Opposition Brief — New York City Housing Authority v. Davis
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In The |
Supreme Court of the United’ States
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NEW YORK CITY HOUSING AUTHORITY,
Petitioner,
- against -
PAULINE DAVIS; CYNTHIA WILLIAMS;
CORNELIA SIMMONS; KIM RIVERA, on behalf of
themselves and all others similarly situated,
Respondents.
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On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Second Circuit
¢-
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
7
Scott A. RoseNnBERG
Counsel of Record
HeLaAINeE BARNETT
Attorney-in-Charge
THe Lecat Aip Society
Civil Division
Temporary Address: \
166 Montague Street
Brooklyn, New York 11201
718-422-2858
Attorneys for Respondents
COCKLE LAW BRIEF PRINTING CO. (800) 225-696 4
OR CALL COLLECT (402) 342-2831
:
|
QUESTION PRESENTED
Whether the lower courts correctly enjoined the use
of petitioner’s local admission preference at 14 public
housing projects that had been previously segregated
because of racially discriminatory housing practices,
where use of the preference would substantially delay or
reverse desegregation.
ii
LIST OF PARTIES
The petitioner is the New York City Housing Author-
ity.
The respondents are Pauline Davis, Cynthia Wil-
liams, Blanca Iris Hernandez, Gina Campbell, Jeanette
Vargas, Cornelia Simmons, and Kim Rivera, on behalf of
themselves and a class comprised of all Black or Hispanic
Applicants who applied for Conventional Public Housing
during the period beginning January 1, 1983, and ending
December 31, 1990, or extending to May 31, 1991 for
claimants who selected Staten Island as a borough of
choice on their applications or who applied at the Staten
Island Applications Office (Consent Decree {{ 2, 1/, Pet.
App. 193a, 192a).
The United States is not a party to Davis v. New York
City Housing Authority, and was not a party in the Court
of Appeals. The United States is the plaintiff in an action
consolidated with this case, United States v. New York City
Housing Authority (Consent Decree { 3, Pet. App. 193a).
ili
TABLE OF CONTENTS
Page
Fe & gs 6 + i
Eo a bbbeckekbesdectnecaeecctuensva ii
Te GI PARTI ooo acct ncecsnanscncess
OPINIONS AND ORDERS BELOW ................ 1
CONSTITUTIONAL, STATUTORY, AND REGULA-
TORY PROVISIONS INVOLVED ................- 1
STATEMENT OF THE CASE...................005- 1
A. History of Intentional Segregation in New
WI obs occ ke crests scnerencrrcnssacvate 1
B. Approval of the Consent Decree and HUD’s
Waiver of Project Choice Rules /............. 4
C. Petitioner’s Adoption of a Working Family
CN epee voce keV cecteracisenseeassares 6
D. Impairment of Desegregation Caused by the
Working Family Preferende ...............--. 9
REASONS FOR DENYING THE PETITION......... 12
POINT I
THE ISSUES RAISED BY PETITIONER ARE NOT
SUFFICIENTLY COMPELLING TO WAKRANT
THE COURT’S ATTENTION..............-+-+--: 13
A. The Issues At Stake Are Unique To Petitioner
And Unlikely To Arise In Any Other Case... 14
B. Statistical Disputes Raised by Petitioner
Involve Factual And Evidentiary Issues Speci-
fic To This Case That Do Not Warrant Review
by this Court. ..............csce ese eeeeeeeeee 17
iV
TABLE OF CONTENTS - Continued
Page
C. The Court of Appeals’ Decision Does Not Frus-
trate a National Policy Favoring Settlements
Or The Economic Integration of Public Hous-
_ PEPE T Tee eT eee Tee eT E Te Te TTT eT Pe eT eee 18
D. The Court of Appeals’ Decision Does Not
gf tet Pee rrr rrr err ree 23
POINT II
THE DECISION BELOW GAVE FULL CONSIDER-
ATION TO THE ISSUES AND DECIDED THEM
es OPEN Te er YT err rreT yy rT rr 25
A. The Court of Appeals Applied The Correct
Legal Standard For Identifying Housing Pro-
jects Infected By Past Segregation ........... 25
B. The Court of Appeals Correctly Determined
That Petitioner’s Changes Would Perpetuate
Past Segregation at 14 Housing Projects...... 28
ee 8 Pe er Seer er rere errr re Te ere 30
TABLE OF AUTHORITIES
Page
CASES
Anderson v. Bessemer City, 470 U.S. 564 (1985) ....26, 27
Arthur v. Nyquist, 712 F.2d 816 (2d Cir. 1983), cert.
deneed, S67 93.5.. 220 F CAG aks waco awan ss en vanes 29
Brown v. Board of Education, 892 F.2d 851 (10th Cir.
1989), vacated, 503 U.S. 978 (1992), reinstated in
full, 978 F.2d 585 (10th Cir. 1992), cert. denied,
Som US. Ga Cee ids cs dba nee cose ae 28
Coalition to Save Our Children v. State Bd. of Educ.,
FO FOG 7a (OG COR. Ree aac se cee 28
Davis v. New York City Housing Authority, 1992 U.S.
Dist. LEXIS 19965 (S.D.N.Y. Dec. 30, 1992)
te a ewe rer rte rere fy er ee ‘4
Davis v. New York City Housing Authority, 1997 U.S.
Dist. LEXIS 10451 (S.D.N.Y. July 17, 1997)
(Gas ED. ok bean are e ene ae passim
Davis v. New York City Housing Authority, 1997 U.S.
Dist. LEXIS 18111 (S.D.N.Y. Nov. 13, 1977)
et 8 a Pree errr errr ere re ee ys 5, 8, 22
Davis v. New York City Housing Authority, 60
F. Supp. 2d 220 (S.D.N.Y. 1999) (“Davis VI”) .. passim
Davis v. New York City Housing Authority, 2000 U.S.
App. LEXIS 2746 (2d Cir. Feb. 23, 2000) (“Davis
VEE Dc xcncncaaddvatee seen tease ae ee 2,
Davis v. New York City Housing Authority, 103
F. Supp. 2d 228 (S.D.N.Y. 2000) (“Davis
VED 444 cc bba ee eny he eens eee ee 10, 11, 13, 17
vi
TABLE OF AUTHORITIES —- Continued
Page
Davis v. New York City Housing Authority, 278 F.3d
64 (2d Cir. 2002) (“Davis IX”)..............45. passim
Huntington Branch, NAACP v. Town of Huntington,
844 F.2d 926 (2d Cir.), aff'd, 488 U.S. 15 (1988) .... 19
Metropolitan Housing Dev. Corp. v. Village of
Arlington Heights, 558 F.2d 1283 (7th Cir. 1977),
cert. denied, 434 US. 1025 (1976) 2... ccccccscescess 19
Pennick v. Columbus Board of Education, 583 F.3d
787 (6th Cir. 1978), aff'd, 443 U.S. 449 (1979)...... 28
Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456
US. 273-439G8) os ccccnssicacsacacedsdsssnanesay 26, 27
Sarabia v. Toledo Policy Patrolman’s Ass‘n, 601 F.2d
914 (6th Cle. 197 oni cnessdigdetnss eee 29
United States v. Johnson, 268 U.S. 220 (1925) ......... 12
United States v. Scotland Neck City Board of Educ.,
407 US. 466 (1903) occ cccusncuctedesenttscessinsas 28
United States v. Starrett City Assocs., 840 F.2d 1096
(2d Cir.), cert. denied, 488 U.S. 946 (1988).......... 23
United States v. Yonkers Board of Education, 837 F.2d
1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055
(1966)... .cccccsccczatececsstvestuenenseseeeunaeeen 28
Wright v. Council of the City of Emporia, 407 U.S.
— BB (1972)... cccncccccccescscnsacsecessccsessstones 28
STATUTES AND REGULATIONS
24 CLE. § SORA) i cccccccasavcncssssivesnssases 1, 6
24 C.E.R. §& SEC.AUE) CAGE) cc vscncvcvsccsshasststoues 6
24 CLR. § SGC.ZOGIMED occ cccccedsstesccacceesessaued 6
Vii
TABLE OF AUTHORITIES - Continued
Page
Court Rutes
, ee 8 ge | errs re 1, 18, 21, 26
ee a rey Sa ener cease eaeate ieee 13, 25
MIsceELLANEOUS
HUD Public Housing Occupancy Handbook
Ps a a el can adn babdosescavekaeseen. 2
59 Fed. Reg. 36616 (July 18, 1994)................ 15, 23
66 Fed. Reg. 28776 (May 24, 2001) ................... 6
1
OPINIONS AND ORDERS BELOW
The opinions and orders below are set forth in the
Petition at 1-2. For consistency, they are cited here using
the same nomenclature employed in the Petition.
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
In addition to those provisions cited in the Petition at
3, this petition involves 24 C.F.R. § 960.203(a) (Resp. App.
20a); Fed. R. Civ. P. 52(a) (Resp. App. 20a); and the HUD
Public Housing Occupancy Handbook 7465.1, REV-2, ch.
5, § 5-7, pp. 5-19 to 5-20 (Resp. App. 11a-13a).
STATEMENT OF THE CASE
A. History of Intentional Segregation in New York
City
Petitioner’s Statement of the Case omits and misrep-
resents critical material facts. Beginning in 1960, and
continuing in some areas of New York City until 1991,
‘petitioner engaged in an intentional policy and practice
of segregating certain public housing projects by race.
