Petition — Nucleus of Chicago Homeowners Ass'n v. Hills

Supreme Court brief1976

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IN THE 1 BACHAEL ROW:

Supreme Court of the Gnited States

OcTOBER TERM, 1975.

we 675-951 8

NUCLEUS OF CHICAGO HOMEOWNERS ASSOCIATION,

ET AL.,

Petitioners,

vs.

CARLA A. HILLS, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SEVENTH CIRCUIT.

JOSEPH V. KARAGANIS,

SANFORD R. GAIL,

KARAGANIS & GAIL LTD.,

180 North LaSalle Street,

Chicago, Illinois 60601,

Counsel for Petitioners.

January 1976.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

INDEX.

PAGE

ED in o-edbe ie oeeeenbbbs been enkees 1

SED Satu a cad neneeeeewe bende shbnevescen’s 2

ee as ceca Ue we bebe va bs 2

EE oo ank.nd bo ben's cand aoe awe denned 2

Statement of the Case ........... Re ae rE pee 2

Reasons for Granting the Writ .................2.05. 22

I. The Decision Below Conflicts with Decisions of the

Supreme Court and Decisions of Other Circuit

Courts of Appeal in That the Seventh Circuit

Allowed HUD to Proceed with the Project Without

Considering the Relevant Socio-Economic Data .. 22

II. The Decision Below Conflicts with Decisions of

This Court and Other Circuits Regarding the Defer-

ence to Be Accorded the Guidelines Promulgated

by the Council on Environmental Quality ...... 24

III. The Decision Below Fails to Recognize an Impor-

tant Distinction Between the Proper Role of the

Courts in Remedying Unconstitutional Segregation

and the Affirmative Statutory Responsibility of

HUD to Promote Stable Integrated Communities.. 25

Nn cas ue beah Vea ewe eke ee eae 27

CITATIONS.

Cases.

Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402

EUOED. sk00dncd 6cbcinesecsceuneseeneaneerees 22

Clark v. Universal Builders, 501 F. 2d 324 (7th Cir.

1974), cert. denied 419 U. S. 1070 (1974) ......... 26

Gautreaux v. Chicago Housing Authority, 296 F. Supp.

Fae Gee A E Vb onc eeccbennnbeiedeskeses

Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736

oS | Ff eee 6, 12, 16, 19, 21, 23, 25, 26

Gautreaux v. Chicago Housing Authority, 503 F. 2d 930

(7th Cir. 1974), cert. granted sub nom. Hills v. Gau-

treaux, 421 U. S. 962 (1975) ......... 3, 4, 17,18, 26, 27

Gautreaux v. Romney, 448 F. 2d 731 (7th Cir. 1971)... 5

Hanly v. Mitchell, 460 F. 2d 640, 648 (2nd Cir. 1972),

cert. denied sub nom. Hanly v. Kleindienst, 409 U. S.

ee EE 6 04.20.0064 0 hn bee £8 bobs bas eh eee 22

Hills v. Gautreaux, No. 74-1047, cert. granted 421 U. S.

ee UE nb. 08444644064 0080.0500e4ennses 3, 4, 18, 27

Jones v. Lynn, 477 F. 2d 885 (ist Cir. 1973) ......... 19

Milliken v. Bradley, 418 U. S. 717 (1974) ....3, 4, 18, 26, 27

National Resources Defense Council v. Morton, 458 F. 2d

ee. Geek re ED Wn ob oo ccckke beavascécane 24

Nucleus of Chicago Homeowners Association v. Lynn, 372

Pe SU BSe GES, A Ee GVO) cccccsccessccseccen 1,19

Nucleus of Chicago Homeowners Association v. Lynn, 524

Je F- Te te eS errr rrr ere 1, 21, 22, 25

Otero v. New York Housing Authority, 484 F. 2d 1122

Sey Gs ED 660.06 cee senneeeoeennecesed 13, 19, 23

Scenic Hudson Preservation Conference v. F. P. C., 354

i { fF Cf - & Ra ee hee Pet eons 22

iii

Scientists Institute for Public Information v. A. E. C., 481

oe ee ee ED ow GS0 sce ceewesenecer 24

Shannon v. HUD, 436 F. 2d 809 (3rd Cir. 1970) ......

PPP eT PTT TTT TOT TTT OT TT TT TET 3, 13, 19, 22, 23, 27

Sierra Club v. Morton, 514 F. 2d 850 (D. C. Cir. 1975)

5 bO SE SK HESS CTEM UWOR UO 00660080 00006680 88-95 24, 25

Swann v. Board of Education, 402 U. S. 1 (1971) ...4, 18, 26

Trinity Episcopal Church v. Romney, 523 F. 2d 88 (2nd

ee ER ee er errer ete TT tre 23

Udall v. Tallman, 380 U. S. 1 (1965) ...........-.4.. 25

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corporation, 517 F. 2d 409 (7th Cir. 1975),

No. 75-616, cert. granted ....... U. S. ........ , 44 L. W.

Ee eerie eer ee 3, 4, 26

Warm Springs Task Force v. Gribble, 417 U. S. 1301

SE cu den ced ne ss atte ou Kobe hs 6G nbs cheC ON 25

Statutes.

CS © STO ove cecsectecesenseconsees 22

Oe TE, BE Ge Be EOD ooo 6 ase oseceesevenees seveus 2

GOO Be SS Bs GOO, ccc ccccccdscccevcesess 5

f 4 RUS! ee FG COP T IT eT rT eT eT 5

Ce Oe ED nb. 550440 Ne bescocdeeecess 2, 3, 13, 26

Se Oe, ED cebececcvediccnnvcsenteeteee 2, 3,13

OS, RG GOO. 6 covccccecceccssnnsseoons 2,13

4 oS . rrr rrrrerTirerir 13, 14, 20

Regulations.

40 C. F. R. §.1500, ef seq. ....- cc ccccccccccces 21, 24, 25

Other.

Freedom of Choice in Housing: Opportunities and Con-

straints, National Academy of Sciences (1972). .7, 11, 12, 15

Friedman, Public Housing and the Poor: An Overview, 54

- SS OS 8 eee eee 12, 16

Gannon and Janowitz, The Social Impact of Scattered Site

Public Housing (May 19, 1973) A. 26 ............ 8

Human Needs in Public Housing, Welfare Council of

Metropolitan Chicago (1970) ....7, 8,9, 10, 11, 15, 20, 21

More Than Shelter: Social Needs in Low and Moderate

Income Housing, Report to the National Commission on

Ueeem Femmes CIGGG) 660 0cceteeceseuaseeeeua 6, 12

Public Housing and Urban Policy, 79 Yale L. J. 712

CEDFOD cocccedecieeesecéeteveesewee 6

Statement of Anthony Downs Before Senate Select Com-

mittee on Equal Education Opportunity, 91st Cong., 2nd

SF Perr 11

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1975.

NUCLEUS OF CHICAGO HOMEOWNERS ASSOCIATION,

ET AL.,

Petitioners,

vs.

CARLA A. HILLS, Ef AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

SEVENTH CIRCUIT.

The Petitioners, Nucleus of Chicago Homeowners Association

and the other numerous plaintiffs below, respectfully pray that

a Writ of Certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Seventh Circuit

entered in this proceeding on October 6, 1975.

OPINIONS BELOW.

The opinion of the Court of Appeals for the Seventh Circuit

entered October 6, 1975 (A. 14) is reported at 524 F. 2d 225

(7th Cir. 1975). The opinion of the United States District Court

for the Northern District of Illinois, Eastern Division (A. 8)

entering judgment in favor of defendants and dismissing the case

on the merits is reported at 372 F. Supp. 147 (N. D. Ill. 1973).

SURISDICTION.

The judgment of the Court of Appeals for the Seventh Circuit

was entered on October 6, 1975. (A. 25) This petition for

certiorari was filed within 90 days of that date. This Court's

jurisdiction is invoked under 28 U.S. C. § 1254(1).

QUESTIONS PRESENTED.

1. Can the Department of Housing and Urban Develop-

ment—charged by statute with developing integrated housing

—ignore socio-economic information which will affect the in-

tegration of housing in Chicago.

2. Can the Department of Housing and Urban _—

ignore its statutory responsibilities to promote integration and

to analyze the social environmental impact of its actions by piece-

meal analysis of isolated projects without developing a plan for

metropolitan integration where socio-economic evidence shows

that Chicago will become an all-black city without such plan-

ning.

STATUTES INVOLVED.

This case involves the responsibility of the United States

Department of Housing and Urban Development to consider and

analyze relevant socio-economic and racial data and to develop

plans for balanced integrated housing pursuant to the mandates

of the National Housing Act of 1949, 42 U.S. C. § 1441, et seq.;

the Civil Rights Act of 1968, particularly 42 U. S. C. § 3608;

and the National Environmental Policy Act, 42 U. S. C. § 4321,

et seq.

STATEMENT OF THE CASE.

This controversy involves the roles of the courts and the

Department of Housing and Urban Development in shaping a

racially integrated residential housing program for the Chicago

mee

metropolitan area. Frustrated with the complete and utter failure

of the Department of Housing and Urban Development to set

forth a rational program to develop “truly balanced and inte-

grated living patterns” under its multiple housing authorities, the

Seventh Circuit Court of Appeals has approved district court

plans or developed its own remedial orders which it feels will

accomplish integrated housing in the Chicago area.

Rather than order HUD to articulate the relationship of its

housing programs to the goal of integrated housing, the Seve. th

Circuit has taken unto itself the role of city planner, sociologist

and urbanologist without bothering to seek advice from knowl-

edgeable experts on the necessary elements for successful in-

tegration and without bothering to observe fundamental legal

requirements in framing its decisions. Two of the Seventh Cir-

cuit’s residential segregation decisions spawned by this frustra-

tion are presently before this Court—Hills v. Gautreaux, No.

74-1047 cert. granted 421 U. S. 962 (1975) and Village of

Arlington Heights v. Metropolitan Housing Deveiopment Corpo-

ration, et al., No. 75-616 cert. granted _..... U. S. ., 44

L. W. 3358 (1975).

Unless this Court delineates the proper role of the courts,

HUD and other relevant agencies, the national goal of integrated

housing will be destroyed.

Gautreaux, Arlington Heights and the instant petition all re-

sult from the failure of the Seventh Circuit and HUD to dis-

tinguish between restraints on a court’s equitable power to

remedy unconstitutional segregation in housing by ordering a

metropolitan housing program’ and HUD’s statutory respon-

sibility to affirmatively develop racially balanced integrated

communities. Shannon v. HUD, 436 F. 2d 809, 816 (3rd Cir.

1970), 42 U. S. C. § 1441, 42 U. S. C. § 3608.

The Seventh Circuit’s remedial power in the Gautreaux litiga-

tion is limited to remedying the constitutional violation com-

plained of by the Gautreaux plaintiffs—segregation of public

1. The basis of HUD’s appeal in Hills v. Gautreaux, No. 74-1047

relying on Milliken v. Bradley, 418 U. S. 717 (1974).

housing in Chicago. Under this Court’s decision in Milliken v.

Bradley, 418 U. S. 717 (1974), the limits of the court’s remedial

authority for this constitutional violation is desegregation of pub-

lic housing within Chicago’s city limits.

Yet HUD, the Chicago Housing Authority, the Gautreaux

riaintiffs and the Chicago neighborhood homeowner’s groups

who bring this petition all agree that scattering public housing

sites within Chicago alone will simply result in the resegrega-

tion of the entire city. For effective integration (as opposed to

desegregation) to work, public housing must be planned and im-

plemented on a metropolitan basis.

In Gautreaux, Arlington Heights and the decision below the

Seventh Circuit has tried to integrate the Chicago metropolitan

area rather than eliminate segregation. In doing so, the Seventh

Circuit has completely ignored HUD’s statutory responsibility

to develop affirmative programs for integration of housing pat-

terns.

HUD, of course, fervently hopes that this Court will reverse

Gautreaux without directing its attention to HUD’s failure to

set forth a program for stable residential integration of the Chi-

cago metropolitan area. In contrast, petitioner homeowner groups

respectfully ask this Court to give proper instructions to the

Seventh Circuit and HUD as to their respective roles.

The Seventh Circuit should be instructed to order HUD to

affirmatively develop a metropolitan housing plan for stable

integrated housing as required by statute. In doing so, HUD

should be required to receive and evaluate all relevant socio-

economic and racial data. The Seventh Circuit should stay its

hand in providing a metropolitan remedy for HUD’s statutory

failure to integrate* until HUD is given an opportunity to develop

and present such a plan.* Throughout the entire Gautreaux

2. As opposed to remedying Chicago’s unconstitutional segrega-

tion.

3. “Judicial authority enters only when local authority defaults.”

Swann v. Board of Education, 402 U. S. 1, 16 (1971).

epoch, HUD has never been ordered to perform its statutory

duty to integrate.

The History of the Present Controversy.

On February 10, 1969 the United States District Court for the

Northern District of Illinois ruled that statistics submitted by

plaintiffs in Gautreaux v. Chicago Housing Authority’ demon-

strated that the Chicago Housing Authority had engaged in

racial discrimination in selecting sites for low income housing

in the City of Chicago. The trial judge ordered the parties to

submit a comprehensive plan to correct the constitutional viola-

tions. In an often-quoted statement, the district court established

the following laudable goal:

“[E)}xisting patterns of racial separation must be reversed

if there is to be a chance of averting the desperately inten-

sifying division of Whites and Negroes in Chicago. On the

basis of present trends of Negro residential concentration

and of Negro migration into and White migration out of

the central city, the President's Commission on Civil Dis-

orders estimates that Chicago will become 50% Negro

by 1984. By 1984 it may be too late to heal racial divi-

sions.”

