Petition for Writ of Certiorari — Chester Housing Authority v. Pennsylvania Human Relations Commission
Supreme Court brief1975
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ER I os
IN THE
Supreme Court of the United States
October Term, 1974.
No. 74- 856
CHESTER HOUSING AUTHORITY
Petitioner,
a",
PENNSYLVANIA HUMAN RELATIONS COMMISSION,
Respondeut.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA.
Harotp Cramer,
The Fidelity Building,
Philadelphia, Pennsylvania. 19109
Attorucy for Petitioner.
Of Counsel:
Mare S. Cornxpiatt,
DaLe LIEBERMAN,
Mestrov, Getmax, Jarre & Cramer.
international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
Vi.
© Dae
~ Ovistons Prion.
. OveEs IONS PRiseniis
INDEX.
JURISDICTIONS Lae eee A ee eae ke AR eS, 8
— CONSTILUTION AL Povistons, Srvrties, anp ReGULA-
Pie bey, WCC oN ee Ane eae ee are a re ee ae
Beate T OOF CT MCASE Gee ees ke kod vob cae e ae ae eee
oe ne eee eee Ty eer
MB. Proceedings Below .......2.006c cn eeeseeseesanes
Rrasoxs ror Granting A Writ oF CERTIORART .......
A. The Commission's Order ts au impermissible At-
tempt, by a Site Ageney, Contrary to Federal Law
and the United Scares Con-titution, to Desegregate
Federally \ssisted Housing by Ordering -\ffirmative
Discrimination Against Racial Minorities ........-
1. The Commission's Order, as Affirmed by the
Pennsylvenia Supreme Court) Raises Important
Questions of the Permissibility of Discriminating
gainst- Racia! Minoriiies to Desegregate Fed-
erally-Assisted Housing 2.2.0 .....--- cedieuaes
te
The Commission's Order Uneonstitutionaly and
Unlawiuily Requires CHIA to Diseriminate
Against: Racial Minorities in the Allocation ot
Federallv-Assiciced Pjousing 2.2.0.6... . 066. o.
BB. The Commission's Order Is in Direct Conflict and
Interferes Wii the [lousing Poiiev, Iegishition, and
Regulations of the United States... ce. eee eee nar
1. The Commission's Order bnposes a Priority Sys-
tem for Aduvission to Pederaliy Assisted Housing
iv Direet Contlict With tedercl Potiew. Legtsla-
tion, and) Reeulition ......... eee
20
INDEX (Continued).
Page
2. The Commission's Order, in Conflict With Con-
gressional Policy and Legislation, Requires CLA
to Leave Vacant Needed and Available ederally-
a Re re rene Te 23
MAE MN 5 0 Chae es 5 00akSs wb45 EN ada based auenees 25
RD Oe NE eek oc kins cae e er avawne hanceaguss 26
APPENDIX A:
Opinion of the Supreme Court of Pennsylvania ........ Al
Order of the Supreme Court of Pennsylvania Denying
Petition ior Leave to File Petition for Reargument .. A253
Opinion of the Commonwealt’ Court of Pennsylvania ... A24
Order of the Commonwealth of Pennsyivania ........... Ast
lindings of Fact, Conclusions of Law, Decision, and Final
Order of the Pennsylvania Human Relations Com-
I Aes eka sh nea vee peees Veh ee uss eackhehens A37
APPENDIX B:
Constitutional Provisions, Statutes, and Regulations In-
ce RE CET eee OT eer Os Garner AAS
TABLE OF CITATIONS.
Cases: Page
Anderson v. Abbott, 312 UL 8S. 349 (W944 eee ee eee 9,2
Blackshear Residents Organization vy. Housing .\uthority of
City of Austin, 347 F. Supp. 1138 (W.D. Tex. 1971) .. 18
Bolling v. Sharpe, 347 U.S. 497 (1954) oe ee eee 17
Brown v. Board of Education, 349 U.S. 294 (1955) ....... 13
Cleveland y. United States, 323 U. S. 329 (1945) ......... 10
DeFunis v. Odegaard, —- U.S. —-. 40 L. Ed. 2d 164 (1974)
14, 17,18
Florida v. Mellon, 273 U. S. 12 (1987) .......cccccceeeee 19
Free v. Bland, 369 U.S. G63 (19G2) ...... cece eeneoeees 19
Gautreaux vy. Chicago Housing Authority, 480 F.2d 210 (7th
Ci: PIPER oc cscece rev evetaesscvetnncss en cnsweresbee 13
Gibbons v. Ogden, 9 Wiieat. 1 (1824) 2.6.66. eee eee eee eee 19
Green v. County School Guard, 391 UC. 5. 430 (1968) ...... 13
Hurd v. Hodge, 334 U.S. 24 (1948) 22.0.0. ee eee eee ee eee 15
Jones v. Alired H. Mayer Co., 396 U. 5. 409 (1908) ........ 15
Kalb v. Feuerstein, 308 U. S. 433 (1940) ...........-..-.. 19
King v. Smith, 392 U.S. 309 (1908) 2.2... eee ee eee eee 20, 25
Loving v. Virginia, 588 U. 5.1 (1907) ......-- 2+ eee eee 17
Maryland v. Wirtz, 392 U. 5. 185 (1908) .....-------+5-- 19
Mayo v. United States, 391 U.S. 441 (1943) 2... 19
M’Culloch v. Maryland, 4 Wheat. 316 (1819) ............-. 19
Otero v. New York Housing Authority, 484 F.2d 1122 (2d
Caey GUPEN iscrh cok reccsheerows cabennas se cecuwanae® 13
Shannon y. United States Department of Housing and Urban
Development, 436 I. 2d 809 eS ee. Aree 13
Shelley v. Kraemer, 334 U5. 1 (1948) 2. e eee eee eee eee. IS
Sperry v. Florida, 373 U.S. 3879 (1973)... eee cece eee ees 19
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
DPI Saket ekisdcsosavescuaveaapcapaidcensecenes 13
United States v. Georgia, 371 U.S. 285 (1963) ........ 19, 20, 25
Weber v. Anheuser-Busch, 348 U.S. 408 (1955) ......... 19
TABLE OF CITATIONS (Continued).
Federal Regulations: Ps
Regulations of the Unicd Stites Department of tlousine and
Urban Development. under ihe Civil Rights Net of L9G 4,
24C. F. &:
sishignate at ody SEER ee ee b
Section 24 | yi ii siti i US Peer seme
Waited Sites id Parbucntiot itoustie and Urban De Velopmiem,
Low-Reni bjiou mig Administration «, Provera Handbook,
Cirewiar KELA 7403.1, ¢ hapier O Section 4, Appendix 2,
Paragrapa leds cy +
inited States Departmicnt of Iiousiie sand Urban Developm: nt,
Inetructions Por Pr paration of Civil Right. Plan of Selee-
tone! Applicants and Assignment. of Dweiiing Cnits:
Justructions, first iirc paragrapiis
Mian i febosm bs Cheer llousing Authority |
Consolidated Aan: Contilviions Contract of Oe
1970, between tue Uned Ss ates et N\merton
Chester ilou-ing Authority :
Pari i, Section j indy SUR rr ne oe ee
Port UH. Sections Qos amd 209
Federal Statutes:
Civil Kighis Act of 186-5, Section P42 US.
Re Sa at
Civil Rigvlits Vio 1964. Title Vio Seetion ae tS &
x Ji COS N eit eae ae Cr Se a ae ee : Pee It,
Pistr Peay tee AC PMS Tale Vill
section SOU1: {2 | Beets PR ee CEU eee 9
“ection SO dae | Bi Renae tee eS ee lo
Si nod ik RO eMC er anette eae ate a
United State. ficy % 1937 end: throueh PG74-
Section 12 42 t". oe Ry SYRUP Rees cart 5,20, 21 2.4
“OCT Ie C2 We ee Hhilo (2 ees
TABLE OF CITATIONS (Continued).
Federal Statutes (Continued):
Housing and Urban Devel spinen
Tile XVI, Section 1601; 42 0.
Housing and Community Development AG
end 2a 2
II-B,
Section
Scction
XM
101
Stat. O63:
109% a)
Section 201 Gu) ppre
and Ofc) (4) 0.N0 of
Pennsylvania Statutes:
Penmaviveiia Plot ine Aut
gh
Porim-s ivan
esuli
Jes amended |
«3T"s
G55. as cmended, 32
tia diuuin Relation:
7 i4.oas ame ran lf, a
Te nretic « 1 0
United States Conviitvulon:
Article Vio Chunse
Amendmicit’
Siding
the United >
\er
pos. 154
Ti ‘ ‘
PS. $081
i
%
ae |
:
i woended,
bss. crores
C2098 22 2A
4
Meret Meats eters 2
Ins 937
= 41955
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te’, by
IN THE
Supreme Court of the United States
Ocroser Term, 1974.
No. 74-
CHESTER HOUSING AUTHORITY
Petitioner.
v.
PENNSYLVANIA HUMAN RELATIONS
COMMISSION
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA.
Chester Housing Authority hereby petitions that a
Writ of Certiorari issue to review the decision of the
Supreme Court of Pennsylvania entered in this case on
October 16, 1974.
I. OPINIONS BELOW.
The Pennsylvania Human Relations Commission did
not deliver an opinion in this case. The findings of fact,
conclusions of law, decision, and final order of the Penn-
<ylvania Human Relations Commission are not officially
reported, but are printed in Appendix ‘‘A’’ hereof, pp.
A37-A47. The opinion of the Commonwealth Court of
Pennsylvania is officially reported at 9 Pa. Commonwealth
415, unofficially reported at 305 A. 9d 751, and printed in
Appendix A, pp. A24-A35. The opinion of the Supreme
Court of Pennsylvania is not yet officially reported, but is
unofficially reported at 327 A. 94 335, and is printed in
Appendix A, pp. A1-A22.
= Pilition for Writ of Certiorari
II. JURISDICTION.
The decision of the Supreme Court of Pennsylvania
was entered on October 16, 1974, Apperdix A, pp, AT-A22.
Undersigned counsel was cngaved by Petitioner on Novem-
ber 14, 1974, after the time for filing a petition for reargu-
ment had expired, under Rule Gt of the Rules of the
Supreme Court of Pennsylvania. On November 25, 1974,
counsel filed a petition for leave to file a petition for reargu-
mient and for an extension of the time therefor, which
petition was denied by order of the Supreme Court of
Pennsylvania, dated December 17, L974, Apnendix A, p. A235,
The jurisdiction of this Court io review the decision of
the Supreme Court) of Pennsylvania upon Writ of
Certiorari is invoked under 28 UL S.C. ° 1257 (5).
III. QUESTIONS PRESENTED.
This case involves the action of a state ageney in at-
tempting to desegregate federally assisted housing by es.
tablishing a program of absolute tenant applicant priorities
Which i+ based entirely opou the race of the applicant, dis-
criminates against racial minoritie-, and ix in direct con-
het with the allocation +yste:m for federally-funded housing
established by the United States. The following questions
are, therefore, presented:
1, May a state ageney order a federally-funded hous-
ing anthority to discriminate, on the basis of race, against
minorities in the allocation of available federally-funded
housing in order to desegresate housing projects?
Ye May a state ageneys order a federally-funded hons-
Ing authority to establish a system of allocation of and
priority to federally-funded housing based entirely upon
the race of the applicant and in direet confliet with the
allocation and priority system established by the United
States?
*-
——
Petition for Worl of Cerliorari
IV. CONSTITUTIONAL PROVISIONS, STATUTES,
AND REGULATIONS INVOLVED.
The constitutional provisions, statutes, and regulations
involved in this case are cited here and fully set forth in
Appendix BY
A. United Stetes Coustifutiou
1. Article VI, Clause 2: App. 4s.
» Amendment XLV, Section 1: App. Ads.
B. Federal Statutes
1. Civil Rights Act of S66, Gorton 1: 42 U7 8.-°.
©1982; App. A4s.
—
Civil Rights Act of 1964, Tithe VI, Section Gol: 42
U.S. ¢. 20000; App. A4.
» Fair Housing Act of 196s, Tithe VILT:
a. Section $01: 42 U.S.C. 3601: App. AAo.
lb. Section 804; 42 UL S. ©. 3604: App. 49. X00.
¢. Section $15; 42 UL S.C. 2 S610: App A090.
1. United States Housing Act of 1037, as amended
through 1974:
a. Section 1:42 U.S.C. . 101; App. A500NoF.
hb. Section 10(¢) (2) 3 42 USS. ©. 1410(2)(2): App.
AOI.
>. Housing and Urban Development Net of T8965, a
amended, Tithe XVI, Section 1601; 42 U.S. ©.
1441: App. Aoz.
Petition for Writ of Certiorari
G. Housing and Comminnity Development Net of L974,
Pub. 1. O8-382, 88 Stat. 663:
a. Section 101: App, A05-A06,
hb. Section 109(a): App. Ao6,
ce, Section 2OUa) | providing for Seetion~ 2. o¢1),
B(2). and GCe) (4) 04) of the United States Tous
rng Netaf TST) as aimended |: App. od 460,
Co Kederal Requlatious
1. Reandations of the Uiited States Department of
Housing and Urban Developieni, under the Civil
Right= Act of 1964, 24.6. FL.
a. Seetion L4cay: App. AGO,
lb, Section 24(b)¢1) and (2): App. AGOOANGH,
ZY. United States Departinent of Housing aid Urban
Development, Low Rent Tou-ing Administration of
Procram Handbook, Circular REPA 74011, Chapter
W& Section 1, Appendix 2. Paragraph DOdj¢lys App.
AGiz-AG4.
Vinited States Department of Tlon-ine and Urban
Development. Instructions Por Preparation of Civil
Rieht. Phan of Selection of Npadienuts and As-ien
ment of Dwelling Units
a. dustruetions. first three paragraphs: App. AG,
Plan be lehosen by Chester Housing Authority |:
App. AGS-AGT,
Consolidated Anmual Contributions Contract of
Citober bo, TO, between the United States of
America and the Chester Tousing Suthority
a. Part & Seetion 1404): App. AGS.
bh. Part Th. Seetions 208 and 20902 App. AGS-ATO,
Pelition for Writ of Certtorari 7)
V. STATEMENT OF THE CASE.
A. Background.
Petitioner Chester Housing Authority CTCHEA is a
federally funded public housing aveney of the Coimmon-
wealth ef Pemnsylvania operative low tcotic house i
four family projects of approximately three dinndred dwell
ine units each, one project for the elderly, and certain leased
housing, pursuant to the Cnited: States Housing Act of
1927. ax amended, 42 UL S.C. 0 HOD of seq. and the Porn
evivania Housing Authority’ Law. Act of May Js. fer,
Po. 955, as amended, 35 PLS. Dodd ef seg. Ho receives
substantially all of its operating tund= Prem tv Vorited
States government under the tertns of a ce ~olidated an
nual contributions contract (tthe Contract) of Oetobes
15. 1970. with the United States of America, cotercd ante
pursuant to Section 10 of the United States Tforsing Set.
