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PROTECTING THE AMERICAN DREAM (PART III): 

ADVANCING AND IMPROVING THE FAIR HOUSING ACT ON THE 5-YEAR ANNIVERSARY OF 

HURRICANE KATRINA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

JULY 29, 2010 

Serial No. 111–145 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

JULY 29, 2010 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 4 

WITNESSES 

Mr. James Perry, Executive Director, Greater New Orleans Fair Housing 

Action Center 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

Mr. Daniel M. Rothschild, Managing Director, State and Local Policy Project, 

and Director, Gulf Coast Recovery Project, Mercatus Center, George Mason 

University 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 26 

Mr. Reilly Morse, Co-Director of Housing Policy, Mississippi Center for Justice 

Oral Testimony ..................................................................................................... 91 

Prepared Statement ............................................................................................. 93 

Ms. Stacy E. Seicshnaydre, William K. Christovich Associate Professor of 

Law, Tulane Law School, New Orleans, LA 

Oral Testimony ..................................................................................................... 105 

Prepared Statement ............................................................................................. 108 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a Representative in Congress from the State of Wisconsin, and Ranking Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 147 

Prepared Statement of the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Subcommittee on the Constitution, Civil Rights, and Civil Liberties .................... 150 

Response to Post-Hearing Questions from James Perry, Executive Director, 

Greater New Orleans Fair Housing Action Center ........................................... 152 

Response to Post-Hearing Questions from Daniel M. Rothschild, Managing 

Director, State and Local Policy Project, and Director, Gulf Coast Recovery 

Project, Mercatus Center, George Mason University ........................................ 156 

Page

IV 

Response to Post-Hearing Questions from Reilly Morse, Co-Director of Housing Policy, Mississippi Center for Justice .......................................................... 159 

Response to Post-Hearing Questions from Stacy E. Seicshnaydre, William 

K. Christovich Associate Professor of Law, Tulane Law School, New Orleans, LA .................................................................................................................. 162 

(1) 

PROTECTING THE AMERICAN DREAM (PART 

III): ADVANCING AND IMPROVING THE FAIR 

HOUSING ACT ON THE 5-YEAR ANNIVERSARY OF HURRICANE KATRINA 

THURSDAY, JULY 29, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:18 p.m., in room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Conyers, Sensenbrenner, King 

and Franks. 

Staff Present: (Majority) David Lachmann, Subcommittee Chief 

of Staff; Kanya Bennett, Counsel; and Paul Taylor, Minority Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will come to order. 

I will begin by recognizing myself for a statement. Today the 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties 

holds its third in a series of hearings examining the Fair Housing 

Act. The hearing today will examine current fair housing issues in 

the context of the aftermath of Hurricanes Katrina and Rita. 

In the 5 years since the City of New Orleans was devastated by 

Hurricane Katrina, we have watched that city try to rebuild, and 

have had the opportunity to witness the struggles of its citizens as 

they try to rebuild their lives and communities. Some of the hardships were a result of a natural disaster of historic proportions. But 

as is often the case, the devastation wrought by natural forces was 

compounded by human activity. 

One important area was housing. For the displaced, whether 

homeowners or renters, discrimination made it more difficult for 

them to return to their homes and get on with their lives. In St. 

Bernard Parish, the local government engaged in a variety of actions to prevent African Americans from taking up residence. One 

ordinance outlawed single-family home rentals to anyone other 

than blood relatives. The parish repealed the law when the Greater 

New Orleans Fair Housing Action Center brought suit. 

In September 2008, the parish tried again, this time imposing a 

building moratorium on the construction of apartments with five or 

2 

more units in response to a developer’s proposal to build new 

apartment complexes with 70 percent of the units set aside for lowincome renters. In March of last year, the United States District 

Court for the Eastern District of Louisiana found that, ‘‘the parish 

and the council’s intent in enacting and continuing the moratorium 

is and was racially discriminatory and, as such, defendants have 

violated the Fair Housing Act.’’ 

In other instances, websites with names like 

www.Katrinahousing.org allowed ads to be posted with messages 

like, ‘‘I would love to house a single mom with one child. Not racist, 

but White only,’’ or, ‘‘Not to sound like a racist, but because we 

want to make things more understandable for our younger child, 

we would like to house White children,’’ and ‘‘Prefer White Catholic 

family, children.’’ 

Had these ads appeared in the newspaper, the publisher, in addition to the advertiser would have been found to have violated the 

Fair Housing Act. Because of a provision in the Communications 

Decency Act, these Internet publishers were protected. 

Post-Katrina reconstruction efforts have also used Federal funds 

in a discriminatory manner. For example the Road Home Program, 

run by the Louisiana Recovery Authority using funds appropriated 

by Congress through the Community Development Block Grant 

Disaster Recovery Grant funds and administered by HUD, devised 

a formula for determining the amount of assistance to homeowners 

that had the effect of providing smaller grants to homeowners in 

African American neighborhoods than to homeowners in White 

neighborhoods with similar homes. The formula devised by the 

Louisiana Recovery Authority in consultation with and with the approval of HUD provided homeowners with the lesser of the prestorm value of the home or the cost of repairing a home. After controlling for conditions found in quality homes in African American 

communities were valued at much lower amounts than homes in 

White communities. The resulting disparity, especially when the 

value of the home is less than the repair costs, which do not vary 

from neighborhood to neighborhood, has had the effect of discriminating the allocation of the funds on the basis of race. 

It would be unfair to single out Louisiana and that is not the 

purpose of this hearing. Discrimination exists, and our prior hearings have documented that it is still all too common in housing 

rentals, sales and financing around the country. While the aftermath of Katrina brings many of these issues into higher relief, 

none of what happened there is by any means unique to that part 

of the country. As a result of the information we have gathered at 

these hearings, I plan to introduce legislation when Congress returns in September—this is beginning to make real that we are 

going to be out of here next week—when Congress returns in September to update the Fair Housing Act to address emerging issues 

and to ensure that the act provides the tools necessary to protect 

the right of every American to a decent place to live, free from discrimination. 

I want to note that the Fair Housing Act passed the same year 

that the distinguished Chairman of the full Committee joined the 

House of Representatives and joined the Committee. He has always 

been a vigorous champion of civil rights, and I look forward to 

3 

working with him as we continue the efforts to ensure fair housing 

rights for all. 

I yield back the balance of my time. 

I now recognize the distinguished Ranking Member of the Subcommittee. 

Mr. SENSENBRENNER. Thank you, Mr. Chairman. 

The purpose of this hearing is to explore potential gaps in the 

fair housing laws that some argue were exposed by events following the devastation caused by Hurricane Katrina in 2005. 

Whatever Congress may decide about the merits of those arguments, it should make such a decision having more complete understanding of the role dysfunctional layers of bureaucracy had on 

the availability of housing and other resources. 

Congress should also reject the use of litigation that relies on the 

Justice Department’s assertion of legal theories but go beyond 

those that are authorized by statute. 

As I have mentioned in previous hearings on similar topics, one 

such theory involves what are called disparate impact claims. The 

Obama Justice Department has made it clear that it intends to follow the Clinton administration and file more of such claims. Disparate impact lawsuits challenge practices that lead to statistically 

worse results for a particular group relative to other groups without alleging that the practice is actually discriminatory in its 

terms, design, or application. That is, disparate impact lawsuits 

claim there is discrimination when there often is no discrimination 

at all under any reasonable definition of that term. 

The abuse of the disparate impact theory in courts has real-world 

consequences. There were many pressures on mortgage lenders to 

relax the standards under which loans were extended in the 1990’s, 

but one factor was the Clinton administration Justice Department’s 

aggressive pursuit of disparate impact claims in which it sought to 

prosecute entities whose mortgage lending practices did not intentionally discriminate but only had a disparate impact on one group 

or another. 