Davis v. New York City Housing Authority, 278 F.3d 64,
66-67, 81-82 (2d Cir. 2002) (“Davis IX”) (Pet. App. 3a-5a,
33a-35a). The discriminatory practices used to achieve
that result included the deliberate use of codes denoting
housing projects to which only white families could be
assigned, Davis v. New York City Housing Authority, 1992
U.S. Dist. LEXIS 19965, at *4 (S.D.N.Y. Dec. 30, 1992)
(“Davis I”) (Pet. App. 177a); the deliberate use of racial
goals or targets when new projects were “rented up” and
on an ongoing basis thereafter, id.; and the intentional
practice of permitting white applicants on Staten Island
to select predominantly white projects even when such
2
projects were not anticipating vacancies, see NYCHA
Memorandum of Law in Support of the Fairness and
Adequacy of the Davis Settiement and the Entry of the
Consent Decree and in Response to Comments Submitted
by Interested Persons, dated October 30, 1992 (“NYCHA
Memorandum Supporting Consent Decree” or “NYCHA
Memorandum”), at 22 (Resp. App. 7a). Petitioner also
employed several practices that were ostensibly neutral
on their face but that had the intent and effect of discrimi-
nating on the basis of race. They included the use of local
area preferences which, “[i]n neighborhoods where one
race predominated, . . . had a racially discriminatory
effect,” NYCHA Memorandum, at 22 (Resp. App. 6a), and
the use of “Director’s Cards” that “[o]ften . . . favored
white applicants who sought an apartment at a predomi-
nantly white project.” Id. (Resp. App. 6a-7a).
These policies led to “a consistent pattern of white
families being replaced by other white families over
“aa
time,” a pattern which “ ‘could only occur as a result of a
deliberate racial quota system.’ ” Davis v. New York City
Housing Authority, 60 F. Supp. 2d 220, 233 (S.D.N.Y. 1999)
(“Davis VI”) (Pet. App. 92a). In its memorandum to the
district court urging approval of the Consent Decree,
petitioner candidly admitted that these and other dis-
criminatory measures “created a breeding ground for
racial steering.” NYCHA Memorandum, at 17 (Resp.
App. 5a). Petitioner also admitted that “these policies
were wrong,” that plaintiffs’ complaint “had merit,” and
that its own policies “had the effect of discriminating
against Black and Hispanic applicants.” Id. at 21-22 (Resp.
App. 6a-7a); see Davis IX, 278 F.3d at 67, 82 (Pet. App. 4a,
34a).
3
Petitioner’s policies intentionally caused the segrega-
tion of numerous public housing projects. When the dis-
trict court approved the Consent Decree in 1992, white
families constituted only 8.8 percent of the public hous-
ing tenant body (Resp. App. 8a), and only 10 percent of
all families on the public housing waiting list. Davis v.
New York City Housing Authority, 1997 U.S. Dist. LEXIS
10451, at *12 (S.D.N.Y. July 17, 1997) (“Davis II”) (Pet.
App. 146a). Nonetheless, 20 housing projects had white
populations ranging from 38.0 percent to 84.4 percent
(Resp. App. 8a). Seventeen had white populations greater
than 50 percent. Id. As a result, over 71 percent of all
white families in New York City public housing were
concentrated in only 35 of petitioner’s 322 housing pro-
jects. Davis IX, 278 F.3d at 81, 85 (Pet. App. 34a, 41a).
“More than 51% of the white families (7,929 of 15,530)
lived in the 20 projects that are at issue on this appeal.”
Id. at 85 (Pet. App. 41a).
The racial disparities caused by these policies were
so striking that petitioner itself, in its memorandum to
the district court seeking approval of the Consent Decree,
described them as “disturbing.” NYCHA Memorandum
Supporting Consent Decree, at 17 (Resp. App. 4a). Cata-
loging its own discriminatory policies on Staten Island,
petitioner admitted:
As a result, the eleven Staten Island projects
have a disturbing racial composition. Six of the
projects have remained disproportionately
white, while five of the projects are over-
whelmingly minority. Just as disturbing, the six
disproportionately white projects are located on
the North side of Staten Island, while the five
overwhelmingly minority projects are located
on the South side of Staten Island.
Id. (Resp. App. 4a-5a).
a a
4
B. Approval of the Consent Decree and HUD’s Waiver
of Project Choice Rules
The parties resolved the claims in this case in a
Consent Decree (Pet. App. 185a-264a) approved by the
district court on December 30, 1992. Davis I (Pet. App.
174a-184a). The Decree permanently enjoined various dis-
criminatory housing practices (Consent Decree { 4, Pet.
App. 193a-195a); afforded remedial relief for up to 2,190
class members (id. {{ 10-38, Pet. App. 199a-215a), see
Davis VI, 60 F. Supp. 2d at 224 & n.4 (Pet. App. 75a); and
provided for the payment of monetary damages to the
named plaintiffs (Consent Decree { 40, Pet. App. 215a).
Additionally, the Decree incorporated by reference a Ten-
ant Selection and Assignment Plan (“TSAP”) (Pet. App.
230a-264a) that was to remain in effect for five years
(Consent Decree {{¥ 5, 6(a), Pet. App. 195a-196a). Peti-
tioner agreed to implement the TSAP “to prevent any
unlawful discrimination on the basis of race, color, or
national origin, in compliance with the Housing Author-
ity’s obligations under Title VI, [and] the Fair Housing
Act... . ” (Consent Decree ¥ 5, Pet. App. 195a.) During
the five-year period, petitioner could modify the TSAP
“at its own risk,” subject to the plaintiffs’ right to move to
enjoin the proposed modification and to obtain “any
other appropriate relief authorized by the Fair Housing
Act.” (Consent Decree { 6(b), Pet. App. 196a-197a.)
In settling the action, petitioner considered as “espe-
cially important,” NYCHA Memorandum, at 3 (Resp.
App. 2a), a waiver it obtained from HUD concerning a
provision of the TSAP that differs from tenant selection
plans elsewhere in the nation. Specifically, petitioner’s
TSAP permits most applicants to choose a specific project
- 5
from among those anticipating vacancies in the appropri-
ate apartment size! (TSAP § V(C), Pet. App. 243a-244a).
As petitioner represented to the district court, “[s]uch
choices are not permitted to most applicants for public
housing outside of New York City” because they are
prohibited by HUD’s Public Housing Occupancy Hand-
book. NYCHA Memorandum, at 3 (Resp. App. 2a-3a)
(citing Public Housing Occupancy Handbook 7465.1,
REV-2, ch. 5, § 7, pp. 5-19 through 5-22).? As petitioner
itself noted, because the TSAP “deviates from the stan-
dard procedure set forth in the Handbook, the Housing
Authority needs HUD approval to continue its system of
limited choice.” Id. at 4 (Resp. App. 3a). The Consent
Decree acknowledges this departure from HUD rules
(Consent Decree, 16th WuHereEas Clause, Pet. App. 188a),
and confers HUD’s approval of it for the five-year dura-
tion of the TSAP (Consent Decree { 9, Pet. App. 199a).
1 Under the original TSAP, applicants permitted to choose a
specific project were those in non-emergency priority categories
who qualified for an apartment of two bedrooms or less (TSAP
§ V(C), Pet. App. 243a). As noted infra, in 1995 petitioner
proposed, and HUD and the district court permitted, an
expansion of the project choice option to non-emergency
applicants seeking apartments of three or four bedrooms. Davis
II, 1997 U.S. Dist. LEXIS 10451, at *46-*53 (Pet. App. 168a-172a);
see Davis v. New York City Housing Authority, 1997 U.S. Dist.
LEXIS 18111, at *14 (S.D.N.Y. Nov. 13, 1977) (“Davis III”) (Pet.
App. 133a).
2 Public Housing Occupancy Handbook 7465.1, REV-2, ch.
5, § 5-7, pp. 5-19 to 5-20 (Resp. App. 11a-13a). Unless otherwise
approved by HUD, the Occupancy Handbook requires a public
housing agency to follow either a “1-offer plan” (Plan A) or a
“2-3 offer plan” (Plan B). If an applicant turns down the offers
without good cause, the applicant’s name is placed on the
bottom of the waiting list. Id. § 5-7(a)(4) (Resp. App. 11a-13a).
6
Because of this HUD waiver, petitioner’s TSAP dif-
fers in a critical respect from other tenant selection plans
throughout the nation. As set forth below, this critical
difference is responsible for the impairment of segrega-
tion caused by petitioner’s so-called Working Family
Preference, and renders the issues raised here unique to a
single public housing agency.
C. Petitioner’s Adoption of a Working Family
Preference
HUD regulations permit housing authorities to use
“local preferences, as provided in [24 C.F.R.] § 960.206.”
24 C.F.R. § 960.203(a) (Resp. App. 20a).* Section
960.206(b)(2) authorizes but does not require a housing
authority to adopt a preference for admission of families
where the head, spouse, or sole member is employed. 24
C.F.R. § 960.206(b)(2) (Pet. App. 272a-273a). If such a
preference is adopted, an applicant must be given the
benefit of the preference “if the head and spouse, or sole
member is age 62 or older, or is a person with disabil-
ities.” Id.
In July 1995, petitioner proposed to change its TSAP
ty enlarging the number of families who could select a
project, see note 1 supra, and by adopting a so-called
“Working Family Preference” (“WFP”).+ Petitioner has
> Petitioner’s citation to 24 C.F.R. § 960.205(a) (2001)
(Petition at 5, Pet. App. 272a) is erroneous. That section was
recodified and amended by 66 Fed. Reg. 28776, 28799-28800
(May 24, 2001). The current language, as amended, appears at 24
C.F.R. § 960.203(a) (Resp. App. 20a).
+ Petitioner defined “working families” as families in
which “income is based on actual employment or if the head
and spouse, or sole member, are age 62 or older or are receiving
7
failed to include the text of its WFP in either the Petition
or the Appendix. An excerpt containing the relevant
changes made by the WFP to the TSAP as they were
presented to the district court therefore appears in
Respondents’ Appendix at i4a-19a. As the text of these
provisions makes plain, petitioner’s version of the WFP
does more than merely accord a preference based on
employment.
