# Appendix — New York City Housing Authority v. Davis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1669%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 536 U.S. 904 ## Text TABLE OF CONTENTS TO APPENDIX PAGE Order of the United States Court of Appeals for the Second Circuit, Gated Janua;xry 3, ZO0Z 222.2622 ccccccccccccese. la Order of the United States District Court for the Southern District of New York, dated June 20, 2000, supplementing the record.................-.-. Sla Summary Order of the United States Court of Appeals for the Second Circuit, dated February 23, 2000, remanding for supplementation of the record..............-. 62a Order of the United States District Court for the Southern District of New York, dated August 11, 1989, making the preliminary injunction permanent............ 67a Order of the United States Court of Appeals for the Second Circuit, dated January 22, 1999, vacating the District Court’s decisions and remanding for more specific factual findings and application of the proper legal standard .................. 110a Order of the United States District Court for the Southern District of New York, dated November 13, 1997, denying NYCHA’s motion for reconsideration and reargument and modifying the preliminary injunction to apply to developments with populations more than 30% white ...........ccccsccccccees 123a AM Da tts nt li PAGE Order of the United States District Court for the Southern District of New York, dated November 18, 1997, amending the District Court’s November 13, 1997 order............ 135a Order of the United States District Court for the Southern District/of New York, dated July 17, 1997, preliminarily enjoining the Order of the United States District Court for the Southern District of New York, dated December 30, 1992, approving Bee e rT Pry rer Te Porro erry ETe Te 174a EPOGED GOROE FOGY 0 BGS sin od nda ta nededncenceddas 185a Exhibit A: List of Affected Developments... 229a Exhibit B: NYCHA’s Tenant Selection ag | Tr rrprrr rer erores 230a Equal Protection Clause of the Fourteenth PU Ka Gece cys secs hscsnsnaucsscascaass 265a 42 U.S.C. § 1437d(c)(4)(A)(iv) (1994) ........... 266a 42 U.S.C. § 1437n(b)(2) (1994)..... settee eeeeeees 266a Balanced Budget Downpayment Act, I, Pub. L. No. 104-99, § 402(d)(1), Se Ss is De ioc acisnccaveensicase 267a Quality Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, §§ 502(a)(3), 502(a)(5)(C), and 502(a){5)(D), 112 Stat. Res BE EA il aka ve nbekndeceiacvesss 267a 42 U.S.C. § 1437(a)(1)(C) (Supp. 1999).......... 269a ii PAGE 42 U.S.C. § 1437a(a)(2)(D) (Supp. 1999)......... 269a 42 U.S.C. §§ 1437n(a)(1), 1437n(a)(3)(A), | and 1437n(a)(3)(B)(i) (Supp. 1999).......... 270a 42 U.S.C. § 3604(a) (2001) .........0... cece eres 271a 24 C.F.R. § 913.104(a) (1992) ........c cece eee. 272a 24 C.F.R. § 960.211(a)(1) (1992) 0.02... eeeeee. 272a 24 C.F.R. § 960.205(a) (2001) .............000ce 272a 24 C.F.R. § 960.206(b)(2) (2001) ..... 0.2.2... 00 8. 272a 59 Fed. Reg. 36616, 36618-19 (July 18, 1994)... 274a la UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 1999 (Argued: February 16, 2000 Final briefs submitted: July 28, 2000 Decided: January 3, 2002) Docket No. 99-6238 PAULINE DAVIS, CYNTHIA WILLIAMS, CORNELIA SIM- MONS, and KIM RIVERA, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant. Before: WALKER, Chief Judge, KEARSE and POOLER, Circuit Judges. a Appeal from an order of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, permanently enjoining defendant Housing Authority from altering operations under a consent decree, entered to remedy racial discrimination in accep- tance of tenants for public housing, by implementing a working-family preference at 20 housing projects. Affirmed in part, reversed in part. Chief Judge Walker dissents, in a separate opinion. SCOTT A. ROSENBERG, New York, New York (Helaine Barnett, The Legal Aid Society, Civil Division, Civil Appeals & Law Reform Unit, New York, New York, on the brief), for Plaintiffs-Appellees. HENRY SCHOENFELD, New York, New York (Jeffrey Schanback, General Counsel, Nancy M. Harnett, Stephen W. Good- man, Steven J. Rappaport, on the brief), for Defendant-Appellant. KEARSE, Circuit Judge: This case returns to us following remands in 1999 and 2000 to the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, for fur- ther findings, clarification, and supplementation of the record in connection with its issuance of injunctions pro- hibiting defendant New York City Housing Authority (“NYCHA” or the “Authority”) from implementing pro- posed changes in its method of complying with a 1992 consent decree (the “Consent Decree” or “Decree”) set- a » ene a 3a tling actions alleging that, in accepting tenants for pub- lic housing in New York City, the Authority had dis- criminated against Latinos and African-Americans on the basis of race. The district court found that NYCHA’s proposed introduction of a working-family preference into the tenant acceptance procedures would cause a sig- nificant perpetuation of past segregation at 20 NYCHA low-income housing projects, and in 1999 it permanently enjoined NYCHA from implementing that preference at those projects. NYCHA appeals, contending principally that the district court erred (a) in its view of what con- stitutes segregation, and (b) in finding that segregation would be significantly perpetuated. For the reasons that follow, we affirm with respect to 14 of the housing pro- jects, and we reverse with respect to the remaining six. I. BACKGROUND The factual background of this litigation has been chronicled in several opinions, familiarity with which is assumed. The prior proceedings are summarized below. A. The Consent Decree (Davis I) NYCHA, an independent public corporation created by New York State Law, operates 322 public housing projects in New York City. In the early 1990s, parallel actions were brought by the United States and by plain- tiffs Pauline Davis et al. on behalf of themselves and others similarly situated, alleging that NYCHA had engaged in discrimination in violation of, inter alia, 42 U.S.C. §§ 1981, 1982, and 1983 and the Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601 ef seq. (“FHA”), by assigning applicants for public housing to particular housing projects on the basis of race. NYCHA ultimately acknowledged that it had engaged in, inter ee, 4a alia, “racial steering” (NYCHA Memorandum of Law in Support of the Fairness and Adequacy of the Davis Set- tlement and the Entry of the Consent Decree and in Response to Comments Submitted by Interested Persons, dated October 30, 1992 (“NYCHA Memorandum Sup- - porting Consent Decree” or “NYCHA Memorandum”), at 2!), and it stated that “[t]he Housing Authority con- cluded that the complaint had merit” (id. at 22). The parties agreed to settle both actions in 1992 by entering into the Consent Decree. See Davis v. New York City Housing Authority, 1992 WL 420923 (S.D.N.Y. Dec. 31, 1992) (“Davis I’). In urging the district court to enter the Decree, NYCHA admitted that [t]he Housing Authority engaged in a number of policies and practices that had the effect of dis- criminating against Black and Hispanic applicants. ~ Because the Housing Authority was convinced that these policies were wrong, and indeed in most instances were stopped well before the lawsuits were brought, the Housing Authority believed that the responsible course was to settle these suits to remedy these past practices in as fair a manner as possible. - (NYCHA Memorandum at 21.) Describing “a few of these policies” (id.), the NYCHA Memorandum stated, inter alia, that the Authority in 1960 adopted an “inte- gration program” whose “racial steering component . . continued at a few predominantly white projects until January, 1988, resulting in a higher proportion of whites than would have resuited from a race neutral admissions policy” (id.), and that until 1990, some NYCHA “employees would expedite applications and send them to projects to which they would not otherwise have been sent[,] [o]ften . . . favor[ing] white appli- 5a cants who sought an apartment at a predominantly white project” (id. at 22). ’ Following a fairness hearing, then-District Judge Pierre N. Leval, to whom the case was then assigned, approved the Consent Decree, making findings of fact and conclusions of law that included the following: Plaintiffs’ evidence supports their allegations that during specified periods. of time the Housing Authority selected and assigned applicants for pub- lic housing, and tenants requesting transfers, to cer- tain housing projects using methods that resulted in unlawful discrimination against Blacks and His- panics. These methods included (1) the intermittent use of codes denoting housing projects to which only white families could be assigned; (2) the use of zip code and other geographic restrictions on admis- sion to projects; (3) the use of racial goals or targets when new projects were “rented up” and on an ongoing basis thereafter; and (4) the assignment of families to projects where vacancies were not expected to arise. Davis I, 1992 WL 420923, at *2. The Consent Decree permanently enjoined [NYCHA] from engaging in any act or practice which denies equal access to its housing. . . on the basis of race, color, or national origin, including[ ] adopting and implementing any tenant application, selection, assignment, and trans- fer plan, or any such policy or process, which gives preference to Applicants or tenants on the basis of race, color, or national origin. Consent Decree 9 4(a). Other provisions permanently enjoined NYCHA from, inter alia, basing denials of transfers on racial considerations, see id. 4 4(b), making 6a statements indicating a preference or limitation based on race, see id. § 4(c), and falsely representing, because of an applicant’s race, that certain projects were not antic- ipating vacancies when in fact such vacancies were anticipated, see id. § 4(d). Although parts of the Decree were to be dissolved 8'/2 years after its date of entry, the provision for such dissolution expressly excluded “the permanent injunctive provisions.” Jd. 4 50. As part of the injunctive relief granted, the Consent Decree also required NYCHA to implement a new three- stage tenant selection and assignment plan (“TSAP”) that substantialiy revised the Authority’s prior proce- dures for granting applications for public housing. After explicitly incorporating the TSAP by reference, the Decree stated that “[t]he TSAP will be implemented by the Housing Authority to prevent any unlawful dis- crimination on the basis of race, color, or national origin, in compliance with the Housing Authority’s obligations therewith under Titie VI, the Fair Housing Act and the implementing regulations and requirements of” the United States Department of Housing and Urban Devel- opment (“HUD”). Consent Decree 4 5. HUD “approved the TSAP for a five-year period as meeting the require- ments of,” inter alia, HUD’s “regulations governing non-discrimination on the basis of race, color, or national origin.” Consent Decree page 5, WHEREAS. In the TSAP, NYCHA -+ecognizes “federal” prefer- ences for certain categories of applicants, as required by certain federal laws, and employs certain of its own pref- erences (“local preferences”). In the first stage of the TSAP, applicants are chosen from the overall applicant pool for interviews as to their eligibility for public hous- ing. In the second stage, those interviewed who are found eligible are assigned to waiting lists for vacancies and are divided into three “Tiers.” Tier III families have Ta the highest incomes; Tier I families have the lowest. In the final stage of the TSAP, NYCHA attempts to allocate 25% of the vacancies to Tier III and to divide the remaining 75% evenly between Tiers I and II. Under.the original TSAP’s local preferences, priority is given to families on the basis of housing need. The Decree also provided that [nJo Applicant will be barred or disqualified from any Project tenanted under the TSAP because of any minimum income requirements that result in discrimination on the basis of race, color, or national origin in violation of Title VI or the Fair Housing Act; provided, however, that consistent with HUD’s general occupancy standards, the Hous- ing Authority may seek to achieve a tenant body in each Project composed of families with a broad range of incomes, generally representative of the range of incomes and rent-paying abilities of lower income families in its geographic operating area to the extent permitted under 42 U.S.C. § 1437d(c)(4)(A)(iv), 24 C.F.R. § 960.205, and 24 C.F.R. Part 913. . . . If any new minimum income requirements are added to existing [conventional housing projects administered by NYCHA], plain- tiffs shall have the right to challenge such a change during the five-year period [after full implementa- tion of the TSAP] orthereafter. .. . Consent Decree 4 8. NYCHA was required to have the TSAP fully imple- mented within one year after entry of the Decree. See id. q 6(a). If, during the five-year period after full imple- mentation of the TSAP, NYCHA proposed to modify any provision of the TSAP, it was to give at least 60 days’ notice to plaintiffs, who were given “the right. . . to 8a move the court to enjoin the proposed modification as inconsistent with the terms of th[e] Consent Decree.” Jd. q 6(b). The Decree also provided that for three years fol- lowing that five-year period, plaintiffs were allowed to ask the district court to “modify or otherwise enjoin any aspect of any TSAP implemented by the Housing Authority on the ground that it violates the Fair Housing Act, Title VI and/or HUD implementing regulations.” Jd. q 6(c). B. NYCHA’s Proposed Working-Family Preference (Davis II-IV) In 1995, NYCHA sought to modify the local prefer- ences recognized under the TSAP. To the extent material here, it proposed to introduce a working-family prefer- ence (“WFP”), altering the factors determining whether an applicant for public housing is even granted an inter- view. Under the WFP, federal preference holders who are working or disabled would receive a priority over those who are not; as to local preferences, Tier III families and Tier II families would receive priority, in that order; thereafter, Tier I applicants who are working or are dis- abled would be given priority, but other Tier I applicants would have no priority. See Davis v. New York City Housing Authority, 1997 WL 407250, at *4 (S.D.N_Y. July 18, 1997) (“Davis IT’). The proposed WFP would eliminate applicant housing need as a local priority con- cern and instead give preference to families who can pay the most. NYCHA’s goals in proposing this change are to increase the number of