In 1998, for example, Clinton administration Housing Secretary 

Andrew Cuomo announced the results of a Federal lawsuit settlement in which a bank was forced to extend $2 billion in loans to 

people who posed a poor credit risk. Secretary Cuomo even admitted during a press conference televised on C-SPAN that the $2.1 

billion lending amount in the mortgages will be a higher risk, and 

I am sure there will be a higher default rate on these mortgages 

than on the rest of the portfolio, unquote. 

A leading article published in the Banking Law Journal at the 

time made it clear that lenders relying on written standards and 

criteria in making decisions as to whether to grant a residential 

mortgage loan application run the risk of exposure to liability 

under the civil rights law doctrine known as disparate impact analysis. Several underwriting guidelines that are fairly common 

throughout the mortgage lending industry are at risk of disparate 

impact analysis, including creditworthiness standards. 

These lawsuits pressured lenders to bend traditional and timetested accounting rules and extend more mortgages to many who 

couldn’t afford them. These relaxed lending standards are now 

4 

widely regarded as being a prime cause of the current financial crisis. 

Even The Washington Post editorialized that the problem with 

the U.S. economy has been the government’s failure to control systemic risk that the government itself helped to create. We are not 

witnesses to a crisis of the free market but a crisis of distorted 

markets. Government helped make mortgages a purportedly sure 

thing in the first place, unquote. 

As one economist wrote recently in The Wall Street Journal in 

addressing housing policy, ‘‘political leaders must face up to the actual causes of the crisis, not fictitious causes that fit political agendas and election strategies.’’ 

In our efforts to enforce the Nation’s housing laws, I hope we 

don’t repeat past mistakes. And I look forward to all of our witnesses today and yield back the balance of my time. 

Mr. NADLER. I thank the gentleman. 

I now recognize for 5 minutes the distinguished Chairman of the 

full Committee. 

Mr. CONYERS. Thank you, Chairman Nadler. 

And thank you, too, Jim Sensenbrenner, the former Chairman of 

the Committee. We appreciate your concern about disparate impact 

lawsuits. 

But I asked our counsel if the Chairman of the Committee had 

mentioned that, and he did not mention it one time. Unfortunately, 

I wasn’t going to mention it either, until you mentioned it. 

And so I’m going to take another look at the case you make for 

not bringing them. Unfortunately, the Department of Justice is 

bringing those cases. The question I asked the other counsel here 

on the Committee was, were any of these kinds of suits brought 

during the previous Administration? And they’re researching it 

now. So I will be happy to—the answer is no, that they did not. 

So in the spirit that moved our Committee yesterday to break 

the crack cocaine disparity problem, which I congratulate you on, 

I would like to join you in working on some resolution of this problem. 

Mr. SENSENBRENNER. If the gentleman would yield? 

Mr. CONYERS. Yes, sir, I will. 

Mr. SENSENBRENNER. Well, I am certainly looking forward to 

what your proposal is, and we may have a counterproposal. 

Mr. CONYERS. Well, I don’t have any proposal. I am looking at 

it because you are complaining about it. 

Mr. SENSENBRENNER. Maybe my complaint is legitimate. 

Mr. CONYERS. So, returning, Mr. Chairman, and Committee, to 

my own statement, I regret that 5 years after Hurricane Katrina, 

we’re still considering what went wrong. And not only what went 

wrong but what continues to go wrong. 

This isn’t a historical examination. Katrina is still very visible, 

its effects. And I am looking forward to the witnesses enlightening 

us on that particular area, not just what mistakes were made, but 

what needs to be done now. 

Now we all knew that when the President told Federal Emergency Management Chief Michael Brown the classic phrase, 

‘‘Brownie, you’re doing a heck of a job,’’ it was the biggest incorrect 

assessment of one of his people in the Administration of maybe all 

5 

time. The compliment would still be premature because 5 years 

later, we can’t point to what’s going right with the government’s response to Katrina. 

So I commend the Committee for getting to the bottom or still 

exploring this. This may not be the last hearing, as a matter of 

fact, the way things are going. 

So the questions outstanding are, how did the government bungle this response to Katrina? And why does it take 5 years later 

still trying to get our acts together? There were 1,464 deaths officially reported as a result of Hurricane Katrina, 1,464; children left 

parentless, the sick without medical attention, the elderly without 

assistance, homes damaged and buildings destroyed. 

We hope that we will hear about the pain of displacement, of 

how this displacement was made worse because of clearly discriminatory behavior in violation of the Fair Housing Act, not just by 

perpetrators, citizens, but by the government itself. Post-Katrina 

year four, when FEMA ended its temporary housing assistance program, 3,450 households were still in need of long-term housing. 

Today, New Orleans is missing approximately 92,000 of its preKatrina residents. So I have asked that a study be done—a summary study was put together just today a few hours ago of how our 

former colleague, the Governor of Louisiana, Governor Jindal, has 

been handling the matter. 

And here’s the background that I would like to lay before the 

Committee and the witnesses for their examination and disposition. First was his response to President Obama’s Joint Session address to the Congress on February 24, 2009. He described being in 

the office of Sheriff Harry Lee during Katrina and hearing him 

yelling into the phone at a government bureaucrat who was refusing to let him send volunteer boats out to rescue stranded storm 

victims because they didn’t have the necessary permits. Jindal said 

he told Lee, that’s ridiculous, prompting Lee to tell the bureaucrat 

that the rescue effort would go ahead, and he or she could arrest 

both Lee and Jindal. But now a Jindal spokesman has admitted, 

in reality, Jindal was overheard talking about the episode to someone else by phone days later. Just when we were about to give him 

some credit, it turns out that it might not be deserved. I have got 

a Web site and documents for all of these examples. 

Who doesn’t know that it was the Governor of Louisiana that rejected Federal assistance for Katrina and in the same speech delivered for our conservative party, the response on February 24, 2009, 

to President Obama’s address to a Joint Session of Congress? And 

then, as his response as spokesman, he called the President’s economic stimulus plan irresponsible and argued against government 

intervention. He used Hurricane Katrina to warn against government solutions to the economic crisis. And here’s what he said: 

Today in Washington, some are promising that government will 

rescue us from the economic storms raging about us. This is Jindal. 

Those of us who lived through Hurricane Katrina, we have our 

doubts. 

I will now refer to how the Governor made clear, based on his 

rejection of Federal assistance for Katrina but the acceptance of 

Federal assistance for the British Petroleum oil spill. On April 29, 

2010, the same Governor Bobby Jindal asked Federal authorities 

6 

to grant funding for Louisiana National Guard members joining the 

multi-agency response to the offshore oil spill. Here’s what he said: 

The National Guard will provide security, medical capabilities, engineers and communication support in response to this threat. 

I only have a few more comments about the Governor of this 

State, currently the Governor. Governor Jindal vetoed a bill that 

both Houses of Louisiana’s legislature unanimously passed which 

would have created a statewide federally funded agency to address 

homelessness. Governor Jindal rejected a nearly $100 million unemployment insurance funding from the Federal Government, ruining over 25,000 unemployed residents’ lives and prevented them 

from receiving unemployment compensation insurance. 

Governor Jindal claimed that the Federal Government is ‘‘the 

problem’’ and ‘‘cannot be trusted,’’ which I think is totally unhelpful 

when the one time he’s praising the Federal Government, another 

time he’s not taking Federal funds, and another time he’s telling 

us how untrustworthy the same Federal Government that is sending him money is. 

And finally, one last point about the Governor of a State who 

knows the potential impacts of natural disasters as well as any, 

Governor Jindal mocked President Obama and his Administration 

for its funding of what he called ‘‘something called volcano monitoring,’’ which he sees as a very bad and useless activity. 

