Federal Court Rejects Applicants' Disparate Impact Claim

Facts: Seventeen Hasidic Jews who had applied for or lived in public housing operated by the New York City Housing Authority (NYCHA) challenged NYCHA's Tenant Selection and Assignment Plan (TSAP) as discriminatory in its treatment of Hasidic applicants at three public housing developments in the Williamsburg section of Brooklyn. The applicants alleged that, because NYCHA's TSAP prevented Jewish families from obtaining apartments in Williamsburg, the policy insufficiently accommodated their religious practices and had the effect of depriving otherwise qualified observant Jews of housing opportunities, in violation of the Fair Housing Act and other laws. The TSAP limits most public housing applicants to a choice among developments based on anticipated vacancies, regardless of the applicant's desire to live in a particular neighborhood or development. The applicants contended that NYCHA's failure to provide public housing applicants with the option to designate the three Williamsburg projects resulted in a discriminatory, disparate impact on the Hasidic community.

According to the applicants, religious law requires Hasidic Jews to live within walking distance of their synagogues. It prohibits travel by car, bus, or train on Sabbaths and religious holidays. In addition, religious obligations require Hasidic Jews to live near their elderly parents. For religious reasons, Hasidic children do not attend public school and must live near the yeshivas where they are educated. While the applicants maintain that they cannot live outside of Williamsburg without substantially burdening their religious practice, NYCHA does not recognize that Hasidic families suffer undue hardship if they are forced to live outside the area.

The TSAP in question included no provision for religious accommodation. Under the TSAP, if Hasidic families who apply to NYCHA for large apartments are offered and reject two units in the same borough, NYCHA strikes them from the list of qualified applicants. According to the applicants, since 1993 no Orthodox Jewish family has received a public housing unit from NYCHA in the Williamsburg projects. NYCHA disputes this claim.

Decision: The U.S. District Court for the Southern District of New York dismissed the Fair Housing complaint against NYCHA.

Reasoning: To establish a discrimination case under a claim of disparate impact, the applicants had to show that a NYCHA's application policy predictably results in discrimination. In other words, the policy must have a discriminatory effect or differential impact on a particular group. To prevail in this case, the applicants had to show evidence that NYCHA's policy resulted in underrepresentation of Hasidim in public housing. In the court's view, the applicants did not supply such evidence.

In addition, the court hesitated to create an exception to NYCHA's admission and transfer policies based solely on religious considerations, out of concern for a possible violation of the Establishment Clause of the First Amendment, which aims to keep government neutral with respect to religion. “Were this Court to grant Plaintiffs the relief requested on the basis of the proximity of the Williamsburg developments to ‘the basic necessities of Jewish living,’ it would be exercising its authority with the sole and explicit purpose of advancing religion. This is not to say that, had Plaintiffs demonstrated that the challenged policies result in Hasidic applicants being disproportionately denied public housing, the Court would be without the power to grant relief. However, the fact of Plaintiffs' religiosity, standing alone, cannot be the basis for a greater entitlement to a public benefit.” The court held further that the Fair Housing Act requires accommodation of handicaps but not religious beliefs and practices, so the relief sought by the applicants is not available under the law.

• Ungar et al v. New York City Housing Authority, January 2009