[00:00:01] Speaker 02:
Case number 13-7159, William Boykin, homeless person living on the streets of the District of Columbia at L versus Adrian Fenty and his individual capacity at Mayor of Bowser and her official capacity.

[00:00:13] Speaker 02:
Mr. Rickman for the appellant, Ms.

[00:00:15] Speaker 01:
Anderson for the appellate.

[00:00:24] Speaker 01:
I just want to alert the court, I have problems with my voice sometimes, so it may go in and out, but I will try and speak into the microphone and hopefully this will go smooth.

[00:00:34] Speaker 05:
Mr. Ripman, I might help you.

[00:00:35] Speaker 05:
If you want, you can raise the entire podium and given that you're tall, it would put the microphone closer to your mouth without you having to stoop.

[00:00:51] Speaker 01:
I'm going to name this court, George Rickman, on behalf of plaintiff William Boykin, et al., members, homeless persons living in the District of Columbia.

[00:01:00] Speaker 01:
I want to first draw attention to the fact that it seemed the district court did not consider that in practice the district's stated policy of shifting or redesign of its homeless services system in practice did not result in any additional spaces within the homeless shelters.

[00:01:26] Speaker 01:
I think the uncontroverted evidence

[00:01:28] Speaker 01:
is that there was repeated overcrowding, ongoing overcrowding, at the remaining shelters within the District of Columbia, as attested to by the numerous declarations submitted by the plaintiffs in this case, to the point where some, if not many, were turned away from shelters that were left open on the eastern side of the city.

[00:01:53] Speaker 01:
The court stayed to spending resolution of

[00:01:57] Speaker 01:
of inclusive communities, and I don't think that inclusive communities necessarily altered the arguments for the conclusion that the actual closing of the shelter – both shelters, Franklin and La Casa shelter – taken together, firstly, were part of a policy.

[00:02:20] Speaker 01:
of the district to shift and redesign, and that policy had a disparate effect on a protected class.

[00:02:30] Speaker 01:
It seems that the district court and the District of Columbia draw a bit of confusion between the causation element.

[00:02:38] Speaker 01:
and that the causation must result in disparity.

[00:02:42] Speaker 01:
And those cases cited by Inclusive Community bear out that there's a clear case of causation here within disparity from the district's policy.

[00:02:55] Speaker 05:
What was it that the policy caused?

[00:02:58] Speaker 05:
in so far as the policy's being applied to La Casa.

[00:03:02] Speaker 05:
And maybe you have two claims, but it's a little bit hard to decipher whether your claim is that the policy caused a diminution in services of beds for the client population, or whether the policy caused a segregative effect into the location of those beds.

[00:03:22] Speaker 05:
And I take it that you're arguing both, but the presentation of the paper

[00:03:29] Speaker 05:
I'd be interested in some clarification whether those are both still live.

[00:03:34] Speaker 01:
Yes.

[00:03:35] Speaker 01:
Yes, they're still both.

[00:03:38] Speaker 01:
First of all, to cause the first theory is that the effect was to reduce the number of housing.

[00:03:47] Speaker 01:
And the district may argue that, under their theory, the permanent support of housing by

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somehow added housing, but it's a natural and probable consequence.

[00:03:59] Speaker 01:
Indeed, it's an obvious consequence that when you close a shelter, you're going to reduce the number of available shelter spaces.

[00:04:06] Speaker 05:
Unless and until the PSH comes online, and I think on net, I don't think your record disputes this.

[00:04:14] Speaker 05:
On net, there were five fewer beds after the PSH in Columbia Heights came online, is that?

[00:04:23] Speaker 05:
still a disproportionate adverse impact?

[00:04:27] Speaker 01:
Well, I think that there were more than, and it's difficult to measure that.

[00:04:32] Speaker 01:
What the evidence showed was that there were repeated incidents of overcrowding within the remaining shelters.

[00:04:39] Speaker 05:
Doesn't every homeless system in the country have overcrowding?

[00:04:42] Speaker 05:
There is a

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difficulty in housing homeless people, and especially in an economic downturn and with other services cut.

[00:04:56] Speaker 05:
So the fact and the evidence that you've put in of people who are not housed, I don't think you're claiming that that's enough.

