#69 – Fair Housing: Limitations of Supreme Court decision and AFFHR

#69 – Fair Housing: Limitations of Supreme Court decision and AFFHR

[The 5 blogs in this set take up the Supreme Court’s decision in Texas vs. Inclusive Communities and HUD’s Affirmatively Furthering Fair Housing Regulation (AFFHR), and some general principles dealing with the meaning of social change and the efforts to accomplish it.

Blog #68 took up how the large argument is organized in this set of 5 Blogs, the reception the decision and the AFFH Rule has received, the attribution of causes to the legacy of slavery and to present actors, and the problems that the analysis of causes has created.}

THIS BLOG #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, takes up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both. This was: Blog #67-2a – Fair Housing Act and Disparate Impact Claims]


#69 – Fair Housing: Limitations of Supreme Court decision and AFFHR

The AFFHR[1] and the recent Supreme Court win in a Texas Fair Housing case[2] is a significant win for measures aimed at contesting racial discrimination in housing, especially given the composition of the Supreme Court today. However:

The AFFT Rule is, in its practical impact, far less important that the Court’s decision. The purpose of the AFFT Rule is very limited. As its summary in the Federal Register states:

Through the availability of such data and available local data and knowledge, the approach provided by this rule is intended to make program participants better able to evaluate their present environment to assess fair housing issues.[3]

The AFFHR is an aid to others to comply to the pre-existing mandates of the Fair housing Act, and will specifically help those bring claims under the Act to show statistically disparate impacts of challenged actions. It provides no new penalty for violations, gives no new enforcement powers, sets no new higher standards for behavior. It does commendably provide a boost for efforts at planning, but does not mandate any standards that would make planning more effective than what local authorities. Its greatest effect will probably be to simplify the application of the disparate impact standard that the new Supreme Court decision has legitimated by helping to assemble the data that would show such an impact. So the focus of examination should be on that decision of the Court.

There are also reasons not to get complacent about the meaning of that decision, in some of the language of the Court’s opinion.

Overt racial discrimination in public actions has long been condemned in the United States, and recent events in a staunchly southern state such as South Carolina in the aftermath of the recent murder of nine African-Americans during church services by a white racist suggest that at least the overt display of racially offensive beliefs and conduct meets widespread, if not unanimous, popular condemnation. But there is also substantial evidence of continuing discrimination based on race and ethnicity is many aspect of U.S. life, and very visible in patterns of inequality and racial segregation in housing and urban planning practices. The result is a pattern in which racist conduct is denied as being racist, is explained by many other considerations but not by prejudice, in which practices having a demonstrable discriminatory effect are justified by all manner of claims as to innocent intentions and legitimate non-racist goals. Housing discrimination in many communities are clear examples.

The Supreme Court’s decision recognizes this history, and that apparently innocent non-discriminatory purposes for actions may have in fact a prohibited discriminatory impact. It may open the door to extensive controversy and perhaps litigation around what legitimate public concerns may justify actions that do have a discriminatory impact. But in such litigation the decision also creates problems.

In the employment discrimination case cited by the Court, for instance, a “legitimate business purpose” may validate an action having a disparate impact, depending on the circumstances.

To be specific:

The Court’s Syllabus states:

“Re­medial orders in disparate-impact cases should concentrate on the elimination of the offending practice, and courts should strive to de­sign race-neutral remedies. Remedial orders that impose racial tar­gets or quotas might raise difficult constitutional questions. “

In Kennedy’s opinion, citing the employment discrimination cases:

“…not all employment practices causing a disparate impact impose liability under §703(a)(2). In this respect, the Court held that “business necessity” constitutes a defense to disparate-impact claims.”

Further, “These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system…. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must deter­mine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.”

And later:

“disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability man­dates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. Griggs, supra, at 431. The FHA is not an in­strument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.”