296 F. Supp. at 915.

The Chicago Housing Authority (CHA) failed to develop a

remedial plan.* Consequently, the district court decided to enter

4. 296 F. Supp. 907 (N. D. Ill. 1969).

5. Part of this failure can be explained by the role played by the

Department of Housing and Urban Development at that time. While

— was the financial source of 100% of CHA’s financing for low

wtale ece housing through the Housing Act of 1937 (42 U. S. C.

1 et seq., as amended by the Housing and Community Develop-

A Act of 1974, P. L. 95-383, 42 U. S. C. § 1437, et seq.), HUD

was not a party to the original judgment of liability or to the

remedial order entered by the district court. The district court had

stayed a companion suit against HUD during the suit against CHA

and then dismissed the suit against HUD. HUD’s critical role in

housing policy was subsequently recognized by the Seventh Circuit

which reversed the district cout and held HUD liable for CHA’s

actions. Gautreaux v. Romney, 448 F. 2d 731 (7th Cir. 1971).

a remedial plan of its own. Significantly, in shaping its remedial

order, the district court did not consult HUD (the federal agency

presumably expert in housing policy) or any experts in the field

of housing or urban sciences. Nor did the district court ever

conduct any public or evidentiary hearings on a proposed order.

Rather, the district court entered a lengthy complex order

drafted almost entirely by plaintiffs’ lawyers who, by their own

admission, had no experience in housing or urban planning.®

The order, drafted without benefit of evidentiary hearings or

expertise, contained a complex formula delineating the size and

location of physical housing structures and the number of public

housing tenants in any one location.’ While the purpose and

efficacy of these requirements have never been articulated, the

Gautreaux lawyers and the district court apparently hoped that

these conditions would be sufficient to create stable integration in

the white areas of the city.®

Again, it must be emphasized that the district court failed

to seek any expert advice or conduct any hearings about the

conditions necessary to insure effective integration in housing

patterns. No attention was paid to the special social service needs

and problems of public housing families® and the relationship

of those problems to effective integration.

The case — HUD was then consolidated with the case against

CHA but this consolidation took place long after the district court

had entered its remedial order.

6. “[T]Jhe Gautreaux judgment order was drafted with two excep-

tions by plaintiff's attorneys who admitted having no previous hous-

ing experience and yet failed to consult anyone who did.” (emphasis

added) Comment, Public Housing and Urban Policy, 79 Yale L. J.

712, 726- (1970).

7. 304 F. Supp. 736 (N. D. Ill. 1969).

8. ‘These provisions, limiting the size and concentration of future

projects are Fs ag omg designed to assure stable integration of the

new housing into the larger white community.” Public Housing and

Urban Policy, supra n. 6 at 720.

9. Indeed, the special needs and problems of low income families

have been totally ignored by both public officials and the courts in

this controversy. Yet these needs and problems have been exhaus-

tively documented. See e.g. More Than Shelter: Social Needs in Low

Following the district court’s order of July 1, 1969, CHA

proceeded to select sites for 1500 units of low income family

housing which had been given a funding reservation by HUD.

Availaule sites were selected by the CHA engineering depart-

ment by simply locating vacant lots on city maps. (Tr. 485,

486)

The CHA engineering department made no attempt to de-

termine the adequacy of educational facilities, health services,

employment opportunities or any other social service programs

in the site areas. Nor did the engineering department seek any

advice or assistance from those persons in CHA who had skills

and training in social service needs and tenant social problems."

Ironically, the CHA engineering staff totally ignored the find-

ings of a massive study on tenant social problems and needs

sponsored by the CHA and performed by the Welfare Council of

Metropolitan Chicago—Human Needs in Public Housing.

Though he was aware of the study, the engineer who selected

the sites never bothered to read it.

This complete lack of inquiry or investigation into potential

social problems and available social service resources stands in

stark contrast to the recommendation of Clyde Murray, a CHA

expert witness at trial and principal author of Human Needs in

Public Housing. He testified that had he been responsible for

planning scattered site housing, he would want to comprehen-

sively investigate the availability and adequacy of health, educa-

tional, family counseling, employment and recreational facilities

in the prospective site communities. (Tr. 2599)

and Moderate Income Housing, Report to the National Commission

on Urban Problems (1968); Human Needs in Public Housing, Wel-

fare Council of Metropolitan Chicago (1970); and Freedom of

Choice in Housing: Opportunities and Constraints, National Academy

of Sciences (1972); see discussion infra.

10. Throughout the entire course of site selection by CHA and

subsequent approval of the sites by HUD, no one in the CHA man-

agement department, which purportedly has the most knowledge of

tenant problems and social service needs, was ever consulted by

CHA engineers or HUD personnel. (Tr. 748, 749, 1487)

Despite its complete failure to evaluate the vacant lots it had

selected with regard to available social services or potential

social problems, CHA submitted these vacant lots to HUD for

HUD’s site approval. (P. E. 8, 9, 10) HUD gave approval to

the CHA sites for 1500 units in 1970 without ever addressing

the social needs and problems of low income families who would

live in these units. (P. E. 11, 13)

In 1972, shortly after CHA publicly announced the site loca-

tions, community organizations in the site neighborhoods sought

expert advice about the likely success of the low-income housing

to be constructed under the district court’s order. Consulting with

Dr. Morris Janowitz of the University of Chicago and Dr.

Thomas Gannon, S.J., Chairman of the Department of Sociology

at Loyola University of Chicago, they were advised that the

district court’s order was more likely to foster segregation

than promote integration. Moreover, because of refusal by CHA

and HUD to recognize and treat the social problems and needs

of low income public housing families, the placement of these

families in middle class communities would exacerbate the anti-

social hostilities which characterize much of low income family

public housing today.”*

The advice of Dr. Gannon and Dr. Janowitz was not new.

Numerous studies have pointed out the social problems and

needs of low income families and the relationship of those

problems to effective racial integration. The following quotes

are illustrative of the problem:

A. Human Needs in Public Housing, a study of CHA

public housing commissioned by CHA and performed by

the Welfare Council.

1. “The effects of urban development and urban re-

newal in the late 1950’s and early 1960's created a

change in the type of family characteristic of public

11. Because of its significance to HUD’s duty to affirmatively

develop effective racial integration in housing and to analyze all

relevant racial and socioeconomic data, the text of Dr. Janowitz

and Dr. Gannon’s report is attached to this petition. (A. 26)

housing residents in this as well as in other cities. By

1968 nearly 40 percent of Chicago’s public housing

units were inhabited by families who for the most

part were not self-supporting but rather were receiv-

ing some form of public assistance. Being eligible for

public assistance meant that the majority constituted

the lowest part of the income scale in Chicago, and

it was hardly surprising to find a large proportion of

broken families without wage earners, or families

where primary earner was unemployed or incapaci-

tated. These families were those whose needs [sic]

were unskilled, many were ex-slum dwellers relocated

through preferential urban renewal admission policies,

and they brought to public housing their hatreds and

hostilities of deprivation.” Human Needs in Public

Housing, Welfare Council of Metropolitan Chicago

(1970), Appendix p. 46, Plaintiffs’ Exhibit 39.

2. “One particular aspect of the public housing pro-

gram which has demanded the Welfare Council’s at-

tention from time to time since World War II is the

‘multiproblem’ family. These are people who are so

battered by the cumulative effects of poverty and dis-

crimination that they are in need of special help in

the form of medical, psychological, vocational, home-

making and educational services.” Human Needs in

Public Housing, Appendix p. 46.

3. “As is well known, the proportion of ‘broken

homes’ headed by a woman is extremely high in public

housing. . . . The percent unemployed in the last

column is closely associated with the percent of fe-

male-headed households in the first column as might

be expected—the higher the proportion of female-

headed households, the greater the incidence of un-

employment and vice versa. Actually the pattern of

unemployment among heads of households here is

believed to correlate quite closely with dependency

upon public assistance for support, and can generally

be taken as a measure of the latter, since the family

would need some source of income to qualify for pub-

lic housing, and without an employed head this would

nearly always have to be Public Aid.” Human Needs

in Public Housing, pp. 178, 179.

4. “The outstanding feeling that emerged as related

to features which residents say they like least about

living in public housing developments, is a feeling of

fear. Fear for personal and family safety seems to be

almost universal among CHA residents. . . .” Human

Needs In Public Housing, p. 17.

5. “The survey leads to an overriding conclusion that

the existing level of services to low-income people is

substantially inadequate.” Human Needs In Public

Housing Foreword, p. i.

6. “A better coordination of existing agency services

at each site is essential. CHA should take the lead

with the agencies in developing multi-service delivery

systems for all residents. In addition, particular atten-

tion should be given to certain groups of residents.

The National League of Cities rightly points out that

more emphasis should be placed on the needs of the

large family, the fatherless family and the very low-

income family, and on the need for adequate programs

of guidance, counseling and other supportive services

for the multi-problem family in public housing.” Hu-

man Needs In Public Housing, p. 31.

7. “The Chicago Housing Authority, like many

others in larger urban centers is faced with the reality

that the increasing social service burdens of large con-

centrations of multi-problem families in public housing

can no longer be totally borne by the established

health and welfare agencies of the general community.

“The social service role of the Chicago Housing

Authority is of major concern today. There had been

little emphasis in this area until the social problems

of public housing families had multiplied to the criti-

cal level which is evident today. Now, as public hous-

ing locally and to some degree nationally contains an

overwhelming percentage of so-called ‘multi-problem’

families, the element of resident services in policy as

well as in practice is being emphasized:

“One of the most important lessons learned through

public housing experience over the past 25 years is

that good housing, by itself, will not enable families

er te ee epee rey - 2 ee ~~

to solve all of their economic and social difficulties.

Among the low-income families served by the public

housing program, there is a range of social service

needs.” Human Needs In Public Housing, Appen-

dix, p. 47.

B. Statement by Anthony Downs before the Senate Select

Committee on Equal Education Opportunity, 91st Cong.,

2nd Sess., p. 2966. (Federal defendants’ Exhibit No. 10 in

Support of Motion to Dismiss)

1. “There is overwhelming statistical evidence that

crime rates, delinquency rates, and relatively violent

and noisy patterns of public comportment are much

more prevalent among low-income households in the

U.S. than among middle-income families.” p. 2971

Downs properly notes that problems of crime, violence

and other anti-social behavior are related to socio-economic

background and not race or ethnic background.

2. “In thinking of many whites, ethnic characteristics

are often confused with socio-economic status be-

cause such a high proportion of blacks, Puerto Ricans

and Mexican Americans live in low-income house-

holds. Hence many whites wrongly perceive members

of these minority groups as inherently possessed of

certain characteristics typical of many low-income

households but regarded as highly undesirable by most

middle-income households of whatever background. I

am referring to high crime rates, high juvenile delin-

quency rates, high rates of illegitimate birth and pre-

marital sexual activity, use of certain speech patterns

and behavior patterns repugnant to many middle-

class parents, and a tendency to be most violent and

threatening in interpersonal relations. These essentially

‘lower-class’ traits are not in any way necessarily as-

sociated with race or ethnic background.” p. 2968

C. Freedom of Choice in Housing: Opportunities and

Constraints, a study commissioned by HUD and performed

by the National Academy of Sciences. (Plaintiffs Exhibit

“{Ojur review of behavioral and social science re-

search supports the view that:

“Interracial living is feasible. Evidence to con-

firm this proposition is both varied and compel-

ling. On the other hand, the feasibility of resi-

dential mixing of different economic levels is

uncertain. Our present knowledge in this area is

limited. _

“Consequently, simultaneous efforts to achieve

racial and economic mixing may work at cross

purposes.”

Freedom of Choice in Housing,

p. 6 (emphasis added)

2. “[S]imultaneous efforts to reduce racial segrega-

tion and class stratification may in fact be counter-

productive.”

Freedom of Choice in Housing,

p. 33

3. “Policies designed to achieve racially mixed neigh-

borhoods and housing should aim at providing the

physical and social environment for constructive con-

tact conditions for all groups.”

Freedom of Choice in Housing, p. 59

Given this massive data’* on the social problems and needs

of low-income families and the documented failure of HUD

and CHA to address those needs, it is not surprising that com-

munity organizations in the site areas have expressed concern

about the district court’s order in Gautreaux. These organizations

and numerous individuals filed suit in 1972 against HUD and

CHA asking that HUD be required to develop a coordinated

plan for effective residential integration. Such a plan would in-

clude:

1. A full inventory of the socio-economic, educa-

tional characteristics of the potential residents and the

12. For a historical analysis of the social problems of low in-

come public housing families see Friedman, Public Housing and the

Poor: An Overview, 54 Calif. L. Rev. 642, 652-655 (1966). See

also More than Shelter: Social Needs in Low and Moderate Income

Housing, A Renort to the National Commission on Urban Problems

(1968), pp. 30-31 and 64-66.

medical, welfare and recreational needs of potential resi-

dents.

2. An inventory of community resources, specifying such

facilities as schools, day-care centers, community centers,

religious institutions, parks and playgrounds and full and

part-time employment opportunities.

3. An analysis of the adequacy of personnel resources

available in the site communities.

4. An examination of the organization and administra-

tive procedures used by the Chicago Housing Authority.

5. An examination of alternative strategies such as better

job opportunities, income supplements, and rebuilding of

central city.

6. Mechanisms such as metropolitan planning.

(Tr. 417-423, 1130, 1131, 2599)

The legal obligation plaintiffs sought to enforce against HUD

has two bases. First, as part of HUD’s affirmative duty to pro-

mote “the development of well planned integrated, residen-

tial communities”* the plaintiffs asked that the agency develop

an affirmative reviewable record of its plans to integrate hous-

ing and to include within that record all “relevant racial and

socioeconomic information” Shannon v. HUD, 436 F. 2d

809, 821 (3rd Cir. 1970).

