “Asian subgroups who…have homeownership rates on par with or…higher than Whites.”

[Wizzle Bizzle]

Yup. And I can't help noticing a certain religious minority from the Middle East missing from their list of the aggrieved. Can't imagine why.

[The Margrave of Azilia]

(((They))) got homes by threatening real-estate agents with their space lasers.

[Iwanna Newname]

But...but... there it is in the 14th amendment.

Section 1. "...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws except to remedy disparate impact on a protected group."

[TJJ2000]

I saw what you did there ... "except to remedy disparate impact on a protected group." 🙂

[JohnZ]

I still don't have to bake a cake for a trannny or a lesbian wedding.

[CE]

That's covered in the 13th Amendment:

"Neither slavery nor involuntary servitude shall exist in the United States, except as punishment for a crime, unless you not doing something you don't want to do might hurt someone's feelings."

[TJJ2000]

Maybe Gov 'Guns' don't make houses for owners.
Maybe the wrong tool is being used just so it can be racist.

So many horrifying governments could've been avoided by just realizing the tool (only one) in 'governments' tool-box. If you don't need to shoot someone dead; you don't need 'government'.

[Rise of the Impedance]

We all know the best way to permanent end racism and discrimination is to legally require racism and discrimination.

[TJJ2000]

[WE] all learned it in Commie-Indoctrination camps.
Critical Racist Theories.

[JohnZ]

Places such as Harvard, Yale and Columbia.

[AT]

I don't worry about this kind of thing anymore. Because we live in Clown World, I just identify as whatever I want whenever it's convenient.

[Michael Ejercito]

So what was their problem with redlining?

[MWAocdoc]

"even unconstitutional programs must be identified and challenged by someone with legal standing"

One of the obvious remedies for this situation that the Founders could have easily foreseen and built into the Constitution would be the requirement that all new or newly amended laws, regulations and Executive Orders be subjected to Judicial review before taking effect.

Please notice that "legal standing" in this context does NOT include property owners who have to pay the transaction fee to fund this reparations program. That could also be a possible remedy for all wealth transfer programs no matter how cleverly disguised or "well-intentioned."

[Wizzle Bizzle]

Since we're all about doing away with the icky parts of the constitution these days... How about dictator Trump does away with "legal standing" on day one.

If the left is going to constantly pass laws they know are unconstitutional, how about we make it a little easier for the handful of people who still care about the rule of law to push back.

[n00bdragon]

People are missing the forest for the trees on this one. There's an insane logical quirk here that supposedly makes this not racially discriminatory: There's nothing that actually prevents this law from giving money away to white people.

Section 6.4 to be eligible you must:
1. Make below the median income.
2. Be a first time home buyer.
3. Be a Washington state resident who:
3a. Was a resident before April 11, 1968 and was personally affected by a Racially Restrictive Real Estate Covenant prior to April 11, 1968 -OR-
3b. Be a descendant of the above.

See? It's not discrimination on the basis of race because anyone affected by racially discriminatory real estate covenants is covered.

But remember, all of this legislation stems not from the problem that people in 1968 were discriminated against, but that black people in 2024 (as a group) own less real estate than white people (as a group). So already, the plain intention is discriminatory, but because you aren't allowed to discriminate the logical end-run around that is to make the wild assumption that everyone is the "same race" as their parents. If you are a white person with a single black grandfather, you can qualify for benefits under this program. Did someone create a special plat just for blacks? Whoops, now everyone who could have theoretically lived there can apply for benefits.

The real meat and potatoes comes in Section 7 though. This law creates an eleven member "oversight committee" who will receive a "stipend" of $200 a day.

This isn't about redressing any kind of past wrongs or helping poor black people in the present. It's about making 11 cushy do-nothing jobs for your buddies.

[Michael Ejercito]

The author claims this.

Though the Covenant Homeownership Act states its purpose is to remedy past and ongoing discrimination, it excludes certain "Asian subgroups who…have homeownership rates on par with or…higher than Whites."

[JohnZ]

This is happening quite frequently with colleges and universities discriminating against not only whites but against Asians as well. On the other hand why would a parent waste money for a useless college degree their child received, especially when colleges and universities are now brainwashing and indoctrination centers.
Another dimension to this article is the lawfare being waged against a cake maker in Colorado who refused to bake a cake for a lesbian wedding . He was also recently sued in a court because he refused to bake a cake for a trans person.
Fortunately, he won both cases.
The moral of this story is that there are limits to inflicting forced agreements on people.

[CE]

Historical discrimination is rightly recognized as evil, as is present-day discrimination, which is unconstitutional except when narrowly tailored to serve a compelling government interest.

FTFY

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I don't see the "compelling government interest" exception anywhere.

[JFree]

A high land tax is the way to deal with 'reparations' related to past access to land ownership. Don't even try to unwrap past distortions. Just stop the subsidies and distortions in the future.