Amicus Brief — Gladstone, Realtors v. Village of Bellwood

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No. 77-1493 SEP 9 ISTE

Iu the Suprewe Court of the W

- ened

OCTOBER TERM, 1978

GLADSTONE REALTORS, ET AL., PETITIONERS

vU.

VILLAGE OF BELLWOOD, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

WADE H. McCREE, JR.,

Solicitor General,

Drew S. Days, III,

Assistant Attorney General,

LAWRENCE G. WALLACE,

Deputy Solicitor General,

HARRIET S. SHAPIRO,

Assistant to the Solicitor General,

WALTER W. BARNETT,

CHARLES PEREYRA-SUAREZ,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Question presented

Interest of the United States

Statement:

A. The statute

B. This litigation

Argument:

Introduction and summary...

Il.

Ill.

Suits by persons such as respondents are

necessary to achieve the purpose of the

Act

The interest alleged by respondents is

substantially identical to that found

sufficient to provide standing in Traf-

SID seieehaceisiiiseninasine

Section 812 of the Fair Housing Act,

42 U.S.C. 3612, confers standing on

these respondents

A. Trafficante suggests no difference

in the standing conferred by Sec-

tions 810 and 812 of the Act

B. The structure of the statute and

its legislative history indicate that

there is no difference in the scope

of the two Sections

1. The omission of the phrase of

“person aggrieved” from Sec-

tion 812 does not limit the

scope of that Section .__—

Page

Argument—Continued

2. Section 812 was not designed

to provide swifter relief than

Section 810 or to apply to a

smaller group of complainants

3. Sections 810 and 812 were de-

signed to provide parallel rem-

edies for the redress of pre-

cisely similar grievances ___-

Comelrsstomy

CITATIONS

Cases:

Barrick Realty, Inc. v. City of Gary, In-

diana, 354 F. Supp. 126, affirmed, 491

F.2d 161 . : pil

Barrows v. Jackson, 346 U.S. 249 ©

Brown v. State Realty Co., 304 F. Supp.

Cornelius v. City of Parma, 374 F. Supp.

730, vacated on other grounds, 506

F. 2d 1400, vacated for further consid-

eration, 422 U.S. 1052, remanded, 521

F.2d 1401 _.

Fair Housing Council of Bergen County,

Inc. v. Eastern Bergen County Multiple

Listing Service, Inc., 422 F. Supp.

1071 .

Fox v. United States Housing and Urban

Development, 416 F. Supp. 954

Griggs v. Duke Power Co., 401 U.S. 424

Heights Community Congress v. Rosen-

blatt Realty, 73 F.R.D. 1

Linda R. S. v. Richard D., 410 U.S. 614

Moore v. Townsend, 525 F.2d 482

9,13

20-21

Ill

Cases—Continued

Shannon v. United States Department of

Housing and Urban Development, 436

F.2d 809

Sierra Club v. Morton, 405 U.S. 727

Simon v. Eastern Kentucky Welfare

Rights Organization, 426 U.S. 26

South East Chicago Commission vy. De-

partment of Housing and Urban Devel-

opment, 343 F. Supp. 62, affirmed, 488

F.2d 1119

Sullivan vy. Little Hunting Park, Inc., 396

U.S. 229

TOPIC vy. Circle Realty, 532 F.2d 1273,

Page

13-14

certiorari denied, 429 U.S. 859 2, 13, 18, 20, 21

Trafficante v. Metropolitan Life Ins. Co.,

409 U.S. 205

Trafficante vy. Metropolitan Life Insur-

ance Co., 446 F.2d 1158, affirming, 322

F. Supp. 352

Udall vy. Tallman, 380 U.S. 1

United States v. Henshaw Bros., Inc., 401

F. Supp. 399

United States v. Mitchell, 335 F. Supp.

1004, affirmed, 474 F.2d 115, certiorari

denied, 414 U.S. 826

United States v. SCRAP, 412 U.S. 669

United States v. Youritan Construction

Company, 370 F. Supp. 643, modified

and affirmed, 509 F.2d 623

Village of Arlington Heights v. Metro-

politan Housing Development Corp.,

429 U.S. 252

Village of Park Forest v. Fairfax Realty,

P-H EOH Rep. § 13,784, decided, Au-

gust 9, 1976 =

2, 7, 9, 10, 13, 15, 17, 18, 19

14-15

Cases—Continued Page

Warth v. Seldin, 422 U.S. 490 7, 8, 15, 16, 17

Wheatley Heights Neighborhood Coalition

v. Jenna Resales Co., 429 F. Supp. 486 13

Zuch v. Hussey, 366 F. Supp. 553 9,21

Zuch v. Hussey, 394 F. Supp. 1028, af-

firmed, 547 F.2d 1168 14, 15, 21

Statutes and regulations:

Civil Rights Act of 1866, 14 Stat. 27, 42

U.S.C. 1982 4, 7-8, 18

Fair Housing Act of 1968, 82 Stat. 81,

as amended, 42 U.S.C. (and Supp. V)

3601 et seq. 2

Section 801, 42 U.S.C. 3601 2

Section 804, 42 U.S.C. (and Supp.

V) 3604 22,24

Section 804(a), 42 U.S.C. (and Supp.

V) 3604(a) 3, 4,9

Sections 808-811, 42 U.S.C. 3608-

3611 2

Section 810, 42 U.S.C. 3610 passim

Section 810(a), 42 U.S.C. 3610(a) 19

Section 810(d), 42 U.S.C. 3610(d) 3

Section 812, 42 U.S.C. 3612 passim

Section 813, 42 U.S.C. 3613 2, 3, 13, 23

Section 814, 42 U.S.C. 3614 23

Section 901, 42 U.S.C. 3631 2

24 C.F.R. 105.12 19

24 C.F.R. 105.16 19

Miscellaneous:

112 Cong. Rec. (1966):

p. 9393

. 9501

17122

18401

18402.

18405

18407

18409

113 Cong. Rec. (1967):

p. 3899

p. 3922

p. 3946

114 Cong. Rec. (1968) :

p. 4570

p. 5515

p. 5992

p. 9560 .

pp. 9560-9561

p. 9609

p. 9612

p. 9620

H.R. Rep. No. 1678, 89th Cong., 2d Sess.