[00:05:08] Speaker 05:
There were people unhoused before this policy was effectuated, there were people unhoused after.

[00:05:13] Speaker 05:
The number may be climbing,

[00:05:15] Speaker 05:
But if you are the district and you say, well, we're exercising some policy judgment and trying to replace these beds in trailers with better beds, with more services, you're not claiming that, if the number were the same and if the location is the same, you're not claiming that has an adverse, illegal adverse impact on your clients, are you?

[00:05:38] Speaker 01:
Well, I think the fact that the number of homelessness is certainly increasing nationwide, and especially in the District of Columbia.

[00:05:48] Speaker 01:
I think that that adds to the theory that that creates the circumstances where you would have an impact.

[00:05:55] Speaker 01:
I think that to argue that because the harm is certainly traceable.

[00:06:01] Speaker 05:
Why is that?

[00:06:01] Speaker 05:
If the homeless

[00:06:05] Speaker 05:
If the population were static or even falling throughout this period, you think you would have no case?

[00:06:12] Speaker 01:
Well, I think the case law says there are more housing opportunities.

[00:06:17] Speaker 01:
Then there's less of a claim for disparate impact.

[00:06:20] Speaker 01:
What if there are the same housing opportunities?

[00:06:24] Speaker 01:
I don't think there are the same housing opportunities.

[00:06:25] Speaker 05:
Well, what if there were?

[00:06:26] Speaker 05:
I understand that.

[00:06:28] Speaker 05:
Let's take it step by step.

[00:06:29] Speaker 05:
If there were the same housing opportunities, would the fact that the homeless population is rising

[00:06:37] Speaker 05:
be enough to support a claim of disproportionate adverse impact?

[00:06:42] Speaker 05:
If there were the same housing opportunities within the community, at large, as opposed to the... If they never closed La Casa, would you still say, whoa, yeah, everything's the same, La Casa's the same, but they haven't... Or there's a disproportionate adverse impact because the population is going up.

[00:06:58] Speaker 01:
I think the policy of closing shelters is the action that triggered the... That's the problem.

[00:07:04] Speaker 05:
Okay.

[00:07:04] Speaker 05:
Now, if they closed La Casa and opened it again in the same trailers, but one of the trailers was irreparably damaged and so they had one fewer, but they closed it for

[00:07:18] Speaker 05:
a week and then reopened it.

[00:07:20] Speaker 05:
Would you have a case?

[00:07:21] Speaker 01:
Unplausibly.

[00:07:23] Speaker 01:
Why?

[00:07:23] Speaker 01:
Because, well, I looked at Betsy versus Turtle Creek where they looked at three housing, three buildings together.

[00:07:31] Speaker 01:
They had centered on the action that was taken that would eliminate housing for protected class and just one of those buildings.

[00:07:40] Speaker 01:
I think what you're trying to argue is to say that there was not necessarily an impact.

[00:07:47] Speaker 01:
But if the broader policy were to impact the protected class, then one person bringing the lawsuit would certainly be enough to trigger that particular event, as in Griggs versus Duke Power.

[00:07:59] Speaker 05:
I wasn't trying to argue.

[00:08:01] Speaker 05:
I was really just trying to understand your position.

[00:08:05] Speaker 05:
And so your position is, even if there were

[00:08:08] Speaker 05:
a five-bed diminution, that's a disproportionate adverse impact.

[00:08:13] Speaker 01:
Well, if the broader policy impacted or would have an impact on the protected class.

[00:08:22] Speaker 01:
Right, so I'm assuming.

[00:08:28] Speaker 01:
person who could possibly give rise to a claim of disparate impact.

[00:08:34] Speaker 01:
That one person would have standing to file a lawsuit alleging disparate impact if it can be shown that the policy as a whole has an employment test.

[00:08:45] Speaker 01:
An employment test is shown where

[00:08:48] Speaker 05:
70 or 80 percent of African Americans fail, but one person breaks suit, then that one person... It's not that the stand... I mean, I don't think at this stage the standing is contested, that there was concrete harm.

[00:09:01] Speaker 05:
And there, you're right, you just need one person who suffered harm.

