Fair housing advocates worry feds won’t pursue housing lawsuit

More than three years after the federal government filed suit accusing the Town of Oyster Bay of discriminating against African-Americans in two housing programs, fair housing advocates and legal experts are frustrated that the case has stalled and they worry the Trump administration will either drop it or allow it to languish.

The Justice Department argued in its 2014 lawsuit that below market rate housing programs for first-time home buyers and seniors in the town are discriminatory because they give preference to residents. African-Americans comprise about 2 percent of the town’s population.

In December, a federal judge in Central Islip put the case on hold at the government’s request until a separate criminal case against then-Town Supervisor John Venditto is resolved. Venditto, a defendant in the discrimination case who has pleaded not guilty to corruption charges, resigned in January.

With Venditto out of office, Elaine Gross, president of Syosset-based ERASE Racism, called on the government to request that the stay be lifted. She worried that, under the Trump administration, the case “will be made to disappear.”

“I don’t see a logical reason not to move forward with the case,” she said.

The U.S. attorney’s office declined to comment on whether Venditto’s resignation will affect the case.

In the suit, the U.S. attorney’s office alleges that Oyster Bay deliberately discriminated against African-Americans. The case relies largely on a legal concept known as the disparate impact standard, which does not require proving intent, instead focusing on whether a policy causes a disproportionate, exclusionary impact on a group of people — in the Oyster Bay case, African-Americans.

In a statement, Town Attorney Joseph Nocella took the position that Venditto had argued when he was supervisor: That Oyster Bay created the programs “with the sole intention of allowing our senior residents and their families to remain in the Town. The Town never intended, nor did it ever in fact, discriminate against anyone.”

The Justice Department shifted politically to the right after Trump’s appointment of Jeff Sessions as attorney general. Many conservatives oppose using the disparate-impact standard, which the Obama administration supported and which the U.S. Supreme Court upheld in 2015, with limitations.

Samuel Bagenstos, who until 2011 was principal deputy assistant attorney general for civil rights under Obama, said that, with Sessions’ record of being “hostile to aggressive interpretations of civil rights laws to protect racial minorities,” the Justice Department likely will avoid filing cases based on the standard and may drop cases already filed.

The Justice Department declined to comment on how Sessions views cases like Oyster Bay that use the standard.

Housing and Urban Development Secretary Ben Carson is a critic of the standard. In a 2015 Washington Times op-ed, he counted it as among “government-engineered attempts to legislate racial equality” that could lead to less affordable housing, because many new housing efforts would be deemed to violate the standard.

Meriem Hubbard, an attorney with the conservative Sacramento-based Pacific Legal Foundation, said the standard is so open to interpretation that it’s hard for municipalities to know how to develop housing programs that avoid lawsuits. She said the government should focus on combating intentional discrimination.

But Joseph Rich, who has represented plaintiffs in other housing discrimination cases on Long Island, said the standard is necessary because people are less explicit about discriminatory motivations than in the past, making intent more difficult to prove.

“It used to be maybe they said, ‘I don’t want any black people living next door to me,’ ” said Rich, co-director of the fair housing and community development project of the Washington, D.C.-based Lawyers’ Committee for Civil Rights Under Law. “But they don’t do that anymore. It’s hidden.”

Michelle Santantonio, executive director of Bohemia-based Long Island Housing Services, a fair housing group, said Long Island became one of the nation’s most segregated suburban areas through discriminatory policies and restrictive covenants that banned black residents. Those laws and policies were declared illegal.

But rules such as residency preferences have helped maintain segregation, said Stacy Seicshnaydre, a law professor at Tulane University in New Orleans and an expert on fair housing law.

“We perpetuate these patterns when we enact policies that help maintain the demographic status quo,” Seicshnaydre said.