working families in public hous- ing and increase income integration in public housing, in order to promote financial and social stability in such housing. See id. at *14. Plaintiffs opposed NYCHA’s proposed changes and moved before Judge Sweet, to whom the case had been 9a reassigned, for an injunction. While conceding that NYCHA’s interest in financial stability was legitimate, plaintiffs contended, supported by affidavits from their expert Dr. Leonard Cupingood, that the WFP would favor the admission of white families and thereby have the effect of perpetuating racial segregation. Plaintiffs suggested that the WFP be modified so that, while con- tinuing to give the lowest preference to Tier I (i.e., low- est-income) families, NYCHA would give all Tier I applicants equal preference. Under plaintiffs’ proposed alternative, Tier I families would continue to rank below Tier II and Tier III families; and thus, because Tier II and III families by definition have higher incomes than Tier I families, the number of rentals to higher-income families would still increase; but desegregation of the housing projects would be less adversely affected. NYCHA conceded that plaintiffs’ suggested alternative might increase income integration but rejected it, stating that it would frustrate the goal of increasing the pro- portion of rentals to working families. See Davis II, 1997 WL 407250, at *15. The district court noted the legitimacy of NYCHA’s concerns and goals and stated that there was no dispute that an increase in the proportion of tenants with higher - incomes was needed in order to safeguard the projects’ stability: Historically, public housing applicants in the low- est income categories accounted for approximately 1/3 of all NYCHA rentals. Since 1990, however, an increase in homeless families applying for housing has resulted in a significant increase in the number of rentals to the lowest income applicants. By 1995, these lowest income applicants accounted for 77.6% of new admissions. NYCHA states, and plaintiffs do not dispute, that unless a higher proportion of appli- 10a cants with higher incomes receive rentals, the sta- bility of the projects will be jeopardized. Id. at *4. The court also noted that NYCHA had sub- mitted its proposed WFP, along with another proposed modification called “Project Choice,” to HUD for approval. Although HUD approved Project Choice as “ ‘not likely to affect the racial identifiability of devel- opments in New York City,’” Davis II, 1997 WL 407250, at *5 (quoting HUD letter to NYCHA dated October 24, 1996), HUD’s response to the proposed WFP, in contrast, was as follows: “HUD does not approve local preferences, and thus NYCHA may create these local preferences, so long as notice and comment requirements are met. How- ever, NYCHA should be mindful of the injunctive relief provided for by the Davis consent decree and its responsibilities under civil rights statutes.” Davis II, 1997 WL 407250, at *5 (quoting HUD letter to NYCHA dated July 31, 1996) (emphasis ours). The district court proceeded to consider the likely effects of the WFP on NYCHA’s performance of its obli- gations under the Decree. Noting that in 1995, under the TSAP’s scheme of priorities, only some 15% of all applicants for public housing even reached the stage of being granted interviews, see Davis II, 1997 WL 407250, at *3, the court found that implementation of the WFP would significantly change the racial composition of the top 15% of applicants, who are those likely to be called for interviews. Under the current TSAP, only 7.2% of the top 15% of applicants are white. If the new Working Family Preference were implemented, there would be a sta- tistically significant increase in the percentage of lla white families in the top 15% of the list of appli- cants. These conclusions are not disputed by NYCHA. Id. at *5. The court noted further that Dr. Cupingood had concluded that if the WFP were implemented at the 11 projects that as of June 1996 remained more than 50% white, the process of desegregation would be signifi- cantly slowed at three of the projects, completely stopped at four projects, and indeed reversed at four pro- jects. See id. The court noted, however, that the WFP’s desegrega- tive effects could easily be lessened: It also appears that NYCHA could eliminate the objectionable perpetuation of discrimination by making revisions to their plan that are even less drastic than those proposed by plaintiffs. The Work- ing Family Preference could be instituted in essen- tially the proposed form, provided white applicants selected under the preference are not placed in pro- jects in which whites are over-represented relative to the applicant pool. The extent to which such a modification would be administratively feasible or desirable is, of course, a question for NYCHA. Id. at *15 (emphases added). Accepting the projections made by Dr. Cupingood, the district court found that plaintiffs were likely to succeed on the merits of their WFP challenge with respect to the housing projects whose tenant populations remained pre- dominantly white. The court entered a preliminary injunction prohibiting implementation of the WFP at all 322 NYCHA projects, but it invited NYCHA to offer suggestions for modifications that would limit the injunction to the disproportionately white projects. See id. at *18. | 12a Thereafter, the parties “agree[d] that the WFP con- sidered in Davis [II] w[ould] not perpetuate past dis- crimination at any of the NYCHA projects other than the 21 projects where greater than 30% of the apartments are rented to whites (the ‘Disproportionate Projects’),” Davis v. New York City Housing Authority, 1997 WL 711360, at *4 (S.D.N.Y. Nov. 13, 1997, as amended Nov. 20, 1997) (“Davis IIT’), and “agree[d] that the WFP should go forward for the non-Disproportionate Pro- jects,” id. at *5. Accordingly, in Davis III, the court nar- rowed its prior order and enjoined use of the WFP at only those 21 housing projects where white families then occupied more than 30% of the apartments. NYCHA appealed. This Court was unable to resolve the merits of the appeal, however, as we concluded that the district court had not provided an adequate expla- nation for finding that plaintiffs would likely succeed in showing that the WFP would perpetuate segregation at the projects to which the injunction applied. See Davis v. New York City Housing Authority, 166 F.3d 432, 437 (2d Cir. 1999) (“Davis IV’). We stated that although the opinions in Davis II and Davis III were not entirely devoid of detail, Judge Sweet failed to adequately explain the subsidiary facts and method- ology underlying the ultimate finding. For instance, Judge Sweet refers to “existing trends demon- strat[ing] that many of the[ ] additional white fam- ilies [admitted under the proposed modification] will be concentrated in predominantly white devel- opments,” but does not discuss or attempt to explain these trends or the data reflecting them. He also fails to address the time period during which the purported impact of the proposed TSAP was assessed and/or how future “trends” might affect application of the TSAP to developments that are 13a not currently, but subsequently become, predomi- nantly white. Further, while he focuses on the racial imbalance the proposed TSAP will cause at specific developments within the NYCHA system, he does not identify them by name or state the number, frac- tion or percentage of additional white families who will be admitted to each of the 21 developments as a result of the proposed TSAP. Davis IV, 166 F.3d at 436 (footnotes omitted). We also noted that Dr. Cupingood “d[id] not cite to any precise numerical data underlying his opinion.” Jd. at 437. Accordingly, while leaving the preliminary injunction undisturbed, we remanded for the district court to address these matters, stating that “[t]he proper standard to be applied on remand is whether the proposed use of the working family preference will significantly per- petuate segregation at the relevant NYCHA develop- ments.” Jd. at 438 (emphasis in original). C. The WFP as Significantly Perpetuating Segrega- tion (Davis V) Following the remand in Davis IV, the district court conducted a hearing, received additional evidence and arguments, and addressed, both broadly and in consid- erable detail, (1) whether there is a basis on which to conclude that there is segregation to be dealt with under the Consent Decree, and (2) whether the WFP would sig- nificantly perpetuate segregation. In an opinion dated August 11, 1999, the court rendered a final decision, answering both questions in the affirmative and con- cluding that plaintiffs were entitled to a permanent injunction prohibiting NYCHA from implementing the WFP at 20 housing projects. See Davis v. New York City l4a Housing Authority, 60 F.Supp.2d 220 (S.D.N.Y. 1999) (“Davis V”). First, as to the existence of segregation, the court ruled that, for purposes of this litigation, it is appropri- ate to deem a project segregated if white families occupy - more than 30% of its apartments. It pointed out that throughout this litigation projects have been deemed “disproportionate” or “predominantly white” if more than 30 percent of the parties residing there are white. See, e.g., Davis II, 1997 WL 407250 at *12. Davis V, 60 F.Supp.2d at 231 (footnote omitted). The court noted that this benchmark was reflected in the TSAP, which was incorporated by reference into the Consent Decree. See, e.g., id. at 232 n.9 (“[T]he TSAP identifies housing projects that are 30 percent white as infected by past segregation.”). The TSAP contains a “Borrowing Provision” that can be used by a housing project that has more vacancies than willing applicants. Such a project is allowed to “borrow[ ]” applications from another pro‘ect, id. at 231; but “ ‘if the borrowing project’s tenant body is more than 30% white, [the NYCHA decisionmaker] shall not select a project whose tenant body is also more than 30% white,’ ” id. at 232 (quoting TSAP at 29). The court pointed out that the 30% benchmark was not, as NYCHA urges, an arbitrary number, but a negotiated figure that implies that the parties and the Court believed that a project was dispropor- tionately white if more than 30 percent of its fami- lies are white. . . . An examination of Exhibit A to the Consent Decree, a list of projects where it was alleged that discriminatory practices occurred in sta- tistically significant amounts, reveals that during 15a the time in question most of these projects were at least 30 percent white. Davis V, 60 F.Supp.2d at 232. Further, the court noted that the injunctive relief ordered was necessarily premised on a finding that a white tenant population above the 30% level constituted segregation: The TSAP must be read as in harmony with exist- ing law. . . . Under existing law, borrowing of applications could not have been prohibited at pro- jects more than 30 percent white (without regard for claimant relief) unless those projects were still tainted by past segregation. . . . [R]emedies con- taining race-conscious relief “must be substantially related to the objective of eliminating the alleged instance of discrimination, . . . and must not unnecessarily trammel the interests of affected third parties.” Kirkland v. New York State Dept. of Cor- rectional Serv., 711 F.2d 1117, 1132 (2d Cir. 1983). Thus, had there been no finding that housing pro- jects that are greater than 30 percent white were affected by past segregation, the Borrowing Provi- sion would be unlawful. Davis V, 60 F.Supp.2d at 232. Accordingly, having pre- viously “held that ‘[uJnder the TSAP, a project is con- sidered disproportionately white if more than 30 percent of its families are white,’ ” the court concluded that “30 percent will continue to be employed as a measure to identify segregation in this case.” Davis V, 60 F.Supp.2d at 232 (quoting Davis I], 1997 WL 407250 at *12). Second, as to the impacts of the WFP on the desegre- gation of the disproportionately white projects, the dis- trict court, largely crediting the analysis of Dr. Cupingood, made extensive findings. The court noted that, in predicting the effects of the WFP on the racial l6a mix of those likely to move into public housing projects (“move-ins”), Dr. Cupingood relied on data for the period 1991-1994 because 1991 is “the first year that is free of distortion caused by NYCHA’s own discrimina- tion,” and 1994 is the “last year that is free of distortion [caused] by” the initial implementation of the Consent Decree remedies, to wit, the “Davis move-ins.” Davis V, 60 F.Supp.2d at 226. Dr. Cupingood relied on NYCHA’s records of move-ins and move-outs by race for each pro- ject, and he proceeded on the assumption that families of each race will make decisions about which projects to choose in the same manner, and with the same proba- bilities, as families of that race have done in the past. The court concluded that “[w]hile projections about the future, are by definition, subject to some uncertainty, Dr. Cupingood has taken reasonable steps, such as the use of historical averages, to minimize the impact of possible uncertainties.” Jd. at 239 n.17. The court credited Dr. Cupingood’s view that the WFP would have significant impacts on the disproportionately white projects, either by increasing the percentage of a project’s white population or by detrimentally affecting the degree or timing of the project’s desegregation. The Davis V opinion included tables showing, for each dis- proportionately white project, inter alia, “Race Distri- bution of 1995 Rentals Under Original TSAP and WFP” (Table 1); “Effect of WFP at Disproportionate Projects After Five Years Assuming Historical [T]urnover by Race” (Table 3); “Relative Percentage Reduction in Number of White Families [D]ue to WFP After Five [Y ]ears Assuming Historical Turnover by Race” (Table 4); “Change in Percentage White Occupancy At Dis- proportionate Projects After Five Years Assuming His- torical Turnover by Race” (Table 5); “Effect of WFP at Disproportionate Projects After Five Years Assuming ee he eee 17a Historical Turnover by Race” (Table 7), and “[same] After Ten Years” (Table 6). See Davis V, 60 F.Supp.2d at 225-31. In discussing the anticipated percentages of apart- ments that would be occupied by white families at each Disproportionate Project after five years, with and with- out the WFP, the court noted that, [aJssuming historical turnover by race, after five years under the WFP, the percentage of white fam- ilies at Middletown Plaza would rise from 51.85 to 60.1% (instead of falling to 49.4%). At the remain- ing Disproportionate Projects, white occupancy per- centages would either stabilize