(1966)

Hearings on S. 1358, ete. before the Sub-

committee on Housing and Urban Af-

fairs of the Senate Committee on Bank-

ing and Cvrrency, 90th Cong. 1st Sess.

(1967)

CPPITPPP

Page

Miscellaneous—Continued

Hearings on S. 3296, etc. before the Sub-

committee on Constitutional Rights of

the Senate Committee on the Judiciary,

89th Cong., 2d Sess. (1966)

Hearings on Civil Rights, 1966 (H.R.

14765) before Subcommittee No. 5 of

the House Committee on the Judiciary,

89th Cong., 2d Sess. (1966)

Page

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1493

GLADSTONE REALTORS, ET AL., PETITIONERS

Vv.

VILLAGE OF BELLWOOD, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

QUESTION PRESENTED

The United States will discuss the following ques-

tion:

Whether, under Section 812 of the Fair Housing

Act of 1968, 42 U.S.C. 3612, residents of a com-

munity have standing to maintain a suit against real

estate companies and their agents to prevent racial

steering in their community.

(1)

)

INTEREST OF THE UNITED STATES

Congress enacted the Fair Housing Act of 1968, 82

Stat. 81, as amended, 42 U.S.C. 3601 et seqg., to imple-

ment the “policy of the United States to provide,

within constitutional limitations, for fair housing

throughout the United States.” Section 801, 42 U.S.C.

3601. The fulfillment of this objective depends in

large measure on the resources available for enforce-

ment. While the Department of Housing and Urban

Development and the Attorney General have impor-

tant responsibilities under the Act,’ complaints by

private persons are the principal method of securing

compliance with the fair housing provisions, whether

through conciliation or litigation.. Trafficante v.

Metropolitan Life Ins. Co., 409 U.S. 205, 209, 211.

Accordingly, the United States has a substantial

interest in this case, where the issue concerns the

class of persons entitled to prosecute complaints un-

der the Act.°

STATEMENT

A. The Statute

The Fair Housing Act prohibits discrimination

in the sale or rental of housing by owners, financial

See Sections 808-811, 813, 901 of the Act, 42 U.S.C. 3608-

3611, 3613, 3631.

? See Sections 810, 812, 42 U.S.C. 3610, 3612.

*The United States participated as amicus curiae in the

court of appeals in this case and in TOPIC Vv. Circle Realty,

532 F. 2d 1273 (C.A. 9), certiorari denied, 429 U.S. 859, which

raised the same issue. We also so participated in Trafficante,

supra, Which involved a similar question.

institutions, and real estate brokers. Specifically, Sec-

tion 804(a), 42 U.S.C. (and Supp. V) 3604(a),

makes it unlawful, inter alia, to “refuse to sell or rent

after the making of a bona fide offer * * * or other-

wise make unavailable or deny, a dwelling to any

person because of race.”

The Act contains two remedial provisions permit-

ting private persons to enforce its substantive pro-

hibitions.* Under Section 810, 42 U.S.C. 3610, the

Secretary of Housing and Urban Development is

empowered to receive and investigate complaints re-

garding discriminatory housing practices. The Sec-

retary must defer to state agencies that can pro-

vide relief, but if the state agency does not act, the

Secretary may seek to resolve the complaint by “‘in-

formal methods of conference, conciliation, and per-

suasion.” If these efforts fail, the complainant may

proceed to court under Section 810(d). Under Sec-

tion 812, 42 U.S.C. 3612, the complainant may bring

an action in court within 180 days after the alleged

discriminatory practice ocevrred. Section 812 does

not require the complainant to seek an administra-

tive remedy before fing suit in federal court, as is

required under Section 810.

‘In addition, the Attorney General may bring a civil action

in federal court against any person who “is engaged in a

pattern or practice of resistance to the full enjoyment of any

of the rights granted” by the Act, or when the denial of such

rights “raises an issue of general public importance” (Section

813, 42 U.S.C. 3613).

B. This Litigation

On October 24, 1975, respondents—the Chicago

suburb of Bellwood, some of its white and black resi-

dents,’ and an organization seeking to end racial dis-

crimination in housing—filed separate suits against

petitioners Gladstone Realtors and Robert A. Hintze

Realtors.” Respondents alleged that petitioners en-

gaged in racial steering of prospective homeowners ©

in violation of Section 804(a) of the Fair Housing

Act of 1968, 42 U.S.C. (and Supp. V) 3604(a).* The

suits were brought, inter alia, pursuant to Section 812

of the Fair Housing Act of 1968, 42 U.S.C. 3612.

App. 4-7, 97-100.

In each case, the complaint alleged that the peti-

tioner involved is an Illinois real estate business in

Cook County, Illinois, which has engaged in a con-

tinuing practice of efforts to influence the choice of

prospective homebuyers on the basis of race, and has

* Respondents Edward B. Powell, Mary P. Powell, Charles

Elliott, and Vicki Simmons are white residents of Bellwood.

App. 5, 97; Pet. App. 10. Respondent Joyce Perry is a black

resident of Bellwood. App. 4, 97; 122; Pet. App. 10. Re-

spondent Sandra Sharp is a black resident of the adjacent

town of Maywood. App. 4, 97, 123; Pet. App. 10.

“Each case also included several real estate agents, em-

ployees of the company defendant, as individual defendants.

’ The district court in Gladstone defined “racial steering”

as “efforts to influence the choice of prospective homebuyers

on the basis of race bv discouraging prospective black home-

buyers from purchasing homes in predominantly white areas”

(Pet. App. 1). It also includes efforts to discourage white

homeseekers from purchasing homes in integrated areas.

