High Stakes Gambling With the Rule of Law

Note: The following column appeared on the Op Ed page of the Westchester Journal News on Sunday, August 22, 2010.  The column was introduced by the Journal News in these words:

James Johnson, the federal monitor overseeing the settlement of the controversial fair housing case in Westchester, has said the “overarching goal” of the agreement is “building a more integrated Westchester.” That angle is seldom discussed by the public officials in the middle of the fray. Because of the court-approved agreement, however, the “d” word — for desegregation — is not going away. A consent decree requires Westchester to build 750 units of affordable housing in mostly white communities over the next seven years. The units must be affirmatively marketed to minorities, though all income-qualified applicants, regardless of race, are eligible. This commentary — coming one year after the settlement was brokered — was written by the head of the nonprofit group that initiated the legal claims against Westchester.

Westchester openly hostile toward housing order

Because Westchester County and municipal officials have been aggressively hiding the ball from their constituents, the public remains largely unaware of the scope of the wrongdoing that gave rise to the Anti-Discrimination Center’s lawsuit against the county, the terms of the consent decree that emerged from the litigation a year ago this month, the pervasiveness of the county’s noncompliance with that consent decree or how the county’s course of conduct presents a challenge to lawful federal authority of a type last seen during the height of Southern resistance to civil rights enforcement in the 1960s.

The intensification of non-compliance during the current county executive’s term means that — barring a betrayal of mission on the part of multiple federal agencies and a court-appointed monitor — we will see forceful steps taken in the next several weeks to vindicate both specific consent decree obligations and the broader principle that the rule of law cannot be flouted without serious consequences.

False claims

In order to ensure that contractors do not cheat U.S. taxpayers, federal law provides a powerful method — the False Claims Act — to bring those who have defrauded the government to justice. It does not matter whether the cheat is a hospital trying to overbill Medicare, a weapons manufacturer attempting to pawn off defective equipment on the Defense Department or a county refusing to analyze, identify and act to remedy barriers to fair housing choice: fraud is fraud.

In Westchester’s case, the fraud against U.S. taxpayers exceeded $50 million. In order to get the money, Westchester had claimed for years that it was “affirmatively furthering fair housing.” That meant that it was supposed to analyze, identify and act to overcome barriers to fair housing choice.

The Anti-Discrimination Center, a not-for-profit based in New York City that has focused on issues of housing discrimination and housing segregation, developed evidence that, as a matter of predetermined, across-the-board, regardless-of-circumstance policy, Westchester was not affirmatively furthering fair housing. The county would not look at or address issues of race or issues relating to municipal resistance to the construction of affordable housing with desegregation potential.

With this evidence in hand, ADC brought a False Claims Act lawsuit against Westchester as a “private attorney general” on behalf of the United States.

To understand the nakedness of Westchester’s wrongdoing, know that this was not a case that was settled at a time when all the issues were still being disputed. On the contrary, the U.S. District Court had already found that the evidence of Westchester’s wrongdoing was so clear-cut that the only reasonable conclusion a jury could have reached was that Westchester “utterly failed” to meet its obligation to affirmatively further fair housing, and that all of Westchester’s claims that it had complied were “false or fraudulent.”

Over many years, despite its affirmatively furthering obligations, Westchester had refused to identify or remedy the residential racial segregation that characterizes the county; had refused to identify or remedy municipal resistance to affordable housing development that has desegregation potential; had refused to identify or take advantage of any of the authority that the county has to challenge local zoning; and had refused to acknowledge the fact that the location of affordable housing determines whether that housing is likely to perpetuate or reduce segregation.

Current activities

The most striking aspect of the county’s current posture is that it is recycling each and all of these refusals. The factor now raising the stakes is that the county is doing so in the face of explicit requirements of the consent decree, a document that emerged from three months of negotiations in spring and summer 2009 between and among Westchester, ADC and the federal government (which had begun to play a “brokering” role only after the court made its key ruling in ADC’s favor and as a trial date in early May 2009 approached).

While many people like to pretend that residential patterns just fell from the sky as if by random, the historical reality is that those patterns developed purposefully during decades of racial exclusion marked by open discrimination practiced by a wide range of both governmental and private actors.

Patterns that are deeply etched do not magically vanish — and they certainly do not vanish in the face of continuing widespread hostility to change on the part of white municipalities and their residents.

In any event, whatever one might argue about current-day motivations, the demographic data are undeniable: Westchester continues to be characterized by housing patterns that are racially segregated. When a dozen municipalities have African-American populations of less than 1 percent, and when African-American households earning over $150,000 a year are even more segregated from their white counterparts than those earning less than $50,000 per year, it is irresponsible to claim otherwise.

And because the consent decree pledges the county to operate all its housing programs so as to end de facto residential segregation throughout Westchester, the see-no-evil, hear-no-evil stand of the county executive, Rob Astorino, becomes not simply a matter of ignoring reality or of pandering to those hoping that a segregated status quo can be maintained, but a matter of violating the heart of a federal court order.

All housing isn’t ‘fair’

Westchester also violates its duties under that order when it continues to pretend — contrary to the express direction of the court-appointed monitor — that the concepts of “fair housing” and “affordable housing” are one and the same. They are not. Affordable housing can be a tool for desegregation if placed in the many Westchester locations that are ultra-white. But when that housing is placed in locations that already have significant African-American or Latino populations, the housing tends only to perpetuate patterns of segregation.

