DC Homeless Civil Rights Challenge to Shelter Closings Update
Boykin ET AL. V. FENTY ET AL. USCA Case No. 13-7159
For more info: George Rickman 202-258-3643, Jane Zara 202-390-2449
Homeless Legal Challenges to Closing Public Shelters
On October 15, 2010, the District closed La Casa Shelter, a shelter for homeless men located on Irving Street between 14th and 16th Streets in the Columbia Heights section of Northwest Washington D.C. The last low barrier public men’s shelter in Northwest D.C., and the only bilingual shelter operated by the District, La Casa was located in the center of an area teeming with new development and fast paced gentrification. La Casa Shelter was replaced with Highland Park luxury apartments, after conveyance of the shelter’s land by the city to the developer, Donatelli. The property values in the area have seen a dramatic increase from the time La Casa first opened its doors for services to area’s homeless populations. Affordable housing in the area has become non-existent.[i]
The homeless have posed legal challenges to this displacement pattern, and former La Casa Shelter residents (Boykin et al.), formerly located in Columbia Heights (Ward 1), have recently filed a brief in the DC Circuit, alleging that the closing of La Casa Shelter is part of a larger, systematic pattern of targeting of minorities and the disabled in violation of the Fair Housing Act (FHA), the American with Disabilities Act (ADA), and the DC Human Rights Act (Residence Discrimination). Boykin plaintiffs, now Appellants, filed their opening brief May, 22, 2014 and Reply Brief August 18, 2014, and the District filed its reply brief in July, 2014. Oral arguments are scheduled for December 8, 2014 (USCA Case No. 13-7159).[ii]
The District’s proffered proof of its defense in this case was the sole opinion testimony of an interested party: its official charged with administering the program, Fred Swan. This is insufficient. The mere opinion testimony of an interested party regarding the need for a particular policy is generally insufficient to meet the defendant's burden of proving a business necessity. The District Court faulted plaintiffs for not putting forth evidence of record (e.g. through expert witness testimony at this very early stage of litigation) that countered, or created a material issue of fact concerning the District’s theories of defense. In this case, Boykin plaintiffs presented more than enough evidence to survive a motion for summary judgment on the issue of whether the District’s policy of closing low-barrier shelters for homeless had a disparate impact on African-American men in the District of Columbia, and alleged sufficient facts to move beyond the pleading stage on the remaining counts.
A reversal of the judgment and remand for a broader record in this case would best serve the ends of justice. Otherwise an onerous and unfair burden will fall to plaintiffs at this early stage of pleadings, precluding many who fall victim to discrimination under the FHA the ability to assert their claims in court.
This case illustrates the District’s callous treatment of their poorest and most vulnerable, and brings forward those long held fears in the African-American community that the District is no longer home. Indeed, given the DC Council and the District of Columbia Court’s abdication from ensuring a right to housing, a right to human dignity, this case may well be the last existing legal remedy available to the growing number of homeless persons in the District of Columbia.[iii]
As an indication of depth of current housing rights policy challenges posed by conservatives in the US, the right-wing think tank, Pacific Legal Foundation (PLF) requested consent of Boykin plaintiffs to file an amicus brief on behalf of District defendants challenging the basic right to file disparate impact claims under the Fair Housing Act. PLF then withdrew their request to file their amicus brief just prior to the filing of Boykin’s brief. Several cases challenging the right to disparate impact claims under the FHA have been settled prior to being argued before the Supreme Court.[iv] Alarmingly, the Supreme Court has recently agreed to hear arguments on the right of disparate impact claims under the FHA (in the absence of disparate treatment claims).[v]
Background
Last winter the newspapers were filled with accounts of a homeless system overwhelmed by the growing number of homeless unable to meet their most basic needs. And even though these accounts did not mention the plight of homeless men, it would be foolish to assume that the crisis did not affect them as well. Indeed, it does not take much to walk the streets of downtown Washington, D.C. to witness firsthand the horrific consequences of a system that has lost its way. To be sure, The District of Columbia is experiencing a crisis in housing for low and moderate income individuals and families, overwhelmingly African-American with many disabled, that has left many living in overcrowded conditions for those who are able to secure a place to sleep at night while others are left to sleep on the streets. The overall conditions throughout the homeless system continue to worsen while the District of Columbia government (“District”) continues its failed policy of closing low-barrier shelters without providing any alternative housing that begins to meet the growing needs of a population more often forgotten in the city’s race to development and high-end living. Because this divide is defined by race and disability, these policy failures violate the law.
