Background

This longstanding chase chronicles efforts to stop racial discrimination by the Chicago Housing Authority (“CHA”).

On August 9, 1966, a group of African American public housing residents brought suit against the CHA in the U.S. District Court for the Northern District of Illinois. The plaintiffs, represented by the ACLU, alleged that the CHA had segregated its public housing complexes through discriminatory site selection procedures. They brought suit on behalf of all the approximately 43,000 African American Chicagoans who lived in or had applied to Chicago public housing. The plaintiffs filed the suit under 42 U.S.C. §§ 1981, 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.

Specifically, the plaintiffs alleged that CHA intentionally chose sites for family public housing and adopted tenant assignment procedures in a racially discriminatory manner, which maintained existing patterns of racial residential separation throughout Chicago. The plaintiffs claimed that this violated their right to equal protection under the Fourteenth Amendment and right against discriminatory impact protected by Title VI. Additionally, the plaintiffs alleged that the CHA violated these rights by failing to remedy the current housing segregation. The plaintiffs' requested relief included: (1) declaratory judgment that CHA had selected development sites in violation of plaintiffs' constitutional and statutory rights; (2) a permanent injunction against the racially discriminatory aspects of the public housing system; and (3) an order directing defendants to submit and carry out a plan for selection of future sites to eliminate those discriminatory practices.

In a companion case, Gautreaux v. Romney (66-1460), the plaintiffs sued the U.S. Department of Housing and Urban Development ("HUD"). In the HUD suit, the plaintiffs alleged that by approving funds for the development plans of the CHA (which violated plaintiffs' constitutional and statutory rights), HUD was liable for such violations as well. Since HUD's liability depended on plaintiffs' claims against CHA, District Court Judge Richard B. Austin stayed the HUD case until the CHA claims were addressed.

Judgment Order

On March 2, 1967, Judge Austin denied in part and granted in part the CHA's motion to dismiss. 265 F. Supp. 582. Judge Austin denied the motion to dismiss the plaintiffs' claims regarding the placement of housing development sites. However, he granted the motion to dismiss the claims that the CHA violated the plaintiffs' rights by failing to remedy the current racial segregation. After years of significant discovery efforts on both sides, both parties moved for summary judgment.

Judge Austin granted the plaintiffs' motion for summary judgment on February 20, 1969. 296 F. Supp. 907. Specifically, Judge Austin ruled that CHA's actions violated the Fourteenth Amendment and the Civil Rights Act with a policy of taking the racial character of the neighborhood into account when selecting sites for public housing development. While Judge Austin did not assert that CHA necessarily harbored a "subjectively racist attitude," he stated that CHA had intentionally maintained a system of public housing which discriminated against African Americans.

On July 1, 1969, Judge Austin entered a judgment order setting out the conditions of the injunction. 304 F. Supp. 736. This order listed procedures that the CHA was to follow when selecting sites for new development, including using census data to ensure areas did not exceed certain minority density maximums. The order also required the CHA to affirmatively desegregate current public housing and to report such efforts to the Department of Justice and the District Court, enjoined current development of housing projects in areas that had high minority density, and required that the CHA alter its development procedures so that aldermen of white neighborhoods could not prevent development in their areas.

Months later, the plaintiffs argued that CHA had failed to fulfill the court's reporting requirements to demonstrate best efforts of compliance. After a series of conferences with Judge Austin, the court entered an order on July 20, 1970 that required CHA to submit a proposal for certain HUD-approved developments with an altered timetable. The CHA appealed this order. On December 16, 1970, the Court of Appeals for the 7th Circuit (Judge F. Ryan Duffy) affirmed Judge Austin's order. 436 F.2d 306. The U.S. Supreme Court denied the CHA's appeal on April 19, 1971. 402 U.S. 922 (1971).

After the adjudication of the CHA case, Judge Austin dismissed all claims against HUD on September 1, 1970. The plaintiffs appealed, asserting that their claims against HUD were valid, given their victory against CHA. On September 10, 1971, the Court of Appeals (Judge F. Ryan Duffy) reversed Judge Austin's dismissal, ruling that HUD's approval of the discriminatory housing developments similarly violated plaintiffs' constitutional and statutory rights. 448 F.2d 731.

On September 11, 1973, Judge Austin ruled that the injunctive relief would be enforced only within the city limits. 363 F. Supp. 690. The plaintiffs appealed. On August 26, 1974, the Court of Appeals reversed, stating that the entire metropolitan area must be involved in the injunction. 503 F.2d 930 (Justice Tom C. Clark). The CHA (with HUD joining) sought review in the U.S. Supreme Court, which affirmed in an April 20, 1976 opinion by Justice Potter Stewart. 425 U.S. 284 (1976). The Court found that no rule prevented the court from ordering correction action beyond a municipal boundary when a constitutional violation had occurred. The plaintiffs and HUD immediately entered into a one-year "letter of intent," in which the parties agreed to investigate the possibilities of metropolitan-wide relief, and the parties attempted to implement the Judgment Order.