“It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapi­dated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning offi­cials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a com­munity’s quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in sub­urban communities. As HUD itself acknowledged in its re­cent rulemaking, disparate-impact liability “does not mandate that affordable housing be located in neighbor­hoods with any particular characteristic.” 78 Fed. Reg. 11476. “

Terms such as “race –neutral remedies,” or “a mix of factors contribut[ing] to a community’s quality of life,” or “legitimate needs” that may outweigh disparate impacts, or prohibiting taking a community’s “particular characteristics” into account in locating housing, may well lead to delegitimize such frequent progressive goals of public planning and zoning actions as achieving diversity, promoting equality, distributing based on need, all of which to be meaningful must clearly take racial and ethnic characteristics into account in formulating policies. “Race neutrality” may be an ultimate objective, but on the way there it can prevent many needed responses to discrimination.

This is all language that, depending on how it is interpreted in the future, may turn disparate impact cases into long-drawn-out technical planning debates about what “a community’s quality of life” is, or whether economic development is an appropriate public purpose and how it might be achieved, etc. Indeed, it is a disservice to logical thinking that the Court’s opinion frequently uses the term “minority” but nowhere defines it, uses the term “racial or ethnic minority” once but seems to equate “minority” with “racial minority” in its discussion of race in dealing with remedies. It would be ironic if the law were to be interpreted to hold that racial discrimination in housing is bad unless it “serves a legitimate business purpose,” as the bald language often cited in employment discrimination cases reads. And it would be upsetting indeed if the cautious language of the decision limiting disparate impact claims to those challenging practices that have a “dispropor­tionately adverse effect on minorities” were broadly interpreted to strike down the disparate positive impact on minorities that plaintiffs often in fact seek in remedies, a disparate impact that favors minorities but adversely affects other minorities, e.g. small property owners, or, for that matter, the wealthy.

The affirmative actions required of governments to implement the Fair Housing Act within their jurisdictions is not touched on in the Court’s decision. The explicit holding that race may not be part of any remedial order, after a finding of adverse impact in violation of the Act, is a potential crippling threat to efforts at affirmative action to overcome findings of racial disparities. If statistical measures can be used as evidence of a disparate impact on race of a governmental action. And be a valid reason to invoke the Fair Housing Act, why is it not appropriate to ask for a remedy likewise taking statistical and other measures of impact on race into account, even having a “racial quota” as a measure of success – as part of the remedy?

It’s time to recognize calls for “color -blindness,” in Scalia’s opinion, or “race-neutral measures,” in Kennedy’s, for the logical inconsistencies and red herrings that they are?

The Court holds that “the FHA does not decree a particular vision of urban development.” But many of its proponents certainly thought it did: a vision of an urban development that is socially, economically, and physically just, in which minorities will be full and equal citizens entitled to share in all the benefits of urban life, without discrimination. Such a vision implies affirmative action, as well as the absence of negative, by government. It would be a shame if this decision buried that vision.

Finally, The Court’s structuring of the desired approach to adjudicating disparate impact claims opens a Pandora’s Box that may become a job creation program for planers. After a prima facie case of disparate impact claim has been established, as by statistical evidence with background, the defendant is given the opportunity to legitimate that impact by some alternate overriding purpose. In turn, the plaintiffs must then show that other legitimate means were available to achieve that purpose that did not have such a disparate impact. That may mean having to develop a full-blown alternate plan, backed up by expert testimony, that the defendants could follow. That’s a pretty substantial burden to put on any plaintiff—in effect, to fulfill the government’s responsibility to plan fairly.

Six further problems with the Court’s decision can be identified:

The Supreme Court has limited, as least in dicta, the potentially far-reaching possibility of voiding measures based on a showing of adverse impact. While those praising the holding argue that it looks at consequences of actions, not motives or intentions, the Court specifically holds that a “simple” showing of statistical disparity is not enough. Further information is needed, for which the proponent had the burden of proof, was that it had a “legitimate purpose.” Once that was shown, the burden of proof shifted to the challenger to show that that the claimed other “legitimate purpose ” could be as well served by other measures not having such a disparate impact. The contested action might survive if the claimed legitimate purpose could not be served in any other reasonable manner. This is the ”burden-shifting ” provision. It leaves open the question whether every alternate legitimate purpose will have priority over a purpose further fair housing, whatever the magnitude of each, or how such magnitude should be measured, if relevant.