[00:09:04] Speaker 05:
But this test is much more demanding for showing on the merits that there's a disproportionate adverse impact.

[00:09:12] Speaker 01:
Demanding in the sense that, well, the short disproportionate aspect of impact, I think, is pretty strong on the side of the plaintiffs in this case.

[00:09:21] Speaker 01:
Where you have 87% of the homeless population being African-American, while only possessing 50% of the population in large.

[00:09:30] Speaker 01:
Therefore, the impact comes with where African-Americans are perhaps two to four times more likely to have to utilize homeless services.

[00:09:40] Speaker 01:
Therefore, when you start closing shelters and denying housing in that sense, yes, there is a disproportionate, in a fairly strong case, a disproportionate impact.

[00:09:50] Speaker 05:
You're making it hard for me to understand your argument when you say when you start closing shelters, because I don't think you contest that they close one type of shelter

[00:10:06] Speaker 05:
in favor of a different kind of shelter, and that that different kind of shelter was actually built.

[00:10:15] Speaker 05:
The permissive part of housing is a kind of homeless shelter, no?

[00:10:17] Speaker 01:
Actually, it's a part of their system redesign.

[00:10:26] Speaker 05:
Maybe that's where I'm not understanding your argument.

[00:10:32] Speaker 05:
Because you seem to, I'm actually having trouble understanding your argument.

[00:10:36] Speaker 05:
So is it that you don't think permanent supportive housing is a form of homeless shelter?

[00:10:41] Speaker 05:
It's not a form of housing for homeless.

[00:10:44] Speaker 05:
So that you're seeing this as a much bigger decline in beds because you wouldn't count any of the PSH beds.

[00:10:52] Speaker 01:
I don't see permanent supportive housing as implemented by the district as being nearly adequate to meet its systemized needs.

[00:11:00] Speaker 05:
That's a different question.

[00:11:01] Speaker 05:
I don't think they're contesting.

[00:11:03] Speaker 05:
They agree that the housing is inadequate to serve the homeless population.

[00:11:08] Speaker 05:
And I think everyone who works for the district in trying to supply adequate homeless housing would say that.

[00:11:14] Speaker 05:
It's not adequate.

[00:11:16] Speaker 05:
They would want to provide more.

[00:11:18] Speaker 05:
But that really isn't

[00:11:21] Speaker 05:
I don't think a claim on your part to say, well, it's inadequate.

[00:11:27] Speaker 01:
Well, the claim basically as a whole is that the district closed shelters, reduced the available housing, and therefore denied housing to a protected class.

[00:11:39] Speaker 01:
The district can come back and say, oh, well, we're doing a system redesign because we want to shift to a permanent supportive housing.

[00:11:47] Speaker 01:
The district's defense is that, oh, well, because we're shifting or reopening this

[00:12:04] Speaker 01:
the permanent supportive housing and removing chronically homeless, they're somehow adding spaces to the homeless system and therefore there's no claim, there's no basic standing, they have no argument to make because they're actually benefiting and that could be farther from truth.

[00:12:22] Speaker 01:
The truth of the matter is that there's, you know, while they're closing shelters, the overcrowding at the remaining shelters continues.

[00:12:38] Speaker 01:
persons from the Casa shelter were denied housing at these remaining shelters.

[00:12:44] Speaker 01:
They were turned away or left to stand in the streets and certainly not receive any permanent supportive housing.

[00:12:52] Speaker 01:
So basically in reality, no matter what their theory is, in practice, the district policy acted to deny housing.

[00:13:02] Speaker 01:
As to whether or not, you know, one of the interesting points

[00:13:05] Speaker 03:
You're pretty much out of time.

[00:13:08] Speaker 03:
Do you want to just finish this point?

[00:13:10] Speaker 01:
Well, I would say that the interesting point of inclusive communities was that it made a notation that disparate impact can also be used to uncover those claims of intentional discrimination, that being that otherwise have been viable under an intentional discrimination claim.

[00:13:34] Speaker 03:
Thank you.

[00:13:35] Speaker 03:
Thank you.

[00:13:35] Speaker 03:
We'll hear from the other side.

[00:13:39] Speaker 03:
Mr. Anderson?

