Judge signs death certificate for housing desegregation consent decree

Westchester Case

August 2, 2021 — At the joint request of the U.S. Attorney (on behalf of HUD) and civil rights defendant Westchester County, federal District Court Judge Denise Cote has terminated the housing desegregation consent decree entered nearly 12 years ago. Commenting on the development, Craig Gurian, ADC’s executive director, said, “Judge Cote has now signed the formal death certificate for what was intended to be a transformative consent decree. The promise of that decree, the outgrowth of landmark litigation, was killed by the very people who were sworn to enforce and oversee it. This was a golden opportunity to begin to make structural change in highly segregated Westchester County, and, despite initial promises to the contrary, there simply wasn’t the political will to hold Westchester to its core obligations. There are many disappointments here, but perhaps the greatest, from a national perspective, is that the Biden Administration’s Department of Housing and Urban Development has continued the see-no-evil, hear-no-evil perspective of predecessor administrations.”

A recent article in The Daily Beast by ADC’s executive director summarizes the persistent and pervasive failures of enforcement in this case.

As noted in the article:

“The fecklessness of those charged with enforcing the decree always came down to the same thing: demanding full compliance was seen as politically impractical.”

“It took more than Westchester to undermine the promise of the consent decree. Each and all of the institutional players responsible for enforcement or oversight could have changed the trajectory of the decree. If either of the monitors had grappled with the central issues of non-compliance, if HUD had insisted on the U.S. Attorney taking those issues seriously, if the U.S. Attorney on its own had spoken the truth, or if the court had demanded answers, then Westchester’s non-compliance on core issues would have had to be addressed. None broke ranks.”

“And what about HUD? HUD has nationwide responsibility for fair housing enforcement. The current HUD secretary, Marcia Fudge, has said that if jurisdictions who are exclusionary “want to get into a fight about it, we’re ready to fight them about it.” HUD’s posture on Westchester makes these empty words. With that posture, HUD has sent a clear message that, even in the circumstance where a court order increased the power of the federal government to its maximum, it was not prepared to fight resistance to desegregation.

Over the years, ADC made multiple efforts to get the Court to exercise its own interest (it’s “juridical” interest) in seeing that the consent decree was enforced, including the following:

(1) Our 2011 motions to intervene and to compel compliance. The Court denied the motion to intervene and just ignored the issues raised in the motion to compel compliance.

(2) Our 2014 Cheating On Every Level report, which generated a court conference. Judge Cote expressed her continued confidence in the U.S. Attorney and the Monitor, and stated that she saw her role as ruling on specific issues brought to her by the parties or the Monitor (the point, of course, was that neither the U.S. Attorney (on behalf of HUD), nor the Monitor, were bringing to the Court critical issues of non-compliance.

(3) Our May 2016 submissions and the proposed amicus brief of a group of civil rights organizations in support of our submissions. Judge Cote denied all applications, but reserved decision as to whether to accept the expert report of ADC’s demographic expert showing extensive exclusionary zoning. [The Court, in the ensuing five years, never issued a ruling.]

Available below are all of the documents relevant to this last chapter, in reverse chronological order (start on the next page for the Monitor’s report and ADC’s response).

Follow ADC on Twitter: @antibiaslaw






Read the relevant documents (Monitor’s report and ADC response on next page):

Judge Cote's Jul. 30, 2021 Order terminating consent decree
The order of Jul. 30, 2021 by which the Court, at the instance of the U.S. Attorney and Westchester, terminates the consent decree (no evaluation of Westchester compliance or non-compliance, and no evaluation of Government enforcement or failure to enforce, given).
Government's Jul. 23, 2021 letter seeking termination of consent decree
Government files letter on behalf of both itself and Westchester asking Judge Cote to terminate the consent decree.
Judge Cote's Jul. 11, 2021 Order accepting monitor's assessment
Without any indication of having considered objections raised in response to the Monitor's report or to the submissions from the Government or Westchester, Judge Cote accepts the Monitor's assessment that Westchester has substantially complied with its decree obligations, and requests a joint submission from the parties by Jul. 26, 2021 as to whether any further steps are needed.
Superseding U.S. Attorney letter, July 8, 2021
This letter to the Court from the U.S. Attorney on behalf of HUD is nearly identical to the letter that the U.S. Attorney filed on Feb. 10, 2021, now asserting that Westchester has met its unit-development obligations. It does not respond to the points made in ADC's reply letter of Feb. 11, 2021. This letter cannot be understood without the context provided in ADC's letters of Jan. 29, 2021 and Feb. 11, 2021.
Judge Cote's Jul. 1, 2021 Order seeking response from Government and Monitor
Neither the Monitor nor the Government having responded to Westchester's Jun. 1, 2021 submission, Court orders any responses to be submitted by Jul. 8, 2021
Westchester's Jun. 1, 2021 letter claiming compliance with unit-development requirements
Westchester reports to the Court that has surpassed the 750-units mark. Note: all calculations used by Westchester, the U.S. Attorney, HUD, and the Monitors continue to use 2000 Census data and to ignore 2010 Census data.
Judge Cote's May 3, 2021 Order extending deadline
At request of parties, Court extends deadline for update on status of units until June 30, 2021
Judge Cote's Feb. 11, 2021 Order re scheduling and consideration of arguments
Presiding judge orders update from parties by April 30, 2021 and REPRESENTS THAT, THEREAFTER, THE COURT "WILL CONSIDER THE MONITOR'S ASSESSMENTS AND THE RESPONSIVE SUBMISSIONS FURTHER."
ADC Feb. 11, 2021 reply to Government and Westchester responses
From the reply: The Government, the defendant, and the Monitor will not speak to the critical ways in which the prefatory language of the decree informs its purpose and substantive provisions; will not speak to the lack of a decree-compliant Implementation Plan; and will not speak to how the defendant’s undertaking pursuant to Consent Decree ¶ 31(a) has been ignored – all because to engage on those issues would make clear that the process of enforcement and oversight derailed early on and never recovered. One would be hard-pressed to deny the overarching purpose of the consent decree to overcome exclusionary zoning in a way that opened the door to the racial desegregation of the County. But there is no dispute either that Westchester managed to place most units in a way to avoid development in existing ultra-White residential neighborhoods, or that there has been very little easing of exclusionary zoning in existing ultra-White residential neighborhoods. Neither the Government nor the Monitors have ever been required to explain how it is they allowed this to happen.
U.S. Attorney Letter, Feb. 10, 2021
Letter to the Court from the U.S. Attorney on behalf of HUD, urging the Court to accept the view that Westchester has substantially complied with its obligations and disputing ADC's critique. Notes that Westchester is not quite at the minimum 750-units completed mark and promises update to Court by the end of April.

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