Consent Decree

On June 16, 1981, District Court Judge John P. Crowley described progress towards desegregated housing since 1966 as “negligible” and approved a new consent decree between the plaintiffs and HUD. 523 F. Supp. 665. This consent decree provided metropolitan area-wide relief by placing 7,100 individuals in assisted units in new areas (mainly in white suburbs), setting aside authority for 500 Section 8 certificates, reallocating development block grants funds, appointing an outside contractor (chosen by HUD and approved by plaintiffs), and court supervision of further development efforts. A large group of objectors appealed.

On September 30, 1982, the Court of Appeals (Judge Wilbur F. Pell, Jr.) affirmed the consent decree, stating that it was reasonable and did not violate fair housing laws.

Almost immediately, a dispute broke out about the consent decree’s scope. Property developers wanted to use Section 8 funding from HUD to finance a new construction project. But the consent decree prohibited HUD from spending Section 8 funds on developments that would (with other subsidized housing) constitute more than 15% of the total housing in a census tract; here, the new development would represent 18.25% of the relevant tract’s dwelling units. Nevertheless, Judge Marvin E. Aspen allowed the development. In an August 25, 1982 order, Judge Aspen explained that the decree “was not intended to prevent HUD from attempting to aid the development of housing in an area that might be well on its way to becoming an urban wasteland without such aid,” but rather “to prevent the dumping or clustering of assisted housing.” The district court also issued a waiver that would allow development even if the court of appeals found that the consent decree conflicted with the project. 548 F. Supp. 1284.

The Seventh Circuit affirmed in a per curiam opinion issued on April 29, 1983, in which it found that the district court’s decision to issue a waiver was not clearly erroneous. Gautreaux v. Pierce, 707 F.2d 265.

A group of intervenors then asked for a system of resident placement in that same development designed to reach a racial balance, which the district court characterized as one of racial quotas. On March 14, 1984, the district court denied the motion both on the merits and because the intervenors lacked standing. 101 F.R.D. 704. The Seventh Circuit agreed that intervention was not proper on September 7, 1984. 743 F.2d 526.

On August 15, 1990, Judge Aspen also denied intervention to two community groups that sought to prevent the construction of subsidized housing in their neighborhoods for lack of standing and failure to show that the existing plaintiffs did not represent their interests. 132 F.R.D. 193.

The court then denied the plaintiffs’ motion to stay rehabilitation of four high-rise public housing buildings so that the money could be spent on scattered developments instead. In an opinion issued on April 4, 1991, Judge Aspen explained that the plaintiffs had failed to show that rehabilitation work would prevent the scattered developments they sought to protect. 1991 WL 49568.

Shift to Rent Subsidies

By the late 1990s, subsidized housing was largely provided by Section 8 vouchers rather than new construction projects. As a result, the plaintiffs argued that the judgment order should be reformed to include Section 8 vouchers as well as new construction. The district court disagreed. Judge Aspen wrote that the judgment order was designed to remedy past discrimination in site selection for public housing, and that there was no evidence that past discrimination prevented Section 8 recipients from finding housing in majority-white neighborhoods. In addition, Judge Aspen terminated the 1981 consent decree because HUD had successfully placed 7,100 subsidized dwelling units in non-segregated areas. Finally, Judge Aspen declined the plaintiffs’ request to enforce a section of the consent decree that limited the proportion of Section 8 vouchers that could be applied in minority neighborhoods because it had been violated for years without complaint by the plaintiffs, who in any event did not want the vouchers to be cut off. 981 F. Supp. 1091 (1997). (The 1969 Judgment Order remained in place, however.)

The district also declined to consolidate a separate challenge to the Gautreaux parties’ decision to expand subsidized housing using Section 8 funds with this case. In a July 6, 2006 order, the court explained that the separate challenge was not closely related to Gautreaux because it focused on poor quality of subsidized housing and lack of resident input into development projects. Thomas v. U.S. Dep’t of Hous. & Urban Dev., 2006 WL 1886178.

Revitalization Programs

The parties’ next major dispute centered on the use of Home Ownership and Opportunity for People Everywhere (HOPE) funds. The defendants believed that they could spend HOPE construction funds only in the most depressed areas. But the plaintiffs said that would violate the Judgment Order, which limited construction of subsidized housing in minority neighborhoods without corresponding construction in white neighborhoods. On February 23, 1998, Judge Aspen agreed with the plaintiffs because HOPE allowed funds to be spent on “off-site housing” and “scattered-site development.” 4 F. Supp. 2d 757. The defendants appealed, but the Seventh Circuit determined that the decision was not a final order and thus not appealable. 178 F.3d 951 (1999).

Actual construction of subsidized housing under HOPE was limited, however. For example, local opposition to redeveloping the Cabrini-Green area triggered another lawsuit. 1999 WL 1023916. And a citizens’ group unhappy with the plans to use HOPE money to revitalize the ALBA homes unsuccessfully moved to intervene in this case. 2004 WL 1427107.

