In housing, separate is still unequal

This op-ed by Craig Gurian and Roger D. Maldonado originally appeared in the New York Daily News on July 19, 2020.


In housing, separate remains unequal

The consequences of the national disgrace of profound residential segregation — including disparities in education, policing, exposure to environmental toxins, and mortality from COVID-19 — have finally begun to be more widely appreciated. Yet politicians continue to pander to those who like the residential status quo: officials, advocates and others who now encode the segregation they prefer in the euphemistic language of maintaining a community’s “character” or a neighborhood’s “cultural identity.”

While everyone deplores old-style restrictive covenants (the once-common provisions in real-estate deeds that barred selling a property to Blacks or Jews), popular indignation has not yet focused on current-day methods of exclusion, even in localities that are ultra-blue.

In New York City, for example, Mayor de Blasio — who says our town is the “fairest big city in America” — refuses to change an affordable housing lottery system that effectively says to African-American New Yorkers, “If you want to move to affordable housing in white neighborhoods, we’ll make it harder for you. But if you stick with affordable housing in your own neighborhood, we’ll tip the scales in your favor.”

Confronted with data that prove the discriminatory effects of the policy, the city, shockingly, has resurrected the long-discredited doctrine of “separate but equal” as part of its defense.

We represent, together with private co-counsel, African-American clients who have challenged in federal court the city’s outsider-restriction policy, by which 50% of lottery units are allocated to those applicants who currently live in the community district where the housing is being built (New York has 59 “CDs”).

This 50% allocation is given no matter how few “insiders” apply. It is a tremendous leg up: In lotteries in majority-white CDs, the insiders getting 50% of units represent less than 4% of apparently eligible applicants.

Our demographics expert examined more than 7 million lottery applications from more than 700,000 unique households. As expected, in majority-CD typologies (that is, those where one racial or ethnic group constituted a majority of residents), it was the majority group that was helped most by the policy, to the detriment of one or more other racial or ethnic groups.

Moreover, an analysis of data generated by the defendant’s expert confirmed that the policy sharply restricts the scope of the integrating effect that lottery moves would otherwise have. It perpetuates segregation more than a citywide, equal-access lottery would.

The data show that the percentage of applications coming from the rent-burdened is equal between insider-applications and outsider-applications. And, of unique applicants, approximately 85% apply for lottery housing outside of their community district at least 75% of the time. This pattern is observed across all racial groups.

A city official has argued segregation is a “question of choice,” but segregation can never be “voluntary” when there are members of multiple racial and ethnic groups seeking the same housing. No one is volunteering to be excluded.

So why refuse to honor the actual choices that actual New Yorkers are making through their applications, and instead privilege neighborhood incumbents?

Look to the influence of those who wish to preserve the racial status quo. As a high-ranking city official acknowledged at his deposition: It remains politically sensitive to broach the idea of desegregating neighborhoods that are currently segregated by race or ethnicity; the prospect of residential racial change makes some New Yorkers uncomfortable; and that prospect spurs opposition to affordable housing development.

Instead of insisting on racial justice, the city claims that separate is equal. It wants you to indulge the fiction that harm to a racial group seeking housing in parts of the city where that group is not dominant is “balanced out” by the advantage given to that racial group when seeking housing in other parts of the city where it is dominant.

As absurd as the city’s legal position is, the policy sends a terrible message, encouraging a perverse notion of “community,” specifically the exclusionary proposition that “this neighborhood is ours, not yours.”