And now we come to the present Administration. Public confidence in the Obama administration’s handling of the British Petroleum oil spill gets him very poor ratings. 

The Obama administration enforced the July 1, 2009, deadline 

by which people were forced to leave FEMA temporary housing, 

even though it was clear that they could not afford to restore their 

homes or have the resources to find other housing. 

After Katrina resulted in a shortage of drywall, the Federal Consumer Product Safety Commission failed to prevent the usage in 

Louisiana of Chinese drywall that is known to cause serious health 

problems. 

The present Administration, in displacing these temporary housing residents, failed to implement the United Nations’ guiding principles on internal displacement, namely a human rights policy that 

has for several years guided our government in providing temporary and permanent homes for people in foreign countries who 

become displaced by earthquakes, typhoons and flooding and implementing, instead, a far harsher and callous policy on those in his 

own country. 

This Administration continues the previous Administration of 

breaking international law by demolishing public housing, thereby 

preventing displaced, low-income, largely minority residents from 

returning back to New Orleans. 

And under the current Administration and during a time of extremely high unemployment, people who are jobless can’t participate in the Administration’s trial loan modification program. So 

there’s a need for increased HUD accountability post-Katrina. 

Louisiana’s Road Home program is stifling African American 

New Orleans homeowners’ rebuilding efforts, as the African American Road Home participants are finding their recovery is limited 

7 

to the depressed values of their pre-storm segregated housing instead of the actual cost of repair. 

So the Chairman of the Committee has raised a number of issues 

that I join in with him in raising. 

And I would like to point out that, with his approval, we called 

the Secretary of HUD, Mr. Donovan, to suggest that he come. He 

was unable to respond. His schedule wouldn’t allow him to come. 

But he sent instead attorney Renae Campbell, who is here instead 

of the Secretary, and we appreciate her presence. She is a special 

assistant in his department, working on these kinds of matters. 

She is special assistant to the general deputy assistant secretary 

for the Office of Fair Housing and Equal Opportunity in HUD, Mr. 

Bryan Greene. She has been with HUD since 2002, and she has 

been in this position for a year and a half. I welcome her presence. 

And I thank the Chairman for his generous relinquishing of time 

for me to make this statement. 

Mr. NADLER. I thank the gentleman. 

Without objection, all Members will have 5 legislative days to 

submit opening statements for the record. 

And without objection, the Chair will be authorized to declare recesses of the hearing. 

We will now turn to our panel of witnesses. 

We have four witnesses. James Perry is the executive director of 

the Greater New Orleans Fair Housing Action Center. Mr. Perry 

also serves on The Board of Directors, National Fair Housing Alliance, the National Low-Income Housing Coalition, the Gulf Coast 

Fair Housing Center and chairs the Louisiana Housing Alliance’s 

Board of Directors. He holds a bachelors degree in political science 

from the University of New Orleans and a J.D. from Loyola University School of Law. 

Daniel Rothschild is the managing director of the Mercatus Center’s State and Local Policy Project, where he coordinates Mercatus 

research on State and local economic policy and directs the Gulf 

Coast Recovery Project, previously managing international economic development programs at the Mercatus Center. He earned 

his BA in history from Grinnell, his M.A. in modern British history 

from the University of Manchester, and his master. in public policy 

from the Gerald Ford School of Public Policy at the University of 

Michigan. 

Reilly Morse is the co-director of housing policy at the Mississippi Center for Justice Katrina Recovery Office in Biloxi. Mr. 

Morse is a former assistant municipal judge and prosecutor in the 

City of Gulfport. He is also a member of the Affordable Housing 

Committee of the Governor’s Recovery Commission and the Harrison County Recovery Committee. He is a graduate of the University of Mississippi School of Law and Millsaps College. 

Professor Stacy Seicshnaydre is the William Christovich Associate Professor of Law and director of the Civil Litigation Clinic at 

Tulane University Law School. Following law school, she clerked 

for the Honorable W. Eugene Davis of the U.S. Fifth Circuit Court 

of Appeals. In 1995, she served as the first executive director of the 

Greater New Orleans Fair Housing Action Center and became the 

organization’s general counsel in 2001. She began teaching as an 

adjunct faculty member at Tulane Law School in 1998. Ms. 

8 

Seicshnaydre earned her B.A. from the University of Notre Dame 

and a law degree magna cum laude from Tulane. 

I am pleased to welcome all of you. Your written statements in 

their entirety will be made a part of the record. I would ask you 

to try to summarize your testimony in 5 minutes. To help you stay 

within that time, there is a timing light at the table. When 1 

minute remains, the light will switch from green to yellow, and 

then red when 5 minutes are up. 

Before we begin, it’s customary for the Committee to swear in its 

witnesses. If you would please stand and raise your right hand to 

take the oath. 

[Witnesses sworn.] 

Mr. NADLER. Let the record reflect that the witnesses answered 

in the affirmative. You may be seated. 

Mr. NADLER. I will begin by recognizing for 5 minutes Mr. Perry. 

TESTIMONY OF JAMES PERRY, EXECUTIVE DIRECTOR, 

GREATER NEW ORLEANS FAIR HOUSING ACTION CENTER 

Mr. PERRY. Chairman, thank you for this opportunity. 

And thank you, Representative Conyers. 

My name is James Perry, and I serve as executive director of the 

Greater New Orleans Fair Housing Action Center. In 1 month, we 

will commemorate the fifth anniversary of Hurricane Katrina. Unfortunately, in the 5 years since Hurricane Katrina has hit, you 

will find that our recovery in New Orleans is not complete. And 

consistently, you will find that there are a few groups of people 

who have had a more difficult time in that process: People with disabilities, families with children, low-income families and people of 

color have had an extremely difficult time. Inconsistently, housing 

discrimination has been a factor, but regretfully the thing that’s 

been different since Hurricane Katrina is that in addition to individual landlords and apartment complexes engaging in discrimination, it’s been the acts of government entities and government bodies that’s made it extremely difficult for people to recover. 

One specific example is the action of the Louisiana Road Home 

program. It’s a program that was established to assist people in 

their recovery. When insurance companies didn’t pay enough 

money to folks trying to recover, the Road Home program was supposed to step in and bridge the gap. We found in examining the 

Road Home program that its formula was discriminatory. The program made payments based on the value of a person’s home. And 

so based on the historic pattern of segregation in the City of New 

Orleans, if you had two identical homes, one in a White neighborhood and one in an African American neighborhood, that sustained 

the exact same damage, the home in the White neighborhood generally got more money because it was worth more than the African 

American home. And so the result has been that consistently thousands and thousands of African American homeowners have gotten 

less money under the Louisiana Road Home program. We estimate 

that it is as many as 20,000 homeowners who have been shorted 

by the program. 

Now, of course, one of the problems is that this is a program that 

is a Louisiana State program. The State of Louisiana gets funding 

from the United States of America. In fact, it receives Community 

9 

Development Block Grant funding. Under that funding formula, it’s 

required to affirmatively further fair housing in its efforts, and it 

has failed to do that. 

In addition, the program is monitored and in some ways managed by the U.S. Department of HUD. So HUD plays a key role in 

what’s happened in that program and its failure to citizens in the 

City of New Orleans. 

In addition, many folks have read about litigation in St. Bernard 

Parish that my organization is engaged in. St. Bernard Parish 

passed an ordinance that made it almost impossible for African 

American residents to live in the parish. It passed what was called 

the blood-relative ordinance and said that in order to rent a singlefamily home in the parish, you had to be a relative by blood to the 

owner of the home. St. Bernard Parish is a parish that is a majority White; 93 percent of the homes in St. Bernard Parish are owned 

by White homeowners. The result has been that it was almost impossible for Black, Latino and Vietnamese homeowners to find 

housing in St. Bernard Parish. 

