Hi everyone: We sent an article about NYC and segregation earlier today but inadvertently left out the link that provided attribution. It is an article that appeared in The Daily News and is not the position of ACL. Here is the link:
http://www.nydailynews.com/opinion/errol-louis-nyc-perpetuates-segregation-article-1.2291024
We apologize for any confusion.
In fact, we have worked on getting a better handle on the recent Supreme Court case from Texas that some municipalities may try to use as a roadblock to developing housing in low-income areas (in addition to their established tendencies to put up road blocks in affluent areas). Our legal expert points out that, if anything, the Supreme Court’s decision seemed to be skeptical of the claims of the plaintiffs and suggested there may be good reasons for constructing such housing in low income neighborhoods. The Supreme Court’s decision is likely not a barrier to developers and municipalities seeking to establish housing in low income areas.
Another article on the topic appears here, while a more formal legal analysis from our attorney follows.
CRAIN’S
Supreme Court ruling casts a shadow on city’s affordable-housing effort
Opponents of developing more affordable housing in low-income areas could now argue that a portion of the de Blasio administration’s use of subsidies to promote development in certain areas violates the Fair Housing Act.
By Joe Anuta
The city’s longstanding practice of building new affordable-housing projects in low-income and minority neighborhoods could be vulnerable to a legal challenge following a recent U.S. Supreme Court ruling.
On June 25, the court issued an opinion that changed the interpretation of the Fair Housing Act—a federal law born out of the civil-rights movement that prevents discriminating against people of a particular race, gender or national origin who are looking to rent or buy a home.
Under the decision, anyone looking to challenge an affordable-housing policy, for example, on the basis it violates the Fair Housing Act must prove only that the policy itself is discriminatory, rather than prove it intentionally violated the rights of the people covered under the act.
That could prove problematic for Mayor Bill de Blasio’s initiative to build 80,000 new units of affordable housing over a decade as part of his broader housing plan, according to a number of legal and housing experts. On Monday, the mayor heralded that plan by announcing that the city created or preserved a near-record number of affordable units.
Related
“The [de Blasio] administration is definitely going to have to think through the implications of all its housing policies,” said Kenneth Fisher, a former city councilman and land-use attorney at Cozen O’Connor. “They will need to be able to explain to the Department of Justice and [the Department of Housing and Urban Development] why their policies are furthering integration—and not segregation.”
New York City has long focused housing subsides—such as capital dollars or tax credits—on financing the construction of 100% affordable apartment buildings in lower-income neighborhoods in the Bronx or eastern Brooklyn, for example, which are also home to large minority populations. Land costs in those areas compared with Manhattan or more affluent places in Brooklyn are a fraction of the cost, which allows more money to be used to build a greater number of apartments.
But the ruling opens up this practice to possible litigation, since one might argue that by offering developers subsidies to build affordable housing in these particular areas, the administration is furthering economic and racial segregation, even though that was not the policy’s intent.
“The Supreme Court case could prove problematic for new construction in low-income areas,” said Michael Bodaken, executive director of the National Housing Trust, a D.C.-based nonprofit that preserves affordable housing in low-income and gentrifying areas. “There might be a justification to do that, and I don’t know what a court will say, but this is the question at hand for New York City.”
However, Mr. Bodaken noted the ruling was unlikely to immediately upend any of the mayor’s housing policies. For one, the decision would likely have no effect on the preservation of existing affordable housing, which is nearly two-thirds of the de Blasio plan.
“It would be ludicrous to suggest when we preserve affordable housing, that somehow we are violating the Fair Housing Act,” Mr. Bodadken said.
In addition, the ruling noted that cities will have an opportunity to argue their policies are not discriminatory, and could offer legitimate reasons for encouraging housing construction in low-income neighborhoods.
Justice Anthony Kennedy, in writing the majority opinion, made it clear several times over that he did not want to hamstring municipalities by opening them up to a flood of litigation over the Fair Housing Act. (In fact, the decision actually increases the burden of proof for showing that a particular policy is discriminatory.)
It remains to be seen whether a broad legal challenge to the way the city builds new affordable housing will in fact be filed, but in the wake of the court’s decision a group has already sued New York City, charging that a specific policy of giving preference to local residents to live in new affordable-housing buildings violates the Fair Housing Act.
LEGAL MEMO FOR ACLAIMH
To: ACLAIMH
From: Robert Schonfeld
Re: Texas Department of Housing and Community Affairs v. Inclusive Communities Project
Dated: July 6, 2015
This memorandum addresses the impact of the recent Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project on decisions related to the siting of housing projects.
At issue in the Supreme Court case is a policy of a Texas State agency regarding the allocation of tax credits for low income housing. The policy of the Texas State agency was to grant tax credits for such housing in black inner city areas as opposed to wealthier white suburban neighborhoods. The plaintiff, Inclusive Communities Project, brought this action maintaining that said policy caused continued segregation in housing patterns and had a disparate impact on minorities in where they could live in violation of the Federal Fair Housing Act.
In its decision issued in June, the Supreme Court held that an action alleging disparate impact (as opposed to intentional discrimination) could be maintained under the Fair Housing Act. The Court sent the matter back to the trial court for a trial on whether the policy of the Texas State agency violated the Fair Housing Act without directly stating whether the plaintiff would succeed on its disparate impact claim once the case was sent back to the trial court.
The Court, however, did make comments regarding whether policies such as that challenged in the Texas case constituted discriminatory disparate impact in violation of the Fair Housing Act.
On the one hand, the Court stated that clearly exclusionary policies that have a disparate impact on people protected by the Fair Housing Act violate the Fair Housing Act. This would include zoning schemes that place a significant portion of low income housing in minority communities and may include New York’s rent stabilization law that precludes corporations from renting apartments in rent stabilized buildings even though some people with disabilities, because of their disabilities, need the assistance of corporations to access and maintain housing.
On the other hand, the Court expressed some skepticism as to whether the Texas tax credit policy challenged in the action did have a prohibited discriminatory disparate impact. The Court specifically noted that “this case… may be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low income housing.” The Court stated that under disparate impact, housing authorities and private developers should be given “leeway to state and explain the valid interest served by their policies.” The Court held that housing authorities and private developers must be allowed to maintain their policies if they are necessary to achieve a valid interest.
The Court further stated that the Fair Housing Act “does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenated a city core or to promote new low-income housing in suburban communities.” The Court also noted that HUD itself recognized that the disparate impact theory “does not mandate that affordable housing be located in neighborhoods with any particular characteristic.”
Applying this to municipalities in this State, the Court decision neither condones nor exonerates Texas’ policy from liability under the Fair Housing Act. The case will be decided on the evidence before the Court, and if Texas loses the case, it does not mean that housing cannot be established in low income areas. However, Texas at least has a policy of allowing housing in some neighborhoods—a policy that blocks such housing in all neighborhoods would clearly violate, under disparate impact in the Supreme Court decision, and likely under a discriminatory intent theory, the Federal Fair Housing Act.