or fall more slowly under the WFP than under the original TSAP. For example, at Cassidy-Lafayette, after five years the percentage of white families in occupancy would inch down from 53.6% to 50.4% (instead of falling to 42.4%). Id. at 228-29. These figures were reflected in Table 5: Table 5 Change in Percentage White Occupancy At Disproportionate Projects After Five Years Assuming Historical Turnover by Race Project Name Initial 5 Years after Davis Move-Ins % White Original TSAP WFP Bay View 34.5% 22.9% 24.7% Berry 56.2% 45.0% 50.4% Cassidy-Lafayette 53.6% 42.4% 50.4% Forest Hills 51.7% 41.3% 44.4% Glenwood 30.0% 18.1% 18.9% Haber 53.0% 39.6% 46.4% Holmes Towers 26.6% 18.6% 21.8% SE sl ene a Bs 5+ He 18a Project Name Initial 5 Years after Davis Move-Ins % White OriginalTSAP WFP Independence 9% [sic] 63.9% 64.8% Isaacs 33.1% 24.8% 27.9% Middletown Plaza 51.8% 49.4% 60.1% ~ New Lane 73.0% 64.8% 71.1% Nostrand 41.9% 30.0% 32.9% Pelham Parkway 31.8% 22.1% 23.5% Pomonok 41.5% 33.3% 36.5% Robbins Plaza 53.4% 42.6% 52.0% Sheepshead Bay 35.2% 24.0% 26.8% South Beach 53.1% 41.6% 47.6% Straus 28.5% 27.4% [sic] 20.9% Taylor-Wythe 54.4% 51.0% 52.1% Todt Hill 46.7% 35.7% 39.7% Williams 61.6% 57.5% 58.2% Davis V, 60 F.Supp.2d at 229; see also id. at 227, Table 3 (at Independence, 493 of 715 apartments were initially occupied by white families, a percentage of 68.95; at Straus, under the original TSAP five years after the Davis move-ins, white families would occupy 48 of 263 apartments, a percentage of 18.3); id. at 233, Table 8 (as of June 1998, before Davis move-ins, Holmes Towers and Straus were above the 30% level, at 30.6% and 30.4%, respectively). The court noted that Table 6 showed that [s]imilar trends exist after ten years, except that at Disproportionate Projects where desegregation would not essentially stop, the magnitude of the impact of the WFP would generally become larger. For example, at Middletown Plaza, where segrega- tion would increase under the WFP, the white pop- ulation would climb to 108 instead of falling to 81. At Berry Houses, where desegregation would be 19a significantly slowed, the white population would fall to 231 instead of 186. In the aggregate, after ten years under the WFP (again assuming historical turnover by race), the Disproportionate Projects would be occupied by 722 more white families than would have resided in those projects in the absence of the WFP. Davis V, 60 F.Supp.2d at 229. NYCHA, proffering the views of its own expert Dr. David Peterson, argued that Dr. Cupingood’s analysis was flawed because it was based on the assumption that, in the absence of the Consent Decree’s injunction, the percentage of white families admitted to NYCHA’s pub- lic housing in 1998 would have risen from 4.2% to 9.9%. The Authority contended that the percentage admitted would have risen only to 6.48%. However, the district court found that there were substantial flaws in Dr. Peterson’s methodology: [I]n addition to a number of other errors, Dr. Peter- son did not account for the fact that several thousand families who moved into NYCHA housing during 1998 were selected for interviews and/or certified to project waiting lists before the WFP went into oper- ation. Because families selected under the old TSAP are still working their way through the “pipeline,” the white admission rate in 1998 was significantly lower than would have occurred if all families had been selected for interviews and certified pursuant to _the WFP. Moreover, Dr. Peterson[’s] conclusion is based on an under-representation of 1998 move-ins. Significantly, even accepting Dr. Peterson’s method- ology; and adjusting only for the undercount of fam- ilies to the 21 projects, one obtains a corrected figure of 8.53 percent white among families who 20a were placed in 1998 and were “allegedly untainted by the Pipeline Effect” (Cupingood Sixth Aff. 4 9). Davis V, 60 F.Supp.2d at 239 n.16. Accordingly, the court rejected Dr. Peterson’s analysis and credited that of Dr. Cupingood. The court also reyected NYCHA’s contention “that so long as the white occupancy rates would decline under the WFP, regardless of the rate of decline, then the WFP cannot be said to perpetuate segregation.” Jd. at 238. The court noted that to “ ‘perpetuate’ means to extend in time,” id. (other internal quotation marks omitted), and that that is precisely the effect that the WFP will have. Although at the outset of housing discrimination litiga- tion “the adverse impact of an applicant selection pro- cess. . .1S determined by whether minority applicants are chosen at a rate lower than their proportional repre- sentation in the overall applicant pool,” once remedies for segregation have been ordered and the defendant pro- poses to change its method of compliance “[t]he query . . 1S not whether the [change] would have an adverse impact On minority applicants, but whether it will significantly perpetuate segregation.” Davis V, 60 F.Supp.2d at 237 n.14 (emphasis omitted). Where a court-ordered plan intended to eradicate past segregation is in effect, and where, as here, a proposed char ze to the plan is alleged to perpetuate past segregation, the Supreme Court has compared the results under the proposed plan with those under the original, court-ordered plan. Accordingly, in evaluating whether the WFP sig- nificantly perpetuates segregation, the relevant com- parison will be the desegregation that would be a 2la achieved under the original TSAP with the projected effect of the WFP. The relevant inquiry here is not whether deseg- regation will occur eventually, but whether the WFP will significantly delay desegregation at the Dis- proportionate Projects. See Monroe v. Board of Commissioners, 391 U.S. 450, 459. . . (1968) (“if it cannot be shown that such a plan will further rather than delay conversion to a unitary, nonracial, nondiscriminatory school system, it must be held unacceptable.”); Wright[ v. Council of the City of Emporia}, 407 U.S. [451,] 460. . . [(1972)] (“if the proposal would impede the dismantling of the dual system, then the district court. . . may enjoin it from being carried out’). Davis V, 60 F.Supp.2d at 237-38 (emphasis in original). The district court concluded that the WFP would significantly impede desegregation at NYCHA’s 20 disproportionately white projects, see Davis V, 60 F.Supp.2d at 231 n.7 (of the 21 projects covered by the preliminary injunction pursuant to Davis III, Glenwood was omitted because prior to June 1998 it had fallen “below the 30% threshold”). The court reached this con- clusion because the WFP will “more than double white admission rates,” and “because existing trends demon- strate that many of these additional white families will be concentrated in predominantly white developments.” Davis V, 60 F.Supp.2d at 238-39 (internal quotation marks omitted). It found these effects to have both “[s]tatistical significance,” which “measures whether a particular phenomenon is the cause of a specific set of effects,” and “[lJegal significance,” which “measures whether, assuming the phenomenon was the cause of 22a those effects, those effects have any legal import.” /d. at 239. As to statistical significance, the court stated as follows: A standard tool for assessing statistical signifi- cance is the two-standard deviation test. The test is used to determine whether a deviation from the expected norm is small enough to be attributable to chance, or so large that random chance could not reasonably account for the outcome. “The greater the number of standard deviations, the less likely it is that chance is the cause of any difference between the expected and observed results.” Ottaviani [v. State Univ. at New Paltz, 875 F.2d 365, 371 (2d Cir. 1989), cert. denied, 493 U.S. 1021 (1990)]. Courts have fre- quently adopted a standard of two to three standard deviations as constituting statistical significance. See Hazelwood School District v. United States, 433 U.S. 299, 311 n.17. . . (1977) (“if the difference between the expected value and observed number is greater than two or three standard deviations, then the hypothesis that employees were hired without regard to race would be suspect.”); Castaneda v. Partida, 430 U.S. 482, 496 n. 17. . . (1977). Davis V, 60 F.Supp.2d at 239 (footnote omitted). The court noted that, in terms of the total number of apart- ments affected by the WFP in the disproportionately white projects, the magnitude of the effects would be well in excess of two standard deviations: For the five year-period, and assuming historical turnover trends for each race, the WFP would result in a total of approximately 1,139 white move-ins at the Disproportionate Projects, as compared to only 625 without the WFP. The difference between these figures—some 514 excess white move-ins—repre- 23a sents 15.39 standard deviation units and is highly significant. Id. at 239-40 (footnote omitted). And over a period of “ten years, assuming historical turnover rates for each race, the WFP would increase white move-ins from 1;217 to approximately 2,240—an increase of 1,023 white move-ins. The difference represents 21.92 stan- dard deviation units.” Jd. at 240 n.19. The court found that the magnitude would also be statistically significant when assessed in terms of individual projects: [A]fter five years, 18 of the 21 Disproportionate Pro- jects would have statistically significant white move- in differential caused by the WFP. At the ten year mark, again using historical turnover rates for each race, 20 of the 21 Disproportionate Projects would have statistically significant reductions in desegre- gation. At Holmes Towers, for example, the WFP would result in approximately 75 white move-ins as opposed to 34 without the WFP, a disparity repre- senting 4.3 standard deviation units. At Pomonok, there would be approximately 287 white move-ins with the WFP and 138 without the WFP in place, a difference constituting 8.21 standard deviation units. Id. at 240. Finally, as to the legal significance of the WFP’s retar- dation of desegregation, the court noted that [while . . . many of the cases cited by the par- ties involve larger discrepancies than in the instant case, “small” percentage-point differences can result in significant perpetuation of segregation. At the Pomonok project, for example, where the WFP would increase the white occupancy rate by 3.2 per- centage points after five years, and 5.5 percentage 24a points after ten years, (see Cupingood Third Aff. [Cupingood’s] Tables 4 and 6), every percentage point increase in the white population means relin- quishing 20 apartments to white families that would have gone to African-American and Hispanic fam- ilies. At Pomonok alone, the WFP would deprive non-white families of 66 apartments after five years (see id. [Cupingood’s] Table 5) and 114 apartments after ten years (see id. [Cupingood’s] Table 7). These figures are significant in sheer magnitude. . . Perhaps more importantly, they are significant to the families affected. To be sure, the WFP has numerous benefits, but with respect to the Dispro- portionate Projects, these are outweighed by its adverse effects. The WFP markedly inhibits the rate at which desegregation will occur, adversely affects the ratios at the Disproportionate Projects, and con- travenes the purposes of the Consent Decree. In short, the WFP significantly perpetuates segregation. Davis V, 60 F.Supp.2d at 240-41 (footnotes omitted). Accordingly, having determined that the effects of the WFP in slowing the pace of desegregation at the dis- proportionately white projects would be significant, the court enjoined NYCHA from implementing the WFP at the 20 relevant developments, making its preliminary injunction permanent. D. Comparisons of the TSAP With and Without the WFP (Davis VI-VII) NYCHA again appealed. This Court again remanded without resolving the merits, asking for additional infor- mation. See Davis v. New York City Housing Authority, 2000 WL 232191 (2d Cir. Feb. 23, 2000) (“Davis VI’). 25a Given that the WFP had been implemented in 1998 at some 302 projects, i.e., all but the 20 projects covered by the injunction, we stated that we would benefit from knowing (1) whether and to what extent actual tenant move-outs correspond with projected move-outs, and whether and to what extent the actual numbers would alter the experts’ conclusions; (2) at each of the 20 cov- ered projects, how many months it is expected to take to achieve a white family occupancy rate below 30% with and without the WFP; and (3) whether figures presented in the Davis V tables based on Dr. Cupingood’s estimate of a 9.9% white admissions rate under the WFP should be revised to reflect a rate of 8.53%, as it appeared Dr. Cupingood might have suggested in one affidavit, or a rate of 8.28% as NYCHA suggested. In June 2000, the district court responded to the ques- tions posed by Davis VI. As to our first question, the court found that the expert witnesses for both sides opined that the use of actual move-out rates for 1998 would not necessarily increase the accuracy of the white admissions rate projections. See Davis v. New York City Housing Authority, 103 F.Supp.2d 228, 229 (S.D.N.Y. 2000) (“Davis VII’). As to our last question, the court | found that the reference in Dr. Cupingood’s prior affi- davit to a rate of 8.53% was the result of a copying error and that the intended reference was to a rate of 8.28%. Id. at 231. However, the court found that Dr. Cupin- good’s rationale for using the rate of 9.9% for white move-ins rather than a rate of 8.28% was more persua- sive than that proffered by Dr. Peterson for the lower rate. Jd. at 232. The court also found that use of the 8.28% rate would not show any significant decrease in the WFP’s effects of delaying desegregation in the 20 projects. Jd. “Thus, adoption of the 8.28% rate, and revi- sion of the calculations, would not change this Court’s 26a prior conclusion that implementation of the WFP at the Disproportionate Projects would result in a significant perpetuation of discrimination.” /d. As to our second question, requesting a comparison of the estimated times for desegregation under the TSAP with and without the WFP, the court set forth the fol- lowing table: Months to Reach 30% Project Without WFP Bay View 17 Berry 195 Cassidy-Lafayette 195 Forest Hills 149 Haber 146 Holmes Towers Already below 30%* Independence 620 Isaacs 18 Middletown Plaza Will never reach 30% New Lane Will never reach 30% Nostrand 57 : Pelham Parkway 6 Pomonok 84 Robbins Plaza 355 Sheepshead Bay 23 South Beach 163 Straus Already below 30%* Taylor St./ Wythe Ave. 649 Todt Hill 103 Williams 707 *After Davis Move-lIns. Id. at 231. Months to Reach 30% With WFP 21 Will never reach 30% Will never reach 30% 246 Will never reach 30% Already below 30%* 899 29 Will never reach 30% Will never reach 30% 85 8 171 Will never reach 30% 35 Will never reach 30% Already below 30%* 1323 198 1066 27a Following these findings, the appeal by NYCHA was reinstated. II. DISCUSSION On appeal, NYCHA contends principally (1) that nei- ther the Consent Decree nor the TSAP defined housing projects with more than 30% white tenant populations as segregated, and that the district court therefore erred in using that standard in finding the 20 projects in question to be segregated; (2) that the district court erred in its findings as to the WFP’s desegregation delays because the court (a) accepted the view of Dr. Cupingood rather than that of Dr. Peterson, (b) failéd to do a project-by- project analysis, and (c) analyzed the “wrong compara- bles”; and (3) that the court erred in concluding that the differences in white tenancy percentages with and with- out the WFP are legally significant. For the reasons that follow, we reject most of NYCHA’s contentions, finding merit only in its challenge to the ruling as to the legal significance of the WFP’s effects at six projects. A. Standard of Review The standard of review is well established. In review- ing the district court’s judgment and its issuance of a permanent injunction, we may overturn the court’s find- ings of fact only if they are clearly erroneous. See Fed. R. Civ. P. 52(a). Although the meaning of the phrase “clearly erro- neous” is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from [Supreme Court] cases. The foremost of these principles. . . is that “[a] finding 28a is ‘clearly erroneous’ when although there is evi- dence to support it, the reviewing court on the entire evidence is left with the definite and firm convic- tion that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous stan- dard to the findings of a district court sitting with- out a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). If the dis- trict court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949); see also Inwood Laborato- ries, Inc. v. lves Laboratories, Inc., 456 U.S. 844 (1982). Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985); see also id. at 577 (the question is not whether a contrary finding by the court of appeals would be clearly erroneous, but only whether the finding made by the dis- trict court was clearly erroneous). These standards apply whether the district court’s findings are based on oral 29a testimony or solely on documentary evidence. See, e.g., id. at 574; Fed. R. Civ. P. 52(a). Determinations as to the existence and cause of racial discrimination are findings of fact, and hence are subject to the clearly-erroneous standard of review. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); Pullman-Standard v. Swint, 456 U.S. 273, 287-90 (1982); United States v. Yonkers Board of Education, 837 F.2d 1181, 1218 (2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988). We apply no different standard for the dis- trict court’s findings as to the likely future discrimina- tory effects of actual or proposed conduct. Even as to past events, a trial judge cannot always be confident that -he “knows” what happened. Often, he can only determine whether the plaintiff has succeeded in presenting an account of the facts that is more likely to be true than not. Anderson v. Bessemer City, 470 U.S. at 580. Our task as an “appellate tribunal[]. . . is more limited still: we must determine whether the trial judge’s conclusions are clearly erroneous.” Jd. at 580-81. We similarly review only for clear error the district court’s findings as to whether particular conduct will more likely than not per- petuate discrimination. The district court’s conclusions as to questions of law, or as to mixed questions of fact and law, are reviewed de novo. See, e.g., St. Johnsbury Academy v. D.H., 240 F.3d 163, 168 (2d Cir. 2001); United States v. City of Yonkers, 197 F.3d 41, 49 (2d Cir. 1999), cert. denied, 529 U.S. 1130 (2000). A determination of the legal significance of the effects that the court has found likely to occur is a conclusion of law. The interpretation of a Consent decree is also an issue of law that is freely reviewable by the court of appeals. See, e.g., United States v. O’Rourke, 30a 943 F.2d 180, 186 (2d Cir. 1991); United States v. Inter- national Brotherhood of Teamsters, 931 F.2d 177, 182- 83 n.1 (2d Cir. 1991); Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985); see also id. at 1567-68 (“Consent decrees are a hybrid in the sense that they are. . . con- strued largely as contracts, but are enforced as orders.”’). The propriety of relief in the form of a permanent injunction is reviewable for abuse of discretion. See, e.g., Knox v. Salinas, 193 F.3d 123, 128-29 (2d Cir. 1999) (per curiam); General Media Communications, Inc. v. Cohen, 131 F.3d 273, 278 (2d Cir. 1997), cert. denied, 524 U.S. 951 (1998); Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994). And “though a court cannot ran- domly expand or contract the terms agreed upon in a consent decree, judicial discretion in flexing its super- visory and enforcement muscles is broad.” EEOC v. Local 580, International Association of Bridge, Struc- tural & Ornamental Ironworkers, 925 F.2d 588, 593 (2d Cir. 1991); see also Berger v. Heckler, 771 F.2d at 1568 (court’s interest in protecting the integrity of a judicially approved consent decree “justifies any reasonable action taken by the court to secure compliance” (internal quotes omitted)). ‘i B. The 30-Percent Level as the Measure of Segregation For several reasons, we reject NYCHA’s contention that the district court erred in using the 30% white fam- ily population level as the standard for whether a NYCHA public housing project should be deemed segregated. — First, the district court drew the 30% figure directly from the Consent Decree and the litigation surrounding it. As set out in Part I1.C. above, the TSAP’s Borrowing Provision allows an undersubscribed public housing pro- ject to borrow applications from another project; but it 3la explicitly forbids an undersubscribed project whose ten- ant population is more than 30% white from borrowing applications from another project whose tenant popula- tion is also more than 30% white. Thus, the Consent Decree, which expressly incorporated the TSAP by ref- erence, treated 30% as the significant level. Second, the Decree identified 31 projects as “Affected Developments,” see Consent Decree 7 1(b) & Exhibit A, and required NYCHA to give priority placement at those 31 projects to some 1,990 families who had been “adversely affected by discrimination since 1985,” Davis 1, 1992 WL 420923, at *2. When Davis I was entered, 24 of those 31 projects, or more than 77%, had white fam- ily populations in excess of 30% (with three of the remaining seven having white tenant populations of 29- 29.9%). (See NYCHA Tenant Statistics by Race as of Dec. 31, 1992.) And those 24 projects constituted 80% of the 30 NYCHA projects whose white tenant popula- tions exceeded 30%. (/d.) Thus, it was reasonable for the district court to use the 30% figure as a reflection of which projects the parties had agreed were infected by past segregation. Third, although NYCHA contends that none of its pro- jects should be considered “segregated” under the Con- sent Decree once NYCHA has provided the relief that the Decree ordered for individual applicants, that con- tention is belied by the Decree itself. The Decree (a) allowed plaintiffs, within the first five years of the TSAP’s operation, to seek an injunction against any pro- posal to modify the TSAP on the ground that the modi- fication would be inconsistent with the Decree or with the FHA, and (b) allowed plaintiffs, within the three years following that five-year period, to request modi- fication of the Decree on the ground that NYCHA’s implementation of the TSAP was violating the FHA. 32a Accordingly, the existence of segregation in New York City public housing may properly be measured by FHA standards, not solely by whether NYCHA has provided the individualized relief ordered for specific victims of prior discriminatory practices. Fourth, when Davis V was decided, NYCHA data showed that, overall, white families in NYCHA housing projects constituted just 7.0% of the tenant population. (NYCHA Research and Policy Development Special Tabulation of Tenant Characteristics as of Jan. 1, 1999 (“NYCHA 1999 Tenant Characteristics Tabulation”), at 1). Thus, in using the 30% level as the pertinent measure of segregation, the court generally considered @ project to be segregated only if its white population was at least 23 percentage points higher than the average white ten- ant population system-wide, or more than four times the system-wide average. The court’s treatment of such wide discrepancies as indicative of segregation was entirely consistent with existing law. In United States v. Yonkers Board of Edu- cation, for example, we upheld findings that housing in the city of Yonkers was segregated in 1980 where minorities constituted 40.4% of the residents of one quadrant of the city, but only 18.8% of the city’s total population. See 837 F.2d at 1185, 1218; see also id. at 1185-86 (in five of the 10 real estate tracts within that quadrant, minorities constituted more than 50% of the residents). We concluded that there was no error in the district court’s findings that the city’s decision to con- centrate low-income housing, occupied principally by minorities, in that quadrant had a discriminatory effect. See id. at 1219-20. Cf. Brown v. Board of Education, 892 F.2d 851, 870 & n.54 (10th Cir. 1989) (comparing minority enrollment in particular schools against system- wide figures and finding vestiges of segregation where 33a the difference in minority representation between the actual population and the student population exceeded 15 percentage points), vacated, 503 U.S 978 (1992), reinstated in full, 978 F.2d 585 (10th Cir. 1992), and cert. denied, 509 U.S. 903 (1993); Penick v. Columbus Board of Education, 583 F.2d 787, 799 (6th Cir. 1978) (same), aff'd, 443 U.S. 449 (1979). NYCHA attempts to distinguish such authorities by pointing out that the present litigation was resolved without a trial on the merits and that the Consent Decree recited that NYCHA did not concede liability. This approach is unpersuasive. To establish a violation of the FHA, a plaintiff need not show discriminatory intent but need only prove that the challenged practice has a dis- criminatory effect. See Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 936 (2d Cir.), aff'd, 488 U.S. 15 (1988) (per curiam); United States v. Yonkers Board of Education, 837 F.2d at 1217. The FHA prohibits such practices and authorizes courts to order “affirmative action to erase the effects of past segrega- tion and desegregate housing patterns.” Otero v. New York City Housing Authority, 484 F.2d 1122, 1133 (2d Cir. 1973). Here, NYCHA’s own records plainly show segregative housing patterns. In 1992, NYCHA operated more than 320 public housing projects. Some 62.66% of the white families (9,731 of 15,530) lived in the 31 pro- jects that were defined in the Consent Decree as Affected Developments. (See NYCHA Tenant Statistics. by Race as of Dec. 31, 1992.) In addition, there are four projects (Haber, Independence, Taylor-Wythe, and Williams) that were not defined as Affected Develop- ments but are covered by the present injunction, whose respective white tenant populations at the end of 1992 ranged from 42% to 65% (see NYCHA Tenant Statistics by Race as of Dec. 31, 1992) and in 1998 ranged from 34a 53% to 61.6%, see Davis V, 60 F.Supp.2d at 227, Table 3; id. at 229, Table 5. As of December 31, 1992, those four projects housed an additional 1,298 white families. (See NYCHA Tenant Statistics by Race as of Dec. 31, 1992.) Thus, when Davis I was decided, NYCHA had placed more than 71% of the white public-housirg pop- ulation in 35 of its 320-odd projects. In approving the Consent Decree, the district court found that plaintiffs’ evidence supported their allega- tions that NYCHA had selected, assigned, and trans- ferred applicants for public housing to particular projects using methods that resulted in unlawful discrimination on the basis of race. Davis I, 1992 WL 420923, at *2. NYCHA did not appeal those findings. Nor could it legitimately have done so. In urging the district court to approve the Consent Decree, NYCHA stated that it had engaged in a number of practices, some dating back to 1960, and some lasting until 1990,-“that had the effect of discriminating against Black and Hispanic applicants.” (NYCHA Memorandum Supporting Consent Decree at 21-22.) NYCHA stated that those policies included racial steering and favoring white applicants for pre- dominantly white housing projects (id. at 22), that “these policies were wrong” (id. at 21), and that “[t]he Housing Authority concluded that the complaint had merit” (id. at 22). See Part I1.A. above. Having made those statements to the court in order to secure judicial approval of the Decree, NYCHA cannot now disavow them. In sum, only 7% of the families in NYCHA housing projects system-wide are white; the TSAP, incorporated into the Consent Decree, treated 30% white family occu- pancy as a threshold signifying segregation; when the Decree was entered, more than 62% of the white public- housing population lived in fewer than 10% of the NYCHA projects; and nearly all of the projects whose 35a tenant populations were more than 30% white were tar- geted by the Decree for placement of individual appli- cants who had been the victims of past discrimination. We see no clear error in the district court’s finding that in negotiating and approving the Consent Decree, the parties and the court, respectively, had regarded projects more than 30% of whose apartments were rented to white families as segregated, nor any error in the court’s use of the 30%-level as a reasonable standard. C. The District Court’s Findings of Fact as to the WFP’s Effects Nor do we see clear error in the district court’s find- ings as to the likely percentages of white tenant popu- lations in the 20 covered projects with and without the WFP. NYCHA attacks those findings principally by arguing that the court should have adopted the views presented by Dr. Peterson rather than those of Dr. Cupingood; that the court failed to conduct a project-by- project analysis; and that it erred in comparing the pro- jected effects under the WFP to the projected effects under the original TSAP rather than to the then-current racial composition of the projects. We disagree. As discussed in Part II.A. above, decisions-as to which witness