Judge criticizes pooling poor in city

Declaring that Baltimore "should not be viewed as an island reservation for use as a container" for all of the area's poor, a federal judge ruled yesterday that the U.S. Department of Housing and Urban Development violated fair housing law by failing to take a regional approach to the desegregation of public housing.

In a lengthy and strongly worded decision in a 10-year-old civil rights case that shone a spotlight on the city's racial as well as housing history, U.S. District Judge Marvin J. Garbis said HUD officials had been "effectively wearing blinders" that kept them from looking beyond Baltimore for ways to disperse the concentration of public housing residents.

The decision was a victory for public housing tenants and the American Civil Liberties Union, which filed suit in 1995. They charged that city and federal officials had failed to dismantle the segregated system of public housing put in place in the 1930s and 1940s, thereby consigning poor black residents to the city's most distressed neighborhoods.

Since the lawsuit began, Baltimore's public housing has undergone a dramatic transformation. Its family high-rise buildings have been demolished and replaced with mixed-income communities, and an increasing number of families rely on subsidized rental certificates - but public housing still remains highly segregated.

In his ruling - delivered before a packed courtroom - Garbis absolved the city of wrongdoing but said "it is high time that HUD live up to its statutory mandate" to consider the racial and socioeconomic effects of its policies.

Garbis said from the bench that he would schedule a conference soon to discuss possible appropriate remedies and would invite representatives of the region's counties to come "without commitment, without prejudice."

"Maybe there's a way that people can recognize that we're all together in this region but, if not, I'll do what I can to make sure that they do," he said.

While Garbis did not mention any specific potential remedies yesterday, lawyers and others familiar with the lawsuit said alternatives might include enhanced vouchers for public housing residents - better enabling them to find places in suburban areas with higher rents - and some new or rehabilitated units.

Similar remedies have been tried in other urban areas where federal judges found discrimination in public housing.

Representatives of HUD and the Department of Justice, which defended the agency in court, said the decision was being reviewed and declined to comment further.

Reaction among county officials was mixed.

Howard County housing commissioner Leonard S. Vaughan, who was in federal court for Garbis' announcement of his opinion, called the ruling a "fair and just decision" and said potential remedies could help the county with its own problems in providing affordable housing.

But Anne Arundel County Executive Janet S. Owens, while saying she was not familiar with all the details, said Garbis' ruling "sure does sound like judicial activism at its most dubious."

Baltimore Mayor Martin O'Malley is "satisfied that Judge Garbis' ruling confirms what the city's position has been all along - that the city did not discriminate," said spokesman Rick Abbruzzesse. He said the mayor would have no further comment until he had a chance to review the entire opinion.

Lawyers for public housing residents and the residents themselves said they hoped the decision would provide increased opportunities for residents to live outside of impoverished neighborhoods.

"It's been a long time coming," said Carmen Thompson, the lead plaintiff in the case and a former resident of the now-demolished Lexington Terrace high-rises who lives in a subsidized rental apartment in Northeast Baltimore. "Hopefully, it'll mean that people will be able to live in better places."

"A region-wide remedy is something we've sought for a decade," said Susan R. Podolsky, an attorney with the Washington law firm of Jenner and Block who has been working with the ACLU on the case.

Andrew D. Freeman, a partner in the Baltimore firm of Brown, Goldstein and Levy who has also worked on the case, said he envisioned a possible remedy along the lines of a partial settlement of the case negotiated in 1996.

That settlement called for about 2,000 housing "opportunities" to be created in mostly middle-class, white areas of the city and suburbs through special certificates and construction of new and rehabilitated units. So far, about 600 units have been created, he said.

Phillip Tegeler, executive director of the nonprofit Poverty and Race Research Action Council, said the decision provided a "huge opportunity" for the Baltimore region to provide more equitable housing. "There's still a lot of work to be done to remedy past discrimination," he said.

