Open Government Project
A Government Watchdog Group
State of Texas
City of Galveston
Public Interest Groups
and Unjust Law!
by David Stanowski
23 June 2014
Can we allow this law to harm everyone in our city?
42 USC 1437p(d)
(d) Replacement units
Notwithstanding any other provision of law, replacement public housing units for public housing units demolished in accordance with this section may be built on "the original public housing location" or in the "same neighborhood" as the original public housing location if the number of the replacement public housing units is "significantly fewer" than the number of units demolished. (quotation marks added)
This country has had to deal with the dilemma of enforcing morally repugnant and unjust laws throughout its history. The hope is that, as we evolve, we will either repeal such laws or at least refuse to enforce them.
The City of Galveston faces this dilemma today. After more than five years of debate and controversy over rebuilding Public Housing in highly segregated and impoverished neighborhoods, HUD has recently "discovered" an obscure "demolition statue" (see 42 USC 1437p(d) above) that appears to make it "legal" to do just that! It is interesting to note that this statute was not raised earlier in the debate, and it appears as though HUD has never actually used it before to supersede the requirements and safeguards of the Fair Housing Act (FHA), and any other applicable laws related to civil rights in Public Housing.
However, since HUD did not want to be forced to defend the egregious violations of the FHA, that the GHA plan will create, they went on a quest for a "get-out-of-jail-free card". They think that they found one in 42 USC 1437p(d). Since HUD is the federal agency charged with enforcing the FHA, their recent actions might seem surprising, but they're really not, when HUD's long history of supporting segregated Public Housing is considered (see generally Walker v. HUD). (see also "Living Apart - How the Government Betrayed a Landmark Civil Rights Law")
In short, HUD has argued that the rebuilding of Cedar Terrace and Magnolia Homes SHOULD NOT BE REVIEWED by the court for violations of the FHA, due to the language of 1437p(d)! If the court agrees not to do a review, the GHA plan can violate the FHA, no matter how egregious the violations may be, with impunity.
Is there any recourse available when the federal government desperately wants to enforce a morally repugnant and unjust law?
A state, county or city can simply refuse to enforce such a law within their jurisdiction. That option is currently unavailable to the people of Galveston, because their Housing Authority and City Council long ago signaled that they would do whatever they were told to do in return for the promise of federal disaster recovery funding. When a city government allows its infrastructure to deteriorate to this point, principles, integrity and courage give way to helplessness and dependency on federal largess.
The Fugitive Slave Act was passed by Congress on 18 September 1850. It was just as legally binding as 42 USC 1437p(d). However, many "Free States" found it morally repugnant and unjust, so they simply refused to enforce this federal law. This example, and others show that this option can be successful, if a jurisdiction has the moral integrity use it!
The other option is to put the matter before a court and hope that it agrees that it would "unconscionable" to enforce such a law. That option is also currently unavailable to the people of Galveston, because the District Court was "undisturbed" by the use of 1437p(d) in this manner.
If the Supreme Court had found "separate but equal" as acceptable as "significantly fewer", the last 60 years would have followed a much different path!
Currently, the only option available to the people of Galveston, is to challenge the District Court ruling in the Appellate Court, where the devastating effects of 1437p(d) can be more carefully and appropriately considered. We cannot know, at this point, whether it was the intent of Congress to provide a loophole to continue segregated Public Housing in perpetuity, or simply an oversight, where unintended consequences will result from the misuse and abuse of this law by HUD. It does not really matter; if this ruling is not reversed, it will harm everyone in this city.
Many have said that the people of this city deserve to have a court properly review the merits of this case, so that the City can finally resolve this matter and get some sense of closure. Unfortunately, this "safe harbor ruling" means that our carefully constructed case, using 44 Exhibits totaling 1,900 pages, will receive ABSOLUTELY NO JUDICIAL REVIEW, because the District Court agrees that this obscure "demolition statute" supersedes the demands of the Civil Rights Act (CRA) and the Fair Housing Act; rendering them meaningless in the present circumstances. If the people still desire judicial review, it will have to come from the Appellate Court.
The impact of this ruling will quickly extend far beyond this city! Using this same argument, ANYONE can violate the CRA and the FHA at will and with impunity as long as they do it on "the original public housing location", or in the "same neighborhood", and build "significantly fewer" units.
For example, the Beaumont Housing Authority will be pleased to learn that this ruling should allow them to rebuild Concord Homes despite HUD's prior decision to the contrary.
Unfortunately, HUD will be the government entity deciding what "same neighborhood" and "significantly fewer" mean when applying 1437p(d). Since HUD has a long history of supporting segregation, and considering their blatant misuse of 1437p(d), in this city, they are likely to make widespread misuse of it whenever it suits their political purposes. Of course, if you don't like their definitions, you can always sue them!
On 09 June, the Court directed HUD to brief its final arguments regarding 1437p(d) . When that is completed, the Court indicated it will issue its final ruling supporting HUD's arguments.
Two months before this directive, HUD had already provided this argument supporting the use of 1437p(d) in this manner:
"The terms of the statute are clear and foreclose Plaintiffs’ claims as a matter of law. The rebuilding of public housing units on the location of the Cedar Terrace and Magnolia Homes sites is permitted, notwithstanding any provision of the Civil Rights Act, the Fair Housing Act, HUD regulations, any Executive Order, or any other law." Document 96
What more do they need?
Are they searching for additional words to make what they plan to do sound a whole lot better than it does when stated above? All they can do now is to try to rationalize and justify their morally repugnant actions.
HUD is using this law like a President giving his most guilty political cronies a pardon, just because he owes them a favor, rather than people who are truly deserving of a second chance. Similarly, HUD is granting the GHA a "pardon", not because they have a commendable rebuilding plan that needs a "little help", but because they have a morally repugnant plan that won't survive proper judicial scrutiny, so they desperately need a "political" favor from HUD in order to build! In either situation, the process stinks!
We are ready for HUD's final argument to be submitted, and the final ruling to be made, by the Court, so we can move forward with an appeal! This ruling will have a devastating impact not only on this city, but on Public Housing residents, and cities, all across the country, until it is reversed.
Rebuilding Public Housing on or near existing footprints is always easier than rebuilding in high-opportunity neighborhoods, as the FHA requires. The fact that doing so will maintain segregation and the concentration of poverty no longer has to be of any concern to housing authorities, because the "Galveston ruling", will allow them to maintain segregation with impunity, as long as they build "significantly fewer" units; a phrase that can mean anything that suits HUD's political purposes.
Public Housing residents, in any jurisdiction that is rebuilding Public Housing, can basically say goodbye to any hope of living in a high-opportunity neighborhood!
After nearly seven months in District Court, this matter has not been resolved any better than it was by the Galveston City Council or the Galveston Housing Authority! We are left with three critical issues for the Appellate Court, and a fair-housing case that still hasn't been heard!