HUD critiques Monitor's deeply flawed disparate impact analysis; Monitor flips out
Sept. 29, 2014 — Back in June, despite obvious and fundamental flaws in the Monitor’s proposed methodology for conducting a disparate impact analysis, HUD signed off on that methodology (to the disappointment both of ADC and of our colleagues). Earlier this month, the Monitor issued a preliminary disparate impact report that confirmed numerous methods by which the Monitor sought to understate the number of towns and villages in Westchester characterized by zoning that has a disparate impact.
On Sept. 24, HUD’s deputy regional counsel wrote to Jim Johnson, the Monitor, explaining some of the ways that his analysis was deeply flawed. HUD noted, for example, that the Monitor tries to downplay the extent to which jurisdictions are segregated for African-Americans (and, accordingly, downplay the role of zoning in perpetuating that segregation) by combining the American-American population and the Latino population into a single group called “minority” (this, by the way, is the same trick that the county executive uses in highlighting a growth in minority population, ignoring the fact that the size of the African-American population in Westchester remained unchanged from 2000 to 2010).
HUD also rejects Mr. Johnson’s attempt to limit the meaning of “perpetuation of segregation” to the more narrow category of “perpetuation of clustering,” and points out his failure to do a proper comparison between the group in question (African-Americans or Latinos) and non-Latino whites. The full text of the HUD letter is below.
ADC thinks that the thrust of the HUD letter is well-founded and congratulates HUD on submitting it. We note, however, that HUD’s definition of Westchester County as the appropriate unit for regional analysis is too limited. While it is true that some lawsuits have been brought that rely on a county as the basis for comparison (and that perpetuation of segregation exists based on such a comparision in many more towns and villages than Mr. Johnson acknowledged), the proper regional comparision in this case includes New York City.
As ADC has previously pointed out to Mr. Johnson:
There is not an isolated, standalone “Westchester” housing market; there is a “New York City metropolitan area” housing market. As the Regional Plan Association has put it, “The metropolitan area’s housing problems can only be solved on a regional basis…Our region is a single, functional economic unit in which each jurisdiction complements, and influences the others.” Balanced Housing for a Smart Region (July 2006), p. 5. Cf. United States of America v The Town of Oyster Bay et al., 14-CV-2317 (Spatt, J.) (in case brought by Civil Rights Division and U.S. Attorney for the Eastern District of New York against town in Nassau County, Government seeks to take into account demographics of New York City).
The need for a metropolitan area perspective is hardly an obscure point. As discussed in ADC’s Cheating On Every Level report (available below), contrasting Arlington Heights with the Chicago metropolitan area was what was done more than 35 years ago in the landmark case of Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir. 1977). The reason Mr. Johnson doesn’t include it is obvious: when you include the actual regional need for affordable multi-family housing on the part of African-American and Latino households, the extent to which restrictive zoning in Westchester towns and villages perpetuates segregation becomes even more stark.
In addition, HUD should have mentioned a key point about perpetuation of segregation: a central way of testing whether zoning does perpetuate segregation is to look at the demographics of households that would be eligible for the affordable housing that could be created in the absence of the zoning barrier and to compare those demographics to the current demographics of the municipality. In a municipality that is currently less than 2.0 percent African-American — and Westchester has an inordinate number — the fact that the population of households that would be finanically eligible for such housing is distinctly more African-American is another way of saying that the failure to remove the barrier perpetuates segregation (see ADC’s June 5th letter, below).
Unfortunately, Mr. Johnson’s response to HUD’s letter was defensive and dismissive. Not liking the criticism, Mr. Johnson did not reply to HUD’s deputy regional counsel, but instead wrote to HUD’s deputy general counsel in Washington to say that there are “concerns” raised that the letter “does not reflect the considered judgment of the senior legal team of HUD” and that “it is doubtful that the Department of Justice…had a meaningful opportunity to review the Letter.” The Monitor then proceeds to try to strong-arm the Government into changing its posture by delaying the time by which municipalities must submit justifications for their zoning until he gets “a clear signal from the Federal Government.” The Monitor’s full letter to HUD is below.
Both the Monitor’s analysis, and his bluster upon being called on it, in part, by HUD is nothing so much as what civil rights lawyers have come to expect from their discrimination defense counterparts. HUD should refuse to be bullied and should affirm and expand its critique of the Monitor’s analysis. It must also acknowledge that Westchester has been violating its core (paragraph 7j) consent decree obligations to litigate against towns and villages that retain barriers to fair housing choice and direct the U.S. Attorney to start the process of holding Westchester in contempt for its ongoing violations.