# United States v. City of Parma, Ohio > Court of Appeals for the Sixth Circuit · October 14, 1981 · 661 F.2d 562 URL: https://www.frixlaw.com/law-library/cases/9468483 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. CITY OF PARMA, OHIO, Defendant-Appellant - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** October 14, 1981 - **Citations:** 661 F.2d 562; 1981 U.S. App. LEXIS 16900 - **Precedential status:** Published - **Opinion:** Dissent by Merritt - **Judges:** Lively, Keith, Merritt - **Cited by:** 109 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468483 ## How later opinions describe it (automated extraction) - holding that a pattern or practice claim “necessarily involves a number of discriminatory .acts, not a particular one from which the time for bringing suit may be measured” - holding municipality liable under federal FHA because "the comprehensive purpose of the Act would be diluted if it were held to apply only to the actions of private individuals and entities" - stating that the federal fair housing statute clearly authorizes the attorney general to sue, thus affording standing - finding that the largest suburb of Cleveland violated Title VIII of the 1968 Civil Rights Act ## Opinion text MERRITT, Circuit Judge, dissenting in part. Judge Lively’s opinion goes a long way in bringing order and clarity to this confusing and difficult case, but I do not find satisfactory that portion of the opinion which premises liability on the city’s “image” or “reputation” and orders a comprehensive advertising program as a corrective means. As I understand the court’s various holdings, the fact that the city itself refused to plan, develop, sponsor or build public or low income housing is not a basis of liability under the Fair Housing Act. The primary bases of the city’s liability, as found by the court, are: (1) The mayor and certain members of the city council, including its presiding officer, through public statements and conduct, evidenced a general intent to exclude blacks from the city. (2) In order to carry out this goal, officials of the city interfered in the market for low income housing by refusing to allow either private builders or public agencies such as the Cleveland metropolitan housing authority to supply low income housing within the boundaries of Parma. (3) With discriminatory intent, these officials interfered with the supply of low income housing by refusing builder’s permits for spurious reasons, and they promoted and adopted a policy requiring a city-wide vote by referendum on all local, state or federally subsidized housing. I agree that the record supports a finding of liability on this basis. After finding liability, the court then reverses the remedy of the District Court to the extent that it requires the city to develop, sponsor or build housing under the supervision of a special master. The basic remedy imposed by the court against the city is to order the city to stop its unreasonable interference in the market for public and private low income housing. The city and the fair housing committee are required to develop and submit to the District Court a plan outlining what regulation of these markets they consider reasonable and necessary. With all of this I agree. I also agree with the court that the referendum provisions requiring a city-wide vote on individual housing projects is invalid. First, it seems clear that the effect, as well as the purpose, of this referendum provision is to keep out blacks, a discreet minority with no access to the political process in the City. The City is no more free to inflict deprivation upon this group by popular vote tha,n by legislative act. Second, a popular vote is not a reasonable way to adjudicate individual rights of builders. It is not a procedurally fair method of adjudication because the individual or corporation denied a permit to enter the market is not entitled to a hearing or any explanation for the decision. Third, the record shows that the city does not want blacks, obviously a suspect classification subject to strict judicial scrutiny. There is no way for any reasonably precise analysis to be made of the reasons a particular applicant is denied the right to enter the market when the decision is made by the voting public in referendum. Principles of due process and equal protection, as well as the prohibition against discrimination in housing contained in the Fair Housing Act, combine to prevent adjudication by popular referendum of individual housing construction applications. My problem with the opinion of the court is that it allows to stand the lower court’s finding of liability based upon “the failure *580 of the city council to adopt a resolution welcoming all persons of good will to Par-ma,” and the City’s “reputation among black residents of the Cleveland area of hostility to racial minorities.” (P. 574.) In order to remedy these wrongs, the District Court ordered the City to pass a welcoming resolution and adopt a comprehensive advertising program. The District Court in its remedial order provided: C. Fair Housing Resolution . . . Parma is ORDERED to enact a fair housing resolution welcoming persons of all races, creeds and colors to reside in Parma .... D. Advertisement of Parma as an Open Community This court has found that Parma has perpetuated a racially exclusionary and discriminatory image. In order to eliminate the perception of Parma in the Cleveland area, and in the minority community of Cleveland in particular, as a closed municipality, Parma must implement an advertising program promoting Parma as an equal housing opportunity community. The purposes of this program are clear: To inform the community that (1) Parma is seeking to become an open community; (2) Parma is attempting to expand housing choice for minorities in the city; (3) All persons are welcome in Parma; (4) Discriminatory practices which have characterized Parma in the past no longer reflect the attitude of the city and its citizens. Accordingly, it is ORDERED that Par-ma shall undertake a comprehensive advertising program in newspapers which circulate principally in the black community in the region, as well as in the major regional newspapers. The advertising campaign shall be directed at accomplishing the above stated purposes in addition to promoting Parma as a good place for persons of all races to reside. (Emphasis added.) Our Court’s opinion appears to sustain this portion of the District Court’s order. Our opinion states: With respect to the requirement of advertising, we have found no case where a similar requirement has been imposed upon a city or other political entity. Unlike realtors and lenders, a city does not ordinarily carry