Under petitioner’s proposal, applicants were given
both a “Local Preference priority” and a “Federal Prefer-
ence priority”; the ultimate priority is the “one which
first gains the applicant an eligibility interview” (Revised
TSAP, § 3(A), Resp. App. 14a). Among Local Preference
holders, petitioner eliminated the applicant’s “need for
housing” as a condition of receiving a priority. Instead,
highest priority was given to Local Preference holders in
the highest income range; second priority was given to
applicants in the second-highest range; and lowest prior-
ity was given to applicants with the lowest incomes,
provided they are “working” as defined in the TSAP, see
note 4 supra. (Revised TSAP, § 3(B), Resp. App. 15a-16a.)
Among Federal Preference holders, non-emergency appli-
cants who were involuntarily displaced, living in sub-
standard housing, or paying more than 50 percent of
family income for rent were divided into two categories
labeled “Code F3” (“working families”) and “Code F4”
(“[a]ll other families”). All Code F3 (“working”) appli-
cants were given priority over Code F4 (non-working)
applicants. Id. (Resp. App. 18a).
social security disability, supplemental security income
disability benefits, or any other payments based on an
individual’s inability to work” (Revised TSAP, § 3(B), Resp.
App. 15a).
8
The district court summarized these changes as fol-
lows: “The essential difference between the original TSAP
and the WFP is the WFP’s elimination of the ‘applicant's
need for housing’ as a priority. . . . [U]nder the original
TSAP, priority was afforded to families who needed hous-
ing the most. Under the WFP, in contrast, priority is
afforded to families who can pay the most, regardless of
housing need.” Davis VI, 60 F. Supp. 2d at 225 (Pet. App.
76a).
As the district court noted, local preferences do not
require approval by HUD. Id. (Pet. App. 76a-77a); see
Davis II, 1997 U.S. Dist. LEXIS 10451, at *15-*16 (Pet. App.
148a) (“HUD does not approve local preferences”).
Accordingly, HUD played no role in approving or disap-
proving petitioner’s WFP. Id.; see Davis IX, 278 F.3d at
69-70 (Pet. App. 10a).°
Petitioner’s WFP is currently in effect in over 300 of
petitioner’s 322 housing projects. Although petitioner
erroneously implies that the economic stability of the 14
projects where the WFP has been enjoined would be
jeopardized unless a higher proportion of applicants with
higher incomes receive rentals (Petition at 11), the district
court found to the contrary: “NYCHA has not presented
any statistical analysis to establish that the WFP is neces-
sary to attain a tenant body with a broad range of
incomes in the Disproportionate Projects.” Davis III, 1997
U.S. Dist. LEXIS 18111, at *13-*14 (Pet. App. 133a).
Indeed, the 14 projects at issue here have significantly
> Petitioner states that the United States “did not oppose
NYCHA’s admission preference for working families” (Petition,
at ii), without disclosing that HUD plays no role in approving or
disapproving such preferences.
9
lower percentages of families receiving welfare than peti-
tioner’s system-wide average (Resp. App. 10a).°
D. Impairment of Desegregation Caused by the Work-
ing Family Preference
Because white families on petitioner’s waiting list
generally have lower “housing need” and higher incomes
than African-American and Latino families, the WFP was
expected to and did dramatically increase the number of
white families admitted to petitioner’s housing projects.
Based on an analysis of petitioner’s computer tapes, the
district court found that full implementation of the WFP
in 1995 would have increased white admissions from 250
to 580 families, Davis VI, 60 F. Supp. 2d at 225 (Pet. App.
77a), an increase of 132 percent. This increase represented
an expected surge in the white admissions rate from 4.2
to approximately 9.9 percent. Id.
© Referring (without citation) to a district court finding
from 1997, Davis II, 1997 U.S. Dist. LEXIS 10451, at *11 (Pet. App.
145a), petitioner asserts that fewer than one-third of its families
have an “employed person” (Petition at 10). In so stating,
petitioner fails to note that its WFP affords preference not only
to families with an “employed person,” but to those in which
“the head and spouse, or sole member, are age 62 or older or are
receiving social security disability, supplemental security
income disability benefits, or any other payments based on an
individual’s inability to work.” See note 4 supra. A more
accurate indicator of the number of families who are not
“working,” as defined by the WFP, is the number of families
with one or more members receiving welfare. As of January 1,
only 22.6 percent of families in petitioner’s housing projects had
one or more persons receiving welfare (Resp. App. 10a). At each
of the 14 projects at issue here, the percentage of welfare
families is lower than the system-wide average. Id.
10
After the WFP took effect at all but 21 “Disproportio-
nate Projects” where it was originally enjoined, the dis-
trict court found that it had in fact increased white
admissions to 8.28 percent. Davis v. New York City Housing
Authority, 103 F. Supp. 2d 228, 231-32 (S.D.N.Y. 2000)
(“Davis VIII”) (Pet. App. 59a-60a). Although that increase
was somewhat less than the predicted 9.9 percent figure,
the court found it likely that the difference was caused by
the extant injunction, which “could have led to white
‘turndowns,’ 1.e., certain white families may have
declined offers to live in public housing projects unless
they could live in a predominantly white project.” Id. at
231 (Pet. App. 59a). Accordingly, the court determined
not to revise the 9.9 percent rate used in its calculations.
Id. at 232 (Pet. App. 60a). The district court also found
that “utilization of an 8.28% rate does not significantly
decrease the WFP’s effect of delaying the desegregation
of the Disproportionate Projects.” Id. at 232 (Pet. App.
61a).
Coupled with petitioner’s unique “project choice”
rules — prohibited elsewhere by the Public Housing Occu-
pancy Handbook - this surge in white admissions would
have had a significant impact on the desegregation of
petitioner’s previously segregated housing projects. Exer-
cising their right to choose projects, white families tend to
cluster in petitioner’s disproportionately white housing
projects. As the district court found, about 34 percent of
all white families admitted into New York City public
housing choose to live in only 21 out of petitioner’s 322
housing projects. Davis VI, 60 F. Supp. 2d at 226 (Pet.
App. 79a-80a).
If the WFP had become effective at the projects at
issue here, this clustering of white families would have
had the © .fect of concentrating significant increases in
11
white admissions caused by the WFP at the same housing
projects where past segregation occurred. The district
court assessed that impact in several different ways,
including the number of additional white families who
would be expected to reside in the segregated projects
because of the WFP; changes in the percentages of white
families at those projects; and delays in desegregation
that the WFP would be expected to cause. Id. at 227-230
(Pet. App. 80a-87a).
In terms of numbers of families affected, the district
court found that if the WFP had been effective in 1995,
then over 400 additional white families would have resi-
ded at 21 previously segregated housing projects. Id. at
227 (Pet. App. 81la-82a). After ten years, the increase
would have grown to over 700 additional white families.
Id. at 229 (Pet. App. 85a).
Because large numbers of additional white families
would have moved into projects that were otherwise
desegregating under the permanent injunctive and reme-
dial provisions of the Consent Decree, the WFP would
have significantly impaired the desegregation of those
projects. In order to quantify the extent of impairment,
the Second Circuit remanded for further fact-finding
regarding the number of months it is expected to take to
achieve a white occupancy rate below 30 percent under
both the original TSAP and the WFP. Davis v. New York
City Housing Authority, 2000 U.S. App. LEXIS 2746, at *3
(2d Cir. Feb. 23, 2000) (“Davis VII”) (Pet. App. 64a-65a).
On remand, the district court found that at seven housing
projects, the additional delay in desegregation would
range from 2.33 years to over 56 years. Davis VIII, 103
F. Supp. 2d at 231 (Table 2) (Pet. App. 58a); see Davis IX,
278 F.3d at 86 (Pet. App. 42a-43a) (summarizing district
court findings in terms of additional years of delay in
12
a
desegregation). Five additional housing projects would
have desegregated to the 30 percent threshold under the
original TSAP, but would never do so under the WFP. Id.
Finally, at two housing projects (Middletown Plaza and
New Lane) that would not have reduced to the 30 percent
level under either plan, the WFP would cause desegrega-
tion to reverse (Middletown Plaza) or cease (New Lane).
Petitioner now seeks a writ of certiorari to challenge
an injunction barring the use of the WFP at these 14 of
petitioner’s 322 housing projects.
REASONS FOR DENYING THE PETITION
The issues raised by petitioner are not sufficiently
important to warrant the Court’s attention for several
reasons. First, the circumstances are unique and unlikely
to arise at any other public housing agency in the nation.
Second, the statistical disputes raised by petitioner
involve factual and evidentiary issues that are specific to
this case and do not warrant review by this Court. As this
Court has noted, “[w]e do not grant a certiorari to review
evidence and discuss specific facts.” United States v. John-
son, 268 U.S. 220, 227 (1925). Third, the Court of Appeals’
decision thwarts no federal policy concerning the settle-
ment of disputes or the economic integration of public
housing. Finally, the decision imposes no racial quota of
any kind. Neither does it conflict with a decision of this
Court or a Court of Appeals on any important matter.
Additionally, the decision below gave full consider-
ation to the issues and decided them correctly. For over
30 years, petitioner employed “race-conscious admissions
practices,” including a “deliberate racial quota system,”
Davis VI, 60 F. Supp. 2d at 233 (Pet. App. 92a), that
petitioner has admitted “were wrong,” “created a breed-
ing ground for racial steering,” and “had the effect of
13
discriminating against Black and Hispanic applicants.”
NYCHA Memorandum at 17, 21 (Resp. App. 5a). See
Davis 1X, 278 F.3d at 67 (Pet. App. 4a). Those practices led
to the placement of more than 71 percent of petitioner’s
white families in only 35 of 322 housing projects. Davis
IX, 278 F.3d at 81, 85 (Pet. App. 33a-34a, 41a): The Con-
sent Decree was designed not only to afford relief to 2,190
victims of that discrimination, Davis VI, 60 F. Supp. 2d at
224 & n.4 (Pet. App. 75a), but “to ensure the achievement
of a non-discriminatory system and the elimination of
segregation.” Id. at 234 (Pet. App. 93a). Because petitioner
unilaterally modified the TSAP in a manner that was
expected to and did significantly increase white admis-
sions, see Davis VIII, 103 F. Supp. 2d at 231-32 (Pet. App.