* Respondents also alleged violations of the Civil Rights Act

of 1866, 14 Stat. 27, 42 U.S.C. 1982.

discouraged black homebuyers from purchasing homes

in a specific part of Bellwood, Illinois (App. 5, 98,

141). The individual respondents, residents of Bell-

wood and an adjacent towa, alleged that they “have

been denied their right to select housing without re-

gard to race and have been deprived of the social and

professional benefits of living in an integrated so-

ciety.” App. 6, 99. Respondent Village of Bellwood

alleged that it “has been injured by having the hous-

ing market in such village wrongfully and illegally

manipulated to the economic and social detriment of

the citizens of such village.” App. 6, 99. Respond-

ent Leadership Council for Metropolitan Open Com-

munities alleged that “acts and practices” of defend-

ants “hamper and interfere with * * * [its] work and

purpose” and “cost * * * [it] money to provide an

audit and other efforts to eliminate such unlawiu!l

acts.” App. 6, 98-99. Respondents sought damages

and injunctive relief. App. 6-7, 99-100.

After initial discovery proceedings in both cases,

petitioners filed motions for summary judgment. They

contended that none of the respondents had standing

to sue under Section 812, 42 U.S.C. 3612, because

the individual respondents’ discovery responses showed

they were not homeseekers. App. 78-82, 143-147.

On September 23, 1976, the district court in Glad-

stone granted the motion for summary judgment (Pet.

App. A). Basing its opinion on TOPIC vy. Circle

Realty, supra, the court held that Section 812 pro-

tects only “ ‘direct victims’” of racial steering, and

that since none of respondents were “actual home-

seekers,” they lacked standing to assert their claims.

Pet. App. 3-7. On September 29, 1976, the court in

Hintze likewise granted petitioners’ motion for sum-

mary judgment, explicitly adopting the earlier Glad-

stone opinion. Pet. App. 8.

The court of appeals consolidated the cases on

appeal and reversed,” concluding that the allegations

of the individual respondents here were “virtually

identical” to those that this Court in Trafficante had

held were sufficient to establish standing under the

Fair Housing Act. Pet. App. 13. The court spe-

cifically rejected the argument adopted by the Ninth

Circuit in TOPIC, that Trafficante established broad

standing only for suits under 42 U.S.C. 3610. It

concluded that TOPIC was wrongly decided and held

that “there is no difference between the class of plain-

tiffs with standing to invoke § 3610 and the class

with standing to invoke § 3612.” Pet. App. 18, 20."

ARGUMENT

INTRODUCTION AND SUMMARY

We submit that the individual respondents have

standing to challenge petitioners’ racial steering

practices under the Fair Housing Act." In Traffi-

° The court affirmed the denial of standing to the non-profit

corporation (Pet. App. 15).

to sue (Pet. App. 13-14).

11 Because the individual respondents, in our view, have

standing to assert their claims under the Fair Housing Act,

we will not address the question of the standing of the other

respondents, nor the applicability of the Civil Rights Act

cante v. Metropolitan Life Ins. Co., supra, 409 U.S.

at 209, this Court, emphasizing that “complaints by

private persons are the primary method of obtainine

compliance with the Act,” concluded that “Twlje can

give vitality to § 810(a) only by a generous construc-

tion” of the standing requirements (id. at 212).

That conclusion is equally valid for complaints arising

under Section 812. Nothing in that Section, its legis-

lative history, or the consistent administrative in-

terpretation of the Act suggests a different result, nor

are the interests asserted by the respondents here

significantly different from those asserted by the pe-

titioners in Trafficante. Indeed, if anything, the re-

spondents here allege a more far-reaching effect of

the discriminatory practices on their lives than was

alleged in Trafficante. Moreover, here, as in Tra ffi-

eante, the complainants’ standing is supported by a

consistent course of administrative interpretation by

the Department of Housing and Urban Development,

which has substantial responsibilities for administer-

ing; the Act. Accordingly, the holding and rationale

of Trafficante lead to the conclusion that respondents

here also have standing to enforce the Act.

The standards for determining questions of stand-

ing have recently been summarized by this Court in

Warth v. Seldin, 422 U.S. 490. The Court there

noted that the limitation on federal court jurisdic-

tion in Article III of the Constitution requires that

the plaintiff show the existence of an actual “ ‘case or

of 1866, 42 U.S.C. 1982. See Village of Arlington Heights

Vv. Metropolitan Housing Development Corp., 429 U.S. 252,

264 n. 9.

controversy’ ” between himself and the defendant. “A

federal court’s jurisdiction therefore can be invoked

only when the plaintiff himself has suffered ‘some

threatened or actual injury resulting from the puta-

tively illegal action’” (422 U.S. at 499; citations

omitted). In other words, the plaintiff “must allege

specific, concrete facts demonstrating that the chal-

lenged practices harm him, and that he personally

would benefit in a tangible way from the court’s in-

tervention” (id. at 508). Beyond the constitutional

necessity of showing actual injury to the plaintiff

caused by the defendant’s actions, prudential con-

siderations ordinarily counsel denying standing to

persons asserting generalized grievances or relying

on the legal rights and interests of others. But, the

Court emphasized, “so long as [the constitutional]

requirement is satisfied, persons to whom Congress

has granted a right of action, either expressly or

by clear implication, may have standing to seek re-

lief on the basis of the legal rights and interests of

others, and, indeed, may invoke the general public

interest in support of their claim” (id. at 501; cita-

tions omitted).

This Court’s application of these principles in

Warth and in Trafficante indicates that the court of

appeals correctly concluded that the individual re-

spondents here have standing to challenge petitioners’

racial steering practices.’*

‘a The substantial similarity between portions of the argu-

ment in this brief and in respondent’s brief in this Court—a

similarity of which we became aware only upon receiving

SUITS BY PERSONS SUCH AS RESPONDENTS ARE NECESSARY

TO ACHIEVE THE PURPOSE OF THE ACT

Racial steering of potential homeowners, which

involves determining on the basis of race which houses

will be shown—and thus made available—to the home-

seeker, violates 42 U.S.C. (and Supp. V) 3604(a) be-

cause it “make[s] unavailable * * * a dwelling to

* * * person[s] because of race.” E.g., Moore v.

Townsend, 525 F. 2d 482 (C.A. 7); Fair Housing

Council of Bergen County, Inc. v. Eastern Bergen

County Multiple Listing Service, Inc., 422 F. Supp.

