Inclusive Communities Project v. Department of Treasury and Office of the Comptroller of the Currency : U.S. District Judge Sidney Fitzwater has once again upheld the Inclusive Communities Project’s 2014 challenge to the Treasury Department’s failure to comply with the Fair Housing Act in its administration of the Low Income Housing Tax Credit. In a 38-page decision, Judge Fitzwater dismissed ICP’s “disparate impact” claims under the Fair Housing Act, but rejected the federal government’s motion to dismiss ICP’s claims under the “Affirmatively Furthering” provision of the Fair Housing Act (42 USC § 3608 via the Administrative Procedure Act). Judge Fitzwater also rejected the government’s motion to dismiss ICP’s intentional discrimination claims under the Constitution and the Fair Housing Act, specifically reviewing the Treasury Department’s deliberate history of inaction and using the intentional discrimination analysis set out by the U.S. Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corporation(1978).
In our view, the “disparate impact” portion of the Court’s decision applies an overly restrictive view of the “causation” standard set out by the Supreme Court in ICP v Texas last summer. This is similar to the analysis Judge Fitzwater used last month to dismiss ICP’s disparate impact claims against the state of Texas (on remand from the Supreme Court). The good news is that other federal courts are not necessarily taking this same restrictive approach to disparate impact analysis, and as illustrated by this week’s decision, ICP’s claims to reform the LIHTC program do not depend on this “disparate impact” provision of the Fair Housing Act alone.
State AFFH compliance : We continued to provide HUD with feedback on its implementation of the Affirmatively Furthering Fair Housing rule last week, with additional input on the Assessment Tool to be used by state governments. Our coalition letter points to the need for robust directives around use of local data/knowledge, accountability for civil rights enforcement beyond fair housing, and improved community participation requirements (especially relating to the inclusion of stakeholders in public health, education, transportation and other sectors). We also emphasize the need for states to respond to both state and local fair housing issues, and the need for the state AFH to assess additional contributing factors particular to state legal and financial authority, which differs in nature as well as in degree from localities’
Other resources and opportunities
The Soros Equality Fellowship “supports emerging midcareer professionals who will become long-term innovative leaders impacting the racial justice field.” The fellowship award includes $80,000 to $100,000 over the course of the fellowship period, “accompanied by the requisite skill building, mentorship, and support to ensure a fluid leadership pipeline between early career promise and later-career expertise.” Applications are due by November 16. For more information, go to the Soros Equality Fellowship webpage. (p.s. PRRAC would be very interested in hosting a fellow on our AFFH, Housing Mobility, or School Integration projects…)
Progressive City is a new online magazine of Planners Network. It features new articles and will feature future podcasts from planning professionals committed to community empowerment and critical perspectives on city and regional planning. The new Magazine also has a facebook page: https://www.facebook.com/pcityradical