Let us take a typical case. A zoning change for a parcel of land hitherto zoned as open space is zoned by a zoning board in a disproportionately white town (by county or state standards. None mentions race in the process of adopting the zone change; no direct evidence of intent is available. There is statistical evidence that the zone change would make occupancy by minority group members more unlikely than by whites , so a disparate impact, but a precise measure of what constitutes “disparate” is unclear in the Act) for housing, at a density of 4 units an acre. A fair housing group proposes a density of 12 units an acre to make it more affordable for low-income and minority groups. It challenges the more restrictive zoning under the Fair Housing Act’s provisions. It must hire a planner or statistician to show that there is a shortage of housing for minority group members, and that this would be an opportunity its members. The Town says that will increase traffic and lead to pollution. The fair housing group needs to show its alternate would not. Perhaps it puts forward a plan for investment in public transportation to reduce car traffic. It needs environmental science testimony to the resultant reduction in pollution. It needs to show what the user demand would be, what the costs, what the consequences elsewhere along the route. Suppose net costs to service 12 units are very high; case closed? Then those benefiting from the discriminatory zoning will have simply bought its legitimacy

At least six problems with that:

First the burden of proof is heavy and expensive. Challenger must develop a stasticial analysis, then an alternative plan, presumably show its feasibility with actual studies.

Second, no standard is given for what constitutes a “legitimate purpose” of such a nature as to over-ride the discriminatory effect. Would preserving “community character” be legitimate? It is a common and widely desired goal for good planning, and likely democratically established. As most would define it, changing it racial balance or class balance would interfere with that goal, by definition.

Third, whose “purpose” is involved here? The zoning boards? The town council’s? The majority of voters? Are the interest of those who would like to move into the town to be considered? The developers who would like to build the four units? And how is anyone’s purpose determined, simply by what they say it is? No one will ever say publicly their purpose is to limit black occupancy, exclude Hispanics, etc.? What purpose, and who’s, is considered legitimate: making a profit? Reducing taxes? Beautifying the area? Winning voters for the next election?

Fourth, are we back at a variation of the “intended” definition discrimination: did the proponents of the zone change “intend” it to be discriminatory? They may be big contributors to the NAACP, and some of their best friends may be black. Is that relevant? There is little difference discussed between “motive” and “intent.” “Motive” is actual state of mind, “intent”, in criminal and negligence law, is often held to be acting in knowledge of the likely result of an action, acting based on the knowledge a reasonable person would have of the expected consequence of the action, and therefore intending that result.

Fifth, neither the problem nor the remedy can be logically considered piece-meal, in isolation. The new regulation recognizes that; a remedy, the provision of integrated (non-disparate?) housing must take into account transportation, infrastructure, libraries, schools, needed by that housing’s residents. But no town wants to just make decisions based on FH criteria for these 12 units there needs to be, a town-wide comprehensive plan that deals with the whole range of urban problems. Not only does this particular decision demand that, but absent it there may well new disparate impacts imposed on other parts of the two. Zoning, in many states, needs to be in accordance with a comprehensive plan; doing it piece-meal is on its face unfair. Minorities will generally haves less control over their own residential areas than whites; on its face that is disparate, discriminatory.

Sixth, gentrification is a process ignored in the Regulation, yet is it is a major example of the need for a comprehensive approach allowing the application of fair housing principles. Yet it is an important consideration in many urban areas today. In a previously segregated area located near earlier employment in the “inner ring” around a central city area, as the economy develop and manufacturng gives place to services the area may become very attractive to white, who move in, at one point displacing blacks. At that point, technically, the area becomes less segregated. Yet minority group members are adversely and disparately affected. Where in a white area a neighborhood preference in new housing adversely affects minorities, in a black gentrifying area is favors them. One-rule-fits-all approaches will not do; individual communities must be comprehensively reviewed in deciding what rules to apply. Just like with piece-meal zoning, the answer is comprehensive planning, not provided for in the AFFH regulation.[4]

Underlying all this is the failure to recognize the real causes of the problems the Act is intended to deal with. The biggest problem creating unfair housing is the inequality of wealth and income, and power; combine that inequality with a market-based distribution of housing, and inadequate housing for those at the bottom will result. Combine that with continuing if declining racism[5] and its after-effects, and with the resulting systemically lower wealth and income of minorities, and you have the direct cause for the conditions the Fair Housing Act is designed to remedy. And the causes operate at the national, if not the global, level, as must the remedies as well.

