The Butler's Child

by Lewis M. Steel

  As Judge Oakes’s dissent illustrates, judges matter at all levels of the judiciary. Often they determine both facts and the law. Even when the parties are entitled to a jury trial, judges have the last say about what the facts do or do not prove. Judges also control how fast or slowly a case moves forward. The classic example is a housing case Dick and I started in 1981.

  Invoking the 1968 Fair Housing Act, we represented a local NAACP branch that sued the Long Island town of Huntington, New York, for using zoning regulations to block the construction of low- and moderate-income subsidized housing—in the form of garden apartments—in a white neighborhood outside the railroad station area, where virtually all the town’s black residents lived in low-income apartment buildings. We trudged through five years of foot-dragging and back-and-forth wrangling before the case was tried in front of district-court judge I. Leo Glasser in the spring of 1985. After trial the judge ignored our phone calls asking him to decide the case. We waited twenty-seven months before he ruled against us.

  Dick and I appealed to the U.S. appellate court, arguing that Huntington’s zoning restriction to single-family houses in that area violated the Fair Housing Act because it was both an intentional act of discrimination and it had an adverse racial impact on the African Americans who lived in the town’s small black section. In order to win we knew we would have to buck the conservative trend that required proof of intentional discrimination rather than just discriminatory impact.

  Five days before the argument we learned that Judges Irving Kaufman, James Oakes, and Jon Newman were assigned to hear our appeal. Kaufman was the judge who tried and sentenced Julius and Ethel Rosenberg to death. On civil rights cases, however, Kaufman consistently supported a broad interpretation of existing civil rights laws, as did Judge Oakes. Judge Newman was the least predictable of the three, but we felt we had a fair chance to win his vote as well. A cheer went up in our office when we told everybody which judges we had drawn.

  Five weeks later that feeling was confirmed. The circuit court agreed that the Fair Housing Act, in contrast to the Constitution, did not require us to prove that the zoning board intended to discriminate. The discriminatory impact of its policy or practice was sufficient.

  The following year the U.S. Supreme Court narrowly upheld the Huntington decision. We were overjoyed, even though the long delay had severely undermined the project’s prospects since the property owner claimed that our option to purchase the land had expired. After we won that battle, however, a Republican administration had taken over in Washington, and federal public subsidiaries for financing the project were no longer available. As a result the project sponsors had to start all over again at the New York State level to seek subsidies. Moreover, by ruling on technical grounds and not deciding whether the appeals court’s use of the discriminatory-impact standard was statutorily and constitutionally correct, the Supreme Court had discouraged other developers of low- and moderate-income integrated housing projects from risking their start-up capital on plans that would most likely require litigation. On another day, in another case, the Supreme Court could rule the other way, requiring proof of intentional discrimination.

  In fact the Fair Housing Act remained in a state of limbo until June 2014, when the Supreme Court by a five-to-four vote upheld the racial-impact standard in a case involving a subsidized housing complex in Dallas, Texas. Only the swing vote of Justice Anthony Kennedy saved that interpretation from the angry dissent of Justice Samuel Alito, Jr., who was joined by Chief Justice John Roberts, Jr., Antonin Scalia, and Clarence Thomas.

  Meanwhile, out in Huntington, Long Island, the garden apartments Dick and I were trying to breathe life into still have not been built. In May 2012, shortly after Dick died, the housing sponsor, Housing Help, Inc. (HHI), asked me to join in its efforts to persuade the local sewer authority to reject the continuing local opposition to the project. We won that little skirmish. But by the fall of 2015, ground had not been broken on the project. I asked HHI’s executive director, Susan Lagville, when that would happen. She told me she could not give me a date but that it would happen. Even the smallest victories in the fight to defeat segregation come hard.

  * * *

  Dick and I became very adept at suing individual landlords, condos, cooperative apartment buildings, and real estate brokers for violating the fair housing laws either by refusing to rent or sell to blacks or Latinos, or simply steering them away from properties in white areas. The problem, of course, from the point of view of civil rights enforcement, was that only individual remedies involving payments to the plaintiffs were available, as most of the time the properties had been rented or sold to someone else.

  My favorite housing case, however, was one of these. One reason was that my daughter, Janine, assisted me at trial. During the summer of 1982 the Federal Aviation Administration transferred two black female air traffic controllers to a center at MacArthur Airport in Ronkonkoma, Long Island, which controlled the flights coming in and out of Kennedy Airport. Jacqueline Grayson and Altheia Futtrell didn’t know each other before their transfers, and it was merely by chance that they both looked for an apartment within a month of each other at a Patchogue apartment complex. Both got an all-too-familiar whiff of discrimination when the on-site rental agent told them there was nothing available. While such scenarios go unreported constantly, both Grayson and Futtrell complained about the incident to a local fair housing organization, Suffolk Housing Services (SHS).

  Luckily SHS was on the lookout for such cases, calling Dick whenever it thought it had a good one. Its executive director, Janet Hanson, sent out white and black testers to the complex. The result convinced us that the experiences of Grayson and Futtrell were no anomaly.