Prior to the closing of La Casa Shelter, and as part of an ongoing pattern of displacement, the District closed Franklin Shelter, another low barrier shelter in Northwest, Washington, D.C.[vi] Between the two closures, the District removed all available shelter space in District operated facilities in the Northwest quadrant of the city and reduced its available shelter space for men by over thirty percent (30%). Franklin School remains shuttered after its sudden closing in September, 2008. The city had invested approximately two million dollars in heating and cooling systems prior to its closing, and the shelter was closed due a faulty fire alarm, which was of minimal cost. The closings have had adverse effects on the homeless system as a whole, adding additional strain the District’s Permanent Supportive Housing (PSH) program, a program intended to serve the entire homeless population that includes individuals and families. As far as the Northwest section of the city, the closure of La Casa restated the old adage of living “on the other side of the tracks,” marking the final step in removing all low-barrier shelters from what has always been the more affluent parts of the city as a part of the city’s drive for economic development.
Homeless Legal Challenges to Closing Public Shelters
Disparate Impact
Within their theory of disparate impact, Boykin plaintiffs argued that the District’s policy of closing shelters to move to a system of permanent supportive housing had an adverse, disproportionate effect on African-Americans. Plaintiffs argued that following the closing of the remaining two low-barrier shelters in Northwest Washington, D.C., Franklin Shelter and La Casa Shelter, available shelter space in the Northwest quadrants of the city went to zero, thus reducing the amount of shelter space throughout the city. These closings rendered the remaining shelters over-capacity and unsafe while denying shelter to some.
Disparate Treatment
As the District Court accounted for, but dismissed as irrelevant, plaintiffs further alleged that following the closing of Franklin Shelter, located in a predominantly white section of the city, the limited PSH placements were also located in non-white sections of the city. Even though these placements occurred two years prior to the closing of La Casa, the closing of Franklin was as much a part of the pattern of displacement as La Casa, and was a part of and offered as further factual support of an inference of intentional discrimination in this case.
As an alternative method to prove disparate treatment, plaintiffs alleged a broad and pervasive pattern of conduct and displacement of groups protected under the FHA. Circumstantial evidence can be used to establish the requisite intent. The factors instructive in determining whether racially discriminatory intent is present include the sequence of events leading up to the challenged actions.
Evidence of Record
Prior to closing La Casa, at least 13,000 single adults and 2,800 adults and children reportedly used emergency shelter in the District every year, at least 2200 persons as being “chronically homeless” in 2008.[vii] Shelters were in excess of capacity on a regular basis: 164% over capacity at New York Ave., 125% over capacity at Franklin Shelter, 111% over capacity at 801 East. On January 27, 2010, 6,539 literally homeless persons were counted, an increase of 5% from the Point in Time 2009. Even with the ever increasing incidents of homelessness in the District of Columbia, and with the apparent under-reporting of homeless numbers using such techniques as the single point in time survey,[viii] the District pursued its policy of displacement through the closing of low-barrier shelters.