Related to this duty to consider all relevant socioeconomic

data were duties imposed by the National Environmental Policy

Act, 42 U.S.C. § 4321 et seq. Included in the duties imposed by

§ 102 of NEPA were:

1. The duty to “utilize a systematic interdisciplinary ap-

proach which will insure the integrated use of the natural

and social sciences.” (§ 102(2)(A));

2. The duty to prepare an environmental impact state-

ment on proposed actions “significantly affecting the human

environment” (§ 102(2)(C)); and

13. 42 U.S.C. § 1441, 42 U. S. C. § 3608, Shannon v. HUD,

436 F. 2d 809, 816 (3rd Cir. 1970), Otero v. New York Housing

Authority, 484 F. 2d 1122, 1134 (2nd Cir. 1973).

3. The duty to study, develop and describe alternative

courses of action to accomplish the goals sought to be

achieved (§ 102(2)(D)).

The testimony at the trial simply reflected and reaffirmed

the sorry historical trend in public housing populations, both

nationally and in Chicago. Tenant families in the Chicago

Housing Authority are increasingly characterized by broken,

female-headed families on welfare and without employment.

Dr. Gannon testified that CHA statistical data disclosed that

71% of CHA families are broken and 53% are receiving wel-

fare assistance. (Tr. 358, 359) Gustave Master, a CHA witness

testified that 95% of broken families are headed by females.

(Tr. 739) Both Dr. Gannon and Mr. Clyde Murray" testified

that a close relationship exists between broken homes, welfare

assistance, unemployment and female headed families. (Tr.

2660, 2661)

This increase in families with broken homes, unemployed

female heads and on welfare is closely related to the growth of

“multi-problem” families in CHA. Families with these character-

istics were much more likely to become “multi-problem” fami-

lies. (Tr. 2574, 2580)

If these families do not receive well planned comprehensive

social services such as health, education, employment, youth

and family counseling and recreational opportunities, they are

likely to engage in anti-social acts such as personal violence and

property destruction. (Tr. 2568, 2569, 2571, 2575, 2580)

In contrast, an analysis of plaintiffs’ communities by character-

istics as shown in official census data showed a much lower

percentage of broken homes and a much lower percentage of

families on welfare. (Plaintiffs’ Exhibits 43, 55 and 56) When

asked to compare the social service needs of families in plain-

tiffs’ communities with the social service needs of the CHA

families, Clyde Murray stated that public housing families

14. Mr. Clyde Murray, the principal researcher and author of

Human Needs in Public Housing was called by CHA as a witness.

would have greater and different social service needs than resi-

dents of the site communities. (Tr. 2750) He also stated that

the social service needs of a group could be predicted by looking

at group characteristics. (Tr. 2681)

Dr. Gannon, Dr. Andrew Greeley’® and Clyde Murray all

agreed that in order to prevent potential problems of violence and

property destruction as a result of public housing families not

receiving comprehensive social services, a study should be done

prior to the construction of the scattered site housing to identify

mechanisms for eliminating or minimizing adverse impacts and to

identify alternative strategies to accomplish the goals of scat-

tered site housing. These alternatives included metropolitan—

as opposed to city only—planning, rebuilding the central city and

special employment, educational and other social services.

Evidence at trial also showed that HUD had approved sites

for 1,500 units in 1970. (P. E. 11, 13) No analysis of the

socioeconomic problems of low-income families and the impact

of such problems on effective integration was ever made.

In defense, HUD tendered a “negative statement” on only

84 of the 1,500 units’® and contended that no environmental

impact statement was required. The responsible HUD officials

made no attempt to read Human Needs in Public Housing,

Freedom of Choice in Housing or any other of the materials

which emphasized the need for comprehensive careful social

planning prior to attempts to integrate low-income housing

into middle-income communities. Instead, they wrote a 4 page

narrative on social impacts in which:

1. HUD said that there would be no strain on neighbor-

hood facilities even though HUD officials admitted that neither

they nor CHA had investigated the adec acy of social services

in the site community.

15. Dr. Andrew Greeley is a prominent sociologist called by

plaintiffs.

16. The “negative statement” was prepared on the eve of trial

more than two years after the 1500 units had been approved by

HUD.

HUD's other reason for dismissing any impact regarding

community services is the small number of the units evalu-

ated—eighty four. Yet HUD ignored the remaining one thou-

sand four hundred and sixteen (1416) units approved by HUD

and ordered by the district court in Gautreaux.

2. HUD said that the “diffuseness” of the sites and tenant

selection policies would prevent adverse social impacts. Yet

the defendants’ own evidence at trial showed that simply reduc-

ing densities will not solve the problems of low-income fam-

ilies; low densities must be accompanied by comprehensive

social services. (Tr. 2599) Moreover the CHA screening pro-

gram has not prevented serious acts of anti-social conduct by

tenants. (Tr. 928, 930)

Further, screening may constitute further discrimination

against families who need public housing but who are rejected

as undesirable. The answer to these problems lies in meeting

the needs of these families; it does not lie in rejecting them from

public housing.’

3. HUD then blithely stated in the negative statement that

Community and Tenant Relations Aides of the CHA will pro-

vide necessary services when scattered site tenants have social

problems. Unfortunately, HUD officials had never read the

Welfare Council study (P. E. 39) which would have informed

them that 84% of CHA tenants never used the Community

and Tenant Relations Service in seeking help for problems.

(P. E. 39, p. 25)

4. HUD continued its narrative in the negative statement by

stating that CHA does not expect families in scattered sites to

be “plagued with the problems that some tenants in existing

large scale projects have.” (Gov. E. 52) Yet HUD never states

what these problems are or what aspects of the scattered site

program will eliminate these problems. Indeed, HUD officials

admitted that the only person they talked to at CHA about

17. See Friedman, op. cit. n. 12, Public Housing and The Poor:

An Overview, 54 Cal. L. Rev. at 666, 667.

social service needs was the CHA legal counsel; they never

talked with any management personnel. (Tr. 1487)

5. Finally, HUD concludes that there are no viable alter-

natives to the program. HUD failed to discuss metropolitan

planning or any of the remedial services found by the Welfare

Council to be so important.

Not once in the negative statement did HUD discuss how

scattered site housing would foster racial understanding and

reduce crime—both stated goals. (Tr. 1478, 1480, 1481, 1483,

1484)

In summary, HUD’s 4 page negative statement that the

scattered site program would have no significant impact on the

environment of the site neighborhoods is vague, conclusory and

unsupported by any investigation or evidence. It is a patent

attempt to avoid serious social problems by pretending the prob-

lems don’t exist.

Ironically, while HUD was piously stating there would be no

problems and that there were no alternatives, all of the parties

in the Gautreaux litigation—including the Black plaintiffs, CHA

and HUD—were acknowledging that a city-wide remedy would

not work and that metropolitan planning for public housing

was necessary.

“The parties are in agreement that the metropolitan area

is a single relevant locality and that a city-only remedy

will not work.

Gautreaux v. CHA, 503 F. 2d 930, 937

(emphasis added)

The Seventh Circuit in the most recent substantive Gautreaux

- Opinion is now saying what plaintiffs’ experts have been saying

all along:

“Any remedial plan, to be effective, must be on a subur-

ban or metropolitan erea basis.”

503 F. 2d at 937'* (emphasis added)

18. As discussed above, it is important to emphasize a funda-

mental distinction between the constitutional remedy for racial

HUD now says that though it advocates metropolitan area-

wide planning for public housing, it doesn’t want metropolitan

planning to be ordered by the court.'? HUD claims that the

Gautreaux metropolitan order has a “chilling effect” on its other

housing programs in the suburbs. Yet HUD itself refuses to

engage in voluntary planning. HUD has yet to submit one page

of analysis as to how HUD’s housing programs in the Chicago

metropolitan area can be utilized to develep balanced inte-

grated communities.

The Chicago community organizations are thus faced with

the following quandary. Plaintiffs’ experts, HUD, CHA and the

Gautreaux plaintiffs are in agreement that scattered site public

housing will not work in the city. For effective integration to

occur, it must be developed on a metropolitan basis. Without

metropolitan development the white areas of the city will likely

undergo a period of racial transition and then become resegre-

gated. Yet the Seventh Circuit’s metropolitan order in Gau-

treaux will likely be invalidated because the relief—desegre-

gation—exceeds the scope of the constitutional violation. Milli-

ken Vv. Bradley, 418 U. S. 717 (1974); Swann v. Board of

Education, 402 U. S. 1 (1971). The likely consequence is

that a city-only scattered site program will be implemented

without any consideration of HUD’s affirmative statutory duty

to insure a balanced integrated community. Chicago will

become further segregated.

The testimony at trial below reflected the sad knowledge

found nationally and locally in studies by the National Academy

of Science for HUD, by a report to the National Commission on

Urban Problems and by the Welfare Council of Metropolitan

segregation which is desegregation and HUD’s statutory duty to

develop stable, balanced integrated communities. While the Seventh

Circuit may have gone too far in ordering a metropolitan plan as a

remedy for segregation (Milliken v. Bradley, 418 U.S. 717 (1974)),

consideration of a metropolitan plan is absolutely essential for

a balanced integrated community.

19. Brief for the Petitioner in Hills v. Gautreaux, No. 74-1047

in this Court at p. 39 n. 32.

Chicago in a CHA sponsored study. The problems and needs of

public housing families go beyond bricks and mortar. For public

housing families to be integrated into the mainstream of Ameri-

can life, the architects of public housing programs must abandon

their historic disregard of social service planning and coordinate

public housing (be it conventional or scattered) into compre-

hensive social programs designed to meet the human needs of

the poor. Sadly, the lack of such coordination and planning in

this case demonstrated that HUD and CHA have not yet learned

the tragic lessons of the past.

The district court below filed a seven page typewritten opinion

on a record covering approximately 5,000 pages of testimony

and voluminous exhibits. In its opinion, the district court stated

that no other cases had dealt with the socioeconomic impact

of movements of low income residents upon a community.”

The district court found that HUD has filed a “negative impact

statement” declaring the housing ordered in Gautreaux would

not have a significant impact on the environment and that the

negative statement was made in good faith. The district court

found that the evidence of potential harm rested primarily on

the testimony of two social science experts** and that this testi-

20. On the contrary, both Shannon v. HUD, 436 F. 2d 809

(3rd Cir. 1970) and Jones v. Lynn, 477 F. 2d 885 (ist Cir. 1973),

dealt with HUD’s responsibility to assess socioeconomic impacts of

low income groups moving into or out of a community. See also

Otero v. New York Housing Authority, 484 F. 2d 1122 (2nd Cir.

1974).

21. The district court ignored the testimony by CHA witness

Clyde Murray and the admission by David Mack of HUD as to

potential problems. Clyde Murray testified that the high percentage

of broken families suffering from unemployment and receiving wel-

fare assistance had a strong need for such social services as health,

education, employment, youth and family counseling and recreational

opportunities. (Tr. 2554) Female-headed families, on welfare, and

unemployed are much more likely to become “multi-problem”

families and need these special services to fit into community life.

(Tr. 2573-2575) If they don’t get these supportive services, they

are likely to cause problems for their neighbors, including acts of

personal violence and property destruction. (Tr. 2567-2569, 2571,

2575, 2580, 3422, 3423, 3427-3429, 3430, 3431) David Mack,

mony was controverted by defendants’ experts. The court ques-

tioned the use of statistics to predict social problems and ques-

tioned the ability of sociologists to predict social problems.

The district court concluded that there was no evidence that

the social characteristics of public housing tenants created

potential social problems. It thus concluded that construction

of the housing units would not significantly affect the environment

and that HUD had not violated § 102(2)(C) of NEPA.

The district court's opinion never made any findings as to

whether HUD had complied with its own regulations or with

Council on Environmental Quality (CEQ) regulations. Nor did

the district court make any findings with regard to HUD’s com-

pliance with the other subsections of § 102, specifically sections

102(2) (A) and 102(2)(D).

Based on this opinion, the district court entered judgment

for the defendants.

On appeal, the Seventh Circuit affirmed. It held:

1. That HUD did not have to consider the comprehensive

environmental impact of the 1500 unit program and was correct

in its decision to consider only 84 units. The key to its decision

the HUD employee who wrote the four-page narrative on social en-

vironmental impact acknowledged that families with broken homes,

lacking in employment and on welfare had a great need for social

services and that such families could cause problems for their neigh-

bors if they did not get adequate services. (Tr. 3427-3431) More-

over, on an offer of proof by the defendants, he was asked the

following question and gave the following answer:

“By Mr. Berman:

Q. Mr. Mack, do you have an opinion as to whether

multi-problem families have a greater possibility or a greater

potential or propensity for creating problems among their

neighbors than non-multi-problem families? (Tr. 3496)

By the Witness:

A. I would have to say I believe that there is that pos-

sibility that they would have a greater potential.” (Tr. 3498)

The district court also ignored the Welfare Council study, Human

Needs in Public Housing. ( Plaintiffs’ Exhibit 39)

was the court’s erroneous assumption that “CHA had not selected

and HUD had not tentatively approved 1500 proposed housi: 2

sites at the time the 84 unit environmental clearance was per-

formed,” 524 F. 2d at 230. However, the record demonstrates

unequivocally that HUD had given approval to sites for all 1500

units by May 1970 over two years before the 84 unit negative

statement was prepared.** A second consideration was the court's

statement that the Council on Environmental Quality “imide-

lines (40 C. F. R. § 1500, et seg.) requiring comprehensive

statements, were advisory only and didn’t need to be followed.

2. That despite CEQ Guidelines which require an impact

statement to be prepared whenever the project is likely to be

highly controversial (40 C. F. R. § 1500.6(a)), “we are not

persuaded that the controversy here is such as to require an

impact statement.” 524 F. 2d at 232.