  In my first meeting with Grayson and Futtrell, I could sense that just underneath their repressed anger was much hurt. “What’s beneath that anger you’re hiding?” I asked them. “Don’t hold back from me because I’m white. I need to hear the hurt you’re trying to hide.”

  Slowly Jacqueline and Altheia responded to my prodding. When the trial started, just as I thought, we managed to get only one black on the otherwise all-white suburban jury. As a result Jacqueline and Altheia started tightening up again.

  “Just tell your story,” I told them gently, “and trust the jury to feel your pain.”

  And that’s exactly what they did.

  Altheia said her rejection brought back painful memories of being spit on in West Virginia while looking for an apartment in a white residential area there. Sitting in the witness chair, she was emotionally raw, her lips quivering, as she told the jury about her feelings when the complex representative told her there was nothing available.

  Jacqueline also testified about her rejection, and described the pain a mother experiences when explaining to her child that some people might treat her badly just because of the color of her skin.

  After Jacqueline, SHS’s Janet Hanson and our testers testified about how they conducted a spot-check with white and black “applicants,” the black testers all being told there was no availability, and the whites all being told there were apartments for rent.

  Then I surprised Paul Rotundi by calling him in our case. Rotundi was the president of a very successful family real estate corporation that owned and operated the apartments. I wanted the jury to see that it was Rotundi who had rejected Futtrell and Grayson, as without testimony that an owner or high-level manager had established a policy or practice of discrimination, the jury could not punish the owners for outrageous or malicious conduct by assessing what lawyers call punitive damages.

  Sometimes character is fate, which was fortunate for our case. Proud of his authority, Rotundi readily claimed responsibility for every rental decision made in connection with his family’s holdings. But, he said, there had been no discrimination. During a pretrial deposition, however, Dick had already extracted from Rotundi an admission that there were no black people in his complex, except for a person who married someone who alr
eady had a lease.

  Rotundi also told the jury that only Futtrell had come to see his apartments, and all were occupied at the time. To prove that there were available apartments, I used Rotundi’s own records to establish that apartments were for rent at the time Jacqueline and Altheia visited the on-site agent.

  By the time I sat down Rotundi was in deep trouble.

  Now I had one more thing to accomplish. I needed to pin down that the on-site rental agent was acting on Rotundi’s instructions. As the trial was now all about monetary damages, because both Althea and Jacqueline had already found apartments elsewhere, it was crucial for the jury to award them punitive damages, which is a penalty that may make the owners think twice before engaging in such conduct again. But the agent was nowhere to be found. Fortunately I was entitled to read to the jury the testimony we had preserved when Dick took the agent’s deposition. To do that effectively I needed someone to play the part of the agent while I asked the questions.

  So I asked my daughter, Janine, who had just graduated Vassar, to read the agent’s answers. With the judge’s permission, Janine joined me. As we stood in front of the jury, and I handed her the marked-up deposition booklet to read from, I could sense her nervousness. So I put my arm around her to steady her, and started to read the questions. When she answered, I peered up at the jury. Some had frowns of disapproval spread over their faces.

  I was aghast. They didn’t know who Janine was, and saw me with this beautiful dark-haired girl. And here I was, they thought, hitting on her: Oh, my God, I thought, this is trouble. If they don’t like me, they won’t like my case.

  Then I thought, I have another deposition section to read. I’ll correct this later in the trial.

  When I requested permission to read from the transcript again, I asked: “Your honor, may I have my daughter, Janine Steel, join me in reading from the deposition?”

  This time I got big smiles: I was a good dad instead of some lowlife.

  Later, in my summation, I appealed to the jurors’ sense of fairness: “Are blacks who work hard and struggle and go to college and improve themselves and perform a job which is essential to hundreds of thousands of people who are up there in those airplanes every day—are they entitled to at least be shown an apartment?”

  Looking each juror in the eyes, one by one, I stood there with my hands resting on the long rail that separated us. Feeling them open up to me, I pushed harder:

  “Look inside your hearts,” I charged them. “What are we? What do we think of ourselves? What do we want as a people? This must stop. The fabric of our society depends on it.”

  Pointing to Rotundi, I told the jury how destructive he and his agents were: “They divide us, turn us against each other.”

  Then, making room for Rotundi’s attorney, who would now get his turn to respond to my arguments before I got a quick last word, I pulled back a little to give the jurors the sense that they need not rush to judgment: “Think about the seriousness of this case,” I said, and returned to my seat.

  Rotundi’s defense attorney, Stanley Somer, harped on all the themes he had hoped would see his client safely through this trial. He attacked Grayson and Futtrell, questioned the integrity of the testers, tried to paint SHS as an evil organization that was interested in stirring up lawsuits rather than getting black people apartments, and then scapegoated the agent, suggesting that if anyone had done anything wrong, it was he and not Rotundi. That said, Somer argued in a rhetorical flourish that, even if the agent had discriminated against Grayson and Futtrell, what was that discrimination worth in terms of dollars? “A verdict of one dollar,” he suggested.

  Somer also told the jury that if it imposed punitive damages it would be punishing Rotundi’s mother and his brother, which was unfair since they had done nothing at all.