Lawyers, planners, and advocates for diversity and racial justice should remain wary of unconditional approval of the decision or praise of the AFFHR.

More positively, perhaps this otherwise welcome decision can be seen as a step forward in crafting stronger positive role for the federal government in the area of housing and urban development. The logic of the decision, although limited by foreboding language by this Court, suggest there is much that could be done at the federal level to in fact develop a broad vision of a desirable urban policy in the cities of the nation. It would be a vision hardly to be expected of this Court or of this Congress, but perhaps could be thought through for what a progressive urban platform for 2016 might be and the longer-range future.

Continuing the discussion will be:

Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to both the legacy of slavery and to the present actors behind discrimination, and then the structural context in which they operate.

Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies, and then some principles for real solutions.

Blog #72 – Social Change: Some Elusive Principles for Societal Change, goes beyond Fair Housing to raise some questions about elusive general principles for societal change.]


[1] Federal Register /Vol. 80, No. 136 /Thursday, July 16, 2015 /Rules and Regulations, p. 42283. Available through http://www.huduser.org/portal/affht_pt.html#final-rule.

[2] Texas Department of Housing and Community Affairs et al. vs. Inclusive Communities Project, Inc., et al

Texas Dep’t of Housing & Communit. Affairs v. Inclusive Communities Project, No. 13–1371, 2015 U.S.

LEXIS 4249 (June 25, 2015). Available at: http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf

[3] Federal Register / Vol. 80, No. 136 / Thursday, July 16, 2015 / Rules and Regulations, p. 42272

[4] The provision for data gathering, analysis, and sharing by the Federal with local governments can indeed be helpful in local comprehensive planning efforts, but is not the same as directly fostering such efforts.

[5] See the discussion at Blog #68 warning of minimizing the extent of discrimination today.

#68 – Evaluation of Fair Housing: HUD AFFHR and Supreme Court Decision

#68 – Fair Housing: Evaluation of Recent Developments.

[The 5 blogs in this set take up the Supreme Court’s decision in Texas vs. Inclusive Communities and HUD’s Affirmatively Furthering Fair Housing Regulation (AFFHR) (Blogs #68 and #69), posting today) and the broader questions they raise about some elusive general principles dealing with the meaning of social change and the efforts to accomplish it(Blogs #70, 71, 72) posting in the next few days..

This Blog #68 – Evaluation of Recent Developments, examines the reception the Court’s decision and the AFFHR have received and their respective roles in dealing with housing discrimination.

Blog #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, takes up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both.


Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to the legacy of slavery and to present actors—the thoughtless, the perpetrators, the collaborators, and the victims, the structural context in which they operate.

Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies and some principles for real solutions.

Blog #72 – Social Change: Some Elusive Principles for Societal Change, goes beyond Fair Housing to take up some elusive issues raised by the preceding four blogs.]


#68 – Fair Housing: Evaluation of Recent Developments.

