NYC thwarted in bid to avoid trial in discrimination case challenging its outsider-restriction policy in affordable-housing lotteries

Intentional discrimination

Intentional discrimination in the context of this case refers to the City being influenced in expanding and maintaining the policy by those who wish to retain the segregated status quo. There is voluminous evidence. In rejecting the City’s bid to get the intentional discrimination claim knocked out, he Court’s opinion, saying that the issue had to be tried before a jury, cited only a small fraction of it:

Plaintiffs, however, have proffered and pointed to evidence in the record indicating that the fear of displacement, voiced by opponents to affordable housing, may be multi-faceted, and may be grounded, at least partially, in residents’ resistance to racial change in their neighborhoods. (Pl. Opp. at 76-87; see docket entry no. 927 (“Maldonado Decl.”), Ex. 32 at 215:3-20 (deposition testimony from Matthew Murphy, who served as HPD’s deputy commissioner for strategic planning, in which, when asked whether “there are people both in white neighborhoods and in neighborhoods dominated by other racial groups that - - where racial change or the prospect of racial change makes them feel uncomfortable; is that right?” he responded, “I think it’s likely and I think people correlate that change to development, new housing development[,]” and “[s]o as a result, they oppose housing development, especially Affordable Housing development.”); Pl. Opp. at 76 (describing presentation by then-Commissioner of HPD, Ms. Been, about “fears of neighborhood change[,]” in which Plaintiffs assert she explained that residents of communities were seeing “people … coming in” who may “look different” and have “different demographics” and who may worry that even if they stay in their neighborhood, “the sense of the neighborhood may change”); Maldonado Decl., Ex. 7 at 138:9–141:7 (Ms. Been confirming that “race and ethnicity are part of demographics” and describing that her presentation referenced above concerned “people who are currently in the neighborhood,” as well as “people who have left the neighborhood but still have feelings about the neighborhood” because “[t]he people who were coming in may look different; may be wealthier; may have different demographics[.]”); Been Decl. ¶ 14 (testifying that the fear of displacement not only extends to the idea of “low-income people being forced to move to less expensive areas” but also encompasses fear surrounding how “changes may … make” “those who are able to stay in the neighborhood … feel like the neighborhood is no longer welcoming or familiar”).) 

Plaintiffs also have pointed to evidence in the record that they argue indicates the City’s stated rationale for the Policy, to “ensure that local residents – who may have endured years of unfavorable conditions, worked hard to stabilize the neighborhood, and may have deep roots in the neighborhood – have a chance to participate in their neighborhoods’ revitalization[]” (Been Decl. ¶ 13), is pretextual, because, as the City concedes, “neither the length of time an applicant resides in the [neighborhood] in which the affordable units are being built nor an applicant’s housing conditions affect eligibility under the [P]olicy[.]” (Pl. Opp. at 84; see docket entry no. 901 ¶ 111.) Plaintiffs proffer an email from Mr. Murphy to a colleague at HPD referring to a “Community Preference working group” and stating: “We justify the [P]olicy because it prevents displacement. But we don’t have good metrics to show that displacement is occurring. What I’d like to do is start building a ‘case’ for anti-displacement policy.” (Maldonado Decl., Ex. 48.)

The Court was able to conclude that, as plaintiffs had argued, the City had to go to trial on the intentional discrimination issue, even without reciting additional, multiple elements of the City’s knowledge of and responsiveness to resistance to fair housing:

• Defendant’s own preliminary guide to the Assessment of Fair Housing process identifies the difficulty of overcoming “community opposition” as “high,” noting, “Securing community buy-in for fair housing is very difficult.” The document adds that, for publicly supported housing, opposition “can be high in higher opportunity areas (e.g. Queens, Staten Island) except for senior housing.” A slightly earlier version of the document specified that one of the “sides” not necessarily supporting integration is the “ethnic solidarity” side.

• Defendant’s preliminary guide to the Assessment of Fair Housing also explicitly cautioned against simply taking relevant steps to identify and deal with “contributing factors” of segregation. The identification of “high priority” factors had to balance “relevance and practical feasibility.”The preceding sentence had just explained that contributing factors of segregation are “politically and legally sensitive.” A jury could certainly conclude that defendant was worried that some “high priority” factors were too politically or legally sensitive to be identified as such.

• Deputy Mayor Been, when she was HPD Commissioner, reviewed a draft staff memo designed to get various outside actors to push back against a CM’s resistance to an affordable housing development in Queens. The staff described vague rationales for opposition – “vague”referring to expressed concerns about “parking, height, bulk, AMI’s aren’t perfect, doesn’t benefit my constituents” – as a “well-honed tactic that typically suburban communities have used to exclude affordable housing and maintain privilege and economic and racial segregation.” The staff had proposed to continue with the statement that the opposition “violates the objectives of the fair housing act,” a section that the then-Commissioner deleted with the comment, “No! No statements about FHA violations!”

• The then-Commissioner was already concerned about the difficulty of having “thoughtful discussions” about determinants of fair housing issues “against the backdrop of local politics.”

And the Court was able to say that this was a matter for the jury even without considering a 33-page appendix of additional intentional discrimination evidence.

>> We have always said that there is a simple solution: the City should take its thumb off the scale and honor the choices that New Yorkers are making via their applications — wherever they are coming from and wherever they wish to move.