City's defenses in discriminatory preference case fall flat

November 10, 2020 —  [Scroll down for Court-filed documents.]  

UPDATED 1/5/21 - The Lawyers’ Committee for Civil Rights Under Law has filed an amicus brief in support of the challenge to the City’s policy, pointing out that “the positions urged on this Court by Defendant City of New York (the “City”) would not only deprive the Plaintiffs (and hundreds of thousands of other New York City households) of their fair housing rights, but would, if accepted, also deal devastating blows to the ability of anyone in the United States to vindicate the rights guaranteed them by the FHA.”

UPDATED 12/3/20 - Plaintiffs have filed an unredacted version of the 2014 letter from HPD to HUD (Exhibit 3), pursuant to the Court’s order.  Additionally, plaintiffs’ reply brief has now been filed without the redactions that had existed on page 11.

The Anti-Discrimination Center (“ADC”) announced today new federal court filings in the case pending in the Southern District of New York challenging NYC’s discriminatory practice of having a “preference” of 50 percent of units for people already living the community district (“CD”) where the affordable housing will be built. Because the City is so residentially segregated, the practice perpetuates segregation and, on the basis of race, denies a level playing field (causes disparate impacts).   The evidence is overwhelming, so the City has to use remarkably Trump-like arguments.

It will soon be 2021, and Joe Biden is the President-elect, but the City is still making the “separate-but-equal” argument.  Injury to African Americans when applying for lotteries in majority-White CDs is “offset” by gain to African Americans if applying for lotteries in majority-Black CDs, the City would have you believe.  ADC argues otherwise in its brief: “you can only compete fairly if you can do so wherever you choose.”

Evidence uncovered through a Freedom of Information request, shows that the citywide, separate-but-equal approach is an after-the-fact excuse made up by the City for the litigation. 

The new filings also make public powerful evidence relating to the charge that the City knows about and is influenced by those who wish to retain the racially segregated residential status quo.  An Appendix to the filings includes deposition testimony and emails from a wide range of current and former high-ranking officials, including Vicki Been, Alicia Glen, Maria Torres-Springer, Rafael Cestero, James Patchett, Steve Banks, and Leila Bozorg.  The evidence shows unequivocally that the City was aware of racially-charged motivations for “enormous community opposition to affordable housing projects across the board,” since opposition is “often couched as concerns about parking, infrastructure, density, public safety, but many of these are just code words for ‘I don’t want people in my neighborhood.’”

More from the filings:

• Even when the measuring techniques that the City uses to try to understate and dilute what the policy does are applied to the different “CD-typologies” (majority-White, majority-Black, etc.), the data (analyzed by nationally-renowned demographer, Professor Andrew Beveridge) STILL show that the policy perpetuates segregation and causes racially disparate impacts.
   
• Trying to cut down on the quality of evidence long-needed to justify the policy, the City declared its reliance on the new, weakened Trump disparate-rule even before it was officially published in September.  The new filings show that: (1) the City still loses even if the new rule were ever to go into effect; and (2) the Trump rule is invalid.
   
• As for the denial of an equal playing field for those applicants who are apparently eligible?  The City just wants to pretend that part of the case does not exist.  And the new papers show racially disparate impacts in who gets considered by a developer – the racial group being hurt depending, of course, on the CD-typology.
   
• The City has pretended that the policy is an “anti-displacement” strategy.  Now, the City has admitted that the policy is NOT intended to address imminent displacement, NOT intended to address displacement from one’s home, and NOT intended to address displacement from the city as a whole.
   
• With its original, broad excuse in tatters, the City argues that there is a specialized sub-type of displacement – non-imminent displacement from neighborhood – that the policy is intended to address.  But the City admits that it has no evidence to show either how many “insiders” who were threatened by non-imminent-displacement-from-neighborhood were helped by the policy, and that it has no evidence to tally the number of “outsiders” who were at risk of displacement were hurt by the policy.
   
• Another Trump-like move: Even though a thoroughly conservative Supreme Court in 2015 agreed that the federal Fair Housing Act covers perpetuation of segregation claims, the City won’t squarely acknowledge that the City Human Rights Law – the strongest civil rights law in the country – also covers perpetuation of segregation.  To the City, it’s still an “if.”
   
• It turns out that, in lotteries in majority-White CDs, the apparently eligible insiders who get 50 percent of the units are only 3.1 percent of all apparently eligible applicants.  To Deputy Mayor Been, though, a 50/50 split “accords with people’s inherent notions of fairness by providing an even split of unit shares.”  ADC’s court filing points out that, “Her position is akin to saying that pre-tax income distribution is fairly split 50/50 – even though the components of that ‘even’ split are the top 10 percent of income earners obtaining half of all pre-tax income on the one hand, and the remaining 90 percent of Americans getting their ‘half’ on the other.”

Craig Gurian, ADC’s executive director, said: “This should be easy.  The City could simply honor the choices that New Yorkers applying for affordable housing actually make.  But the City wants to substitute its own judgment for that of its residents.  It does what its own expert warns against: ‘we flatter ourselves and slide into paternalism when we act on the idea that we know best about where lower income people of color should live.’”

He continued: “All the plaintiffs in this case want is for there to be a level playing field, regardless of where in the city the applicant is coming from, and regardless of where they choose to apply for housing.  That is fundamental to racial justice, and we are confident that the Court will agree.”

For more background on the case, including charts, go here.