Public Interest Law & Policy Class 6 Ronald W. Staudt September 18, 2007

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

Waiting for Gautreaux Metropolitan relief & HUD HUD ruling in 7 th 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..”

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).

Waiting for Gautreaux Nixon, busing, Watergate, Milliken 7 th 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

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…

Hills v. Gautreaux Procedural history— Austin denies metropolitan relief & orders HUD to use best efforts in the city 7 th 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

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

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.”

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

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.”

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,

Waiting for Gautreaux The argument The aftermath Questions???

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…

Next class- Alex Polikoff visit Personal and professional questions- Tell us more about the decision to leave Schiff and how that decision has played out over the last 35 years. What has been the reaction within the public interest bar, and the private bar generally, to the Gautreaux case? 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? Other than Gautreaux, on what did BPI concentrate during your years as its leader? What successes, what disappointments. Dorothy Gautreaux and the other class representatives and Chicago’s black community groups- How often did these individuals or groups 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? Were the individual class representatives happy with the case and its outcome?

Preferred Issues What would you do if you were starting today, knowing what you know about the case and your successes and disappointments, to remedy the problem of public housing discrimination in Chicago? What do you think of the Hope VI program and the current direction of public housing? What are your current thoughts on the CHA Transformation process?

CLASS 7 — Thursday, September 20 Read Waiting for Gautreaux, pages Study the BPI website, especially the accomplishments pageaccomplishments page Background Reading Skim Waiting for Gautreaux, 219 to end- excerpts to be assigned. Skim the recent attorneys' fee appeal in Gautreaux v. CHA, 491 F.3d 649 ( 7th Cir. 2007), 2007 U.S. App. LEXIS U.S. App. LEXIS 15158