Monitor's whitewash on disparate impact and perpetuation of segregation

Sept. 9, 2014 — Jim Johnson, the Monitor in the Westchester case, released a preliminary report late yesterday purporting to address the disparate impact of the zoning practices of Westchester’s towns and villages. The report, unfortunately, was a travesty and does great harm for the struggle for civil rights.

Prior to the Monitor’s analysis being performed, ADC and other civil rights groups pointed out to the Monitor that his proposed methodology was incompatible with the case law that has been developed under the Fair Housing Act. See, e.g., ADC letter to Jim Johnson, dated June 5th, letter from the Lawyers’ Committee for Civil Rights, the NAACP Legal Defense and Educational Fund, and the Poverty and Race Research Action Council, dated June 30th, and ADC’s “Cheating On Every Level” report, dated May 6th (pages 27-30).

The Monitor ignored these concerns and proceeded as planned. Notably, he continued his focus on “clustering,” a process that, if it were the only way to find perpetuation of segregation would give a pass to those jurisdictions that had a “smooth” pattern of no African-Americans anywhere. That focus is particularly disingenous. When the Huntington case found clustering, it was not in any way suggesting that clustering was the only way that segregation could be perpetuated but rather than another form of perpetuation. On the contrary, the court was well aware that another form of perpetuation — looking at whether the housing that was stymied would likely have had, if allowed to have been built, a “desegregative effect on Huntington Township as a whole in comparison to the region, given the tight housing market throughout the area” — was actionable. (The only reason that the regional issue did not have to be reached in the particular case at hand was that a violation was already found in connection with the clustering within the town.)

The Monitor also chose to ignore the fact that a disparate impact analysis should be conducted in respect to the relevant housing market - in this case, a market that includes New York City.

The Monitor’s treatment of Scarsdale, which like many Westchester municipalities is less than 2.0 percent African-American, is illustrative. Here is a town that where his consultant’s found that 0.26 percent of residential land is zoned for multi-family use. The undeveloped land that is zoned multi-family is 0 percent of the village’s total acreage — there is no such land. Scarsdale’s ability to meet future need for affordable housing is a total of zero units. In short, Scarsdale looks nothing like the housing market in the New York metropolitan area, and has barriers galore to the construction of affordable housing. The failure to remove those barriers perpetuates segregation, but the Monitor closed his eyes to this fact.

Why ignore the law and the facts? Because to follow the law and the facts would lead inescapably to the conclusion that most of the towns and villages to which the consent decree applies - surely more than 20 - perpetuate segregation with their zoning. That kind of finding was politically unpalatable to the Monitor.

This is similar to the road Mr. Johnson took last year, when he performed what was billed as an analysis of New York State requirements that each municipality have a balanced zoning plan that meets it share of regional need for affordable housing (the Berenson doctrine). There, he identified numerous jurisdictions that could not “rebut” their failure to meet one or both Berenson requirements that he nonetheless placed only in the “warrants improvement” category instead of in the “fails Berenson” category.

What should the Monitor have done?
 

1. Compare the racial and national origin composition of those living in the relevant housing market who would be eligible to reside in housing that would be facilitated by a removal of restrictions

with 

2. The existing racial and national origin demographics of the municipality in question (20 of which in Westchester have African-American populations of 2 percent or less).

Where the likely makeup of the new housing would differ materially from the existing municipal demographics, the failure to take action to facilitate the construction of such housing perpetuates segregation.

That would be true even if the same percentage of whites and African-Americans were being excluded by the cost barrier imposed by the status quo (because the percentage of African-Americans eligible for the housing would still be materially higher than the current African-American population of the Westchester municipalities in question).

It would still be true in respect to towns and villages where there isn’t an appreciable difference between the percentage of African-Americans in zones where multiple dwelling housing is permitted and those zones where it is not permitted. The question is the prospective impact of the removal of a cost barrier today. This question is one that the Monitor has insisted on ignoring.