3. With regard to HUD’s failure to consider the social

problems and needs set forth by eminent sociologists and by

such documents as Human Needs In Public Housing, the court

held that the law “does not require that a specific class of ex-

perts be consulted or that an agency consider all documents

possibly relevant to a given environmental issue.” 524 F. 2d at

232.

4. That HUD did not have to consider metropolitan planning

and the provision of comprehensive social services to alleviate

the problems of low-income tenants because HUD had no author-

ity to develop other alternatives given the Gautreaux order. 524

F. 2d at 232.

5. That consistency with local zoning suggested that prob-

lems would not be severe.

22. Plaintiff exhibits 11 and 13 being HUD’s letters of March 13,

1970 and May 23, 1970 approving sites submitted by CHA.

REASONS FOR GRANTING THE WRIT.

I. The Decision Below Conflicts with Decisions of the Supreme

Court and Decisions of Other Circuit Courts of Appeal in

That the Seventh Circuit Allowed HUD to Proceed with the

Project Without Considering the Relevant Socio-Economic

Data.

The Seventh Circuit upheld HUD’s decision not to prepare a

comprehensive analysis of the social impact of social problems

and needs in low income family housing on the statutory goal

of integration because the law “does not require that a specific

class of experts be consulted or that an agency consider all doc-

uments possibly relevant to a given issue.” 524 F. 2d at 232.

However, the law is clear that where an administrative deci-

sion is made without consideration of all relevant factors it must

be set aside as arbitrary and capricious. 5 U. S. C. § 706(2) (A);

Scenic Hudson Preservation Conference v. F. P. C., 354 F. 2d

608, 620 (2nd Cir. 1965); Hanly v. Mitchell, 460 F. 2d 640,

648 (2nd Cir. 1972); Shannon v. HUD, 436 F. 2d 809, 819

(3rd Cir. 1970); Cf. Citizens to Preserve Overton Park v. Volpe,

401 U. S. 402, 416 (1971).

Shannon v. HUD, supra, is the closest case in point and is

in direct conflict with the decision of the Seventh Circuit below.

There homeowners and businessmen in Philadelphia sued to

prevent a low income HUD financed housing project from being

constructed in a neighborhood on grounds that the project’s

prospective low income black tenants would destroy chances for

a stable, racially balanced environment. HUD defended its site

selection for a low income housing project on grounds similar

to those raised below. HUD argued that it had complied with

all zoning requirements.

Rejecting HUD’s facile reliance on zoning compliance, the

Third Circuit enjoined further construction of the project, stating:

“When an administrative decision is made without con-

sideration of relevant factors it must be set aside.”

436 F. 2d at 819

“We hold however that the "Agency must utilize some in-

Stitutionalized method whereby, in considering site selec-

tion, it has before it the relevant racial socioeconomic in-

formation necessary for compliance with its duties under

the 1964 and 1968 Civil Rights Acts.”

436 F. 2d at 821 (emphasis added)

This need to carefully consider socioeconomic and racial data

in making housing decisions has been repeatedly acknowledged

by the Second Circuit. In Otero v. New York City Housing

Authority, 484 F. 2d 1122 (2nd Cir. 1973), the court upheld

the right of housing officials to discriminate against minorities

in order to promote balanced integrated residential patterns.

Finally, the recent decision in Trinity Episcopal Church v.

Romney, 523 F. 2d 88 (2nd Cir. 1975) offers enlightenment

on the use of NEPA to resolve dilemmas between the conflicting

goals of stable integrated residential patterns and providing low

income housing. The Second Circuit required HUD to investi-

gate a variety of housing alternatives with the goal of maintaining

an integrated community. The court required the investigation

of these alternatives to include means to minimize the reprehen-

sible conditions and dangers of crime, drugs and vandalism.

Nor can HUD avoid these obligations by claiming that the

court decisions in Gautreaux have prevented it from analyzing

any alternatives than those ordered by the court. The original

Gautreaux decree has been modified before—most recently in

its extension to the metropolitan area. HUD can and must under

NEPA discuss alternatives that are not within its power. While

HUD may not have the requisite authority to implement such

alternatives, such action could be taken by the courts, the Con-

gress or the President.

As the District of Columbia Circuit said in rejecting a similar

claim that an agency could not analyze alternatives outside its

statutory power:

“The impact statement is not only for the exposition of

the thinking of the agency, but also for the guidance of

these ultimate decision-makers, and must provide them with

the environmental effects of both the proposal and the

alternatives, for their consideration along with the various

other elements of the public interest.”

National Resources Defense Council

v. Morton, 458 F. 2d 827, at 835

(D. C. Cir. 1972)

II. The Decision Below Conflicts with Decisions of This

Court and Other Circuits Regarding the Deference to Be

Accorded the Guidelines Promulgated by the Council on

Environmental Quality.

In two key instances below the Seventh Circuit chose to ignore

guidelines published by the Council on Environmental Quality.

First it ignored the CEQ guideline that encourages agencies to

engage in comprehensive planning of related projects.

40 C. F. R. § 1500.6(a) states:

“The statutory clause ‘major Federal actions significantly

affecting the quality of the human environment’ is to be

construed by agencies with a view to the overall, cumula-

tive impact of the action proposed, related Federal actions

and projects in the area, and further actions contemplated

. In considering what constitutes major action sig-

nificantly affecting the environment, agencies should bear

in mind that the effect of many Federal decisions about

a project or complex of projects can be individually limited

but cumulatively considerable . . .”

The Seventh Circuit chose to ignore this directive in allow-

ing HUD to analyze only the first 84 units without analyzing

the sites for the remaining 1416 units for which sites had been

approved.”

23. In contrast the District of Columbia Circuit has repeatedly

required programmatic as well as individual project analysis. See

Sierra Club v. Morton, 514 F. 2d 856 (D. C. Cir. 1975); Scientists

Institute for Public Info. v. AEC, 481 F. 2d 1079 (D. C. Cir.

1973).

Second, 40 C. F. R. § 1500.6(a) states:

“Proposed major actions, the environmental impact of

which is to be highly controversial, should be covered in

all cases.” (emphasis added)

Despite testimony by leading sociologists as to the hazards to

effective integration caused by the Gautreaux plan, the Seventh

Circuit said “[W]Je are not persuaded here that the controversy

is such as to require an impact statement.” 524 F. 2d at 232

The Seventh Circuit’s refusal to pay deference to the statutory

construction of the very agency with statutory responsibility for

reviewing NEPA compliance is contrary to numerous decisions

of this Court and other circuit courts. See Warm Springs Task

Force v. Gribble, 417 U. S. 1301 (1974), (opinion by Mr.

Justice Douglas as Circuit Justice); Udall v. Tallman, 380 UV. S.

1, 16 (1965); Sierra Club v. Morton, 514 F. 2d 856, 873 n. 24

(D. C. Cir. 1975). These cases hold that courts should pay great

deference to the statutory construction given a statute by the

agency charged with its administration. The Court below twice

chose to ignore the Council on Environmental Quality’s Guide-

lines without offering any basis for rejecting the agency’s con-

struction of the statute.

III. The Decision Below Fails to Recognize an Important Dis-

tinction Between the Proper Role of the Courts in Remedy-

ing Unconstitutional Segregation and the Affirmative

Statutory Responsibility of HUD to Promote Stable Inte-

grated Communities.

Ever since the first Gautreaux order** which imposed a com-

plex remedial formula without hearings and without benefit of

input by experts in the housing field, the housing segregation

decisions of the Seventh Circuit have been characterized by a

failure to understand the respective roles of agency and court

in remedying constitutional violations. As this Court has re-

peatedly held, the constitutional scope of a federal court's reme-

24. 304 F. Supp. 736 (N. D. Ill. 1969).

dial power to correct a constitutional violation is limited by the

extent of the violation. Swann v. Board of Education, 402 VU. S.

1, 16 (1971); Milliken v. Bradley, 418 U. S. 717 (1974).

But, as the Gautreaux plaintiffs and the Seventh Circuit be-

gan to realize that the original Gautreaux order would actually

accelerate the resegregation of the City of Chicago, the court

grasped for a method to impose its concepts of integration on

the Chicago metropolitan area. The Seventh Circuit set about

to establish a basis for metropolitan liability for racial segrega-

tion in order to justify a metropolitan order to integrate.

The sole basis for a finding of metropolitan segregation in any

of the Seventh Circuit’s opinions is found in Clark v. Universal

Builders, 501 F. 2d 324 (7th Cir. 1974). There the court issued

a dictum which it has used repeatedly in its housing segregation

decisions—particularly in the Gautreaux metropolitan remedy

decision and in the Arlington Heights decision. The court said:

“Nor do we think it beyond the strictures of judicial notice

to observe there exists in Chicago and its environs a high

degree of racial residential segregation.”

501 F. 2d at 334, 335 (emphasis added)

This single sentence has become the sole empirical basis for

ordering metropolitan relief in Gautreaux and for finding an

affirmative duty to accept low income housing in Arlington

Heights.

Given the flimsy empirical basis for its metropolitan housing

integration decisions and the constitutional limitations announced

by Swann and Milliken on judicial relief to remedy constitutional

wrongs, it is obvious that the Seventh Circuit has overreached

its authority. However, the Seventh Circuit’s error presents this

Court with a major dilemma. The Seventh Circuit, the Gautreaux

plaintiffs, HUD, CHA and the experts for the petitioner home-

owner's associations all agree that implementation of the Chi-

cago-only plan will accelerate the racial segregation of the city.

Fortunately, the answer to this dilemma lies in HUD’s statu-

tory responsibility to promote integrated housing. 42 U. S. C.

§ 1441; Shannon v. HUD, 436 F. 2d 809 (3rd Cir. 1970).

In its Petition for Certiorari in Hills v. Gautreaux, HUD has

argued that the Gautreaux metropolitan order is impeding “prog-

ress toward the goal of integrated housing” and has a “chilling

effect” on new housing programs.** Yet never once has HUD set

forth any statement of how it will promote integrated housing

patterns in Chicago. It would be a tragedy if this Court allowed

HUD to hide its failure to meet its affirmative statutory duty to

integrate behind the Seventh Circuit's constitutional overreaching

in Gautreaux. Milliken should not be an escape-hatch for HUD

to stand idly by, wringing its hands, as Chicago becomes a totally

segregated community. HUD should be required to develop a

comprehensive plan for integrating the Chicago metropolitan

area. In developing this plan, HUD should be required to solicit

and analyze all relevant socioeconomic and racial data.

Without such relief, the plaintiffs in Gautreaux and the Seventh

Circuit can relish the Pyrrhic victory of momentary desegrega-

tion followed by lockstep resegregation. Petitioners here, who

desire to remain in stable residential communities in Chicago,

will become even more cynical about the ability of government

to accommodate their legitimate interests in a pluralistic society.

CONCLUSION.

For the foregoing reasons, the Petition for a Writ of Certiorari

should be granted. |

Respectfully submitted,

JOSEPH V. KARAGANIS,

SANFORD R. GAIL,

KARAGANIS & GAIL LTD.,

180 North LaSalle Street,

Chicago, Illinois 60601,

Counsel for Petitioners.

January 1976.

25. HUD’s petition in 74-1047, p. 9.

_—

APPENDIX.

UNITED STATES CODE, TITLE 42.

§ 1441. Congressional Declaration of National Housing Policy.

The Congress declares that the general welfare and security of

the Nation and the health and living standards of its people re-

quire housing production and related community development

sufficient to remedy the serious housing shortage, the elimination

of substandard and other inadequate housing through the clear-

ance of slums and blighted areas, and the realization as soon as

feasible of the goal of a decent home and a suitable living en-

vironment for every American family, thus contributing to the

development and redevelopment of communities and to the ad-

vancement of the growth, wealth, and security of the Nation.

The Congress further declares that such production is necessary

to enable the housing industry to make its full contribution

toward an economy of maximum employment, production, and

purchasing power. The policy to be followed in attaining the

national housing objective established shall be: (1) private

enterprise shall be encouraged to serve as large a part of the

total need as it can; (2) governmental assistance shall be uti-

lized where feasible to enable private enterprise to serve more

of the total need; (3) appropriate k al public bodies shall be

_« encouraged and assisted to undertake positive programs of en-

~ couraging and assisting the development of well-planned, in-

tegrated residential neighborhoods, the development and re-

development of communities, and the production, at lower

costs, of housing of sound standards of design, construction,

livability, and size for adequate family life; (4) governmental

assistance to eliminate substandard and other inadequate housing

through the clearance of slums and blighted areas, to facilitate

community development and redevelopment, and to provide

adequate housing for urban and rural non-farm families with

incomes so low that they are not being decently housed in new

or existing housing shall be extended to those localities which

estimate their own needs and demonstrate that these needs are

not being met through reliance solely upon private enterprise,

and without such aid; and (5) governmental assistance for de-

cent, safe, and sanitary farm dwellings and related facilities

shall be extended where the farm owner demonstrates that he

lacks sufficient resources to provide such housing on his own

account and is unable to secure necessary credit for such hous-

ing from other sources on terms and conditions which he

could reasonably be expected to fulfill. The Department of

Housing and Urban Development, and any other departments

or agencies of the Federal Government having powers, func-

tions, or duties with respect to housing, shall exercise their

powers, functions, and duties under this or any other law, con-

sistently with the national housing policy declared by this Act

and in such manner as will facilitate sustained progress in at-

taining the national housing objective hereby established, and

in such manner as will encourage and assist (1) the production

of housing of sound standards of design, construction, livability,

and size for adequate family life; (2) the reduction of the

costs of housing without sacrifice of such sound standards; (3)

the use of new designs, materials, techniques, and methods in

residential construction, the use of standardized dimensions

and methods of assembly of home-building materials and equip-

ment, and the increase of efficiency in residential construction

and maintenance; (4) the development of well-planned, in-

tegrated, residential neighborhoods and the development and

redevelopment of communities; and (5) the stabilization of the

housing industry at a high annual volume of residential con-

struction.