Disputes also emerged about how to allocate space in newly revitalized subsidized housing. For example, the court directed that half of the new units in the North Kenwood-Oakland neighborhood be reserved for families earning from 0 to 50% of the area median income, and the other half reserved for families earning from 50% to 80% of the area median income. That caused a problem when too few individuals in the 50% to 80% range applied. A citizens’ group asked the court to allow lower-income families to move in, worried that the developer would bypass ordinary waitlists for public housing. The parties generally resisted, due in part to promises they had made that the development would be mixed-income. The district court generally left the original plan intact, but on July 14, 2005, it did allow the developer to solicit applications from families earning from 50% to 60% of the area median income regardless of whether they were on a Chicago Housing Authority waitlist already. The citizens’ group appealed, but the Seventh Circuit dismissed the appeal for lack of standing on January 19, 2007. 475 F.3d 845.

The Cabrini-Green development continued to attract controversy. A group called the Local Advisory Council (“Council”) sued the Chicago Housing Authority to enforce this case’s consent decree. The Council objected to a provision in residents’ leases that provided for eviction upon conviction of a felony. The court agreed, finding that the leases’ language was unnecessarily broad and not justified under the Public Housing Act of 1937. Cabrini-Green Local Advisory Council v. Chi. Hous. Auth., 2007 WL 294253.

The Council also objected to a 2011 CHA plan to revitalize rowhouses in the Cabrini-Green area but maintain only about one-third as public housing. It sued to force the CHA to keep all of the development as public housing. The CHA then moved to reassign the case to Judge Aspen and relate it to Gautreaux. It also moved to dismiss the case entirely.

On October 9, 2013, Judge Aspen granted the CHA’s motion to reassign the case. Judge Aspen found that the cases were related because they both involved how the Authority should develop Cabrini-Green properties. Since the Cabrini-Green litigation was relatively new, Judge Aspen also determined that efficiency concerns weighed in favor of reassignment. However, Judge Aspen denied the motion to dismiss while allowing the Authority to re-file it later. 2013 WL 5567771.

The parties worked to settle the Cabrini-Green litigation. They eventually reached an agreement that Judge Aspen approved on September 16, 2015. The settlement provided that the CHA would redevelop a collection of about 400 vacant units as 40% public housing and at least 15% affordable housing. The CHA also agreed to consult with the Council before redeveloping another collection of about 150 public housing units. And the CHA promised to provide 1800 subsidized units in the Near North Area, targeted for completion by the end of 2022. However, the CHA was allowed to develop the remainder of the site with only one-third public housing.

Settlement Modification

With the litigation now more than fifty years old, the parties began to work on a settlement to replace the 1969 Judgment Order and eventually bring the case to a close. They submitted a proposed Settlement Agreement to the court on January 16, 2019. The parties argued that the court should modify the Judgment Order because intentional discrimination had dissipated over time and all the parties were now working to desegregate Chicago’s housing.

The Settlement Agreement:

• provided detailed development plans for specific housing complexes and initiatives to help residents escape housing segregation;
• limited the CHA’s ability to develop new non-elderly public housing in areas where it would result in racial segregation;
• provided early learning programs to CHA residents at no cost; and
• required the CHA to meet quarterly with the plaintiff's class counsel for monitoring.

On January 23, 2019, Judge Aspen approved the Settlement Agreement, which was set to remain in effect until July 31, 2024, subject to extension if the CHA failed to meet its development goals.

Attorney’s Fees

Throughout the case, the plaintiffs have obtained multiple fee awards that total approximately $9 million. Many recent awards have been uncontested. But in the early 2000s, the CHA resisted paying fee awards because “its relationship with the plaintiffs [was] one of cooperation.” The Seventh Circuit, however, found that “a judicially sanctioned consent decree is a firm basis for a fee award,” especially due to the parties’ ongoing disputes about how best to implement the Judgement Order. 491 F.3d 649 (2007).

The case is ongoing as the 2019 settlement agreement remains in force.

Available Opinions

265 F. Supp. 582 (1967)
296 F. Supp. 907 (1969)
304 F. Supp. 736 (1969)
436 F.2d 306 (1970)
448 F.2d 731 (1971)
363 F. Supp. 690 (1973)
503 F.2d 930 (1974)
523 F. Supp. 665 (1981)
548 F. Supp. 1284 (1982)
Gautreaux v. Pierce, 707 F.2d 265 (1983)
101 F.R.D. 704 (1984)
743 F.2d 526 (1984)
132 F.R.D. 193 (1990)
1991 WL 49568
981 F. Supp. 1091 (1997)
4 F. Supp. 2d 757 (1998)
178 F.3d 951 (1999)
1999 WL 1023916
2004 WL 1427107
Thomas v. U.S. Dep’t of Hous. & Urban Dev., 2006 WL 1886178
475 F.3d 845 (2007)
491 F.3d 649 (2007)
Cabrini-Green Local Advisory Council v. Chi. Hous. Auth., 2007 WL 294253
2013 WL 5567771

Dan Osher - 08/04/2013
Lisa Koo - 03/04/2019
Richa Bijlani - 11/07/2019
Timothy Leake - 02/06/2020


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