£2U.8.¢. °° 1410. CHA’ operation of its hors ire pre geet-
ix. therefore, subject to the terns of the Contract. oll federal
Mututes, regulations. and other dires tives epplying to fed
erally assisted program. and the regulation= and directives
of the United States Department of Hewsing aed Urian
Development (oHUD™).
Pursuant to its federal statue. CVLAS. ablocation of i
housing facilitie. ond prioritte- for sulimission io iis Samant
housing project ix largely established by the toasted Sia
In accordance with Section Tec) 62) of ths jiousine Not of
1937. as amended through 1974, Section: 25 on Ph oof tive:
Contract (App. AGS ATO) require HAN to establish aopre!
erenee system for the assiepment of available dveihne
units. based upon the applteant’ housing weeds. family
Status, source of income, dizabilty, ane aces with specta
preferences for displaced families cue bataiiies of veterates.
6 Petiiex for Writ of Cerliorari
In addition. TIUD has issued directives as to tenant
selection procedures to be followed bw all leeal housing
withorities to effectuate the provisions of ‘Tithe Viof the
Civil Right Act of 1964, 42 ULS. C2 > 2000d. THUD *s Low-
Rent Honsing Administration of Program Handbook, Chap-
ter 9, Section 1, Appendix 2. Cireular RELA 7401.1, Para-
eraph Py) CApp. AG2- AGH) requires cach local housing
authority receiving federal assistance under the [Honsing
Act of T9887 to adopt a plan for the selection of applicants
and assigmment of dwelling units to assure equal oppor-
Tamity aud non discrimination on the erounds of race, color,
or national orn.” (App. G2). Pursuant to this directive
HUD lias issued tistructions (App. AGE). requiring each
loc! housing autherity to adept one of two written tenant
section plans, known as ct Pho A and Phan Be both
of whieh are based upen the position of the applicant for
housing on the eheihle applicant fist and the Jocution of
available vacant dwelling units. The housing authority
must adopt the plaudits entirety. verbatim. Pursugunt te
this federnt directive, CELA adopted Plan f CNpp. AGS
AGT).
B. Proceedings Below.
Oi May i. 1270, Respondent Ponnsyilvania Tluman Re-
Intion= Commission tthe Commission). a state ageney
established to enfores the Pennsvivania Ebaman Relation-
Net. Net of Oetober 27, 155. PLL. 744. as amended, 42 PLS.
Nobef sey. Hed a complaint against CIUA alleging that it
tointatied housing projects segregated by race, and that
-Heh segregation and the failure to take corrective action
sana viedation of Section o¢h)et) of the Thanan Relations
Aer do Poo. 55th) 01). The complaint further alleged
that (PPA effectively aided and abetted the -cerevation of
the schools mn the city of Chester, in violation of Section
ote) of the Hitman Relations Net, 45 PLS. 955¢e).
Petition for Writ of Certiorart 7
CELA filed an answer to the complaint denying that it
vas snbject to the terms of the Human Relation~= Act or
that it had practiced or planned any discrimination in its
placement of applicauts for tenaicy or assignment of dwell-
ing units. In Paragraph + of its answer CHA specifically
stated that it was subject to federal requirements and the
regulations and directives of HUD, including those relating
to tenant placement and aexignment of dwelling units.
CHA thus raised the federal ixsnes of this case at. the
earliest possible stage of the proceedings.
Gy August 5, 1971, a hearing was held before the Com-
mission on the allegations of the complaint. At the hearime
CHA presented evidence in support of its defense, including
evidence concerning federal directives on assignment of
dwelling units, aid non-diserimination in tenant selection.
After the hearing, the Commission entered findings of fact
and conclisions of law CApp. ABT-A43) and a decision CApp.
A44) finding that CHA ‘thas engaged in discriminatory
practices 1 violation of Sections 6(iy41) and fe) of the
Pemisylvania Human Relations Act.”
The Commission alse entered a final order (App. Ado
A47) directing, amore other thines, that CTLA cease and
desist from employing its present tenant selection and
assignment procedures: develop. for the approval of the
Commission. a program for all of CILA’s projects to reflec
the racial composition of all public housing tenants in the
city of Chester: file detailed periade reports with the Com
mission as to the procedures for effecting such desegresa
tion: and meet with the School District of the city of Chester
for the preparation and submission of a plan for priority
selection of tenants with school-age children to facilitais
the desegregation of the schools in Chester.
With respect to CHAS four frimily housi projects,
the final order provided as follows:
LPettives: for Writ of Certiorari
That Respondent Chester Hlousing Authority, it-
i
feetits, servants, employees and each of their respective
~UCCOSSOLVS
2. Shall conse and desist from renting housing ae-
cohumodations in MeCaffery Village to white tenant
families until the racial composition of said project
reflect= the ratio of Negro to white tenant families in
all public Lousing projects under Respondent ’s super-
vision, direction and control.
*. Shall cease and desist from renting housing ac-
commodations in Lamokin Village, William Penny
Village and Rath L. Bennett Homes to Negro tenant
fuimilics until the racial composition of each of said
projects reflects the ratio of white to Negro tenant
families in all public hovsing projects under Respond-
ent ’s supervision, direction and control.
Vie Coinmission thus ordered CHA to grant or deny
ienaney in all of its federally-funded family projects solely
on the basis of ihe applicant’s race, and to deny Black
— ants aecess to three of the four projects absolutely.
‘ven if vacant units were available, notwithstanding the
federal housing and anti-diserimination mandates to the
contrary,
CHA excepted to virtually all of the Commission’s
indies of fact and conclusions of law, its decision, and all
portion~ of the final order, and timely appealed to the Con.
monveculth Court of Pennsylvania.
CELA presented all the federal issues of this case to the
Commonwealth Court, As shown by the Court’s opinion,
CHUN raised the -ignifieance of federal requirements (App.
NS
Vel. and CUA. brief stated that the priority system
Petition for Woril of Ce rliorarl y
imposed by the order of the Human Relations Comission
was:
contrary and contradictory of the priority system
specified by federal legislation and implemented by
HUD; (Briet for Appellant before the Commonwealth
Court of Pennsylvania at 17).
Similarly, CILA'- brief argued that the Commission's order
required unlawful racial discrimination and confticted with
the Congressional policy of ending the nation’s housing
choriage (Brief for Appellant before the Commonwealth
Court of Pennsylvania at 17). Finally, as yoted in the
Commonwealth Court opinion. CHLA raised the issue that
the enforcement of the Commission's order would require
“+ 1o leave dwelling wnit= vneant while cligible tenant appli-
cunts were available and awaiting housing accommodations
(Brief for Appellant before the Commonwealth Court of
Pennsylvania at 17).
The Commonwealth Court found that the federal con-
tentions of CTLA did not require the reversal of the Com-
mission's decision OF all of its order. The Court held, how-
ever, that there wa- insuflicient evidence to support certain
of the Comission” findings of fact and the relate por-
tions of its final order. The Court therefore struck the
following paragraphs frou the order: (a) Paragraphs 2
and 3, quoted above, reqairing the imposition of racial ad-
missions priorities for CULA‘s four family housing projects,
(hb) Paragraph +. requiring CILA to develop a program to
change the racial composition of all of its projects, (¢)
Paragraph S, requiring CILA to submit detailed monthly
reports as to the racial recomposition of the projects. and
(ad) Paragraph 10 requiring CTIA and the Chester School
District to prepare a phim for priority <election of families
with school age children te effect racial integration of the
10 Petition for Writ of Certiorari
Chester school system. The Commonwealth Court aflirmed
the order of the [luman Relations Commission as xo
modified.
The portions of the Commission's order stricken by the
Commonwealth Court were those raising the federal issues
of conilict with federal legislation, regulations, and con-
tractual requirements; unlawful and unconstitutional racial
discrimination; and the creation of unnecessarily vacant
housing units. Since the Court’s decision on these matters
Was based upon insufliciency of the evidence, it did not de-
cide the federal questions raised by these specific provisions
of the Commission’s order.
On July 5, 1975, the Commission filed, with the Supreme
Court of Pennsylvania, a petition for allowance of appeal
from the order of the Commonwealth Court, which petition
Was granted.
In the proceedings before the Supreme Court of Penn-
~Ylvania, CHA again presented all of the federal issues
raised before the Commonwealih Court, in support of af-
firming the Commonwealth Court’s decision. The Penn-
sYlvania Supreme Court reversed the order of the Com-
mouwealth Court and reinstated the Commission’s order
in full.
In its opinion the Supreme Court of Pennsylvania con-
-idered the federal issues of this case at great length. More
than half of the opinion (App. A7-A8, A10-A19) is a dis-
eission of the effects of federal housing and anti-diserimi-
nation laws, regulations, and ILUD directives, and the equal
protection clause of the fourteenth amendment of the United
States Constitution. There is extensive citation of decisions
of this Court and lower federal courts on each such issue.
by reinstating those portions of the Commission’s order
stricken by the Commonwealth Court, the Pennsylvania
Supreme Court decided each of these federal issues ad-
versely to CILLA,
ee
Pelition for Writ of Cerliorari 11
With respect to the limited question of CLA’ **com-
pliance’? with federal mandates, the Pennsylvania Supreme
Court stated that the issue was decided adversely by the
Commonwealth Court, and since CELA did not appeal it was
bound by that decision. ‘Thi- issue, however, was only a
small part of CHATS federal argument, and ix of little, if
any, significance to thi- Petition. The actual holding of
the Commonwealth Court as to the specific paragraphs of
the Commission's order reinstated by the Pennsylvania
Supreme Court was based upon insufficiency of the evi-
dence, not CHA‘s federa} . reument=, and was decided in
favor of, not adversely to, CELA. dn any event, the Pem-
sylvania Supreme Court did in fact pas~ on this aspect of
the federal issue and quoted at length from the opinion of
the Commonwealth Court, thus afiirming that part of the
decision (App. ATS-AT9).
After careful examination of the Commission's order,
as affirmed by the state Supreme Court, CILA determined,
after all necessary administrative action, to cngage inde-
pendent counsel to obtain review of the decision of the
Supreme Court of Pennsylvania. Pursuant to such under-
taking, undersigned counsel was engaged by CHA on
November 14, 1974. Under Rule 64 of the Rules of the
Supreme Court of Pennsylvania, the time for filing a peti-
tion for rehearing in that Court expired on October 26,
1974. On November 25, 1974, counsel filed a petition for
leave to file a petition for rehearing and for an extension
of time therefor, which petition was denied by the Supreme
Court of Pennsylvania on December 17, 1974.
12 Petition for Writ of Certiorari
VI. REASONS FOR GRANTING A
WRIT OF CERTIORARI.
A. The Commission’s Order Is an Impermissible Attempt,
by a State Agency, Contrary to Federal Law and the
United States Constitution, to Desegregate Federally
Assisted Housing by Ordering Affirmative Discrimina-
tion Against Racial Minorities.
CHA operates four family housing projects. Three
are predominantly Black and one predominantly White.
The order of the Pennsylvania Human Relations Commis-
sion attempts to integrate these projects to reflect the racial
composition of all public housing in the city of Chester—
approximately 647 Black and 36% White. The means of
integration chosen, as set foria in Paragraphs 2 and 3 of
the Commission’s order, is a tenant selection priority
system based entirely upon the race of the applicant. No
Whites may be admitted to the predominantly White
project and no Blacks to the three predominantly Black
projects until the desired racial balance is achieved. Such
racial recomposition of the projects will be a very long
process, if it occurs at all. It will require vacation and re-
vecupancy of more than five hundred dwelling units, almost
one-half of all family publie housing in Chester, and Whites,
who constitute only one-third of the public housing com
munity, must fill more than three hundred of such units.
Until that time, no Black tenant applicant, regardless of his
housing needs or the availability of vacancies, Wty Ie aed
mitted to three of Chester's four housing projects.
By requiring the implementation of this system, the
Pennsylvania Human Relations Commission and the Su-
preme Court of Pennsylvania have ordered the Chester
Housing Authority to deny admission in 790% of the avail
Petition for Writ of Certiorari
—
ae
-—
able housing facilities to 6407 of the applicants for public
honsing, regardless of any extenuating cirenmstances or
other considerations, solely because they are Black. CILLA
submits such direct racial discrimination against minorities
is not a permissible means of desegregating federally-
assisted housing.
1. The Commission’s Order, as Affirmed by the Penn-
sylvania Supreme Court Raises Important Ques-
tions of the Permissibility of Discriminating
Against Racial Minorities to Desegregate Fed-
erally-Assisted Housing.
This ease presents the basic issue of the limits upon the
permissible action which may be taken by a governmental
aveney to achieve racial balance within a particular social
structure. This question has received careful consideration
by this Court, primarily with respect to the desegregation
of school systems. Brown ve. Board of Education, 549 U.S.
294 (1955); Green rv. County School Board, 391 U.S. 450
(1968); Swann vr. Charlotte Mecklenburg Board of Educa-
tion. 402 U.S. 1 (1971). Tt has also been the subject of
extensive litigation in lower federal courts, even within the
more limited context of federally-assisted housing. See
eg. Otero v. New York Housing Authority, 484 F. 2d 1122
(2d Cir. 1973): Shannon ve. United States Departincut uf
Housing and Urban Development, 436 F.2d 809 (Srd Cir.
1970); Gautreaus ¢, Chicago Housing Authority, 480 FP. 2d
10 (7th Cir. 1973); Blackshear Residents’ Organization
¢. Housing Authority of City of Austin, 347 FL Supp. 1158
(W. D. Tex. 1971).
This case, however, presents a far more compelling
vexne than the above-cited decisions. This is not, as in the
school desegregation cases, a question of racial redis-
tribution in order to achieve integration, nor as in Otero,
14 Petition for Writ of Certiorari
an issue of competing priorities for reallocation of housing
tenants, involving questions of the desirability of specific
housing sites. The Commission's order specifically directs
CHA to refuse to admit Black tenants to three of its four
family housing projects. The method chosen by the Conm-
wission to achieve integration, and aflirmed by the Penn-
sylvania Supreme Court. is the denial of governmental
benefits entirely on the grounds of race, This is the same
issue upon which this Court granted Cerfiorart in DePiiis
». Odeqoard, — U.S. —, 40 L. Ed. 2d 164 (1974), but did
not reach because the case had become moot.
