Disaster Mitigation civil rights violations
By John Henneberger
May 19, 2022
0:00 / 35:32
John Henneberger00:00

This is A Little Louder, a podcast for wonks housers, and rabble-rousers where we talk about fair housing, community development and how we can use these issues to build people power and work toward equity and justice. I'm John Henneberger and I'm today joined by Texas Housers advocacy director, David Wheaton.

We're going to talk about a HUD ruling, which has just been issued this week. It was issued on May the 16th about the General Land Office of Texas, discriminatory practices towards African-American and Hispanic residents in Texas in the way that they awarded funds in the Hurricane Harvey CDBG mitigation project.

Welcome David.

David Wheaton00:53

Thank you so much for having me.

John Henneberger00:58

Texas housers has been involved in disaster recovery monitoring for quite some time. We first got involved in the wake of Hurricane Katrina as thousands of evacuees from Louisiana came to Texas looking for temporary shelter. At the time, the problems we were seeing were that people were put sort of Willy nilly into rental housing, which was not the greatest housing in the world to say the least it had a lot of problems and people were segregated in one part of Houston and that did not produce good results for the families that were resettled.

Following Hurricane Katrina, Hurricane Rita hit and it devastated the Gulf coast of Texas, particularly Beaumont and Port Arthur, Texas Housers again became active in looking at the experiences of low income people within Port Arthur and Beaumont in order to figure out whether the programs that were being administered then by the State of Texas using federal disaster recovery funds were actually getting to the people who need them. And what we found is that there were a whole lot of problems with the state's administration of the disaster recovery program. It seemed as if there were problems with making sure that there was equity in the degree to which people of color and particularly African-American Texans were assisted by the state's home repair programs.

And there were also really horrific delays in the availability of funds and home repair resources that resulted in people waiting five, six years in order to get their homes repaired. And then a few years later came hurricanes Ike and Dolly. Hurricane Dolly hit the Rio Grande Valley near the border with Mexico and really devastated low-income Hispanic people's homes in the colonias of south Texas. There the problem was that the Federal Emergency Management Agency ended up disqualifying a very high percentage of extremely poor Hispanic residents who lived in the colonias because of various red tape and regulations. The worst of which was that they were denied people assistance because they said that their homes were in bad condition before the disaster happened. And even though the homes were now completely uninhabitable and devastated, FEMA was not providing any assistance to households in that region. The State of Texas undertook a multi-billion dollar program to assist people with Hurricane Ike, which primarily impacted Galveston and Houston areas.

And that program had similar problems to the Hurricane Rita disaster recovery program in that there were issues about the fairness in which the State was doing intake and providing assistance in terms of serving equally and fairly people of color. And again, once again, particularly African-American and Hispanic folks.

So Texas Housers has a long history of disaster recovery. And the most recent example of that was Hurricane Harvey, which of course he had about five years ago and really hit Houston, very hard with huge amount of flooding. And we pressed the State of Texas to learn the lessons from those previous disasters and design these programs so that they would not be discriminatory and so that everyone would have a fair chance to be able to get federal disaster assistance, to rebuild their homes. But unfortunately delays occurred in the program. There were problems with administration. There was a lot of political wrangling between the State of Texas and the City of Houston over who would administer the money and the like, so that program has been long drawn out. And has not gotten assistance to significant section of low-income people, once again, particularly primarily African-Americans. So we've been monitoring these disasters, as I say, at Texas Housers for some time. And when a new round of funding became available a year or so ago, designed to not repair homes per se, but to provide public infrastructure and protection to residents, to prevent future disasters from happening, we were especially concerned at Texas Housers that we learn these lessons about equity and justice in the allocation of the funds and that the State do a better job of not discriminating against families of color and providing that type of access.

So, David, would you like to take a couple of minutes and help us understand what CDBG mitigation funds are?

David Wheaton06:34

So CDBG MIT funds were appropriated by Congress. shortly after Hurricane Harvey, and this was actually a new form of, of money, that Congress has never done before. And that was to give mitigation grants, to a state to kind of mitigate future disaster recovery. So this was going to go for grants for cities and municipalities who wanted to pay for a storm water infrastructure, storm water drainage, flood infrastructure, flood damage.

So that if there was another Hurricane Harvey that would happen to the Gulf coast region of Texas, that it would be mitigated by these improvements, in the infrastructure. And so that's what CDBG MIT funds were. And Congress appropriated $4.3 billion to the State of Texas to help with that infrastructure need.

