All through last year’s presidential campaign, Donald Trump tried to scare people into voting for him by citing a 2009 federal court order designed to begin desegregating Westchester County, a wealthy suburb of New York City that is home to nearly a million people and that is filled with towns and villages that are overwhelmingly white.
In dog-whistle speeches, Trump again and again warned that white suburbs would be destroyed unless he was given a second term, and that Democrats “want to abolish our beautiful and successful suburbs” so “your home will go down in value and crime rates will rapidly rise” and “suburbia will no longer be as we know it.”
It all boiled down to a warning to white suburban housewives: Run for your lives.
But while Trump’s racist scaremongering was easy to identify and condemn, the decade-long lawlessness of the respectable in failing to enforce a Westchester, New York, court order and thus allow the county to remain grotesquely segregated has been more insidious and resilient.
This is not about the bad guys you expect to be bad guys: those who foment racial animosity. It is about the structural basis of segregation in deep-blue Westchester, and the loss of a golden opportunity to tackle it caused by the people and institutions who were charged with just that.
That court order was indeed unusually promising. As eight fair housing and civil rights organizations told the presiding judge in 2016, the order had “provided more opportunity to effect significant structural change in hyper-segregated residential housing patterns than any other legal proceeding in the last 25 years.”
But over the course of nearly 12 years, from 2009 to the present, the central provisions of the order were not enforced, and the fundamental goal of the order was not achieved. Despite massive evidence of these facts, the U.S. Department of Housing and Urban Development has joined Westchester in trying to close out the case.
On July 8th, HUD falsely reiterated to the court that Westchester had substantially complied with the fair housing decree. This falsehood was conveyed not by Trump’s Justice Department, well known for its assaults on minority rights, but by the U.S. Attorney’s office for the Southern District of New York, an office based in Manhattan that is as much a bastion of the Democratic, centrist establishment as there can be.
On July 11th, Denise Cote, the federal judge overseeing the case, accepted the claim of substantial compliance without engaging in even a cursory examination of major areas of non-compliance. The judge’s order references, but does not address, either the issues that I raised in response to a court monitor’s January report, or the rebuttal to HUD that I presented in February.
I have been monitoring developments in the case closely for a very long time for a very specific reason. I run the Anti-Discrimination Center (ADC), a small not-for-profit based in New York City that brought the case that led to the 2009 court order.
Westchester County is home to 25 towns and villages with a Black population of less than 3 percent. (In neighboring New York City, by contrast, the Black population is approximately 22 percent.)
Despite its racial segregation, Westchester County at the time the case was brought was routinely collecting millions of federal grant dollars every year that it was eligible for only because it kept promising that it would affirmatively further fair housing—in other words, that it would identify and take steps to overcome barriers that keep Blacks and Latinos out of ultra-white municipalities.
Judge Cote found as a matter of law in 2009 that Westchester had “utterly failed” to meet their fair housing obligations. She held that every certification that said or implied that it had done so was “false or fraudulent.”
In the wake of those devastating determinations, negotiations ensued to resolve the case with a “consent decree”—a binding court order.
An important element of how the consent decree was structured arose from how ADC had brought the claim. We filed under the federal False Claims Act, a statute that originated during the Civil War to protect the federal government against fraud. That meant that ADC was “standing in the shoes” of the federal government. It also meant that HUD, represented by the U.S. Attorney, had to sign off on the terms of any settlement of the case. Finally (and fatefully), it also meant that enforcement would not be in the hands of ADC, but in the hands of the federal government and a court monitor.
Because HUD refused to join us in pursuing the case even after Judge Cote’s decisive ruling, ADC, along with our indispensable co-counsel, now known as Relman Colfax, had to negotiate not only against Westchester, the civil rights defendant, but also against the federal government.
We achieved a number of unprecedented provisions, most notably the requirement, set forth in paragraph 7(j) of the consent decree, that Westchester County take on any towns and villages that refused to get rid of their exclusionary zoning practices.
Exclusionary zoning means land use policies that unreasonably restrict the development of affordable housing (particularly multi-family housing). Trump’s rhetoric notwithstanding, multi-family housing can and does exist harmoniously with single-family housing in many suburbs in the U.S.
Westchester County, before and during the litigation, vociferously denied any responsibility to ensure that its municipalities reduce their barriers to desegregation, including barriers to affordable housing development.
