"Victory in Baltimore Public Housing Desegregation Case,"by Philip Tegeler March/April 2005 issue of Poverty & Race
Federal District Judge William Garbis’ powerful January 6 decision in Thompson v. HUD is a reminder that the Department of Housing and Urban Development has a great deal of unfinished business — and unresolved liability — for its 40-year failure to strongly promote regional housing opportunities.
The Baltimore decision breaks no new legal ground — it relies heavily on a 1987 U.S. Court of Appeals decision in Boston, NAACP v. HUD, written by then Judge Stephen Breyer (now a U.S. Supreme Court Justice), which itself was a restatement of principles that had appeared in numerous other cases decided in the 20 years following passage of the Fair Housing Act. Similarly, the facts about Baltimore recited by the Court in Thompson — about HUD’s inability or unwillingness to pursue regional solutions — are little different from the facts of HUD’s role in any number of metropolitan areas.
So why have we not seen more decisions like Thompson? One reason was HUD’s decision, in the early 1990s, to settle all of the then-pending public housing desegregation cases rather than continuing to litigate. At the time, many HUD officials saw HUD’s historical complicity in segregation as an obvious fact, and HUD Secretary Henry Cisneros viewed the settlements as an opportunity to advance the Administration’s agenda to deconcentrate racially and economically segregated neighborhoods, rather than continuing litigation business as usual. A secondary potential benefit to HUD, of course, was avoidance — or postponement — of the kind of liability ruling issued in Thompson.
Thompson v. HUD was filed in 1994 on behalf of a class of African American public housing residents. Like several other public housing desegregation cases, the Thompson case was triggered by the demolition of a high-rise public housing development, with plans to locate replacement housing in neighborhoods with similar levels of segregation. As in many other similar cases, the plaintiffs, as part of the challenge to this policy of recreating the ghetto, included a larger historical claim that the City and Housing Authority, with HUD approval, acted in concert over many decades to create a deeply segregated system of public housing. Project siting decisions were largely driven by community opposition in white neighborhoods, in the context of a central city housing authority with limited jurisdiction over housing development outside its own city limits.
In 1996, a portion of the Thompson case was resolved in a Partial Consent Decree allowing the demolition and redevelopment of several public housing developments to proceed. While the Partial Consent Decree was being implemented (and litigated), the larger historical claims continued to be developed, with the case culminating in a month-long trial in December 2003.
The Court’s decision strongly emphasized the need for regional solutions to Baltimore’s increasing segregation and racial isolation patterns, and faulted HUD for failing to promote these solutions over several decades. At the same time, the Court refused to fault recent city officials, including former Baltimore Mayor Kurt Schmoke, finding that these officials had limited options to promote housing opportunities outside the city, and that they were primarily trying to improve low-income minority neighborhoods.
The Court’s liability finding against HUD is based on the duty to affirmatively further fair housing, set out in §3608 of the Fair Housing Act. Thus, the Court observed that “Title VIII imposes upon HUD an obligation to do something more than simply refrain from discriminating [emphasis in original],” and that “through regionalization, HUD had the practical power and leverage to accomplish desegregation through a course of action that Local Defendants could not implement on their own, given their own jurisdictional limitations.”
The decision places responsibility fully on HUD, the only party in the case that has the power to implement a future regional housing plan for Greater Baltimore. The suburban counties and the State of Maryland are not parties to the lawsuit, and an important question going forward will be the willingness of these non-parties to participate, and whether HUD can either successfully demand their participation or, alternatively, implement a remedy without their participation.
The Court’s assessment of HUD’s failure to act regionally will seem familiar to fair housing advocates everywhere. Indeed, HUD’s actions in Baltimore are characteristic of an agency that has consistently avoided challenging the prerogatives of exclusionary suburban jurisdictions, and has instead continued to funnel substantial low-income housing resources into central cities.
The Court took particular note of the concentration of the region’s public and assisted housing — and Section 8 vouchers — within the city of Baltimore, predominantly in African American neighborhoods. Not only has this concentration resulted from historical governmental decisions, but, as the Court observed, even in the 1990s the pattern continued in the HOPE VI program — where “[t]he 4,869 units that were demolished were, by-and-large, replaced by lower density housing in virtually the same sites” and “HUD itself recognized that one of the ‘lessons learned’ from its HOPE VI program is that housing vouchers are ‘not viable replacement housing options’ in tight housing markets like Baltimore’s.” The Court bolstered its ruling with 160 pages of “Supplemental Findings” that include examples of HUD’s complicity in decades of decisions that effectively restricted low-income minority families to segregated neighborhoods in the central city. In conclusion, the Court announced that
"It is high time that HUD live up to its statutory mandate to consider the effect of its policies on the racial and socio-economic composition of the surrounding area and thus consider regional approaches to promoting fair housing opportunities for African-American public housing residents in the Baltimore Region."
What’s Next: The Remedy Stage
The challenge now for HUD and the other parties in Baltimore will be to develop a comprehensive remedy in a case where the other major regional players (the suburban counties and the state) are not formal parties to the lawsuit. Such a remedy is attainable: There is much that HUD can do to encourage and require state and county participation, and there are also a range of remedial steps that can be taken that do not involve the participation of county government. We should also learn from some of the lessons of the desegregation settlements of the 1990s to develop a more effective set of remedies in the Baltimore region.
Judge Garbis has scheduled remedial hearings to begin on July 18th.. He also appointed a Housing Settlement Advisory Panel. The Panel has no formal authority, but has been authorized to engage in fact-finding as needed. Judge Garbis has urged the parties (HUD and the plaintiffs) to reach a negotiated settlement, and he referred settlement negotiations to a federal Magistrate Judge in Baltimore.
PRRAC has been participating in the public discussions and community engagement process in Baltimore, to help promote an effective regional remedy. Some of the materials we have developed — including a menu of remedial options, and a more detailed analysis of the court’s decision, are available on PRRAC’s website (www.prrac.org), under “current projects.”
Philip Tegeler is Executive Director of the Poverty & Race Research Action Council. He was previously involved as counsel for the plaintiffs in one of the prior publc housing cases mentioned in this article. firstname.lastname@example.org
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