Monitor proposes that Westchester walk away scot-free

Westchester Case

Feb. 1, 2021 — Nearly four years after having been appointed as Monitor of the historic Westchester housing desegregation consent decree that was entered as a result of ADC’s False Claims Act litigation against the County (for the County’s having falsely and fraudulently claimed that it had been “affirmatively furthering fair housing”), the Monitor, former federal judge Stephen C. Robinson, has filed a report with the Court asserting that he believes that “the County has substantially satisfied its obligations under the settlement.”

ADC promptly submitted a response to the Court, pointing to Westchester’s long failure to comply with core obligations of the consent decree and to the failure of the U.S. Attorney, HUD, and the former Monitor (now head of New York City’s Law Department) to enforce those obligations.

ADC focused on Westchester’s refusal to take on the exclusionary zoning that plagues its towns and villages, zoning that it was obliged to challenge pursuant to the decree. ADC also noted how the placement of units deviated materially from what was intended. The decree required that at least 84 percent of units be located in municipalities where the population was less than 3 percent African-American and less than 7 percent Latino. Viewed from the persepctive of 2010 Census data, Westchester admits that only about 50 percent of the “completed” units are located in such municipalities.

A July 2021 article in The Daily Beast by ADC’s executive director summarizes the persistent and pervasive failures of enforcement in this case.

According to ADC’s response, “Critical elements of the consent decree have been and/or continue to be ignored or interpreted in a way to pervert both the provisions themselves and the goals and purposes of the decree. The unvarnished truth is that the various institutional players have been unwilling to rock the boat; unwilling, that is, to insist that the structural change to ultra-White existing residential neighborhoods actually be carried out as contemplated by the decree.”

ADC cited the warning it had provided to the initial Monitor in the case only two weeks after the consent decree had been entered in 2009: “Appeasement only emboldens resistance,” and the further warning several months later (in ADC’s “Prescription for Failure” report) that the requirement of the consent decree were being undermined.

“These observations from 11 years ago required no special clairvoyance,” ADC wrote; “the risks of non-enforcement were entirely predictable, requiring only a willingness to refuse to avert one’s eyes from what was unfolding.”

In a statement issued today, ADC’s executive director, Craig Gurian said, “We recognize that much of the damage — several years of non-compliance and non-enforcement — had already occurred when the current Monitor assumed his position. What is particularly disappointing is that the current Monitor’s report paints a picture that fails to grapple with this history and that presents a wildly optimistic view of the intentions of the current County administration, an administration that remains unwilling to use the tools at its command to combat the ‘home rule’ and exclusionary zoning that it claims, contrary to its acknowledgments in the consent decree, are sacrosanct.”

Gurian added: “We are thrilled that the years of the Trump Administration’s war on fair housing are over — this consent decree was the former President’s ‘exhibit A’ in his campaign to traffic in fear and racial resentment — and are hopeful that the Biden Administration will follow through on its stated commitment to tackle residential segregation. Whether the ‘new HUD’ calls out the charade that the core of the decree has been obeyed and enforced is, of course, the first concrete test of just how serious it is.”

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Read the Monitor’s report and ADC’s response:

ADC Jan. 29, 2021 response to Monitor's Jan. 26, 2021 report
Unfortunately, the Monitor's Report, almost four years in the making, does not provide the Court with the necessary information and context to understand Westchester’s failure to meet either its unit-specific requirements or several other of its core obligations. The broad picture: (1) the distribution of completed units deviates substantially from the goal of the decree to have the overwhelming number located in the most-White jurisdictions; (2) Westchester has managed to place most units in a way to avoid development in existing ultra-White residential neighborhoods; (3) there has been very little easing of exclusionary zoning in existing ultra-White residential neighborhoods; (4) Westchester, in defiance of its obligations pursuant to paragraph 7(j) of the decree, has manifested and continues to manifest an across-the-board, regardless-of-circumstance opposition to commencing legal challenges against those of its municipalities that fail to act to remove exclusionary zoning; and (5) Westchester is not only still assuring municipalities that they will not be forced to make change, its “needs assessment” for affordable housing does not assign municipality-by-municipality targets – the latter representing a retrogression even from what Westchester was prepared to do in the 1990s.
Report of Stepen C. Robinson, Court Monitor, Jan. 26. 2021
The replacement Monitor's report to the Court, arguing that Westchester had substantially complied with its obligations under the consent decree. Note: the text of the report simply does not address several critical issues of Westchester non-compliance, nor the history of inadequate enforcement and oversight on behalf of those charged with doing so. See ADC's letters of Jan. 29, 2021 and Feb. 11, 2021.