Because of this denialism, the consent decree that was ultimately negotiated, and that Judge C0te “so ordered,” required the county to accept explicitly that “it is appropriate for the County to take legal action to compel compliance if municipalities hinder or impede the County in its performance of [its] duties” to affirmatively advance fair housing and to fulfill the terms of the consent decree.
Westchester, required to spend over $50 million on developing affordable housing, was obliged by the decree to place that housing on the census blocks with the lowest concentrations of Black and Hispanic residents. At least 84 percent of the minimum 750 units of housing required had to be in ultra-white municipalities; that is, towns and villages that had Black population of less than 3 percent and Hispanic population of less than 7 percent.
When the decree was signed, it seemed possible that a new era might be dawning. The story made the front page of The New York Times and carried an unequivocal promise from a high-ranking HUD official: “Until now, we tended to lay dormant. This is historic, because we are going to hold people’s feet to the fire.”
On the other hand, I knew from history and from the hundreds of comments we were getting that Westchester, limousine-liberalism notwithstanding, was deeply committed to maintaining the segregated status quo. Not all of the comments bore the crudely racist stamp of the ones reproduced throughout this article, but the vast majority shared two characteristics: (1) not bothering to learn about the decree’s actual provisions (which included development of some units that could be bought by families earning up to about $85,000 a year): and (2) believing that change must not be allowed to occur under any circumstances.
Not even a month after the decree was entered in August 2009, I wrote to the HUD-nominated and court appointed monitor, Jim Johnson, to remind him that history teaches us that “[a]ppeasement only emboldens resistance.”
“There will undoubtedly be some who entertain the fantasy that a ‘patient’ and ‘compromising’ approach holds the promise of change without acrimony,” I wrote. “There is no surer path to failed implementation.”
And that has proved to be the path we’re on. Westchester’s feet were not held to the fire, and appeasement was the order of the day.
Time after time, Westchester came up with sites for affordable housing that were notable for not being part of existing ultra-white residential neighborhoods, let alone sites that required zoning changes.
As reported in Pro Publica, HUD, along with Johnson, asserted that insisting on sites that would actually meet the purpose of the consent decree was “risky.”
“I could have played a game of chicken, but I wasn’t going to do that,” Johnson, the monitor, said, because he felt “the settlement could fall apart entirely if they pushed too hard.”
The policy became to “go after what they called ‘low-hanging fruit,’ hoping to build good will with [County Executive Rob] Astorino and the county’s leadership.”
What were low-hanging fruit? Sites like the former moving company lot in Larchmont that abutted the railroad track, with I-95 just beyond. Or the one in Armonk perched on an island of land between two heavily trafficked roads. This one surrounded by commercial and other non-residential development – and it didn’t represent forward motion because it had already been greenlighted (separate from the consent decree) for the off-site affordable housing component of a market-rate development.
It’s the type of development that occurs, in other words, when an official and an agency are so frightened of white resistance that they preemptively surrender, not even making an effort to, as the decree demanded, swim against the tide.
ADC repeatedly warned of continuing non-compliance and non-enforcement in reports with titles such as Prescription for Failure and Cheating on Every Level. We focused most of all on Westchester’s failure to confront exclusionary zoning.
This fact was not a big secret. Astorino, in appearances on Fox News and otherwise, could not have been clearer that, regardless of circumstance, Westchester would not force its municipalities to change even though the county had pledged in writing to do just that.
"If a federal department, in this case HUD, can dictate to local officials what they will and won’t do, we’re careening toward a different country," Astorino warned, as part of his fear-based campaign including ads showing dark clouds overtaking a peaceful residential neighborhood as multi-family developments sprouted.
"The last thing we want is five years from now, for people to say, ‘What happened? Why is this neighborhood completely inside-out now?’”
Instead of aligning with ADC, HUD and Johnson joined with Westchester to keep ADC out of the enforcement aspect of the case and to urge the court to disregard the issues that ADC had raised. Following their advice, Judge Cote limited herself to dealing to issues that had no impact on zoning or where the units were being placed, ignoring the fact that the consent decree, due to the federal government and the monitor acquiescing to Westchester’s resistance, was completely off the rails.
Looking back, it cannot be denied that the promise of the consent decree was squandered. Instead of having at least 84 percent of units located in the most white towns and villages, as required by the decree, only about 50 percent of the units were built in those towns according to 2010 Census data.
And hundreds of these units should not have been counted at all. Some, for example, were already required to be built pursuant to an unrelated agreement by which Westchester had provided funding to a wildlife preserve in the town of Somers. Those overseeing consent decree enforcement let these units be doubled-counted in order to inflate artificially the progress that Westchester was making on its decree obligations.