My organization filed suit against the parish and forced them to 

overturn that ordinance. But shortly afterwards, St. Bernard Parish passed an additional ordinance that continued to make it very 

difficult. So over the course of the 5 years since Hurricane Katrina, 

we’ve been in litigation with St. Bernard Parish at almost every 

single point in an effort to ensure that there were equal housing 

opportunities. Again, this is a community that receives Federal 

funding. There’s no way that this community should be allowed to 

engage in these discriminatory acts, particularly to make them part 

of the actual law. 

You will find in my written testimony a number of examples of 

circumstances where government entities, where State and local 

government entities have engaged in actual discrimination, and 

you will even find circumstances where the U.S. Department of 

HUD was involved or played some very significant role in the discriminatory activities that happened. 

As we approach the 5-year anniversary of Hurricane Katrina, 

there is one last opportunity for us to make sure that the Gulf 

Coast is rebuilt in an equitable fashion, but it requires a reconsideration of fair housing laws and a reconsideration of the government’s commitment to the City of New Orleans. 

And so I ask the Members of this Committee to reconsider the 

Federal Fair Housing Act and to reconsider regulations dealing 

with affirmatively furthering fair housing. The true teeth in the affirmatively furthering fair housing provisions and regulations 

would give a real opportunity to people attempting to recover in 

New Orleans and would also be key to lending, fair lending and 

fair housing practices across the Nation. Thank you very much. 

[The prepared statement of Mr. Perry follows:] 

10 

PREPARED STATEMENT OF JAMES PERRY


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Mr. NADLER. Thank you. 

Before we go to Mr. Rothschild, let me ask you a question at this 

point. The program you referenced a moment ago giving those— 

where you said there was discrimination based on the worth of the 

homes, were those grants or loans? 

Mr. PERRY. Those were grants. 


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Mr. NADLER. Those were grants. Now one might say, if it were 

a loan program, that prudence or standard lending practices would 

say you shouldn’t lend to more than the value of the home, because 

the home is a collateral for the mortgage. So even though the repairs cost more, that’s too bad because you are limited by the value 

of the home in order to recover the funds. But that’s for a loan. 

For a grant, that logic doesn’t apply. 

The question I have for you is, was any rationale ever offered by 

the State authority as to why they were doing this? 

Mr. PERRY. Sure. Chairman, that’s a great question. And I’d start 

by noting that you are absolutely right to note that this is very different from a loan program. In fact, it’s more similar to an insurance program. And for anyone who has insured their own home, 

you know that you have a choice to get insurance based on the 

value of your home or the cost to repair your home, should damage 

happen. 

Mr. NADLER. Obviously. But did they ever express a reason why 

they were doing this? 

Mr. PERRY. We are in litigation over this issue right now, and 

Judge Kennedy, the gentleman who is considering the case, said in 

his ruling so far that there has been offered no reason—no reasonable reason for not—for engaging in this formula that had this discriminatory impact. 

Mr. NADLER. Thank you. I’m sorry. 

Mr. Rothschild is recognized. 

TESTIMONY OF DANIEL M. ROTHSCHILD, MANAGING DIRECTOR, STATE AND LOCAL POLICY PROJECT, AND DIRECTOR, 

GULF COAST RECOVERY PROJECT, MERCATUS CENTER, 

GEORGE MASON UNIVERSITY 

Mr. ROTHSCHILD. Chairman Nadler, Ranking Member Sensenbrenner, thank you for the opportunity to discuss the important 

issue of housing in the Gulf Coast area after Hurricane Katrina 

and lessons about how we can apply this to future disaster response. I commend the Subcommittee for keeping the spotlight on 

this issue almost 5 years after the hurricane. 

Let me start off by explaining my background on the subject. I 

am not a legal scholar but rather a field researcher who has spent 

much of the past 5 years learning about the Gulf Coast’s recovery 

after Hurricane Katrina. I serve as the director of the Gulf Coast 

Recovery Project at the Mercatus Center at George Mason University, a university-based research group focused on the economics of 

public policy issues. 

I am part of a team that has conducted over 450 hours of interviews with nonprofit leaders, social and economic entrepreneurs, 

public officials, clergy, community leaders, and everyday citizens in 

Louisiana and Mississippi, who are working hard to rebuild their 

lives, businesses, schools and communities after Katrina. 

The important questions to ask are, what worked after Hurricane Katrina? What didn’t work? And what can public policy improve? 

I would like to first address what did work with regard to housing and neighborhood redevelopment after Katrina and then disVerDate Aug 31 2005 11:20 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 H:\WORK\CONST\072910\57674.000 HJUD1 PsN: DOUGA
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cuss what failed. Our research is described in much greater depth 

in the written statement I have provided to the Subcommittee. 

Virtually every success related to rebuilding housing has 

stemmed from the resilience and hard work of the communities affected by Katrina, each in a different way. To give just a few examples, the Broadmoor Improvement Association partnered with universities and businesses to bring expertise and funds to the community, leading to over two-thirds of the neighborhood’s homes 

being rebuilt or under repair 2 years after Katrina. 

In New Orleans East, the Mary Queen of a Vietnam Catholic 

Church, served as a rallying point for the Vietnamese American 

community, which rebounded quickly as a result. 

Brad Pitt’s Make It Right Foundation worked with the Lower 

Ninth Ward Neighborhood Empowerment Network Association to 

rebuild that devastated community. 

Habitat for Humanity built a small neighborhood especially for 

musicians and artists, and the list goes on. 

Community leaders, clergy, and social entrepreneurs have leveraged social capital and local knowledge to spur rebuilding, and over 

1 million Americans have volunteered their time, some for weeks 

and some for years, to gut, fix, and rebuild houses one at a time. 

In short, housing has been rebuilt from the ground up. 

Public policy, however, has in many cases done more to impede 

than to promote the restoration of the Gulf Coast housing stock 

after Katrina. To take just one example, look at Louisiana’s Road 

Home program. Though it was established and funded by the end 

of 2005, by January 2007, Road Home had written fewer than 

1,000 checks to Louisiana homeowners. Two years after Katrina 

hit, only 23 percent of those who had successfully navigated a 57- 

step application process had received settlements. Because the program endeavored to operate not just as a disaster compensation 

program but also as a community development program, homeowners whose homes were damaged could not leave the State or become renters without significant penalties to their settlements. 

Hazard mitigation grants, which provided funds to homeowners 

to elevate their homes, were abruptly stopped in March 2007, when 

FEMA informed Louisiana that the State’s implementation of the 

program failed to comply with Federal regulations. The program 

did not resume for 7 months. 

Also in March 2007, a HUD ruling made Road Home subject to 

a host of additional Federal regulations which shut down the program for a month so it could be redesigned. 

In short, Federal and State policies designed to rebuild homes 

sowed confusion and uncertainty, making it difficult for people to 

make informed choices about how, when, and where to rebuild. 

Local policy in some places aggravated this. The City of New Orleans undertook five different replanning processes, one of which 

suggested that whole neighborhoods, including Broadmoor and the 

Lower Ninth Ward, should not be allowed to rebuild. Put together, 

the confusion resulting from bureaucratic, politically-designed programs and the city planning mentality that viewed New Orleans as 

a blank slate contributed more than perhaps any other factors to 

slowing the rebuilding of homes and neighborhoods after Katrina. 

25 

Three key policy principles come out of our research and interviews. The importance of certainty by government; flexibility for 

citizens; and simplicity in execution. 

Certainty, certainty about what economists call the rules of the 

game for rebuilding is the best way to get homeowners and landlords to revamp their properties, which in turn is the best way to 

increase the quantity and reduce the cost of housing. Unclear planning policies, confusing and contradictory programs and broken 

promises only serve to slow the process. Government must provide 

citizens with, for example, accurate flood maps and information 

about public services and not change these rules of the game. 

