NYC's outsider-restriction policy in affordable housing lotteries sharply curbed in landmark resolution of long-litigated fair housing case

Unofficial transcript* of Jan. 29, 2024 FAQNYC interview between Harry Siegel and ADC’s Craig Gurian

* Any errors in transcription are the responsibility of ADC.

Harry Siegel (26:26):

Craig Gurian of the Anti-Discrimination Center. Welcome. It was 2015 and the Bloomberg administration when you launched this suit about community preferences and their discriminatory effects on the city as a whole. It’s eight years and two mayoral administrations later and there’s a settlement which changes a big piece of New York City’s housing puzzle. It basically takes the set aside for community districts from what had been 50 percent to no more than 20 percent right away and 15 percent after five years. Do you want to just talk through a little bit of the history of how this started and why it took so long to get here? And then we’ll talk about the meaning of this settlement and what that weaves in terms of outstanding issues and this giant puzzle of making the city decent and available and affordable to everyone here and everyone coming. 

Craig Gurian (27:32):

Sure, Harry, and, first of all, thanks for having me on. It was actually the Bloomberg administration under which the so-called “community preference” or what we call “outsider restriction” policy went from 30 to 50 percent in 2002. It was already the de Blasio administration when the lawsuit got started. The kind of shocking and depressing thing about this is that, for a generation, everyone actually knew that this was an illegal discriminatory practice because, well, you can’t go a minute without hearing how diverse New York City is. That’s true as a whole. It’s not true at the local level. So, if what you do is give preference for half of the units at the community district level, which is a lot more segregated than the citywide pool, you’re going to be perpetuating racial segregation. There wasn’t a doubt about it intuitively and, after the analysis of millions of pieces of lottery data, that was borne out very thoroughly across every kind of racial-group comparison that there is.

Harry Siegel (28:53):

And I just want to ask about that. I know in their depositions that various city hall folks said politically, if you don’t have these set-asides, you can’t get local buy-in and you can’t get things built. And, of course, most of the affordable housing ended up getting built in certain corners of the city. But did that factor into your legal analysis? Is that a significant point? What’s that about and what does it mean going forward as the set aside is smaller?

Craig Gurian (29:23):

Well, it really was a false argument and maybe the most pathetic one of all. Look, the new cap is now the law. Opposing desperately needed affordable housing not only is contrary to the interest of a Council Member’s constituents and of the city as a whole, it’s also no more than a futile,  childish gesture. It’s like saying, “If my constituents have to compete on a more equal playing field with other New Yorkers who need the housing just as much, I’ll make sure nobody gets the housing.” So„ hopefully, most Council µembers won’t take that view. I don’t think that Speaker Adams is going to stand for that. 

And some apologists for the policy would have you believe that council members have no leadership obligation or ability to explain honestly to their constituents what’s going on.  And, of course they do have that obligation and ability. There are unfortunately many advocates who hold themselves out as progressives who have gotten fat off segregation and preserving it. If you say you’re a progressive, if you say you’re an organizer, if you say you want to support the community first, recognize that analysis of millions of lottery applications show that around 85 percent of unique households – that’s true for each racial group – apply outside of their community district at least 75 percent of the time. Then what you do is not back the status quo, but you organize to defeat council members who want to block needed affordable housing.

Don’t ally in an anti-housing, anti- civil rights struggle.

Harry Siegel (31:23):

Any interest in naming names with these progressives and explaining a bit, given that how many people apply outside of their community district and all the information in the lawsuit saying this hasn’t been a concern in most constituents. What’s led those named people to this perverse position as you see it?

Craig Gurian (31:45):

Well, I think I’ll decline the invitation today to name specific ones, but there really are a host of well foundation-funded, community-based organizations who hold themselves out as authentic – authentically local, authentically expressing the view of The Black Community or The Hispanic Community (as though there were one view). And it’s been backward looking. And Harry, the thing that just drives me absolutely insane is we’ve had these twin crises of affordability and segregation for decades and the answer of some supposed progressives – too many – has been, “Let’s keep doing things the same way.”

I mean, it’s as crazy as having an unsuccessful 30-year war on drugs and saying, “Let’s sign up for 30 more.” 

