Public Interest Law & Policy

1. Public Interest Law & Policy Class 5 Ronald W. Staudt February 5, 2013

2. Public Interest Law & Policy Waiting for Gautreaux, 107- 155 Hills v. Gautreaux, 425 U.S. 284 (1976)

3. Waiting for Gautreaux • Supplemental Complaint against Daley and the City Council • Detailed relief granted • Appeal won in split decision • Majority/minority views • Supreme Court declines in 1974- 5 years

4. Waiting for Gautreaux • Metropolitan relief & HUD • HUD ruling in 7th Cir- Austin orders plan • Experts Rabinowitz and Hauser • Hearing – Austin strikes evidence about FHA and suburban segregation • Milliken DC and C of A approach rejected • Motion for metropolitan relief denied as letting Chicago off the hook…. • “moments of greatest disappointment..”

5. Waiting for Gautreaux “Furthermore, plaintiffs should not have to be reminded that no public housing has been built in this City since my order of July 1, 1969 because the municipal authorities refused to approve sufficient sites for such housing and recently because of a lack of funds. But, now that one of those obstacles has been eliminated by the Seventh Circuit's recent affirmance of my order to build housing in Chicago without City Council approval, plaintiffs have curiously raised an issue that would let the principal offender, CHA, avoid the politically distasteful task before it by passing off its problems onto the suburbs.”Judge Richard Austin, Gautreaux v. Romney, 363 F. Supp. 690 (N.D. Ill. September 11, 1973).

6. Milliken v. Bradley • Connection of Detroit school case to Gautreaux • Timing issues • Multi-district relief not appropriate • Judge will become a de facto legislative authority and then a school superintendant • Unless discrimination by one district causes segregation in other districts or district lines drawn on basis of race or white students in Detroit were sent to the suburbs, there is no constitutional duty to send black students to the suburbs. • Stewart: …the Court does not deal with questions of substantive constitutional law. The basic issue now before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction.” • Impact?

7. Waiting for Gautreaux • Nixon, busing, Watergate, Milliken • 7th Cir. Victory- 2-1 • Bork visit • Solicitor General files for cert • Section 8 launched • No local veto, only comment • Cert granted • Preparing for the argument

8. Waiting for Gautreaux • Six levels • Prematurity • Milliken is a school case • Evidence of suburban discrimination • HUD’s designated market areas • Section 8 requires no local coercion • We lose…

9. Hills v. Gautreaux • Procedural history— • Austin denies metropolitan relief & orders HUD to use best efforts in the city • 7th Cir reverses with remand to adopt a metropolitan plan to end segregation and increase supply of housing • Distinguishes Milliken • Cert sought by HUD on permissibility of interdistrict relief in the absence of a finding of an interdistrict violation

10. Hills v. Gautreaux • 7th Cir erred in finding Milliken inapplicable- not limited to schools • 7th Cir wrong to surmise interdistrict violation or effect • HUD’s arguments • Incommensurate relief • Consolidated districts result by remedy

11. Hills v. Gautreaux • HUD violated the Constitution • HUD and CHA can operate out of Chicago • Housing market areas- HUD’s expertise • “To foreclose such relief solely because HUD's constitutional violation took place within the city limits of Chicago would transform Milliken's principled limitation on the exercise of federal judicial authority into an arbitrary and mechanical shield for those found to have engaged in unconstitutional conduct.”

12. Hills v. Gautreaux • Part 2- HUD says no plan is possible without ignoring the safeguards of local autonomy, but • Local authorities must apply- HUD order would not force applications • Sect. 8 – consultation, planning, small sites

13. Hills v. Gautreaux • “In sum, there is no basis for the petitioner's claim that court-ordered metropolitan area relief in this case would be impermissible as a matter of law under the Milliken decision. In contrast to the desegregation order in that case, a metropolitan area relief order directed to HUD would not consolidate or in any way restructure local governmental units. • The remedial decree would neither force suburban governments to submit public housing proposals to HUD nor displace the rights and powers accorded local government entities under federal or state housing statutes or existing land-use laws. • The order would have the same effect on the suburban governments as a discretionary decision by HUD to use its statutory powers to provide the respondents with alternatives to the racially segregated Chicago public housing system created by CHA and HUD.”

14. Waiting for Gautreaux • Win, lose or draw? • Damage control • Holy grail gone • Press misread • Wounded but not devoured • Time lost… • What if??? • Sue suburbs early • Humphrey, Fortas,

15. Waiting for Gautreaux • The argument • The aftermath • Questions???

16. Waiting for Gautreaux • “The dream of the civil rights revolution seemed distant indeed, the bright hopes for litigation as a social change lever naïve.” • What would I say to the law students today…

17. Next class- Alex Polikoff visit Client Autonomy and Cause Lawyering • Can you talk about your current thoughts about the fact that Dorothy Gautreaux and the other class representatives and Chicago’s  black community groups did not get involved in the decisions you describe in the case, like the Model Cities issue or the decision to appeal or not to appeal major rulings?  • Did the lawyer team receive dissenting or opposing views on your decisions from tenant groups or other black organizations? If so, how voiced? What about other interest groups, disabled tenants, for example?

18. Next class- Alex Polikoff visit Personal and professional questions- • When you pursue such a deeply felt cause as a lawyer, how do you relate to opposing counsel and lawyers who do not share your convictions? What about the people described in the book, especially those depicted critically? • Litigation as a tool for social change- can it work? Can judges administer major transformations without administrative resources?

19. Next class- Alex Polikoff visit Gautreaux going forward: • What do you think of the Hope VI program and the current direction of public housing in Chicago, and nationally?  • What are your current thoughts on the CHA Transformation process?

20. Next class- Alex Polikoff visit?

21. CLASS 6 — Thursday, February 7 Read Waiting for Gautreaux, pages 159 - 169; 209 - 217; 361 - 367 and 382 – 391. (Pay special attention to 214 -217 relating to client consultation.) Study the BPI website, especially the BPI in-depth page and The Third Side, the BPI Report on the CHA Transformation project, Housing Mobility and Surgery and the Polikoff-Gautreaux Fellowship announcement. Background ReadingSkim Waiting for Gautreaux, 219 to end.