My second point is flexibility. Flexibility means that citizens can 

adapt and make choices that work for them within a set of rules 

that do not change. Allowing people in communities to figure out 

their own solutions to both short-term and long-term housing problems will unleash creativity and create opportunity. 

Finally, simplicity, policy goals and programs should be simple. 

Policymakers should avoid creating perverse incentives, such as 

Louisiana did when the Road Home program effectively penalized 

people for having carried homeowner and flood insurance. Establish concrete and simple policy goals and execute them to the simplest means possible. 

To conclude, certainty, flexibility, and simplicity should be the 

bedrock principles of postdisaster housing policy. I thank you for 

your time and look forward to taking your questions. 

[The prepared statement of Mr. Rothschild follows:] 

26 

PREPARED STATEMENT OF DANIEL M. ROTHSCHILD


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Mr. NADLER. I thank you. And I will now recognize Mr. Morse. 

TESTIMONY OF REILLY MORSE, CO-DIRECTOR OF HOUSING 

POLICY, MISSISSIPPI CENTER FOR JUSTICE 

Mr. MORSE. Thank you, Chairman Nadler, and Members of the 

Committee for inviting Mississippi Center for Justice to testify before your Committee. 

While this Nation has made major strides toward greater residential racial integration, there remains stubborn pockets of segregation. My home community Biloxi/Gulfport, already historically 

segregated, became more racially segregated during the 1990’s. So, 

in 2005, when Hurricane Katrina devastated tens of thousands of 

homes along the coast, Mississippi faced a crossroads. Would we 

build back better than before, as the Governor put it? Or in fair 

housing terms, more integrated than before? Or would we restore 

the status quo? 

The Fair Housing Act expected HUD to use its grant-making 

power to reduce discrimination and segregation to the point where 

the supply of genuinely open housing would increase. Congress 

generously appropriated funds to Mississippi for disaster relief but 

prudently required that HUD ensure compliance with the Fair 

Housing Act, a nonwaivable requirement. HUD had the duty to ensure that the action plan submitted by Mississippi would rebuild 

communities in ways that would reduce or eliminate discrimination 

and segregation. 

Unfortunately, with the blessing of a HUD led by the previous 

Administration, Mississippi set itself upon an unjust course. 

Among other things, the State spent over $1 billion to benefit primarily wealthier insured homeowners. The State certified that this 

action met the Fair Housing Act using promises to update its 2004 

Analysis of Impediments to Fair Housing and its promise to use 

the remaining funds to increase the supply of affordable housing. 

Mississippi did not keep these promises and suffered no consequences as a result. Its analysis of impediments was not updated 

until after it diverted almost $800 million away from housing programs and into business and economic development. It never provided required race data. And the State’s record since the first and 

most generous program has been to spend less, later and more 

slowly on low-income housing. 

The second homeowner grant program, for instance, Mr. Chairman, capped the grant at $100,000, while the first one for wealthier homeowners was at $150,000. No explanation for that was ever 

given. 

Today the State is over 5,200 units short of the affordable housing unit forecasts it has set for itself. 

Also, Mississippi obtained waivers from HUD for the requirement to spend funds on lower-income residents, covering $4 billion 

out of the $5.5 billion Mississippi received. Today our organization 

estimates that well over 5,000 households still require assistance 

to repair their existing homes or secure permanent safe housing, 

and that African Americans with unrepaired damage outnumber 

Whites by two to one. 

One reason for this disparity was Mississippi’s decision not to the 

provide assistance to wind-damaged homeowners. Several conVerDate Aug 31 2005 11:20 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00095 Fmt 6633 Sfmt 6601 H:\WORK\CONST\072910\57674.000 HJUD1 PsN: DOUGA
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centrated areas of unrepaired damage lay north of the railroad 

tracks, with some homes only three blocks from the beach. The rail 

bed held back the tidal surge but not the hurricane-force winds. 

Depending on which side of the tracks you lived, Mr. Chairman, 

you could get up to $150,000 or nothing. One of our clients, Ms. 

Chamberlain, escaped the hurricane surge during the storm, 

crossed the tracks to take refuge in a Black family’s home. Ms. 

Chamberlain received a grant but not the woman whose wind-damaged roof sheltered her in the storm. 

South Mississippi’s classic southern pattern of residential segregation meant that excluding wind-damaged households disproportionately burdened African American neighborhoods. 

Meanwhile, displaced south Mississippi renters waited for 3 

years for the State to start spending on rental programs and 

watched local government block private efforts to build subsidized 

multifamily apartments in Whiter, more affluent neighborhoods. 

Others who occupied Mississippi cottages, small, sturdy, modular 

shotgun houses to replace the infamous FEMA trailers saw their 

hopes of obtaining affordable permanent housing thwarted by local 

government prohibitions, including veto power extended to anyone 

within 160 feet of the lot. 

In both cases, HUD and State officials administering Federal 

block grant dollars had but failed to use the leverage of withholding other the Federal funds to municipalities for their refusal 

to affirmatively further Fair Housing, as was ultimately done in St. 

Bernard Parish, Louisiana. 

Today, however, HUD has clearly taken more seriously its responsibilities to deeply assess the State’s use of disaster block 

grants. When Texas proposed to use Hurricane Ike funds in ways 

that would have diverted resources away from the housing needs 

of the most vulnerable storm victims, HUD stepped up. Assistant 

Secretary For Community Planning and Development, Mercedes 

Marquez, turned down Texas’s proposal, perhaps a first in HUD’s 

history, because Texas did not have a current Analysis of Impediments and because the proposal as structured would likely stray 

too far from the core emergency disaster assistance objectives set 

by Congress. 

Texas and HUD later reached an accord which, among other 

things, required an updated analysis of impediments to be prepared before, not after, funds were obligated and spending percentage targets for housing and lower-income residents. 

This laudable strengthening of commitment under the current 

HUD administrator now should be turned to the difficult inherited 

problems remaining in my home State set forth in, ‘‘How Will Mississippi Turn the Corner,’’ a report released today by my organization. Thank you very much. 

[The prepared statement of Mr. Morse follows:] 

93 

PREPARED STATEMENT OF REILLY MORSE


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Mr. NADLER. Thank you. We will now hear from Professor 

Seicshnaydre. 

TESTIMONY OF STACY E. SEICSHNAYDRE, WILLIAM K. 

CHRISTOVICH ASSOCIATE PROFESSOR OF LAW, TULANE 

LAW SCHOOL, NEW ORLEANS, LA 

Ms. SEICSHNAYDRE. Thank you, Mr. Chairman. 


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As a native New Orleanian and someone who teaches and practices Fair Housing around New Orleans, I have had an opportunity 

to study post-Katrina recovery through a fair housing lens. I have 

been working on a paper, a work in progress, that I have excerpted 

for the Committee, and I would like to spend a few moments now 

highlighting in my remarks the challenges we’ve faced in the rebuilding process and rebuilding a more inclusive New Orleans. 

New Orleans is certainly unique in its challenges, but I believe 

in studying this issue that New Orleans can illustrate the dynamic 

in which federally assisted housing programs operate everywhere 

and the way we seem destined to repeat and build on racial segregation in federally assisted housing programs in the absence of 

a more robust commitment to affirmatively furthering fair housing. 

In looking at New Orleans pre-Katrina, it was clear that we exceeded the poverty concentration averages when compared with the 

top 50 MSAs nationally. We had extremely high—— 

Mr. NADLER. You mean the Metropolitan Statistical Area? 

Ms. SEICSHNAYDRE. Yes. Yes, sir. 

