Plaintiffs move for summary judgment against City in outsider-restriction case

March 9, 2020 -- The plaintiffs in the fair housing case challenging New York City's outsider-restriction policy in its affordable housing lotteries have moved for partial summary judgment.  They seek determinations from the Court that, as a matter of law: (a) the policy creates disparate impacts on the basis of race; (b) the policy perpetuates segregation (permits less integration than would be the case with an equal-access lottery system); and (c) the City’s various justifications fail.

Page through to see some key charts and tables:

Page 2 - Policy's disparate impact for entrants in lotteries in majority-White community districts.

Page 3 - Policy's disparate impacts on awards is confirmed by defendant's simulation.

Page 4 - Policy's perpetuation of segregation (restriction of integrative moves) is confirmed by defendant's data.

Page 5 - More than 85 percent of unique lottery applicants -- for every racial group -- apply for housing outside of their community district at least 75 percent of the time.

Page 6 - Rent-burden and severe rent-burden is equivalent between the small number of insiders who benefit from the policy and the large number of outsiders who are hurt by the policy.  Many more outsiders are rent-burdened and severely rent-burdened.

Page 7 - The City's separate-but-equal defense.

Full copies of the relevant papers that plaintiffs filed can be found at the bottom of the page.  We suggest that you download them as PDFs; they'll be easier to read, and the ones with exhibits have bookmarks to help you locate the materials you need to see.

Newer case materials are here. Newest case materials are here.

Illustration of disparate impact on entrants

From the memorandum of law: This chart of entrants in the majority-White CD typology illustrates "the fact that benefit for one demographic group (Whites) is being combined with other effects going on at the same time for other demographic groups."

"It is perhaps helpful here to underline a basic fact about defendant’s preference: without it, there would be no differentiation in the chart. With an equal-access lottery, the advantage-disadvantage bar for each set of insiders in a typology and each set of outsiders in a typology would lie at the 0.00 percent level (i.e., on the y-axis) because no artificial advantage or disadvantage was being conveyed as households applied (insiders and outsiders would not be differentiated)."

Illustrations of disparate impacts on those who are awarded units

Defendant's expert simulated the awards process.  The charts below disaggregate those data by community-district (CD) typology (majority White and majority Black). Whites are helped in the majority-White CD typology while other groups are hurt; Blacks are helped in the majority-Black CD typology while other groups are helped. See page 7 for discussion of the City's separate-but-equal defense.

Perpetuation of segregation

There are three ways that perpetuation of segregation (fewer integrative moves permitted) were looked at. From the brief: "One set deals with the actual awards that were made; a second set looks at the pattern that would emerge if all apparently eligible households made the moves that they had applied for; and the third explores the results of a simulation of the lottery process run by defendant’s expert...In each of the six racial pairings, the outsider moves are, on net, more integrative than are the insider moves, on net. This is true for actual awards; it is true for the exercise in examining what would happen if all apparently eligible applicants moved to the development to which they applied; and it is true for the simulation."

"[T]he undisputed data show that the net-integrative effect of nonbeneficiary moves was consistently substantially more than the net-integrative effect of CP-beneficiary moves (put the other way, the net-integrative effect of CP-beneficiary moves was substantially less than the net-integrative effect of non-beneficiary moves).This latter formulation is depicted in Chart 4, below."

Applicant participation outside of their existing community district

From Professor Beveridge's declaration: "The patterns...hold true regardless of race...The data show a tight pattern, regardless of demographic group, of an overwhelming percentage (ranging between 85.36 percent and 88.15 percent) applying outside of their CD of residence at least 75 percent of the time."

Rent burden

From Professor Beveridge's declaration: "Paying more than 30 percent of income is considered 'rent burdened.' Paying more than 50 percent of income on rent is considered “[severely] rent-burdened.” The table is easiest to read if one imagines that each application (in each of four categories, as split by CP and no CP) is arrayed from lowest rent-burden to highest rent-burden,and from lowest percentile to highest percentile. It is not, for example, until the 80th percentile of 'rent as percentage of income based on total rent' where no subsidy is claimed (the leftmost of the four pairings) that both CP beneficiary and non-beneficiary applicants begin to be [severely] rent-burdened (as shown in red)."

"For each of the four comparisons between CP beneficiary applications and non-beneficiary applications, the results show that, at each percentile, rent as a percentage of income is very similar. The percentile band at which applicants breach the percentage of income spent onrent to be designated as “rent burdened” – the first band highlighted in yellow – is identical as between CP beneficiary applications and non-beneficiary applications in the second through fourth comparisons, and virtually identical in the first. The percentile band at which applicants breach the percentage of income spent on rent to be “severely rent burdened”– the first band highlighted in red – is identical as between beneficiaries and non-beneficiaries in all four comparisons."

"The disconnect or lack of fit between an argument that the policy is designed to deal with displacement and/or the fear of displacement, on the one hand, and what the data shows, on the other, is revealed even more clearly when comparing the number of applications from rentburdened non-CP-beneficiaries with the number of applications from rent-burdened CP beneficiaries. For example, in the portion of the table that shows rent as a percentage of income based on contribution to rent for those applications where no subsidy is claimed, “rent-burdened” (more than 30 percent) occurs at the 70th percentile. This translates to more than 1.3 million applications that came from rent-burdened or severely rent-burdened applicants who are nonbeneficiaries; by contrast, fewer than 70,000 applications came from rent-burdened or severely rent-burdened applicants who are CP beneficiaries. A significant disparity is present whichever of the four comparisons are used, and regardless of whether one looks at those who are rent-burdened or severely rent-burdened."

City: separate is equal

From plaintiffs' statement of undisputed facts:

82. Defendant has taken the position that the disparate impacts identified in the foregoing are to be disregarded so long as localized disparities at the CD typology level balance out when aggregating results to a citywide level...

83. At his deposition, defendant’s expert was provided with an illustration demonstrating the operation of a preference in a hypothetical city where each of four boroughs was populated only by members of a single demographic group (that is Whites in one borough, Blacks in a second, etc.). The priority went to those who already lived in the borough where housing was being developed. In the hypothetical, there were three lotteries per borough, and, in each lottery, there were the same number of White, Black, Hispanic, and Asian applicants and the same number of White, Black, Hispanic, and Asian apparently eligible applicants. Apparently eligible applicants reached by the developers were equally likely regardless of race to followthrough and be awarded a unit. Without the policy, 25 percent of the apparently eligible applicants reviewed by the developer in each lottery in each borough would be members of each of the four demographic groups, and 25 percent of the awards in each lottery and in each borough would goto members of each of the four demographic groups. With the policy, in each lottery in each borough, it was only members of the dominant group that were reviewed by the developer, and the dominant group in each borough in each lottery was the group that received 100 percent of awards in the corresponding borough (i.e. Whites got all the awards in the White borough and Blacks got all the awards in the Black borough, etc.)...

84. Because the results described in the preceding paragraph, when aggregated to the citywide level, showed that the same percentage of each demographic group was being reviewed by the developer and that the same percentage of each demographic group got awards of units, Dr. Siskin’s conclusion was that, “this would not have a disparate impact in terms of allocation of units”; “under my understanding of disparate impact, it would not have a disparate impact.”