1071 (D. N.J.) ; United States v. Henshaw Bros., Inc.,

401 F. Supp. 399 (E.D. Va.); Zuch v. Hussey, 366

F. Supp. 553 (E.D. Mich.).

This Court in Trafficante, supra, 409 U.S. at 211,

stressed that complaints by private persons are the

primary method of securing compliance with the Fair

Housing Act, and that such persons “act not only on

their own behalf but also ‘as private attorneys gen-

eral in vindicating a policy that Congress considered

to be of the highest priority.’” This case provides a

service of respondent’s brief after this brief was in page

proof—is evidently due to their derivation from a common

source: the government’s brief amicus curiae in Fair Housing

Council of Bergen County, Inc. Vv. Eastern Bergen County

Multiple Listing Service, Inc., 422 F. Supp. 1071 (D. N.J.). A

copy of that brief, and of other government filings in cases

involving the same issue, was provided to respondents before

the briefing of this case below. There was no exchange of

draft briefs under preparation for filing in this Court. The

analysis of the legislative history of Sections 810 and 812 of

the Fair Housing Act is the primary example of this overlap.

particularly strong example of the need for such

“private attorneys general,” since racial sieering vio-

lations of the Act are otherwise likely to be immune

from attack.

As the court of appeals noted (Pet. App. 11-12),

it is difficult for homeseekers who are the direct vic-

tims of racial steering by real estate companies to

detect the discrimination. A black person who is

shown listings in particular neighborhoods does not

ordinarily have a way of knowing what listings are

made available to whites, and can therefore seldom

compare his experience with those of his white coun-

ierparts. In the absence of such a comparison, he

cannot be sure that his rights under the Act are

being violated, much less assemble the evidence neces-

sary to enforce those rights in court. In these cir-

cumstances, persons such as respondents, who are

not actual homeseekers, may be “the only effective

adversary” of the illegal practice. Cf. Barrows vy.

Jackson, 346 U.S. 249, 259; Sullivan v. Little Hunt-

ing Park, Inc., 396 U.S. 229, 237." Thus here, as in

Trafficante (409 U.S. at 212), “a generous construc-

tion” of the standing requirement is necessary to

“give vitality” to the enforcement provisions of the

Act.

: This analysis is confirmed by the experience of the Hous-

ing and Credit Section of the Justice Department’s Civil

Rights Division: most of the private cases involving racial

steering have been brought by persons similarly situated to

respondents in the present case, usually on the basis of infor-

mation developed by “testers’”—persons of different races who

make identical housing requests to the real estate company to

determine whether both are offered houses in the same areas.

THE INTEREST ALLEGED BY RESPONDENTS IS SUBSTAN-

TIALLY IDENTICAL TO THAT FOUND SUFFICIENT TO PRO-

VIDE STANDING IN TRAFFICANTE

The individual respondents here alleged in sub-

stance that petitioners’ racial steering practices are

resulting in unnaturally rapid racial change amount-

ing to resegregation of their area and that they are

thus being deprived of the social, professional, and

economic benefits of living in an integrated com-

munity. App. 5-6, 98-99. In Trafficante, tenants of

an apartment complex housing approximately 8200

residents similarly alleged that their landlords’ dis-

criminatory rental practices deprived them of the

social and professional benefits of living in an in-

tegrated community (409 U.S. at 206-208). In both

cases, persons who have not themselves been denied

housing because of their race claim standing to chal-

lenge violations of the Act based on their interest in

living in a community from which persons are not

unlawfully excluded because of their race. This Court

concluded in Trafficante that this interest was suf-

ficient both to satisfy the constitutional standing re-

quirements and to bring plaintiffs within the statu-

tory grant of standing (409 U.S. at 211):

The dispute tendered by this complaint is pre-

sented in an adversary context. Flast v. Cohen,

392 U.S. 83, 101. Injury is alleged with par-

ticularity, so there is not present the abstract

question raising problems under Art. III of the

Constitution. The person cn the [defendant’s]

blacklist is not the only victim of discriminatory

housing practices; it is, as Senator Javits said in

supporting the bill, “the whole community,” 114

Cong. Rec. 2706, and as Senator Mondale * * *

said, the reach of the proposed law was to re-

place the ghettos “by truly integrated and bal-

anced living patterns.” 114 Cong. Rec. 3422.

That language is directly applicable here. Peti-

tioners contend that there is a constitutionally sig-

nificant difference in the interests asserted, simply

because respondents here are residents of a suburban

village, instead of a large apartment complex as in

Trafficante. But that factual difference has no sig-

nificance to the relevant inquiry. Respondents here,

like petitioners in Trafficante, have alleged an actual

injury to their own interests that results from pe-

tioners’ illegal activities.

The injury to respondents’ interest in living in an

integrated community is no less real because it is

suffered by the entire community, rather than only

by the residents of a single housing complex.” In-

'° Petitioners argue (Br. 49) that respondents lack stand-

ing because they allege an “extremely generalized injury

shared by a large group of persons.” However, this Court

has held, in an analogous context, that standing is not to be

denied simply because many people suffer the same injury.

United States v. SCRAP, 412 U.S. 669, 687. The result,

otherwise, would be that “the most injurious and widespread

Government actions could be questioned by nobody.” Jd. at

688. The plaintiffs in SCRAP (who claimed only a harm to

their use and enjoyment of the natural resources in the Wash-

ington area) were thus allowed standing to challenge ICC

deed, the harm suffered by respondents may be more

severe than that of the plaintiffs in Trafficante. Resi-

dents of an all-white housing complex need only look

to the next residential facility for interracial as-

sociations and need not move to another community

to avoid living in a segregated environment, but

Bellwood residents may have to go to an entirely

different community or area. See Fair Housing Coun-

cil of Bergen County, Inc. v. Eastern Bergen County

Multiple Listing Service, Inc., 422 F. Supp. 1071,

1081 (D. N.J.).”

This Court’s reliance in Trafficante (409 U.S. at

211) on Shannon v. United States Department of

orders, which they alleged violated the National Environ-

mental Policy Act of 1969.

The SCRAP rationale is equally applicable here, where

respondents sue under the Fair Housing Act to protect their

right to live in an unsegregated community. The challenged

practice of racial steering is particularly pernicious because

it is apparently widespread and is difficult to detect and

prove. Of the more than 300 cases brought under the Fair

Housing Act by the United States (see 42 U.S.C. 3613) to

date, at least 80 have involved allegations of some form of

racial steering.