  Watching the jurors, I sensed that some of them were a little confused by Somer’s defense. But not one of them appeared hostile to me when I rose to approach them for my last remarks. Using my first few minutes to clarify some of the events that Somer had spoken about, I saw a few of the jurors nodding their heads in agreement. A good sign. Knowing that jurors often feel ambivalent or hostile to fair housing organizations for what they deem to be unfair “spying” on real estate brokers and homeowners, and are worried about their own property values, I defended SHS.

  Then I returned to Rotundi’s rejection of Altheia and Jacqueline: “What’s humiliation worth, what’s your pride worth, what’s everything you live for worth—a dollar? What’s it worth to have to fight to be treated just like everyone else, not to be treated special—a dollar?”

  I felt the words tumbling out.

  “We had a Constitution in this country which once said blacks were to be treated as three-fifths of a man. Three-fifths of a man. We fought a Civil War over that. We passed laws to stop that, and one hundred years after the Civil War we are still here in this courtroom right now, and we are still facing it.

  “For how many years are juries going to have to sit in a box like you’re sitting and listen to this case or cases like it? Can’t we get our history behind us? Can’t we say blacks are five-fifths of a man, and can’t we stop companies like S. Rotundi Realty Co. from saying, ‘No, no, they are not? We have got to stop it, ladies and gentlemen of the jury. We have got to stop it here. We have got to stop it now. I ask you to stop it.”

  Drained, I thanked the jury and slowly turned away. I could see some of the jurors looking at me intently as they filed out of the courtroom. I turned to meet their gazes, wanting them to see how deeply I believed what I had said.

  The jury was out for less than an hour after the judge charged them on the law. The foreperson, responding to specific questions formulated by the judge and reading from his sheet, reported that we had won the case on every issue. The jury awarded $40,000 in compensatory damages and $250,000 in punitive damages to Altheia Futtrell, and Jacqueline Grayson got $25,000 in compensatory damages and $250,000 in punitive damages. At Somer’s request the judge asked each of the jurors if they joined in the verdict. In solemn voices befitting the occasion they all replied, “Yes.”

  Judge Jacob Mishler told them he believed that the evidence supported their verdicts. Thanking them for their service, he dismissed them. As they filed out of the jury box, most of the jurors looked over at Altheia, Jacqueline, and me and smiled. They had done the right thing, and they knew it. For at least that day, each of them had put racism behind them, and they felt good about it. Tears welled up in Altheia’s and Jacqueline’s eyes.

  Paul Rotundi and his lawyer fled the courtroom, and our little cheering section broke into applause. This verdict was more than twice as large as any previous housing discrimination award anywhere in America. Altheia, Jacqueline, Janet Hanson, and I hugged one another. There were tears. A Newsday photographer captured our smiles. It was truly a great day.

  A month after we left the courtroom, Judge Mishler denied a motion filed by Rotundi’s lawyer to set aside the verdict as excessive. Mishler wrote that the publicity generated by the decision and award would go a long way toward convincing other landlords that it was not in their economic interest to discriminate. Housing discrimination, however, continues unabated. Six months later—to avoid an appeal and the possible resistance of appellate judges to upholding that large a verdict—Altheia and Jacqueline agreed to accept their share of $360,000 rather than the $565,000 the jury had awarded them. That meant they had the funds to become homeowners rather than renters.

  Years later I read what I regarded as a wrongheaded federal appeals court decision that ruled that testimony about the painful memories from prior acts of prejudice was not proper in a housing discrimination case. If Grayson and Futtrell’s appeal had gone forward, as I had feared, the appellate court could well have had a problem with Altheia’s spitting-incident testimony, as well as Jacqueline’s talking about bringing up her child in a racist society, and the jury’s verdict might well have been overturned. Like our SASSO precedent, which
was undermined by a later Supreme Court decision, I knew it would be hard to win a large verdict in a similar case again.

  21

  Life Among White Liberals

  In contrast to what I saw as the stagnation of the civil rights movement in the 1970s, my personal life was a work in progress. Although I continued to question who I was and what I stood for, my little world was changing around me. I had three children, and while I had fought to desegregate public schools in the North, all three attended private schools. We lived well. Still, the American credo of living at a higher level beckoned. More space for our growing children was the goal. With the Warner largesse in hand and the real estate market at rock bottom, we started looking. When Kitty first showed me the place where we live now, I had a Bridgehampton-Gwathmey-house flashback: “It’s too big,” I said, “and the building is even more upper class than the one we’re in now. I’m a civil rights lawyer.”

  Kitty had heard that one before, and she wanted the apartment. I resisted until a therapist I was seeing got tired of my whining: “Buy it in Kitty’s name,” he said, “and walk around in jeans all the time, and if anyone says, ‘But you’re a civil rights lawyer,’ tell them you’re just visiting; it’s hers.”

  I took half of his advice. We purchased the apartment in both our names, and have happily lived in it ever since. However, my initial protest was not entirely misplaced. When Rosa Parks came for an event we were hosting, she asked for a tour and spotted the back room.