Harry Siegel (32:59):

What do you think accounts for that dependency and do you see the settlement, which again does not remove the community preference but takes this way down from 50 to 20 and then 15, shifting those dynamics by itself or does that require a separate political push as distinct from this legal binding settlement? 

Craig Gurian (33:23):

Well, I think it’s a combination. One of the things that hasn’t been noticed right off the bat is that, for three years starting in March, every place having to do with Housing Connect, the system for registering and applying for lotteries, will have a prominent notice that says “New York City is committed to the principle of inclusivity in all of its neighborhoods, including supporting New Yorkers to reside in neighborhoods of their choice, regardless of their neighborhood of origin and regardless of the neighborhood into which they want to move.”

The shorthand version of that is “all of our neighborhoods should belong to all of us.” In the New York City political context, which, fundamentally, runs on segregation, this is pretty revolutionary, and I’m hoping that some people – more people – will remember what civil rights is supposed to be about and realize that having one New York and dealing with problems on a citywide basis and not continuing to concentrate affordable housing only in a subset of neighborhoods of New York City will be a better way to go.

Harry Siegel (34:47):

You said the principle “all of our neighborhoods should belong to all us of,” and, obviously, this settlement doesn’t go all the way there if that’s a final principle since you still have a smaller set-aside for community-district residents. I know that in this settlement you pledge not to bring any additional suit. Do you see a possibility – would it be helpful – if someone else would do that or would you disagree and think we’ve reached a better new status quo that where maybe that level of set-aside is acceptable?

Craig Gurian (35:29):

Well, what I’m hoping is the Stipulation in order – and it is a permanent binding court order (people sometimes forget that; it’s not called a consent decree, but effectively that’s what it is)…

Harry Siegel (35:45):

And that means, right, that the city’s agreed to it, that a federal judge – Laura Swain – has signed on it; it’s not a suggestion, right? 

Craig Gurian (35:54):

Right. It has teeth, the city has to obey it, it can’t even try to do anything else. All of the justifications for the policy have been excluded as a reason to try to modify the order at any point in the future. We were very careful to have this drawn up so that the 20 percent and 15 percent thereafter are caps. The city can’t do more than that, and I don’t think this is going to happen tomorrow, but I do hope that, over time, a mayor – maybe even this one who already knows that any preference in wealthy areas is pernicious (he said that in his campaign) –  that, more generally, favoring insiders at all over outsiders the way the policy did, slows the integrative moves that New Yorkers want to make. 

Remember this case was always about honoring the choices that New Yorkers themselves make. And so when you do that, moves desired by outsiders when looking at Blacks and Whites are three times more desegregating than moves desired by insiders. But moves desired by outsiders when looking at Blacks and Hispanics are nine times more desegregating than moves desired by insiders.

Harry Siegel (37:25):

So, explain what you mean by these desired moves. Just so that’s clear to listeners, please.

Craig Gurian (37:30):

Yeah, I don’t know that there’s ever been a case with more detailed data and more detailed analysis of data. So, we not only found out who – not the names, the information about people applying, we were able to determine who was apparently eligible for each unit applied for. And these are millions of applications. So, matching up the household size and the household income with the household-income band, the narrow household-income band for any apartment. And, so ,we were able to determine who was apparently eligible. And we looked at all of those apparently eligible applications and did (and by the way, this analysis, which was done by the opposing expert of which were desegregating, which would be integrating, and which would have no effect), there was no dispute between the parties about it.

And it turns out, exactly as I say, that the outsider moves, the ones that apparently eligible applicants wanted to make had put in for, were much more desegregating and, unless one has the very odd view, that segregation as between Black and Hispanic New Yorkers isn’t important, that’s a piece of this puzzle. Historically, obviously, the most salient segregation was Whites keeping others out of White neighborhoods. And if we have a little time to talk about some other steps, obviously there are a lot of parts of White Brooklyn and White Queens and Whites Staten Island that have had very little of affordable housing development. But all of this is really by way of saying that I hope the city itself brings those percentages down, brings those caps down, or doesn’t fully take advantage of those caps. As far as other civil rights advocacy, I think a lot of time has been spent on it and I think that it’s probably more fruitful to think about other advocacy at this point.