59a-60a), implementation of the WFP at 14 previously
segregated housing projects would substantially delay
their desegregation. See Davis 1X, 278 F.3d at 86-88 (Pet.
App. 43a-46a). The Court’s injunction prohibiting that
result is fully consistent with an unbroken line of author-
ity applied by this Court and the lower courts for
decades.
POINT I
THE ISSUES RAISED BY PETITIONER ARE NOT
SUFFICIENTLY COMPELLING TO WARRANT
THE COURT’S ATTENTION
This Court will grant a petition for a writ of certiorari
only for compelling reasons. Sup. Ct. R. 10. The issues
raised by petitioner do not warrant the Court’s attention
because (1) the circumstances are unique to petitioner
and unlikely to arise in any other case; (2) the factual and
evidential issues are specific to this case and do not merit
the Court’s attention; and (3) petitioner has identified no
important federal question or conflict of authority.
14
A. The Issues At Stake Are Unique To Petitioner And
Unlikely To Arise In Any Other Case
For three reasons, the features of this case are unique
and unlikely to arise at any other housing authority. First,
the TSAP incorporated in the 1992 Consent Decree differs
significantly from others in the nation. Most importantly,
the TSAP permits most applicants to choose the housing
projects to which they will be assigned (TSAP § V(C), Pet.
App. 243a-246a). As noted, that practice is prohibited
elsewhere by § 5-7(a)(4) of HUD’s Public Housing Occu-
pancy Handbook (Resp. App. 1la-13a). See NYCHA
Memorandum, at 3 (Resp. App. 2a) (“Such choices are not
permitted to most applicants for public housing outside
of New York City”).
This unique feature of petitioner’s admission plan is
responsible for the district court’s factual finding,
affirmed on appeal, Davis IX (Pet. App. 35a-36a), that
white families admitted by petitioner wili tend to cluster
in predominantly white developments. Davis VI, 60
F. Supp. 2d at 227 (Pet. App. 79a-80a, Table 3) (34.19% of
all white admissions are concentrated in 21 of over 320
projects); id. at 239 (Pet. App. 103a-104a) (“existing trends
demonstrate that many of these additional white families
will be concentrated in predominantly white develop-
ments”). Coupled with the boosting of the white admis-
sion rate caused by petitioner’s WFP (a feature also
unique to petitioner, see infra), this aspect of the admis-
sion plan is responsible for the impairment of desegrega-
tion at petitioner’s disproportionately white housing
projects. That impact does not and cannot arise at other
public housing projects where the HUD Public Housing
Occupancy Handbook prohibits applicants from freely
choosing their projects. Accordingly, the phenomenon at
issue here is unique to a single public housing agency.
15
Second, the provisions of the WFP, and their impact
on the white admissions rate, are unique to petitioner.
HUD permits local public housing authorities to exercise
wide latitude over the manner in which a preference for
working families is applied, provided that “the prefer-
ence may not be administered in a way that will violate
the legal prohibitions against discrimination.” 59 Fed.
Reg. 36616, 36618-19 (July 18, 1994) (Pet. App. 274a-275a).
HUD has no role in approving local preferences, see Davis
VI, 60 F. Supp. 2d at 225 (Pet. App. 76a-77a); Davis II, 1997
U.S. Dist. LEXIS 10451, at *15-*16 (Pet. App. 148a); Davis
IX, 278 F.3d at 69-70 (Pet. App. 10a), and therefore played
no role in reviewing petitioner’s working family prefer-
ence (beyond cautioning petitioner to “be mindful of the
injunctive relief provided for by the Davis consent decree
and its responsibilities under civil rights statutes”). See
Davis IX, 278 F.3d at 69-70 (Pet. App. 10a). Local prefer-
ences therefore differ — often significantly — from one
public housing agency to another.
The unique features of petitioner’s WFP, which have
no necessary parallel at other public housing agencies,
are responsible for significantly boosting the white
admission rate. For example, petitioner’s WFP not only
accords a preference based on employment, but affords
the highest priority to persons with the highest incomes.
White wage-earners with higher incomes than African-
American and Latino wage-earners therefore tend to
receive higher priorities. This and the extension of peti-
tioner’s WFP to Code F3 Federal Preference holders, cou-
pled with the racial and income demographics of families
‘on the waiting list, are responsible for the significant
boost in petitioner’s white admission rate caused by the
WFP.
—
16
Many alternative implementations of petitioner’s
preferences would have been permissible and fully con-
sistent with HUD regulations, and would have engen-
dered less interference with desegregation. Indeed,
several modifications with less discriminatory effect were
proposed by the plaintiffs and rejected by petitioner, one
of which was discussed by the district court. Davis 1X, 278
F.3d at 69 (Pet. App. 9a); Davis II, 1997 U.S. Dist. LEXIS
10451, at *43-*45 (Pet. App. 166a-167a). Moreover, as the
district court found, “NYCHA has considerable flexibility
"in implementing local preferences and has presented no
reason that it could not adopt yet other measures that
would increase working family rentals without perpetu-
ating segregation.” Davis II, 1997 U.S. Dist. LEXIS 10451,
at *45 (Pet. App. 167a).
Additionally, even if another public housing agency
were to adopt the same WFP as petitioner’s, the racial
impact would not necessarily be the same. The racial
impact of-petitioner’s WFP is highly dependent on the
racial and economic demographics of families on its wait-
ing list. Similar effects would not necessarily arise at
other housing authorities whose waiting lists have differ-
ent racial and economic characteristics. Notably, peti-
tioner points to no comparable litigation elsewhere in the
nation and certainly no inconsistent judicial holdings -
strong indicators that the impairment of desegregation
seen here is particular to petitioner alone. |
Finally, the provisions of the Consent Decree at issue
here are specific to petitioner. Although petitioner
focuses narrowly on the 30 percent threshold set forth in
§ VIII(A) of the TSAP (Pet. App. 260a), the courts below
rooted their interpretation of the Consent Decree on var-
ious interrelated provisions, Davis VI, 60 F. Supp. 2d at
234-36 (Pet. App. 94a-98a); Davis IX, 278 F.3d at 80-81
17
(Pet. App. 30a-32a), that, taken together, “are intended to
eradicate the effects of past segregation at NYCHA’s pro-
jects” Davis VI, 60 F. Supp. 2d at 236 (Pet. App. 98a); see
id. (“the Consent Decree adopted a comprehensive pack-
age of remedies designed to correct segregation that
occurred over decades”). These Consent Decree provi-
sions are unique to petitioner. An interpretation by this
Court of the 30 percent threshold or the other Consent
Decree provisions at issue here would have no ramifica-
tions for other public housing agencies.
B. Statistical Disputes Raised by Petitioner Involve
Factual And Evidentiary Issues Specific To This
Case That Do Not Warrant Review by this Court
The statistical disputes raised by petitioner involve
factual and evidentiary issues specific to this case that do
not warrant review by this Court. For example, petitioner
contends that plaintiffs’ expert should have relied upon
actual move-in and move-out data obtained after the
challenged practice went into effect, rather than on his-
torical trends before it took effect. In fact, the Court of
Appeals remanded for consideration of this issue. Davis
VII, 2000 U.S. App. LEXIS 2746, at *2 (Pet. App. 64a). On
remand, petitioner’s own expert found that the use of
actual 1998 numbers “does not necessarily increase the
accuracy of the projections.” Davis VIII, 103 F. Supp. 2d at
230 (Pet. App. 56a). Further, the district court found that
“[u]se of the actual 1998 numbers did not influence the
experts’ conclusions,” id., and the Court of Appeals noted
that “both sides’ experts agreed that use of actual turn-
over data for the available period would not change their
views as to the likely effects of the WFP in the future.”
Davis IX, 278 F.3d at 82 (Pet. App. 36a). Accordingly, the
analysis advanced by petitioner would have made no
18
difference here. Equally important, no useful purpose
would be served were this Court to review a technical
statistical issue on which the experts essentially agree.
Likewise, petitioner challenges an assumption
employed by plaintiffs’ expert, and accepted by the lower
courts, that the racial composition of projected move-ins
would mirror that observed during a historical baseline
from 1991 to 1994. The district court found, however, that
this historical baseline was carefully selected to be free of
distortions caused by discrimination before 1991 and by
the commencement of remedial relief for victims in 1995.
Davis VI, 60 F. Supp. 2d at 226 (Pet. App. 78a). Reasonable
steps were taken, including the use of historical averages,
in order to minimize uncertainties. Id. at 239 n.17 (Pet.
App. 104a n.17); see Davis IX, 278 F.3d at 82 (Pet. App.
35a). At three housing projects where remedial relief
under another consent decree occurred during the base-
line period, those effects were taken into account. Davis
VI, 60 F. Supp. 2d at 226 (Pet. App. 79a n.6). No useful
purpose would be served by this Court’s review of these
technical factual findings, which are unique to this litiga-
tion, were carefully considered by the courts below, and
are not clearly erroneous, Fed. R. Civ. P. 52(a).
C. The Court of Appeais’ Decision Does Not Frustrate
a National Policy Favoring Settlements Or The Eco-
nomic Integration of Public Housing
The Court of Appeals’ decision does not frustrate any
national policy favoring settlements. Petitioner explicitly
consented to subject any changes to the TSAP to Fair
Housing Act standards. Specifically, petitioner agreed to
implement the TSAP “to prevent any unlawful discrimi-
nation on the basis of race, color, or national origin, in
compliance with the Housing Authority’s obligations
19
therewith under Title VI [and] the Fair Housing Act... .”
(Consent Decree, 1 5, Pet. App. 195a) (emphasis added).