Other developments were physically isolated from the communities they were supposed to be part of. One development that was technically in the city of Rye was cut off from the city by two major highways (I-95 and I-287). In order to get to the public street from the development, one would find oneself in Portchester (one of Westchester’s most Hispanic municipalities).
Critically, it is undisputed that there has been very little easing of exclusionary zoning in existing ultra-white residential neighborhoods in Westchester. Without such changes, developers of affordable housing will continue to be stymied and Westchester will remain segregated.
How could it be that, except for a supremely ill-located site in Chappaqua, the hamlet where Bill and Hillary Clinton live, that there was never an attempt by the federal government to make Westchester fulfill its obligation to take on municipalities that kept their exclusionary zoning in place?
(That site, by the way, abutted a ramp to a major highway which in turn cut the site off from the rest of the hamlet. It was a model example of the Westchester strategy of dumping housing where existing white homeowners would not have to look upon or interact with their new, racially diverse neighbors.)
One reason was that Johnson, the monitor in place until 2017, was committed to pretending that things were better than they were. Take his view of wealthy Scarsdale. It has less than 1 percent of residential land zoned for multi-family. Undeveloped land that is zoned multi-family? None. The monitor’s assessment of Scarsdale’s ability to future need for affordable housing? Zero units.
Despite all that, Monitor Johnson was unwilling to put Scarsdale into the exclusionary category for the purpose of a state-level requirement that each municipality plan for its share of regional housing need.
But no one—neither the court nor anyone else—could legitimately believe that exclusionary zoning had magically vanished in Westchester when the consent decree had been signed. In 2016, as part of one of our submissions, we presented the court with a report from one of the leading demographic experts in the country. The report demonstrated that at least 19 of the 25 towns and villages in Westchester had exclusionary zoning.
Take a look at this map that we submitted to the court in 2016. Yellow represents land zoned for residential use but that does not allow multi-family housing as of right. It overwhelms the areas colored red (where multi-family is permitted as of right), especially when one looks at the towns and villages bordered in blue (the municipalities with Black population less than 3 percent).
The fecklessness of those charged with enforcing the decree always came down to the same thing: demanding full compliance was seen as politically impractical. Saying that directly is not so easy in court, of course. Instead, the U.S. Attorney (HUD’s lawyer, you will remember) took a position in court so extreme that I have never heard of anything like it in more than 30 years of civil rights practice.
According to that office, it was not the court that had the ultimate responsibility to determine whether circumstances had arisen that required Westchester to act against municipalities that had failed to get rid of exclusionary zoning barriers, it was the subjective determination of Westchester that controlled. The civil rights defendant would be the judge of its own compliance.
Imagine if the Justice Department had adopted this view in civil rights cases brought in the South in the 1960s.
What about the responsibility of the federal government to make an independent determination of whether Westchester County’s position was credible? Not our job, said the lawyers representing the United States of America.
Mostly, the U.S. Attorney’s modus was to change the subject. Don’t think about non-compliance in some areas; we’ve enforced other provisions. But the court order, of course, didn’t have a language providing that some parts of the decree would be enforced and others could be ignored.
One of the most notable pieces of misdirection (picked up by the replacement monitor, former federal judge Stephen Robinson) is the highlighting of a “model zoning ordinance” that many Westchester towns came to adopt. That model is far less than what those who brandish it would like you to think.
The model ordinance requires that 10 percent of units in new developments be affordable units, but it does nothing to require towns to make more land available to development. Thus, even if every municipality in Westchester had adopted the model ordinance, the number of acres on which multiple-family housing was permitted to be built as-of-right would have been increased by… zero. Without multiple-family housing, affordable units don’t get built. Without affordable units getting built, segregation stays in place.
I do not mean to let Westchester off the hook in any respect. The county—the recalcitrant defendant—was and is a civil rights villain. Even today, with a county executive very different than the blustering Astorino, its efforts on exclusionary zoning are pitiful. As I pointed out to the court, its “action steps” are “more like a caricature of how to avoid action: establishing ‘a task force to facilitate municipal conversations to explore the development of a countywide housing compact.’”
If it sounds delusional to think that municipalities with a decades-long track record of resisting change will have come-to-Jesus moments through voluntary “conversations,” it is.