There is an element of unrestrained welcome in the responses to two recent major Federal actions on fair housing, one the Supreme Court’s Decision in Texas vs. Integrated Community Policies, the other is the Regulation Concerning Affirmatively Furthering Fair Housing (AFFH) of the Department of Housing and Urban Development.   The New York Times, for instance, editorially says “The new rule …provides a clear, forceful definition of the law… which means replacing segregated Living patterns with truly integrated and balanced living patters.”[1] The National Resources Defense Council Staff blog speaks of it as an historic and overdue final rule. [2]

The reaction on the other side has been more than just the opposite: The conservative National Review, for instance, went so far as to call the new Regulation “easily one of President Obama’s most radical initiatives.” [3] And “AFFH could spell the end of the local democracy that Alexis de Tocqueville rightly saw as the foundation of America’s liberty and distinctiveness.[4]

But both reactions are overdone. And this aspect, fulsome praise of the AFFH, can seriously detract from efforts to remedy the very serious problems of discrimination that we still face in this country.
Seen in perspective, the advance since Ferguson, Charlestown,, the flag lowering and the AFFH Regulation is limited,[5] and in the AFFH case has within it possible seeds of serious steps backwards in the route to full justice for minorities (an increasingly dubious term) and for racial justice (likewise a term still to be used with caution (African-American justice doesn’t quite cut it either).

To begin with, the existence of a serious problem is indisputable. About 25% of African—Americans live in poor census tracts (where more than 30% have incomes under the poverty level), only about 16% of white households do. A non-poor African-American is more likely to live in a poverty census tract than a poor white household. For the first time in 2014 non-white students are a majority of students in public schools in the United States, and “black students are just as segregated today as they were in the late 1960s, when serious enforcement of desegregation plans first began.”[6] Infant mortality rates are almost two and a half times higher for African-Americans in the U.S than they are for whites, and not just because of poverty in the southern states. In Massachusetts, the rate of infant deaths per thousand for white is the lowest the country, 3.8 per 1,000, but for African-Americans it is 9.2 per thousand, almost 3 times higher. [7]

But there are several limitations to the progress represented by these most recent two actions, the Supreme Court decision and the HUD regulation.

The two events, a Supreme Court decision in a Texas case, and the issuance of a Final Rule by HUD dealing with Affirmative Action to Further Fair Housing, are closely linked, and treated essentially as one in much of the discussion, and in the blogs that follow. Taken together, they have impact in two ways: first on the on-the-ground ability to enforce the established negative goals of the Fair Housing Act, specifically the prevention and remediation of discriminatory acts in housing, acts defined in general terms unchanged since its adoption in 1968, and second, on the impact of such positive provision of housing as there now is on racial patterns of segregation, thus provoking re-examination of the goals of that law, and the public policies relating to race and space of which it is a part.

The first of these impacts, on the negative prevention of acts of discrimination by others, e.g. realtors may not show some houses just to whites, not to blacks. The second is providing that the government does not itself discriminate in such positive provision of housing as it undertakes, e.g. it may not locate subsidized affordable housing only in areas segregated by race. The language of “affirmative” action could be more broadly interpreted to require government to in fact provide housing, in a manner aimed at integration, but neither the Supreme Court decision nor the AFFH program confront that possibility. There is a brief interchange in the Federal Register[8] on the final rule that goes as follows:

Commenters stated that even if the [zoning] ordinance does not violate the nondiscrimination provisions of the Fair Housing Act the jurisdiction may need to adopt an inclusionary zoning ordinance because such a policy would be the most effective means of addressing the identified contributing factors under the circumstances…

HUD Response: The proposed rule provided that program participants would take meaningful actions to further the goals identified in an AFH conducted in accordance with the requirements of this rule and would take no action materially inconsistent with their obligation to affirmatively further fair

They would “take meaningful actions” and “take no actions.” Prohibiting exclusionary zoning is “a meaningful action,” but it falls short of being “the most effective means,” which might be mandating[9] inclusionary zoning. Zoning is never elsewhere mentioned by HUD. There is little in the history of HUD’s use of the Act to suggest it holds to such a broader use of “affirmative.” So there is really nothing new in either the Supreme Court’s decision or HUD’s AFFH rule to suggest that HUD would go beyond “take no actions” to enforce anything as meaningful” as inclusionary zoning.[10]

So the real contribution of the AFFH is its facilitation of the application of the disparate impact standard that the Supreme Court’s decision has legitimized.