Further, in exchange for the right to modify the TSAP
during its initial five-year period, petitioner agreed that
any change would be implemented “at its own risk” and
subject to the plaintiffs’ right “to seek full and complete
relief for persons harmed by the changes, and any other
appropriate relief authorized by the Fair Housing Act” (Pet.
App. 197a) (emphasis added). Thus, petitioner agreed to
implement the TSAP in compliance with the Fair Housing
Act, and bargained for the right to modify the TSAP
subject to the condition that changes to the plan would be
tested against Fair Housing Act standards.
During the five-year period, petitioner did, in fact,
propose a significant modification - the working family
preference — that abolished “the applicant’s need for
housing as a priority” (Pet. App. 76a), afforded priorities
“to families who can pay the most, regardless of their
housing need” (id.), and significantly increased the white
admissions rate. When petitioner exercised its right to
make those changes, it triggered the provisions in J] 5
and 6(b) of the Consent Decree that measure the legality
of the changes by Fair Housing Act standards. As the
Court of Appeals correctly held, “[a]ccordingly, the exis-
tence of segregation in New York City public housing
may properly be measured by FHA standards.” Davis IX,
278 F.3d at 80 (Pet. App. 32a). Finding that petitioner’s
changes would perpetuate past segregation — a standard
generally accepted and applied under the Fair Housing
Act’? — the lower courts enjoined them as violations of the-
” E.g., Huntington Branch, NAACP v. Town of Huntington, 844
F.2d 926, 937 (2d Cir.), aff'd, 488 U.S. 15 (1988); Metropolitan
wi
20
Act. That holding did not frustrate any policy favoring
settlements. Petitioner bargained for the right to modify
its plan in exchange for an agreement that any changes
could be enjoined if they violated the Fair Housing Act.
The lower courts enforced that bargain.
Nor did the Court of Appeals violate the “four cor-
ners” rule for interpreting consent decrees. By providing
that the TSAP and any changes to it would be tested
against Fair Housing Act standards, {J 5 and 6(b) of the
Consent Decree (Pet. App. 195a-197a) incorporate those
standards by reference. The standards applied by the
district court and the Court of Appeals were contem-
plated by and embodied within the Decree.
Petitioner erroneously faults the factual finding of
the courts below that the 30-percent threshold, which
appears in the TSAP as a rule limiting the use of “Project
Outreach”® (Pet. App. 260a), reflected the parties’ joint
understanding of which projects had been infected by
past segregation. There is no error in these factual find-
ings. When the Consent Decree and origin. ' TSAP were
negotiated and approved, the parties expected them to
eradicate the effects of past segregation, so long as Project
Outreach efforts did not impede desegregation by filling
vacancies at affected projects from nearby project waiting
Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283,
1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978).
® Project Outreach is used by the Occupancy Control
Division (“OCD”) to fill vacancies by “borrowing” applications
from the waiting list of a nearby project instead of by drawing
them from the larger central waiting list (see TSAP § VIII(A), Pet.
App. 260a). The TSAP provides in § VIII(A): “However, if the
borrowing project’s tenant body is more than 30% white, OCD
shall not select a project whose tenant body is also more than
30% white.” Id.
21
lists that had also been tainted by past segregation. The
parties adopted the 30-percent standard limiting the use
of Project Outreach to prohibit that result. Thus, the
lower courts correctly found that the 30-percent standard
is “a reflection of which projects the parties had agreed
were infected by past segregation.” Davis IX, 278 F.3d at
80 (Pet. App. 31); see Davis VI, 60 F. Supp. 2d at 232 (Pet.
App. 89a) (“The 30 percent figure set forth in the Borrow-
ing Provision is not, as NYCHA urges, an arbitrary
number, but a negotiated figure that implies that the
parties and the Court believed that a project was dispro-
portionately white if more than 30 percent of its families
are white.”). These findings are not “clearly erroneous.”
Fed. R. Civ. P. 52(a). Further, petitioner has failed to
suggest any plausible alternative purpose for the 30-
" percent standard.?
Petitioner makes much of an observation that the
original TSAP does not employ the 30-percent threshold
outside of the context of Project Outreach or explicitly
“define developments more than 30% white as segre-
gated” (Petition at 22). That observation about the original
TSAP is unavailing. It must be remembered that the
originat TSAP differed markedly from the revised plan at
° Petitioner erroneously asserts that “Plaintiffs and the
United States explicitly agreed that setting aside a specific
number of apartments at the Affected Developments for
qualified minority applicants would adequately redress any
past discrimination” (Petition at 8). To the contrary, the parties
agreed that such remedial relief coupled with the original TSAP
and the permanent injunctive provisions would adequately redress
past discrimination. The plaintiffs did not agree that past
discrimination would be adequately redressed if the TSAP were
significantly modified, and indeed reserved the right to
challenge such modifications (Consent Decree J 6, Pet. App.
196a-197a).
22
issue here. The original plan ranked applicants “based
upon the need for housing as expressed in the applica-
tion.” TSAP § III(A) (Pet. App. 234a); see TSAP § II (Pet.
App. 233a). The revised plan, in contrast, affords priority
to families who can pay the most, regardless of need, see |
Davis VI, 60 F. Supp. 2d at 225 (Pet. App. 76a), and
thereby significantly increases white admissions. Id. (Pet.
App. 77a). The 30-percent rule was not applied more
broadly in the original plan for a plain and simple reason.
There was no need to do so. The original plan was ade-
quate to accomplish its objective, so long as distortions
were not introduced by Project Outreach. The 30-percent
standard was therefore confined to that domain. But the
revised plan severely compromised desegregation. For
purposes of determining whether that impact violated the
Fair Housing Act, as the Consent Decree requires, see
TI 5, 6(b) (Pet. App. 195a-197a), it was necessary to
identify projects that had previously been segregated.
The 30-percent standard reflected the parties’ agreement
on that issue.
Finally, the Court of Appeals’ decision does not frus-
trate a policy favoring economic diversity in public hous-
ing (Petition at 24). The district court found that
petitioner presented no evidence that the WFP is neces-
sary to attain a tenant body with a broad range of
incomes in the projects at issue here. Davis III, 1997 U.S.
Dist. LEXIS 18111, at *13-*14 (Pet. App. 133a). Indeed, all
14 projects have lower percentages of families receiving
welfare than petitioner’s system-wide average (Resp.
App. 10a). Further, federal housing policy explicitly pro-
vides that working family preferences may not be admin-
istered in a manner that would violate prohibitions on
discrimination. As HUD itself stated, “[t]here are, how-
ever, two limits on the use of a preference for working
senna.
23
families. First, the preference may not be administered in
a way that will violate the legal prohibitions against
discrimination. .. . ” 59 Fed. Reg. at 36618 (Pet. App.
274a-275a). Various alternative means of implementing a
working family preference exist and have less discrimina-
tory effect than petitioner’s. See Davis II, 1997 U.S. Dist.
LEXIS 10451, at *43-*45 (Pet. App. 166a-167a). Federal law
requires no particular version of the working family pref-
erence; indeed, federal law does not even require the use
of any working family preference. No provision of federal
law would be offended if petitioner were to adopt a less
discriminatory version of its local preferences. Thus,
there is no conflict between the Court of Appeals’ holding
and any national housing policy.
D. The Court of Appeals’ Decision Does Not Impose a
“Quota”
Petitioner erroneously asserts that the question pre-
sented is whether a federal court may impose a “racial
quota for white families” (Petition, at i). To the contrary,
the Court of Appeals’ decision imposes no “racial quota”
of any kind. A quota is a set-aside based on a factor
otherwise irrelevant to eligibility. For example, the reser-
vation of a specified number or percentage of apartments
for persons of one race could constitute the use of a racial
quota.!° Petitioner’s reservation of up to 50 percent of all
newly vacant apartments for “working families” is an
example of an income-based quota.
The decisions of the courts below impose no quota of
any kind. Rather, they enjoin the use of an income-based
10 F.g., United States v. Starrett City Assocs., 840 F.2d 1096,
1098 (2d Cir.), cert. denied, 488 U.S. 946 (1988) (owner reserved
64% of apartments for white families).
24
preference at housing projects infected by past segrega-
tion. The injunction neither mandates nor prohibits any
number of move-ins of persons of any race. Petitioner is
free to apply its non-working-family preferences at the 14
housing projects still infected by past segregation, and
under those preferences, any number of persons of any
race may move in. If, for example, half or more of all
applicants with non-working-family preferences were
white, they would be entirely free to move into the 14
projects. Indeed, even if al] non-working applicants at a
particular time were white, they would still be free to
move into the 14 projects. The injunction simply does not
speak to or limit the race of families moving into peti-
tioner’s projects.
The injunction does, in contrast, gauge which hous-
ing projects continue to be infected by past segregation
by using statistics regarding the percentage of white fam-
ilies who live there. That does not, however, constitute
the use of a racial quota. As the district court correctly
held:
This does not mean, as NYCHA posits, that the
TSAP imposes a “quota” or requires that any
particular project achieve any specific level of
desegregation. Rather, the TSAP identifies hous-
ing projects that are 30 percent white as infected
by past segregation. Thus, with regard to these —
identified projects, changes to the TSAP that
significantly perpetuate segregation violate the
Fair Housing Act.
Davis VI, 60 F. Supp. 2d at 232 n.9 (Pet. App. 90a n.9).
The use of statistical information to determine
whether and where segregation remains is essential and
yp 25
well-established, see infra, and does not constitute the use
of a racial quota.!!
POINT II
THE DECISION BELOW GAVE FULL
CONSIDERATION TO THE ISSUES AND
DECIDED THEM CORRECTLY
Although misapplication of a properly stated rule of
law would rarely be sufficient basis to warrant review by
this Court, see Sup. Ct. R. 10, the Court of Appeals’
decision nonetheless contains no such error of law. The
court applied the correct legal standard for identifying 20
housing projects that were infected by past segregation,
and correctly determined that petitioner’s changes to the
TSAP would perpetuate past segregation at 14 of those
housing projects.
