ADC statement on Trump fearmongering and WSJ op-ed

August 17, 2020 — As President Trump barrels on in his attempt to stir fear about what affirmatively furthering fair housing would do – ranting about how the “suburban housewife” wants to be made safe by his protecting her from an invasion of low-income housing (read: from minority residents) – he has repeatedly returned to the consent decree entered into by Westchester County.

The introduction to his new do-nothing rule on affirmatively furthering specifically critiques the Westchester case; he has said “I’ve watching this for years in Westchester”; and his joint op-ed with HUD Secretary Ben Carson in yesterday’s Wall Street Journal, has the Westchester consent decree as its Exhibit A.

On behalf of the Anti-Discrimination Center, who was standing in the shoes of the federal government under the False Claims Act, I brought the case against Westchester.*  The president, as is his custom, gets everything wrong.

  • His first sleight of hand is to write that Westchester “was never found to have discriminated against anyone.”  Interesting, but that’s not what Westchester was charged with.  Westchester was charged with having defrauded American taxpayers by falsely claiming that it was affirmatively furthering fair housing – taking steps, for example, to modify unnecessarily restrictive zoning – in order to get tens of millions of dollars of federal funds.
  • Westchester WAS found by a federal judge, as a matter of law, to have made claims to the federal government (more than 1,000 of them) that were “false or fraudulent.” (see p. 54).
  • Staring at the potential of more than $100 million in liability for having ripped off American citizens, Westchester entered into a consent decree (a binding court order).
  • Though it’s convenient for the president to have the Obama Administration as its foil, the reality is that ADC had to negotiate against both Westchester and HUD (represented by the U.S. Attorney for the Southern District) to put teeth into the order.
  • Not surprisingly, the Westchester county executive, a Republican on the Trump model who distributed campaign literature that engaged in crude, race-based fearmongering, resisted the requirements of the court order.  Even in the face of massive violations, those charged with enforcing the court order did not have the political will to do their duty.
  • The president’s description of government-forced “low-income, high-density” apartment building is not reality-based.  In fact:

Most of the housing required by the Westchester court order was for households earning $50,000 to $80,000 a year – like nurses and teachers, and families made up of two essential workers.

Mixed-income housing, with both subsidized and market-rate units, is a successful development model, with market-rate units helping to subsidize the below-market units, and with the most cross-subsidy thrown off in the wealthiest locations (Westchester did not do this because it was determined to maximize the cost per subsidized unit, isolate the subsidized housing, and not disturb existing residential neighborhoods.)

The problem to be solved is not “how to have maximum density” but rather how to overcome exclusionary zoning that unreasonably limits a huge percentage of residential development to minimum density.  Townhouse development, for example, is hardly the high-rise monstrosities the president seeks to conjure up.

  • Affirmatively furthering fair housing – in 1968 when enacted as part of the Fair Housing Act, and today, more than 50 years later, when the country remains staggeringly segregated – was intended to be remedial (just like the Westchester consent decree was intended to remedy the county’s bad acts).
  • Conservatives usually complain about “social engineering,” but segregated housing patterns did not just fall from the sky.  They were the result of the most pernicious social engineering possible: social engineering that intentionally excluded African Americans for decades and that fundamentally warped the housing market.  This is the kind of social engineering of which Mr. Trump approves.
  • As I wrote in a recent Bloomberg CityLab piece, “Affirmatively furthering fair housing is not about taking away or blaming. It is about opening up to all Americans those communities (suburban or urban) that feature good schools, safe streets, quality medical care, and well-tended parks and recreational facilities.”
  • “Rather than something to be feared, affirmatively furthering fair housing is something in which to take pride: an effort to redeem the basic American principles of fairness, opportunity, respect, and dignity in the housing context.”


* I later received invaluable assistance from Relman Colfax, who joined me in prosecuting the case.