photo: The demolition by implosion of Lafayette Courts
The demolition by implosion of Lafayette Courts in 1995 marked the end of the high-rise era in Baltimore public housing. Afro American Newspapers/Gado/Getty Images

The Legacy of a Landmark Case for Housing Mobility

In 1995, the ACLU sued HUD on behalf of public housing tenants in Baltimore. The question Thompson v. HUD addressed remains urgent: Who gets to live where?

Twenty-five years ago today, the ACLU of Maryland filed a federal civil rights lawsuit that changed the housing landscape in a major metropolitan area. The suit, Carmen Thompson, et al. v. U.S. Department of Housing and Urban Development, et al., was a crucible for two questions that remain urgent today: “Who gets to live where?” and “What is racism?”

In the early 1990s, housing authorities across America were itching to tear down high-rise public housing. Under President Bill Clinton, the HOPE VI program inspired visions of low-rise mixed-income housing replacing the towers.

Leaders in Baltimore, Maryland, shared that vision—the city’s stock of high-rise public housing, built in the 1950s, had acquired a well-deserved reputation for crime and poor maintenance. But first they had to contend with housing attorney Barbara Samuels, who saw an opportunity in HOPE VI to right a historic wrong.

Samuels had done the math: Federal law mandated one-for-one replacement, and the city’s plans for garden apartments and two-story rowhouses replacing clusters of 11-story towers would require many units to go somewhere else. She had also done her social studies, reading decades’ worth of primary documents depicting the explicitly discriminatory history that had crammed the projects into poor black neighborhoods. Samuels wondered: What if the suburbs started taking their fair share of public housing?

The documents Samuels read shocked her. She had represented public housing tenants for years as a Legal Aid attorney, just trying to keep a decent roof over their heads. “What I had never really thought about, even as I was in and out of various public housing developments, is why they were where they were,” Samuels told me in a 2015 interview for my book The Lines Between Us, which uses Thompson v. HUD as its centerpiece.

The documents transformed Samuels from a housing lawyer into a fair housing lawyer, and they gave momentum to the work of a task force of local organizations determined to “dismantle the remnants of segregation.” Samuels joined the ACLU of Maryland in 1993, and two years later the organization filed a class action lawsuit representing Carmen Thompson and five other black public housing tenants, along with a request for an injunction against the demolition of the towers. They essentially told the city, “You segregated public housing when you built it. Don’t do it again 50 years later.”

Within two years, the parties had agreed to a partial consent decree creating over 1,000 special Section 8 vouchers for black public housing residents, for use only in low-poverty areas with at least 75 percent white residents. In Baltimore, those neighborhoods would be found mostly in the suburban counties surrounding Baltimore City—precisely the communities that resisted low-income housing and, before the Fair Housing Act of 1968, had fought the settlement of African Americans. As the city struggled to launch a mobility counseling program to accompany the vouchers, Baltimore’s four high-rise projects crumbled over six years of controlled demolition.

Despite the partial settlement, Thompson v. HUD went to trial in 2003. Some arguments boiled down to which policy should take precedence in deconcentrating poverty: pouring investment into poor black areas like West Baltimore, or creating housing in wealthier suburbs for the black poor. Given the city’s limited resources, battles often arose over whether to bring opportunity to people or move people to opportunity. Samuels wanted to do both—in fact, her legal team pushed in vain for a remedy that equalized services in poor city neighborhoods with those in wealthier ones.

Federal judge Marvin J. Garbis found liability on just one count against HUD: failing to abide by a passage of the Fair Housing Act that required the defendants to “administer [housing] programs…in a manner affirmatively to further the policies of [the Act].” HUD should have thought beyond the city line, Garbis declared. “Baltimore City,” he wrote in his ruling, “should not be viewed as an island reservation for use as a container for all of the poor of a contiguous region of Baltimore.” The final remedy created 2,600 more mobility vouchers—but only in 2012, after seven years of on-again and off-again negotiations.

In 2011, Samuels joined local advocacy organizations to file two more federal housing complaints in the region: one against the State of Maryland, and another against suburban Baltimore County. Both led to settlements.

In her legal approach, Samuels recognized the metamorphosis that racism and discrimination had undergone since the Fair Housing Act. While both Thompson v. HUD and one of her later complaints included claims of intentional discrimination, they also relied on two fair housing tools that do not require evidence of intentional discrimination.

The “affirmatively further fair housing” provision that decided Thompson requires HUD and its grantees to document barriers to fair housing choice and take proactive steps to undo segregation. You don’t have to catch a racist doing or saying a racist thing, and the same is true under disparate impact theory, which Samuels used against Baltimore County and Maryland. In this approach, plaintiffs outline the disproportionate harm that a policy creates among a class protected under civil rights law, no matter the intent.

During President Barack Obama’s second term, HUD clarified the potential uses of both disparate impact and the duty to affirmatively further fair housing, and the U.S. Supreme Court upheld the legitimacy of disparate impact in housing cases. The statute’s language, Justice Anthony Kennedy wrote, refers to the “consequences of an action rather than the actor’s intent.”

While Justice Kennedy was no fan of race-based remedies—indeed, he endorsed “race-neutral means” in his opinion—his distinction between intent and effect put the Supreme Court’s imprimatur on an understanding of racism and discrimination much more suitable to the covert nature of 21st century discrimination.

Ben Carson’s HUD, however, has come along and defined racism down. The agency wrote a draft rule weakening disparate impact, suspended part of the Obama rule on affirmatively furthering, and wrote its own draft rule to further dilute that duty. These acts would leave little that is actionable beyond intent.

But Carson came too late to disrupt the legacy of Thompson v. HUD, which can be seen across the Baltimore region and beyond. The Baltimore Housing Mobility Program has helped more than 4,000 former public housing families move to high-opportunity areas throughout the region; nationwide, researchers like Stefanie Deluca and Raj Chetty are documenting mobility successes in Seattle and elsewhere. Housing mobility, once a reliable trigger for suburban bigotry and backlash, has become a bipartisan poverty solution: Congress’s 2019 budget included $28 million for a mobility demonstration program.

Housing mobility alone will not deliver racial justice. An unconscionable number of families remain on waiting lists for public housing and Section 8. Ferguson and Baltimore showed America what happens when we keep choosing to condone segregation, concentrated poverty, and the punishing dynamics those conditions create. But Thompson v. HUD at least documented how those conditions came to be—and helped a lot of families find opportunity that had long been denied.

“People used to assume, ‘Subsidized housing? You put it where all the poor people are,’” says Barbara Samuels, who still works for ACLU of Maryland. “We’ve gone beyond that superficial logic.” In the wake of Thompson, she notes, many of the major public interest legal organizations in Baltimore have challenged segregative housing practices; nationally, best-selling books like The Color of Law have raised the baseline understanding of how segregation took root in America’s cities.

“The case of Thompson v. HUD has been changing the way we view the landscape of Baltimore City and its suburbs, showing that segregation is not inevitable,” Samuels says. “Policy caused it, and policy can reverse it. Do we have the political will?”

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