Expert reports show City's outsider-restriction policy in affordable housing lotteries causes racially disparate impacts and perpetuates segregation
October 29, 2019 (Updated February 7, 2019) – Discovery in the case has concluded, and the next step is for plaintiffs to file their motion for summary judgment on March 6, 2020. This means that plaintiffs will be making a motion to the federal District Court Judge who is presiding over the case to find as a matter of law that the City’s outsider-restriction policy, in violation of the federal Fair Housing Act and the New York City Human Rights Law, illegally causes racially disparate impacts and perpetuates segregation more than an equal-access lottery would. (For non-lawyers, “as a matter of law” means that, based on the uncontested facts, a reasonable jury could only find for the plaintiffs.)
Though the initial report of plaintiffs’ expert (from 2017) was kept secret at the behest of the City for two years, the Magistrate Judge overseeing discovery in the case ruled this past summer that the reports of plaintiffs’ expert could no longer be kept secret. As such, the powerful evidence that the City’s policy is discriminatory is in the public domain. [Scroll to the bottom of the page for links to the full text of the reports.]
Professor Andrew Beveridge, one of the leading demographers in the country, analyzed over 7 million lottery applications and the results of 168 different lotteries. He examined the impact of the outsider-restriction policy (priority for community district residents for 50 percent of units, even if those insiders represent only 5 or 10 percent of all the City residents who apply to a lottery) at three different stages of the lottery process: all entrants to the lottery; those entrants who were apparently eligible for units; and those entrants who were awarded units. The law is clear that denying equal opportunity at ANY stage is illegal.
Professor Beveridge found that outsider-restriction resulted in clear racial disparities at EVERY STAGE of the process in EVERY type of community district that had a majority of residents of one race or ethnicity. It was always the majority group that was helped most by the policy, and always one or more other groups that were hurt significantly. (Additional impacts were observed in plurality districts as well.)
In other words, New York City persists in 2020 with a policy that advantages Whites and disadvantages African-Americans when it comes to getting affordable housing in majority White community districts. Likewise, Latinos are among those hurt by the policy in majority African-American community districts, and African-Americans are among those hurt by the policy in majority Latino districts.
“All the African-American plaintiffs in this case want is an equal-access lottery where you are given the same chance regardless of what neighborhood you are coming from and regardless of what neighborhood you wish to move to,” the Anti-Discrimination Center (ADC), co-counsel for plaintiffs wrote in a statement, “but the City prefers to continue to tell African-Americans ‘we’ll boost your odds as long as you want to stay in your own neighborhoods; but we’ll hold you back if it’s your choice to move to a different part of the City.’”
On hearing that Vicki Been, the de Blasio administration’s deputy mayor for housing and economic development, has defended the policy by saying in part that “Segregation is a question of choice,” Craig Gurian, ADC’s executive director stated: “That view is profoundly ahistorical, contradicts every study of African-American residential preferences that has been performed, and makes no sense in a crowded City where any claim that a neighborhood is for ‘our group’ is necessarily a claim that the neighborhood is not for other groups.”
As for Been’s comment that “We shouldn’t be telling people you have to move to some other neighborhood,” Gurian noted: “It is ironic that the deputy mayor should say this because plaintiffs’ desire for an equal-access lottery would honor the choices that New Yorkers make in selecting where to apply for affordable housing. By contrast, it is the City’s outsider-restriction policy that refuses to respect those choices.”
“Even though Professor Beveridge has found that 87 percent of unique lottery applicants apply outside of their community districts at least three-quarters of the time, and even though in a typical lottery only 5 to 10 percent of applicants live in the community district (are insiders), the City insists on overriding the normal application process by engineering a huge bonus of 50 percent of units for insiders. In other words, it is the City that has decided that a New Yorker’s choice to move to a new neighborhood should be less valued than a New Yorker’s choice to stay in the same neighborhood.”
Since the City’s expert cannot rebut Professor Beveridge’s findings as to how outsider-restriction works in the different community district typologies, the City, remarkably, is also trying to argue that there is nothing wrong with boosting the chances of Whites in White majority districts (and hurting the chances of African-Americans in those districts) because each racial or ethnic group is “helped” in at least some part of the City.
ADC’s Gurian responded: “The idea that you are supposed to close your eyes to the effects on the community district level of a policy that is designed to work on the community district level (and instead look citywide) is absurd. Helping each racial or ethnic group in the areas where it is dominant does not represent citywide “balance,” it represents the de Blasio administration’s modern-day version of the separate-but-equal doctrine. That view was appalling a century ago when the Supreme Court outlawed white-block / black-block ordinances; it is appalling today.”
As for perpetuation of segregation, Professor Beveridge has demonstrated that, when the analyses of defendant’s expert (including a simulation) are disaggregated to reveal the differences between insiders and outsiders that defendant’s expert chose not to report, powerful and uncontradicted evidence that outsider moves on net are more integrative than insider moves on net emerges.
“I’m the first to say that Mayor de Blasio should be praised for introducing a variety of progressive policies during his tenure, but his stubborn retention of the outsider-restriction policy of his predecessors could not be more reactionary,” Gurian remarked.
Professor Beveridge’s analysis of lottery applicants also shows that it is false to suggest that insider applicants are any more rent-burdened than outsider applicants. The same is true when it comes to reasons that applicants gave for moving. “Rent too high,” for example, is actually cited by a slightly greater percentage of outsider applicants than insider applicants.
Plaintiffs are also represented by ADC’s Roger D. Maldonado, and by Mariann Meier Wang and Heather Gregorio of the firm Cuti Hecker Wang LLP.
The reports are available below. We suggest that you download the reports; they (and their exhibits) are more easily read in Acrobat.