UNITED STATES CODE, TITLE 42.

§ 3608. Administration—Authority and Responsibility.

(a) The authority and responsibility for administering this

Act shall be in the Secretary of Housing and Urban Develop-

ment.

Delegation of Authority; Appointment of Hearing Examiners;

Location of Conciliation Meetings; Administrative Review.

(b) The Secretary may delegate any of his functions, duties,

and power to employees of the Department of Housing and

Urban Development or to boards of such employees, including

functions, duties, and powers with respect to investigating, con-

ciliating, hearing, determining, ordering, certifying, reporting,

or otherwise acting as to any work, business, or matter under

this subchapter. The persons to whom such delegations are

made with respect to hearing functions, duties, and powers shall

be appointed and shall serve in the Department of Housing and

Urban Development in compliance with sections 3105, 3344,

$362, and 7521 of Title 5. Insofar as possible, conciliation

meetings shall be held in the cities or other localities where the

discriminatory housing practices allegedly occurred. The Secre-

tary shall by rule prescribe such rights of appeal from the

decisions of his hearing examiners to other hearing examiners

or to other officers in the Department, to boards of officers or

to himself, as shall be appropriate and in accordance with law.

Cooperation of Secretary and Executive Departments and Agencies

in Administration of Housing and Urban Development Programs

and Activities to Further Fair Housing Purposes.

their programs and activities relating to housing and urban de-

velopment in a manner affirmatively to further the purposes of

this subchapter and shall cooperate with the Secretary to further

such purposes.

Functions of Secretary.

(d) The Secretary of Housing and Urban Development

shall—

(1) make studies with respect to the nature and extent

of discriminatory housing practices in representative com-

munities, urban, suburban, and rural, throughout the

United States;

(2) publish and disseminate reports, recommendations,

and information derived from such studies;

(3) cooperate with and render technical assistance to

Federal, State, local, and other public or private agencies,

organizations, and institutions which are formulating or

carrying on programs to prevent or eliminate discrimina-

tory housing practices;

(4) cooperate with and render such technical and

other assistance to the Community Relations Service as

may be appropriate to further its activities in preventing

or eliminating discriminatory housing practices; and

(5) administer the programs and activities relating to

housing and urban development in a manner affirmatively

to further the policies of this subchapter.

UNITED STATES CODE, TITLE 42.

§ 4331. Congressional Declaration of National Environmental

Policy.

(a) The Congress, recognizing the profound impact of man’s

activity on the interrelations of all components of the natural

environment, particularly the profound influences of population

growth, high-density urbanization, industrial expansion, resource

exploitation, and new and expanding technological advances

and recognizing further the critical importance of restoring and

maintaining environmental quality to the overall welfare and

development of man, declares that it is the continuing policy

Some

of the Federal Government, in cooperation with State and local

governments, and other concerned public and private organiza-

tions, to use all practicable means and measures, including

financial and technical assistance, in a manner calculated to

foster and promote the general welfare, to create and maintain

conditions under which man and nature can exist in productive

harmony, and fulfill the social, economic, and other require-

ments of present and future generations of Americans.

(b) In order to carry out the policy set forth in this chapter,

it is the continuing responsibility of the Federal Government

to use all acticable means, consistent with other essential con-

siderations of national policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end that the

Nation may—

(1) fulfill the responsibilities of each generation as

trustee of the environment for succeeding generatiuns;

(2) assure for all Americans safe, healthful, productive,

and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the

environment without degradation, risk to health or safety,

or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural

aspects of our national heritage, and maintain, wherever

possible, an environment which supports diversity and

variety of individual choice;

(5) achieve a balance between population and resource

use which will permit high standards of living and a wide

sharing of life’s amenities; and

(6) enhance the quality of renewable resources and ap-

proach the maximum attainable recycling of depletable re-

sources.

healthful environment and that each person has a responsibility

to contribute to the preservation and enhancement of the en-

vironment.

UNITED STATES CODE, TITLE 42.

§ 4332. Cooperation of Agencies; Reports; Availability of In-

formation; Recommendations; International and

National Coordination of Efforts.

The Congress authorizes and directs that, to the fullest extent

possible: (1) the policies, regulations, and public laws of the

United States shall be interpreted and administered in accord-

ance with the policies set forth in this chapter, and (2) all agen-

cies of the Federal Government shall—

(A) utilize a systematic, interdisciplinary approach

which will insure the integrated use of the natural and

social sciences and the environmental design arts in plan-

ning and in decisionmaking which may have an impact on

man’s environment;

(B) identify and develop methods and procedures, in

consultation with the Council on Environmental Quality

established by subchapter II of this chapter, which will

insure that presently unquantified environmental amenities

and values may be given appropriate consideration in

decisionmaking along with economic and technical con-

siderations;

posals for legislation and other major Federal actions sig-

nificantly affecting the quality of the human environment,

a detailed statement by the responsible official on—

(i) the environmental impact of the proposed ac-

tion,

(ii) any adverse environmental effects which can-

not be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term productivity, and

— aw”

(v) any irreversible and irretrievable commitments

of resources which would be involved in the proposed

action should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the comments

of any Federal agency which has jurisdiction by law or spe-

cial expertise with respect to any environmental impact in-

volved. Copies of such statement and the comments and

views of the appropriate Federal, State, and local agencies,

which are authorized to develop and enforce environmental

standards, shall be made available to the President, the

Council on Environmental Quality and to the public as

provided by section 552 of Title 5, and shall accompany the

proposal through the existing agency review processes;

(D) study, develop, and describe appropriate alterna-

tives to recommended courses of action in any proposal

which involves unresolved conflicts concerning alternative

uses of available resources;

(E) recognize the worldwide and long-range character

of environmental problems and, where consistent with the

foreign policy of the United States, lend appropriate support

to initiatives, resolutions, and programs designed to max-

imize international cooperation in anticipating and >re-

venting a decline in the quality of mankind’s world envi-

ronment;

(F) make available to States, counties, municipalities,

institutions, and individuals, advice and information useful

in restoring, maintaining, and enhancing the quality of the

environment;

(G) initiate and utilize ecological information in the

planning and development of resource-oriented projects;

and

(H) assist the Council on Environmental Quality estab-

lished by subchapter II of this chapter.

UNITED STATES DistrRicT Court,

N. D. Illinois, E. D.

Nov. 21, 1973.

INUCLEUS OF CHICAGO HOMEOWNERS ASSOCIATION, et al.,

Plaintiffs,

vs.

JaMEs T. Lynn, Secretary of the United States Department of

Housing and Urban Development, et al.,

Defendants.

No. 72 C 1197.

* * * * *

MEMORANDUM OF DECISION.

JuLius J. HOFFMAN, Senior District Judge.

This suit arises out of court ordered construction of federally

financed housing in Chicago.” The plaintiffs are a coalition of

local community organizations and individuals within the city

of Chicago which have incorporated into the Nucleus of Chi-

cago Homeowners Association. The defendants are the Depart-

ment of Housing and Urban Development, its Secretary, the

Chicago Housing Authority, its Commissioners and Executive

Director. The plaintiffs assert that the defendants, by failing to

file an environmental impact statement in conection with pos-

sible environmental effects of the proposed housing projects,

have violated the National Environmental Policy Act of 1969,

Title 42, United States Code, Section 4332. The plaintiffs

maintain that the proposed construction of public housing will

significantly affect the environment, and consequently, the

defendants are required to file an environmental impact state-

1. See Gautreaux vy. Chicago Housing Authority, 304 F. Supp.

736 (N. D. Ill. 1969) and Gautreaux v. Romney, 448 F. 2d 731

(7th Cir. 1971). In accordance with the court orders, the Chicago

Housing Authority submitted development programs which were to

be funded by the Department of Housing and Urban Development.

ment under Section 102(2)(C) of the National Environmental

Policy Act. The defendants contend that the construction of the

housing will not significantly affect the environment.

The question to be decided by this court is whether the pro-

posed building of the housing units would significantly affect the

environment so as to require the defendants to file an environ-

mental impact statement under the provisions of the National

Environmental Policy Act.

The factual issues concern the social characteristics of the

tenants of public housing as compared with the social charac-

teristics of the plaintiffs, and the alleged adverse impact of those

characteristics upon the environment. The plaintiffs assert that

the social characteristics of the prospective tenants of the hous-

ing units will have an adverse impact on the quality of the

environment and seek to enjoin the acquisition of housing sites

pending the filing of an environmental impact statement. In

support of this position, the plaintiffs allege that they are mem-

bers of the “middle cl. and/or working class” which empha-

sizes obedience and respect for lawful authority, has a much

lower propensity toward criminal behavior and acts of physical

violence, and possesses a high regard for the physical and

aesthetic improvement of real and personal property. The plain-

tiffs further allege that, as a “statistical whole,” tenants of public

housing possess a higher propensity toward criminal behavior and

acts of physical violence, a disregard for the physical and aes-

thetic maintenance of real and personal property, and a lower

commitment to hard work. Therefore, so the plaintiffs insist, the

construction of public housing will increase the hazards of crim-

inal acts, physical violence, and aesthetic and economic decline

in the immediate vicinity of the sites. The plaintiffs maintzin

that these factors will have a direct adverse impact upon the

physical safety of the plaintiffs residing in close proximity to

the sites, together with a direct adverse impact upon the

aesthetic and economic quality of their lives.

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Cases construing the National Environmental! Policy Act,

with respect to the requirement of an impact statement, have

concerned the environmental impact of a project by its very

nature; for example, the building of a highway necessarily results

in destruction of natural resources, increased auto emissions, and

noise. There is no case involving the impact of a certain class

of persons and of their social characteristics upon the environ-

ment. This is a case of first impression on that question.

Before a federal agency may take action on a proposal “sig-

nificantly affecting the quality of the human environment,” it

must prepare a statement outlining the “environmental impact

of the proposed action,” Title 42, United States Code, Section

4332(2)(C). Pursuant to Presidential Executive Order 11514,

35 Fed. Reg. 4247 (1970), the Council on Environmental

Quality promulgated guidelines, setting forth circumstances un-

der which the National Environmental Policy Act applies.? The

guidelines clearly state that the Act applies to projects “supported

in whole or in part through Federal contracts, grants, subsidies,

loans, or other forms of funding assistance.” Guidelines, § 5

(a) (ii). The provisions of the National Environmental Policy

Act clearly apply to this case, there being federal funding of

municipal housing.

The defendants contend that they met their responsibilities

under the Act by issuing a “negative impact statement” declar-

ing that the proposed housing would not significantly affect the

environment and therefore did not file a detailed environmental

impact statement. The decision of the defendants having been

made in good faith, their judgment will not be disturbed absent

a clear showing that an impact statement was required by the

facts. See Calvert Cliffs’ Coordinating Committee v. Atomic

Energy Commission, 146 U. S. App. D. C. 33, 449 F. 2d 1109,

1115 (1971).

2. Council on Environmental Quality, “Statements on Proposed

Federal Actions Affecting the Environment, Guidelines,” 36 Fed.

Reg. 7724 (1971).

All

At the outset, it must be noted that although human beings

may be polluters (i.e., may create pollution), they are not them-

selves pollution (i.e., constitute pollution). Environmental im-

pact in the meaning of the Act cannot be reasonably construed

to include a class of persons per se. The provisions of the Act

concern actions which harm or affect the environment. There-

fore, the social and economic characteristics of the potential

occupants of public housing as such are not decisive in deter-

mining whether an impact statement is required under the Act.

The relevant consideration is whether acts or actions resulting

from the social and economic characteristics will affect the

environment.

The evidence presented by the plaintiffs in support of the

position that actions of the tenants of public housing would

significantly affect the environment was substantially expert

testimony by two social scientists. Their expert opinions were

based on data extracted from census reports and statistics on

existing public housing tenants. The experts testified that tenants

of public housing included a high proportion of unemployment,

a high proportion of welfare recipients, and a high proportion

of “multi-problem” families. The expert testimony asserted that

such tenants are likely to engage in anti-social acts of personal

violence and property destruction. The expert testimony further

asserted that the plaintiffs have a lesser potential for anti-social

conduct than the tenants of public housing. The plaintiffs’ case

rests primarily upon this expert testimony on the probable be-

havior of tenants of public housing as contrasted with the prob-

able behavior of the plaintiffs.

The defendants opposed the plaintiffs’ expert witnesses with

experts of their own selection. The defendants’ witnesses con-

tend that the decision that the proposed housing would not have

a significant impact on the environment, by its nature or by the

actions of its prospective tenants, was not arbitrary, capricious,

or unreasonable.

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Prognosticating human behavior and analyzing its conse-

quences on the environment is an especially difficult, if not

impossible, task. See Cross v. Harris, 135 U. S. App. D. C.

259, 418 F. 2d 1095, 1107 (1969). Sociology, a discipline

attempting such prediction, has not yet attained the stage of an

exact science. By its very nature, it relies upon general con-

clusions drawn from average propositions based on sample

data. The different expert conclusions that may be drawn from

the same data is evident not only in the evidence before this

court, but in the literature of the social sciences. As such,

these conclusions are not very persuasive in a court of law.