[00:13:45] Speaker 04:
A little bit shorter than Mr. Rickman.

[00:13:49] Speaker 04:
Good morning, Your Honors.

[00:13:50] Speaker 04:
May it please the Court, Stacey Anderson on behalf of the District of Columbia.

[00:13:53] Speaker 04:
In addressing the disparate impact claim on disproportionate effect theory, plaintiffs at the prima facie stage needed to show that the district had adopted a policy that had the result of reducing the available housing for homeless persons.

[00:14:08] Speaker 04:
They simply failed to carry their burden in this case.

[00:14:10] Speaker 04:
But the undisputed evidence in the record shows that while the district closed the La Casa shelter, reducing the number of

[00:14:16] Speaker 04:
low barrier sheltered bed spaces by 90.

[00:14:19] Speaker 04:
During that same period of time, the district increased the permanent supportive housing units by 600.

[00:14:25] Speaker 04:
So in effect, the district increased housing availabilities for the homeless people during, homeless persons during this time.

[00:14:32] Speaker 04:
So there is no district policy the plaintiffs can point to that resulted in a loss of housing to the homeless.

[00:14:39] Speaker 04:
Ms.

[00:14:39] Speaker 05:
Anderson, when you're referring to the period of time and the diminution by 90 and the adding of 600, is that net for the whole system on both sides of that equation or is that the 90 closing La Casa and 600 throughout the whole system?

[00:14:53] Speaker 04:
Well, your honor, in addition to closing the class, we also closed the Franklin School shelter, which had 300 low barrier shelter beds, and I've discussed that in my brief as well.

[00:15:01] Speaker 04:
So if you factor that in, and that was during that same period of time, the 2008 to 2010 period, so there was a loss of 390 low barrier shelter beds during that period.

[00:15:10] Speaker 04:
And then in contrast to that, there was 600 units of permanent supportive housing added during that same period.

[00:15:17] Speaker 04:
So that, we were just looking at that small time frame.

[00:15:21] Speaker 04:
And that system-wide?

[00:15:22] Speaker 04:
That system-wide, yes, Your Honor.

[00:15:23] Speaker 05:
There's been no... No other shelters closed.

[00:15:26] Speaker 04:
Not during that period.

[00:15:26] Speaker 04:
No other permanent supportive housing added.

[00:15:27] Speaker 04:
That's correct, Your Honor.

[00:15:28] Speaker 04:
For that, I'm speaking specifically to single men.

[00:15:32] Speaker 04:
I'm not speaking to family shelters, or that's kind of a different group.

[00:15:36] Speaker 04:
What we look at is the group to which the policy was applied.

[00:15:39] Speaker 04:
And here, all the plaintiffs are single, homeless men.

[00:15:42] Speaker 04:
So we focused on that group of persons.

[00:15:46] Speaker 04:
So those.

[00:15:47] Speaker 05:
And what's the, I mean, I have read the whole record.

[00:15:51] Speaker 05:
I'm familiar with the record.

[00:15:52] Speaker 05:
But what would you point to as the best site for the 390 to 600?

[00:15:56] Speaker 04:
Your honor, I would say the mayor's report, and I'm sorry, I don't have a page number for that.

[00:16:01] Speaker 04:
The mayor's report discusses that.

[00:16:05] Speaker 04:
So yeah, the mayor's report to the council.

[00:16:10] Speaker 04:
So I think at the prime official stage, plaintiff's case fails for the simple fact that housing was not reduced or housing availability was not reduced.

[00:16:17] Speaker 04:
for the population at issue.

[00:16:20] Speaker 04:
But even if we get past the prima facie stage, the district came forward with a legitimate non-discriminatory explanation for its policy choices in this case.

[00:16:29] Speaker 04:
That being the need to reduce chronic homelessness in the district through a program that is designed to take the

[00:16:36] Speaker 04:
the homeless persons who are most at risk and place them into permanent supportive housing where they have access to greater services to hopefully end that problem.

[00:16:47] Speaker 04:
In response to that objective, a plaintiff simply failed to come forward at the third stage of the analysis with showing that there was an alternative to the district's policy that could have been achieved with a less allegedly discriminatory effect.