So when you look at New Orleans in comparison to the larger cities in the country, our levels of poverty concentration, segregation 

were higher. And in the 1990’s, whereas other communities were 

experiencing improvements with respect to racial segregation, New 

Orleans was becoming more segregated. 

I think one of the most compelling statistics is when you compare 

low-income Whites with low-income African Americans and consider, what are the comparative housing choices between those two 

groups? What you can find when looking at pre-Katrina 2000 Census numbers is that, whereas African Americans are overwhelmingly concentrated in high-poverty neighborhoods, low-income 

Whites have access in overwhelming numbers to middle-class 

neighborhoods throughout the metropolitan area of New Orleans. 

So the question of whether Whites and African Americans had 

equal housing choice pre-Katrina is certainly answered in the negative. 

So, Katrina, of course, provided an opportunity to undo these 

patterns of racial and economic concentration and segregation in 

our housing and create a more inclusive New Orleans with a more 

regional approach to meeting the housing needs of families of all 

incomes. And the reason we had this opportunity was that our 

housing was destroyed, over 200,000 units were destroyed, and we 

had a massive infusion of Federal dollars coming into our community to help us rebuild. 

So did we embrace this opportunity to approach the rebuilding 

effort from a more regional perspective and a more conclusive perspective? Unfortunately not. And what we see is sort of some enduring fears, customs and market dynamics, as well as government 

failures that have operated to facilitate exclusion. And unless we 

understand these dynamics, we appear poised to repeat our past 

failures. 

What are these dynamics? We’ve seen a proliferation of rental 

bans, and these have been alluded to by earlier testimony. We have 

rental bans appearing throughout the metro area. We also have 

seen—and I think even more disturbingly, we’ve seen that communities that had disproportionately fewer rental units before the 

107 

storm have taken steps to eliminate rental units that pre-existed 

the storm. So rather than using Katrina as an opportunity to correct historic imbalances of rental versus homeownership units, 

we’re seeing communities take steps to exacerbate or intensify the 

imbalance. 

The other thing that we’ve seen is that communities that might 

be considered the second-rung communities on the housing ladder, 

the places where we’re seeing some level of affordability and some 

level of integration, these tend to be the first places where federally 

assisted housing is proposed. Now St. Bernard Parish is a huge exception, because that community has remained racially segregated, 

even though it might have some greater levels of affordability. But 

we’ve seen that instead of using Federal resources to make communities more open, more affordable, we’re seeing the resources sort 

of follow a path of least resistance and go to the communities that 

already have some level of affordability and already have some 

level of integration. 

So, in conclusion, I think New Orleans can help illustrate what 

the enduring forces of segregation are and how we need to better 

understand them and resist them, not only in New Orleans but nationally. And in order to do this, we need to use the affirmatively 

furthering provision of the Fair Housing Act. We need to define it. 

We need to make it enforceable by private parties. And HUD needs 

to use the affirmatively furthering provision to ensure that it is 

doing more than just providing a subsidy, that it’s actually opening 

neighborhoods not already open, making affordable what’s not already affordable, enabling housing subsidies to act as gateways to 

educational and employment opportunity, inform families historically excluded from housing markets about their choices. Any Federal housing interventions that are not so aimed will almost certainly exacerbate existing racial segregation and poverty concentration. Thank you. 

[The prepared statement of Ms. Seicshnaydre follows:] 

108 

PREPARED STATEMENT OF STACY E. SEICSHNAYDRE


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Mr. NADLER. Thank you. 

I will now recognize myself for some questions. 

First Mr. Perry. In May 2008, you testified before the Financial 

Services Subcommittee on Housing that the State of Louisiana 

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family units in a manner that was accessible for people with physical disabilities, closed quote. Is there any improvement in terms 

of fair housing for people with physical disabilities in the building 

code to date in Louisiana? 

Mr. PERRY. Unfortunately, there has not been any improvement. 

My organization did a study of new construction shortly after that 

testimony. We investigated 22 new apartment complexes and found 

that every single one, 100 percent of those complexes, failed accessibility tests under the Federal Fair Housing Act. 

Mr. NADLER. And they failed the accessibility test under the 

ADA? 

Mr. PERRY. Not under the ADA. Well, some of them may have 

had ADA failures, but we didn’t investigate for the ADA. We investigated exclusively under the Fair Housing Act. 

Mr. NADLER. Now during the same testimony—well earlier, actually 2 months earlier, you recommended the Congress require municipalities to engage in specific activities that further fair housing. 

What specific activities do you suggest that we could require municipalities to do in order to promote fair housing? 

Mr. PERRY. Well, the first is that if organizations or cities are 

going to get Federal funding, then they should have inclusionary 

zoning ordinances, ordinances that ensure that there will be some 

level of construction of affordable rental housing, and it can be 

properly integrated into communities. Second is that they should 

engage in education and outreach around Fair Housing laws. And 

so many communities don’t do anything, but they should engage—— 

Mr. NADLER. You are saying, in other words, as a condition of receipt of Federal funds, they should have to have inclusionary housing laws and do outreach? 

Mr. PERRY. Absolutely. And last but not least, they’ve failed to 

engage in enforcement, of fair housing laws, and they should engage in enforcement or fund organizations that do engage in enforcement, in their communities. 

Mr. NADLER. What would your recommendation be to make them 

do that enforcement? 

Mr. PERRY. Well, I think it’s very simple. It’s that there aren’t 

regulations for the affirmatively furthering fair housing requirements under the fair housing laws. So if we were to promulgate 

regulations, those regulations could require them to do so. 

Mr. NADLER. Thank you. 

Mr. Rothschild, you have been very critical of the Federal Government in its role in the Gulf Coast rebuilding efforts postKatrina today. You have suggested the best approach to rebuilding 

occurs by ‘‘allowing people in communities to figure out their own 

solutions to both short-term and long-term housing problems.’’ This 

approach, in your words, ‘‘unleashes their creativity and allows for 

that pre-Katrina life closure.’’ Where does the Federal Government 

fit into your bottom-up approach to recovery efforts, if anywhere? 

Mr. ROTHSCHILD. The Federal Government has an absolutely 

critical role to play in rebuilding and recovery after any kind of disaster like this, and that’s through establishing and enforcing clear 

rules of the game, through which people on the ground can make 

140 

informed intelligent decisions about how to go about rebuilding 

their communities and their homes. 

Mr. NADLER. But if we’re allowing people in communities to figure out their own solutions to both short-term and long-term housing problems, how can we do that and have the Federal Government establish those policies as you have just suggested? 

Mr. ROTHSCHILD. I think that also goes to what I was saying 

about the importance of simplicity in programmatic goals and then 

simplicity in the execution of those goals. 

Mr. NADLER. I mean, in allowing people and communities to figure out their own solutions, what do you do about protecting people 

in communities where those communities engage in discriminatory 

practices? What do you do for the people who find themselves subjected to discriminatory ordinances and policies for which the Federal Fair Housing Act should serve as a check if you do this bottom-up development? 

Mr. ROTHSCHILD. As I mentioned at the beginning of my testimony, I am not a legal scholar so that’s not an issue that I could 

directly address. 

Mr. NADLER. Well, but if you’re talking—okay, but if you’re talking about a bottom-up approach, it seems to me you have to make 

a recommendation in there either to say, we don’t care about enforcing fair housing provisions, or, despite the bottom-up approach, 

this doesn’t interfere with the enforcement of fair housing provisions if do you this and that. 

Mr. ROTHSCHILD. Again, I think the really critical thing is that 

there is certainty about the rules of the game and that the rules 

of the game are not constantly changing underneath people’s feet 

as they try to rebuild. So it’s important that the government make 

those clear, credible commitments regardless of what they are. 

Mr. NADLER. Even if they’re clear Federal commitments about 

discrimination and fair housing policy, as long as they’re there and 

people know what they are, then they can do the bottom-up? 