The number of homeless persons has risen steadily since 2009 while the public shelter space has declined. The Washington Legal Clinic for Homeless (WLCH) reported that approximately 16,000 people were homeless in Washington DC over the course of a year, one of highest rates in the country. On January 27, 2010, the year La Casa Shelter was closed, 6,539 literally homeless persons were counted in the District in the then most recent Point in Time Study, an increase of 5% from the Point in Time Study conducted in 2009. The WLCH reported that, for most applicants, the wait for emergency family shelter was approximately six months and that there was in excess of four hundred families on the wait list for emergency shelter, with the numbers increasing daily. This is relevant because homeless families are also considered for placement in the PSH program. As of October 2009, at least 15,411 households remained on the wait list for DC Housing Authority’s Public Housing and 26,704 households on the wait list for Housing Choice Voucher Program, 13,000 of which are homeless. The number of public housing units in the District has decreased by 4000 units since 2000, and was to continue to decrease, with at least 68% of all project based subsidized units set to expire by 2023.[ix]
The policy of closing low barrier shelters only in the largely Caucasian Wards of the District perpetuates segregation and is therefore considered invidious under the Fair Housing Act. Boykin plaintiffs presented evidence of a shifting racial demographic as the areas where these shelters were located were central to the gentrification taking place in the District. All told, and based on the elimination of all available shelter space in these western quadrants of the city that affected the total amount of homeless shelter space in the city, the policy as practiced by the District defendants had an adverse disproportionate effect on the African-American and Hispanic men. In this case, it was not just the closing of La Casa Shelter that affected 90 beds, or a “limited subset” of homeless persons. Instead the Boykin plaintiffs complained of and offered proof that a broader policy whose operation denied housing to a class of persons that were 87.2% African-American of which the closing of La Casa was a part. This was not the “analytic cherrypicking” described by the District Court. Even so, the closing of low-barrier shelters denied housing and strained resources to untenable lengths.
The pattern of targeting and removal of the largely minority homeless population exhibited by the District defendants and of record includes: i) a clear and undisputed pattern of closing all low barrier public shelter services in largely Caucasian Wards 1 and 2 and relegating the remaining public shelters to Wards 5, 7 and 8, with highest minority populations; ii) the District’s intentionally misleading use of pretext of “uninhabitability” in suddenly evacuating and permanently shuttering Franklin Shelter, despite community outrage and opposition to the shelter’s closing; iii) the refusal to consider less discriminatory options, including a) refusal to open a homeless facility that had been approved by DHS in a nearby location, on Spring Rd., NW and b) the continued refusal to reopen Franklin Shelter which had exemplary supportive services located in the shelter; iv) the location of over 90 % of PSH placements are in Wards 5, 7 and 8, with highest minority populations; v. Blacks and Hispanics being at highest risk of homelessness in DC; vi. the lack of affordable housing in Wards 1 and 2; vi) the removal of affordable housing requirements for the most needy (20% - 60% AMI) implemented by the Zoning Board for the Donatelli luxury apartments after conveyance of the La Casa Shelter land from the District to Donatelli;[x] vii) documenting the downtown DC (Ward 2) Business Interest District representative’s intention to tighten regulation of charity groups feeding the homeless in downtown DC, to prevent transportation from the far flung shelters to downtown DC, and to “repurpose” the CCNV shelter; viii.) the PSH program being woefully inadequate in addressing the rising needs of the homeless in DC, and used as a pretext to close the public shelters in Wards 1 and 2.
Boykin plaintiffs pointed out that other less discriminatory options existed and were denied by the District. The economic feasibility of opening the shelter nearby at 1125 Spring Rd, N.W. was ignored by the District, where the D.C Department of Human Services determined that only showers were needed for opening a suitable shelter facility at that location. Plaintiffs provide evidence that the D.C. Department of Human Services stated in October of 2010 that a facility at Spring Rd., NW, would be a feasible site for opening a low barrier shelter. And despite the growing needs for shelter, the District withdrew its plans in response to community resistance championed by Mayoral candidate Muriel Bowser while she served as Councilmember of Ward 4.[xi] The economic feasibility of reopening Franklin Shelter has been documented in earlier pleadings, as well as continued community outrage at the closing of Franklin Shelter.