Predictions of behavior of prospective tenants, whose identity

is not yet known, made by the expert witnesses in this case,

and the data upon which these predictions are based, are uncer-

tain and unconvincing. The conclusions of the expert witnesses

are difficult, if not impossible, to verify and substantiate. The

prospective tenants of public housing are individuals, and their

behavior may not be presumed to be identical, or even similar,

to other individuals in the same social or economic class. The

law regards them as free, legally responsible individuals, not as

sociological factors in deterministic formulae. The sociological

predictions of prospective tenant behavior made by the plain-

tiffs’ expert witnesses and based on statistical averages are not

persuasive. “It is doubtful whether psychological and socio-

logical effects upon neighbors constitute the type of factors that

may be considered in making such a determination since they

do not lend themselves to measurement.” Hanly v. Kleindienst,

471 F. 2d 823, 833 (2d Cir. 1972).

It is the court’s conclusion that the evidence does not support

the proposition that prospective tenants of public housing will

significantly affect the environment. The evidence does not

support the allegation in the complaint of differing socio-eco-

nomic characteristics of the plaintiffs as contrasted with pro-

spective tenants of public housing. There is no evidence to sup-

Al3

port the plaintiffs’ allegations that prospective tenants of public

housing are more likely to engage in anti-social conduct than

present community residents. Indeed, there is little, if any,

evidence of the social characteristics of the individual plaintiffs,

none having testified. Thus the proposed construction of the

housing units will not significantly affect the environment and

the defendants’ action in filing a negative impact statement was

not in violation of the National Environmental Policy Act.

Accordingly, this court finds in favor of the defendants and

against the plaintiffs. Judgment will be entered on the findings

and the case is dismissed on the merits with costs. The fore-

going memorandum of decision constitutes the court's findings

of fact and conclusions of law.

Al4

IN THE UNITED STATES COURT OF APPEALS,

For the Seventh Circuit.

No. 74-1206

NUCLEUS OF CHICAGO HOMEOWNERS ASSOCIATION, et al.,

Plaintiffs-A ppellants,

vs.

JAMES T. LYNN, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 72-1197-C

JuLius J. HOFFMAN, Judge.

Argued October 21, 1974—Decided October 6, 1975.

Before FAIRCHILD, Chief Judge, KILKENNY, Senior Circuit

Judge,* and SPRECHER, Circuit Judge.

FAIRCHILD, Chief Judge. Plaintiff Nucleus of Chicago Home-

owners Association (Nucleus) is an Illinois not-for-profit corpo-

ration organized “to prevent the damage to neighborhood com-

munities which will result if low-rent housing for low-income

families is placed in working-class and middle-class neighbor-

hoods of Chicago.” Along with certain Chicago community

organizations and individual citizens residing proximate to

proposed low income housing sites, Nucleus filed this lawsuit

to enjoin the building of low-income housing units by the Chicago

Housing Authority (CHA) with the assistance of the United

* Senior Circuit Judge John F. Kilkenny of the Ninth Circuit is

sitting by designation.

Al5

States Department of Housing and Urban Development (HUD)

on the ground that HUD officials failed to comply with the

National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. § 4331 et seq. After a full trial on the merits, the district

court entered judgment for the defendants. We affirm.

This case is yet another episode in the continuing dispute

over the location of public housing in the Chicago metropolitan

area. The history of this litigation has been recounted elsewhere.

See Chicago Housing Authority v. Austin, 511 F. 2d 82 (7th

Cir. 1975) cases cited in note 1. For our purposes only a few

salient facts need be noted. As the responsible federal agency,

HUD administers the use of federal funds to construct low rent

housing. See The Low-Rent Housing Act, 42 U.S.C. § 1401

et seq. The CHA is responsible for the construction of low-

income housing in the City of Chicago. In order for CHA to

receive federal funds, HUD must approve the site selection and

construction of low-income housing. In 1969, CHA’s site-selec-

tion and tenant assignment policies were found to be racially

discriminatory. Gautreaux v. Chicago Housing Authority, 296

F. Supp. 907 (N. D. Ill. 1969). To remedy this discrimination

and desegregate the Chicago public housing market, CHA was

ordered to construct the next 700 units of public housing at

scattered sites in predominantly white neighborhoods composed

of less than 15% low-income families. 304 F. Supp. 736 (N. D.

Ill. 1969). This judgment order was later amended to require

the construction of 1500 units of low-income scattered-site hous-

ing. 342 F. Supp. 827 (N. D. Ill. 1972). As an initial step

to comply with this decree, HUD and CHA have instituted an

84-unit scattered-site housing project.’ At argument, we were

informed that 63 units are presently under construction.

1. The project was originally designated ILL. 2-85 and calls for

the construction of housing at 15 different sites with no more than

8 units to be constructed at any one site.

Al6

In 1972 plaintiffs filed this suit seeking to enjoin the con-

struction of this public-housing on the ground that HUD officials

failed to file an environmental impact statement pursuant to

102 of the National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. § 4332, assessing the impact of siting

low-income public housing in middle and working-class neigh-

borhoods. Plaintiffs alleged that low-income housing tenants as

a group when compared to the social class represented by the

individual plaintiffs possess “a higher propensity toward criminal

behavior and acts of physical violence,” “a disregard for physical

and aesthetic maintenance of real and personal property,” and

“a lower commitment to hard work.” Plaintiffs, in contrast, are

alleged to belong to a social class that emphasizes “obedience

and respect for lawful authority” and possesses “a much lower

propensity for criminal behavior” and “a high regard for the

physical and aesthetic improvement of real and personal prop-

erty.” Plaintiffs then charge that the proposed construction of

CHA scattered-site housing “will have a direct adverse impact

upon the physical safety of those plaintiffs residing in close

proximity to the sites, as well as a direct adverse effect upon

the aesthetic and economic quality of their lives” so as to

“significantly affect the quality of the human environment.”

Section 102 of NEPA provides that all “major Federal actions

significantly affecting the quality of the human environment”

must be accompanied by a detailed statement assessing the en-

vironmental impact of the proposed action, 42 U.S.C.

§ 4332(2)(C).*, The Council on Environmental Quality

2. The provisions of NEPA section 102 relevant to this litigation

are:

The Congress authorizes and directs that, to the fullest

extent possible: (1) the policies, regulations, and public laws

of the United States shall be interpreted and administered in

accordance with the policies set forth in this chapter, and (2)

all agencies of the Federal Government shall—

(A) utilize a systematic, interdisciplinary approach which

will insure the integrated use of the natural and social sciences

and the environmental design arts in planning and in decision

making which may have an impact on man’s environment;

(Footnote continued on next page.)

Al7

(CEQ), created pursuant to the Act and charged with the

responsibility to oversee the implementation of NEPA, promul-

gated guidelines directing federal agencies to establish their

own procedures to identify those actions requiring environ-

mental impact statements. 36 Fed. Reg. 7724. See 40 C.F.R.

§ 1500.3(a). In 1971 HUD issued draft regulations, which were

effective immediately pending final approval, for the systematic

environmental evaluation of the department’s programs. In ac-

cordance with these regulations, HUD, beginning in July 1972,

conducted a special environmental clearance for the first 84

sites CHA proposed to comply with the public housing con-

struction ordered in the Gautreaux litigation, and in March,

(B) identify and develop methods and procedures, in con-

sultation with the Council on Environmental Quality established

by subchapter II of this chapter, which will insure that pre-

sently unquantified environmental amenities and values may be

given appropriate consideration in decisionmaking along with

economic and technical considerations;

for legislation and other major Federal actions significantly

affecting the quality of the human environment, a detailed

statement by the responsible officials on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhance-

ment of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.

Prior to making any detailed statement, the responsible Fed-

eral official shall consult with and obtain the comments of any

Federal agency which has jurisdiction by law or special exper-

tise with respect to arly environmental impact involved. Copies

of such statement and the comments and views of the appropri-

ate Federal, State, and local agencies, which are authorized to

develop and enforce environmental standards, shall be made

available to the President, the Council on Environmental Quality

and the public as provided by section 552 of Title 5, and shall

accompany the proposal through the existing agency review

processes;....

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1973 the agency issued a negative statement, or Finding of

Inapplicability, stating that the project posed no significant en-

vironmental impacts. See 38 Fed. Reg. 19186.

At trial plaintiffs challenged the sufficiency of HUD’s en-

vironmental review. Testimony was introduced on the basis of

statistical studies to show that a substantial percentage of CHA

tenants are female-headed multi-problem families. Such welfare

dependent families as a social group, plaintiffs’ experts testified,

are acutely in need of employment opportunities and particularly

dependent upon public programs providing day care facilities,

health care, educational services, and youth and family counsel-

ing. If these special needs went unsatisfied, it was predicted that

CHA tenants would be likely to cause problems for their neigh-

bors, engaging in acts of violence and property destruction.

Arguing that HUD had failed to examine these considerations,

plaintiffs concluded that HUD had breached its duty under

NEPA to weigh the potential environmental traumas associated

with the construction of low-income public housing. -

The district court rejected plaintiffs’ claim. Doubting the

utility of predicting human behavior on the basis of social

statistics, the court held that plaintiffs had failed to prove that

the social characteristics of the prospective CHA tenants will

have a significant impact on the human environment so as to

require HUD to prepare an environmental impact statement.

This appeal followed.

Il.

As an initial matter, we note that the parties agree that

HUD’s determination that an environmental impact statement

need not be filed must stand unless it is arbitrary, capricious, an

abuse of discretion or otherwise not in accordance with law.

First National Bank of Chicago v. Richardson, 484 F. 2d 1369,

1381 (7th Cir. 1973). We have recognized that the national

environmental policy expressed in NEPA is “as broad as the

mind can conceive” and necessarily includes concern for the

Al9

quality of urban life. But we have also realized that the environ-

mental problems of the city “are not as readily identifiable as

clean air and clean water.” Jd. 484 F. 2d at 1377. Given these

uncertainties, the case for relying on an agency’s good faith

judgment is particularly compelling, and we agree that the ar-

bitrary and capricious standard that ordinarily governs review of

administrative matters of this sort is controlling. Hanly v.

Kleindienst, 471 F. 2d 823, 828-30 (2d Cir. 1972), cert.

denied, 412 U. S. 908. But see Minnesota Public Interest Re-

search Group V. Butz, 498 F. 2d 1314, 1320 (8th Cir. 1974)

(en banc).

We dispose first of plaintiffs’ contention that HUD violated

its duty under NEPA to consider the comprehensive environ-

mental impact of the 1500 unit scattered-site housing program

when it confined its environmental analysis to the 84 units the

agency has thus far approved. Reliance is placed on HUD and

CEQ regulations that charge that proposed actions should be

comprehensively evaluated.* These regulations, however, plainly

vest HUD with discretion to determine the scope of agency

3. The relevant HUD regulation provides:

(5) Evaluation of comprehensive activities. Individual actions

that are related either geographically or as logical parts in a

composite of contemplated actions may be more appropriately

evaluated in a single environmental clearance. For example,

several subdivisions may form a large new development. Like-

wise, a comprehensive project may be composed of, or include,

several interrelated activities, e.g., development of a new com-

munity or redevelopment of a center city area. In these cases,

and where feasible, HUD offices should aggregate individual

activities into a larger package and environmental evaluation

shall concentrate on the broad and cumulative impacts of the

larger activity, as well as the project’s specific impact of com-

ponent activities to the extent known.

The comprehensive environmental evaluation will not satisfy

the requirements of this Handbook, however, if it is superficial

or limited to generalities. When all significant issues cannot

be anticipated or adequately treated in connection with the

comprehensive assessment as a whole, environmental clear-

ances of more limited scope will be necessary on subsequent,

individual actions in order to fulfill the requirements of this

Handbook.

(Footnote continued on next page.)

A20

action to be subjected to NEPA scrutiny. While a given action

“may be more appropriately evaluated in a single environmental

clearance,” HUD is not compelled to aggregate several projects

if, in its judgment, evaluation of the aggregate is not feasible.

Indeed, comprehensive evaluation of specific environmental

impact is not possible here. CHA had not selected and HUD

had not tentatively approved 1500 proposed housing sites at the

time the 84 unit environmental clearance was performed. While

no doubt there are environmental considerations common to all

sites that are best considered in the aggregate, the fact that by

design the sites are scattered throughout the neighborhoods of

the city counsels for separate consideration of discrete sites. Cf.

Indian Lookout Alliance v. Volpe, 484 F. 2d 11, 18-19 (8th

Cir. 1973). Thus, the scattered-site housing here differs de-

cidedly from the construction of a group of buildings in a single

location. See, e.g., Jones v. Lynn, 477 F. 2d 885, 891 (1st Cir.

1973). In the latter case, prudence may well dictate considera-

tion of the proposed construction as a single unit. Suffice it to

say, that though we are cognizant of the benefits of comprehen-

sive planning and do not intend to discourage such analysis, we

cannot say that HUD has abused its discretion by choosing to

evaluate the impact of CHA housing as housing sites are pro-

posed and approved.

38 Fed. Reg. 19185.

CEQ guidelines charge that

(a) The statutory clause “major Federal actions significantly

affecting the quality of the human environment” is to be con-

strued by agencies with a view to the overall, cumulative im-

pact of the action proposed, related Federal actions and proj-

ects in the area, and further actions contemplated. . . . In con-

sidering what constitutes major action significantly affecting the

environment, agencies should bear in mind that the effect of

many Federal decisions about a project or complex of projects

can be individually limited but cumulatively considerable. .. .

40 C. F. R. § 1500.6(a).

It has been held that CEQ guidelines are advisory only and do

not have the force of law. Hiram Clarke Civic Club, Inc. v. Lynn,

476 F. 2d 421, 429 (Sth Cir. 1973); Green County Planning Board

v. Federal Power Commission, 455 F. 2d 412, 421 (2d Cir. 1972).

A21

Plaintiffs next argue that HUD’s decision not to file a full-

blown section 103 impact statement was not supported by a

record sufficiently developed for judicial review of that decision.