to credit and which of two permissible infer- ences to draw lie strictly within the province of the dis- trict court as factfinder. As discussed in Parts I.C. and D. above, the district court found that Dr. Cupingood had extrapolated data from a reasonable period—one that was free of distortion either by NYCHA’s discriminatory practices or by the implementation of decretal remedies for those practices—and that his assumptions, “us[ing] historical averages, to minimize the impact of possible uncertainties,” Davis V, 60 F.Supp.2d at 239 n.17, were reasonable. Further, in response to the remand in Davis 36a VI, both sides’ experts agreed that use of actual turnover data for the available period would not change their views as to the likely effects of the WFP in the future. Although predictive analysis is generally more specu- lative than statistical analysis of existing data—which the district court recognized, see, e.g., Davis V, 60 F.Supp.2d at 239 n.17 (“projections about the future, are by definition, subject to some uncertainty”)—the need for predictions in this case, in order to determine the WFP’s likely effects, was inescapable. The district court found that Dr. Peterson’s analysis was flawed in several respects. It is immaterial to appel- late review whether the views proffered by Dr. Peterson were nonetheless permissible. The views proffered by Dr. Cupingood were permissible, and we thus see no basis on which to conclude that the court’s acceptance of his analysis, rather than that of Dr. Peterson, is clearly erroneous. NYCHA also contends that Dr. Cupingood’s analysis is flawed because it would automatically produce sta- tistical significance over time. We disagree because the present inquiry falls outside the realm in which ordinary statistical analysis, and the need for inquiry into sig- nificance from a purely statistical standpoint, are needed. Ordinarily, such an inquiry is used when observ- able data are compared against expected data, or when two sets of observations are compared, and the question is whether the differences between the two data sets are attributable to a factor other than chance. In the present case, there is no question as to what causes the differ- ences between the projections of the pace of desegre- gation with and without the WFP: the differences are caused simply by the contrasting hypotheses. Nor is there any merit in NYCHA’s contention that the district court failed to analyze the likely effects of the 37a WFP on a project-by-project basis. Most of the district court’s analyses were conducted at both the project level and the aggregate level. See, e.g., Davis V, 60 F.Supp.2d ai 240 (“Statistical significance can also be analyzed at the project level.”) Although the court did not discuss every project in detail, its inclusion of the numerous tables in Davis V and Davis VII, showing the levels of white-family concentration at each project for various time periods, provides adequate assurance that each pro- ject was considered individually. Thus, while we dis- agree with some of the court’s conclusions as to the legal significance of the WFP differential at certain of the pro- jects, see Part II.D. below, we see no indication that the court failed to give each project individual attention. Finally, the court did not err in comparing the antici- pated desegregation effects under the WFP against the anticipated effects under the original TSAP rather than against the racial composition of the projects without the TSAP. The remedies implemented under the TSAP were designed to alleviate past racial discrimination. It was both consistent with Supreme Court cases, as the district court discussed in Davis V, 60 F.Supp.2d at 237, and eminently reasonable for the court to compare the effects of NYCHA’s proposed changes against the anticipated status of the projects under the original TSAP. D. The Legal Significance of the WFP’s Effects The matter of whether the differences in the pace of desegregation under the original TSAP and the TSAP as it would be modified by the WFP are legally significant is a question of law that we review de novo. The caselaw give us little guidance as to what constitutes legal sig- nificance. The district court focused primarily on the issue of desegregation and the differences between the existing and the proposed procedures in achieving deseg- 38a regation. In so doing, the court adopted the reasonable premise that past segregation may be perpetuated by actions that slow the pace of desegregation, even though they do not reverse it, see, e.g., Arthur v. Nyquist, 712 F.2d 816, 822 (2d Cir. 1983) (affirming suspension of hiring and layoff rules that delayed desegregation of public school faculty), cert. denied, 467 U.S. 1259 (1984); Sarabia v. Toledo Police Patrolman’s Ass’n, 601 F.2d 914 (6th Cir. 1979) (affirming suspension of civil service rule that restrained growth in African-American representation on the police force). Were the court not to consider the effects of proposed conduct on the pace of desegregation, desegregation could be delayed to such an extent that it effectively would never be achieved. And were there no worthy countervailing considerations, the court’s correct findings that proposed modifications would substantially delay desegregation would likely end our inquiry. In the present case, however, NYCHA has proposed the WFP in pursuit of a valid countervailing interest that is, to some extent, in tension with the goal of expeditious desegregation and that is worthy of consideration. As discussed in Part I.B. above, NYCHA’s goal in propos- ing a preference for working families is to increase the number of such families, increase income integration in public housing, and thereby promote financial and social stability in such housing. There can be no doubt that this is a legitimate objective. In providing federal funding for low-income housing, Congress has prohibited recipient public housing agencies from “concentrat[ing] very low- income families (or other families with relatively low incomes) in public housing dwelling units in certain public housing projects or certain buildings within pro- jects,” 42 U.S.C. § 1437n(a)(3)(A) (Supp. V 1999), and Di i i in ele pee hts nade ae) dies * a ee 39a has required such agencies to adopt plans for decon- centration: A public housing agency shall submit with its annual public housing agency plan. . . an admis- sions policy designed to provide for deconcentration of poverty and income-mixing by bringing higher income tenants into lower income projects and lower income tenants into higher income projects. This clause may not be construed to impose or require any specific income or racial quotas for any project or projects, 42 U.S.C. § 1437n(a)(3)(B)(i) (Supp. V 1999). See also 42 U.S.C. § 1437d(c)(4)(A)(iv) (1994) (which, at the time the WFP was proposed, provided that public hous- ing authorities “to the maximum extent feasible, . . . will include families with a broad range of incomes and will avoid concentrations of low-income and deprived families with serious social problems”), repealed, Bal- anced Budget Downpayment Act, I, Pub. L. No. 104-99, § 402(d)(1), 110 Stat. 26, 41 (1996). As amended in 1998, § 1437n provides that “[a] public housing agency may establish and utilize income-mix criteria for the selection of résidents for dwelling units in public hous- ing projects, subject to the requirements of this section,” 42 U.S.C. § 1437n(a)(1) (Supp. V 1999). Consistent with these statutory provisions, HUD reg- ulations explicitly permit a preference for “working fam- ilies.” See 24 C.F.R. § 960.205(a) (2001); 24 C.F.R. § 960.206(b)(2) (2001). In issuing § 960.205(a), HUD commented that “[t]he Department is convinced that housing agencies must have the flexibility to give pref- erence to working families to assure diversity in the res- idency of projects and to include families who can serve 40a as role models for other families.” 59 Fed. Reg. 36,618 (July 18, 1994). Notwithstanding that conviction, HUD did not endorse NYCHA’s proposed WFP. Nor, however, despite having responsibility under § 602 of Title VI of the Civil Rights Act of 1964 to review plans for federally funded public housing to ensure compliance with federal civil rights law, see 42 U.S.C. § 2000d-1 (1994), did HUD criticize the WFP. Rather, when NYCHA sought HUD’s approval for the WFP and Project Choice, HUD’s response with respect to the WFP—unlike its reaction to Project Choice, which HUD found “ ‘not likely to affect the racial identifiability of developments in New York City for the remaining period of the Davis TSAP,’ ” Davis II, 1997 WL 407250, at *5 (quoting HUD letter to NYCHA dated October 24, 1996)—was to remind NYCHA that it must give notice of the proposed WFP and that it must “ ‘be mindful of the injunctive relief provided for by the Davis consent decree and its responsibilities under civil rights statutes.’” Davis II, 1997 WL 407250, at *5 (quoting HUD letter to NYCHA dated July 31, 1996). We too are mindful of NYCHA’s responsibilities under the Decree and the civil rights laws, and we conclude that the assessment of whether the effects of the WFP are legally significant involves a balancing of the inter- est in eradicating the past effects of segregation against the interest in achieving financial stability in public housing. The latter is reflected in the public housing statutes discussed above. The district court acknowl- edged that interest, see Davis II, 1997 WL 407250, at *14, as well as the existence of cause for concern on the part of NYCHA, see id. at *4 (noting that the percentage of applications from families who are homeless or in the lowest income category had risen from approximately 33% to 77.6%). And plaintiffs did “not dispute, that 4la unless a higher proportion of applicants with higher incomes receive rentals, the stability of the [NYCHA] projects will be jeopardized.” Jd. At the same time, we think it plain that Congress did not mean to cause public housing agencies to implement plans for financial deconcentration in a way that would violate the civil rights laws. And we take into account the fact that, in the present case, the concentration of most of the white families in a small percentage of the projects was the consequence of NYCHA policies and practices that—as acknowledged by NYCHA in urging judicial approval of the Consent Decree—included racial steering, withholding of information that could have led minority applicants to rent apartments in predominantly or disproportionately white projects, misrepresentations that deterred such integrated rentais, and favorable treat- ment for white applicants seeking housing in predomi- nantly or disproportionately white projects. As a result, when the Decree was entered, NYCHA had placed more than 71% of its white families in 35 of its 320-odd pro- jects. (See NYCHA Tenant Statistics by Race as of Dec. 31, 1992.) More than 51% of the white families (7,929 of 15,530) lived in the 20 projects that are at issue on this appeal (see id.); and that concentration level declined little after the implementation of the TSAP. As of January 1, 1999, there were a total of 12,185 white families residing in NYCHA projects (see NYCHA 1999 Tenant Characteristics Tabulation at 1), and 5771 of them lived in the 20 projects covered by the injunction (see id. at 25, 29, 59, 104, 119, 126, 133, 136, 177, 192, 193, 203, 207, 223, 236, 241, 251, 258, 262, 297). Thus, when the permanent injunction was. entered, 20 of NYCHA’s 322 housing projects (6.2%) still housed 47.36% of the white families. 42a Balancing all of the factors, we conclude that in the circumstances of this litigation, the district court deter- mined correctly, with respect to most—although not all—of the 20 projects in question, that the desegrega- tion delays that would be caused by implementation of the WFP are legally significant. In reaching this con- clusion, we consider the delays not just in terms of per- centages but also as real-time intervals. With that focus, which is somewhat broader than that of the district court, we see significant distinctions between certain cate- gories of projects: There are two projects that were in effect desegregated prior to the entry of the permanent injunction, four projects at which the WFP is predicted to delay the achievement of desegregation by very small intervals of real time, several others at which desegre- gation will be delayed for a large number of years, still others that would otherwise eventually be desegregated but that will never reach the 30% level under the WFP, and two projects that will never reach the 30% level with or without the WFP. ; The projects covered by the injunction, see Part I.D. above, and Davis VII, 103 F.Supp.2d at 231, are ranked below in order of the time it will take their white tenant populations to decline to the 30% level under the WFP, with the last column showing the differential between that time and the time each would need to reach that level without the WFP. Months to Months to Reach 30% Reach 30% Project Without WFP With WFP Differential Holmes Towers Already below 30 None n/a Straus Already below 30 None n/a Months to Months to _Reach 30% Reach 30% Project Without WFP WithWFP Differential Pelham Parkway 6 8 2 months Bay View 17 21 4 months Isaacs 18 29 11 months Sheepshead Bay 23 35 12 months Nostrand 57 85 2.33 years Pomonok 84 171 7.25 years Todt Hill 103 198 7.92 years Forest Hills 149 246 8.08 years Independence 620 899 23.25 years _ Williams 707 1066 29.92 years Taylor/Wythe 649 1323 56.17 years Haber 146 Will never reach 30% South Beach 163 Will never reach 30% Berry 195 Will never reach 30% Cassidy- Lafayette 195 Will never reach 30% Robbins Plaza 355 Will never reach 30% Middletown Plaza Never 30% Will never reach 30% New Lane’ Never 30% Will never reach 30% Although Holmes Towers and Straus, respectively, had white populations of 30.6% and 30.4% as of June 1998, see Davis V, 60 F.Supp.2d at 233, Table 8, they were, factoring in the Davis move-ins, at 26.6% and 28.5% respectively, by the time the injunction was made per- manent, see id. at 229, Table 5; Davis VII, 103 F.Supp.2d at 231. There was no prediction that the white tenant populations in those two projects would rise above the 30% level as a result of the WFP. In Davis III, plaintiffs agreed that the WFP should not be enjoined at projects 44a whose white tenant population was not above 30%. See 1997AWEL-711360, at *4-*5. More importantly, 30% has been used by the district court throughout as the measure of segregation. In the circumstances, we conclude that Holmes Towers and Straus should not have been deemed still segregated. The effects of the WFP in