™ Every other court that has considered the question has

found interests like those asserted by respondents here con-

stitutionally sufficient to provide standing to challenge racial

steering practices. Wheatley Heights Neighborhood Coalition

v. Jenna Resales Co., 429 F. Supp. 486 (E.D. N.Y.); Fair

Housing Council of Bergen County, Inc. Vv. Eastern Bergen

County Multiple Listing Service, Inc., supra; see also Village

of Park Forest Vv. Fairfax Realty, P-H EOH Rep. © 13,784, de-

cided August 9, 1976). The court in TOPIC Vv. Circle Realty,

532 F. 2d 1273 (C.A. 9), certiorari denied, 429 U.S. 859, did

not reach the constitutional issue, since i: decided there was

no statutory grant of standing. See infra at pp. 20-23.

Housing and Urban Development, 436 F. 2d 809

(C.A. 3), is also inconsistent with petitioners’ as-

serted distinction. In Shannon, businessmen and resi-

dents of an urban renewal area in Philadelphia

brought suit under the Fair Housing Act and other

statutes claiming that the action of HUD threatened

to resegregate their community. The court of ap-

peals held that the plaintiffs had suffered a cog-

nizable injury because HUD’s actions not only could

impair their economic interests, but would affect “the

very quality of their daily lives.” Shannon, supra, 436

F. 2d at 818. Accord, South East Chicago Commis-

sion v. Department of Housing and Urban Develop-

ment, 343 F. Supp. 62, 66 (N.D. Ill.), affirmed, 488

F. 2d 1119 (C.A. 7); Fox v. United States Housing

and Urban Development, 416 F. Supp. 954 (E.D.

Pa.). The respondents here also reside in a specific

community and assert that the quality of their daily

lives is adversely affected by the racial steering prac-

tices of local real estate companies. App. 5-6, 98-99.

Here, as in Shannon, the complaining residents have

suffered actual injury from the defendants’ alleged

endeavors to resegregate their community.

Moreover, the causal connection between racial

steering and segregated communities has been dem-

onstrated in federal litigation. See, e.g., Zuch v.

Hussey, 394 F. Supp. 1028 (E.D. Mich.), affirmed,

547 F. 2d 1168 (C.A. 6).’“ Petitioners’ assertions (Br.

14a See also, Brown Vv. State Realty Co., 304 F. Supp. 1236,

1240 (N.D. Ga.); United States v. Mitchell, 335 F. Supp. 1004,

47-50) that such causal relationships are “specula-

tive” and “insubstantial” are no substitute for a rea-

soned decision, after proof developed through dis-

covery and expert testimony, concerning the effects

of petitioners’ alleged actions on the racial makeup

of the Bellwood community. See Trafficante, supra,

409 U.S. at 209-210.”

Petitioners nevertheless suggest that the causal con-

nection between their actions and the respondent’s in-

jury is too weak to afford standing to respondents.

They attempt to analogize this case to Warth v. Seldin,

supra, in which various individuals and organizations

challenged a community zoning ordinance, alleging

that it excluded persons of low and moderate income

(422 U.S. at 493). Emphasizing that the petitioners’

1005-1006 (N.D. Ga.), affirmed, 474 F. 2d 115 (C.A. 5), cer-

tiorari denied, 414 U.S. 826; Barrick Realty, Inc. v. City of

Gary, Indiana, 354 F. Supp. 126, 135 (N.D. Ind.), affirmed,

491 F. 2d 161 (C.A. 7), on the role of real estate agents in

encouraging rapid racial change in a community.

A In Zuch Vv. Hussey, supra, the court’s finding of a causal

connection between racial steering and resegregation of the

community was aided by the testimony of an expert in soci-

ology and social psychology and an expert in population and

demographics. These experts explained to the court how the

practice of racial steering can lead to the destruction of

integrated neighborhoods. 394 F. Supp. at 1021-1034. Re-

spondents here apparently planned to utilize similar expert

testimony at trial on the merits. See App. 28, 117.

Moreover, as the court below noted (Pet. App. 12), pe-

titioners have not yet responded to respondents’ requests for

discovery; those responses may well disclose instances in

which actual homeseekers were steered away from appropri-

ate housing.

allegations suggest “that their inability to reside in

[the community] is the consequence of the economics

of the area housing market, rather than of respond-

ents’ assertedly illegal acts” (422 U.S. at 506), the

Court found that petitioners in Warth had failed to

show that “absent [the challenged] practices, there

is a substantial probability that * * * if the court

affords the relief requested, the asserted inability

of petitioners will be removed” (id. at 504).

There is, at least prima facie, such a substantial

probability here. Respondents’ complaint (like that

in Trafficante) alleges that their desire to live in an

integrated community is directly frustrated by pe-

titioners’ discriminatory refusal to provide equal ac-

cess to available housing to any qualified applicant.”

Of course, the actual benefit sought, here as in Traf-

ficante, depends ultimately on the housing decisions

of third parties, but plaintiffs here, as in Trafficante,

should be allowed to prove that, absent the artificial

barriers imposed by defendants, these decisions would

be likely to result in housing patterns more reflective

of the racial] mixture in the area.

‘This case is thus quite different from Simon v. Eastern

Kentucky Welfare Rights Organization, 426 U.S. 26, 42-43,

in which plaintiffs’ alleged injury resulted from the actions

of persons not before the ccurt. See also Warth v. Seldin,

supra, 422 U.S. at 505.

III

SECTION 812 OF THE FAIR HOUSING ACT, 42 U.S.C. 3612, CON-

FERS STANDING ON THESE RESPONDENTS

Petitioners’ attempt to analogize this case to Warth

v. Seldin, supra, rather than Trafficante fails for an

additional independent reason. In Warth, this Court

noted that the “critical distinction” between that case

and Trafficante was the failure of the Warth plain-

tiffs to assert, or make out, a claim under the Fair

Housing Act. 422 U.S. at 513. Here, as in Traffi-

cante, respondents rely on a statutory right “which

can confer standing to sue even where the plaintiff

would have suffered no judicially cognizable injury

in the absence of statute.” Warth v. Seldin, supra,

422 U.S. at 514. See also Linda R. S. v. Richard D.,

410 U.S. 614, 617 n. 3; Sierra Club v. Morton, 405

U.S. 727, 732 n. 3; Trafficante v. Metropolitan Life

Ins., Co., supra, 409 U.S. at 212. That right under

the Fair Housing Act has allegedly been violated by

petitioners’ racial steering practices. See, e.g., Zuch

v. Hussey, supra.