Garbis is not the first judge to call for a regional remedy to ameliorate instances of past discrimination.

In the landmark Gautreaux case decided by the U.S. Supreme Court in 1976, Chicago public housing residents were given the opportunity to use special vouchers to move into private apartments in mostly white areas of the city or suburbs. In the next 22 years, more than 7,000 families participated in the program, and more than half of those moved to the suburbs, according to a 2003 report in a publication of the Fannie Mae Foundation.

Similar remedies have been used in a 1980s case in Dallas and in the settlement of a suit brought in the 1990s in Minneapolis.

Garbis' decision - which runs to 322 pages - comes a little over a year after a three-week trial that included often-emotional testimony by public housing residents about their difficulty in finding adequate housing, as well as a vigorous defense of city housing policies by former Mayor Kurt L. Schmoke and former Housing Commissioner Daniel P. Henson III.

In announcing his decision yesterday, Garbis said that for legal reasons, lawyers for public housing residents had to level charges of discrimination against Schmoke, the city's first elected African-American mayor and dean of the law school at Howard University:

"But I think this court has to say it: Kurt Schmoke is far more worthy of being honored than being attacked by the ACLU."

Efforts to reach Schmoke, who was out of town at a conference, were unsuccessful. But Henson said he felt no particular vindication by the decision.

"I felt vindicated 10 years ago," he said. "I've said publicly that this was the biggest rip-off that the ACLU ever perpetrated."

The case had its roots in the era before the 1954 Brown v. Board of Education decision that outlawed racial segregation - and when the agency overseeing public housing was the Federal Housing Agency. HUD was officially created in 1965.

In the 1930s and 1940s, when Baltimore was marked by Jim Crow laws and restrictive housing covenants, city and federal housing officials constructed separate public housing complexes for whites and blacks.

After the Brown decision, the city's Housing Authority quickly decided to desegregate as well. But over time, the city's public housing complexes became almost all-black. African-Americans gradually moved into what had been formerly white complexes, but whites did not move into the formerly all-black complexes.

Lawyers for the public housing residents said the concentration of poor, minority residents was the result of decisions by city and federal officials to locate new public housing complexes in mostly black areas.

They said that was the case with the public housing high-rises built in the 1950s and 1960s, which have since been demolished to create new mixed-income communities. It was also the case, they said, with individual, scattered-site rowhouses bought throughout the city in the 1970s and 1980s, and with replacement units built in the 1990s to make up for some of the units lost when the complexes were demolished.

The city and federal government countered that the concentrations of blacks in public housing were a result of the city's changing demographics and said policy decisions were based on a wide range of factors, not racial bias.

In deciding the city did not discriminate, Garbis said the city did the best it could to address its housing problems given its resources.

He said that by the time Schmoke became mayor in 1987, "the public housing population was so predominately African-American that there was no realistic chance of providing less segregated living in the public housing projects within Baltimore city."

Nonetheless, he wrote in his ruling, during the 1990s, 89 percent of the public housing units developed with HUD's support in the region were in the city. And in 2002, he pointed out in his opinion, nearly 56 percent of the region's federally subsidized Section 8 voucher holders lived in the city.

"This court finds it is no longer appropriate for HUD, as an institution with national jurisdiction, essentially to limit its consideration of desegregative programs for the Baltimore region to methods of rearranging Baltimore's public housing residents within the Baltimore city limits," Garbis wrote.

He said HUD had the "practical power and leverage" to desegregate public housing by locating units outside Baltimore, which city officials could not do.

"HUD failed to offer any substantial explanation of why it failed to consider regionalization alternatives," Garbis wrote.

"HUD will have a chance, however, to augment the record in this regard in the remedial phase of the trial. Such explanations (or their absence) may well affect the remedies to be provided."

Sun staff writers Larry Carson and Sarah Schaffer contributed to this article.

To read the public housing decision in its entirety, go to baltimoresun.com/housing.