delaying fur- ther integration of those projects should not have been found legally significant, and implementation of the WFP at those projects should not have been enjoined. At four projects, the desegregation delays caused by implementation of the WFP would range from two months to 12 months. The delays of two months and four months for Pelham Parkway and Bay View, respectively, are not legally significant but rather are de minimis. Nor do we view the delays of 11 and 12 months for Isaacs and Sheepshead Bay, respectively, as impermissibly long. Substantial strides in desegregating those projects have been made since entry of the Consent Decree, caus- ing them to approach the 30% level. Thus, whereas on December 31, 1992, Isaacs and Sheepshead Bay, respec- tively, had white tenant populations of 52.9% and 54.1% (see NYCHA Tenant Statistics by Race as of Dec. 31, 1992), by January 1, 1999, their respective white tenant populations were 36.3% and 35.0% (see NYCHA 1999 Tenant Characteristics Tabulation at 136, 236). Given this history and the valid objective of financial stability, we conclude that the delays of 11 and 12 months at those two projects are not legally significant. In sum, we con- clude that implementation of the WFP at Pelham Park- way, Bay View, Isaacs, and Sheepshead Bay should not be enjoined. The WFP’s effects at the 14 remaining projects, sub- stantially delaying their desegregation, are legally sig- nificant. Although the law tolerates some “reasonable delay” in achieving desegregation, nearly a decade has 45a . passed without these projects’ nearing the 30% deseg- regation level. All of these 14 projects had white tenant . populations substantially in excess of 30% when the Consent Decree was entered in 1992, and they still had white populations substantially in excess of 30% in 1999. Indeed, nine of them remain more than 50% white. The anticipated pace of desegregation under the original TSAP in most cases already provided for additional “reasonable” delay. For example, even without the WFP, the projected time remaining after 1999 for desegrega- tion of the Pomonok and Todt Hill projects was some seven or eight years, i.e., some 13-14 years after entry of the Decree. We regard NYCHA’s proposed expanded delays, most ranging from more than seven years to eter- nity, as legally significant, and we see no abuse of dis- cretion in the district court’s permanent injunction against implementation of the desegregation-delaying WFP at these remaining projects. We recognize that it is predicted that three projects (Independence, Williams, and Taylor/Wythe) even under the original TSAP would not be desegregated for more than a half-century. Those target dates are indeed distant. But the WFP’s impact, delaying the ultimate desegre- gation of those projects for an additional 23-56 years, is a perpetuation of desegregation that we cannot deem insignificant. Further, though the anticipated dates of desegregation of five projects (South Beach, Berry, Cas- sidy-Lafayette, Robbins Plaza, and Haber) are also more than a decade away without the WFP, under the WFP desegregation would never be achieved. We cannot view such “delays” as not legally significant. Lastly, at Middletown Plaza and New Lane, a reduc- tion to the 30% level is not expected under either plan. Although the WFP thus would not prevent the actual desegregation of those projects, its implementation | 46a would have legal significance, for it would impede or reverse the expected five-year decreases in white-fam- ily concentration. According to Table 5 in Davis V, 60 F.Supp.2d at 229, white family tenancy at New Lane would decrease from 73% to 64.8% without the WFP; but it would decline only to 71.1% with the WFP. And at Middletown Plaza, which is projected for only a modest decrease from 51.8% to 49.4% without the WFP, adop- tion of the WFP would actually increase the percentage of white families from 51.8% to 60.1%. Thus, though Middletown Plaza and New Lane would not reach deseg- regated levels even without the WFP, the degree of seg- regation would be significantly greater with the WFP. In sum, we conclude that at those six projects where the WFP will not delay the reduction of the white tenant population to 30% either at all or by more than 12 months, the effects of the WFP are not legally signifi- cant. At the remaining 14 projects, the delays that would | be caused by the WFP are legally significant, and imple- mentation of the WFP at those projects was properly enjoined. It is, of course, well established that a district court has the power, in the exercise of its discretion, to mod- ify its past injunctive decrees in order to accommodate changed circumstances. See, e.g., United States v. United Shoe Machinery Corp., 391 U.S. 244, 248-49, 251 (1968); System Federation No. 91, Railway Employees’ Department v. Wright, 364 U.S. 642, 646-48 (1961); Fed. R. Civ. P. 60(b)(5). It remains open to NYCHA to move for a modification of the present injunction against implementation of the WFP at any of the remaining 14 projects in the event that the number of apartments rented to white families at such project declines to the 30% level. 47a CONCLUSION We have considered all of NYCHA’s contentions on this appeal and, except as indicated above, have found them to be without merit. The order of the district court is reversed to the extent that it enjoined NYCHA from implementing the WFP at the Bay View, Holmes Towers, Isaacs, Pelham Parkway, Sheepshead Bay, and Straus projects; in all other respects, the injunction is affirmed. JOHN M. WALKER, JR., Chief Judge, dissenting: I am concerned that the majority, in its effort to more rapidly rectify the past discriminatory practices of the New York City Housing Authority (““NYCHA”), has endorsed a questionable attempt at social engineering and, in doing so, has reached a decision that may well have the practical effect of making several of the hous- ing projects in New York City worse. Although the majority acknowledges the importance of working fam- ilies to the financial and social stability of public hous- ing, its treatment of the working family preference (“WFP”) leaves the impression that those interests must always yield to a desegregation remedy, however crafted. I disagree with any such implication, and with the majority’s rejection of the position in favor of the WFP taken by the NYCHA. As the agency charged with administering public housing, the NYCHA should generally be allowed to implement critical objectives such as the WFP even though it might slow the pace of desegregation some- what. The NYCHA has acknowledged the wrongfulness of its past practices of segregation and is now working to promote desegregation. In my opinion, the WFP repre- 48a sents a good faith effort by the NYCHA to maintain the viability of public housing in New York City by striking a balance between rapid desegregation and the values promoted by social and financial stability. That such a balance needs to be struck cannot be doubted. As Congress found in the “Findings and Purposes” section of the Quality Housing and Work Responsibility Act of 1998, “the public housing system is plagued by a series of problems, including the concentration of very poor people in very poor neighborhoods and disincentives for economic self-sufficiency.” Pub. L. No. 105-276, § 502(a)(3), 112 Stat. 2518, 2520. Congress further made the significant finding that the “public interest[] will best be served by a reformed public housing program that,” among other things, “vests in public housing agen- cies that perform well the maximum feasible authority, discretion, and contro] with appropriate accountability . [and that] rewards employment and economic self-sufficiency of public housing residents.” Id. § 502(a)(5)(C) & (D), 112 Stat. at 2521 (emphasis added). The plaintiffs themselves have acknowledged the important values promoted by the WFP in the consent decree. The consent decree authorizes the NYCHA to “seek to achieve a tenant body in each Project composed of families with a broad range of incomes, generally rep- resentative of the range of incomes and rent-paying abil- ities of lower income families in its geographic operating area to the extent permitted under 42 U.S.C. § 1437d(c)(4)(A)(iv), 24 C.F.R. § 960.205, and 24 C.F.R. Part 913.” (Majority Op. at 7 (quoting Consent Decree 4 8)). Section 1437d(c)(4)(A)(iv) in turn requires every contract for contribution to provide that the public hous- ing agency will comply with requirements prescribed by the Secretary of Housing and Urban Development, ee including the selection of tenant criteria that “are 49a designed to ensure that, to the maximum extent feasible, the projects of an agency will include families with a broad range of incomes and will avoid concentrations of low-income families and deprived families with serious social problems.” 42 U.S.C. § 1437d(c)(4)(A)(iv) (1992) (emphasis added). Similarly, 24 C.F.R. § 960.205 man- dates that tenant selection criteria “shall be reasonably related to individual attributes and behavior of an appli- cant and shall not be related to those which may be imputed to a particular group or category of persons of which an applicant may be a member.” 24 C.F.R. § 960.205 (1992) (emphasis added). Although we should never blindly defer to agency decisions, I do not think that the NYCHA’s congres- sionally-authorized WFP should be enjoined without a project-by-project and in-depth examination of the rel- ative importance of project stability and the other values promoted by the WFP, on the one hand, and the rate at which desegregation targets are met, on the other. The majority's adherence to the district court’s talismanic number of 30% for whites is no substitute for such an examination. While the 30% figure was accepted by the NYCHA as an aspirational goal in the consent decree, that was long before it could have been known that the 30% figure would be a barrier to the implementation of the WFP. The 30% number seems to have been picked out of thin air. Why not 25% or 35% or 40%? Why not a different number for different projects? In my view, the 30% figure amounts to an arbitrary number that is being used to frustrate the considered policy of the NYCHA. Putting aside the counter-intuitive notion that permeates the district court’s analysis, affirmed by the majority, that a project with more than 30% white-occupied apart- ments is “predominantly white” (Majority Op. at 13) and thus is segregated, it is clear that the color-blind WFP 50a would not perpetuate such “segregation” but, except for Middletown Plaza which is located in a largely white area, would reduce it, albeit more slowly than under the tenant selection and assignment plan (“TSAP”). More- over, under the district court’s and the majority’s hold- ings, the 30% figure sheds its aspirational character and effectively becomes a quota which, should the NYCHA fail to meet it with sufficient dispatch, penalizes a hous- ing project by denying to it the WFP. In sum, the practicai effect of the majority’s decision is to deny housing to people who deserve it because of their hard work or other merit solely on the basis of their race or ancestry, to frustrate the worthwhile efforts of the NYCHA to reward and promote employment and economic self-sufficiency in its tenants, and to deny the existing tenants the obvious benefit of having working families as their neighbors. I am concerned that by over- riding the NYCHA’s policy decision for the sake of more rapid desegregation, the majority’s decision could result in the deterioration of the New York City housing pro- jects that remain under the injunction to the point where the achievement of its desegregation targets would be a Pyrrhic victory. I respectfully dissent. dicteeltinebite da Vesa athena S5la UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 90 Civ. 628 (RWS) PAULINE DAVIS, CYNTHIA WILLIAMS, CORNELIA SIMMONS, and KIM RIVERA, on behalf of themselves -and all others similarly situated, Plaintiffs, —against— THE NEW YORK CITY HOUSING AUTHORITY, ; Defendant. 92 Civ. 4873 (RWS) UNITED STATES OF AMERICA, Plaintiff, —against— THE NEW YORK CITY HOUSING AUTHORITY, Defendant. 52a APPEARARNGLE S: ~ THE LEGAL AID SOCIETY CIVIL DIVISION Attorney for Plaintiff Class in Davis 90 Church Street, 15th Floor New York, NY 10007 By: SCOTT A. ROSENBERG, Director of Litigation HELAINE BARNETT, Esq., Attorney-in-Charge Of Counsel THE NEW YORK CITY HOUSING AUTHORITY Attorney for Defendant 75 Park Place, 11th Floor New York, NY 10007 By: JEFFREY SCHANBACK, General Counsel HENRY SCHOENFELD, ESQ. NANCY M. HARNETT, ESQ. STEPHEN W. GOODMAN, ESQ. Of Counsel OPINION Sweet, D.J., This action has been remanded to this Court for sup- plementation of the record, see Davis v. New York City Hous. Auth., No. 99-6238 (2d Cir. Feb. 23, 2000) (sum- mary order), following the appeal of defendant The New York City Housing Authority (“NYCHA”) from this Court’s grant of a permanent injunction to plaintiffs Pauline Davis et al. (the “Davis Plaintiffs”) enjoining NYCHA from implementing the Working Family Pref- erence (“WFP”) at NYCHA housing projects with a dis- proportionately high rate of white occupancy (the “Disproportionate Projects”), see Davis v. New York City Hous. Auth., 60 F. Supp.2d 220 (S.D.N.Y. 1999). The Kot tat es Ax ——T ee Se — a“ dite o/ ath 6 casted, PS ee 53a Court of Appeals has directed further factual develop- ment as to three questions: (1) how actual move-out rates in 1998 under the WFP affect the analyses of the expert witnesses; (2) a comparison of how many months it is expected to take to achieve a white occupancy rate below 30% at each of the Disproportionate Projects under the original Tenant Selection and Assignment Plan (“TSAP”) versus under the TSAP as modified by the WFP; and (3) whether the tables presented in this Court’s prior opinion of August 11, 1999, see Davis v. New York City Hous. Auth., 60 F. Supp.2d 220 (S.D.N_-Y. 1999), should be revised to reflect a projected white admissions rate below 9.9%. The background and prior proceedings in this action have been set forth in previous opinions and will not be recounted here. See Davis v. New York City Hous. Auth., 1992 WL 420923 (S.D.N.Y. Dec. 31, 1992) (Davis 1); Davis v. New York City Hous. Auth., 1997 WL 407250 (S.D.N.Y. July 18, 1994) (Davis II); Davis v. New York City Hous. Auth., 1997 WL 711360 (S.D.N.Y. Nov. 13, 1994) (Davis II1); Davis v. New York City Hous. Auth., 166 F.3d 432 (2d Cir. 1999) (Davis IV); Davis v. New York City Hous. Auth., 60 F. Supp. 2d 220 (S.D.N-Y. 1999) (Davis V); Davis v. New York City Hous. Auth., No. 99-6238 (2d Cir. Feb. 23, 2000) (summary order) (Davis VI). Following