CHA submits that the facts of this case are more com-
pelling than those of DeFiuis, tn DePunis, the issue pre-
sented was the permissibility of racial discrimination in
favor of minorities in order to achieve racial balance. The
order of the Pennsylvania Haman Relations Commission,
on the other hand, presents a scheme of desegregation which
discriminates against the racial minority that it ix supposed
to benefit. Further, the issue of this case is not, as in
DeFunis. the denial of admission to a specific state law
school in a particular year, significant os that may be; it
is rather the discriminatory denial ef one of the most basic
necessities of life—safe and decent shelter.
CHA respectfully submits that not only, as discussed
below, is the Commission's order unlawful and uncousti
tutional, but that the federal statutory and constitutional
issues raised by the racial discrimination ordered by the
Commission are vitally important and should be considere|
by this Court. As Mr. Justice Hrennan stated in his dis
senting opinion in Dekunis:
Few constitutional questions in recent history have
stirred as much debate, and they will not disappear.
They must inevitably return to the federal courts ane
ultimately again to this Court, 40 L. Bad, 2d at 18s,
Petition for Writ of Certiorari 15
2. The Commission’s Order Unconstitutionally and Un-
lawfully Requires CHA to Discriminate Against
Racial Minorities in the Allocation of Federally-
Assisted Housing.
Paragraphs 2 and 3 of the Commission's order direct
CHA to implement & progran: of tenant selection based
entirely upon race, denying access to three-quarters of
CHA‘s family housing projects to eligible Black appli-
cants because of their race, By proceeding in accordance
with that order, CILA will be in violation of every level of
federal directive to which it is subject.
The statutory violation: are both numerous and clear.
Section 1 of the Civil Rights Act of 1866, 42. U.S. ©.
1982, provides:
All citizens of the United States shall have the same
right, in every state ond territory, ax is enjoyed by
white citizens thereof to inherit, purchase, lease, sell.
hold. and convey real and personal property.
In Hurd vr. Hodge, 334 UL S. 24 (1948) this Court held that
whenever a Black citizen is denied the opportunity to obtain
benefits of real estate solely because of his color, there
has been a violation of Section 1 of the Civil Rights Act
of 1866, Further, in Jones cv. Alfred H. Mayer Co.. 396
U.S. 409 (1968) this Court found that when Congress, in
Section 1 of the Civil Rights Set of 1866, provided;
[T)bat the right to purchase and lease property was
to he enjoyed equally throughout the United State»
by Negro and white citizens, it plainly meant to secure
that right against interference from any source what-
ever, Whether government or private, 592 U.S. at 4235.
Paragraphs 2 and 3 of the Commission’s order direct CHA
to do precisely what Congress and this Court have stated
16 Petition for Writ of Certiorari
is prohibited. These provisions of the order require, in
clear and direct terms, that CHA deny Black citizens the
same right to lease and hold real estate as is available to
White citizens.
Similarly, Seetion 601 of the Civil Rights Act of 1964,
42. U.S. C. § 2000d; Section 804(a) of the Fair Housing
Act of 1968, 42 U.S. C. § 3604(a); and Section 109(a) of
the Housing and Community Development Act of 1974,
Pub. L, 95-385, 88 Stat. 633, prohibit exactly the same racial
discrimination ordered by the Commission.
By regulations issued under Title VI of the Civil
Rights Act of 1964, HUD has prohibited any racial dis-
crimination by local housing authorities, 24 C. F. R. $14,
and the utilization of any criteria or methods of administra-
tion for the provision of housing or accommodations
‘which have the effect of subjecting persons to diserimina-
tion because of their race, color, or national origin.’? 24
C. FL R. § 1.4(b)(2)(i). Federal anti-diserimination re-
quirements are also set forth in HUD Circulars relating
to tenant selection, and Part 1, Section 14(A) of CHA’s
Annual Contributions Contract imposes non-diserimina-
tion requirements on CHA as a contractual mandate and
provides that failure to comply constitutes a substantial
default.
Clearly, the order of the Pennsylvania Human Rela-
tions Commission has directed CHA to implement a pro-
gram of racial discrimination which the federal judiciary,
legislature, and executive departments have prohibited
in almost every conceivable manner.
The implementation of Paragraphs 2 and 3 of the Com-
mission’s order would further be an unconstitutional
denial of equal protection of the laws. These provisions
of the order require a classification of applicants for public
housing and the grant or denial, by a state agency, of
Petition for Writ of Certiorart 17
housing accommodat' sus solely on the basis of race. There
ix no room for any other consideration, nor is there any
relationship between the racial classification of applicants
and the housing needs which CHA was created to provide.
CHA must deny housing to eligible Black applicants in
three of its four family projects only because the applicant
i< Black. Such racial discrimination is clearly prohibited
by the equal protection clause of the fourteenth amendment.
Bolling v. Sharpe, 347 U. 8. 497 (1954); Loving v. Vir-
ginia, 388 U.S. 1 (1967): DeFunis v. Odegaard, — U.S.
__, 40 L. Ed. 2d 164, 171 (1974) (Douglas, J. dissenting).
The opinion of the Supreme Court of Pennsylvania
examines, at great length, decisions of this Court and
lower federal courts concerning the application of the equal
protection clause to efforts to climinate racial imbalances
(App. A8, A10-A18). These decisions, however, do not
deal with the situation presented by this ease. None con-
cern the constitutional permissibility of an attempt to
achieve integration by imposing a strict racial classifica-
tion, with room for no other consideration, in a govern-
mental program as significant as the provision of basic
housing needs. Certainly none involve a program of direct
discrimination against the racial minority which the de-
segregation plan is intended to aid.
Both the Commonwealth Court and Supreme Court
of Pennsylvania suggest that the discriminatory practices
imposed by the Commission’s order can be supported by
a compelling state interest. Clearly there is no justifica-
tion for such a position. As Mr. Justice Douglas stated in
his dissenting opinion in Del’unis,
If discrimination based on race is constitutionally
permissible when those who hold the reins can come
up with ‘‘compelling’’ reasons to justify it, then con-
stitutional guarantees acquire an accordionlike quality.
40 L. Ed. 2d at 184.
1s Petition for Writ of Cerliorart
This is not a case of state economic or similar regula-
tion, requiring a consideration of Virious state interests.
It ix rather a case of racial discrimination in providing the
basic human necessity of shelter, See Shelley co. Kracuer.
334 U.S. 1 (1948). A state agency's theory of the proper
tenant composition of federally-assisted housing cannot
sustain such a system of discrimination. As Mr. Justice
Douglas has stated:
The Equal Protection Clause commands the elimina-
tion of racial barrier-, vot their creation in order to
satisfy our theory as to how seciety ought to be or-
eanized. Delunis vr. Odegaard, AOL. Kd. 2d at 1s.
(Douglas, J... dissenting).
Paragraphs 2 and Sof the Commission’s order impose
asystenm of racial chis-ifection and discrimination against
racial minorities auder widel CELA is required to violate
the United States Constitution. federal statutes and regula.
tions. and its Contract with the United States, As discussed
in detail below, the Supromsey €hause of the United States
Constitution. Article Vio Chiuse 2. prohibits any such action
by any state ageney. Kqually inipertant, these provisions
of the Commis-ion’s order are clenriy illegal and uncon.
stitutional, and their afiirneanes by the Supreme Court of
Pennsylvania is contrary to the applicable decisions of this
Court.
B. The Commission's Order Is in Direct Conflict and Inter-
feres With the Housing Policy, Legislation, and
Regulations of the United Stetes.
The Conmani-sion’~ onder, and particularly Paragraphs
2 and 3, require CLEA to ostablish o system of allocation of
its limited federally-funded housing resources with an
absolute first priority in tenant selection based entirely
Petition for Worl of Cortiorart 1)
upon the race of the applicant, This priority and allocation
system ix in direct coutliet with the clenr congressional
policy of iad allocation and the statutes ard regulations
iaplementing that conzressional dee ixion., As a result, the
state action. as embodied in the Cominis-ion'> <i) mitist,
under the Supremacy Clause of the United States ¢ ‘oustitu.
tion, Article VI, Clause 2. yield to federal onactinent= and
is void.
The Supremacy Clause of the Constitution fnapited
requires that federal enactinents -uperse “le conthieting =tu
action. This has been established since the cartiest vit
of this country. M’Calloch ¢. Marghiud. 4 Wheat. S16. 456
(1819); Gibbous vo. Ogdeu 3 Wirent. 1, JIG-211 cTs24). and
has been consistently reaffirined by this Court. |
Mellon, 273 U.S. V2. AT A927): Wall o. Beaerstein, 30s
U.S. 433. 429 (1940). Weber oo Like use r-Busch. Os US.
IGS, 480 (M55). Sperry oe. Florida, 375 U.S. ed Eee).
The decisions of this Court preehide amy argument. as sag
wested by the Commonwealth Conrt in thos case CXpp. Anz).
that the state’. interest in the <ubjeet matter I~ mere com
pelling and more important than the federe! interest. The
importance to the state of the exereise of its own Hawes is
totally immaterial—federal law mist pers vail Cleveland
r. United States. v5 Se es 04a) s fF rere. heaped, SEQ
U.S. 663. 666 (A962): Merglead o. Warts oon tS. US2, 15
(1968).
Further, federal supremacy t= not lindted te the United
States Constitution or federai statutes. it applies with
equal force to federal reaulation-. Sper 0. ble eta, 4 Hie:
U.S. 379 (1973), and poetic, Andersen cp Abbott, st UL.
249 (1944): Cited States ©. Ge wrmd. ot tS, 2h, COS
(1963). The supremacy clause prohibit. a state Prom regu-
lating the activities ef the federal woverniment. Vago or.
United States, BOY USS. 440 (1985) oF impostig any condi-
20 Petition for Writ of Certiorari
tion upon which the federal governinent may effectuate its
policy, United States ¢. Georgia, supra, and a state may not
lah its own concept of eligibility in federally assisted
programs, in confliet: with federal enactments. Ning v,
Smith, 392 U.S. 309 (1968).
CHA submits that the order of the Pennsylvania
Human Relations Commission is in direct conflict with fed:
eral housing policy, legislation, and regulations governing
allocations of housing resources and priorities of tenant
celection. The attirmance of that order by the Pennsyl-
Vania Supreme Court squarely conftiets with the applicable
decisions of this Court.
1. The Commission’s Order Imposes a Priority System
for Admission to Federally-Assisted Housing in
Direct Conflict With Federal Policy, Legislation.
and Regulation.
From the initial enactment of the United States Hou.
ing Act of 1857, and continuonsly thereafter, Congress lhei~
recognized the ‘acute shortage of decent, safe, and sanitary
dwellings for families of low ine mn United States Tous-
ing Act of 1937, Septomber 1, 1927. 6. S96, SO Stat. SSS, = 1.
This Congressional concern for the housing shortage has
been continuously restated, in the same words, throughout
the revisions of the United States Housing Act of eeT. st:
amended through 1974, 42 U. cs. ©. ¢ 1401. Precisely the
same language was again retained in the Housing and Com
munity Development Act of 1904, Pub. LE. 05-585, 88 Stat.
632, ° 2O1(a), providing for Section 2 of the Tlousing Act
of 1U37, as amended, Similarly, Congress. in PGS, found
that ‘the supply of the nation’s housins in not increasing
rapidly enough to meet the national housing goal." 42
U.S.C. 1441(a). This same language was retained by
Petition for Writ of Certiorari 21
Scetion $01 of the Housing and Community Developuient
Act of 1974.
To meet this housing shortage, Congress, by the Hons-
ing Act of 1937, provided for the establishment of low
income housing by federally-funded local housing agencies
and a system of allocation of the housing resources thus
made available. The selection and admission priorities and
allocation procedures so established are reflected through-
out the scheme of federal directives governing the adminis-
tration of federally assisted housing under the Housing Act
of 1937. Section 10(g)(2) of that statute, ax amended
through December 31, 1974, and effective at the time of the
decision of the Pennsylvania Supreme Court in this case,
required the local housing agency to adopt admis-ion-
policies giving full consideration to the rehousing of dis-
placed families, an applicant’s status as a veteran or
disabled veteran, and an applicant’s age, disability, housing
conditions, urgency of housing need, source of income,
family status, and other factors related to the purposes to
be served by the statute.
Although the Housing and Community Development
Act of 1974 eliminated the more specific priorities of the
previous versions of the 1937 Act, it retained the concept
of allocating housing and granting applicants priority based
on consideration of housing need, economic status, and
similar matters related to the purposes of the Act. Under
the new law, local housing authorities must still consider
an applicant’s veteran status, family status, age, and dis-
ability. Section 5, United States Housing Act of 1937, as
amended by Section 201(a), Housing and Community De-
velopment Act of 1974. Particular emphasis is placed upon
the income range of applicants and the ultimate relation-
~hip of various income groups among public housing
tenants, housing needs, and social problems. Section 6
22 Petition for Writ of Certiorart
(©) (4) (A), United States Housing Act of 1997, as amended
by Housing and Community Development Act of 1974.
The Annual Contributions Contract between CHA and
the United States reflects the tenant priority and housing
allocation system chosen by Congress. Section 209 of the
Contract restates, in more detail, the requirements of
Section 10(¢)(2) of the Housing Act of 1957. Similarly,
HUD Cireular RHA 7401.1, which has the effect of law,
Thorpe v. Housing Authority of the City of Durham, 386
U.S. 670 (1970), and the IIUD directive as to the choice of
plan= for tenant selection, as well as the plans themselves,
require the establishment of a system: of housing allocation
and tenant selection based upon consideration~ of the avail-
ability of housing, the applicant’s need, and other factor=
relating to the purposes for which housing agencies such
as CHA exist.
All aspects of the federal allocation and priority sy--
tem, including Congres=ional policy, legislation, HUD
regulations, and the Contract, have at least one factor in
conmuon—there ix no consideration whatever given to the
race of the applicant. As discussed previously, numerous
federal statutes. regulations, and other directives affirma-
tively prohibit allocation of federally assisted housing
resources based on the race of the applicant. The United
States has rather required that the limited federally funded
housing be allocated on the basis of factors which, unlike
the race of the applicant for housing, are related to the
purpose: of the federal legislation.
In direct conflict with this mandate, the Pemnsyvivania
Himan Relations Comunis-ion has ordered CILA to disre-
ecard completely all federal policy, legislation, and regula-
tion as to the allocation of housing and priority in tenant
<eleetion in order to establish an admission program based
upon race—-the one faetor which the United States has
Petition for Writ of Cerliorari 23
~pecifically prohibited CHA from considering. As a result,
the Commission, a state agency, has attempted to establish
its own eligibility system for federally-assisted progran=
in conflict with federal enactments. This Court has clearly
held that such state action is invalid and unconstitutional,
King ¢. Smith, supra.