Under the consent decree, Westchester was supposed to have a plan for locating the new housing on the census blocks with the lowest percentages of African-Americans and Latinos.

Nevertheless, despite the fact that there are more than 130,000 acres in Westchester comprised of census blocks that have populations that are less than 3 percent African-American and less than 7 percent Latino, and despite the presentation of three “Implementation Plans” over eight months, Westchester has taken no steps to identify the means by which to accomplish this goal.

It is no mystery why. Maximizing development with desegregation potential requires maximizing legal challenges to exclusionary zoning. Instead, county officials claim that municipal officials have all miraculously shifted from resistance to cooperation, even as several mayors are reported to have scheduled a “summit conference” to discuss means of resistance. County officials recite the “home rule” incantation and hope that they will not be called to account.

Back to reality. It does not matter how many times county and municipal officials peddle the line that New York is a “home rule” state. The fact remains that “home rule” is only the starting point for zoning. Step two assesses whether the local zoning conflicts with other federal or state law doctrines. If it does, then the local zoning must yield. The Fair Housing Act is clear: Exclusionary local zoning (like zoning that hinders affordable housing in segregated locations) is a violation of the act and cannot stand.

Decreed duties

The consent decree is clear. It forced Westchester to acknowledge the profound governmental interest in the development of affordable housing with desegregation potential; to acknowledge its authority to challenge localities that either fail to take on their fair share of affordable housing need (the Berenson doctrine) or whose selfish interest in maintaining the status quo is outweighed by the county’s more substantial public interest (the County of Monroe doctrine); and to acknowledge both the appropriateness and the mandatory nature of the county’s obligation to take recalcitrant municipalities to court.

If the county had any intention to comply with the consent decree, it would have already begun to acquire interests in appropriately sited land as a prelude to causing municipalities — either voluntarily or under compulsion — to make the necessary zoning changes. The county has no such intention. The county executive says outright that he will not sue municipalities. He has recently threatened that “we’re going to have a lot of problems” if the monitor and federal government insist on full compliance with the consent decree (as opposed to the wholesale renegotiation of an already negotiated order).

His lawless attitude must be taken seriously, especially because both the county’s latest required “Analysis of Impediments” to fair housing choice and its latest “Implementation Plan” still ignore all the basics: segregation, continuing municipal resistance, the importance of location and the need for concrete measures to distinguish between cooperative municipalities (who deserve assistance and incentives) and uncooperative municipalities (who need to understand that housing will be developed in spite of their resistance).

The “we can do what we want” stance taken by the county executive (and echoed by some county legislators and municipal officials) is altogether inconsistent with the American system of federal supremacy enshrined in the Constitution, defended by Union troops in the Civil War and, one might have hoped, finally confirmed by the defeat of segregationists spouting states-rights rhetoric in the 1960s. We know, however, that the dream of the “good old days” (that is, good old days for some) never dies. In that toxic spirit, Westchester has been saying “federal government be damned” as clearly as if it had printed a banner and unfurled it atop the County Office Building.

Indeed, the county executive has recently said that the consent decree must be interpreted in a way to give him the leeway to run the county in the manner he sees fit. Does he actually not understand that the whole point of having a federal consent decree is that Westchester’s wrongdoing was serious enough to cause limits to be placed on local autonomy in order to ensure that the wrong is remedied?

National significance

The challenge posed is of national significance. If the principles of federal supremacy and obedience to federal court orders were forfeited, the glue that holds our country together would come undone. Were that to happen, Westchester residents would find that some of the federal protections being chucked overboard by others might well be protections they themselves hold dear. The urge to ignore the law when it is convenient to do so rises powerfully from many quarters, and it cannot be countenanced anywhere at any time.

It is not impossible that the county executive’s gambit could pay off in the short term, but he is betting the future of Westchester residents — financially and in terms of reputation and the potential for even tighter federal control — on the following chain of events:

(1) Housing and Urban Development deciding — despite last year’s statement from Deputy Secretary Ron Sims that the agency would hold Westchester’s “feet to the fire” — that HUD’s rights under the consent decree are not worth enforcing;

(2) the Justice Department (including the Department’s Civil Rights Division) deciding that a defendant whose noncompliance effectively says “we like our de facto segregation just the way we have it now” merits a response of “no problem”; and

(3) the monitor concluding it is politically expedient to allow Westchester to present a facade to the world of surface compliance, somehow hoping that no one will notice either the lack of real change or a failure to fulfill the monitor’s duty to insist on 100 percent vindication of the consent decree, including the duty of the monitor to modify Westchester’s Implementation Plan as necessary.

Others can calculate the odds when it comes to the foregoing players, but on one point I am absolutely certain: When the Honorable Denise Cote — the judge overseeing this case who is fiercely committed to the rule of law — is ultimately presented (as she will be) with evidence of Westchester’s persistent and pervasive noncompliance, she will not be saying, “That federal court order I signed? I was only kidding. Go ahead and ignore it as you please.”

It is time for all concerned to recognize that this is no game.