U.S. judge is asked to order housing for poor in suburbs

THE BALTIMORE SUN

Lawyers for Baltimore public housing residents are asking a federal judge to order the creation of 3,000 new low-income housing units and an additional 3,750 housing vouchers, mostly in well-off suburban neighborhoods with good schools and access to jobs.

The request comes 14 months after the judge found that the U.S. Department of Housing and Urban Development violated fair housing laws by failing to take a regional approach to the desegregation of city public housing.

It asks the federal agency to provide tenants with 675 new "housing opportunities a year over the next decade to reduce the effects of decades of discriminatory actions."

Whether the judge accepts the proposal or crafts his own solution to the discrimination he has found, the case highlights one of the Baltimore region's most vexing and contentious issues - how to dilute the concentration of poverty in the city.

The proposed order is drawing opposition and skepticism from Baltimore Mayor Martin O'Malley and some suburban leaders, and it is being vigorously contested by lawyers for HUD, who say it is "entirely uncalled for" and "simply not practical."

The 11-year-old housing case is set to begin its next phase Monday, when U.S. District Judge Marvin J. Garbis expects to hear at least two weeks of testimony and arguments on the appropriate remedy for HUD's violations.

Attorneys for the public housing residents say they have carefully crafted their proposals to exclude close-in, working-class suburbs that are experiencing problems with poverty and where some residents have in the past vocally opposed the relocation of public housing residents.

"We want to be as clear as possible that we don't consider those neighborhoods to be communities of opportunity where these families should live," said Andrew W. Freeman, a private civil rights lawyer who is working on the case with lawyers from the American Civil Liberties Union of Maryland and the NAACP Legal Defense and Education Fund.

"We want them to move to places that can make a huge difference to these families and no noticeable difference to the neighborhoods where they live."

Nonetheless, Baltimore County Executive James T. Smith is concerned about the effects of a judicial mandate.

"Moving poverty from one jurisdiction to another simply makes no sense," Smith said in a statement.

"It has already proven to be failed public policy, and I am not sure why we would revisit that issue. Although Baltimore County is not part of this lawsuit, we will be ready to fight any program that negatively impacts families in Baltimore County."

O'Malley denounced what he called the "old bigotry that the city is by its nature a bad place."

"I think the ACLU would serve their clients and the cause of justice and fairness better if they directed their energies toward creating work force housing inside the city ... rather than pushing our people into the suburbs," O'Malley said.

Howard County Executive James N. Robey "would be comfortable welcoming individuals for a program set up that way," said spokeswoman Victoria Goodman. But she added that the county's high cost of housing "does not make it practical for the program here."

Perry Jones, one of three Carroll County commissioners, also raised concerns about the proposed remedy. Harford County Executive David R. Craig declined to comment; Anne Arundel County Executive Janet S. Owens did not respond to requests for comment.

In January 2005, Garbis found that HUD had violated federal fair housing laws by failing to take a regional approach to provide opportunities for black public housing families to live outside poor, segregated city neighborhoods.

The ruling stemmed from a 1995 class action lawsuit, Carmen Thompson et al. v. United States Department of Housing and Urban Development, brought on behalf of black public housing residents.

The lawsuit charged that the city and the federal government had failed to dismantle the segregated system of public housing they set up in the 1930s and 1940s, thereby relegating public housing tenants to the city's most distressed neighborhoods.

Garbis absolved the city and its Housing Authority of wrongdoing in his 2005 ruling and pushed for settlement talks between HUD and the public housing residents. Those talks went nowhere.

Like the first, or liability, phase of the case, heard for three weeks in December 2003, the second phase of the case is being closely watched by civil rights and fair housing advocates nationwide.

"It's the most important case right now nationally on the question of fair housing and HUD's obligation to reverse some of the unfair policies it has pursued over the last several decades," said Philip Tegeler, president and executive director of the Washington-based Poverty and Race Research Action Council. One of the organization's board members is a key expert plaintiffs' witness in the case.

Nearly 20 desegregation cases have been successfully litigated over the past 30 years against HUD and local housing authorities. Of those, about half have involved metropolitan solutions.