2. The Commission’s Order, in Conflict With Congres-
sional Policy and Legislation, Requires CHA to
Leave Vacant Needed and Available Federally-
Assisted Housing.
Pacagraphs 2 and 3 of the Comumission’s order abso-
lutely prohibit CHA) from renting any dwelling unit im
three of its four family housing projects to a Black appli-
cant until such time as cach of these projects achieves a
stated racial composition. As previously noted, this situa-
tion will exist for a very substantial period of time, if not
indefinitely, because of the massive reconstitution of dwell-
ing units required, and limited mumnber of cligible Whites
in the Chester public housing community. As a result,
vacancies in these projects must remain unocenpied until a
qualified White tenant is found, notwithstanding the Fact
that eligible Black tenant applicants, who represent two-
thirds of the public housing tenants in Chester, are in need
of that housing. However large the number of eligible
Black tenant applicants, whatever their housing needs, age.
disability, or family status, the Commission’s order re-
quires that the unit remain vacant until CILA finds an
Glizible White tenant. Such an allocation program is in
direct conflict with the housing policy of the United States.
In virtually every federal housing statute, Congres-
has made clear that it is the policy of the United States to
provide safe, decent, and sanitary housing for all Ameri-
cans. and particularly low income families who cannot
24 Petition for Writ of Certiorari
otherwise afford such dwelling facilities. United States
Housing Act of 1937, as amended through December 31,
1974, 61, 42 U.S. C. § 1401; Housing and Urban Devclop-
ment Act of 1968, Title XIV, 41601, 42 U. S. C. 1441(a):
Housing and Community Development Act of 1974, Pub. L.
13-383, 88 Stat. 635, §$101, 201, and 801. Congress has
recognized the particular importance of this goal in view
of the ‘‘acute shortage’’ of acceptable housing. The Con-
gressional policy is thus fundamentally to provide the basic
necessity of a decent home and suitable living environment
for all Americans.
It ix self-evident that any housing allocation program
which leads to the maintenance of vacancies while qualified
tenants are available is directly contrary to this Congres-
sional policy. In amended Section 6(¢c)(4)(A) of the United
States Housing Act of 1937, promulgated by the Housing
and Community Development Act of 1974, Congress hax
directed that every annual contributions contract provide
for the establishment of tenant selection criteria which will
assure a broad range of income groups among public hons-
ing tenants. The same section of the statute specifically
states, however, that ‘‘this shall not permit maintenance of
vacancies to await higher income tenants where lower in-
come families are available.’’ Clearly, Congress has deter-
mined that any allocation of housing resources which
creates unnecessary vacancies of available dwelling units,
even one reflecting the primary economic considerations of
the legislation, is contrary to the housing policy of the
United States and prohibited.
The order of the Pennsylvania Human Relations Com-
mission specifically requires that CHA deny admission to
dwelling units to qualified applicants in need of housing,
even though those units are vacant and available for oceu-
paney. Not only is this contrary to Congressional policy
Petition for Writ of Certiorari 25
and Jegislation, but it is an attempt to promulgate an al-
leention program which creates precisely the situation
which Congress hins attempted to prevent. The unconsti-
tutional and iHega!l denial of federally-funded housing to
Black applicants merely because they are Black is even
more untenable when housing accommodations are available
gna remain vacant.
Paragraphs 2 and 3 of the Commission ’s order are thus
an attempt by a state axency to impose a condition upet
which the United States government may exereise its
policies, and an attempt to exercise state power to defeat
the policy underlying federal statutes. As this Court ha-
plainly held, any sued ae fion ix nnconstitutional and inyalid.
lyited States v. Georgia, supra a 292-295 ; perio 3 r,
Abbott. supra at 365, The affirmanee of the erder by the
Supreme Court of Pounsylvania, once again. squarely ¢on
iets with the appliesble decisions of this Court.
VII. CONCLUSION.
For ail of the foregoing reasons, Petitioner Chester
Housing Authority respectfully submits that this Court
should grant thix Petition fora Writ of Certiorari to review
the decision of the Supreme Court of Pennsylvania.
Respectfully submitted,
Hanoi Cramer.
The Fidelity Building.
Philndelphia, Penmnsyivania, P9109
Attorney for Petitioner.
Of Counsel:
Mane S. Corn share,
Dace LinBERMAN,
VMesinov, Genaan, Jarre & Cramer,
26 Petition for Writ of Certiorari
CERTIFICATE OF SERVICE.
I hereby certify that on this 13th day of January,
1975, three copies of this Petition for a Writ of Certiorari
were hand delivered to the Philadelphia office of Sanford
Kahn, Esquire, attorney for Respondent, at 1400 Spring
Garden Street, Philadelphia, Pennsylvania 19130, and that
three copies of this Petition for a Writ of Certiorari were
mailed, first class mail, postage prepaid, to the Harrisburg
office of Sanford Kahn, Exquire, 100 North Cameron Street,
Harrisburg, Pennsylvania 17101, by depositing them with
the United States Post Office at 128 South Broad Street.
Philadelphia, Pennsylvania.
I further certify that all parties required to be served
have been served.
Ilanotp Cramer,
The Fidelity Building,
Philadelphia, Pennsylvania. 19109
Attorney for Petitioner.
APPENDIX A.
OPINION OF THE SUPREME COURT
OF PENNSYLVANIA.
IN THE
Supreme Court of Pennsylvania
Eastern District.
No. 41 Jaxuany Term, 1974.
PENNSYLVANIA HUMAN RELATIONS
COMMISSION,
Appellant,
v.
CHESTER HOUSING AUTHORITY.
AppeaL From THE Orper or THE ComMONWEALTH Court,
at No. 506 C. D. 1972, Mopiryinc THE Order OF THE
Prexnsytvanta Human Revations Comission,
Darep Aprit 24, 1972 ar Docker No. H-1395.
OPINION OF THE COURT.
Roserts, J. Filed: October 16, 1974
The Pennsylvania Human Relations Commission ap-
peals from the order of the Commonwealth Court aflirming
with modification a unanimous Commission order, Chester
Housing Authority v. Human Relations Commission, 9 Pa,
Commonwealth Ct. 415, 305 A. 2d 751 (1973). The Com-
mission had ordered the Chester Housing Authority, inter
alia, to take affirmative steps to remedy racial segregation
(Al)
A2 Penna. Supreme Court Opinion
found by the Commission to exist in four public housing
projects administered by the Authority. Because the
Commonwealth Court concluded that two of the Commis-
sion’s findings of fact were not supported by substantial
evidence, it held unenforceable certain parts of the Com-
mission’s order. The Commission. sought review of the
Commonwealth Court’s modification and we granted the
_ petition for allowance of appeal.’ We agree with the Com-
mission that the record contains substantial evidence sup-
porting its adjudication. We therefore reinstate those
portions of the Commission’s order stricken by the Com-
monwealth Court, and affirm that court’s order so modified.
On May 1, 1970, the Commission filed a complaint al-
leging that the Authority maintained under its supervision
four housing projects that were racially segregated in
violation of section 5(h) of the Pennsylvania Human Rela-
tions Act.2. It was also charged that actions of the Au-
thority aided and abetted racial segregation of public
schools in the City of Chester and therefore contravened
section 5(e) of the Act.‘ The Commission then by investi-
1. An appellate court is empowered to set aside or modify the
Commission’s adjudication when, inter alia, the findings of fact sup-
porting the adjudication are “not supported by substantial evidence.”
Administrative Agency Law, Act of June 4, 1945, P. L. 1388, § 44,
71 P. S. § 1710.44 (1962). See Pennsylvania Human Relations
Comm’n v. Chester School Bd., 427 Pa. 157, 181, 233 A. 2d 290,
302-03 (1967).
2. Appellate Court Jurisdiction Act of 1970, Act of July 31,
Steg P. L. 673, art. II, §204(a), 17 P. S. §211.204(a) (Supp.
1974).
3. Act of October 27, 1955, P. L. 744, §5(h), as amended, 43
P. S. §955(h) (Supp. 1974).
4. Section 5(e) makes it an unlawful discriminatory practice
“(flor any person . . . to aid, abet, compel or coerce the doing of
any act declared by this section to be an unlawful discriminatory
practice, or to obstruct or prevent any person from complying with
the provisions of this act or any order issued thereunder, or to at-
tempt, directly or indirectly, to commit any act declared by this sec-
1964) be unlawful discriminatory practice.” 43 P. S. §955(e)
( ;
Penna. Supreme Court Opinion A3
gation determined that probable cause existed for crediting
the allegations in its complaint.®
As part of its investigation, the Commission obtained
the names of all persons who became tenants in the four
projects from January, 1970 to May, 1971. From a list
of present tenants a random selection of names was made.
The sample revealed seventeen incidents of racial discrim-
ination on the part of the Authority in the leasing of apart-
ments. The incidents were scattered throughout the test
period, and each example showed the same practice. When
a black prospective tenant applied, he would be denied
housing until a vacancy arose in a ‘‘black’’ project, even
though there existed a vacancy in the ‘‘white’’ project.®
Likewise, a white prospective tenant would not he offered
an available apartment in a ‘“‘black’’ project, but would
rather be kept waiting until a vacancy oceurred in the
‘‘white’’ project.
After an August 5, 1971 public hearing the Commission
entered a unanimous adjudication containing ten compound
findings of fact? and five conclusions of law.* The Com-
mission accepted as true the proof of the seventeen indi-
vidual acts of discrimination. It further found that as a
result of a pattern of discrimination, the four projects in
question were racially segregated. The findings continue
by stating that the racial imbalance of these four projects
5. 43 P. S. $959 (Supp. 1974). In compliance with the statu-
tory directive, the Commission sent a letter together with its com-
plaint to the chairman of the Authority, notifying him of the pending
public hearing.
No challenge before either the Commission, the Commonwealth
Court, or this Court has been made by the Authority to the procedure
used by the Commission.
6. For the racial composition of the four projects, see text ac-
companying note 14 infra.
7. The complete findings of fact of the Commission are set out
in Appendix A.
8. See Appendix B.
A4 Penna. Supreme Court Opinion
increased the racial segregation of Chester public schools.®
On the basis of these findings and the conclusions of law,
the Commission ordered the Authority to cease and desist
from its present tenant selection procedure and to affirma-
tively remedy the existing racial imbalance.”
The Authority excepted to almost every finding of fact,
conclusion of law, and portion of the order, and took a
timely appeal to the Commonwealth Court. After review-
ing the evidence the lower court concluded that substantial
evidence demonstrated ‘‘that certain tenants had been
routed through [the Authority’s] tenant placement pro-
cedure into projects whose tenant majority (usually en-
tirely) corresponded to the tenants’ race.’’ 9 Pa. Common-
wealth Ct. at 424, 305 A. 2d at 755.1. However, the
Commonwealth Court did not affirm the Commission’s order
in toto, but rather set aside portions of it. Stricken from
the order were the paragraphs directing the Authority to
cease renting apartments in the ‘‘black’’ projects to blacks
and in the ‘‘white’’ projects to whites until the racial com-
position in each reflected the overall racial composition in
Chester’s public housing; to design, have approved by the
Commission, and implement a plan to bring about this uni-
form racial composition; to make monthly reports for two
years to the Commission on the progress of the approved
plan; and to meet with the Chester School District to draft
a plan for the priority placement of tenants with school-
9. See text accompanying note 30 infra.
10. See Appendix C.
11. The Commonwealth Court also concluded :
“{S]ufficient competent evidence was adduced to sustain the
Commission’s findings that particular tenants, both black and
white, were refused housing due to racial considerations because
{the Authority] had failed to offer available space, regardless
of location, to a top priority tenant when it should have done so,
regardless of race considerations.”
9 Pa. Commonwealth Ct. at 424, 305 A. 2d at 756 (emphasis deleted).
Penna. Supreme Court Opinion A5
age children in the to-be-integrated projects. Only the
Commission appealed.”
Despite its agreement with the Commission’s proof of
racial discriminatior., the Commonwealth Court believed
that these violations of the Human Relations Act did not
justify the Commission’s order. Two complaints were
voiced. The Commission had neither proved the duration
of the unlawful discriminatory practices nor shown that
these seventeen acts were the sole cause of the racial im-
balance." Aside from noting that the Human Relations
Act does not explicitly require either that a particular
number of acts must be proved or that race must be the
sole factor in bringing about discrimination before the
Commission may order affirmative action, 43 P. S. §959
(Supp. 1974), we find it unnecessary to address these as-
sertions of the lower court. In our view, substantial evi-
dence supporting the Commission’s adjudication can he
found in the figures of the racial composition of the four
housing projects.
12. By not taking an appeal from the order of the Common-
wealth Court, the Authority is precluded from raising issues decided
adversely to it by that court. Pennsylvania Human Reiations
Comm'n v. Alto-Reste Park Cemetery Ass'n, 453 Pa. 124, 128-29
n. 5, 306 A. 2d 881, 884 n. 5 (1973). See also Cash’s Appeal, 1 Pa.
166 (1845).
13. The opinion of the Commonwealth Court is less than clear on
this score, and it arguably supports another interpretation. The
concern in that court perhaps was that the Commission had not
established that racial discrimination proved by the Commission was
in any way a cause of the de facto segregation of Chester's housing
projects. If this is the correct interpretation, we find it somewhat
incredible. The Commonwealth Court agreed that sufficient evidence
showed “that certain tenants had been routed through [the Author-
ity’s] tenant placement procedure into projects whose tenant majority
(usually entirely) corresponded to the tenants’ race.” 9 Pa. Com-
monwealth Ct. at 424, 305 A. 2d ai 755. Human experience and
common sense dictate that when a landlord routes blacks into all
black projects and whites into all white projects, the result is racial
segregat‘on.
=: ~~
A6 Penna. Supreme Court Opinion
Evidence of the racial composition of the four housing
projects was introduced without objection and has never
been challenged. The figures amply demonstrate racial
imbalance."
White Tenants Black Tenants
Lamokin Village 0 346
McCaffery Village 347 0
Ruth L. Bennett Homes 0 385
William Penn Village 20 257
These statistics paint as vivid a picture of racial segrega-
tion as can be imagined. Two projects were occupied 100%
by blacks, another almost 100%, and apartments in a fourth
were oceupied exclusively by whites.
Further testimony at the public hearing revealed this
almost-100% segregation to be a long-standing pattern.”
14. See Balsbaugh v. Rowland, 447 Pa. 423, 434-35 n. 6, 290
A. 2d 85, 91 n. 6 (1972); Pennsylvania Human Relations Comm'n
v. Chester School Dist., 427 Pa. 157, 158-59 n. 1, 233 A. 2d 290, 291
n. 1 (1967).
In our view, racial imbalance means substantial statistical dis-
parity.”