Boykin plaintiffs presented evidence showing the racial composition of those census tracts contiguous to the locations of the two closed shelters. Those tracts comprising the area of La Casa Shelter revealed racial patterns of equal numbers of black and white residents, while the areas in the remaining shelters that were left open were, in most cases, over 90% black. Added to this data was census information that revealed a pattern of gentrification in the area around La Casa Shelter with increasing numbers of whites entering the area and a commensurate decrease in the numbers of black residents. Equally so, it undisputed that the male homeless population in the District is well over 80% black and, as a group, is more likely to utilize any low-barrier shelters in the District. The District’s records indicate similar housing patterns in placements in PSH. As a part of the record evidence, despite the construction of 45 units of permanent supportive housing on the site of La Casa, of the 350 placements through the PSH program, less than 10% were made outside of Wards 5, 7 and 8, and none were made in Wards 2 or 3 in those areas of highest affluence and highest Caucasian populations.
The District’s Defense
The District moved for summary judgment soon after the District Court denied its motion to dismiss the count that alleged a violation of the FHA on a theory of disparate impact based on race. In support of its justification, the District proffered the conclusory statement that the closing of the shelters was the result of budgetary decisions that were a part of a policy shift from providing low-barrier shelter to one of permanent supportive housing. But in making this vague and conclusory assertion, the District did not offer any particular evidence supporting this statement: they did not provide any evidence of the cost of operating any low-barrier shelter, and did not present any evidence of the possible cost of operating and maintaining a PSH system for the growing numbers of homeless persons and families in the District. Because of this failure in the evidence, it is impossible to say whether the district defendants ever considered, let alone acknowledged, the existence of less discriminatory alternatives. The District’s proffered proof of its defense is the sole opinion testimony of an interested party: its official charged with administering the program, Fred Swan. This is insufficient. The mere opinion testimony of an interested party regarding the need for a particular policy is generally insufficient to meet the defendant's burden of proving a business necessity.
The District in the La Casa case has never explained why the shelters housing homeless men were closed in Wards 1 and 2. All of the District’s actions of record suffice to support an inference that the District intentionally targeted shelters for closure, and removal of the homeless population in the gentrifying and predominantly white sections of the city. City officials dealt with code and structural violations differently and targeted for closure the shelters only in Wards 1 and 2 as opposed to those areas in predominantly African-American areas. Plaintiffs also provide evidence that the homeless were being targeted by the downtown BID, including possible cessation of homeless transportation to downtown DC from far flung shelters, and targeting homeless programs for increased regulation or cessation.
Glaring Contradictions in District Pleadings
To contradict this opinion testimony of Fred Swan and of record are the minutes from The Inter-Agency Council on Homelessness (ICH) held on February 25, 2009, where Fred Swan, the District defendant’s declarant in this case, reported that over 3,100 homeless singles and over 360 homeless families had completed assessment forms in efforts to obtain Permanent Supportive Housing, but only 414 singles and 1 family had been housed. When contrasted with the declaration of Fred Swan submitted by the District defendants in support of their Motion for Summary Judgment in the La Casa case, the number of placements in PSH attested to only indicates a widening gap between available housing and the growing number of homeless. The proffered declaration by Fred Swan is, at best, disingenuous.
In addition to this glaring contradiction is another admission by the District. In support of its motion to vacate a December 12, 2003, Consent Order and to dismiss action for violating the Erwin Act by failing to provide community-based alternatives to institutionalizing the mentally ill, the District admitted that the goal to house 70% of its consumers in the mental health system is “impossible to achieve” because that would “unrealistically require an inexhaustible supply of available, low-cost housing” which is currently lacking in the District. The District stated that it “…cannot defy economic reality to create additional housing on such a massive basis as to comply …” with the court’s criteria for lifting oversight.[xii]
Astoundingly, the evidence upon which the District Court’s conclusion was based was limited to an isolated conclusory statement from a District official, Fred Swan, from a prior litigation, and lacked any specific evidence of budgets at any relevant time period, lacked related data on placements, cost of placements, availability of placements in PSH for any relevant time period, standards for awarding contracts for placements, locations of required accompanying supportive services, or standards for program oversight. Indeed, the District’s evidence does not contain anything beyond conclusory assertions unsupported by facts. In the declaration of Fred Swan or those other reports submitted by the District defendants, evidence relied on by the District Court, there is no evidence detailing the cost per unit of PSH, no evidence of the cost of operating a shelter or how the two programs are mutually exclusive. Also absent is any indication of what effects the bare assertion of a dollar amount would have on the system as a whole. The declaration and reports only provide a number of placements that, when contrasted with other evidence, evinces a widening gap between resources and needs. It remained the District defendants’ burden to prove the efficacy of these bare assertions such that a jury could not find for plaintiffs. They failed to do so.
