Letter To The Editor: Housing Authority's Policies Weren't Discriminatory
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. •