15. In its brief to this Court, the Authority concedes that the
present racial imbalance in the four projects was purposefully caused.
“The obviously imbalanced patterns of occupancy and site
selection were brought about in large measure through the con-
scious design of the Federal and State governments. The re-
sult has been that various projects historically have been identi-
fied as Black or White. The Federal and State governments
were knowing and willing partners in pursing a policy which
created the imbalance from 1938 until 1968.”
Brief for Appellee at 13.
The Authority tries to absolve itself from responsibility to end
the admitted segregation by arguing that other organs of government,
not it, were responsible. We do not address the question to what
extent one agency of the state is responsible to undo the unlawful
acts of another, because we rest our decision on the existence of de
facto segregation. Ci. Banks v. Perk, 341 F. Supp. 1175, 1184
(N. D. Ohio 1972). But cf. Mayor v. Educational Equality League,
— U.S. —, —, 94S. Ct. 1323, 1334 (1974); Spomer v. Littleton,
—U.S.—, —, 94 S. Ct. 685, 689-90 (1974).
Penna. Supreme Court Opinion A7
The manager of the Ruth Bennett project testified that to
his knowledge there had never been a white tenant there.
Similarly, the manager of Lamokin Village stated that the
six years from 1964 to 1970 never saw a white occupy an
apartment there. Since at least 1956, the William Penn
project, according to its manager, maintained approxi-
mately the «ame racial composition as that existing in 1969.
Except for a few black families living there at some un-
specified time in the past, McCaffrey has always been oe-
eupied exclusively by whites.
Nearly identical statistics were before this Court in
Pennsylvania Human Relations Commission v. Chester
School District, 427 Pa. 157, 223 A. 2d 290 (1967). There,
we upheld an extensive Commission order designed to
desegregate Chester’s public schools. Necessarily, we held
that the Human Relations Act reached the problem of de
facto segregation.
‘‘Had the Legislature intended to reach by the
1961 amendments only de jure segregation, its legis-
lative pronouncements would have been unnecessary.
The 1954 Brown "® decision made it eminently clear
that de jure segregation—racial isolation produced by
the acts of public officials—is unconstitutional. <A legis-
lative pronouncement to this effect, and this effect only,
would be mere gild on the lily.’’
Id. at 169, 233 A. 2d at 296.
This Court has not hesitated to follow the implications
of Chester School District. In Balsbaugh v. Rowland, 447
Pa. 423, 290 A. 2d 85 (1972), we were asked to decide the
constitutionality vel non of an affirmative action plan ini-
tiated by the Harrisburg School District in part to correct
16. Brown v. Board of Educ., 347 U. S. 483, 74 S. Ct. 686
(1954).
A8 Penna. Supreme Court Opinion
de facto segregation in its schools. We concluded that cor-
rective measures, including pupil assignment and bussing,
were constitutionally permissible means of overcoming
segregation whether de jure or de facto. Id. at 436-39, 290
A. 2d at 92-93. And in school segregation situations '? the
Commonwealth Court has sedulously enforeed the rights
announced in our decisions. Philadelphia School District v.
Human Relations Commission, 6 Pa. Commonwealth Ct.
281, 294 A. 2d 410 (1972), aff’d sub nom. Uniontown Area
School District v. Pennsylvania Iluman Relations Com-
mission, 455 Pa. 52, 313 A, 2d 156 (1973) (upholding Com-
mission order directing five school districts to remedy de
facto segregation).
While these cases arose in the context of racially segre-
gated schools, the statutory scheme does not treat housing
17, Other jurisdictions have upheld policies designed to eradicate
de facto segregation in public schools. See, e.g., Guida v. Board of
Educ., 26 Conn. App. 121, 213 A. 2d 843 (Sup. Ct. 1965); Booker
v'. Board of Educ., 45 N. J. 161, 212 A. 2d 1 (1965); Morean 7.
Board of Educ., 42 N. J. 237, 200 A. 2d 97 (1964): Addabbo 7.
Donovan, 16 N. Y, 24 619, 209 N. E. 2d 112, 261 N.Y. S. 2d 68,
cert. denied, 382 U.S. 905, 86S. Ct. 241 (1965); Vetere v. Allen,
15 N. Y. 2d 239, 206 N. E. 2d 174, 258 N.Y. S. 2d 77, cert. denied,
382 U.S. 825, 86S. Ct. 69 (1965); State ex rel. Citizens Against
Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 492 P. 2d 536
(1972).
Similarly, federal courts have approved affirmative action by
school boards designed to achicve integration. F.g., Deal v. Cincin-
nati Bd. of Educ., 309 F. 2d 35, 61 (6th Cir. 1966), cert. denicd,
389 U.S. 847, 88S. Ct. 39 (1967) (dictum); Wanner v. County
Board, 337 F. 2d 432 (4th Cir. 1966): Springfield School Comm. @.
Barksdale, 348 F. 2d 261 (1st Cir. 1965): Norwalk Core v. Board
of Educ., 298 F. Supp. 213 (D. Conn. 1969); Offermann v. Nit-
kowshi, 248 F. Supp. 129 (W. D. N. Y. 1965), afd, 378 F. 2d
2 (2d Cir. 1967); Hobson v. Hansen, 269 F. Supp. 491 (D. D. C.
1967), aff'd sub nom., Smuck v. Hobson, 408 F. 2d 175 (D. C. Cir.
1969) (en bane). Cf. Lee v. Nyquist, 318 F. Supp. 710 (W. D.
N. Y¥. 1970), aff'd 402 U.S. 935, 91S. Ct. 1618 (1971). See also
Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S. Ct. 2686 (1973) ;
Brown v. Board of Educ., 349 U.S. 294, 75 S. Ct. 753 (1955).
Penna. Supreme Court Opinion A9
differently from schooling for purposes of ending racial
discriminations.
‘‘The opportunity for an individual . . . to obtain all
the accommodations, advantages, facilities and priv-
ileges . . . of commercial housing without discrimina-
tion because of race . . . [is] declared to be [a]
civil [right]... .”’
43 PS. § 953 (Supp. 1974).
Removal of racial discrimination and assurance of
equal opportunity in housing are strong and fundamental
policies of this Commonwealth. The Human Relations
Act’s declaration of policy makes this explicit.
‘*The denial of equal . . . housing . . . opportunities
because of [racial] discrimination . . . threaten[s] the
peace, health, safety and general welfare of the Com-
monwealth and its inhabitants.”’
43 PLS. ¢ 952(a) (Supp. 1974). In Chester School District,
we reasoned that racial imbalance triggered the Cominis-
sion’s authority under the Human Relations Act to order
affirmative action because to hold otherwise would ignore
“completely the legislative conclusion that racial segrega-
tion in public schools, whatever its source, threatens ‘the
peace, health, safety and general welfare of the Common-
wealth and its inhabitants.” *’ 427 Pa. at 170, 253 A. 2d at
297. Today we reach a similar conclusion with respect to
racial imbalance in housing covered by the Act. Mindful
of our statutory duty to construe the provisions of the
Human Relations Act ‘liberally for the accomplishment. of
[its] purposes,” 45 PLS. °962(a) (1964), we conclude the
purposes of the Act would be vindicated only by holding, see
Chester School District, that the Act covers de facto segre-
gation in housing.
A10 Penna. Supreme Court Opinion
Courts have resolved that blacks (and other minority
groups '*) are entitled to a meaningful opportunity to live
in integrated housing.”” Otero v. New York Housing Au-
thority, 484 F. 2d 1122 (2d Cir. 1973), is instructive. The
regulations of the New York Housing Authority required
it to give preference in newly-built public housing to those
residents whose homes had been destroyed in order to build
that housing. The Authority sought to show that adherence
to its regulations would result in the newly-built projects
becoming segregated.” If the Authority did not have to
18. Cf. Hernandez v. Texas. 347 U. S. 475, 74 S. Ct. 667
(1954). See also United States v. Texas Educ. Agency, 467 F. 2d
848, 862 n. 19 (5th Cir. 1972).
19. See, e.g., Otcro v. New York Housing Authority, 484 F. 2d
1122 (2d Cir. 1973); Gautreaux v. Romney, 448 F. 2d 731 (7th
Cir. 1971); Shannon v. HUD, 436 F. 2d 809 (3d Cir. 1970);
Blackshear Residents Org. v. Housing Authority, 347 F. Supp.
1138 (W. D. Tex. 1971); Banks v. Perk, 341 F. Supp. 1175 (N. D.
Ohio 1972); Mahaley v. Cuyahoga Metro. Housing Authority, 355
F. Supp. 1245, 1257 (N. D. Ohio 1973): Crow v. Brown, 332 F.
Supp. 382 (N. D wa. 1971), aff'd, 457 F. 2d 788 (3th Cir. 1972);
Kennedy Park Homes Ass'n v. City of Lackawanna, 318 VF. Supp.
669 (W. D.N. Y.), aff'd, 436 F. 2d i08 (2d Cir. 1970), cert. denied.
401 U. S. 1010, 91 S. Ct. 1256 (1971): Hicks v. Weaver. 302 F.
Supp. 619 (FE. D. La. 1068) Dailey v. City of Lezton, 296 F. Supp.
266 (W. D. Okla. 1969), aff'd, 425 F. 2d 1037 (10th Cir. 1970);
Gautreaux v. Chicago Housing Authority, 265 F. Supp. 582 (N. D.
Ill. 1967) (ruling on motions and orders). 296 F. Supp. 907 (N. D.
Ill. 1969) (memorandum opinion), 304 F. Supp. 736 (N. D. TL)
(judgment order), aff'd, 436 F. 2d 306 (7th Cir. 1970). cert. denied,
402 U. S. 922, 91 S. Ct. 1378 (1971); El Cortez Heights Residents
& Property Owners Ass'n v. Tucson Housing Authority, 10 Ariz.
App. 132, 457 P. 2d 294 (1969): cf. Trafficante v. Metropolitan
Life Ins. Co., 409 U. S. 205, 93 S. Ct. 364 (1972) (standing). See
generally Ackerman, Integration for Subsidized Housing and the
Question of Racial Occupancy Controls, 26 Stan. L. Rev. 245 (1974);
Comment, Toward Improved Housing Opportunities: A New Direc-
tion for Zoning Law, 121 U. Pa. L. Rev. 330 (1972).
20. The court supported its decision by reference to the much-
commented-on “tipping point” phenomenon.
“This gradual tendency of integrated areas to become more and
more Negro is accentuated by the popular belicf—often trans-
mitted into action—that the rate at which white families move
Penna. Supreme Court Opinion All
abide by its regulations, the existing racial balance in the
projects and the surrounding community area could be
maintained. The district courts” held that the Authority
had to comply with its regulations, but the United States
Court of Appeals for the Second Circuit reversed. That
court reasoned that the Authority’s constitutional and stat-
utory duty affirmatively to integrate public housing super-
seded its obligation to follow its own regulations.”
Therefore,
20. (Cont’d.)
out rises with the percentage of Negroes in the area, and, more
important, that there exists a ‘tipping point’—a given percentage
of Negroes, after which the departure of whites from the areas
will be greatly accelerated.”
Kaplan, Equal Justice in an Unequal World—The Problem of Special
Treatment, 61 Nw. U. L. Rev. 388, 390 (1966) (quoted in Otero v.
New York Housing Authority, 484 F. 2d 1122, 1135 (2d Cir.
1973). See also Gautreaux v. Chicago Housing Authority. 296 F.
Supp. 907 (N. D. Ill. 1969) (memorandum opinion), 304 F. Supp.
736 (N. D. Ill.) (judgment order), aff'd, 436 F. 2d 306 (7th Cir.
1970), cert. denied, 402 U. S. 922, 91 S. Ct. 1378 (1971). See
generally Ackerman, Integration for Subsidized Housing and_ the
Question of Racial Occupancy Controls, 26 Stan. L. Rev. 245, 251-70
(1974): Note, 85 Harv. L. Rev. 870, 875-76 (1972).
21. Otero was decided in two parts at the trial level, 354 F.
Supp. 941 (S. D. NX. Y. 1973) preliminary injunction granted), and
344 F. Supp. 737 (S. D. N. Y. 1972) (order).
22. Judge Mansfield, writing for the Second Circuit, analyzed
that constitutional basis for the Authority’s duty to integrate in this
fashion.
“We agree with the parties and with the district court that
the Authority is under an obligation to act affirmatively to
achieve integration in housing. The source of that duty is both
constitutional and statutory. Various discriminatory housing
practices have been outlawed by judicial decree as violative of
the Equal Protection Clause. An authority may not, for in-
stance, select sites for projects which will be occupied by non-
whites only in areas already heavily concentrated with a higher
proportion of non-whites. Shannon v. HUD, 436 F. 2d 809
(3d Cir. 1970). noted in 85 Harv. L. Rev. 870 (1972). <A tenant
assignment policy which assigns persons to a particular project
because of the concentration of persons of his own race already
residing at the project has been prohibited. Gautreaux v.
Chicago Housing Authority, 296 F. Supp. 907, 304 F. Supp.
A12 Penna. Supreme Court Opinion
‘‘the Authority may limit the number of apartments to
be made available to persons of white or non-white
races, including minority groups, where it can show
that such action is essential to promote a racially bal-
anced community and to avoid concentrated racial
pockets that will result in a segregated community.”’
Id. at 1140.
Crow v. Brown, 332 F. Supp. 382 (N. D. Ga. 1971),
aff’d, 457 F. 2d 788 (Sth Cir. 1972), involved a cheilenge to
a plan to disperse public housing, which the court found to
attract largely poor blacks, in areas outside Atlanta’s
ghettoes. The selected sites lay in Fulton Ceuanty, unincor-
porated but subject to the jurisdiction of the Atlanta Hous-
ing Authority. Officials of Fulton County, who by various
stratagems had frustrated the implemeutation of the plan,
were held to have acted unconstitutionally. The heart of
the district court’s opinion is the thoughtful conclusion that
‘(flor better or worse, both by legislative act and
judicial decision, this nation is committed to a policy
of balanced and dispersed public housing... . Among
other things, this reflects the recognition that in the
area of public housing local authorities can no more
22. (Cont’d.)
736 (judgment order) (N. D. Ill. 1969), aff'd., 436 F. 2d 306
(7th Cir. 1970), cert. denied, 402 U. S. 922, 91 S. Ct. 1378, 28
L. Ed. 2d 661 (1971). An authority is barred from using as-
signment methods which seek to exclude, or have the evident
effect of excluding, persons of minority races from residing in
predominantly white areas or of restricting non-white to areas
already concentrated by non-white residents. Crow v. Brown,
332 F. Supp. 382 (N. D. Ga. 1971), aff'd., 457 F. 2d 788 (Sth
Cir. 1972). Not only may such practices be enjoined, but af-
firmative action to erase the effects of past discrimination and
desegregate housing patterns may be ordered.”