The District Court’s Decisions
In the first round of pleadings the District Court allowed plaintiffs to go forward on one court that alleged that the closing of La Casa Shelter violated the Fair Housing Act, 42 U.S.C. § 3601 et seq., on a theory of disparate impact based on race, and in so doing, held that low-barrier shelters were covered by the FHA. The District Court, however, dismissed those counts that alleged violations of the FHA on theories of disparate impact based on disability, disparate treatment based on race and disability, or 42 U.S.C. § 3601 et seq, disparate impact under the Americans With Disabilities Act, 42 U.S.C. §12131 et seq. and a number of theories under the law of the District of Columbia.
On the theory of disparate impact, the District Court complained that the La Casa plaintiffs could not base liability on a broader homeless population from the discrete and limited closure of one shelter in the city. On the other hand, the District Court ironically indicated that the District admitted to the existence of such a policy as part of its broader efforts to eliminate homelessness. The District Court considered the evidence of the placement of Franklin residents irrelevant to this case, which was in error because the District Court failed to recognize that the closing of Franklin was a part of the same policy at issue and was as much a part of the pattern of displacement as was the closing of La Casa.
The District Court faulted plaintiffs for not putting forth evidence of record that countered, or created a material issue of fact concerning the District’s theories of defense.
The evidence in the aggregate was ignored or discounted by the District Court
The evidence in the aggregate permits a reasonable trier of fact to find a pattern of discrimination against the homeless population by the District, providing “ample proof” even at this stage of litigation that many Blacks, Hispanics, and disabled lived in the shelters, and are at highest risk of becoming homeless in the District. To be sure, the District’s proffered aspirational goal in ending homeless through the use Permanent Supportive Housing is neutral on its face. But their failure to present any evidence supporting these ends proves fatal to any claim of a legitimate justification.
The record clearly shows that the PSH has failed to begin to meet the ever-growing needs of an expanding population, and has failed to provide evidence of accompanying services at far flung locations of Wards 5, 7 and 8. Anecdotal evidence collected as a part of this litigation reifies the low number of placements as former La Casa residents state that they have been forced to shelters on the other side of the city or instead opt to sleep and stay in the alleys, parks and other available space in the Columbia Heights area to maintain a connection with the available services. Former residents of Franklin Shelter experienced these same failures in obtaining PSH housing.
What’s more, available data on PSH placements indicated that the overwhelming majority of these placements have been in eastern part of the city. In a report on placements that followed the closing of Franklin Shelter, of the three hundred and five (305) placements identified in the report thirty (30), or less than ten percent (10%), were made in the western wards of 1 and 4. None were made in Wards 2 or 3, areas with the highest Caucasian populations. The District offered no evidence countering this trend in placements. Moreover, even with these minimal placements thousands of homeless men, women and families have not been placed.
In this case Boykin plaintiffs presented more than enough evidence to survive a motion for summary judgment on the issue of whether the District’s policy of closing low-barrier shelters for homeless had a disparate impact on African-American men in the District of Columbia, and alleged sufficient facts to move beyond the pleading stage on the remaining counts. A reversal of the judgment and remand for a broader record in this case would best serve the ends of justice. Otherwise an onerous and unfair burden will fall to plaintiffs at this stage of pleadings, precluding many who fall victim to discrimination under
[i] With the rise in development and property values, the Columbia Heights area has been a part of a demographic shift in its populations. In the census reports from 1990 to the most recent report in 2010, all relevant census tracts in the Columbia Heights area indicate a precipitous drop in the number of African-American residents with a commensurate increase in the number of Caucasians.
