"Community preference" case now in hands of federal judge
March 8, 2021 — Together with its co-counsel, Cuti Hecker Wang LLP, the Anti-Discrimination Center (ADC) today filed the final briefing on behalf of the plaintiffs who have challenged New York City’s “community preference” policy in affordable housing lotteries. The evidence, plaintiffs believe, shows as a matter of law that the policy creates racially disparate impacts and perpetuates segregation. It also shows, plaintiffs say, that the City’s justifications for its discriminatory policy are insufficient as a matter of law. All of the materials submitted by both sides will now be reviewed by U.S. District Judge Laura Taylor Swain.
“Over one-million New York households have now applied to affordable housing lotteries,” said Craig Gurian, ADC’s executive director and lead counsel in the case. “And, because of the policy, those households are persistently denied a level playing field.”
One striking thing about the case is that, even though the policy is carried out each time on the community district (CD) level, the City want the Court to ignore that and look at disparate impacts citywide. In the City’s view, in other words, the harm to Black New Yorkers being hurt when applying for housing located in majority-White CDs can be “offset” if Black New Yorkers get a boost when applying for housijng located in majority-Black CDs.
ADC’s Gurian again: “The City may not like being called out on it, but the essence of its position is separate-but-equal.” He continued, “We don’t think it’s up to the City to tell New Yorkers where they should want to be living. We think there should be an equal-access lottery that honors the choices that New Yorkers are actually seeking to exercise.”
Some elements of the City’s position can charitably be descrdibed as surreal. For example, the City has denied having knowledge or information sufficient to admit that, in the period of 1945-1990, fear of, and resistance to, neighborhood residential racial chang was a common phenomenon in New York City. As one of plaintiffs’ experts has responded, “anyone who has explored this period would know that fear of, and resistance to, neighborhood residential racial change was indeed a common phenomenon in New York City.”
The City also has an interesting view of fairness. As we point out in the brief:
First, we underline not only the importance of … recognizing that evidence put forward in contexts outside of intentional discrimination can also be probative of intentional discrimination. For example, plaintiffs referenced Deputy Mayor Been’s striking idea of what constitutes “inherent notions of fairness” in the context of a discussion of less discriminatory alternatives. Her idea that a 50/50 split of units accorded with inherent notions of fairness even though the insider 50 percent was going to only 3.1 percent of the apparently eligible applicants can reasonably be viewed by a jury as anattempt to mislead – with or without the added fact that, as Professor Krysan observes, “[A] 50/50 split represents an illusory balance: the long history of the scale being overloaded on the side of segregation and lack of choice can only be remedied with a counterbalance: a heavy emphasis on the side of the scale that is pro-integration, pro-mobility, and pro- residential choice.
New York City is one of the most segregated major cities in the U.S. The work to undo that segregation will be long and hard. But one of the easiest things to do is for the City to end its own discriminatory policies. If you support the idea that an equal-access lottery should replace the discriminatory “community preference” policy that the City has kept in place, please let us know.
And if you’d like to contact us for any reason, please either email us at center at antibiaslaw.com or call us at 212-537-5824.