Otero v. New York Housing Authority, 484 F. 2d 1122, 1133 (2d
Cir. 1973).
Penna. Supreme Court Opinion Al13
confine low-income blacks to a compacted and con-
centrated area than they can confine their children to
segregated schools.’’
Id. at 390 (citations & footnote omitted). The unifying
theme of these and other cases is that this nation is dedi-
cated to balanced and dispersed integrated, public housing.”
In trying to eradicate other manifestations of racial
discrimination, courts, including the Supreme Court of the
United States, have recognized that statistics alone can
establish racial discrimination. Turner rv. Fouche, 396 U.S.
346, 90 S. Ct. 532 (1970), confronted the Supreme Court
with the issue whether blacks had been excluded from grand
23. The sole case cited affirmatively by the Authority, Black-
shear Residents Org. v. Housing Authority, 347 F. Supp. 1138
(W. D. Tex. 1971), is directly contrary to its position. There,
plaintiffs sought an order compelling the housing authority to adopt
an affirmative action plan to desegregate racially-imbalanced housing
projects. The court’s response is well-considered and apt.
“In justification of the relief sought, plaintiffs analogize the
present posture of the Housing Authority to that of a local
school board faced with the vestiges of a formerly segregated
school system. Upon the authority of Green v. County School
Board, 391 U. S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968),
they contend that the Housing Authority is ‘clearly charged with
the affirmative duty to take whatever steps might be necessary
to convert to a unitary system in which racial discrimination
would be eliminated root and branch,’ 391 U. S. at 437-438, 88
S. Ct. at 1694, and cite subsequent Fifth Circuit school desegre-
gation cases in support of their proposal for a desegregation plan
to be implemented under the continuing supervision of the Court.
The comparison appears in many respecis to be quite accurate.”
Id. at 1145. The relief requested was denied, however, for two rea-
sons. First, the court found that the housing authority faithfullv
adhered to HUD tenant selection procedures. Second, the authority
had officially declared that it would disperse future housing projects
outside of areas exclusively populated by minority groups. Neither
factor appears instantly. The Commonwealth Court concluded (and
the Authority is bound by this conclusion because it took no appeal,
see note 12 supra) that the Authority had not in fact complied with
HUD regulations. And the record contains no official commitment
by the Authority to disperse housing projects.
Al4 Penna, Supreme Court Opinion
i
juries because of their race. After reviewing the evidence,
Mr. Justice Stewart speaking for a unanimous Court, con-
cluded:
‘*In sum, the appellants demonstrated a substantial
disparity between the percentages of Negro residents
in the county as a whole and of Negroes on the newly
constituted jury list. They further demonstrated that
the disparity originated, at least in part, at the one
point in the selection process where the jury commis-
sioners invoked their subjective judgment rather than
objective criteria. The appellants thereby made out a
prima facie ease of jury discrimination, and the burden
fe]l on the appellees to overcome it.”’
Id. at 360, 90 S. Ct. at 540 (footnote omitted). Since no
acceptable explanation was offered to rebut the prima facie
case, the Supreme Court concluded that the grand jury
selection process under scrutiny was unconstitutional.”
24. See also Griggs v. Duke Power Co., 401 U. S. 424, 91 S. Ct.
849 (1971). ‘There, the United States Supreme Court under the
authority of the Civil Rights Act of 1964, 42 U.S. C. A. § 2000e-2
(1974), invalidated the requiren:ents of standardized general intelli-
gence tests or high school education jor employment, where the re-
quirements bore no relation to the jobs sought, the jobs were formerly
held only by whites, and the effect of the tests was to disadvantage
minority groups. “|G]ood intent or absence of discriminatory intent
does not redeem employment procedures or testing mechanisms that
operate 2s ‘built-in headwings’ for minority groups and are unrelated
to measuring job capability.” Id. at 432, 91 S. Ct. at 854. See also
Hawkins v. Town of Shaw, 401 F. 2d 1171 (3th Cir. 1972) (en
banc) (per curiam). For an exhaustive treatment on the relation-
ship between discriminatory motive and proof of discrimination, see
United States v. Texas Educ. Agency, 467 F. 2d 848, 864-65 n. 25
(5th Cir. 1972) (en banc).
In United States v. Medical Society, 298 F. Supp. 145 (D. S. C.
1969), the United States Attorney General sought to restrain a
hospital from operating on a racially discriminatory basis. There
was no finding that a black had ever been refused admission to the
hospital. The court nonethcless held that where the hospital’s
“course of conduct has predictably resulted in practically no Negroes
being patients at” the hospital, Id. at 152, a Civil Rights Act viola-
tion had been made out. See 42 U. W.C. A. § 2000a-5(a) (1974).
Penna, Supreme Court Opinion Ald
In Hawkins v. Town of Shaw, 487 F. 2d 1286 (Sth Cir.
1971), aff'd en bane, 461 F. 2d 1171 (Sth Cir. 1972) (per
curiam), the United States Court of Appeals for the Fifth
Circuit found a prima facie case of racial discrimination
violative of the equal protection clause from statistics
alone: almost 100% of the houses in Shaw not served by
municipal services were occupied by blacks. Having found
a prima facie case, the court considered whether a com-
pelling governmental interest justified the disparities, and
concluded none did. 487 F. 2d at 1288-92.
Parham v, Southwestern Bell Telephone Co., 433 F. 2d
421 (8th Cir. 1970), involved employment discrimination.
The court had before it statistics that the Arkansas em-
ployer had never had more than 2% blacks in its work force,
and that the black population of Arkansas, according to the
1960 census, was over 21%. The Court of Appeals for the
Eighth Circuit held that ‘‘these statistics; which revealed
an extraordinarily small number of black employees, except
for the most part as menial laborers, established a violation
of Title VII of the Civil Rights Act of 1964.’’ Id. at 426
(footnote omitted). See 42 U.S. C. A. § 2000e-2(a) (1974).
NLRB v. Mansion House Center Management Corp.,
473 F. 2d 471 (9th Cir. 1973), held that ‘‘the remedial
machinery of the National Labor Relations Act cannot be
available to a union which is unwilling to correct past prac-
tices of racial discrimination.’’ Id. at 477. At issue also
was whether the hearing examiner and Board had properly
excluded statistics from being used to demonstrate union
racial discrimination. In holding the agency decision to he
error, the court stated that
‘‘statistical evidence may well corroborate and estab-
lish that a union has been guilty of racial practices in
the past. In face of such proof, passive attitudes of
good faith are not sufficient to erase the continuing
Al6 Penna. Supreme Court Opinion
stigma which may pervade a union’s segregated mem-
bership policies. The fact that no minority applicant
has been rejected by the union is not the sole test.’’
Id.
The United States Court of Appeals for the Tenth
Circuit has likewise concluded that even in the absence of
proof of a single act of discrimination, an unlawful employ-
ment practice in violation of 42 U. S. C. A. § 2000e-2(a)
(1974) can be made out from statisties alone. Jones v. Lee
Way Motor Freight, Inc., 431 F. 2d 245, 247 (10th Cir.
1970), cert. denied, 401 U. S. 954, 91 8. Ct. 972 (1971).
These cases demonstrate the salutory principle: ‘‘In
the problem of racial discrimination, statistics often tell
much, and Courts listen.’’ Alabama v. United States, 304
F. 2d 583, 586 (5th Cir.) (footnote omitted), aff’d, 371 U.S.
37, 83'S. Ct. 145 (1962). See also Brooks v. Beto, 366 ¥F. 2d
1, 9 (Sth Cir. 1966).*° That principle underlay our decision
25. Accord, United States v. Local 46, Wood Lathers, 471 F. 2d
408, 414 n. 11 (2d Cir.), cert. denied, 412 U. S. 939, — S. Ct. —
(1973) ; United States v. Chesapeake & O. Ry.; 471 F. 2d 582, 583
(4th Cir. 1972), cert. denied, 411 U. S. 939, 93 S. Ct. 1893 (1973);
Rowe v. General Motors Corp., 457 F. 2d 348, 355 (5th Cir. 1972) ;
Local 189, Papermakers v. United States, 416 F. 2d 980 (3th Cir.
1969), cert. denied, 397 U. S. 919, 90 S. Ct. 926 (1970); United
States v. N. L. Indus., Inc., 479 F. 2d 354 (8th Cir. 1973) ; United
States v. St. Louis-San Francisco Ry., 464 F. 2d 301 (8th Cir.
1972) ; United States v. Local 86, Ironworkers, 443 F. 2d 544, 551
(%h Cir.), cert. denied, 404 U. 5. 984, 92 S. Ct. 447 (1971) ; United
States v. Local 73, Plumbers, 314 F. Supp. 160 (S. D. ind. 1969) ;
Lea v. Cone Mills Corp., 301 F. Supp. 97, 102 (M. D. N. C. 1969),
modified, 438 F. 2d 86 (4th Cir. 1971); Dobbins v. Local 212, Elec-
trical Workers, 292 F. Supp. 413 (S. D. Ohio 1968).
26. Accord, Turner v. Fouche, 396 U. S. 346, 360, 90 S. Ct.
532, 540 (1970) (grand jury and school board selection); United
States v. Board of Educ., 396 F. 2d 44, 46 (3th Cir. 1968);
Armstead v. Starkville Municipal Separate School Dist., 325 F. Supp.
560, 569 (N. D. Miss. 1971), modified, 401 F. 2d 276 (3th Cir.
1972). See also Local 67, Iron Workers v. Hart, 191 N. W. 2d
758, 769-70 (lowa 1971).
Penna. Supreme Court Opinion Al7
in Chester School District, and it underlies our decision
today.
The Authority secks to avoid the impact of the Human
Relations Act by arguing that blacks do not want to live
with whites and whites not with blacks.*7 Preliminarily, the
record belies this argument. The director of the William
Penn project testified that she was also responsible for the
administration of another project, one for the elderly. Ae-
cording to her testimony, at the time of the public housing
this project was amicably integrated, with approximately
an equal number of blacks and whites as tenants.
A more forceful rebuttal, however, is found in the
elegant language of Justice Frankfurter.
‘*Local customs, however hardened by time, are not
decreed in heaven. Habits and feelings they engender
may be counteracted and moderated. Experience
attests that such local habits and feelings will vield,
gradually though this be, to law and education. And
educational influences are exerted not only by explicit
teachings. They vigorously flow from the fruitful ex-
ercise of the responsibility of those charged with
political official power and from the almost ureon-
sciously transforming actualities of living under law.’
Cooper v. Aaron, 358 U.S. 1, 25, 78 S. Ct. 1401, 1413 (1958)
(concurring opinion). Or, as this Court stated in Chester
27. Another variation of this argument advanced by the Author-
ity is that its compliance with the Commission order will result in
substantial vacancies for considerable durations in the four projects.
At this point, suffice it to say that the record is utterly barren of
any indication that this will be the case.
28. In United States v. Jefferson County Bd. of Educ., 417
F. 2d 834 (5th Cir. 1969), a school desegregation case, the Court of
Appeals for the Fifth Circuit stated:
“There was testimony that white students would not attend
formerly Negro schools. This is not a legal argument.”
A18 Penna. Supreme Court Opinion
School District, “The best way to demonstrate the ‘inherent
worth of [one’s] neighbor’ is to place individuals in a situa-
tion where they are exposed to their neighbor.’’ 427 Pa.
at 171, 233 A. 2d at 297. In the final analysis, to give effect
to this argument of the Authority would be to begin to undo
the progress, often difficult and laborious in achievement,
we as a nation have taken toward a discrimination-free
society. See, e.g., Uniontown Area School District v. Penn-
sylvania Human Relations Commission, 455 Pa. 52, 313 A.
2d 156 (1973) ; Balsbaugh v. Rowland, 447 Pa. 423, 290 A. 2d
85 (1972); Pennsylvania Human Relations Commission v.
Chester School District, 427 Pa. 157, 283 A. 2d 290 (1967).
The Authority next contends that it has no respon-
sibility to end de facto segregation because its compliance
with federal law and the regulations of the United States
Department of Housing and Urban Development preempts
the sanctions of the Human Relations Act. This issue was
raised in the Commonwealth Court and decided adversely
to the Authority. Since the Authority took no appeal, it is
bound by the decision of the court on this issue. See note
12 supra.
That court most emphatically rejected the factual
predicate to the Authority’s argument.
‘‘Reading the record with care, we find that {the
Authority’s] blank pronouncement of adherence to
HUD’s Plan B '“") is not substantiated by sworn testi-
28. (Cont’d.)
Id. at 837 n. 2. See also Steel v. Savannah-Chatham County Bd. of
Educ., 333 F. 2d 55, 61 (5th Cir.), cert. denied, 379 U. S. 933, 85
S. Ct. 332 (1964).
29. The Director of Assisted Programs at HUD’s Philadelphia
Regional Office (covering Chester) testified at the public hearing
and described the circumstances relating to the Authority’s tenant
selection procedure in the following fashion. In 1968 HUD required
the Authority to adopt a nondiscriminatory tenant selection proce-
dure: the choice was between a Plan A and a Plan B. Plan A con-
Penna. Supreme Court Opinion A19
mony. HUD officers testified that they never thor-
oughly investigated the files of [the Authority] to de-
termine whether the plan was implemented.
‘‘In truth, the testimony demonstrates that any
HUD investigation would be futile. [The Authority ]
in only a few instances noted an applicant’s rejection
of available housing prior to ultimate acceptance of
a location. This violates the HUD formulated plan
which requires [the Authority] to interpose at the
bottom of the list of prospective tenants an applicant
who refuses housing. Where no rejections were indi-
cated, how can one determine whether the HUD plan
had been followed?’’
9 Pa. Commonwealth Ct. at 423, 305 A. 2d at 755.
We also cannot agree with the conclusion of the Com-
monwealth that the Commission did not support with sub-
stantial evidence its finding that racial imbalance in the
four projects increased segregation in Chester’s public
schools, Chester School District, 427 Pa. at 170-71, 233 A.
2d at 297, specifically recognized the correlation between
housing patterns and segregated schooling. It would be
illogical indeed to maintain that neighborhood schools do
not reflect the racial composition of the neighborhoods from
which they draw their pupils.” ‘‘One of the consequences
29. (Cont’d.)
templated that a prospective tenant would be given a single offer of
housing and if he declined, would go to the bottom of the list. Plan
B allowed a housing authority to extend up to three offers of housing
before a refusal would require the prospective tenant to be given
lowest priority. Offers, pursuant to Plan B, were made on the basis
of location, and not projects. In other words if two (or more)
projects were physically proximate, an offer at either would be con-
sidered a single offer for both. The Authority chose Plan B;
Lamokin and Ruth Bennett are defined as a single location.