NEPA does require that an agency affirmatively develop a re-

viewable administration record supportive of a decision not to

file an impact statement. First National Bank of Chicago v.

Richardson, supra, 484 F. 2d at 1381; Scherr v. Volpe, 466

F. 2d 1027, 1032 (7th Cir. 1972). But the content and volume

of such a record depend upon the particular federal action

proposed. A concise statement may be sufficient to support an

agency finding of no significant environmental impact if it is

grounded on supporting evidence. Hanly v. Mitchell, 460 F. 2d

640, 646 (2d Cir. 1972), cert. denied, 409 U. S. 990.

The gravamen of plaintiffs’ complaint is that low-income

public housing tenants as a group statistically exhibit a high

incidence of violence, law violation, and destruction of property

and that HUD failed to consider the adverse impact of these

social characteristics on the neighborhoods CHA has chosen

for the construction of scattered-site housing. To the extent that

this claim can be construed to mean that HUD must consider

the fears of the neighbors of prospective public housing tenants,

we seriously question whether such an impact is cognizable

under NEPA. First National Bank of Chicago v. Richardson,

supra, 484 F. 2d at 1380 n. 13. We agree with the Court of

Appeals for the District of Columbia that: “Concerned persons

might fashion a claim supported by linguistics and etymology,

that there is an impact from people pollution of ‘environment,’

if the term be stretched to its maximum. We think that type of

effect cannot fairly be projected as having been within the con-

templation of Congress.” Maryland-National Cap. PK & PL.

Com’n Vv. U. S. Postal Serv., 487 F. 2d 1029, 1037 (D. C. Cir.

1973).

In any event we need not resolve the question for it is clear

that HUD chose to consider the impact of the scattered-site

housing on the social fabric of the recipient communities. In

A22

this regard HUD’s negative statement relies on several factors

to conclude that the project is not likely to produce adverse en-

vironmental effects. The low-density design of the housing

coupled with the fact that it will be built on vacant lots in com-

pliance with local zoning requirements suggests, for example,

that the increased burden on schools, transportation, fire and

other community services will be at the most incremental.‘

Moreover, under the Gautreaux decree 50 percent of all dwelling

units at a site must be ofiered first to housing applicants who

reside in the surrounding community. Hence, there is little

reason to believe the influx of new CHA tenants will drastically

alter the character of a neighborhood. Finally, CHA’s tenant

selection and eviction policies further diminish the possibility

that prospective CHA tenants will pose a danger to the health,

safety or morals of their neighbors.

Likewise, it is apparent that HUD has considered the project's

impact on the physical environment of the target neighborhoods.

HUD’s negative statement is a 156 page document, consisting

of a 9 page narrative and 146 pages of HUD worksheets, com-

ments from the Northeastern Illinois Planning Commission, and

various exhibits. The statement considers the problems of solid

waste disposal, sewage, air pollution, noise levels, and traffic

congestion. Relying on the fact that the proposed housing is

essentially “infill” of neighborhoods already built up, the state-

ment concludes that the project will have no significant adverse

environmental impact. Thus, in our judgment a satisfactory

basis exists for judicial review of the agency’s decision.

Plaintiffs, nevertheless, argue that the mere existence of a

controversy regarding the impact of scattered-site housing re-

quires preparation of a NEPA § 102 environmental impact state-

ment under HUD and CEQ regulations. But the cited HUD

4. Compliance with local zoning regulations and growth consis-

tent with existing growth patterns strongly suggests that a federal

action is not environmentally significant. Maryland-National Cap.

PK & PL. Com'n vy. U. S. Postal Serv., supra, 487 F. 2d at 1036-37.

ee ee

ta at wom nes

A23

regulations only require that the degree of controversy over the

environmental consequences of a project should be considered in

determining the appropriate environmental clearance procedures

that should be followed. 38 Fed. Reg. 19185. An impact state-

ment is not invariably required. CEQ guidelines state that an

impact statement must be prepared when the environmental im-

pact of a project is “likely to be highly controversial.” 40

C.F.R. § 1500.6(a). But we are not persuaded that the con-

troversy here is such as to require an impact statement.

Finally, plaintiffs contend that HUD’s environmental analysis

was inadequate because HUD failed to use a systematic inter-

disciplinary approach and did not explore alternatives to scat-

tered-site housing as required by sections 102(2)(A) and 102

(2)(D) of NEPA, 42 U. S. C. §§ 4332(2)(A) and (2)(D).

These NEPA duties are obligatory whether or not an impact

statement is to be filed. Environmental Defense Fund, Inc. v.

Corps of Engineers, 492 F. 2d 1123, 1132 (Sth Cir. 1974).

With respect to HUD’s duty to engage in interdisciplinary an-

alysis, plaintiffs specifically assert that the responsible HUD

officials never consulted sociologists or read a CHA sponsored

study on social problems in public housing entitled Human Needs

in Public Housing. NEPA, however, does not require that a

specific class of experts be consulted or that an agency consider

all documents possibly relevant to a given environmental issue.

From the negative statement it is clear that HUD, in good faith,

considered the impact of the project on the social environment of

the site neighborhoods. And, in view of the fact that CHA was

under a court order to construct the housing, we cannot say

that HUD breached its rather “opaque” duty to engage in inter-

disciplinary analysis.

With respect to HUD’s failure to consider alternative courses

of action, plaintiffs’ position is equally unfounded. Plaintiffs

complain that HUD did not consider the feasibility of broad-

scale metropolitan planning and the provision of comprehensive

A24

social services to alleviate the problems of low-income public

housing tenants. But since the scattered-site housing was court

ordered, HUD and CHA have no alternative but to construct

the housing. The only sense in which alternatives can be con-

sidered is in site selection and even here CHA and HUD must

operate within the parameters of the Gautreaux decree. See

Trinity Episcopal School v. Romney, 44 U. S. L. W. 2087

(2d Cir. July 24, 1975). Yet, a recommendation in HUD’s

negative statement indicating that two sites should be dropped

from the project for noncompliance with HUD’s Noise Assess-

ment Guidelines pending further environmental analysis suggests

that HUD and CHA are exercising some selectivity in site selec-

tion. In the context of this case, NEPA requires no more.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

A25

OPINION BY JUDGE FAIRCHILD.

UNITED STATES COURT OF APPEALS,

For the Seventh Circuit,

Chicago, Illinois 60604.

October 6, 1975

Before

Hon. THOMAS E. FAIRCHILD, Chief Judge.

Hon. JOHN F. KILKENNY, Senior Circuit Judge*.

Hon. ROBERT A. SRECHER, Circuit Judge.

) Appeal from the United

States District Court

for the Northern

NUCLEUS OF CHICAGO HOMEOWNERS

ASSOCIATION, ET AL.,

Plaintiffs-A ppellants, District of Illinois,

No. 74-1206 a > Eastern Division.

No. 72 C 1197.

ae Cees Julius J. Hoffman.

J Judge.

This cause came on to be heard on the transcript of the

record from the United States District Court for the Northern

District of Illinois, Eastern Division, and was argued by counsel.

On consideration whereof, it is ordered and adjudged by this

court that the judgment of the said District Court in this cause

appealed from be, and the same is hereby, Affirmed, with costs,

in accordance with the opinion of this Court filed this date.

* Senior Circuit Judge John F. Kilkenny of the Ninth Circuit is

sitting by designation.

A26

THE SOCIAL IMPACT OF SCATTERED SITE PUBLIC

HOUSING.

Thomas M. Gannon, S. J.

Chairman and Professor

Department of Sociology

Loyola University

and

Morris Janowitz

Professor of Sociology

University of Chicago

A27

THE SoOcIAL IMPACT OF SCATTERED SITE PuBLIC HOUSING.

The proposed plan by the Chicago Housing Authority to con-

struct scattered site public housing in various local communities

throughout the city of Chicago is designed to achieve racial in-

tegration. The objective of this statement is, first, to review

existing sociological research in order to assess the social im-

pact of public housing, including scattered site housing, on the

residents of both such housing projects and of the local com-

munities in which they are planned, and second, to indicate

the types of studies and social planning required in order to

take steps to effectively incorporate the residents of these pro-

posed housing units into their local communities.

To this end, the following points will be covered: (a) con-

clusions of available research on the social consequences of

public housing which highlight the failure of public housing;

(b) a review of available research on population movements

in metropolitan areas which highlight the persistence of racial

discrimination and segregation; (c) an examination of the

socioeconomic characteristics of the potential residents of scat-

tered site public housing units and of the residents of the ad-

joining neighborhoods and local communities; and (d) an

indication of the types of studies and social planning required

to produce the desired objectives.

(a) Social consequences of public housing.

In the United States, the development of public housing since

the mid-1930’s has not produced the desired goals, in contrast

to many locations in Western Europe where it has been much

more successful. A variety of research’ points to specific factors

1. Cf. Nicholas J. Demerath, “St. Louis Public Housing Study,”

Journal of Housing, 8 (October, 1962), 472-78; Kenneth B. Clark,

Dark Ghetto (New York: Harper & Row, 1965); William Ledbetter,

“Public Housing: A Social Experiment Seeks Acceptance,” Law and

Contemporary Problems, 32 (Summer, 1967), 490-527; Edward C.

Banfield, The Unheavenly City (Boston: Little Brown & Co., 1968);

A28

related to inadequate social planning which help to explain the

failure of public housing in the United States. These include

excessive reliance on high rise construction, poor utilization of

land, inappropriate physical construction, inadequate educa-

tional, recreational, health and community services, and remote

access to employment opportunities. The result of the policies

of public housing authorities has been to create low income and

racially segregated enclaves on a massive scale. In part, public

housing ghettos are a reflection of public attitudes toward poor

people and members of minority groups. As a consequence,

the approach to public housing in the United States has served

to increase the social and residential segregation of the disad-

vantaged. This result stands in marked contrast to Council

housing in Great Britain, which, because of more careful social

planning, has not resulted in such massive segregated human

enclaves.

More recent investigations of the failure of public housing, like

Rainwater’s and Suttles’ studies on the social fabric of public

housing and low income communities,” tend to place important

emphasis on problems of organization and management. Ceiling

on incomes, the absence of effective mechanisms for tenant

involvement, weak relations with external public and private

groups, rigidities in both local and federal agencies that ad-

minister public housing have all resulted in serious questioning

on the American scene of the very idea of conventional public

Leonard Freedman, Public Housing: The Politics of Poverty (New

York: Holt, Rinehart & Winston, 1969); Alfred Page and Warren

Seyfried, Urban Analysis (Chicago: Aldine, 1970); Human Needs

in Public Housing, Clyde E. Murray, Project Director (Chicago:

Welfare Council of Metropolitan Chicago, 1970); E. D. Huttman,

“The Pathology of Public Housing,” City, 5 (Fall, 1971), 32-34;

Huttman, “Public Housing: The Negative Psychological Effect,”

Address to the Annual Meeting of the American Orthopsychiatric

Association, 1971; Irving Welfeld, “That Housing Problem,” The

Public Interest, No. 27 (Spring, 1972), 78-95.

2. Lee Rainwater, Behind Ghetto Walls, 402-424; Gerald D.

Suttles, The Social Order of the Slum (Chicago: University of Chi-

cago Press, 1968), 121-124.

A29

housing. A variety of new schemes for low income housing have

been offered. In St. Louis, it was thought necessary to dynamite

one major project. In Chicago, smaller projects were sold to

residents, while various schemes of rent supplements are being

pursued on an experimental basis. Federal authorities have in-

dicated that, at least for a two year period, no new public

housing should be constructed.

(b) Population movements in metropolitan areas.

As a form of social planning, the proposal to construct

scattered site public housing is designed to produce racial in-

tegration in housing. This form of planning is essentially based

on the assumption that there will be no more integration among

the residents of scattered site public housing, but that scattered

site housing will introduce racial integration into all white local

communities.

In this connection, the extensive research by sociologists like

Duncan and Duncan, Taeuber and others on the ecology of

population movements and racial change in urban areas makes

a sharp distinction between racial transition in a local com-

munity and racial integration.* Racial transition refers to the

process by which Blacks move in and the community changes

from an all-white community to an all-Black community. Dur-

ing the period of transition, the community statistically appears

to be integrated, but it is only in transition. A racially integrated

community, however, is not defined by numbers, but by the

two-way movement of racial populations, either by sale or

rental of property. Blacks enter a white community and whites

continue to enter the community in some of the residences

formerly occupied by other whites.

3. Cf. Otis Dudley Duncan and Beverly Duncan, The Negro

Population of Chicago: A Study of Residential Succession (Chicago:

University of Chicago Press, 1957); Conrad Taeuber and Irene B.

Taeuber, The Changing Population of the United States (New York:

John Wiley, 1958).

A30

Research has also demonstrated that—consistently since 1890

—in the city of Chicago and other major metropolitan areas of

the North, the bulk of the Black population lives in segregated

communities or in local communities of racial transition. The

basic factors rest in the dynamics of population growth in a

context of profound racial prejudice toward Blacks, reenforced

by a system of discrimination in the sale and management of

real estate.‘ In Chicago, there are at least two areas in which

the criteria of racial integration are generally applicable: the

near south side and the near north side. In these communities,

special factors have produced racial integration: the presence

of stable educational and medical institutions, the middle-class

character of the population, and advantages of location and

cultural resources. Racial integration in these communities

brings with it an important measure of socio-economic cohesion.°®

Numerous communities in the city of Chicago, when faced

with the ecological process of Black population growth and

expansion, have sought to maintain a stable integrated com-

munity and have failed. Moloch® has fully documented the

4. Brian Berry’s series of evaluations for the Chicago Depart-

ment of Housing and Urban Development, funded by the Leadership

Council for Metropolitan Open Communities, documents the increas-

ing racial polarity of Chicago housing in the 1960’s under conditions

of accelerated ghetto expansion. Cf., “Down from the Summit: An

Evaluation of the Activities of the Leadership Council for Metro-

politan Open Communities in Chicago, July, 1968” (September,

1969); “Bunkers at Bay: The Chasm of Duality in Chicago’s Real

Estate Markets” (May, 1971); “The Limits to Leadership in Open-

Housing: Forces Promoting the Maintenance of Dual Housing

Markets in Chicago During 1971” (1972).