A. The Court of Appeals Applied The Correct Legal
Standard For Identifying Housing Projects Infected
By Past Segregation
The Court of Appeals correctly held that 20 of peti-
tioner’s public housing projects were infected by past
segregation. Davis IX, 278 F.3d at 80-82 (Pet. App.
'! Advancing an argument for the first time in this Court,
petitioner asserts that the 30-percent standard could not have
been intended to “set a quota or afford other race-conscious
relief” because, had that been the case, “the District Court
would have subjected it to strict scrutiny, and found it invalid”
(Petition at 25). Even if it had been preserved, this argument
misapprehends the holdings of the lower courts. Neither court
below found that the 30-percent standard set a quota, nor does
it. Rather, the 30-percent standard is “a reflection of which
projects-the parties had agreed were infected by past
segregation.” Davis 1X, 278 F.3d at 80 (Pet. App. 31a).
26
4
30a-35a). Substantial evidence supported the findings of
the courts below that discriminatory housing practices
occurred at these projects. See pp. 1-3 supra. The district
court found, for example, that petitioner’s replacement of
white families moving out of public housing with other
white families moving in “could only occur as a result of
a deliberate racial quota system.” Davis II, 1997 U.S. Dist.
LEXIS 10451, at *34 (Pet. App. 160a); see Davis VI, 60
F. Supp. 2d at 233 (Pet. App. 92a). As the courts below
noted, petitioner itself admitted that the allegations in the
complaint “had merit”; that “[t]he Housing Authority
engaged in a number of policies and practices that had
the effect of discriminating against Black and Hispanic
applicants”; and that its own practices had “created a
breeding ground for racial steering.” NYCHA Mémoran-
dum Supporting Consent Decree, at 17, 21-22 (Resp. App.
5a-7a); see Davis 1X, 278 F.3d at 67 (Pet. App. 4a). These
and the remainder of the district court’s factual findings
regarding the existence of discrimination are subject to
the clearly erroneous standard of Rule 52(a), see Anderson
v. Bessemer City, 470 U.S. 564, 573 (1985); Pullman-Stan-
dard, Div. of Pullman, Inc. v. Swint, 456 U.S. 273, 287-90
(1982). Because they are amply - indeed overwhelmingly
~— supported, there is no basis for setting them aside here.
Substantial evidence also supported the findings of
the courts below that these unlawful practices caused
segregation at petitioner’s housing projects. When the
Consent Decree was approved, petitioner “had placed
more than 71% of the white public housing population in
35 of its 320-odd projects.” Davis IX, 278 F.3d at 81, 85
(Pet. App. 34a, 41a). “More than 51% of the white families
(7,929 of 15,530) lived in the 20 projects that are at issue
27
on this appeal.” Id. at 85 (Pet. App. 41a). White popula-
tions at these projects greatly exceeded the prevalence of
white families in both the applicant pool and the tenant
body. The 20 projects at issue here had white populations
in 1992 ranging from 38.0 percent to 84.4 percent (Resp.
App. 8a), despite the fact that white families constituted
only 8.8 percent of the tenant population, id., and only 10
percent of the relevant applicant pool.'? Davis II, 1997
U.S. Dist. LEXIS 10451, at *12 (Pet. App. 146a). These
statistics and other record evidence amply supported the
lower courts’ findings that petitioner had deliberately
caused the segregation of certain housing projects. Those
factual findings are controlling under Rule 52(a). Ander-
son, 470 U.S. at 573; Pullman-Standard, 456 U.S. at 287-90.
The Court of Appeals likewise applied the correct
legal standard in concluding that the vestiges of segrega-
tion still remain at those housing projects. “[W]hen the
permanent injunction was entered [in 1999], 20 of
NYCHA’s 322 housing projects (6.2%) still housed 47.36%
of the white families.” Davis IX, 278 F.3d at 85 (Pet. App.
41a). Although white families constituted only 7.0 percent
of all of petitioner’s tenants in 1999, id. at 80 (Pet. App.
32a), these 20 housing projects still had white populations
ranging from 30.2 percent to 72.3 percent (Resp. App. 9a).
12 Petitioner asserts misleadingly that white representation
in the New York City-wide pool of “individuals income-eligible
for public housing exceeds 38%” (Petition at 26). Rejecting that
comparison, the district court found that the whites constituted
10 percent of the relevant applicant pool. Davis 11,1997 USS. Dist.
LEXIS 10451, at *12 (Pet. App. 146a). As the district court
correctly- recognized, the prevalence of whites in the pool of
families who are financially eligible for public housing but who
choose not to apply is irrelevant.
28
Accordingly, all 20 projects had white populations in
excess of the figure identified in the Consent Decree “as a
reflection of which projects the parties had agreed were
infected by past segregation.” Davis IX, 278 F.3d at 80
(Pet. App. 31a). Further, at all 20 projects, the discrepancy
between the percentage of white families at the project
and the percentage of white families in the tenant body at
large exceeded 23 percentage points. Deviations of this
magnitude are widely recognized by the courts as indica-
tive of continuing segregation.!> Attempting to distin-
guish the applicability of those cases, petitioner
erroneously asserts that “there has been no showing that
unlawful discrimination, as opposed to legitimate factors,
caused the patterns the Second Circuit deems segrega-
tive” (Petition at 23). In fact, however, as noted earlier,
there was a massive, clear, and uncontroverted showing
that unlawful discrimination was responsible for segrega-
tion in petitioner’s housing projects.
B. The Court of Appeals Correctly Determined That
- Petitioner’s Changes Would Perpetuate Past Seg-
regation at 14 Housing Projects
This Court has long made clear that actions by a
governmental defendant that impede the dismantling of
segregation are unlawful. Wright v. Council of the City of
Emporia, 407 U.S. 451, 460 (1972); United States v. Scotland
13 E.g., Coalition to Save Our Children v. State Bd. of Educ., 90
F.3d 752, 767 & n.21 (3d Cir. 1996); Brown v. Board of Education,
892 F.2d 851 (10th Cir. 1989), vacated, 503 U.S. 978 (1992),
reinstated in full, 978 F.2d 585 (10th Cir. 1992), cert. denied, 509
U.S. 903 (1993); United States v. Yonkers Board of Education, 837
F.2d 1181 (2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988); Pennick
v. Columbus Board of Education, 583 F.3d 787 (6th Cir. 1978), aff'd,
443 U.S. 449 (1979).
29
Neck City Board of Educ., 407 U.S. 484, 489 (1972) (“If the
proposal would impede the dismantling of a dual system,
then a district court, in the exercise of its remedial discre-
tion, may enjoin it from being carried out”). Applying
that principle, the lower courts correctly recognized that
“past segregation may be perpetuated by actions that
slow the pace of desegregation, even though they do not
reverse it.” Davis IX, 278 F.3d at 83-84 (Pet. App. 38a).!4
The Court of Appeals applied that principle correctly
here.
At seven of the 14 projects at issue here, delays in
desegregation to the 30 percent threshold caused by peti-
tioner’s WFP would range from 2.33 years to over 56
years. Id. at 86 (Pet. App. 43a). Five additional projects
would have desegregated under the original plan but
would never do so under the revised plan. Id. These
delays are substantial, whether measured in years or
percentage increases in time that desegregation would
require under the WFP. For example, as the Court of
Appeals correctly held, “even without the WFP, the pro-
jected time remaining after 1999 for desegregation 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 rang-
ing from more than seven years to eternity, as legally
significant... .” Id. at 87 (Pet. App. 45a). At the remain-
ing two projects affected by the injunction (Middletown
Plaza and New Lane), the WFP would either stop or
reverse the desegregation process. Davis IX, 278 F.3d at
87-88 (Pet. App. 45a-46a). Accordingly, at all 14 projects,
14 See also Arthur v. Nyquist, 712 F.2d 816, 822 (2d Cir. 1983),
cert. denied, 467 U.S. 1259 (1984); Sarabia v. Toledo Policy
Patrolman’s Ass‘n, 601 F.2d 914 (6th Cir. 1979).
30
delays in desegregation engendered by the WFP would
be substantial. The number of additional white families
who would occupy the segregated projects because of the
WFP, see Davis VI, 60 F. Supp. 2d at 227-229 (Pet. App.
81a-87a), would also be substantial.
CONCLUSION
Because petitioner has failed to identify any impor-
tant federal question or conflict of authority, and because
the issues raised are unique to petitioner and unlikely to
arise elsewhere, the Petition should be denied.
Dated: Brooklyn, New York
May 6, 2002
Respectfully submitted,
Scott A. ROSENBERG
Counsel of Record
HELaineE Barnett, Attorney-in-Charge
THE LeGAL Arp Society
Civil Division
Temporary Address:
166 Montague Street
Brooklyn, New York 11201
718-422-2858
Attorneys for Respondents
—
TABLE OF CONTENTS TO
RESPONDENTS’ APPENDIX
Page
The New York City Housing Authority’s Mem-
orandum of Law in Support of the Fairness And
Adequacy of the Davis Settlement and The
Entry of the Consent Decree and in Response To
Comments Submitted by Interested Persons....... la
Racial Composition of 20 Projects Covered by Dis-
trict Court Injunction December 31, 1992........-. 8a
Racial Composition of 20 Projects Covered by Dis-
trict Court Injunction January Ae... Pee eerer res 9a
Families With 1 or More Persons Receiving Wel-
fare January 1, 1999.......-2 cece ener teen ene 10a
HUD Public Housing Occupancy Handbook
7465.1, REV-2, ch. 5, § 5-7, pp. 5-19 to 5-20...... lla
The New York City Housing Authority’s Tenant
Selection And Assignment Plan Revised]. ....... 14a
24 C.ER. § 960.203(a) ... 06. cece cee e eee e ee eees 20a
eS Ss oe. | | er rer mwa res he err 20a
hk eine whe
la
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
PAULINE DAVIS, CYNTHIA
WILLIAMS, CORNELIA
SIMMONS, AND KIM RIVERA, .
on behalf of themselves and all .
others similarly situated,
90 Civ. 628
(PNL)
Plaintiffs,
BLANCA IRIS HERNANDEZ,
GINA CAMPBELL, and
JEANETTE VARGAS, on behalf |
of themselves and all others
similarly situated,
Plaintiffs-Intervenors,
- against -
THE NEW YORK CITY
HOUSING AUTHORITY,
Defendant.
