Court closes its eyes to failures to enforce historic Westchester housing desegregation consent decree

Westchester Case

July 8, 2016 — Anti-Discrimination Center (ADC) is deeply disappointed by the July 6th decision by Judge Cote to limit a critical court conference to the highly limited and inadequate relief sought by the Monitor. This conference represented a critical opportunity to get the historic housing desegregation consent decree back on track; that opportunity is now lost.

ADC had presented the Court with unrebutted evidence that:

  • There is extensive exclusionary zoning in Westchester that perpetuates segregation
     
  • Hundreds of housing units that have been “counted” under the consent decree should never have been counted
     
  • Westchester has, across-the-board and regardless-of-circumstance, refused to meet its obligations to sue towns and villages that continue to impose barriers to fair housing choice
     
  • The U.S. Attorney (representing HUD) and the HUD-nominated and court-appointed Monitor have persistently failed to enforce core elements of the decree
     

ADC had been supported by a group of 10 civil rights organizations across the country. The groups filed an amicus brief that, unfortunately, was rejected by the court.

As ADC has explained, Westchester’s obligation to act is not just triggered when a particular housing development is stymied.  The bigger problem – and a greater hindrance to the accomplishment of both the objective of building units and the core decree objective of overcoming barriers to fair housing choice (“affirmatively furthering fair housing”) – is when towns and villages have zoning so restrictive that developers don’t even try to build because they feel that doing so would be futile.

“The U.S. Attorney, HUD, and the Monitor have treated this case as the civil rights equivalent of too-big-to-jail.”

Craig Gurian, ADC’s executive director, said: “It simply cannot be that a town with moderate exclusion (where a developer might thinks there’s hope) can trigger Westchester’s obligation to act, but a town with total exclusion (where developers know not to build) is something that the County is free to ignore.”

More generally, he added: “The U.S. Attorney, HUD, and the Monitor have treated this case as the civil rights equivalent of too-big-to-jail. That the Court would indulge the fantasy that they have had any interest in full enforcement of the consent decree is particularly disturbing in light of the fact that the results after seven years of the consent decree being in effect are precisely what you would expect if the whole goal were to avoid upsetting the status quo of existing, ultra-white, low-density, residential neighborhoods.”

The Court’s assertion that ADC was raising “new” issues is especially ironic given the fact that the parties and the Monitor complained that ADC was raising again issues it had brought to the Court’s attention in 2011 and 2014.  Indeed, ADC did raise many of the issues of non-enforcement at those times.  Unfortunately, the Court was and remains unwilling to confront the fact that, even though the U.S. Attorney and the Monitor have been able to raise these same issues, neither has been willing to do so.

Gurian concluded ADC’s statement by saying: “There will undoubtedly be those who look back on this case and conclude that ‘Litigation doesn’t work.’  On the contrary, litigation generated a powerful consent decree.  The real problem is that aggressive, full-blown enforcement was simply never tried.”

Jerry Levy, General Counsel of the Enhanced Section 8 Outreach Program in Westchester, the only organization in Westchester dedicated to achieving pro-integrative housing mobility for those residents who have been traditionally excluded from neighborhoods of opoprtunity, said: “The consent decree was seen all across the country as a great civil rights victory, the rare circumstance where the force of law was being squarely put behind the objective of ending residential segregation. Over the last seven years, we have seen the promise of the decree squandered by the U.S. Attorney, HUD, and the Monitor, all of whom lacked the moral or political courage to enforce the core elements of the decree. With the Court’s decision, the promise of the decree has fully evaporated; the segregated status quo in Westchester will, sadly, remain intact until a challenge that does not depend on federal government enforcement is mounted; and a message has been sent to jurisdictions around the country that the federal government is still not serious about ending the scourge of residential segregation.”

Related documents:

ADC Letter to Judge Cote, May 11, 2016
Almost seven years after the entry of the consent decree, ADC documents the sorry history of Westchester's brazen and ongoing refusal to obey that court order, and the equally sorry history of the failure of the federal Government or the Court Monitor to enforce the core elements of the order.
Exhibit 8 - Fully-funded units by municipal demographic band, with reasons that units on most sites should not be "counted"
What ADC once dubbed "Cheating On Every Level." Hundreds of units that don't affirmatively further fair housing, including those that are isolated, in undesirable locations, on census blocks with high minority population, were already required to be built under an obligation independent of the consent decree, and/or that had zoning barriers already removed before the entry of the decree.
Expert Report on Exclusionary Zoning, Perpetuation of Segregation, and Disparate Impact, May 11, 2016
25 Westchester towns and villages have African-American population of less than 3.0 percent. Conservative analysis by leading national demographic expert shows that 19 of them have exclusionary zoning that perpetuates the segregation of African-Americans.
Expert Report, Exhibit 9 - Map of Principally Residential Zones: No multi-family as-of-right (in yellow) versus multi-family allowed as-of-right (in red)
Staggering imbalance across white Westchester. Ability to build multi-family as-of-right highly restricted.
Brief of 10 amici in support of full enforcement of consent decree
The brief of the Enhanced Section 8 Outreach Program (ESOP), Inclusive Communities Project, National Fair Housing Alliance, ERASE Racism, Disability Law Center, Miami Valley Fair Housing Center, Central Ohio Fair Housing Association, Fair Housing Center of the Greater Palm Beaches, Fair Housing Center of Central Indiana, and Fair Housing Council of Orange County
ADC's Reply Brief, June 27, 2016
ADC points out both the flaws in the arguments made by the U.S. Attorney, the Monitor, and Westchester, and highlights the issues that they did not even bother to address or contest.