on an advertising program to promote its activities. Nevertheless, on uncontradicted evidence, Parma’s reputation as a closed community was found to be widespread in the Cleveland area. The advertising campaign ordered by the court, if of reasonable duration, should correct this image without imposing too great a burden on the City. However, this advertising material may only reflect the official attitude of the City as an equal opportunity housing community. It may not claim to reflect the private attitudes of the citizens of Parma, as suggested by the order. Private attitudes and opinions are not subject to official control. The requirement that Par-ma adopt a welcoming resolution is relatively innocuous and fits in with the advertising campaign which we have approved. The Court cites no legal authority or persuasive reasons which support a municipal legal duty to adopt a “welcoming” resolution, or a municipal duty to create a particular image or reputation through publicity. How some residents of other suburbs of Cleveland may “perceive” Parma is not relevant to the City’s liability. The law must try not to allow these kinds of general “image” and media considerations to direct its course. The federal court system should not get into the business of trying to change or improve its own or anyone else’s image — whether Parma, blacks, General Motors or some agency of the government — by ordering the publication of favorable publicity in the press. We are not equipped to change the public’s perception of a city by judicial order. Not only does it seem to me a futile exercise; I am unable to square such an order by a federal court with the first amendment. The order requires officials of Parma, on behalf of the City in its capacity as the representative of its citizens, to affirm a *581 particular belief, to express and “promote” a particular racial “attitude” or political viewpoint — that “discriminatory practices ... no longer reflect the attitude of the city and its citizens.” The order requires them to express publicly an attitude of repentance for their old racial attitudes and to say that they have changed those beliefs. It is a violation of the first amendment for a federal court or other governmental entity to order anyone to express and print in the newspaper a particular racial attitude, political belief or social philosophy, however much most of us may agree with the viewpoint to be expressed. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 , 94 S.Ct. 2831 , 41 L.Ed.2d 730 (1974) (invalidating Florida law requiring newspapers to grant political candidates right of reply); Wooley v. Maynard, 430 U.S. 705 , 97 S.Ct. 1428 , 51 L.Ed.2d 752 (1977) (invalidating New Hampshire’s requirement that automobile drivers display state motto “Live Free or Die” on license plates). The claims of liberty of conscience, thought and speech are given precedence in the Constitution over the claims of equality of opportunity in housing and where the two conflict, as here, the claims of liberty must be satisfied first. The freedom that exists in this country to state beliefs different from those of the prevailing majority gave birth to the civil rights movement. That movement cannot last long if, in the name of equality, it undermines the conditions of liberty which sustain it by requiring others to publish statements agreeing with its position. Freedom of association is an aspect of freedom of speech and thought. To compel a particular statement about one’s philosophy of association seems to violate the concept of free association even more than the Alabama state law requiring disclosure of NAACP membership lists which the Supreme Court invalidated because “compelled disclosure . . . may constitute a restraint on freedom of association.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463-64 , 78 S.Ct. 1163, 1172-1173 , 2 L.Ed.2d 1488 (1958). The line between forced association and the elimination of restrictions on the opportunity for blacks and whites to live together in a neighborhood — a distinction the federal housing act and this court are seeking to draw — may be at times a fine line. We do not in the long run foster the goals of association and racial cooperation by ordering cities to state new, and for some controversial, political attitudes. The Court suggests that the labor law, notice-posting cases provide authority for such a broad publication order, but my review of the cases indicates that courts have studiously avoided making employers or unions do anything other than post notice or state to their employees that they will abide by the collective bargaining requirements of the Wagner Act. .NLRB orders that employers go further and publish such statements in company or other publications, are routinely struck down, Florida Steel Corp. v. NLRB, 620 F.2d 79, 83 (5th Cir. 1980), as are orders requiring employers publicly to admit wrongdoing or promise a change of attitude, NLRB v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 869 (5th Cir. 1966). Judge Learned Hand’s comments in an early labor law, notice-posting case have not been overruled and seem equally applicable to the Parma publication order: The employer must indeed post a notice that he will conform to the Board’s order. . . . But we think that to compel him to say that he will “cease and desist”, necessarily imports that in the past he has been doing the things forbidden; indeed we find it hard to see how the contrary can be rationally argued. Forcibly to compel anyone to declare that the utterances of any official, whoever he may be, are true, when he protests that he does not believe them, has implications which we should hesitate to believe Congress could ever have intended. At any rate until the Supreme Court speaks, we will not so construe the statute; nor are we disposed nicely to examine the scruples alleged; too long a history, and too dearly bought privileges, are behind such refusals. Art Metals Constr. Co. v. NLRB, 110 F.2d 148, 151 (2nd Cir. 1940). *582 The fact that our Court now limits the publication order to the City of Parma as a corporation does not alter the first amendment violation. In the labor law cases, the publication orders run against the corporation. The first amendment protects corporations. First National Bank of Boston v. Bellotti, 435 U.S. 765 , 98 S.Ct. 1407 , 55 L.Ed.2d 550 (1978) (invalidating state restriction on political advertising by corporations). Certainly this coverage should include a corporation municipal which is ordered to express a political attitude in its capacity as the representative voice of a community. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468483. Public record. Not legal advice.