So the funds again were intended also to go to those who needed the funds the most. And so these were communities that had been historically displaced before. Like you talked about, John has been multiple hurricanes that have hit the Gulf coast region before, and there've been multiple people and families have been displaced.

So the, the, the, the root of what Congress wanted out of the CDBG funding going to the Gulf course region in Texas was that for the funds to go to the families that needed it the most, and the communities that needed the most that had been continuously hardly hit, uh, by natural disasters in the past and to mitigate when it happens in the future.

And so, these, of course those communities happen to be a lot of low-income communities. Low-income communities of color in the Houston area, in the Rio Grande Valley area, in Port Arthur and Beaumont. And so that's where the funds were supposed to be going when Congress appropriated these funds to the Gulf coast region.

but unfortunately, we'll talk about that later, that unfortunately those funds, because of what the GLO did, it actually didn't end up going, to the residents and the communities that needed it the most,

John Henneberger08:35

GLO is the Texas General Land Office. And the way that these funds are made available by HUD is that HUD notifies, the governor that these funds are available and the governor gets to decide what state agency administers the funds. And he selected, starting with Hurricane Ike and Dolly back, a number of years ago, the Texas General Land Office to administer these funds. The General Land Office is also administering these mitigation funds as well as having previously administered the disaster recovery funds.

what's the process by which the General Land Office goes about deciding who gets the money.

David Wheaton09:27

So, what they have to do is, like you you're right. so when Congress appropriated that $4.3 billion, they appropriated it to HUD and it heard appropriated to the State of Texas.

The state of Texas, through the General Land Office had to submit different amendments to HUD and HUD had to approve the plan of which, how GLO was going to allocate these funds and the way the GLO said that they were going to allocate some of these funds where they want to go to, they were going to create a competition between multiple jurisdictions within the Gulf coast region, in Texas.

Um, and so they were going to do multiple rounds of what they call competition. That is how the State of Texas toad, uh, the, or the General Land Office told HUD how they were going to allocate these $4.3 billion of funds is through these, these types of, competition rounds, that were different municipalities were going to have to compete for.

John Henneberger10:27

Yeah, this whole process is really complicated and we don't have time in the course of this podcast to get into anything but a very high level of details about what's going on, but the, the General Land Office made a decision to expand the number of counties in the state that could qualify to apply to the General Land Office to get these funds to do flood control and provide other disaster mitigation, public works type of projects.

can you explain a little bit about what happened when the GLO expanded the eligible counties?

David Wheaton11:14

Yeah, definitely. So again, HUD, kind of told the State of Texas and the GLO that you have to send the money, or at least some of these funds to certain places and they would call them HUD MID counties.

then the State of Texas, like you said, expanded that list and expanded the counties and the regions that were going to be eligible for this funding. Unfortunately, those counties are more rural, more affluent, more white, and did not see the amount of damage, from past hurricanes, like Hurricane Ike and Dolly and, Hurricane Harvey, as some of the other regions, and some of the other counties that HUD said had to be given, some of these funds.

And so what the State did is they kind of, put that $4.3 billion that CDBG funds and they kind of expanded the access so that more affluent, more white and more rural counties had access to those funds, even though, they're not the communities that have been hard hit and been damaged by multiple, multiple natural disasters.

John Henneberger12:20

Yeah, I think that's the important thing here. That what HUD did was HUD looked at the damages that the Federal Emergency Management Agency documented happened. Where did it flood? Where did they have winds that destroyed homes? Where was there real damage on the ground? And HUD came up with a group of counties that were right for the most part, right near the Gulf coast of Texas, right near the area that really got socked by hurricanes, Rita, Ike, Dolly, and Harvey.

But HUD granted the State discretion to add some more counties that the State might have felt were overlooked by HUD, when they came up with the areas that were required to be targeted. So the State could add additional counties and make them eligible to receive funds.

And in the end, what happened in terms of the ratios between those counties, that HUD and FEMA said really had impact from hurricanes and these counties that the state added, which were in many cases, 200 miles or more away from the Gulf coast and had not encountered a lot of disaster.

David Wheaton13:41

HUD said you had to give at least 50% of these funds to the HUD counties. But it was also with HUD saying, we know that these are the counties that have been most affected by, hurricanes and, and past natural disasters. What the state and what the GLO did is instead of giving more money to those more impacted counties, they actually stopped at 50% and they gave all of the rest of that 50% to the other State MID counters, which again, by our analysis are more white, more rural, more affluent. And again, that did not have the history of having very severe damage during natural disasters, including hurricanes. And so we saw a 50% of the funds going to places that really needed it.

