To the Editor:
On Nov. 15, the Law Tribune (“Protecting Potential Tenants”) reported that Connecticut Fair Housing Center (CHFC) was able to uncover unfair housing practices of the Winchester Housing Authority and that the lawsuit put an end to them.
The case does bear some scrutiny, but not because it solved any wrongdoing or made the housing world a little better place. It did neither. Rather, the result was simply that it funded the CHFC and an out-of-state law firm, and gave the individual plaintiff a sum which she claims was not worth the trouble. It changed none of the policies of WHA.
This case also highlighted the problems of using “disparate impact” as a means of determining whether there is latent discrimination in an otherwise neutral housing policy.
But first the settlement. $350,000 is a lot of money. Enough to suggest wrongdoing.
The lawsuit caught WHA’s insurer at a point when it was leaving this line of business and cleaning up remaining cases. The trial attorneys had nothing to do with the negotiation of this sum. It was handled by the insurer’s own coverage counsel.
So now the case. When awarding Section 8 housing vouchers, the WHA gave preferences to residents of 17 towns in Litchfield County. This policy was allowed by federal Department of Housing and Urban Development regulations and approved annually by HUD.
There were so many local residents on the waiting list that it was impossible for non-residents to receive a voucher. In fact, no non-resident had received a voucher in 10 years. Because of this impossibility, WHA stopped accepting applications from non-residents.
At this time, the awarding of Section 8 vouchers were so tight throughout the state that WHA was only one of a very few housing authorities accepting applications.
Ms. Crystal Carter apparently called WHA for this reason. When she called the authority, she was helped by one of the two women administering the program, an African-American woman. According to notes of the phone call, Carter was not even aware of where Winsted was located. She was told that she could not apply because she did not reside in one of the towns served by WHA.
Several months later, CFHC and Carter sued. The plaintiffs claimed they used “testers” to uncover the fact that WHA was not accepting applications from non-residents. Perhaps they did use “testers” but the same information was readily available on WHA’s website, its answering machine, and from the two ladies administering the program. Using testers served no purpose other than to build a claim for damages.
The lawsuit claimed that the local preference, even if racially neutral on its face, caused a disparate impact on minorities. But here’s the rub: If you compare WHA’s voucher holders to other residents of the Litchfield County rental market, then WHA was a small force for integration. If you compare the racial profile of those voucher holders to Hartford or Bridgeport, then, of course, there would be a disparate impact.
Surprisingly, there is no clear caselaw stating what comparator group is used to prove a claim of disparate impact. This would have been a central issue of the lawsuit.
Another issue would have been whether the Fair Housing Act even applies to the awarding of vouchers. WHA had nothing to do with finding an apartment for a voucher holder. Carter, if awarded a voucher, would have had to find a landlord willing to rent to her and her four children. We don’t know what her prospects for finding housing would have been.
Finally, although all 11 circuits recognize a claim under the Fair Housing Act based on a theory of disparate impact, it’s not clear that the Supreme Court would agree. In fact, this very issue may be argued in December. (It has been briefed but the case may settle. Perhaps it already has.)
During the pendency of the lawsuit, sequestration made it financially impossible for the WHA to continue to administer the program. When WHA announced to the plaintiffs that it was going to drop the program, plaintiffs’ counsel thought that such an action might be retaliatory and constitute a violation of FHA. The plaintiffs never encouraged dropping the program, much less require it.
So what did this lawsuit force WHA to do? Take a three-hour course, so long as CFHC comes to Winsted to give it. Indeed, the only step WHA took in reaction to the lawsuit was to stop taking any applications for Section 8 vouchers, which it did unilaterally at the beginning of the suit. Everything the consent agreement “requires” WHA has already been doing.
In the end, the plaintiff’s timing of the lawsuit was impeccable. The insurance company wanted to wind up its lawsuits. By spring, the Supreme Court may find that FHA does not support an action based on disparate impact. CFHC got some funding during tough times.
As for vouchers? It is now virtually impossible for any indigent family in Litchfield County to obtain a housing voucher. If local preferences are not maintained in rural areas for rural residents, all vouchers will be going to the cities. To me that’s not fair no matter how you cut it. •
Stedronsky & D’Andrea
The author is one of the attorneys who defended the Winchester Housing Authority in the lawsuit filed by the Connecticut Fair Housing Center.