[ii] See also http://www.washingtonpost.com/wp-dyn/content/article/2008/09/26/AR2008092603645.html; http://www.huffingtonpost.com/2011/11/19/occupy-dc-arrests-franklin-school_n_1103270.html; http://www.leagle.com/decision/In%20FCO%2020130208117.xml/SHEPTOCK%20v.%20FENTY.
[iii] As an indication of depth of current housing rights policy challenges posed by conservatives in the US, the right-wing think tank, Pacific Legal Foundation (PLF) requested consent of La Casa appellants to file an amicus brief on behalf of the District (appellees), challenging the basic right to file disparate impact claims under the Fair Housing Act. Pacific Legal Foundation then withdrew their request to file their amicus brief just prior to the filing of appellants’ brief. The exact reasons for their actions are unclear, but in light of HUD’s recently released guidelines for disparate impact claims under the FHA, PLF is predicted to proceed toward the larger issue, challenging public policy based on race under the 14th (and 5th) Amendments.
[iv] Mt. Holly Gardens Citizens in Action, Inc. v. Twp. Of Mount Holly, 658 F.3d 375 (3rd Cir. 2011) is one of the FHA cases, and was first remanded for further development of the record following a premature grant of summary judgment, as is proper in the Boykin case.
[v] See, e.g. http://www.bloomberg.com/news/2014-10-02/texas-housing-bias-case-gets-u-s-supreme-court-review.html re: Inclusive Communities Proj. v. Tx. Dept. of HO, 747 F. 3d 275 - Court of Appeals, 5th Circuit, 2014.
[vi] Census Tract 1 is representative of Ward 2, where Franklin Shelter, another low barrier shelter in Northwest had been closed prior to the closing of La Casa, is comprised of 4.8% Blacks, 86% Whites, 4.1% Hispanics, 5.2% poverty rate, and 1.9% unemployment rate.
[vii] See, e.g., Major Recommendations: Summary Report of the Urban Institute’s Assessment of the District of Columbia’s Public Homeless Assistance System (June 2, 2008); Washington Legal Clinic for the Homeless: Homelessness and Poverty, Washington, DC (2009).
[viii] GAO Report: A Common Vocabulary Could Help Agencies Collaborate and Collect More Consistent Data (June 2010).
[ix] D.C. Cares Fact Sheet; The Community Partnership for the Prevention of Homelessness Published Fast Facts on Homelessness in D.C. (2008).
[x] Gov. of D.C. Zoning commission, Z.C. Case No. 07-23 (Nov. 8, 2010).
[xi] L. DePillis, How many homeless shelters is too many? Washington City Paper (Oct. 11, 2010);
The District Defendant’s Admissions:
The District defendants admit that, in 2010 over 87% of the men served in shelters were African-American or Hispanic as contrasted with these groups comprising 61.3% of the District’s total population. Recent information provided by the District defendants indicates that at the present time, the broader homeless population in the District is comprised of 84% African-Americans. The most recent census data for the District of Columbia indicates that African Americans comprise 52% of the total population of the District.
Based on the District defendants’ own admission and the WLCH Report, the homeless population in the District of Columbia is comprised of a larger percentage of persons suffering from some cognizable disability. A reportedly 71% of homeless individuals and 53% of some person in homeless families living in the District of Columbia suffer from either substance abuse or a mental illness. A reported 40% of the “street-bound” homeless have co-occurring disabilities, 36% of individual homeless suffer from chronic substance abuse, 19% suffer from debilitating mentally illness, 16% are dually diagnosed, and 12% are living with HIV/AIDS.
[xii] See Decl. of Stephen T. Baron, Director of DMH, at pages 9-10 in Civil Action No. 74-385 (TFH), Memorandum In Support of Motion to Dismiss, filed Sept. 4, 2009 (Excerpts provided as Pl. Ex. 5, Doc. 68-3 (Aug. 19, 2011), Doc. 31-4 (Dec. 6, 2010).