[00:17:04] Speaker 03:
for their intentional racial discrimination claim, they say, their allegation is that DC closed shelters in predominantly white areas, and that all the shelters in the city suffered from serious deficiencies.

[00:17:27] Speaker 03:
So why is that enough to at least make out a prima facie case?

[00:17:32] Speaker 04:
a couple things on that, your honor.

[00:17:33] Speaker 04:
First of all, in addition to making that allegation, the claim complaint plaintiffs also recognized that the district intended to replace the low barrier shelter at the La Casa site with permanent supportive housing on that site.

[00:17:48] Speaker 04:
So they acknowledge that, in fact, um,

[00:17:51] Speaker 04:
We intended to place the same population back in the same area as they were before.

[00:17:57] Speaker 04:
So that's one factor, I think, that undermines the plausibility of their complaint, their allegation.

[00:18:04] Speaker 03:
So your answer is that, in fact, the district didn't close.

[00:18:10] Speaker 03:
It closed a low barrier shelter, but replaced it with a permanent supportive housing.

[00:18:17] Speaker 04:
Correct, Your Honor.

[00:18:18] Speaker 04:
In fact, that did occur.

[00:18:20] Speaker 04:
There's now a 45-year-old.

[00:18:21] Speaker 03:
So your point is, is it

[00:18:25] Speaker 03:
is not supported by the evidence when you look at both.

[00:18:28] Speaker 04:
No, no.

[00:18:29] Speaker 04:
Again, I'm going, this was dismissed on the complaint.

[00:18:31] Speaker 04:
I'm looking at the allegations in the complaint and focusing on the plausibility of their allegation that race was the reason why the district took the actions.

[00:18:37] Speaker 03:
No, no, no.

[00:18:38] Speaker 03:
I was only asking you about whether there was a prima facie case here.

[00:18:41] Speaker 03:
And your answer was, right, that they replaced the shelter

[00:18:47] Speaker 03:
in Northwest Washington with a different kind of shelter in Northwest Washington, right?

[00:18:52] Speaker 04:
Correct, John.

[00:18:53] Speaker 04:
I'm sorry.

[00:18:54] Speaker 04:
I'm sorry.

[00:18:54] Speaker 04:
I misunderstood your question.

[00:18:55] Speaker 04:
I thought you were focusing on the disparate treatment.

[00:18:57] Speaker 03:
No, no, no.

[00:18:57] Speaker 03:
I was only talking about the intentional one.

[00:18:59] Speaker 03:
But when I asked you your question, you said there were several reasons.

[00:19:02] Speaker 03:
What's the second reason?

[00:19:03] Speaker 04:
Yeah, the second reason, again, going to the allegation and the complaint.

[00:19:06] Speaker 04:
I would analogize the allegation here that the district closed the shelter in the predominantly Caucasian part of the district.

[00:19:18] Speaker 04:
The persons using the shelter were minorities to an allegation in a Title VII case where an employee says, I'm a minority.

[00:19:24] Speaker 04:
I was terminated from my job.

[00:19:26] Speaker 04:
Therefore, from that.

[00:19:28] Speaker 04:
or asking the court to refer that race or minority status was the basis of that.

[00:19:33] Speaker 00:
And clearly- So if the complaint had alleged, so we're only talking about the complaint because this intentional discrimination claim was dismissed at the complaint stage, if the complaint had alleged not only that the policy was used and quoting it as an excuse for closing the shelters in the predominantly white parts of the city, close quote, and that shelters in other parts of the city that were not predominantly white were kept open,

[00:19:58] Speaker 00:
if the complaint had said that too, then would you think that the complaint would have been probably dismissed?

[00:20:03] Speaker 00:
No, I would not.

[00:20:04] Speaker 04:
I would not.

[00:20:05] Speaker 04:
Because again, I think there has to be some facts alleged from which you can draw the inference that race was a motivating factor here.

[00:20:13] Speaker 04:
Not simply the fact that an action was taken.

[00:20:16] Speaker 04:
Again, I go back to my Title VII example.

[00:20:18] Speaker 04:
But that would be two actions.

[00:20:19] Speaker 04:
Yeah, that would be two actions.

