Step 4: Fix the Law!

 

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Update: This proposal is now HB 7297!

It’s the law! In 1991, the Connecticut legislature passed an important civil rights law, CGS Section 8-37cc, which required the Department of Housing and the Connecticut Housing Finance Authority to run their programs in a manner that affirmatively furthers fair housing. In other words, leverage their programs to undo our long and sad history of intentionally promoting segregation.

Wait, it’s not the law! In 2006, the Connecticut Supreme Court ruled that this provision did not include a “private right of action,” meaning that no person hurt by a failure to follow the law could make a legal claim based on it. The upshot is that this provision, which legislative history indicates was intended to be an enforceable civil right, is practically meaningless. 
 
Over the last eight years, changes at the federal level that enhanced the administrative avenues supporting affirmatively furthering rights under the federal Fair Housing Act decreased the urgency of addressing this hole in Connecticut law. However, these advances will likely be rolled back or defunded, making it critical to ensure local protections.
 
It is time to fix this.
 
There are two technical corrections necessary to reinstate and structure this right so that it is relevant to the current system of providing affordable housing in Connecticut, and any changes made in the future.
 
Component 1: Make the affirmatively furthering obligation enforceable. If there is one thing that we have learned from our nation’s civil rights history, it is that civil rights laws are meaningless without a way to enforce them. As was originally intended when the law was passed in 1991, the affirmatively furthering duty should be given the enforceability granted to other housing-related civil rights under state statutes.
 
Component 2: Restructure the Proposal to Avoid a Fiscal Note. Even though intervention is optional for the agencies, the Commission on Human Rights and Opportunities is concerned that because this proposal references CGS Sec. 46a-98a, a statute which creates an option for intervention for CHRO in addition to other remedies for the victims of housing discrimination, this proposal has been assessed with a fiscal note to support CHRO legal staff. This is the case even though during the 16 years CGS 8-37cc was presumed to have a private right of action only one case was every brought. This proposal can be structured in a manner that avoids a fiscal note by referencing in CGS 8-37cc, a new subsection (c), which makes clear that the new private right of action will trigger only the remedies available under CGS 46a-98a. 
 

 Restoring the Affirmatively Furthering State Law: Frequently Asked Questions

Q: Why would the state want to make the affirmatively furthering provision enforceable?

A: There are several reasons to pass this proposal.

 (1)   Connecticut is one of the most segregated states in the nation and this is undermining family stability and our economic productivity. 

(2)   If passed, this proposal would function to limit litigation because it would provide the state’s housing agencies with clear guidance from the legislature on how to carry out their duties.

(3)   The state has only become more segregated since 1991, meaning that without enforceability this provision is not achieving the result the legislature intended.

(4)   There is significant case law and regulatory guidance at the federal level to assist state agencies with understanding their affirmatively furthering obligations.

Q: Why was CGS Sec. 8-37cc originally passed?

 A: In 1991, in recognition of the negative impact housing segregation was having on families and our state’s economy, legislators enacted a comprehensive set of proposals designed to bring greater equity to the development of affordable housing in Connecticut. This included initiatives to ensure broader housing choices for families participating in the Rental Assistance Programs, infuse the state’s planning procedures with incentives for geographically balanced affordable housing development, and Section 8-37cc’s obligation to “affirmatively further fair housing.” Since the early 1990s, most of these provisions have been eroded, rescinded, or disregarded. If they had remained intact, it is likely that our state would be less segregated and more economically vibrant than it is today.

 Q: What does CGS Sec. 8-37cc’s affirmatively furthering fair housing requirement really mean?

 A: Connecticut, like many areas of the United States is racially segregated in large part due to government actions over decades. If all the state is required to do is maintain the status quo, this segregation will continue. If, on the other hand, the state is required to use its largess to address the negative consequences of segregation, we will begin to see a transformation. This provision, if made enforceable, would provide the state with clearer guidance on how it administers its programs. For example, it would encourage the state to bring geographical balance to the location of affordable housing and invest in under-resourced areas. 

Q: What does it mean to make this provision enforceable?

A: This proposal would make the affirmatively furthering fair housing duty enforceable by restoring a “private right of action,” as was originally intended by the legislature. As with all other civil rights laws, this means that individual citizens or organizations harmed by a failure to follow Section 8-37cc may file claims under the statute.

Q: Won’t this result in a deluge of cases brought against the state?

A: Absolutely not. If history is any guide, this will not result in considerable litigation. During the statute’s first 11 years, when it was presumed to include a private right of action, it was invoked in exactly one court case. During the period when a similar federal law was enforceable nationwide, from 1968 to 2002 - 34 years - fifteen cases were brought across the country, only two of which were in the Second Circuit. Not a single one of those cases was brought In Connecticut. However, even if litigation is pursued, this proposal includes a $50,000 cap on punitive damages and claims may only be brought against two state agencies, limiting the state’s exposure.

 

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