And then you saw 50% of funds going to places that really didn't need it and were more affluent and more white

John Henneberger14:38

In the course of designing this program, the General Land Office took public input, took information from the public about the needs and about the way that they propose to allocate the money. And they provided very short periods of time. I think it was like 14 days in most cases to allow people to look at a many hundreds page document outlining the formulas and the way the GLO was distributing this money and all of these additional non Gulf coast counties that the General Land Office was adding and to offer the GLO] some comments on those. And the GLO said that they would consider. We submitted voluminous comments in detailed comments, including lots of statistical data, which documented that the need was in those HUD counties on the Gulf coast, that it actually suffered the damages.

And we also documented the racially discriminatory effect that would be produced if GLO proceeded with its plan. But GLO chose to not act on a single one of our many recommendations and our many observations about asking them to reallocate the money on a more fair and rational basis, and indeed did not respond substantively to any of the many dozens of pages of comments that we offered.

So we warned them. We tried, we said, you are going to violate the law. If you do this. And what's more important is you're going to hurt people because this mitigation money is really the only thing that's really going to keep people alive in some cases. You know, otherwise people are going to be swept away by the floods.

Their homes are at least going to be swept away by the floods. Their businesses are going to be disrupted and the like. So this is not just, some little benefit that it'd be nice to have or something like that. We're talking life and. Mitigation prevention of major damage into a region, which has suffered hurricane after hurricane, after hurricane.

David Wheaton17:01

And like I said, we did warn them, but also, you know, these are once in a generation funds for communities that won't see this type of investment in their communities for a very, very long time, or it could have been, this could have been a really historic investment in, low-income communities to get them up to par with other communities when you talk about the infrastructure with dealing with natural disasters and storm water drainage and things like that. So, the State of Texas really missed out, on a historic opportunity to provide historic investment for a lot of low-income communities in black and brown communities in the state.

Activists and politicians just normal people. Business owners become irate because we saw that in, the initial announcement of round one that, Houston, who was completely, completely, hardly hit by Hurricane Harvey didn't I get one dime of funding from CDBG MIP funds, Harris county, one of the biggest counties in the state, the biggest county in that Gulf coast region as far as population, got $0. Got, got no money, places like Port Arthur and sumont as you said, had, been riddled with hurricane after hurricane, after hurricane got $0, at places like a Corpus Christi down in Nueces county got zero dollars. And so, you know, we saw uproar from politicians, from business owners and from community leaders saying, why did this happen? How did this happen? How did the place that, you know, most hardly hit by hurricane Harvey and other hurricanes in the past, not get zero funding when it comes to mitigation to.mitigate future, hurricane damage. Um, and so people were puzzled. We were puzzled, state leaders were puzzled. It got a lot of attention. Uh, and then, you know, us at Texas housers, we decided we had to do something along with our co complaints at NAC.

John Henneberger19:03

So these funds were allocated by the General Land Office by a formula that was basically stacked in order to direct the money, not to the regions that were impacted by the hurricanes, but to regions further away, that were, that had suffered few, consequences from hurricanes and the, like, we saw examples of things like, a county 200 miles or more away from the Gulf coast actually built a multi-million dollar roadway between a Walmart and a Home Depot.

We saw a county again, 200 or so miles away building a community center. A lot of, a lot of these county projects that we saw were, drinking water systems that were in, especially in small cities where they would provide a new system for drinking water or a new sewage treatment plant.

And all of those things are good things, and nobody really doesn't want to see those things happen. But the real question is, is that the priority when you've got a one time, and this is not a regular grant, this is a one-time only grant of money. As you said, completely unprecedented, do we want to basically give governments that have not been impacted by disasters, these kind of general revenue sharing monies to do general government projects or is this really about making sure that we protect the lives of people on the Gulf coast who've been hit repeatedly by disasters and unfortunately the whole criteria in the awards process that GLO set up basically was designed clearly with the intent and it had the effect of moving half of the.

Yeah, away from you're totally correct.

David Wheaton21:02

Congress intended not for this to go to roadways between a Walmart and a Home Depot, but Congress intended these funds to go to places in the communities to build up their infrastructure.

So that as many people don't die. As many people don't have their lives completely turned upside down when there is going to be another natural disaster, that, that was really, really disappointing. And seeing some of those projects that were awarded during round one, um, that definitely you see all of that, those funds could have gone to communities that desperately needed it.

John Henneberger21:38

So David, as, as a lawyer, can you explain for us non lawyers, what is the legal basis of the challenge that the Northeast Action Collective in Houston and Texas Housers lodged?