[00:20:20] Speaker 05:
And under a kind of McDonnell Douglas analog, if you say,

[00:20:24] Speaker 05:
you know, the unit where all the women worked was the one that was closed down, and the ones where all the men were kept on, or the unit where the minorities were.

[00:20:34] Speaker 05:
Isn't that under McDonald Douglas enough to make out a prime official case?

[00:20:37] Speaker 05:
And so the question is, how do we apply that kind of inference, which is a very low pleading barrier threshold, how do we apply that to the facts here?

[00:20:49] Speaker 05:
Again, Your Honor, I think

[00:20:51] Speaker 04:
I'm not sure that I would agree that those allegations alone would be sufficient, even in a title set.

[00:20:56] Speaker 04:
There's got to be some fact that would, you know.

[00:20:59] Speaker 04:
I mean, this is always difficult for me, too, to come up with.

[00:21:02] Speaker 04:
You know, I could come up with a million hypotheticals, but I think we go back to this simple, it-ball-twombly formulation.

[00:21:09] Speaker 05:
I'm unclear whether, I mean, I haven't found any Title VII cases in this jurisdiction or any Fair Housing cases in this jurisdiction that apply it ball-twombly over and against a McDonnell-Douglas type of inference and say it's no longer enough.

[00:21:24] Speaker 05:
that McDonnell Douglas seems alive and well after Tom Blanick fall, and I'm just looking for some help on- Right, I'm not suggesting- If it's enough in an employment case to say, I was treated unfavorably, people of the majority group were not, and, you know, either the job was left open or it was filled by someone of the majority group,

[00:21:47] Speaker 05:
That's enough to raise an inference.

[00:21:49] Speaker 05:
Why not these allegations?

[00:21:50] Speaker 04:
I'm not sure I agree with that, Your Honor, that in a Title VII context, that alone, that simply I was a minority.

[00:21:55] Speaker 04:
Okay, what more?

[00:21:57] Speaker 04:
I think it's something to suggest there was something similarly situated, for example.

[00:22:03] Speaker 05:
Other shelters, they say other shelters, low barrier shelters, left over.

[00:22:06] Speaker 04:
There's a million reasons why we could have closed those other shelters, a million reasons.

[00:22:10] Speaker 05:
But that gets to the burden shift to you.

[00:22:12] Speaker 05:
You can come up with good reasons.

[00:22:14] Speaker 05:
But they're saying on pleading.

[00:22:16] Speaker 04:
I think at the pleading stage, there's got to be something that plausibly suggests that race, of all the millions of reasons why we could have done it, that plausibly suggests that race was the reason.

[00:22:26] Speaker 04:
And I think you've got to plead more than simply.

[00:22:28] Speaker 00:
I read your brief a little different, because I thought in your brief you said, and that's at footnote 14 of page 46, for instance, the plaintiffs assert that the complaint alleged that the district offered no explanation or rationale for why the shelters in the predominantly white areas were closed, while those in the black areas were left open, and that all were of equal size and served an equal number of persons.

[00:22:47] Speaker 00:
And then that's quoting the brief.

[00:22:49] Speaker 00:
And then you say, this allegation does not appear in the complaint.

[00:22:52] Speaker 00:
So it sounds like what you were saying in your brief was,

[00:22:55] Speaker 00:
Actually, if that kind of allegation had been made in the complaint, that would be one thing.

[00:22:59] Speaker 00:
But that kind of allegation hasn't been made in the complaint.

[00:23:01] Speaker 00:
That's different than what you're saying now.

[00:23:02] Speaker 00:
Even if that allegation had been made, it wouldn't be enough.

[00:23:04] Speaker 04:
Right.

[00:23:04] Speaker 04:
No, I think, Your Honor, I think my point there was just simply to point out that they misrepresent the content of their complaint.

[00:23:10] Speaker 04:
I was not intending to suggest that had they actually pled that, that that would have been sufficient.

[00:23:15] Speaker 04:
I certainly, that was not my thought process.

[00:23:17] Speaker 04:
And I was just simply saying, look, those aren't even in the complaint.

[00:23:19] Speaker 00:
Well, that's my question.

[00:23:21] Speaker 00:
That seems to me that's your first response in the brief.