The contribution that the decision and the rule make in fact lies in the implementation of the negative prohibitions of the Fair Housing Act, not expanding the meaning of “affirmative.” On the negative side the issue has been what proof is necessary to invoke the Act’s prohibition of housing discrimination. The Act has two definitions of prohibited conduct: acts of “intentional” discrimination, and acts having an “adverse disparate effect” on minorities.

That proof on an “intent” to discriminate” is hard to come by. That is universally recognized, including by the courts, but defendants charged with violation of the FHA have long stoutly maintained it is necessary under the law. The Supreme Court has now validated the use of the disparate impact standard instead, and HUD, through the AFFH Rule, had made it easier for local governments to come up with evidence that there has in fact been an adverse disparate impact.

On the reach of affirmative action neither the Supreme Court’s opinion nor HUD’s AFFH rule provide anything that is really new. What they do do is raise in the minds of many what the ultimate goal of broad and effective affirmative action should be, and specifically what the desirable nature of integration of minorities is and how it is best accomplished. The blogs that follow argue that both the Court’s opinion and the impact of the AFFH will make resolving that issue even harder.

And both the Court’s holding and the AFFH rule have severe limits. Blog #69 now turns to a detailed examination of the specific weaknesses in the Court’s decision and the AFFHR. Blog #70 explores the causes of those weaknesses, suggested to lie in their avoidance of the underlying causes of discrimination in housing and planning.


[1] It goes on: “[the Regulation means] transforming racially and ethnically concentrated areas of poverty into areas of opportunity and fostering and maintaining compliance with civil rights and fair housing laws. ”The End of Federally Financed Ghettos,” The New York Times, July 12, 2015, p. Sunday Review, p. 10.

[2] Deron Lovaas’s Blog. “Taking the First Big Step Toward Affirmatively Furthering Fair Housing” Posted July 8, 2015. The Department of Housing and Urban Development (HUD) issued a historic and overdue final rule requiring its grantees to leap forward by “Affirmatively Furthering Fair Housing.” http://switchboard.nrdc.org/blogs/dlovaas/taking_the_first_big_step forward.htm. l Natural Defense Council Staff Blog.

[3] It goes on: “AFFH gives the federal government a lever to re-engineer nearly every American neighborhood — imposing a preferred racial and ethnic composition, densifying housing, transportation, and business development in suburb and city alike, and weakening or casting aside the authority of local governments over core responsibilities, from zoning to transportation to education. Not only the policy but the political implications are immense — at the presidential, congressional, state, and local levels.” National Review, July 8, 2015. Available at http://www.nationalreview.com/corner/420896/massive-government-overreach-obamas-affh-rule-out-stanley-kurtz.

[4] Read more at: http://www.nationalreview.com/corner/420896/massive-government-overreach-obamas-affh-rule-out-stanley-kurtz

[5] On the present state of racism, see my Blog #   , Racism After Ferguson – A Turning Point? at pmarcuse.wordpress.com.

[6] Reed Jordan, “America’s public schools remain highly segregated.” Urban Wire, http://www.urban.org/urban-wire/americas-public-schools-remain-highly-segregated August 24, 2014.

[7] Kaiser Family Foundation, Infant Mortality Rate (Deaths per 1,000 Live Births) by Race/Ethnicity, available at              http://kff.org/other/state-indicator/infant-mortality-rate-by-race-ethnicity/

[9] Zoning is indeed typically a local government activity over which the Federal government has no general jurisdiction, but the final rule is clear that the basis of the Final Rule is HUD’s threat to withhold funding, a threat generally considered adequate to achieve compliance with HUD’s requirements. HUD could if it would.

[10] A Westchester case is a notable exception, and in fact was settled including an agreement that the County provide 450 units of new affordable housing within five years o when the suit was first brought, and its implementation has been tied up in litigation over almost 5 years and the results to date have been not been large, and whether it could have been mandated by HUD under the FHA was never tested in court. See http://homes.westchestergov.com/housingsettlement and http://www.propublica.org/article/westchester-county-could-lose-millions-for-fair-housing-failures.

Blog #69 now turns to a detailed examination of the specific weaknesses in the Court’s decision and the AFFHR