They include the landmark Gautreaux case in Chicago of the 1960s and 1970s, which led to a U.S. Supreme Court ruling that metropolitan-wide desegregation solutions cases were permissible, and the more recent Walker and Hollman cases in Dallas and Minneapolis in the 1980s and 1990s.

In both Gautreaux and Walker, thousands of public housing residents moved to the suburbs, mostly through specially funded housing vouchers.

But, after a finding of wrongdoing by the agencies, the cases that have resulted in metropolitan solutions have typically involved consent decrees and settlements between the parties, not court-ordered solutions.

"I'm not aware of a case where a judge has found liability and had to implement his or her own remedy," said Jonathan Hooks, a staff attorney specializing in fair housing issues for the Lawyers Committee for Civil Rights Under Law.

Florence Roisman, a professor at the Indiana University School of Law who specializes in the study of housing discrimination, said HUD's stance in these cases has changed over the past several years.

"In the Clinton administration, HUD was settling these cases," she said. "HUD acknowledged it had acted unlawfully and did things to relieve that. With the change in administrations, HUD now is not acknowledging it was responsible for segregation. HUD is digging in its heels."

In addition to considering possible remedies for HUD's failure to "affirmatively further fair housing" under the 1968 Fair Housing Act, Garbis will also consider whether the federal agency violated the constitutional rights of public housing residents by failing to erase the vestiges of its prior, intentional discrimination.

The determination of whether a constitutional violation occurred is considered important because such a ruling could provide a firmer legal foundation for ordering a regional remedy, if any decision were to be appealed.

The key focus of the second stage of the trial is expected to be on remedies for the effects of prior discrimination.

Plaintiffs contend that discrimination is responsible for the fact that more than 90 percent of the region's family public housing units in the mid-1990s were concentrated in areas of the city with disproportionately high numbers of African-Americans and that most holders of housing vouchers also lived in areas that were overwhelmingly black and poor.

Under the proposed order, the creation of a total of 6,750 housing units would occur in what public housing residents' lawyers call "communities of opportunity" - areas that comprise 40 percent of the region's census tracts.

They consist of virtually all of Howard and Anne Arundel counties and a large chunk of Baltimore County north of the city, as well as most of central Harford County and portions of southern and eastern Carroll County.

A few neighborhoods along the city's northern edge are also included.

The units that would be created would be in addition to about 2,200 units in middle-class white areas of the city and suburbs that the parties agreed to create in a partial settlement of the case a decade ago. About 800 of those units - the vast majority through special rental certificates - have been created.

But in court papers filed Friday, lawyers for HUD said the proposal would impermissibly interfere with the agency's discretion over its programs and improperly force it to threaten a cut-off of funds to suburban jurisdictions that have been found to violate any laws.

HUD's lawyers also contend the court cannot order the agency to spend additional money that would be needed to create the housing called for in the proposed remedy.

"While plaintiffs do not acknowledge this point, their proposed remedy would clearly require enormous sums of money to implement," they wrote.

Under the plaintiffs' proposal, HUD would be required to adopt guidelines to ensure that at least half of the rental units developed in the region with federal housing and community development funds would have to be located in "communities of opportunity."

The development of apartments in poor or minority areas would to be discouraged unless they were part of a "coordinated, market-driven revitalization undertaking." To prevent the creation of pockets of poverty, the proposed remedy puts limits on the percentage of apartments in large complexes that are reserved for public housing tenants.

Lawyers for the public housing residents argue in court papers that the creation of new housing opportunities in the suburbs - through mechanisms such as the authorization of higher rental payments and cooperation with private groups such as Habitat for Humanity - is appropriate and necessary.

"Baltimore's African-American public housing residents have virtually no opportunity to live in white, suburban neighborhoods with better opportunities for themselves and their children for education, employment, safety and recreation," they wrote. "Only through such a remedy can African-American public housing residents in Baltimore overcome the harms suffered through decades of government-sanctioned discrimination."

But lawyers for HUD counter that the "prospect of implementing those recommendations and having them work is, at best, dubious."

"Testimony from HUD program officials will demonstrate how difficult, disruptive and counter-productive the sort of remedy that plaintiffs will likely seek would be," they wrote.

"The court should exercise its discretion so as not to impose an order that could raise plaintiffs' hopes only to have them dashed against the limitations of realistic possibility."

eric.siegel@baltsun.com

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