5. On statistical grounds, it has been strikingly demonstrated that

if each community in the Chicago metropolitan area had the same

proportion of lower class Blacks as found in particular integrated

communities—e.g., high income areas such as Hyde Park or the

near north side—there would, in effect, be no central city low-

income and Black ghetto. Such an estimate, however, in no way

addresses the complex human and social problems involved in elimi-

nating central city ghettos.

6. Harvey L. Moloch, Managed Integration: Dilemmas of Doing

Good in the City (Berkeley: University of California Press, 1972).

ae et a ee ee ee ne ee

A31

strenuous efforts of a particular south side community (South

Shore) to develop community-based programs in middle-class

areas where integration was more likely. Despite such efforts,

however, communities on the border of the central Black

population have generally undergone racial transition.’

On the basis of available research evidence and past ex-

perience, therefore, there is no basis for asserting that scattered

site housing will produce racial integration in residential areas.

The continued expansion of the Black community along historic

lines implies that scattered site housing will serve only as a

part of the process of racial transition; if anything, it will

probably accelerate the process. This is especially likely when

the bulk of the proposed housing sites exist in working class

communities which are least equipped to participate in racial

integration.

The sheer issue of population numbers involved impressively

demonstrates the limited increase in the number of Blacks

who have recently moved into suburban Chicago. At the end

of 1972 there were still less than 3,000 families living in

integrated suburban communities in the six counties of metro-

politan Chicago. Even though between 1960 and 1970 the

Black suburban population in Cook County increased by 66.6

per cent, Black residents comprise only 3.8 per cent of the total

population in these suburbs. During the same ten-year period,

despite a decrease of 5.1 per cent in the total population of the

city of Chicago, the Black population in the city increased 35.6

per cent. As a consequence, nearly 33 per cent of the total

1970 population in Chicago was Black.® It can be estimated,

however, that if only one-half of this growth in the Biack com-

munity took place in the suburbs, there could be effective racial

integration in the city of Chicago.

7. Cf. Brian Berry, “Fear in the Neighborhoods,” Report for the

Leadership Council of Metropolitan Open Communities, Chicago

(Summer, 1973, forthcoming). .

8. United States Bureau of the Census, Census of Population:

1960 and 1970, General Population Characteristics, Final Report

PC (1)—BIS, Illinois.

A32

scattered site housing.

As an effort in social planning, the case for scattered site

housing can be argued as a device for increasing the supply

of housing for low-income Blacks and for locating Blacks

closer to s urces of employment. Scattered site housing is

assumed to be free of some of the worst and most oppressive

features of massive public housing.

However, there is an absence of adequate research on the

social impact and consequences of scattered site housing. It is

known, of course, that this housing would be administered by

the same set of agencies which have created and must confront

the already existing problems of massive public housing. There-

fore, in assessing the present proposal for scattered site housing,

it is essential to identify the socioeconomic characteristics of

the potential residents of these units and to compare and con-

trast them with the residents of the local areas. Such a proce-

cure would supply information and guidelines that should

enable social planners to assist the new residents to participate

effectively in the life of the local community in which they find

themselves. It is assumed that a representative sample of the

current residents of the Chicago Housing Authority would reside

in proposed scattered site housing; to employ any selective cri-

teria would be very difficult to justify and implement.

Some indication of the magnitude and complexity of imple-

menting the present housing proposal can be inferred from a

comparison of income levels, public assistance rates, and fam-

ily patterns between present CHA residents and the residents

of those areas in which the proposed sites are located. The fol-

lowing observations are based on a preliminary study of 26

of the designated census tracts and the 1971 Annual Statistical

Report published by the Chicago Housing Authority.* The data

from these two sources are presented in Table 1.

9. The sample from which the following inferences are drawn

comes from the Development Program for Project Illinois 2-85 and

2-86. This document lists 120 proposed CHA housing sites scattered

~ mee Me a oe he

en eee ee ee eee

at Pa i OO Ne

+ eo

A33

An examination of these statistics reveals that the median

income for current CHA families and unrelated individuals is,

on the average, $6,645.00 less than the median income of

families and unrelated individuals who reside in the target

areas. Except for the proposed sites in the Near North section

of Chicago, the comparative difference in income is remarkably

similar in all the other separate areas in which housing sites

have been proposed. Thus, for the Southeast census tracts, the

average difference is $7,336.00. In the Near North there is

still an average difference of $2,483.00, while the average dif-

ference in the Far North tracts is $7,746.00 and, in the North-

west, $8,228.00.

A comparison of the number of families and individuals

receiving some kind of financial assistance reveals similar imbal-

ances. Exactly 53 per cent of the families now living in CHA

housing receive public assistance grants, whereas no tract in the

areas sampled in our preliminary study shows more than 1.3

per cent of its residents receiving public assistance. In the pro-

posed sites located in the Southeast, Southwest and Northwest

areas of Chicago, less than .1 per cent of the population receive

public aid. While the Near North rate of .9 per cent and the

Far North rate of .3 per cent indicate that in these two areas

more local residents receive public assistance than do those in

the other proposed areas, the proportion remains dramatically

lower than the rate for CHA residents.

A comparison can also be made of the different family pat-

terns of the two populations. Nearly 71 per cent of the families

with children who are living in CHA housing are incomplete

in 23 different community areas and 74 different census tracts

throughout the city of Chicago; the 120 sites involve the construc-

tion of 741 housing units. It would be both impractical and unneces-

sary to examine each of these tracts in a preliminary study. Con-

sequently, we decided to document only those census tracts which

contain two or more proposed housing sites. Our conclusions, there-

fore, are based on a sample of 26 census tracts (cf. Table 1). It will

be clear from an examination of the attached map of Chicago (cf.

Figure 1) that these tracts are widely scattered throughout the city.

A34

families, that is, only one spouse is present in the household.

Although census and CHA statistics are not directly comparable

on this point, data is available on the number of families

headed by a female who live in the areas scheduled to receive

CHA housing. In none of these areas does the average number

of families headed by females exceed 20 per cent of the total

number of families in the area. Across census tracts, the per-

centage of families headed by females is as follows: In the

Southeast, 9.3 per cent; in the Southwest, 13 per cent; in the

Far North, 11.2 per cent; and in the Northwest, 10.7 per cent.

Only in the Near North tracts does the proportion of families

headed by a female approach 20 per cent. In two specific tracts

which we documented, the percentages were 19.2 and 19.7

per cent, respectively.

Thus, as compared to the residents of the areas in which the

proposed housing will be built, it is clear that the majority of

new residents have been deprived of a stable family life and

have insufficient family income. Despite their personal strength

and initiative, they demonstrate other social characteristics

(ineffective education, high rates of unemployment, a propensity

to violent crime, gang delinquency, vandalism, etc.) associated

with incomplete low income families.

In effect, the residents of the proposed scattered site housing

have suffered prolonged social deprivation which has been reen-

forced by the social segregation and isolation of public housing.

For them both to participate effectively in the life of the com-

munities proposed for scattered site public housing and to be

relieved of their imposed disabilities, careful and effective social

planning is required. The full weight of sociological research

indicates that the influx of residents who have experienced

disabilities because of their social position and residential

experience must inevitably place additional burdens on the

neighborhoods and the communities into which they will be

moving. It would be a rejection of the grim facts of contem-

porary society and the findings of sociological research to deny

ee ee een ee en meta *

a en ec ie ee

A35

that families who are being moved from the massive housing

projects into scattered sites have more educational, welfare,

medical and social problems than the residents in the commu-

nities into which they are being moved. Communities are made

up of human beings; common sense alone would lead one to

assert that the problems of the communities into which they are

moving will increase. Does anyone really believe that move-

ment from one housing site to another solves the underlying

human problems?

These residents will not be moving into affluent middle-class

suburbs. To the contrary, in the proposed communities the

educational, recreational, health and public safety institutions

are already strained. The socioeconomic characteristics of the

potential residents clearly indicate that compensatory resources

are required if these neighborhoods are to maintain their present

levels of educational, recreational, health and welfare effective-

ness. Research into public housing and into the dynamics of the

urban metropolis demonstrates that to be concerned merely

with population distribution and redistribution, to focus pri-

marily on physical housing and to neglect the essential require-

ments of human beings and their families is simply to export

old social problems from one area to another, often to com-

pound them.’®

On a more fundamental level, a neglect of the human needs

in public housing misconceives the goal of racial integration

which the present proposal is designed to achieve. A fundamental

premise of social scientists over the past two decades is that

racial segregation as it is typically imposed in the United States

leads directly to a multiplicity of negative effects not only for

Black America but for the nation at large. But social scientists

have not made the error of contending that, because enforced ra-

cial segregation has negative effects, all racial desegregation will

have positive effects. It requires little imagination to think of hos-

tile conditions attending such programs as public housing, school

10. Cf. Human Needs in Public Housing, pp. 12-14, 226-229.

A36

desegregation, etc., which would limit the benefits of such pro-

grams for both races.

At the heart of the failure of many current efforts at social

planning is a persistent misreading of the theory of intergroup

contact.'' The theory argues that the key to breaking the vicious

circle of racial prejudice and discrimination is not simple con-

tact between the two hostile groups, but social contact under

particular conditions. These conditions include equal status,

common goals, institutional supports, and a non-competitive

atmosphere which is likely to lead to the perception of common

interests and common humanity. The essential qualification at-

tached to the “integration policy model”—or the “contact

theory” as it is sometimes called—is that the above conditions

must be held constant before positive effects can be expected from

intergroup contact. To take one example—namely, equal status

between the two groups—contact theorists have long maintained

that this condition is met by equal dignity and access to re-

sources within the contact situation itself.’* Unless steps are

taken to meet this condition—e.g., by lessening the status dif-

ferences between groups by providing needed compensatory ser-

vices in the community—it is illusory to expect positive results

for integration from a program of scattered site public housing.

A basic weakness, then, in the proposed program is that the

integration policy model has been misconceived: it has been

assumed that positive results would follow, regardless of whether

the crucial prior conditions for optimal contact have been met.

Part of this weakness derives from a confusion between the social

goals of desegregation and integration. Desegregation is achieved

by simply ending segregation and bringing blacks and whites to-

gether; desegregation implies nothing about the quality of interra-

11. For a concise statement of the contact theory and review

of some of the supporting evidence, see Gordon Allport, The Nature

of Prejudice (Cambridge, Mass.: Addison-Wesley, 1954), pp. 250-

267.

12. Cf. Thomas F. Pettigrew, Racially Separate or Together?

(New York: McGraw-Hill, 1971).

—

atl ter MOAN ee see

A37

cial interaction. Integration, on the contrary, involves the condi-

tions for positive intergroup contact, cross-racial acceptance, and

equal dignity and access to resources for both racial groups. Un-

fortunately, what seems to have been done so far in framing the

present proposal appears to rest on a fundamentally erroneous

understanding of the integration policy model and a neglect of

the important distinction between the social goals and desegre-

gation and integration.

(d) Types of studies and social planning required to imple-

ment scattered site housing.

The proposed construction of scattered site housing designed

to increase racial integration in Chicago is clearly an experiment

in social planning. It is hardly sufficient to assert that the phys-

ical structure of scattered site housing is superior to housing

which the public housing agencies have created in the past. In

order to prevent further deprivation to these residents and to

mitigate the attendant tensions and strains in adjoining neigh-

borhoods and communities, the following types of studies are

required.

1. A full inventory of the socio-economic and educational

characteristics as well as social welfare, medical and recreational

needs of these residents.

2. An inventory of the community resources in the areas of

the proposed housing sites. This inventory should include speci-

fication of the facilities and personnel of day care centers, public

and private schools, community centers, religious institutions,

‘arks and playgrounds, plus medical resources and voluntary

associations. The inventory should also include the types of

part-time and full-time employment available, especially for the

younger generation, and the location of such employment oppor-

tunities.

3. An assessment of the adequacy of the personnel resources

in these communities and an estimate of additional requirements

and proposed plans for dealing with required assistance.

A38

In addition to these particular studies, it would be essential

to examine the experiences of the existing scattered site housing

in Chicago and elsewhere. In this connection, special reference

should be placed on the adequacy of the administrative and or-

ganizational procedures of the Chicago Housing Authority for

handling scattered site housing. As already mentioned, the fail-

ure of the last forty years of public housing in the United States

is due, in part, to the fact that the administrative practices of pub-

lic housing groups have not been adequate or responsive to the

needs of the residents. Their performance clearly forces one to

question whether the administration of scattered site housing will

proceed in the same arbitrary fashion and thereby serve to dam-

age the needs both of the residents and the members of adjoin-

ing communities. New forms of administration are needed and

are crucially important. Because of the history of public housing

authority’s failure to respond to the needs of their residents, only

after suitable plans have been developed for managing these

projects should scattered site housing programs be implemented.

Moreover, if effective social planning and the necessary ante-

cedent studies are to succeed, it must be recognized that scattered

site housing is not a device for racial integration, but another

effort to increase the supply of public housing.

THomas M. GANNON, S. J.,

Chairman and Professor,

Department of Sociology,

Loyola University,

and

Morris JANOWITZ,

Professor of Sociology,

University of Chicago.

May 7, 1973.

(Tables omitted.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.