[00:23:24] Speaker 00:
And I didn't hear that response today.

[00:23:25] Speaker 00:
Okay, but are you do you think I'm sorry again?

[00:23:29] Speaker 04:
I took your questions.

[00:23:30] Speaker 04:
I have that opening on right you know those allegations are not in the complaint I absolutely agree that those allegations are the allegations and but the other part is not right exactly again.

[00:23:38] Speaker 04:
They just make the bare bones Allegation so um so I go back to your question judge Pilar again.

[00:23:45] Speaker 04:
I think That you've got to you know give

[00:23:49] Speaker 04:
some suggestions.

[00:23:50] Speaker 03:
Excuse me, I thought you're answering that with Judge Bellard is those allegations aren't in the complaint.

[00:23:56] Speaker 04:
They aren't.

[00:23:56] Speaker 04:
I'm going to go back to your question of what needs to be there.

[00:23:58] Speaker 03:
But didn't you just say to Judge Srinivasan that if they had been, they would have been adequate?

[00:24:01] Speaker 04:
No, I did not say they would have been adequate.

[00:24:03] Speaker 04:
No, I would not have been adequate.

[00:24:04] Speaker 04:
And I apologize if I misspoke.

[00:24:06] Speaker 03:
No, I get it.

[00:24:07] Speaker 03:
All right.

[00:24:08] Speaker 04:
So.

[00:24:09] Speaker 04:
OK.

[00:24:09] Speaker 04:
Thank you.

[00:24:09] Speaker 04:
Thank you, Your Honor.

[00:24:11] Speaker 03:
I see your firm.

[00:24:13] Speaker 03:
Did you have any other questions?

[00:24:15] Speaker 03:
OK.

[00:24:17] Speaker 03:
Mr. Rickman, you're out of time, but you can have one minute.

[00:24:20] Speaker 01:
Thank you, Your Honor.

[00:24:24] Speaker 01:
To address the disparate treatment claim, I think that the fact that the homeless population is 87% African-American certainly spells out that race was a motivating factor.

[00:24:38] Speaker 01:
And the fact that they chose to put the permanent support of housing in predominantly white areas as opposed to predominantly African-American areas

[00:24:47] Speaker 01:
doesn't assist their case in defeating the clear interference under McDonnell Douglas.

[00:24:56] Speaker 01:
The allegation was raised that the shelters were similarly situated as far as condition

[00:25:02] Speaker 01:
and other factors as to create the inference on McDonald Douglas.

[00:25:08] Speaker 01:
Also the district pointed to the mayor's report on permanent supportive housing and I think that the brief spells out as well as if you look at the report where most of the placements, over 90 of the placements in permanent supportive housing were made in

[00:25:27] Speaker 01:
predominantly African-American wards.

[00:25:30] Speaker 01:
None of the placements were made, were very few.

[00:25:34] Speaker 01:
Ten percent or less were made in transitioning white wards.

[00:25:38] Speaker 03:
But isn't it true that the Amalekasa site created more beds than they closed?

[00:25:44] Speaker 03:
No.

[00:25:44] Speaker 03:
No?

[00:25:45] Speaker 01:
They're less.

[00:25:46] Speaker 05:
Almost as many.

[00:25:47] Speaker 01:
No.

[00:25:47] Speaker 01:
Almost as many?

[00:25:48] Speaker 01:
Not even close.

[00:25:49] Speaker 05:
I thought it was within... I have.

[00:25:52] Speaker 05:
within a handful.

[00:25:53] Speaker 05:
No, units have beds.

[00:25:56] Speaker 05:
The units are bigger.

[00:25:57] Speaker 01:
Forty-five units.

[00:25:59] Speaker 05:
And in fact, the cost is... I think they say 85 beds, if I'm not mistaken.

[00:26:03] Speaker 01:
No, it's 45 beds.

[00:26:05] Speaker 01:
And in fact, the cost is limited to veterans and not the broader homeless population.

[00:26:12] Speaker 01:
So that needs to be clarified as well.

[00:26:14] Speaker 01:
All right.

[00:26:16] Speaker 03:
Thank you.

[00:26:17] Speaker 03:
Cases submitted.