David Wheaton21:57

The state of Texas because those are federal funds can not discriminate on the basis of race, or national origin with those funds and what we saw from our preliminary analysis looking at which counties were going to get the funds and the beneficiary share of, who was getting the funds and who wasn't, when it came to race, we saw that there was a disproportionate amount of these funds that were going to white people and white beneficiaries, then there were for African-American beneficiaries. For some numbers, African-American individuals made up about 15.4% of the total population of all the eligible counties, but they only made up about 8.4% of the awarded project benaficaries.

And again, African-Americans made up about 21.2% of the low and moderate income households and the eligible counties, but only made up only 8.4% of the awarded project beneficiaries. And again, white people made up about 33.8% of LMI households and eligible counties. But again, they got about 47% of the awarded project benefits And also what HUD based their, a letter of filing off of to say that yes, white people were, disproportionately given more of these resources under the CDBG MIT grant than African-Americans were in the state of Texas.

John Henneberger23:25

We don't have time to get into all of the figures. Appreciate those high level figures you gave us. There's many more aspects to this, about how the GLO's scoring criteria essentially just blocked any money from going to the city of Houston, which is a majority minority city, It blocked all money from the city of Port Arthur, which is one of the greatest concentrations of African-American, uh, of, of any significant city size city in the state.

Same thing for Beaumont, same thing for Corpus Christi, which has a very large Hispanic population. None of those cities. They all submitted grants, but they didn't get a dime from the General Land Office. And they were all at the epicenter of these hurricane Rita, hurricane Ike, hurricane Dolly, hurricane Harvey repeatedly devastated by disasters and they don't have any money given to them from the GLO to do anything to prevent the flooding and the damages from future hurricanes, which just, as you said, outraged, everybody, because aside from all the statistics that you can look at, and how this was discriminatory, it just doesn't pass the smell test.

You can't exclude the areas where most of the problem is. and give it to other areas of the state and argue that you're being fair about how you're doing stuff. You mentioned that this was a Title VI complaint, and I know it was for the, those technically inclined people. It was also a Section 109 complaint, which is the statutory implementing regulations of Title VI. And you know, when I think about this, law, when I think about Title VI and section 1 0 9, it's, it really strikes me that this is the core of civil rights law. This is the basis of the 14th Amendment that guaranteed after the civil war, that there would, that no person could be denied the equal protection of the law and the equal benefit of government programs. It doesn't say special benefits. It says you can't be denied equal benefits because, of your, of your race or national origin. And that's essentially what the HUD letter found. And there are additional complaints which we have filed with HUD related to fair housing that HUD has is still actively investigating and we believe when HUD completes its ultimate investigation, it's going to come to light that there are many more problems than were, demonstrated in the May 16th letter.

David Wheaton26:16

Around March, was when HUD gave that first letter out. And HUD through the, like you said, the regulatory process, the GLO once that first letter was sent out by HUD saying that HUD had found problems, and that they think that the GLO violated Title VI, HUD gave the GLO a chance to respond and to appeal that decision.

And so the GLO did appeal that decision. Us at Texas Housers and NAC, we also, filed something with HUD to kind of combat with the GLO said in their appeal. But the letter we got on, May 16th, just a few days ago, was that HUD sustained their ruling HUD said, yes, we are confident. We are sure that the State of Texas, during their round one administration of these CDBG MIT funds discriminate against black people.

Uh, and particularly in the Gulf course area. Um, and so that is a significant ruling. That is a concrete ruling. and so they pretty much doubled down on their March letter. that said that, uh, the GLO was not in compliance with title six and with section 1 0 9 of the community development that letter summarize or summed up saying that they were out of compliance, or they're not in compliance with Title VI and towards the end of the letter, talked about the ways that the GLO can remedy this discrimination. they now have two options now, uh, to go into what the GLO can do to remedy this discrimination.

John Henneberger27:44

David, we mentioned that Texas housers is involved with a co complainant in this matter. Can you talk about who else is part of the complaint?

David Wheaton27:57

Yeah. So with this complaint, we partner with the Northeast Action Collective. They were one of the big groups that sounded the alarm when Houston and Harris county, didn't get any funds.

They're a Houston Harris county based organization. One of, their leaders, Ms. Doris Brown has been in this fight for a very, very long time, dealing with public infrastructure, trying to get equitable investment into her community in Northeast Houston. And so, Ms. Ms. Doris, as we call it has been just in this fight for a long time.

And. Yeah, she came to us and we kind of came together and said, something needs to be done about this, from a complete stance and legally something needs to be done. And so, uh, NAC and us came together and we found this complaint, actually, in last June. so almost a year ago, we kind of came together and filed this complaint.