Mr. ROTHSCHILD. It’s dangerous any time the government—it’s 

dangerous to the recovery process if government makes a promise 

or makes a commitment and government doesn’t follow through on 

it. 

Mr. NADLER. But if it makes a rule, you may not discriminate. 

This is what discrimination is. And that’s okay? 

Mr. ROTHSCHILD. I’m sorry. Could you repeat the question? 

Mr. NADLER. If it makes a rule—because you said certainty—if 

it makes a rule, you may not discriminate in whatever you do, and 

here’s how we define discrimination, then that’s okay. 

Mr. ROTHSCHILD. It’s important to follow through on the rules 

that are created, but it’s also important that those rules be done 

in a way—are enacted in a way that people on the ground can understand and can be expected to follow. 

Mr. NADLER. Thank you. 

Mr. Morse, in a list of recommendations you’ve shared with us 

today, you include, quote, ‘‘The endorsement of the interpretation 

of section 804(b), which is the prohibition of discrimination in sale 

or rental of housing under Block v. Frischholz.’’ en banc, the Seventh Circuit found that the Fair Housing Act reaches a broader 

range of post-acquisition conduct, which in this case could include 

141 

the condominium board’s repeated removal of a family’s mezuzah 

attached to the front door frame of that family’s condo. With such 

a favorable ruling, can you discuss the need for Federal legislation 

that ensures the reach of the Fair Housing Act includes post-acquisition conduct? And are you aware of other conduct like that which 

occurred in the context of religious symbols that dwellers would be 

particularly vulnerable to without legislation? 

Mr. MORSE. Well, I would say, it’s a great ruling for the Seventh 

Circuit. 

Mr. NADLER. It’s a great what? I’m sorry. 

Mr. MORSE. I said, that’s a great ruling for the Seventh Circuit, 

and it’s a great ruling I think for the companion case, the Ninth 

Circuit. I don’t know that—the Fifth Circuit, where most of us reside and work, yet have that direct advantage of that ruling. The 

problem for us is to get consistency and uniformity across the Nation on a specific ruling of that sort. So that’s why we would encourage that legislation put that formally in place. 

Mr. NADLER. So you would encourage legislation on this? 

Mr. MORSE. I would encourage you to put everything firmly in 

place explicitly, given the sometimes hostile interpretative approach of the courts to the Fair Housing Act. 

Mr. NADLER. I will tell you that I designed such legislation after 

that mezuzah case came down from a three-panel circuit—I think 

it was the Seventh Circuit, but then they reconsidered it in Block, so we put that on the side. But you are saying that because of the 

uncertainty in circuits, we might reconsider that? 

Mr. MORSE. I would encourage you to. 

Mr. NADLER. Okay. You have discussed the NIMBY syndrome, 

Not In My Backyard. We have seen this approach taken with the 

Mississippi cottages, which were a response to the problem-riddled 

FEMA trailers that were provided to Katrina victims, which I know 

seem to be being reused now after the Gulf oil spill, which is incredible. But anyway, jurisdictions are now pursuing ordinances 

that would eliminate such housing and, again, displaced residents 

because they, quote, ‘‘don’t want it in their backyard.’’ We can create laws to combat such laws, but in the end, when nothing has 

been done to educate individuals, families and communities as to 

the importance of having fair and inclusive housing, we will not 

truly bring an end to the NIMBY syndrome. What can be done in 

terms of education to combat the NIMBY mind-set in your opinion? 

Mr. MORSE. Well, on the Gulf Coast, one of the efforts undertaken was something called Warm Welcome Gulf Coast, which humanized and personified individuals, working families, folks, which 

other residents of the Gulf Coast area could readily identify with 

and put a human face on folks who are advantaged by having more 

inclusionary zoning and more housing opportunity. Those sorts of 

things, those very public discussions are essential. There is essential leadership that needs to be expressed at the local government 

level and there has been a paucity of that. So maybe the sort of 

education efforts that Mr. Perry was referring to would also add to 

it. 

But I must tell you, it’s a chronic problem, and it sometimes 

seems to me that it needs to have some kind of intervention possibility and either through threatening other funds available to muVerDate Aug 31 2005 11:20 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6601 H:\WORK\CONST\072910\57674.000 HJUD1 PsN: DOUGA
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nicipalities or through some kind of public interest override. I have 

heard of such a thing in some cases where repeatedly multifamily 

rentals are vetoed in local government situations, and the developer in some jurisdictions can appeal to the courts to say, I have 

made every possible—I have met every possible requirement and 

this is just an instance of NIMBY. And if you meet a certain set 

of standards—I think that’s a rule that may be in place in Massachusetts—some version of that sort of override has got to be available because there are some stubbornly recalcitrant jurisdictions 

where just education—— 

Mr. NADLER. Nothing will ever work. 

Mr. MORSE. Correct. 

Mr. NADLER. Thank you. Now you have also testified before other 

Committees in Congress on the serious housing barriers to lowerincome families with limited reading, literacy or financial literacy 

abilities. Are there still requirements for housing assistance that 

make the acquisition of such assistance impossible or unnecessarily 

difficult for low-income families that are limited in reading or literacy or financial literacy skills? 

Mr. MORSE. Well, last year, for example, Mississippi received a 

series of vouchers to try to help very low-income renters who were 

being pressured to leave FEMA trailers and MEMA cottages to access affordable rental in the area. And the multistep process folks 

had to go through to achieve eligibility and actually convert that 

voucher into a location was a serious problem. And in fact, the 

State officials, folks with whom we’ve had not an especially warm 

relationship, reached out to us and asked us to help try and increase the usage of those vouchers. So the answer is, yes, there is 

that sort of need. And it needs to—— 

Mr. NADLER. There is what? 

Mr. MORSE. There is a sort of need to provide—I would call it 

just extra strong case management and extra strong explanations 

and very careful sort of guiding people through some of these processes. It’s even more true when folks are in displaced situations 

and their minds are distracted—— 

Mr. NADLER. So, in other words, you are saying that—you use 

the phrase case management to help people through the bureaucracy and the forms and so forth. 

Mr. MORSE. In certain cases, I do think that’s an important part 

of the process. And I think that there are thousands of people in 

the Gulf region who have just walked away in futility and are living with other relatives just because they can’t—— 

Mr. NADLER. So what would you think of a provision of law that 

said that X percent of any grant had to be used by local government either to do it itself or to subcontract with some private organization to provide case management services to applicants? 

Mr. MORSE. I think it’s a worthwhile approach. But I would certainly encourage Congress to consider urging municipalities to 

bring in nonprofit community organizations which, generally 

speaking, have warmer, more approachable relationships with the 

disadvantaged populations you are trying to deal with. A lot of 

times just trying to do the case management through the city people is just reproducing the same problem over and over again. 

These folks are the same folks that can’t help them in the first inVerDate Aug 31 2005 11:20 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00146 Fmt 6633 Sfmt 6601 H:\WORK\CONST\072910\57674.000 HJUD1 PsN: DOUGA
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stance get through the process, so they need someone who can 

function more as an advocate, Mr. Chairman. 

Mr. NADLER. So you would say that even if the purpose of this 

division of the city government with the function of the advocates—— 

Mr. MORSE. Well, I have yet to encounter that where I live, sir. 

I have yet to encounter that kind of city government official where 

I live. So I’m unfamiliar with that. 

Mr. NADLER. Okay. Now you have previously described FEMA’s 

failure to provide elderly and disabled displaced storm victims with 

suitable housing. You noted that the Federal Government needs to 

improve its performance with disability access in catastrophic disasters. What do you think we should do, Congress should do, to ensure that appropriate housing for elderly and disabled disaster victims is afforded properly in the future? 