remand, briefs and affidavits were submitted addressing the questions raised by the Court of Appeals. Oral argument was heard on May 3, 2000. I. Actual 1998 Move-out Rates and Their Effect on the Experts’ Conclusions The first question raised by the Court of Appeals was “whether and to what extent actual move-outs corre- spond with projected move-outs and whether and to what 54a extent the actual numbers influence the experts’ con- clusions.” Davis VI, at 2. Plaintiffs’ expert, Dr. Leonard A. Cupingood (“Dr. Cupingood”) has set forth the relevant data in Table 1 of his April 13, 2000 Affidavit. NYCHA’s expert, Dr. - David W. Peterson (“Dr. Peterson”) has set forth com- parable data in Tables 2a and 2b of his Seventh Affi- davit. The 1998 numbers differ slightly between the two sets of data because Dr. Peterson used a methodology to adjust NYCHA’s internally inconsistent data, while Dr. Cupingood used the NYCHA data without making the adjustment. (See Peterson Eighth Aff. § 10 n.3; Cupin- good April 28, 2000 Aff. ¢19 n.1.) It is not clear whether the adjusted or the non-adjusted data is better for the comparison made here. (See Cupingood April 28, 2000 Aff. 919 n.1.) In any event, as explained below, the experts agree that use of the actual 1998 data does not necessarily increase accuracy nor does it influence their conclusions; thus, differences between the two sets of data are immaterial. For convenience, both Dr. Cupin- good’s and Dr. Peterson’s data are reproduced below in Table 1. Table 1 Overall White _ Non-White Project* Rate(%)** Rate (%) Rate ( %) 1991- 1998 1991- 1998 1998 1991- 1998 1998 94 _ 94 \(Cup.) (Pet.) 94 (Cup.) (Pet.) Bay View , 6.5 | 4.9, 9.1) 7.5) 7.7) 2.9) 3.4 | 4.5) Berry + 6.5 |10.0) 7.4) 10.1 | 9.4) 3.5) 9.8 |13.7. \Cassidy- | | | | | Lafayette | 10.3 | 12.9 12.9 | 13.5 |14.0; 4.5 12.4 | 14.7 | t ——— \ForestHills; 4.5 | 2.5) 5.8) 3.3 | 7.4) 2.5) 16 | 0.0) EE ee Haber | 8.7 | 82/100 63 7.3| 74/103 (12.1. i a ee ee 55a Overall White Non-White Project* Rate(%)** Rate (%) Rate (%) 1991- 1998 1991- 1998 1998 1991- 1998 1998 94 94 (Cup.) (Pet.) 94 (Cup.) (Pet.) Holmes Towers 8.3 8.1 9.7 10.1 Do | teh i: tom 8.6 Independ- ence 1.6 3.7 ®, kt Be = 6 49 40.8 Isaacs 6.0 6.3 8.0 8.3 6.3 a4 1: 35 6.9 Middletown Plaza 12.0 10.9 10.4 14.7 14.7 (15.4 > 63 ° 7.5 ‘New Lane 8.7 9.5; 9.5 | 10.6 ($11.1 4.2: 68 | 8.1 Nostrand LR. 7.0: 8.2 8.7 | 89) 46; 5.7 | 6.8 Pelham Parkway 6.2 6.2) 80 66: 62 3.9! 5.9: 8.7 Pomonok 5.5 6.9 6.1 7.5 74 46 > 6.4 9.0 Robbins Plaza 11.4 | 15.3 ' 12.7 | 20.5 ‘20.5 |} 8.5; 9.0 ;11.9 Sheepshead Bay 7.5 7.4; 95; 94: 9.1 ; 4.8; 6.2 | 8.1 South Beach 7.4 65 | 84; 5.7 | 6.1 3.3 | Fae | 7 Straus 4.4 34; $9 | 2.35 | 2.5 | £.2| 3.8 | 44 Taylor St./ Wythe Ave; 2.2 | 2.7 | -1.5 1.1 R.3 i 2.8) OF ; 7 Todt Hill | 6.0 5.8: 76; 66) 7 3.31 32 | $8 Williams 2.0 24| Hi 28 i 2a! 2.8) 2H i 2A ‘Overall*** 68 7.3, 86 8.8 4.4 6.5 * Peterson includes Glenwood, but it is no longer a Dispropor- tionate Project, so it is omitted here. ** Peterson does not include statistics on the overall rate. *** Weighed by the Number of Move-Outs; Peterson does not cal- culate this figure. Dr. Cupingood has concluded that using actual 1998 turnover rates, as opposed to historical turnover rates 56a from the period 1991 to 1994, “does not necessarily lead to more accurate projections of future occupancy levels because the 1998 rates reflect a single year, rather than a four-year period.” (Cupingood April 13, 2000 Aff. ¢ 3(a).) Turnover rates for a single year “can be expected to have a higher variation than during a four-year period.” (Jd. ¢4.) Dr. Peterson has concluded that use of 1998 turnover rates “is generally typical of the values that occurred in 1991-94,” and therefore “the effect of knowing the actual turnover rates for 1998 is not so much to change the projections into the future as it is to emphasize the fact that they are uncertain.” (Peterson Seventh Aff. ¢ 12.) Dr. Peterson, nevertheless, agrees with Dr. Cupingood that use of the actual 1998 numbers does not necessarily increase the accuracy of the pro- jections. (Peterson Eighth Aff. 49.) Use of the actual 1998 numbers did not influence the experts’ conclusions. ' ' Dr. Cupingood did, however, note that use of actual 1998 rates “causes an increase in the expected segregative impact of the WFP.” (Cupingood April 13, 2000 Aff. € 3(a).) Dr. Cupingood esti- mates that, using the 1998 data, a white admissions rate of 9.9%, and separate turnover rates by race would result in 497 more white fam- ilies at the 20 Disproportionate Projects after five years, as compared with 422 using the 1991-1994 rates. (See id. ¢7.) After ten years, the 1998 data would result in 816 more white families as opposed to 696 using the 1991-1994 rates. (See id. ¢ 10.) Dr. Peterson, by contrast, concludes that use of the 1998 turnover rates would cause an increase in the time required to reach 30% white occupancy under the WFP for certain of the Disproportionate Pro- jects, and a decrease in the time for certain other Disproportionate Projects. (See Peterson Eighth Aff. ¢ 13.) 57a Il. Expected Delay in Reaching 30% White Occu- pancy Rate Under TSAP Versus WFP The second question raised by the Court of Appeals was “(a) under the original Tenant Selection and Assign- ment Plan (“TSAP”), how many months [is it] expected to take to achieve a white occupancy rate below 30% at [each of the Disproportionate Projects]; and (b) under the modified TSAP incorporating the WFP, how many months [is it] expected to take to achieve a white occu- pancy rate below 30% at [each of the Disproportionate Projects?]” Davis VI, at 2. The Court of Appeals did not specify whether it wished this question to be answered using projections from the 1998 move-out rates or from the 1991-94 rates. As set forth above, because the experts agree that the 1991-94 rates are as acceptable as the 1998 rates, the data set forth here is based on projections from the 1991- 94 rates. Data using the 1998 rates has also been calcu- lated and is contained in the affidavits of Dr. Cupingood and Dr. Peterson. In addition, for the reasons set forth below in Section III of this opinion, the calculations of delay assume a 9.9% white admissions rate. Finally, it is appropriate to utilize statistics based on turnover by race, as opposed to overall turnover. Dr. Cupingood has set forth the relevant data in Table 6A of his April 13, 2000 Affidavit. For convenience, the portion relevant to the question raised by the Court of Appeals is reproduced below as Table 2. Dr. Peterson’s calculations are rejected because they were done assum- ing a 6.28% white admissions rate without the WFP and an 8.28% rate with the WFP. (See Peterson Seventh Aff. § 19.) The calculations previously adopted by this Court in Davis V were made assuming a 4.2% white admis- sions rate without the WFP, see Davis V, 60 F. Supp. 2d 58a at 238 n.16, and the Court of Appeals did not remand for the purpose of reconsidering that rate. Table 2 Project Months to Reach Months to Reach 30% Without WFP 30% With WFP Bay View 17 21 Berry 195 Will Never Reach 30% Cassidy-Lafayette 195 Will Never Reach 30% Forest Hills 149 246 | 'Haber 146 Will Never Reach 30% Holmes Towers Already Below 30%* Already Below 30%* Independence | 620 899 Isaacs | 18 = 29 Middletown Plaza Will Never Reach 30% Will Never Reach 30% New Lane Will Never Reach 30% Will Never Reach 30% Nostrand 57 85 Pelham Parkway | 6 8 -Pomonok 84 171 Robbins Plaza 355 _ Will Never Reach 30% Sheepshead Bay | 23 | 35 | South Beach 163 - Will Never Reach 30% Straus _ Already Below 30%* Already Below 30%* | Taylor St./ | | Wythe Ave. 649 i 1323 | Todt Hill | 103 198 | ‘Williams | 707 if 1066 | * After Davis Move-Ins. Ill. The Tables in Davis V Will Not Be Revised The third request of the Court of Appeals was that this Court “consider whether the tables presented in its opin- ion that relied on the 9.9% admissions rate should be 59a revised in light of Dr. Cupingood’s July 27, 1999 affi- davit.”” Davis VI, at 3. The 9.9% projected white admission rate under the WFP was arrived at by Dr. Cupingood using a computer simulation and 1995 data, before the WFP went into effect. Using actual data from 1998, adjusted for the “pipeline effect” and other factors, Dr. Peterson con- cluded that the actual white admission rate would be 6.88%. (Peterson Seventh Aff. 45.) Dr. Cupingood dis- puted this figure, asserting that the proper rate would be 8.53%. (Cupingood July 27, 1999 Aff. 4 10.) Dr. Cupin- good acknowledges that the calculation of the 8.53% rate was based on a copying error and that the correct rate using that methodology should have been 8.28%. (Cupingood April 13, 2000 Aff. 4 25.) Dr. Cupingood does not believe, however, that his cal- culations should be adjusted for an 8.28%, rather than 9.9%, rate, as the existence of this Court’s injunction at the Disproportionate Projects could have led to white “turndowns,” i.€., certain white families may have declined offers to live in public housing unless they could live in a predominantly white project. (Cupingood April 13, 2000 Aff. § 26.) To buttress this proposition the Davis Plaintiffs cite to John Yinger, Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination 13-14 (1995) (noting that many white families prefer neighbors who are also white), and to various cases, see United States v. Starrett City Assocs., 840 F.2d 1096, 1099 (2d Cir. 1988); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 110 (1979); Barrick Realty, Inc. v. City of Gary, 354 F. Supp. 126, 135 (N.D. Ind. 1973), aff’d 491 F.2d 161 (7th Cir. 1974). NYCHA, though it disputes the admissibility of the Yinger cite as evidence, is unable to contravene the unfortunate fact of the underlying proposition. aaa aii aici aati. 60a Dr. Cupingood also asserts that Dr. Peterson invalidly compared data between 1997 and 1998, because the applicant pools differ each year. (Cupingood April 28, 2000 Aff. 4 2(c).) Dr. Peterson responds that Dr. Cupingood has pro- vided no evidence to support the assertion that the WFP would artificially lower the system-wide intake rate for white families below 9.9%. (See Peterson Eighth Aff. 44.) Moreover, Dr. Peterson contends that Dr. Cupin- good’s calculation method already accounts for the pos- sibility of such an artificial depression, because Dr. Cupingood assumed that the percentages of white and non-white families placed in one of the Disproportion- ate Projects in the years 1991-94 would be the same as the percentages of white and non-white qualified fami- lies which in the future would desire to be placed in a Disproportionate Project, regardless of the policy under which they would qualify. (See id. 45.) Dr. Cupingood’s reasoning is more persuasive. Com- bination of the 1997 and 1998 data, which is drawn from two separate applicant pools, introduces new uncer- tainties into the calculations. Also, it is not clear from Dr. Peterson’s affidavit whether Dr. Cupingood’s methodology did in fact already account for the possi- bility of artificial depression due to the WFP. Dr. Cupin- good’s computer simulation using the 1995 data remains the best means of estimating the expected white admis- sions rate under the WFP, and consequently the 9.9% rate used in the previous findings of fact will not be revised. However, regardless of the conclusions reached in the preceding paragraph, Dr. Cupingood, in his April 13, 2000 Affidavit, has already calculated the effect of rely- ing upon a 8.28% rate revision. (See Cupingood April 13, 2000 Aff., Tables 8A-13B.) As the calculations set EO a. 6la forth in Tables 8A-13B of that affidavit demonstrate, uti- lization of an 8.28% rate does not significantly decrease the WFP’s effect of delaying the desegregation of the Disproportionate Projects. Thus, adoption of the 8.28% rate, and revision of the calculations, would not change this Court’s prior conclusion that implementation of the WFP at the Disproportionate Projects would result in a significant perpetuation of discrimination. It is so ordered. New York, NY June 20, 2000 ROBERT W. SWEET ROBERT W. SWEET U.S.D.J. 62a . UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 99-6238 Filed February 23, 2000 SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUB- LISHED IN FHE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. At a Stated term of the United States Court of Appeals for the Second Circuit, held at the United States Court- house, Foley Square, in the City of New York, on the 23 day of February two thousand. PRESENT: Hon. Amalya L. Kearse, Hon. John M. Walker, Jr., Hon. Rosemary S. Pooler, Circuit Judges. 63a PAULINE DAVIS; CYNTHIA WILLIAMS; BLANCA IRIS HERNANDEZ, on behalf of themselves and all others similarly situated; GINA CAMPBELL, on behalf of themselves and all others similarly situated; JEANETTE VARGAS, on behalf of themselves and all others sim- ilarly situated; CORNELIA SIMMONS; KIM RIVERA, Plaintiffs-Appellees, NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant. APPEARING FOR APPELLANT: HENRY SCHOENFELD, of Counsel! (Jeffrey Schanback, General Counsel, on the brief), New York City Housing Authority, New York, NY APPEARING FOR APPELLEES: SCOTT A. ROSENBERG, Director of Litigation (Helaine Barnett, Attorney-in-Charge, on the brief), The Legal Aid Society, Civil Appeals & Law Reform Unit, New York, NY Appeal from the United States District Court for the Southern District of New York (Sweet, J/.). 