Petitioners’ argument that respondents may not

rely on a statutory right to sue under the Fair Hous-

ing Act turns on the assertions that Trafficante con-

strued only Section 810 of that Act, 42 U.S.C. 3610,

and that Section 812, 42 U.S.C. 3612, upon which

respondents rely, must be construed to include a sub-

stantially narrower grant of standing. The first as-

sertion is not free from doubt, and the second is in

any event incorrect.

A. Trafficante Suggests No Difference in the Standing

Conferred by Sections 810 and 812 of the Act

Trafficante began as a suit brought pursuant to

both Section 810 and Section 812; indeed, the inter-

vening plaintiffs asserted standing only under Section

812 and 42 U.S.C. 1982. See Trafficante v. Metro-

politan Life Insurance Co., 446 F. 2d 1158 (C.A. 9),

affirming 322 F. Supp. 352 (N.D. Cal.). Although

this Court focused on Section 810 in making its

ruling, it discussed both Sections 810 and 812 with-

out distinguishing between the two so far as stand-

ing requirements are concerned. See, e.g., 409 U.S.

at 209."" Thus, it was the understanding of the dis-

trict court in Trafficante on remand (see Consent

Order of December 7, 1972), and of other courts that

have considered this question, that this Court’s de-

cision applies to claims arising under Section 812 as

well as those under Section 810. Wheatley Heights

Neighborhood Coalition v. Jenna Resales Co., supra;

Village of Park Forest v. Fairfax Realty, supra. See

also Fair Housing Council of Bergen County, Ine. v.

Eastern Bergen County Multiple Listing Service, Inc.,

supra. Contra, TOPIC v. Circle Realty, 532 TV. 2d

1273 (C.A. 9), certiorari denied, 429 U.S. 859."

* Although the Court specifically noted (409 U.S. at 209

n. 8) that it found it unnecessary to decide whether peti-

tioners had standing under 42 U.S.C. 1982, it made no such

disclaimer with respect to Section 812, on which some of

petitioners relied exclusively, apparently not considering the

differences between the two provisions of the Housing Act

significant.

‘8 The court of appeals in the present case found it “impos-

sible to tell with certainty” whether Trafficante was meant to

Moreover, in Trafficante this Court accorded “great

weight” to the construction given the Fair Housing

Act by the Department of Housing and Urban De-

velopment, since that agency has substantial respon-

sibilities for administering the Act. 409 U.S. at 210.

See, e.g., Griggs v. Duke Power Co., 401 U.S. 424,

433-434; Udall v. Tallman, 380 U.S. 1, 16.

HUD has consistently construed Sections 810 and

812 as providing alternative judicial remedies, either

of which may be invoked by the same class of per-

sons. In the regulations promulgated by the Secre-

tary to enforce the Act, the Secretary provides that:

“The person aggrieved shall be notified of the date

of filing [of the administrative complaint pursuant

to Section 810] and of his right to bring court action

under sections 810 and 812.” 24 C.F.R. 105.16."

Although HUD has no enforcement powers under

Section 812, we are advised by HUD that, since the

passage of the Act, is has accepted, investigated, and

attempted to conciliate racial steering complaints

from fair housing groups, municipalities, and _ resi-

dents of the communities involved whose interest was

in counteracting efforts to segregate their communi-

ties, as well as from actual homeseekers. The letters

sent by HUD to all such complainants (whether or not

control cases arising under Section 812, see Pet. App. 17-18,

but concluded, as we do, that in any event the rationale of

Trafficante supports respondents’ standing here.

"The definition of “person aggrieved” contained in the

regulations is the same definition contained in Section 810 of

the Act. Compare 24 C.F.R. 105.12 with 42 U.S.C. 3610(a).

they are actual homeseekers) at every step in the ad-

ministrative complaint process have informed them

that they may also institute litigation pursuant to

Section 812. In addition, HUD’s 1976 pamphlet, Fair

Housing USA, describes Sections 810 and 812 as be-

ing alternative modes of enforcement of the Act.

HUD’s position has consistently been that both reme-

dies are available for use by any person enforcing

rights under the Fair Housing Act, and that a chal-

lenge to a discriminatory housing practice under

either Section does not bar a complainant from pur-

suing the alternative remedy.

B. The Structure of the Statute and Its Legislative

History Indicate That There Is No Difference in the

Scope of the Two Sections

In arguing that Section 812 should be read more

narrowly than Section 810, petitioners emphasize

(Br. 22-23, 29) that only Section 810 describes the

parties authorized to file suit as “persons aggrieved”.

They further point out (Br. 21-22) that only that

Section requires plaintiffs to exhaust their adminis-

trative remedies before filing suit. Neither of these

differences between the two sections provides a basis

for a meaningful distinction between their standing

requirements.

Petitioners in effect ask this Court to adopt the

rationale of the Ninth Circuit in TOPIC v. Circle

Realty, supra, 532 F. 2d at 1275-1276." Although

2° That rationale is inconsistent with the decisions in most

cases that have considered the issue. See, in addition to the

cases noted at p. 18, supra, Heights Community Congress V.

the TOPIC court apparently made no inquiry into

the legislative history of the Act (the opinion makes

no reference to such history), it concluded that:

(1) Since Section 810 contains a broad definition

of “person aggrieved”, and since Section 812 has no

definition, Section 812 must be narrower. 532 F. 2d

at 1275.

(2) The purpose of direct suits pursuant to Section

812 was to provide swift relief to a narrow class of

complainants, whereas Section 810 “contemplates the

resolution of disputes in the slower, !ess adversary

context of administrative reconciliation and media-

tion.” 532 F. 2d at 1276.