30. The Legislature as part of its findings for the Human Rela-
tions Act explicitly acknowledged the connection between racial dis-
crimination in housing and segregated schools. °
A20 Penna. Supreme Court Opinion
of . . . racial concentration is that it has become virtually
impossible to achieve meaningful school desegregation.
Indeed, as even a glimmering of objectivity will disclose,
a dispersal of urban housing patterns is the only alternative
to massive bussing if desegregation, rather than resegrega-
tion, is to be achieved.’’ Crow v. Brown, 332 F. Supp. 382,
391 (N. D. Ga. 1971), aff'd, 457 F. 2d 788 (Sth Cir. 1972).
Moreover, two officials of the Chester School District testi-
fied at the public hearing that greater racial balance in the
four projects would substantially aid the district's task in
integrating Chester’s public schools.
Our final task is to decide whether the Commission’s
order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies of the
Human Relations Act. Pennsylvania Human Relations
Commission v. Alto-Reste Park Cemetery Association, 453
Pa. 124, 134, 306 A. 2d 881, 887 (1973) (adopting standard
enunciated in Fibreboard Paper Products Corp. v. NLRB,
379 U. S. 203, 216, 85 S. Ct. 398, 406-07 (1964)).
Paragraphs two, three, and four *1 can be treated as a
unit since they all relate to the Commission’s directing the
Authority to take affirmative steps to end the de facto segre-
gation in its four projects. We have determined that de
facto segregation in Chester’s public housing is prohibited
by the Human Relations Act. An unlawful discriminatory
practice having been found to exist, the Commission is
statutorily empowered ‘‘to take such affirmative action...
as, in the judgment of the Commission, will effectuate the
purposes of this act... .”’ 43 P. S. $959 (Supp. 1974).
30. (Cont’d.)
“The denial of equal . . . housing . . . opportunities because
of [racial] discrimination . . . compels many individuals to
live in dwellings which are substandard, unhealthful and over-
crowded, resulting in racial segregation in public schools . . . .”
43 P. S. $952(a) (Supp. 1974).
31. For the text of paragraphs two, three, four, eight, and ten,
see Appendix C.
Penna. Supreme Court Opinion A21
We cannot say on this record that this remedy embodied
in paragraphs two, three, and four—designed to achieve in
each of the four housing projects the same racial composi-
tion that exists throughout all the Authority’s projects “—
is a patent attempt to achieve ends other than those which
can fairly be said to effectuate the policies of the Act.
As for the reporting requirement (paragraph eight),
this Court in Alto-Reste, supra at 136-37, 306 A. 2d at
888-89, directly approved such a remedy. We note again
that the Legislature specifically authorized the Commission
in its discretion to require a ‘‘report of the manner of
compliance.”? 43 P. S. $959 (Supp. 1974). And the Com-
mission did not abuse its discretion in determining that
two years is a reasonable time period. See Alto-Reste,
supra at 136-38 nn. 7 & 8, 306 A. 2d at 888-89 nn. 7 & 8.
Finally, paragraph ten directs the Authority to meet
with the Chester School District to draft a plan to ensure
that tenants with school-age children would receive priority
in being assigned housing in the to-be-integrated projects.”
This paragraph was designed to cure the violation of 43
P. S. 6 955(e) (1964), prohibiting the aiding and abetting
of unlawful discriminatory practices. Not only does this
portion of the order seek to remedy that violation, but it
will undoubtedly also aid the officials of Chester’s public
schools in fulfilling their obligations under Chester School
District. Again, the record does not allow us to conclude
32. Because the Commission’s order secks to make the racial
composition in each housing project correspond to the ratio of
whites to blacks for all projects administered by the Authority, it
does not appear that either blacks or whites as groups will be favored
or disadvantaged in their quest for public housing, to any greater
extent than they are presently.
33. We note there is nothing in the record or in the Commis-
sion’s order that indicates tenants who currently reside in the four
projects would be assigned to another project on anything but a
voluntary basis.
A22 Penna. Supreme Court Opinion
that by this order a patent attempt is being made to cir-
cumvent the fairly-stated policies of the Act.*
Accordingly, paragraphs two, three, four, eight, and
ten of the Commission’s final order of April 24, 1972, are
reinstated. So modified, the order of the Commonwealth
Court is affirmed.
Mr. Cuier Justice Jones and Mr. Justice Eacen con-
cur in the result.
34. We reiterate our specific holding in Balsbaugh v. Rowland,
447 Pa. 423, 290 A. 2d 85 (1972), that racial consciousness is appro-
priate in fashioning a remedy once unlawful discrimination has been
found to exist.
Just as the race of students must be considered in determining
whether a constitutional violation has occurred, so also must
race be considered in formulating a remedy.’ ”
Id. at 437-38, 290 A. 2d at 93 (quoting North Carolina Bd. of Educ.
v. Swann, 402 U. S. 43, 46, 91 S. Ct. 1284, 1286 (1971)). See
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U. S. 1, 15, 91
S. Ct. 1267, 1276 (1971) ; United States v. Montgomery County Bd.
of Educ., 395 U. S. 225, 234, 89 S. Ct. 1670, 1674-75 (1969) ;
Coppedge v. Franklin County Bd. of Educ., 394 F. 2d 410, 412 &
n. 2 (3th Cir. 1968). In Louisiana v. United States, 380 U. S. 145.
85 S. Ct. 817 (1965), the Supreme Court stated:
“We bear in mind that the court has not merely the power but
the duty to render a decree which will so far as possible eliminate
the discriminatory effects of the past as well as bar like discrim-
ination in the future.”
Id. at 154, 85 S. Ct. at 822. Cf. DeFunis v. Odegaard, 82 Wash.
2d 11, 507 P. 2d 1169 (1973), vacated as moot and remanded, —
U.S. —. 94S. Ct. 1704 (1974); San Francisco Unified School Dist.
v. Johnson, 3 Cal. 3d 937, 948-51, 479 P. 2d 669, 675-77, 92 Cal.
7 309, 315-17, cert. denied, 401 U. S. 1012, 91 S. Ct. 1266
(1971).
Order Denying Petition A23
ORDER OF THE SUPREME COURT OF PENNSYL-
VANIA DENYING PETITION FOR LEAVE TO
FILE PETITION FOR REARGUMENT.
December 17, 1974
Petition denied.
Per Curiam
A24 Penna. Commonwealth Court Opinion
OPINION OF THE COMMONWEALTH COURT
OF PENNSYLVANIA.
IN THE
COMMONWEALTH COURT OF PENNSYLVANIA
No. 506 C. D. 1972
Chester Housing Authority,
Appellant
v.
Pennsylvania Human Relations Commission,
Commonwealth of Pennsylvania,
Appellee
Before:
Honorable James S. Bowman, President Judge.
Honorable James C. Crumlish, Jr., Judge.
Honorable Harry A. Kramer, Judge.
Honorable Roy Wilkinson, Jr., Judge.
Honorable Glenn E. Mencer, Jndge.
Honorable Theodore O. Rogers, Judge.
Honorable Genevieve Blatt, Judge.
Argued: January 8, 1973
Opinion by Judge Crumlish, Jr., filed: June 11, 1973:
The Pennsylvania Human Relations Commission
directed the Chester Housing Authority to reform its
present tenant selection and assignment procedures and to
take affirmative action to alleviate the racial imbalance at
itx housing facilities.
In a letter dated July 13, 1971, the Chairman of the
Pennsylvania Human Relations Commission [Commission]
Penna. Commonwealth Court Opinion A25
notified the Chairman of the Chester Housing Authority
[CHA] that a public hearing would be conducted on August
5, 1971, to receive testimony relative to a Commission-
initiated Complaint.'. The Complaint alleged that CHA
had in the past ‘‘ maintained and continues until the present
time to maintain housing projects under its supervision
and control which are segregated by the race of the tenants
thereim’’ and that its failure to take corrective measures
constituted an unlawful discrimination practice in violation
of Section 5(h)(1) of the Pennsylvania Human Relations
Act. The Complaint further alleged that such discrimina-
tory practice by CHA ‘‘effectively aids and abets the con-
tinuing sesregation of students within the publie schools in
the City of Chester”’ in violation of Section \(e) of the Act.
After the filing of the complaint, the Commission con-
ducted an investigation and as a part thereof examined the
files and policies of CHA and as a result determined that
probable cause existed for crediting the allegations of the
complaint.
A public hearing was conducted on August 5, 1971 after
which the Commission unanimously determined that CHA
had engaged in discriminatory practices in violation of
Sections 5(h)(1) and 5(e) of the Pennsylvania Human
Relations Act.
CHA appeals to us.
At the outset, we feel compelled to note that the record
in this case is very disorganized and at times approaches
incoherence which makes effective appellate review in this
inherently complex and vital area at best difficult. Unless
this Court is supplied with a coniprehensive, coherent
record, significant and damaging delays in the administra-
1. Section 3(f) of the Pennsylvania Human Relations Act, Act
of October 27, 1955, P. L. 1955, as amended, 43 P. S. $951. author-
izes the Commission to initiate a complaint.
A26 Penna. Commonwealth Court Opinion
tion of justice will result. Having spoken, we now focus
our attention on the merits of the case.
CHA was created under the Housing Authorities Law *
and is autnorized to construct, own, maintain and operate
federally assisted low rent housing in the City of Chester,
ineluding those projects known as Lamokin Village, Ruth
L. Bennet Terrace Homes, William Penn Homes and Me-
Caffery Village pursuant to 42 U.S. C. § 1401 et seq.
In the summer of 1969, the racial composition of these
projects was as follows:
Lamokin Village 346 Blacks 0 Whites
McCaffery Village 0 Blacks 347 Whites
Ruth L. Bennet Homes 385 Blacks 0 Whites
William Penn Village 957 Blacks 20 Whites
The thrust of the Commission’s allegations and the
final decision is that the tenant selection and placement
process employed by CHA resulted in black applicants hav-
ing the opportunity to rent apartments only in those
facilit_es predominantly housing black families.* The selec-
tion process, the Commission held, was discriminatory and
in contravention of the Pennsylvania Human Relations Act.
CHA contends that the Commission erred in its deter-
mination that CHA discriminated in providing housing on
the basis of racial considerations because :
1. The acts charged to CHA by the Commission
(assuming competent proof) do not violate any pro-
vision of the Pennsylvania Human Relations Act;
2. The Pennsylvania Human Relations Act does
noi pre-empt provisions of federal and state statutes
relating to low-cost housing;
2. Act of May 28, 1937, P. L. 955, Section 1, as amended, 35
P. S. § 1541 et seq.
3. The Commission also stresses the converse that is that whites
were denied the opportunity to rent available apartment space in the
black projects.
Penna. Commonwealth Court Opinion A27
3. The Commission’s findings of fact and conclu-
sions of law were not supported by substantial evi-
dence ; and
4. The Commission’s order is unenforceable.
We strike down the appellant’s first three contentions.
With the fourth, in part, we agree.
The Order of the Commission:
‘*Final Order
And Now, this 24th day of April, 1972, upon con-
sideration of the foregoing Findings of Fact, Conclu-
sions of Law, Commission’s Decision and pursuant to
Section 9 of the Pennsylvania Human Relations Act, it
is hereby
Ordered
That Respondent Chester Housing Authority, its
agents, servants, employees and each of their respec-
tive successors :
1. Shall cease and desist from employing its pres-
ent tenant selection and assignment procedures.
2. Shall cease and desist from renting housing ac-
commodations in MeCaffery Viliage to white tenant
families until the racial composition of said project re-
flects the ratio of negro to white tenant families in all
public housing pro,ects under Respondent’s super-
vision, direction and control.
3. Shall cease and desist from renting housing ac-
commodations in Lamokin Village, William Penn Vil-
lage and Ruth L. Bennet Homes to negro tenant
families until the racial composition of each of said
projects reflects the ratio of white to negro tenant
A28
Penna. Commonwealth Court Opinion
families in all public housing projects under Respond-
ent’s supervision, direction and control.
4. Shall develop and submit to the Pennsylvania
Human Relations Commission (at its Regional Office,
Room 101, State Office Building, Broad and Spring
Garden Streets, Philadelphia, Pennsylvania) for its
approval, within 60 days of the effective date of this
Order, an affirmative action program designed to
achieve in Respondent’s public housing projects the
racial composition as set forth in Paragraphs 2 and 3
above, and upon obtaining said approval, forthwith to
effectuate said program. Said plan shall include, but
not be limited to preocecupancy and post-occupancy
counseling and the establishment of tenant councils.
5. Shall, in writing, inform all applicants and all
present tenants of this Final Order and the content
thereof.
6. Shall, beginning with the effective date of this
Order, submit written offers to rent accommodations
in its public housing projects to all applicants and re-
quire all replies thereto to be in writing, maintaining a
permanent record of such offers and replies in its files.
7. Shall, from the effective date of this Order,
utilize the services of the intergroup specialist of the
Equal Opportunity Staff of the U. S. Department of
Housing and Urban Development and the consultative
services of the Pennsylvania Human Relations Com-
mission.
8. Shall report to the Pennsylvania Human Rela-
tions Commission at its Regional Office as above set
forth, beginning one month from the effective date of
this Order, and monthly thereafter until snch time as
a.
Penna. Commonwealth Court Opinion A29
the racial composition in each project, as set forth in
items 2 and 3 above, is achieved. Such report to con-
tain information regarding the racial composition of
each of its housing projects, as well as a list of all ap-
plicants, transfers, assignment and reassignments of
all units in all said projects under its supervision,
direction and control by racial identification and re-
flecting the ratio of negro and white tenant families as
set forth in paragraphs 2 and 3 above, family size and
size of unit requested and assigned, list of vacancies in
each project and, thereafter, shall for a further period
of two years, make such reports quarter-annually.
9. Shall, within 90 days of the effective date of this
Order, establish objective written standards for the
approval of applicants and assignment of units, copies
of said standards to be submitted to the Pennsylvania
Human Relations Commission (as set forth above) for
its approval.
10. Shall meet with the Chester School District for
discussion and drafting of a plan for a priority selec-
tion system for the placement of tenants with school-
age children in Respondent’s housing projects which
placement will facilitate the desegregation of the
schools of Chester School District and which shail be
made to the Pennsylvania Human Relations Commis-
sion (as above sect forth), within 180 days of the effec-
tive date of this Order, for its approval, whereupon
same shall be forthwith effectuated.’’