Harry Siegel (40:03):

So, Craig, I want to ask you one and a half historical questions – making sure we then have time to talk about often White areas that have had very little, if any, affordable housing and to look forward in terms of what the settlement can mean. But on the history front, really two parts here. I’m just interested, I was thinking about Mario Cuomo and Corona and Forest Hills and that fight. I’m interested in what historical precedent is. You talk about how we’ve continually gone back to the hair of the dog in this attempt to fight segregation as the city’s remained very segregated and increasingly unaffordable. The historical precedents you’ve thought about the most have resonated while you’ve been working on this. And I’m also hoping two separate things. You could talk a bit about why the de Blasio administration made all of these efforts through various procedural court motions and otherwise to avoid any change or settlement and kick this can down the road, which they successfully did to at least the next administration.

Craig Gurian (41:21):

So, the historical precedent has not been terribly encouraging in a couple of ways. One example is what happened in 1969, the State Urban Development Corporation was given authority to override local zoning; that lasted two years, until 1971, and it was taken away. One thing that’s really happened over time, and the city will acknowledge the disproportionate building of affordable housing, especially deeply-affordable housing, in Black and Hispanic neighborhoods Essentiallym there have been active in the last 20 years or so, two different kinds of segregationist approaches. One is the traditional segregation approach, which is Whites keeping others out of their neighborhoods. And that’s something that’s been so effective that, for the most part, the city hasn’t even tried to push against that. So, it’s been more invisible. The other kind is what I describe as this sort of neo-segregationist attitude, which says “some kinds of segregation are good.”

So Black neighborhoods are supposed to stay Black and Hispanic neighborhoods are supposed to stay Hispanic. As though there was some time in 1957 that every Black person in New York City got together at a big meeting and said, “Well, let’s only live in Central Brooklyn, Harlem and Jamaica.” So those are both unfortunate pieces of things. 

And the good news is that there is existing law that can fight back against that at the city level and at the state level. The Stipulation and Order specifically mentions that both sides agree that the suburbs have not done their part, but that requires political will, which gets us to the de Blasio administration. (Actually – this may sound odd – I actually give the de Blasio administration more credit on affordable housing than many other people do. People forget very quickly, but before de Blasio there wasn’t, for example, mandatory inclusionary zoning, and there was a lot of pushing during the de Blasio administration to make sure that apartments were only matched to the income profile, the existing income profile of a neighborhood, to make sure that poor neighborhoods would stay poor. And I think properly they fought back on that. and all parts of the city should deeply affordable housing. 

Harry Siegel (44:33):

So, when you track to the income by zip code or neighborhood or whatever, the median income on the Upper East Side is much higher. And so if you’re making things that are only affordable in relation to that, then it’s not affordable to most of the city. And could you just explain for listeners what mandatory inclusionary housing means and why that was significant? 

Craig Gurian (44:56):

Well, what it means is that whenever there was a project that required a city approval, the rule came into place that you had to follow a formula where a percentage of the units have to be affordable. There are continuing discussions, obviously, about “affordable to whom?”

And one of the ways that I think that progressives – people who hold themselves out is progressives – have really lost the picture is thinking of it in narrow geographic terms.

What we need to do is to try to meet the need for deeply, deeply affordable housing throughout the city and throughout the region. It’s precisely the argument of suburban segregationists that say, “Why should we have affordable housing here? Those people don’t live there, build the affordable housing where they are.” And some of that is echoed with some nice progressive sounding fringe when it’s said in the city context.

Mayor de Blasio ultimately was able to see that the city’s deeply segregated. You’ll recall how when there were disputes about educational segregation, he was able to say that housing segregation underlines that; when he was bragging –  properly – about the Pre-K initiative, he was able to say, “We were able to change people’s minds about this. We were able” — to use one of his most favorite words – “to be transformative about that,” but he just wasn’t prepared, unfortunately, to get beyond the city as a mosaic (to use the Dinkins term) of racial turf zones that belong principally to one racial group…and we’ve got to do better.