Mr. MORSE. If you are talking about postdisaster, I think the 

thing that Congress needs to do is, they need to not leave unfettered discretion to Governors on what to set the priorities at. Congress needs to be more directive in how it tells States to spend 

money. In Mississippi, it was more than 3 years before our State 

started actually spending money on any rental program. What Congress could do is say, for particularly elderly disabled folks, folks 

who are especially vulnerable and do not have the ability to lift a 

hammer and pull themselves up by their bootstraps, is to say, early 

dollars that you spend need to go out to the most vulnerable populations. We figured the folks who got the money in Mississippi, by 

about a rate of 80 percent, were relatively wealthy or insured folks, 

folks who could earn their way or borrow their way or get insurance to hire somebody to take care of their needs. 

Mr. NADLER. Do you think the State government and local government doesn’t make such judgments? 

Mr. MORSE. I am just saying that historically that is not what 

we have seen in either Louisiana or Mississippi. This is not unique 

to Mississippi. The thing that I am suggesting you do is to be more 

explicit and directive and formulaic in the way that you use these 

moneys. 

Mr. NADLER. We should be more explicit and formulaic in directing money in ways that make obvious sense, that benefit the most 

vulnerable populations, in the expectation that if we don’t do that, 

the States often won’t. 

Mr. MORSE. Precisely. When you and other Members of Congress 

came to the coastal area, your sympathies were excited by elderly, 

disabled folks knee deep in mud. Well, unfortunately, since nobody 

put it into the law, they did not get the early money that you 

would have wished them to get. I am encouraging you to be more 

explicit about that next time around. 

Mr. NADLER. Thank you. 

Professor Seicshnaydre, a couple of years ago, you said that postKatrina planning has resulted in two false choices when it comes 

to affordable housing options. The options are to either, one, keep 

public housing as it was before the storm, meaning segregated, or 

two, remove blight, redevelop it, and attract market rate tenants 

to reduce the number of affordable apartments, which I assume 

would mean segregated. As this August will mark the fifth-year anVerDate Aug 31 2005 11:20 Dec 15, 2010 Jkt 000000 PO 00000 Frm 00147 Fmt 6633 Sfmt 6601 H:\WORK\CONST\072910\57674.000 HJUD1 PsN: DOUGA
144 

niversary of Katrina, are we now at a point where we have real 

choices when it comes to affordable housing options? If so, how 

have these housing options been pursued and implemented? 

Ms. SEICSHNAYDRE. Chairman, that question runs directly into 

the discussion about the NIMBYism that I think we’ve all commented on today. And that is that, unfortunately, we’ve seen a disconnect between public housing redevelopment policy and policy to 

create more regional, inclusive approaches to providing affordable 

housing. If we’re focused on tearing it down, but we’re not focused 

on creating access and inclusion in a metropolitan area, then have 

we really succeeded in deconcentrating poverty? Though justifications for the public housing redevelopment programs are to 

deconcentrate poverty. 

Mr. NADLER. Say that again. 

Ms. SEICSHNAYDRE. Many of the justifications fueling the redevelopment of public housing are based on the notion that public 

housing historically has concentrated poor people and has segregated them racially and economically. 

Mr. NADLER. And you are saying we shouldn’t do that again, obviously. 

Ms. SEICSHNAYDRE. We shouldn’t do that again. But when we go 

about fixing that, we need to have a comprehensive approach so 

that we’re not just tearing it down without making sure people 

have a place to go. And unfortunately, in New Orleans—and I don’t 

think New Orleans is so unique to other communities in this respect—unfortunately, what we’ve seen is, we tore it down, but we 

didn’t make sure that on a regional basis, we were ensuring that 

folks had a better place to go. 

Mr. NADLER. So you are saying that if you tore it down x units 

of low-income housing, you weren’t making sure that in the reconstruction you were replacing at least x units of low-income housing 

in the region? 

Ms. SEICSHNAYDRE. Certainly there was not one for one replacement and that was a matter of great concern. 

Mr. NADLER. Do you think Congress should mandate a one-forone replacement? 

Ms. SEICSHNAYDRE. I would recommend that Congress reconsider 

that and put back in a one for one replacement provision. 

Mr. NADLER. Back in, it used to be there? 

Ms. SEICSHNAYDRE. Used to be. 

Mr. NADLER. When was it there? 

Ms. SEICSHNAYDRE. I would have to—I’m not positive about that. 

Mr. NADLER. Are we talking ancient history or until 5 years ago. 

Ms. SEICSHNAYDRE. I’m thinking maybe in the 1990’s. 

Mr. NADLER. In the 1990’s, such a requirement which had been 

there was removed? 

Ms. SEICSHNAYDRE. I believe that it was eliminated, yes. 

Mr. NADLER. Whenever it was eliminated, do you know what was 

the rationale at that time? 

Ms. SEICSHNAYDRE. Probably expense. 

Mr. NADLER. Okay. Now you have argued that a just public housing policy would be resident-conscious, meaning it would be resident-driven and focused on the residents who lived in public housing before the makeover. That’s what we were just talking about 

145 

in fact. Are you aware of a city, town or other jurisdiction that has 

implemented a successful resident-conscious public housing policy? 

Ms. SEICSHNAYDRE. Well, unfortunately, the jurisdictions that 

have really managed to embark upon a resident-conscious approach 

are jurisdictions in which there has been litigation. So where housing authorities and HUD have been sued for historic segregation in 

their programs, consent decrees have emerged that have brought 

residents to the table and ensured that, over time, housing authorities and municipalities, you know, remedied historic segregation in 

a way that included residents. 

Mr. NADLER. And those policies have been implemented in various places? 

Ms. SEICSHNAYDRE. Yes. 

Mr. NADLER. And how have they worked out? 

Ms. SEICSHNAYDRE. Well I think in communities like Dallas, in 

communities where—Baltimore is still—they’re still struggling to 

implement—actually, they’re still negotiating a remedy. Chicago 

had the Gautreaux litigation that had a remedy in place for decades. Those communities are further along. I don’t think we can 

say that they’ve managed to eliminate racial segregation in their 

metropolitan areas, but they are further along than certainly we 

are in New Orleans. 

Mr. NADLER. Okay. And finally, as we discuss these fair housing 

issues in the context of Katrina—we are all aware that these issues 

of discrimination and housing sales, rentals, financing occurred 

throughout the entire country—not in the exact form necessarily. 

But overall they necessarily do. Aside from re-establishing the onefor-one replacement rule, what recommendations would you have 

for Federal legislation that could strengthen and improve the Fair 

Housing Act? 

Ms. SEICSHNAYDRE. I would strongly recommend that we look at 

the affirmatively furthering fair housing provision as kind of the 

missing link in ensuring that when we intervene in the housing 

market, when the Federal Government intervenes in the housing 

market, that it does so in a way that promotes a more regional approach, that it promotes inclusion, and that affordable housing can 

be provided in a way that gives people more housing choice and access to high-opportunity neighborhoods. There is some hope on the 

horizon. There are some programs in HUD’s 2011 budget that give 

us some hope that we can move in a positive direction. 

But I think, with respect to Congress, the affirmatively furthering provision needs to be better defined. We need a private 

right of action, and we need to make sure that HUD actually enforces it. 

Mr. NADLER. Private right of action is very important here. 

Ms. SEICSHNAYDRE. Yes. 

Mr. NADLER. Thank you. I thank the witnesses. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as they can so that their answers may be made part of the 

record. Without objection, all Members will have 5 legislative days 

to submit any additional materials for inclusion in the record. And 

146 

we’re thanking the Members and thanking the panelists and the 

witnesses. 

This hearing is adjourned. 

[Whereupon, at 3:33 p.m., the Subcommittee was adjourned.] 

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