- Xx
UNITED STATES OF AMERICA,
Plaintiff,
. 92 Civ. 4873
- : (PNL)
NEW YORK CITY HOUSING
AUTHORITY,
Defendant.
2a
THE NEW YORK CITY HOUSING AUTHORITY’S MEM-
ORANDUM OF LAW IN SUPPORT OF THE FAIRNESS
AND ADEQUACY OF THE DAVIS SETTLEMENT AND
THE ENTRY OF THE CONSENT DECREE AND IN
RESPONSE TO COMMENTS SUBMITTED BY INTER-
ESTED PERSONS
* * +
*** During these negotiations, the Housing Author-
ity reached agreement with its adversaries on a number
of issues that weighed heavily in favor of settling these
actions. The following five issues were especially impor-
tant to the Housing Authority.
A. The settlement would permit the Housing
Authority to continue its current practice of
offering applicants some choice of where they
wish to live.
The settlement would incorporate a Tenant Selection
and Assignment Plan (“TSAP”) to last for five years.!
Under the TSAP, as at present, all applicants may choose
the borough in which they wish to live. Most applicants
may also choose a specific project, from among projects
anticipating vacancies in the appropriate apartment size.
Such choices are not permitted to most applicants for
public housing outside of New York City. The Depart-
ment of Housing and Urban Development (“HUD”) has
established standard procedures for tenant selection.
1 Pursuant to the terms of the Consent Decree, the TSAP
remains in effect for a five year period, after which it is subject
to reevaluation by counsel for the Davis plaintiffs ana by the
United States.
3a
These standards require housing authorities to offer
applicants vacancies in the order they arise, without
regard to the applicants’ preferences. Public Housing
Occupancy Handbook, 7465.1 REV-2, Chapter 5, subsec-
tion 7, pp. 5-19 through 5-22.
* + +
Because it deviates from the standard procedure set
forth in the Handbook, the Housing Authority needs
HUD approval to continue its system of limited choice.
HUD has agreed to give its approval as part of the
settlement, but not if this matter is litigated. Because this
issue is so important to the Housing Authority, it strongly
prefers a settlement that guarantees HUD’s approval, for
the five year period of the TSAP.
* * *
F. The number of Staten Island apartments allocated
to members of the victim class, pursuant to the
terms of the proposed settlement, is completely
appropriate.
More than one objector argues that the terms of the
settlement are unfair with respect to the number of apart-
ments allocated to members of the victim class in the
Borough of Staten Island. Objectors argue that the Hous-
ing Authority inappropriately used city wide statistics in
reaching a determination as to the number of Staten
Island apartments to be set aside for victims of past
discriminatory practices. This argument is both inaccu-
rate and without merit.
An historical perspective is required in order to
appreciate the peculiarities of the Staten Island projects.
4a
Throughout the period covered by the proposed consent
decree, Staten Island projects were not offered to appli-
ccants interviewed at the central applications office in
Manhattan. They were only offered to applicants who
had chosen Staten Island as their borough of first choice
and were interviewed at the Staten Island Applications
Office (“SIAO”), which was closed in December, 1990.
Thus, applicants who selected a first borough choice
other than Staten Island and who therefore were inter-
viewed in Manhattan, would only be offered a Staten
Island development if they specifically requested it dur-
ing the interview. The only applicants who were routinely
offered Staten Island projects were those who selected
Staten Island as their first borough of choice.
In addition, the SIAO permitted applicants to select
projects that were not anticipating vacancies. Staff at the
SIAO would then place such applications on a “central
office waiting list.” When the chosen project had a need
for applications, the SIAO would send an applicant from
the “central office waiting list.” This practice was forbidden
by Housing Authority policy. The remainder of applicants,
all of whom were interviewed at the central office in
Manhattan, were prohibited from selecting a project that
was not anticipating vacancies. Thus, contrary to the
central office practice, white applicants in Staten Island
were permitted to select predominantly white projects
even when such projects were not anticipating vacancies.
As a result, the eleven Staten Island projects have a
‘disturbing racial composition. Six of the projects have
remained disproportionately white, while five of the pro-
jects are overwhelmingly minority. Just as disturbing, the
six disproportionately white projects are located on the
5a
North side of Staten Island, while the five over-
whelmingly minority projects are located on the South
side of Staten Island.
A final factor to consider is that the predominantly
white Staten Island projects were never listed on the
Interviewer’s Guide to Anticipated Vacancies (“Inter-
viewer’s Guide”), which was used by the Manhattan
interviewers to make project offers to applicants during
the eligibility interview. Thus, no Manhattan interviewer
could offer one of those projects when an applicant made
a specific request for a Staten Island project. This failure
created a breeding ground for racial steering.
+ * 7
Ill. The Housing Authority Has a Good Faith Basis for
Agreeing to Settle These Actions on the Terms Pre-
sented by the Proposed Settlement
The Housing Authority engaged in a number of poli-
cies and practices that had the effect of discriminating
against Black and Hispanic applicants. Because the Hous-
ing 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.
The Housing Authority believes it would be useful to
briefly describe a few of these_ policies.
6a
A. The Integration Program
In 1960, the Housing Authority adopted an integra-
tion program designed to achieve a balance of races at its
projects by designating some projects as needing more
white tenants and others as needing more minority ten-
ants. While this program was largely terminated by the
mid 1980s, the racial steering component of this integra-
tion program continued at a few predominantly white
projects until January, 1988, resulting in a higher propor-
tion of whites than would have resulted from a race
neutral admissions policy.
B. Local Area Preferences
To gain necessary community support for some new
projects in some neighborhoods, the Housing Authority
agreed to give local area residents a preference for those
new projects. In neighborhoods where one race predomi-
nated, these preferences had a racially discriminatory
effect. These neighborhood preferences were ended, in
most instances, by February 1988, although the comput-
erized applicant selection program continued to permit
some neighborhood preferences until 1990.
C. Director’s Cards
Certain Housing Authority employees in the Appli-
cations office improperly engaged in practices that cir-
cumvented a neutral tenant selection procedure. At the
request of community leaders or project managers, these
employees would expedite applications and send them to
projects to which they would not otherwise have been
eo
7a
sent. Often these requests favored white applicants who
sought an apartment at a predominantly white project.
This practice ended in 1990.
D. The Staten Island Applications Office
As discussed above, the Staten Island Applications
Office permitted white applicants to be placed on a wa:t-
ing list for predominantly white projects even though the
projects were not anticipating any vacancies. This prac-
tice was terminated in 1990 when the SIAO was closed.
For these reasons, the Housing Authority concluded
that the complaint had merit and should be settled. * * *
8a
Racial Composition of 20 Projects Covered by
District Court Injunction December 31, 1992
NYCHA Tenant Statistics by Race as of Dec. 31, 1992
[Excerpted from 2d Cir. Append.» at A1076-A1083]
Project Name No. White Total % White
Bay View 886 1595 55.5%
Berry 362 498 72.7%
Cassidy-Lafayette 251 370 67.8%
Forest Hills 254 423 60.0%
Haber 157 372 42.2%
Holmes 235 527 44.6%
Independence 483 743 65.0%
Isaacs 334 631 52.9%
Middletown Plaza 127 174 73.0%
New Lane 232 275 - 84.4%
Nostrand 721 1132 63.7%
Pelham Parkway 677 1257 53.9%
Pomonok 1205 2055 58.6%
Robbins Plaza 98 146 67.1%
Sheepshead Bay 563 1040 54.1%
South Beach 281 419 67.1%
Straus 100 263 38.0%
Taylor St./Wythe Ave. 291 523 55.6%
Todt Hill 305 497 61.4%
Williams 367 575 63.8%
Grant Total
[322 Projects] 15,530 176,911 8.8%
9a
Racial Composition of 20 Projects Covered by
District Court Injunction January 1, 1999
NYCHA Research and Policy Development Special
Tabulation of Tenant Characteristics as of Jan. 1, 1999
Pp. 1, 25, 29, 59, 113, 136, 177, 192, 193, 203, 207,
223, 236, 241, 251, 258, 262, 297
[Excerpted from 2d Cir. Appendix at A1739-A1759]
Project Name No. White Total % White
Bay View 506 1490 34.0%
Berry 277 501 55.3%
Cassidy-Lafayette 170 328 51.8%
Forest Hills 200 393 50.9%
Haber 207 374 55.3%
Holmes 159 526 30.2%
Independence 431 713 60.4%
Isaacs 229 631 36.3%
Middletown Plaza 85 172 49.4%
New Lane 193 267 72.3%
Nostrand 463 1129 41.0%
Pelham Parkway 415 1253 33.1%
Pomonok 841 2051 41.0%
Robbins Plaza 73 150 48.7%
Sheepshead Bay 365 1043 _ 35.0%
South Beach 217 417 52.0%
Straus 82 266 | 30.8%
Taylor St./Wythe Ave. 281 517 54.4%
Todt Hill 233 497 46.9%
i Williams 344 563 61.1%
Grant Total
[322 Projects] 12,185 175,184 7.0%
—>—_
10a
Families With 1 or More Persons
Receiving Welfare January 1, 1999
NYCHA Research arid Policy Development Special
Tabulation of Tenant Characteristics as of Jan. 1, 1999
Pp. 1, 25, 29, 39, 115, 136, 177, 192, 193, 203, 207,
223, 236, 241, 251, 258, 262, 297
[Excerpted from 2d Cir. Appendix at A1739-A1759]
Project Name No. Welfare Total Percentage
Families
Bay View 268 1490 18.0%
Berry 72 501 14.4%
Cassidy-Lafayette 1 328 0.3%
Forest Hills 11 393, 2.8%
Haber 4 374 1.1%
Holmes 65 526 12.4%
Independence 57 713 8.0%
Isaacs 91 631 14.4%
Middletown Plaza 3 172 1.7%
New Lane 0 267 0.0%
Nostrand 170 1129 15.1%
Pelham Parkway 192 1253 15.3%
Pomonok 304 2051 14.8%
Robbins Plaza 0 150 0.0% _
Sheepshead Bay 209 1043 20.0%
South Beach 71 417 17.0%
Straus 26 266 9.8%
Taylor St./Wythe Ave. 53 517 10.3%
Todt Hill 66 497 13.3%
Williams 45 563 8.0%
Grant Total r
[322 Projects] 39,536 175,184 22.6%
lla
PUBLIC HOUSING OCCUPANCY
HANDBOOK 7465.1 REV-2
CHAPTER 5: TENANT SELECTION
* * *
5-7. SELECTING APPLICANTS FROM THE WAITING LIST
a. POLICY
(1) In filling an actual or expected vacancy, the
PHA must offer the dwelling to an applicant
needing that size and type of unit in that
type of project, with the PHA making the
offer in sequence, until someone accepts it,
in the order of the applicants’ priority, based
on the PHA’s tenant selection preferences
and the date and time of application.