NAC has been a great resource. Uh, on the ground and they've been great advocates for the people of Houston and Harris county in their quest for equitable infrastructure

John Henneberger29:00

HUD's letter to the General Land Office gives them a very short amount of time. Now that they've had the opportunity to respond to the complaint and HUD has rejected the State's response to the, their findings that the State had engaged in discrimination on the basis of race and national origin.

What are the next steps in this process? And what is it that NAC and Texas Housers really wants to see happen next to get this resolved? No one wants to delay this process. GLO has strung out disaster recovery unconscionably. And we have no interest and NAC, especially because they're worried they're going to get hit by another hurricane this summer.

And they want to get those flood repairs going in Harris county. What, what do we, what do we want to see happen next?

David Wheaton29:59

Yeah. So, at the end of the letter, HUD tells the GLO that they need to, have a voluntary compliance agreement, where we Texas housers and NAC, sit at a table with the GLO, with HUD's facilitating.

And we try to come to an agreement, , and we, negotiate, to come to some sort of agreement, uh, us at Texas houses. And. We are willing and ready to come to the table in good faith to negotiate something with the GLO to get these funds going. Our big problem with this is the discrimination.

We need the discrimination to stop and to. You know, GLO needs to remedy their discrimination. They had discriminated with the round one funds. There are still, billions of dollars still on the table right now. And we want to make sure that the rest of these funds are spent equitably and they're spent in the communities that Congress intended to be spent on.

And those are communities that have, not had the equitable investment in their flood infrastructure and natural disaster infrastructure in the past. And so we're committed to getting that, but we're also committed to sitting at the table with the GLO, in good faith and negotiating something, that's the best for the state of Texas and the people of Texas.

John Henneberger31:14

Well, David, this is a complicated, situation. It's a, it's an horrible situation. When you think that the state government actually has been reviewed and the data has been studied and it's been proven by the federal government whose money this is, and that's an important point. We got to make this point. This is not the federal government telling Texas that it's discriminated in how Texas has spent Texas is money. This is the federal government saying Texas discriminated against people on the basis of race and national origin over the way Texas spent federal money.

And that's, what's at stake here. $4 billion of federal money. And when your state discriminates against you, because of your race and or national origin, that's a, that's a tragedy, it's a tragedy for everybody in this state to think that the state in the name of the people would practice racial discrimination in 2022, over something as important as protecting the lives of people.

And disproportionally protecting the lives of poor people who can't get out of the way from the next disaster. So, yeah. Anyway, I, I thank you for taking the time to explain this very high level I'll point out once again, that there are many details that we've used shorthand, describe that you should look at our website.

This video will be posted on our website. If you're listening to the audio version, there is a video version. And on that webpage, you will be able to read HUD's finding letters and learn more about the details that we've spoken of in a very short amount of time here, and kind of had to speak very generally about things.

This is an ongoing legal matter. It needs to get resolved as David, as you said, we're ready. Give us 30 minutes notice, and we'll be sitting with HUD and the GLO, and we can fix this, but we need to fix it now. And the GLO continues to spend money using the same flawed racially discriminatory process as we speak, even though HUD has issued this letter

We applaud HUD for enforcing this law. And we expect HUD to actually really seriously enforce this law. And if Texas doesn't fix it and fix it fast, we've said to HUD, we think you need to stop the. money flowing until the State stops the discrimination.

David Wheaton33:55

The, the big the, you know, the next step, you know, is on GLO right to see what they're going to do, but it's also on HUD to make sure that they reaffirmed the civil rights of people of Texas. you know, we applaud them for, for going out there and making this final letter of determination. Uh, and again, this isn't a political thing. the numbers don't lie, the numbers aren't political, you know, these are statistical analysis that shows that African Americans have been discriminated against here.

And so this isn't HUD trying to play games with the GLO or the State of Texas or a political games, anything like that. This is, just pure discrimination being called out. On the part of the federal government. And we hope they stand by the people of Texas, especially low income people at the Gulf coast.

And if Glo doesn't come to the table in good faith, that they stop the GLO and stop the funds for coming to the state of Texas until GLO gets their act together and stops, discriminating against African-Americans.

John Henneberger34:52

Well, that's it for this edition of A Little Louder. Thank you for listening. And remember that you can listen to our podcasts, any place that you normally get your podcasts such as apple podcasts and the like, thanks again, David, for your work on the behalf of racial justice in this state and for equity for hurricane disaster survivors. And now we'll ask our friend JT Harechmak will take us out with our theme song.