But it took more than Westchester to undermine the promise of the consent decree. Each and all of the institutional players responsible for enforcement or oversight could have changed the trajectory of the decree. If either of the monitors had grappled with the central issues of non-compliance, if HUD had insisted on the U.S. Attorney taking those issues seriously, if the U.S. Attorney on its own had spoken the truth, or if the court had demanded answers, then Westchester’s non-compliance on core issues would have had to be addressed. None broke ranks.
So, for example, Westchester got away with claiming that the concrete barriers posed by the exclusionary zoning of municipalities were “abstract” issues that did not trigger its obligation to litigate against those municipalities because a specific developer was not complaining about a specific project. (Never explained was why the decree would give Westchester license to ignore those municipalities whose zoning was so murderously restrictive that no developer would ever bother even to try to develop affordable housing there.)
It was critically important to have an “implementation plan” in place because we knew that ad hoc development would be an invitation to Westchester to undercut the obligations of the decree. So that Westchester was left with no escape route, the court order not only permitted the monitor to impose one if the county failed to come up with an adequate one of its own; the court order made it a mandatory duty of the monitor to do so.
What did Monitor Johnson do? Skip the legalese: he just blew it off. He felt he knew better than what was agreed to and ordered by the court, violated his obligation, and, despite ADC’s repeatedly pointing this out, was never held to account.
Johnson’s replacement, Stephen Robinson, did nothing that extreme, and, it should be said, inherited a very difficult situation. Westchester’s non-compliance had been tolerated for years by the time Robinson came into the picture in 2017.
But Robinson, too, was unprepared to give the court and the public an unvarnished account. To the limited extent that replacement Robinson treated exclusionary zoning in his report, he inexplicably relied on a report from his predecessor that had been widely condemned as failing miserably to assess properly the issues of how such zoning caused racially disparate impacts and perpetuated segregation.
And what of Judge Cote, a widely respected jurist in the Southern District of New York? As far as she was concerned, it was never time to address any concern beyond those the monitor and the county and federal government wanted brought up. Despite the fact that she explicitly recognized that the court had an “independent juridical interest” in seeing that its orders were obeyed, she didn’t act on that principle.
When Judge Cote was presented with the 2016 report of ADC’s expert demonstrating extensive exclusionary zoning, she took under advisement whether to consider it. Five years have passed. Still no decision. Nothing from the court addressing its substance, though even the U.S. Attorney’s office had acknowledged that the report “offers a useful view of the evidence that warrants consideration” and had stated that the court should accept it.
Westchester’s continuing insistence that there is no exclusionary zoning in the county and that it had and has no obligation to act? Never dealt with the substance of that, either. The distribution of units that is so at odds from what the decree called for? Never addressed. The cheating in counting units that were not proper to credit for consent decree purposes? Never grappled with that, either.
And what about HUD?
HUD has nationwide responsibility for fair housing enforcement. The current HUD secretary, Marcia Fudge, has said that if jurisdictions who are exclusionary “want to get into a fight about it, we’re ready to fight them about it.”
HUD’s posture on Westchester makes these empty words. With that posture, HUD has sent a clear message that, even in the circumstance where a court order increased the power of the federal government to its maximum, it was not prepared to fight resistance to desegregation.
Even if HUD had felt that it is now too late in the game to retrieve the promise of the decree, HUD could at least have said that it recognized that past enforcement was not up to the mark, that warnings about non-compliance and non-enforcement should have been taken more seriously, and that, in the future, HUD will act to enforce the Fair Housing Act and the rule of law.
But HUD did not do even that.
And the unwillingness to hold Westchester to key elements of the court order is not the only warning sign that fair housing enforcement in the Biden administration may not be nearly as robust as civil rights advocates have hoped.
In June, HUD took an ostensibly important step by restoring the requirement, effectively eliminated by the Trump administration, that governmental bodies that receive federal housing funds not only have to refrain from engaging in discrimination, but that they certify that they will take affirmative steps to overcome barriers to fair housing choice.
Buried in HUD’s comments on the rule, however, was an important and disturbing caveat. HUD wrote that it expected that it would be the “rare” occasion where it would investigate the accuracy of the funding recipient’s certification. Given the history of widespread non-compliance with the requirement before Trump, this is rather like announcing a bold new crackdown on wealthy tax cheats while simultaneously saying that you would generally take at face value the assurances of the cheaters that they had reformed.
These are very bad signs that, when it comes to housing desegregation, the Biden administration wants only to offer carrots to encourage “voluntarism” and not deploy sticks to ensure real, structural, mandated change.
This institutional failure of will should not, must not, be countenanced. Let’s hope that civil rights advocates and others of good will demand better.