64a UPON DUE CONSIDERATION, IT Is HEREBY ORDERED, ADJUDGED AND DECREED that this matter is remanded to the district court for supplementation of the record. Defendant-appellant New York City Housing Author- ity (“Authority”) has appealed from the August 11, 1999 judgment of the district court granting the motion by plaintiffs-appellees Pauline Davis et al. (“plaintiffs”) for an order permanently enjoining the Authority from implementing the working family preference (“WFP”) at housing projects whose tenant body is more than 30% white. Following consideration of the briefs and oral argu- ments of the parties and the record on appeal, the panel has determined that it would benefit from further factual development in three areas. First, we would like to know how the actual figures for move-outs under the WFP, to the extent such data are available, affect the analysis of the expert witnesses. For example, plaintiff's expert’s projections were based on historical move-out rates from the period 1991-94. However, beginning in 1998, the WFP has been implemented at all projects not covered by the injunction, so that data as to actual move-outs by race or ethnicity may be available. Plaintiff’s counsel indicated at oral argument that actual move-out figures from 1998 were not available at the time of the hearing below. If these data are currently available, we would like to know whether and to what extent actual move- outs correspond with projected move-outs and whether and to what extent the actual numbers influence the experts’ conclusions. Second, because the legal significance of the impact of the WFP on the rate of desegregation of the sites covered by the district court’s injunction may turn in substantial part on the expected delay, if any, in deseg- regating each project if the WFP is implemented there, en 4 Seem Meee 65a we would like to have data as to each project bearing on the following questions: (a) under the original Tenant Selection and Assignment Plan (“TSAP”), how many months it is expected to take to achieve a white occu- pancy rate below 30% at that project; and (b) under the modified TSAP incorporating the WFP, how many months it is expected to take to achieve a white occu- pancy rate below 30%. Third, we suggest that the district court revisit the question of whether to credit projections that relied on an estimation that white admissions under the WFP would increase to approximately 9.9%. Plaintiff’s expert, Dr. Leonard Cupingood, on whose data the dis- trict court relied, appears to suggest in an affidavit dated - July 27, 1999 that using actual figures on white admis- sions under the WFP, after accounting for the so-called “pipeline effect” and other factors, reduces the projected white admissions rate to 8.53%. The Authority notes in response that correction of a calculation error by Dr. Cupingood would lower this figure to 8.28%. Although Dr. Cupingood states that the revised figure of 8.53% would not alter his “fundamental conclusion that the WFP will significantly slow or reverse desegregation at the 21 Disproportionate Projects,” the effect of the WFP at each housing project should be evaluated on the basis of tables that rely on an estimated white admissions rate that is as accurate as possible. We therefore ask the dis- trict court to consider whether the tables presented in its opinion that relied on the 9.9% admissions rate should be revised in light of Dr. Cupingood’s July 27, 1999 affi- davit. Accordingly, we remand this case to the district court for supplementation of the record, pursuant to the pro- cedures described in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994). We request that, within sixty 66a days of this order, the district court, after receiving any additional submissions from the parties and their experts, make further express findings and, if warranted, modify its existing findings. The mandate shall issue forthwith and shall state that the parties are to inform the clerk of this court when the district court has issued its supplementation of the record in accordance with this order. Following such notification, jurisdiction of the appeal will be automat- ically restored to this court, and the clerk will reassign the appeal to this panel, without a need for either party to file a new notice of appeal. After jurisdiction is restored, the clerk shall set an expedited briefing sched- ule, and the parties may, if they wish, submit supple- mental letter briefs not to exceed 10 single-spaced pages confined to the implications on the case of the data requested in this order and the district court’s findings with respect thereto. It is unlikely that further oral argu- ment will be necessary. FOR THE COURT: Roseann B. MacKechnie, Clerk By: LUCILLE CARR Lucille Carr, Deputy Clerk eee a — per el _—_ a ee 67a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 90 Civ. 0628 (RWS) PAULINE DAVIS, et al., on behalf of themselves and all others similarly situated, Plaintiffs, —against— THE NEW YORK CITY HOUSING AUTHORITY, Defendant. 92 Civ. 4873 (RWS) UNITED STATES OF AMERICA, Plaintiff, —against— THE NEW YORK CITY HOUSING AUTHORITY, Defendant. 68a APPEARANCES: THE LEGAL AID SOCIETY CIVIL DIVISON Attorney for Plaintiffs 90 Church Street, 15th Floor New York, New York 10007 By: HELAINE BARNETT, Esq., Attorney-in-Charge SCOTT A. ROSENBERG, ESQ., Director of Litigation JUDITH GOLDINER, ESQ. Of Counsel HONORABLE MARY JO WHITE United States Attorney for the Southern District of New York 100 Church Street New York, New York 10007 Attorney for the United States of America By: NEIL M. CORWIN Assistant US Attorney Of Counsel JEFFREY SCHANBACK, General Counse! \ Attorney for Defendant New York City Housing Authority 75 Park Place, 11th Floor New York, New York 10007 By: HENRY SCHOENFELD, Esq. NANCY M. HARNETT, Esq. STEPHEN W. GOODMAN, Esq. JAMES R. ADOLF, ESQ. Of Counsel 69a OPINION Sweet, D.J. Once again before the Court, this time on remand, is the motion by Pauline Davis, et al (the “Davis Plain- tiffs”) to enjoin the defendant New. York City Housing Authority (“NYCHA” or the “Authority”) from imple- menting the Working Family Preference (“WFP”) con- tained in its proposed changes to its Tenant Selection and Assignment Plan (“TSAP”) incorporated by refer- ence in the Consent Decree in this action. In addition, NYCHA has moved to lift the preliminary injunction previously issued. Upon the findings and conclusions set forth below, the motion of the Davis Plaintiffs is granted, and the preliminary injunction is made perma- nent. The NYCHA’s motion is denied. As will appear in greater detail below, this action from its inception has been hard fought, and the issues have been difficult and complicated. As the Consent Decree approaches its sunset,' the Davis Plaintiffs seek to employ its provisions to achieve remediation of the con- ditions which gave rise to the action, while NYCHA contends that the Consent Decree has achieved its pur- pose. While there clearly are conflicting contentions concerning the proposed changes in the TSAP, the underlying questions during this phase of the litigation concern the continued viability and scope of the Consent Decree. The resolution of those issues overshadow and underlie the specifics of the WFP controversy. ' By its terms, the Consent Decree entered on July 1, 1992, to which the United States of America was a party, will expire on Jan- uary 1, 2001. 70a Prior Proceedings The description of the prior proceedings contained in the opinion of the Court of July 18, 1997 (the “July 18 Opinion”) remain relevant but need not be repeated. Prior decisions include Davis v. New York City Housing Authority, 1992 WL 420923 (S.D.N.Y. Dec. 31, 1992) (Davis 1); Davis v. New York City Housing Authority, 1997 WL 407250 (S.D.N.Y. July 18, 1994) (Davis II); Davis v. New York City Housing Authority, 1997 WL 711360 (S.D.N.Y. Nov. 13, 1994) (Davis III); Davis v. New York City Housing Authority, 166 F.3d 432 (2d Cir. 1999) (Davis IV), familiarity with which is assumed. Those facts and prior proceedings relevant to the instant motion are set forth below. The July 18 Opinion held that while the proposed WFP did not have an “adverse impact” on minority applicants, it would perpetuate past segregation in pre- dominantly white projects and granted the Davis Plain- tiffs a preliminary injunction prohibiting the adoption of the proposed WFP. The Court also granted NYCHA leave to apply for a modification of the injunction “upon a showing that the Working Family Preference will be implemented in a manner that will not affect desegre- gation in projects with a disproportionately high rate of white occupancy.” Davis II, 1997 WL 407250 at *18. The NYCHA filed a notice of appeal and moved for reconsideration. The motion for reconsideration was denied on November 13, 1997 on the grounds that on a motion to reconsider, the NYCHA “may not advance new facts, issues or arguments not previously presented to the court.” Davis III, 1997 WL 711360 at *3 (internal quotations and citations omitted). However, the injunc- tion was modified to permit NYCHA to implement the WFP “as proposed in any project where white families do not constitute more than 30 percent of the families at Tla the project.”? Jd. at *5. NYCHA filed another notice of appeal. On January 22, 1999, the Court of Appeals filed its opinion by Chief Judge Morey L. Sear, sitting by des- ignation, vacating the July 18 Opinion, but leaving the preliminary injunction intact, “until the district court has had the opportunity to address these matters on remand.” Davis IV, 166 F.3d at 438. In particular, the Second Cir- cuit noted that paragraph 13 of plaintiffs’ expert Dr. Cupingood’s (“Dr. Cupingood”) Second Affidavit,’ and the July 18 Opinion, were deficient because: ‘ The July 18 opinion was narrowed to enjoin the WFP at only 21 NYCHA developments classified as “predominantly white” in the TSAP which was incorporated in the Consent Decree. “Predominantly white” is the term used for projects where more than 30% of the units are rented to white families. These projects are referred to as “Dis- proportionate Projects” and/or “Affected Developments” and these terms have become terms of art in this litigation. In paragraph 13 of Dr. Cupingood’s Second Affidavit he States: I was also asked to calculate the effect that the proposed changes to the TSAP would have on slowing down the deseg- regation in projects which were more than 50 percent white as of June 1996. Information supplied to me indicated that the following 11 projects were more than 50 percent white as of June 1996—Berry, Cassidy-Lafayette. Forrest Hills, Inde- pendence, Middletown Plaza, New Lane, Robbins Plaza, South Beach, Taylor-Wythe, Todt-Hill, and Williams. Some of these projects are affected by the Davis Consent Decree. For these “Davis” projects, I first conservatively assumed that all units set aside for Davis tenants would represent replacement for white tenants. Then assuming the turnover rates and move-in rates from Appendix E of [NYCHA expert] Dr. Peterson's affidavit continued and that the pro- posed changes to the TSAP were adopted, I calculated that a) there would be no further desegregation at four of the pro- jects, b) the desegregation would be reversed at four other 72a (a) “it is unclear to which proposed change—project choice or working family preference, or both— plaintiffs’ expert attributes the perpetuation of seg- regation.” Davis IV, 166 F.3d at 437; (b) the time period during which the purported impact of the proposed TSAP changes will allegedly occur is not specified. See id. at 436; (c) there is no discussion of, or data reflecting, the so-called “existing trends” allegedly showing that additional white families admitted under the WFP will concentrate in predominantly white develop- ments. /d.; (d) the subsidiary facts and methodology underlying the ultimate finding are not adequately explained. See id.; (e) plaintiffs’ expert does not identify the precise numerical data underlying his opinion. See id at 437; (f) the names of the developments at which the WFP will allegedly perpetuate segregation is not identi- fied. See id at 436; (g) plaintiffs’ expert expressed no opinion as to whether the WFP will perpetuate segregation at ten of the developments covered by the injunction. See id; and (h) the number, fraction, or percentage of additional white families who will be admitted to each of the 21 developments as a result of the WFP is not stated. See id. projects, and c) the desegregation would be slowed signifi- cantly at three projects. Thus, adoption of the proposed changes to the TSAP would adversely affect the desegrega- tion at these majority white projects. : & f 73a The remand was filed on February 18, 1999, a pretrial conference was held, and a hearing was held on June 18, 1999. Additional affidavits, memoranda and arguments were received through July 27, 1999, at which time which the matter was deemed fully submitted. Although offered, neither party sought to examine or cross-exam- ine any of the witnesses, expert or otherwise. The Scope of the Remand Initially the Court of Appeals stated: “we consider Judge Sweet’s findings on the issue of perpetuation of segregation insufficient under Rule 52(a). While not entirely devoid of detail, Judge Sweet failed to ade- quately explain the subsidiary facts and methodology underlying the ultimate finding.” Davis IV, 166 F.3d at 436. In particular, the number of white families pro- jected to be admitted to the projects at issue was found wanting. The Court of Appeals was also unable to determine whether paragraph 13 of the affidavit of Dr. Cupingood, which was adopted by the district court as a finding, reflected changes discussed were attributable to which proposed change—project choice, the WFP, or both. The Court of Appeals also had difficulty in deter- mining the source of statistics underlying Dr. Cupin- good’s ultimate finding that the proposed WFP would perpetuate segregation at certain NYCHA developments. For these reasons, the Court concluded Dr. Cupingood’s affidavit was so “vague and conclusory” as to permit the discovery of relevant matters from the record and required remand “for proceedings consistent with this opinion.” Although the Authority did not appeal on the basis of a failure to conduct an evidentiary hearing, the Court 74a pointed out “when a factual issue is disputed, oral tes- timony is preferable to affidavits.” The Court recognized that NYCHA’s position that the effect of the TSAP on segregation was de minimis was advanced after the filing of the notice of appeal and had not been dealt with by the district court, but noted that on remand the proper standard to be applied is “whether the proposed working family preference will signifi- cantly perpetuate segregation at the relevant NYCHA developments.” Davis IV, 166 F.3d at 438 (emphasis in original). The Facts Based upon the hearing, the facts set forth in the affi- davits of Dr. Cupingood and Dr. David W. Peterson (NYCHA’s expert witness) (“Dr. Peterson”) are sup- ported by the data cited and are credible, although cer- tain of the conclusions drawn from these facts remain in contention. The facts as set forth below are found on the basis of the prior proceedings and the affidavits of the parties and the experts. Neither of the parties sought a hearing to challenge the process by which the following facts were established. A. The Consent Decree In 1992, NYCHA, the Davis Plaintiffs and the United States entered into a Consent Decree permanently enjoining various racially discriminatory tenant selection and assignment practices at NYCHA’s public housing projects. (Consent Decree {§ 4(a)-(h)). The Consent Decree provided inter alia for: (1) injunctive relief bar- ring future housing discrimination on the basis of race, color or national origin, (Consent Decree 4 4); (2) the implementation of a new TSAP which substan [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1669%3A2. Public record. Not legal advice.