Harry Siegel (47:09):

So, Craig, with the five minutes we have remaining, looking forward with this shift that’s going to open up, hopefully, new affordable housing in different parts of the city and make more of this affordable housing available to New Yorkers across the city. Do you want to talk a bit about the White neighborhoods that have had very little affordable housing to this point and the other parts of this bigger puzzle? I think a lot about how property gets taxed and what a great deal this is, for instance, for homeowners in Park Slope like the Mayor, like Mayor de Blasio rather; Eric Adams also is a Brooklyn property owner. Your view of the picture going forward and having achieved this settlement, hopefully some causes for optimism about what may change in the city’s development patterns with it.

Craig Gurian (48:10):

So again, I think the first thing is that if New Yorkers – actual New Yorkers –  were listened to more, we would make more headway on this idea of “we’re all in this together; New York belongs to all of us. Let’s be finished with this turf nonsense.” At the same time, by the way, of making sure that there are serious, concrete, anti-displacement measures in place so that if someone wants to remain in place, she or he can do so. But you’ve had a period of decades where affordable housing development has been focused on Black and Hispanic neighborhoods. You’ve had since the 1940s NYCHA development focused in Black and Hispanic neighborhoods. You can look at a map – NYCHA has a map with a dot for each NYCHA development – there are huge areas of White Brooklyn, White Queens, and White Staten Island that have zero dots. 

So how do you fix that? You don’t simply take your thumb off the scale like we’ve gotten the city largely to do with the resolution of this lawsuit. You deliberately and explicitly focus housing development on those parts of White Brooklyn, White Queens and White Staten Island where there’s been very little affordable housing development. Those data are available: where there’s far less NYCHA housing than the citywide average and where the Black population in the community district is less than 5 percent — of which there are quite a few community districts in New York City. And, so, it’d be great if that were Mayor-led. It’d be great if that were Council-led in accordance with Speaker Adams’ fair housing framework. But that’s certainly one thing that you want to do.

And let me just mention a couple of other things that I think would be quite helpful. One is working on beefing up the Mayor’s 24-in-24 plan that he’s just announced. That is, repurposing city properties. There are city properties, obviously, all over the city, including, most notably, schools. And we understand that it is possible – and there are examples in Manhattan – where you can have a mix of a school and residential development – that needs to be broadened. We need the political will to do that. That’s a golden opportunity. 

And finally, I think it would be very helpful to at least pilot something where the Mayor and the Comptroller – yes, the two of them together – cooperate to experiment with the city itself being the developer of a mixed-income condo development where the majority of condos are market rate and quickly return the city’s capital investment and throw off –  without having to deduct for private developer profit – cross-subsidy for other units that can be held by the city to be rented out as subsidized rentals, including deeply-subsidized rentals. And just on this point, Harry, just think about all of the condos that have gone up in New York in the last 10, 15 years where the number of affordable units are zero. I mean, that’s shameful. How is it that nobody thought this is a problem that needs fixing? So that’s another one that’s high on the list. 

Obviously, a personal goal is to make January sunny again, but that’s a different subject.

Harry Siegel (52:29):

Last one here. Those are political goals. You are an attorney, you’re the head of the Anti-Discrimination Center. Are there legal levers that you see at this point that might help move the city toward those goals, either by pushing politicians, by reaching a settlement or ruling, or otherwise – having just invested a decade, successfully, in this one cause – that you’re looking toward or thinking about?

Craig Gurian (53:05):

Yeah, I think that one thing that I would like to focus on is the role of the suburbs here because this is, segregation is a regional problem. and most of the surrounding suburbs, especially the ultra- White towns and villages, have done nothing either to help on affordable and therefore done nothing to help desegregate.

I said before there are existing legal tools, both under federal Law – the Fair Housing Act – under a state-law doctrine called Berenson, which has to do with every place taking on a fair share, and also under a doctrine called City of Monroe, which explicitly allows for the overruling of local zoning when there is a more important interest. So, actually, the city itself has the ability to challenge localities on these questions under existing law, and Governor Hochul does as well, even if the state legislature remains as retrograde as it’s been in terms of making any change. 

Harry Siegel (54:27): 

Craig, much more to discuss here. Thank you for taking the time and coming on FAQNYC. 

Craig Gurian (54:36):

Thanks for having me, Harry, and let’s hope we can move forward in a more actually progressive, more productive way.

FAQNY podcast episode available here or wherever you get your podcasts.