"Letter to Mayor Bloomberg and Speaker Quinn Seeking Support"
Professor Derrick A. Bell, Jr. • Professor Sarah Burns • Professor Sheila Foster • Professor Katherine M. Franke • Professor Victor M. Goode • Professor Lawrence M. Grosberg • Professor Martin Guggenheim • Professor Conrad Johnson • Professor Sylvia Law • Professor Stephen Loffredo • Professor Jonathan H. Oberman • Professor Russell Pearce • Professor Mary Marsh Zulack June 21, 2007 Hon. Michael Bloomberg Mayor of the City of New York City Hall New York, New York 10007 Hon. Christine Quinn Speaker of the City Council City Hall New York, New York 10007 Re: Fair and Prompt Co-op Disclosure Law (Intro 119) Dear Mayor Bloomberg and Speaker Quinn: We are writing to urge you to support the passage of the Fair and Prompt Coop Disclosure Law. Both as New Yorkers and as professors committed to the rule of law, we are deeply concerned with the continuing plague of housing discrimination in our City – whether that discrimination is motivated by race, religion, sexual orientation, disability, presence of children, or other protected class status. Our vaunted diversity, unfortunately, exists only when we look at our City in the aggregate, not when we look neighborhood-by-neighborhood or building-by-building. The sector in which housing discrimination is most difficult to prevent, identify, or remedy is that of co-op housing. Unlike rental housing or the sales of one-to-four family homes, it is impossible for either institutional prosecutors or not-for-profit fair housing organizations to “test” for discrimination by co-op Boards. While the City and the State currently possess a variety of tools to prevent discrimination in our housing market, the secrecy that envelops the co-op admissions process often obstructs the enforcement of those laws. Indeed, the strategy of withholding reasons for rejection from the families who have been turned down for the home another New Yorker has agreed to sell to them profoundly undermines the public interest in fair housing in multiple ways: It creates an environment of secrecy that emboldens those inclined to discriminate. Secrecy means that rejected applicants will have difficulty assessing whether their rights have been violated. Secrecy means that those rejected applicants who do pursue fair housing lawsuits are ultimately faced with reasons for rejection that may be made up long after-the-fact, and be based on a defense attorney’s view of what is strategically useful in a lawsuit, not the co-op Board’s contemporaneous reasons. The disclosure required by Intro 119 will act as a much-needed deterrent against discrimination in a housing sector that now accounts for more than 300,000 units. It will give rejected applicants a better sense of whether they have been the victims of illegal discrimination – not because a disclosure statement will say so, but because they will have the ability to assess whether the reasons the co-op puts forward appear valid or pretextual. The passage of Intro 119 will mean that, having had a full and fair opportunity to present specific reasons for rejection, co- ops will not thereafter be able to spring post hoc rationales invented only for trial. The Anti-Discrimination Center’s “Debunking Myths” fact sheet (available online at http://www.antibiaslaw.com/debunkingmyths.pdf) provides a detailed critique of many of the reasons that have been offered in opposition to the bill, but we thought it was important to respond here to some of those false charges: that Intro 119 would take away rights from co-ops, cause a “flood of litigation,” be difficult to comply with, be easy to evade, and cause co-op owners to refuse to serve on co-op Boards: Intro 119 explicitly preserves the entire bundle of existing rights that co-ops have to turn applicants down for any legally valid reason. The only new cause of action that would be created by Intro 119 is a cause of action for a failure to meet disclosure requirements. Rejected applicants will not have any “new” right to complain simply based on the fact that they disagree with a co-op Board’s determination. The co-op industry itself says that rejections are relatively rare, and that most rejections that do occur are based on the application of straightforward financial criteria. It is also the case that fair housing lawsuits can only plausibly emerge where the demographics of the applicant differs from that dominant demographics of the building. The “flood of litigation” claim is nothing more than the same tired argument that has been trotted out in response to every consumer, environmental, labor, or civil rights initiative of the last 40 years. Those genuinely in favor of open housing welcome Intro 119: the sunshine of disclosure will encourage more applicants of all backgrounds to apply to all the buildings for which they are qualified, even those buildings that may have been traditionally perceived as exclusionary. It will be simple for a co-op Board to comply with Intro 119’s disclosure requirements. If a co-op Board decides to turn an applicant down, that Board simply has to put the specific reasons for that action into a written statement to the applicant and provide the applicant with basic, non-individually identifiable statistics on the number of recent rejections and acceptances. Once this is done the co-op Board has complied with all the disclosure requirements. In our view, most co-op Boards will choose to adapt to the law – just as co-ops have adapted to last year’s legislation making the sales prices of units public for the first time. The assertion that co-op owners would not serve on boards after Intro 119 ignores the opinions of co-op owners themselves. A recent independent survey showed that co-op owners who were not themselves board members favored disclosure by a margin of well over 2-to-1. 2 Sadly, however, the industry could be right to the extent that some current Board members may refuse to serve if they can no longer rely on secrecy to shield them from any accountability for their actions. Such an attitude reflects contempt both for the public interest in furthering fair housing and for the spirit of cooperative living, and underlines the importance of the transparency that would be mandated by Intro 119. Mr. Mayor: you have always said that you believe that transparency helps markets to function more efficiently, and representatives from your Human Rights Commission have testified in favor of the principle of co-op disclosure. Madam Speaker: you came out in support of the Fair and Prompt Co-op Disclosure Law in the course of the 2005 campaign. Don’t be swayed by the campaign of fear and misinformation being waged by opponents of transparency. Bolster fair housing in our City by passing Intro 119 without further delay. Respectfully, Derrick A. Bell, Jr. Visiting Professor of Law New York University School of Law Sarah Burns Professor of Clinical Law New York University School of Law Sheila Foster Albert A. Walsh Professor of Law Co-Director, Stein Center for Law and Ethics Fordham Law School Katherine M. Franke Professor of Law Co-Director of the Center for the Study of Law & Culture Columbia Law School Victor M. Goode Associate Professor of Law City University School of Law Lawrence M. Grosberg Professor of Law New York Law School Martin Guggenheim Fiorello LaGuardia Professor of Clinical Law New York University School of Law 3 Conrad Johnson Clinical Professor of Law Columbia Law School Sylvia Law Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry Co-Director, Arthur Garfield Hays Civil Liberties Program New York University School of Law Stephen Loffredo Professor of Law City University School of Law Jonathan H. Oberman Clinical Professor of Law Benjamin N. Cardozo School of Law Russell Pearce Professor of Law Edward & Marilyn Bellet Chair in Legal Ethics, Morality, and Religion Fordham Law School Mary Marsh Zulack Clinical Professor of Law Columbia Law School For further information, contact firstname.lastname@example.org 4