(2) The PHA must adopt procedures which will
limit the duration of a vacancy due to turn-
over to the minimum amount of time neces-
sary.
(3) Each PHA must follow its tenant selection
plan, which has been duly adopted and
approved by HUD, and which describes
whether an applicant is permitted one offer
or up to three offers before dropping to the
bottom of the waiting list.
(4) Unless otherwise approved by HUD, the
} number of offers an applicant can be given
‘ must be according to one of the following
two plans:
(a) A 1 offer plan, (Plan A)
This plan is not based on the distribu-
tion of vacancies in the PHA’s projects.
(b)
12a
The applicant is offered a suitable unit.
If the applicant refuses it, the appli-
cant’s name goes to the bottom of the
waiting list.
A 2-3 offer plan, (Plan B)
This plan is based on the distribution of
vacancies in the PHA’s projects.
The PHA determines how many loca-
tions within its jurisdiction have avail-
able units of suitable size and type in
the appropriate type of project. If a suit-
able unit is available in:
o 3 or more locations, the applicant
must be offered a suitable unit in the
location with the highest number of
vacancies. If the offer is rejected, the
applicant must be offered a suitable
unit in the location with the second
highest number of vacancies. If that
offer is rejected, the applicant must
be offered a suitable unit in the loca-
tion with the third highest number
of vacancies. If that offer is rejected,
the applicant’s name must be put at
the bottom of the waiting list.
o 2 locations, the applicant must be
offered a suitable unit in the location
with the higher number of vacan-
cies. If the offer is rejected, the
applicant must be offered a suitable
unit at the other location. If that
offer is rejected, the applicant’s
name must be moved to the bottom
of the waiting list.
13a
o 1 location, the applicant must be
offered a suitable unit in that loca-
tion. If the offer is rejected, the
applicant must be offered the next
suitable unit that becomes available,
whether it is at the same location as
the first offer or at another location.
If the applicant rejects the second
offer, the applicant’s name must be
put at the bottom of the waiting list.
go,
1S)
—
Under any tenant_selection plan, the PHA
must maintain a record of the units offered,
including location, date, and circumstances
of each offer, and each rejection or accep-
tance. The PHA must note the reason for any
rejection.
Rete hig
l4a
The New York City Housing Authority’s
Tenant Selection and Assignment Plan
[Revised]
[All bold, strikeouts, and italics in original]
Bold = New text to be added.
Strikeettt = Old text to be deleted.
Italics = Old text that has been moved.
* + *
II. PRIORITIES FOR APPLICANTS
A. Method of Assigning Priorities
In accordance with federal regulations, the Housing
Authority has adopted priorities by which it ranks each
applicant based upon information the-need_tor horsing
as-expressed in the application. If an applicant qualifies
for both a Local Preference priority and a Federal Pref-
_ erence priority (discussed below), the Housing Author-
ity shall assign both priorities to the application, and
the applicant’s ultimate priority shall be that one which
first gains the applicant an eligibility interview.
Upon entry of the application information onto the
computer system database, the Housing Authority shall
notify the applicant of the priority or priorities whteh-hes
been assigned to the application and the procedures by
which the applicant may obtain review of the decision. At
any stage prior to rental, the Housing Authority may
change the priority code if it is notified that an appli-
cant’s priority qualifications have changed. If the priority
code is changed, the applicant will be so notified. .
B. The Priority Codes
The priority codes adopted by the Housing Authority
are:
LOCAL PREFERENCES
Code L1
Applicants in Income Tier III. (For the Forest Hills
Coop, applicants in Income Tier IV also receive Code
L1.)
Code L2
Applicants in Income Tier II.
Code L3
Applicants in Income Tier I who are also “working
families.” A “working family” shall mean: Where
income is based on actual employment or if the head
and spouse, or sole member, are age 62 or older or are
receiving social security disability, supplemental secu-
rity income disability benefits, or any other payments
based on an individual’s inability to work.
For the purposes of this Plan, “Income Tier” shall be defined as
the income level of each applicant which, to the extent permit-
ted by federal law and regulations, the Housing Authority uses
to advance its goal of economic integration and of avoiding
concentrations of low-income families in any one or all of the
Housing Authority projects. ;
The Housing Authority divides applicants into four three
Income Tiers: Applicants in Tier I have family incomes ranging
l6a
—_
from none up to 30% of area median income the-evet-of
maxi _pibtteasststetee; applicants in Tier II have family
incomes ranging from 31% the-mextetitmt-isststanecetevetof
prblte—assistanee_payments to 50% of area median income;
applicants in Tier III have family incomes ranging from ef
betiveet 50% 51% to and 80% of the area median income;
and applicants in Tier IV have family incomes ranging
from 81% to 95% of area median income. The dollar
amounts for each tier vary by family size and are revised
periodically to reflect economic data and income levels for
admission to public housing as established by federal guide-
lines.
Applicants in Tier IV are eligible only for the Forest
Hills Coop. Applicants in Tier III are not eligible for
Section 8 projects.
FEDERAL PREFERENCES
Code FO
¢ Applicants who meet any of the requirements of Code
F2 and who are referred to the Housing Authority by
the New York City Department of Homeless Services
(“DHS”) HttmenResotrees Administratron HRA)
or by the New York City Department of Housing
Preservation and Development (“HPD”), pursuant to
an agreement with the Housing Authority. These
applicants and those in the next category below are
hereafter referred to as “City-Referred Emergency
Applicants.”
¢ Applicants about to be discharged from a hospital
operated by the New York City Health and Hospitals
7
17a
Corporation, who would become homeless upon dis-
charge and who are referred to the Housing Author-
ity by HPD. These applicants are included within
those referred to hereafter as “City-Referred Emer-
gency Applicants.” Homeless applicants shall be
defined as in 24 C.FR. § 960.214(b)(2) 960244443}.
Code Fl
Applicants with a family member cooperating in a criminal
investigation/prosecution, where a member of the house-
hold has been threatened by a defendant in that investiga-
tion/prosecution, or by a person associated with a
defendant. To qualify for this category, the prosecutorial or
police agency involved in the case must certify to the
Housing Authority that:
a. the threat was made and was in retaliation for past or
present cooperation with a prosecutorial or police
agency;
b. The threat poses a serious risk to a member of the
household; and
c. It is likely that the defendant or the defendant's assoct-
ates know the family’s current home address.
Code F2
o
Applicants who have left their residences (and are not
living in standard, permanent replacement housing)
due to recent or continuing actual or threatened vio-
lence against them or their families by a member of
their household, or applicants who live with someone
who engages in such violence.
Applicant families with one or more persons suffering
from an illness or disability living in housing condi-
tions that constitute a direct threat to such persons’
lives due to their illness or disability.
’
18a
¢ Applicants who live in hotels used by the City or
shelters or whose primary nighttime residence is a
place not designed for, or ordinarily used as, a regu-
lar sleeping accommodation for human beings.
¢ Applicants about to be displaced due to action taken
by a landlord, including but not limited to eviction
orders, unless the displacement is due to a rent
increase or the applicant’s failure to meet all the
conditions of occupancy.
¢ Applicants living in housing declared uninhabitable
by HPD or another government agency, or already
displaced due to such a government order and not
living in standard permanent replacement housing.
¢ Applicants about to be displaced by a government
order from a site to be used for a public housing
project or other public improvement.
Code F3
All other “working families” who are entitled to at least
one ot the three Federal Preferences (involuntarily dis- |
placed, living in substandard housing, or paying more
than 50% of family income for rent, defined in Section
C below).
Code F4
All other families who are entitled to at least one of the
three Federal Preferences (involuntarily displaced, liv-
ing in substandard housing, or paying more than 50% of
family income for rent, defined in Section C below).
19a
NEITHER LOCAL [NJOR FEDERAL PREFERENCE
Code 8
Families who qualify for neither a local nor a federal
preference and are not now renting either a public
housing or a Section 8 apartment.
Code 9
Families who qualify for neither a local nor a federal
preference and are now renting either a public housing
or a Section 8 apartment.
20a
24 C.FE.R. § 960.203 Standards for PHA tenant selection
criteria.
(a) The tenant selection criteria to be established
and information to be considered 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. The PHA may use
local preferences, as provided in §§ 960.206.
Fed. R. Civ. P. 52. Findings by the Court; Judgment on
Partial Findings
(a) Effect. * * * Findings of fact, whether based on
oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge of the cred-
+ £ *
ibility of the witnesses.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.