(3) Cases dealing with “prolonged practice[s]

spanning many years” rather than individual griev-

ances should more appropriately go through HUD

and be handled pursuant to Section 810, whereas

Section 812 can better accommodate complainants

“seeking to rent or purchase [specific] housing.” /bid.

The legislative history of the Act does not contain

a single suggestion that standing under Section 812

Rosenblatt Realty, 73 F.R.D. 1 (N.D. Ohio); Cornelius v.

City of Parma, 374 F. Supp. 730, 741 (N.D. Ohio), vacated on

other grounds, 506 F. 2d 1400 (C.A. 6), vacated for further

consideration, 422 U.S. 1052, remanded, 521 F. 2d 1401 (C.A.

6). Cf. Zuch Vv. Hussey, 366 F. Supp. 553 (E.D. Mich.) and

394 F. Supp. 1028 (E.D. Mich.).

=! The term is defined as including “[a]ny person who claims

to have been injured by a discriminatory housing practice or

who believes that he will be irrevocably injured by a discrimi-

natory housing practice that is about to occur.” 42 U.S.C. 3610.

was designed to be narrower than standing under

Section 810. Throughout the legislative history, the

administrative and judicial remedies were described

as alternatives to one another—to be used against the

same kinds of conduct, and available to the same

kinds of complainants. Moreover, the legislative his-

tory shows that the TOPIC court was in error with

respect to each of the three above-cited propositions

on which it rested its decision. The words “person

agerieved” were intended to limit, rather than ex-

pand, standing, so that their omission from Section

812 suggests at least equal standing to that accorded

to complainants under Section 810. The administra-

tive remedy was included not for “slower, less ad-

versary” proceedings, but because its proponents re-

garded it as quicker.” Finally, far from intending to

22 The legislative history cited by petitioners (Br. 29-34)

indicates that Congress included the “bona fide offer” re-

quirement in the Act to protect against the use of the Act

for purposes of harassment. 114 Cong. Rec. 5515 (1968).

This colloquy does not suggest that any of the participants

believed that there was any difference in the types of com-

plaints to be handled by HUD and the courts, still less that

Section 812 contained a stricter standing requirement than

Section 810. In any event, the “bona fide offer” requirement

applies only to refusals to sell or rent housing and not to the

other prohibitions (such as racial steering) in Section 804,

42 U.S.C. (and Supp. V) 3604. United States v. Youritan Con-

struction Company, 370 F. Supp. 648, 650 (N.D. Cal.), modi-

fied and affirmed, 509 F. 2d 623 (C.A. 9). Thus, the legislative

history of that requirement in no way suggests that Congress

intended to limit persons affected by racial steering violations

to administrative remedies pursuant to Section 810.

28 The congressional concern about the slow pace of direct

litigation is also reflected in the requirement of expedition in

confine major, complex cases to HUD rather than the

courts in the first instance, Congress permitted the

complainant to choose an administrative remedy in

any case, in part on the theory that HUD could dis-

pose swiftly of minor cases and prevent them from

becoming a burden for the courts.”

1. The Omission of the Phrase “Person A ggrieved”

From Section 812 Does Not Limit the Scope of That

Section

The legislative history of the 1968 Act begins in

1966, when administration bills containing provisions

for “open housing” were introduced in both the House -

and Senate.** The 1966 bills provided for enforce-

ment only by an action in a United States District

cases brought under Sections 812 and 813. See Section 814, 42

U.S.C. 3614.

** The theory that the more complex cases were to be han-

died administratively overlooks the fact that even under Sec-

tion 810, a person may seek a judicial remedy in a de novo

proceeding. Furthermore, “pattern or practice” suits and

other suits raising issues of general public importance brought

by the Attorney General under Section 813 can be expected

to involve issues very similar to those brought by individuals

acting as “private attorneys general” under Section 812.

There is no reason to conclude that Congress thought the

courts an appropriate forum only for the former class of

cases, and not the latter.

**112 Cong. Rec. 9501 (Introduction of H.R. 14770, re-

ferred to Judiciary Committee, May 2, 1966); 112 Cong. Rec.

9501 (Introduction of H.R. 14765, referred to Judiciary Com-

mittee, May 2, 1966); 112 Cong. Rec. 9393 (Introduction of

S. 3296, April 28, 1966).

Court or in an appropriate state court.” The ques-

tion of who would have standing to bring suit was

raised in both House and Senate hearings. Repre-

sentative Cramer criticized the bill on the ground that

it simply provided that the “ ‘rights granted * * * may

be enforced by civil action,’ ”’ without limiting stand-

ing to “persons aggrieved.” Representative Cramer

observed that the right to sue under the comparable

public accommodations statute was limited to “the

party aggrieved,” and that omission of this limitation

indicated that a third party might bring the suit

on the victim’s behalf. Attorney General Katzenbach

stated that he had no objection to the words being

inserted, but that he thought it unnecessary. ‘Iear-

ings on Civil Rights, 1966 (H.R. 14765) before Sub-

committee No. 5 of the House Committee on the

Judiciary, 89th Cong., 2d Sess. 1203 (1966). The

words “persons aggrieved” were not inserted. In

Representative Cramer’s view, this made standing

broader than if the words had been included; in At-

torney General Katzenbach’s view, it made no differ-

ence. Both views are directly contrary to that of the

court in TOPIC, which thought the inclusion of the

words “persons aggrieved” in Section 810 made

standing under that Section broader.”

* Hearings on Civil Rights, 1966 (H.R. 14765) before Sub-

committee No. 5 of the House Committee on the Judiciary,

89th Cong. 2d Sess. 716 (1966). Section 403 of that bill con-

tained a provision similar to the provision in Section 804 of

the 1968 Act that has been held to prohibit racial steering.

27 The Senate hearings contain Senator Ervin’s comment

that the judicial remedy provision “doesn’t even have a re-

quirement that the plaintiff shall have been refused the rental

2. Section 812 Was Not Designed to Provide Swifter

Relief Than Section 810 or to Apply to a Smaller

Group of Complainants

Congress began considering proposals for adminis-

trative remedies during its hearings on the 1966

bills.“ Testimony at the hearings and the floor debate

indicate that the purpose of the proposed alternative

administrative remedies was to provide an expeditious

method of resolving complaints of housing discrimina-

tion without the necessity of filing a complaint in

federal court.

