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Striking down a practice it said would perpetuate segregation, the 2nd U.S. Circuit Court of Appeals Thursday ruled that New York City cannot give working families apartment preferences in housing projects where more than 30 percent of residents are white. The split decision affirms a ruling from Southern District of New York Judge Robert W. Sweet, who in 1999 enjoined the City’s Housing Authority from applying its Working Family Preference (WFP) to 21 housing projects after minority groups filed suit. Thursday’s ruling applies to 14 of the City’s 322 housing projects. 2nd Circuit Chief Judge John M. Walker Jr. dissented from the decision, writing that the majority may have “endorsed a questionable attempt at social engineering” that could result in the further deterioration of the housing projects under the injunction. The ruling comes after five years of litigation over the Working Family Preference, which gives housing preferences to families who work over those who are on welfare. The city has contended the policy would foster economic diversity, as well as reduce crime and social problems at housing projects. Opponents argued that the plan favored whites, who were more likely to be employed, and was merely an attempt to generate money in response to budget cuts and reduced federal funding for housing. In challenging the suit on behalf of minority tenants, the Legal Aid Society argued that the preference plan would not only perpetuate segregation in many housing projects, but would prevent several from ever falling below a point where at most 30 percent of residents were white. The Court of Appeals agreed with that contention, finding it would take as much as 56 years longer for some housing projects to fall below the 30 percent mark if the plan were put into effect. Five projects would never be desegregated under the Working Family Preference. Acknowledging the fact that Housing Authority projects may be jeopardized if the agency does not find more higher-income tenants, the court said the predicament could not justify discrimination. “We think it plain that Congress did not mean to cause public housing agencies to implement plans for financial deconcentration in a way that would violate the civil rights law,” Judge Amalya L. Kearse said, writing for the majority. The court found that the plan could be implemented only at six of the housing projects, where white residents make up less than 30 percent of the population. The percentage of white residents at another project included in the original 21 covered by Judge Sweet’s ruling has since fallen below 30 percent. In his dissent, Chief Judge Walker argued that the Housing Authority should be allowed to implement critical objectives even if those plans slowed the pace of desegregation. He also questioned the majority’s reliance on 30 percent as a benchmark for desegregation. “The 30 [percent] number seems to have been picked out of thin air,” he wrote. “In my view, the 30 [percent] figure amounts to an arbitrary number that is being used to frustrate the considered policy of the [Housing Authority].” The judge concluded that the practical effect of the ruling was to “deny housing to people who deserve it because of their hard work or other merit solely on the basis of their race or ancestry.” Scott Rosenberg, who argued the case for the Legal Aid Society, praised the ruling, saying that the 30 percent figure was consistent with other court rulings and was present in a consent decree signed by the Housing Authority in a 1992 discrimination case. “We are very pleased that the court recognized that it’s simply not acceptable to perpetuate segregation,” Rosenberg said. Henry Schoenfeld, who represented the Housing Authority, was unable to comment before publication. Judge Rosemary S. Pooler concurred with Judge Kearse.

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