One such proposal would have created a Fair Hous-

ing Board, with powers similar to those of the Na-

tional Labor Relations Board. Report to accompany

H.R. 14765 of the Committee on the Judiciary, H.R.

Rep. No. 1678, 89th Cong., 2d Sess. 9-12 (1966).”

Representative Conyers summarized as follows the

or purchase of real estate”, and that “a person who hasn’t

even applied for admission” to a residential home could re-

cover damages. Hearings on S. 3296, etc. before the Subcom-

mittee on Constitutional Rights of the Senate Committee on

the Judiciary, 89th Cong., 2d Sess. 395-396 (1966).

*® Hearings on S. 3296, etc. before the Subcommittee on Con-

stitutional Rights of the Senate Committee on the Judiciary,

89th Cong., 2d Sess. (p. 554, Roy Wilkins, Chairman of the

Leadership Conference on Civil Rights and Executive Director

of the National Association for the Advancement of Colored

People, June 16, 1966; p. 68, Senator Edward M. Kennedy,

June 6, 1966; p. 69, Senator Hugh Scott, June 6, 1966; p. 915,

Senator Javits, June 28, 1966) (1966).

**The Board would have been authorized to adjudicate

complaints of housing discrimination to be filed with HUD,

if HUD was unable to resolve the mthrough conciliation (112

Cong. Rec. 17122 (1966) ).

need for an administrative procedure to supplement

the judicial remedies already provided (112 Cong.

Rec. 18402 (1966) ):*”

Experience with comparable State and local

agencies repeatedly has shown that the adminis-

trative process is quicker and fairer. It more

quickly implements the rights of the person dis-

criminated against and also quickly resolves

frivolous and otherwise invalid complaints. Con-

ciliation is easier in an informal administrative

procedure than in the formal judicial process.

Also individual court suits would place a greater

burden of expense, time and effort on not only

the plaintiff but on all other parties involved,

including the seller, broker and mortgage fi-

nancier, and on the judicial system itself.

Representative Conyers further noted (id. at 18407)

that “parallel forms of relief * * * [would be] avail-

able in court and before the Commission’. !ndeed,

Representative McClory opposed the creation of the

Fair Housing Board precisely because it created a

“duplicate matter of enforcement” with the judicial

method (112 Cong. Rec. 18401, 18405 (1966) ).

The 1966 bills were not enacted, and legislation

similar to that introduced in 1966 was proposed in

1967 (113 Cong. Rec. 3899, 3922, 3946). The 1967

proposals contemplated suits by the Attorney Gen-

* Rep. Conyers was a member of the Judiciary Committee

when the Fair Housing Board Amendment was discussed;

the quoted material is contained in a statement explaining

that amendment prepared for the Congressional Record. See

also id. at 18405, 18409.

eral, supplemented by administrative procedures with-

in HUD. HUD was to be given authority to issue

cease and desist orders and such orders were to be

subject to judicial review. Again, the alternative ad-

ministrative procedure was proposed on the theory

that it would be faster than litigation.” No legisla-

tion was enacted in 1967.

3. Sections 810 and 812 Were Designed to Provide

Parallel Remedies for the Redress of Precisely

Similar Grievances

On February 28, 1968, Senator Dirksen proposed

an amendment containing the enforcement procedure

that was ultimately enacted in the Fair Housing Act.”

The Senate passed the bill substantially in this form

on March 11, 1968," and the House enacted it on

April 10, 1968."

During the floor debate in the House on the Dirk-

sen amendment, Representative Celler, the Chairman

of the Judiciary Committee which reported out the

bills, explained that Section 812, which provides for

direct litigation in federal or state court without prior

administrative process, was “[i]n addition to adminis-

* Hearings on S. 1358, etc. before the Subcommittee on

Housing and Urban Affairs of the Senate Committee on Bank-

ing and Currency, 90th Cong., Ist Sess. 108 (testimony of Roy

Wilkins, Director of the NAACP and Chairman, Leadership

Conference on Civil Rights) (1967).

*2 114 Cong. Rec. 4570.

53 114 Cong. Rec. 5992.

** 114 Cong. Rec. 9620.

trative remedies” contained in Section 810 (114 Cong.

Rec. 9560 (1968) ). His explanation of the three meth-

ods of obtaining compliance provided for in the bill

(administrative conciliation, private suits, and suits

by -ne Attorney General) does not classify any rights

as enforceable exclusively under Section 810, nor does

it differentiate between classes of plaintiffs or sug-

gest that the Section 810 procedure is for some kinds

of complaints and the Section 812 procedure for

others. 114 Cong. Rec. 9560-9561 (1968). That no

distinction was intended as to eligible plaintiffs and

remedies as between Section 810 and 812 was also

recognized by a memorandum prepared by the staff of

the House Committee on the Judiciary, which Rep-

resentative Gerald Ford urged the House to consider

and placed in the Congressional Record (114 Cong.

Rec. 9609 (1968)). That memorandum explained

that Section 812 is “apparently an alternative to the

conciliation-then-litigation approach” of Section 810

(id. at 9612).

In summary, there is no suggestion in any of the

legislative history in 1966, 1967 or 1968 that a

narrower class of plaintiffs could litigate directly un-

der Section 812 than might utilize the administrative

process under Section 810. On the contrary, the ad-

ministrative remedy was designed to provide an al-

ternative method of seeking relief that is less formal

and less expensive but lacks compulsive power, with

the assurance that the complainant remains free to

seek a judicial remedy if he prefers.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

WADE H. McCRreEzE, JR.,

Solicitor General.

Drew S. Days, III,

Assistant Attorney General.

LAWRENCE G. WALLACE,

Deputy Solicitor General.

HARRIET S. SHAPIRO,

Assistant to the Solicitor General.

WALTER W. BARNETT,

CHARLES PEREYRA-SUAREZ,

Attorneys.

SEPTEMBER 1978.

Ww ues. GOVERNMENT PRINTING OFFICE; 1976 273025 116

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