Looking at the Commission’s findings, we see its con-
cern for tenant selection procedures which result in blacks
being offered apartments only available in the black hous-
ing projects, and whites apartments only in the predomi-
nantly white project. This, in the Commission’s eyes, is a
A30 | Penna. Commonwealth Court Opinion
discrimination prohibited by the Pennsylvania Human Re-
lations Act. :
The appellant contends that the Human Relations Act
simply prohibits a refusal to lease based on racial discrimi-
nation, and that in fact CHA has never refused to rent due
to one’s racial extraction. At the worst, assuming that the
Commission can prove CHA does undertake such policies,
it merely funneis blacks into black projects and whites into
white projects according to CHA.
The pertinent section of the Human Relations Act at
issue here is Section 5. Section 5 declares it to be an un-
lawful discriminatory practice: |
‘*(h) for any person to:
(1) Refuse to sell, lease, finance or otherwise to
deny or withhold commercial housing because of the
race, color . . . of any prospective . |. . occupant or
user of such commercial housing. . . .”* (Emphasis
added.)
We are fortified in our conclusion that appellant has
construed the language of § 5(h)(1) 100 strictly by a careful
reading of :5(h)(1) and by other relevant sections of the
Act.
Appellant suggests that unless there is a complete re-
fusal to rent to a black there can be no violation of the
Act. Let us examine appellant’s rationalization. When a
black person is told by CHA that there is no apartment
space available when in fact there is space available at the
white project, at that precise moment there ix a refusal te
rent because of the race of the prospective occupant, which
specifically defies Section 5 of the Human Relations Act.
To say as appellant does, that a later offer of space to the
same black person within the black housing project when
and if it becomes available erases the racial discrimination
Penna. Commonwealth Court Opinion A31
initially practiced is to clothe this Court with naivete which
we are unwilling to accept. Moreover, acecptance of ap-
pellant’s tight interpretation of the term *‘refuse to lease”’
would also cause us to decimate the legislature’s obvious
pronouncement that the provisions of the Pennsylvania
Human Relations Act ‘‘. . . shall be construed liberally
for the accomplishment of the purposes thereof... .°' 43
P.S. § 962(a).
Also and very simply, we feel that denying blacks the
opportunity to rent apartments in the white nousing
projects fits squarely within §5(h)(1) which prohibits
‘*withhold[ing] commercial housing because of the race”’
of any prospective owner (tenant or occupant).
Appellant’s second contention is that the Pennsylvania
Act does not preempt provisions of federal and state stat-
utes relating to low-ecsi housing. This appears to relate
to CHA’s primary defense at the Commission hearing, that
CHA followed a tenant selection plan structured by the
United States Department of Housing and Urban Develop-
ment [HUD] which was designed to effectuate Title VI of
the Civil Rights Act of 1964.’
Reading the record with care, we find that CHA’s blank
proncuncement of adherence to HUD’s Plan B is not sub-
stantiated by sworn testimony. HUD officers testified that
they never thoroughly investigated the files of CHA to
determine whether the plan was implemented.
In truth, the testimony demonstrates that any HUD
investigation would be futile. CHA in only a few instances
4. Appellant’s argument in this area simply stresses the appel-
lant’s position that no state Human Kelations Commission should be
permitted to interfere with a federally-assisted housing development
if the administration of that development conforms with the applicable
federal law.
We dissect such a general statement into the one issue that ap-
pears relevant considering the context of this particular factual situa-
tion.
A32 Penna. Commonwealth Court Opinion
noted an applicant’s rejection of available housing prior to
ultimate acceptance of a location. This violates the HUD
formulated plan which requires CHA to interpose at the
bottom of the list of prospective tenants an applicant who
refuses housing. Where no rejections were indicated, how
can one determine whether the HUD plan had been fol-
lowed?
Putting to rest the preemption argument, we say that
the mere fact that CHA is federally assisted does not
exempt it from the provisions of the State Human Relations
Act which bars housing discrimination. An authority
created by the State Legislature * and clothed with public
trust must bear the closest scrutiny.®
Next, we look to the appellant’s third contention, that
the Commission's finding of fact and conclusions of law are
not supported by substantial evidence.
The Administrative Agency Law, Act of June 4, 1945,
P. L. 1388, as amended, 71 P. S. § 1710 and the Pennsylvania
Human Relations Act tell in reviewing an adjudication of
the Pennsylvania Human Relations Commission that we
must limit ourselves to a determination of whether the
agency acted in accordance with the law and whether find-
ings of fact to support the conclusion are based on sufficient
evidence. Wilkinsburg School District et al. v. Human Re-
lations Commission et al., 6 Pa, Commonwealth Ct. 378, 295
A. 2d 609 (1972).
We have painstakingly reviewed the testimony pro-
duced at the hearing stage. Generally, the evidence on
which the Commission relies in support of its allegations
of discrimination is spotty and indeed lacks fundamental
5. Housing Authorities Law, Act of May 28, 1937, P. L. 955,
as amended, 35 P. S. $ 1541 et seq.
6. The Commonwealth and all political subdivisions and author-
ities are specifically subjected to the requirements of the Pennsylvania
Human Relations Act. 43 P. S. § 954(a).
Penna. Commonwealth Court Opinion A33
background material. No thorough study of the duration
and overall effect of the implementation of the tenant selee-
tion and placement procedures was ever made. What was
established through sufficient evidence, however, was that
certain tenants had been routed through CHA’s tenant
placement procedure into projects whose tenant majority
(usually entirety) corresponded to the tenants’ race.
The appellant concedes that blacks are always offered
positions in black projects, and that whites never are. It
points to a complicated system of priorities allegedly based
on the HUD plan and the prevalent number of vacancies in
the black project as the real cause of the continued scheme
of segregation.
However, to us the most telling evidence came from
the occupancy supervisor for CHA who could give no reason
why a black woman with a priority need was caused to
wait for an opening in a black project when, during that
wait, the white project had a suitable vacancy.
We conclude that sufficient competent evidence was ad-
duced to sustain the Commission’s findings that particular
tenants, both black and white, were refused housing due to
racial considerations because CHA had failed to offer avail-
able space, regardless of location, to a top priority tenant
when it should have done sc, regardless of race con-
sideration.
The Commission’s ninth and tenth findings of fact
must fall because there is insufficient evidence to substan-
tiate these broad brush conclusions.?. The record fails to
7. These findings provide :
“9. As a result of the aforesaid practices the racial composi-
tions of Respondent's aforesaid public housing projects were and
are segregated by the race of the tenants thereof.
10. The maintaining of the aforesaid practices by Respond-
ent has increased the racial segregation of the public schools of
the City of Chester. Of 3,000 students in the four Chester Public
Housing units, approximately 2700 to 2800 attend Chester Public
<ctintteantntiaaddaied
A34 Penna. Commonwealth Court Opinion
reveal the duration of discriminatory practices or the
probable effect on the racial composition of the housing
projects as they now exist. Factors other than discrimina-
tory selection and placement procedures may very well
have been the reason for the present segregated housing
composition of the Chester housing projects. Particular
instances of tenant discrimination in 1970 and 1971 are just
not enough to sustain the Commission’s findings that the
discriminatory selection procedures are the cause of the
present racial composition in the Chester Schools and hous-
ing projects.
Finally, we turn to the order of the Commission and
appellant’s final contention that the order is unenforceable.
The appellant urges upon this Court the argument that
implementation of certain parts of the Commission’s order
would necessarily cause unbounded vacancies in the hous-
ing projects. This is not what makes the Order unenforce-
able. The Order requires CHA to cease renting accom-
modations to white tenants until the racial composition
in the white project reflects the total white to black ratio
in all the projects under its control. The same require-
ment is extended to the black projects. In addition to or
in furtherance of its objective, the Order sets up the
means by which this desegregation is to be implemented.
The ninth and tenth findings of fact were stricken be-
cause of the lack of evidence to support these findings.
Likewise, the portion of the Commission’s Order im-
plementing a far-reaching desegregation plan in the
Chester housing projects must be stricken for lack of evi-
dence. Once again, it must be emphasized that a record
7. (Cont’d.)
Schools. If the aforesaid four Public Housing units were ra-
cially balanced, the Chester School District Plan for racially
balancing its Public Schools would have been redesigned so as
to a the need and cost of busing Chester School District
students.”
Penna. Commonwealth Court Opinion A35
barely substantiating particular acis of discrimination in
tenant placement in the years 1970 and 1971 cannot be the
springboard for a Commission order which attempts to
rectify segregated housing projects when there is no evi-
dence to support the conclusion that these discriminatory
placement practices were the cause of the segregation.
These portions of the Commission’s Order are not
‘tunenforceable’’ as appellant contends, but rather are
‘‘unwarranted’’ because of the absence of evidence to sup-
port the Order.*
8. § 44 of the Administrative Agency Law gives the Court the
power to set aside or modify the Commission’s adjudication where the
findings of fact necessary to support its adjudication are not supported
by substantial evidence. Pennsylvania Human Relations Commission
vy. Chester School District, 427 Pa. 157. 233 A. 2d 290 (1967).
Meer ae
|
;
i
A36 Penna. Commonwealth Court Order
ORDER OF THE COMMONWEALTH COURT
OF PENNSYLVANIA.
ORDER.
And Now, this 11th day of June, 1973, the Order of
the Pennsylvania Human Relations Commission is hereby
affirmed with the exception of enumerated paragraphs two,
three, four, eight and ten which are stricken.
James C. Crumlish, Jr.,
Judge
PHRC Findings, Conclusions, Decision, Final Order A37
FINDINGS OF FACT, CONCLUSIONS OF LAW, DECI-
SION, AND FINAL ORDER OF THE PENNSYL-
VANIA HUMAN RELATIONS COMMISSION.
COMMONWEALTH OF PENNSYLVANIA.
PENNSYLVANIA HUMAN RELATIONS
COMMISSION.
Docket No. H-1395.
PENNSYLVANIA HUMAN RELATIONS
COMMISSION,
Complainant
v.
CHESTER HOUSING AUTHORITY,
Respondent.
FINDINGS OF FACT, CONCLUSIONS OF LAW,
COMMISSION’S DECISION AND FINAL ORDER.
Fixpincs or Fact.
1. Complainant herein is the Pennsylvania Human Re-
lations Commission, an administrative agency of the Com-
monwealth of Pennsylvania.
2. Respondent herein is the Chester Housing Author-
ity, a public housing authority of the Commonwealth of
Pennsylvania.
3. Respondent is in charge of and administers the
following public housing projects in Chester, Delaware
County, Pennsylvania, and the tenant selection and assign-
ment procedures thereof:
A38 PHRC Findings, Conclusions, Decision, Final Order
Lamokin Village, containing 350 units
McCaffery Village, containing 350 units
Ruth L. Bennett Homes, containing 390 units
William Penn Village, containing 300 units
4. In the Summer of 1969 the racial composition of
the aforesaid projects were as follows:
Lamokin Village 346 Negroes 0 whites
McCaffery Village 0 Negroes 347 whites
Ruth L. Bennett Homes 385 Negroes 0 whites
William Penn Village 257 Negroes 20 whites
5. At the time of the public hearing herein the racial
composition of the aforesaid projects were maintained as
above set forth.
6. Although the same type of honsing accommodations
was sought by both Negro and white applicants, Negro ap-
plicants whose applications were prior in time to applica-
tions of white applicants were not afforded an opportunity
to rent available accommodations of the type sought in
McCaffery Village but were, instead, offered accommoda-
tions in Lamokin Village, William Penn Village and Ruth
L.. Bennett Homes, to wit:
A. One Larrie Ellis, a Negro female, who applied on
August, 1970 for a 3-bedroom unit and on February 1, 1971
was leased a unit in Ruth L. Bennett Homes (1119 Norris)
which had been vacated on January 11, 1971. During the
period from August 24, 1970 to February 11, 1971, a 3-hed-
room unit in McCaffery Village (2800 W. 13th Street)
which is totally white, was vacated on December 4, 1970
and was rented on December 18, 1970 to one Eleanor
Hayes, a white female, even though she applied on Novem-
ber 3, 1970, a date later than when the aforesaid Larrie
Ellis applied.
PHRC Findings, Conclusions, Decision, Final Order A39
7. Although the same type of housing accommodations
was sought by both Negro and white applicants, white ap-
plicants whose applications were prior in time to applica-
tions of Negro applicants were not afforded an opportunity
to rent available accommodations in Lamokin Village,
William Penn Village and Ruth L. Bennett Homes but were,
instead, offered accommodations in McCaffery Village, to
wit:
A. One Alice Ferris, a white female, applied on Janu-
ary 14, 1970 for a 4-bedroom unit and on November 17,
1970 was leased a unit in totally-white McCaffery Village
(1010 McCaffery) which had been vacated on November 15,
1970. During the period from January 14, 1970 to Novem-
ber 17, 1970, 4-bedroom units were vacated in projects
which were totally-Negro or substantially Negro. All were
rented to Negro tenants, to wit:
1. To one Samuel Carr, a Negro male, who was leased
a unit in Ruth L. Bennett Homes (1408 Alexander) on
September 10, 1970 which had been vacated on June 30,
1970.
2. To one Annie Daniels, a Negro female, who was
leased a unit in William Penn Village (404 Grounsell) on
August 31, 1970 which had been vacated on July 2, 1970.
3. To one Valaida Washington, a Negro female, who
was leased a unit in William Penn Village (409 Pancoast)
on September 18, 1970 which had been vacated on July 23,
1970.
4. To one Lawton Porter, a Negro female, who was
leased a unit in William Penn Village (404 Grounsell) on
September 30, 1970 which had been vacated on September
21, 1970.
A40 PHRC Findings, Conclusions, Decision, Final Order
B. One Elizabeth Willis, a white female, applied on
January 20, 1970 for a 3-bedroom unit and on November
12, 1970 was leased a unit in totally-white MeCaffery Vil-
lage (1200 McCaffery) which had been vacated on October
30, 1970.
One Hirst, a white male, applied for a 3-bedroom unit
on March 10, 1970 und on November 17, 1970 was leased a
unit in McCaffery Village (1110 Booth Street) which had
been vacated on October 30, 1970.
During the period from January 20, 1970 to November
12, 1970 (in the case of the aforesaid Willis) and from
March 10, 1970 to November 17, 1970 (in the case of the
aforesaid Hirst) the following Negroes were placed in 3-
bedroom units in a totally-Negro project, to wit:
1. One Delores Hodges, a Negro female, who applied
on August 17, 1970, was leased a unit in Ruth L. Bennett
Homes (922 Norris) on September 11, 1970 which had been
vacated on June 2, 1970.
2. One Stinney, who is Negro and who applied on July
7, 1970, was leased a unit in Ruth L. Bennett Homes (1425
Norris) on October 10, 1970 which had been vacated on
September 9, 1970.
3. One Elizabeth Gorman, a Negro female, who applied
on July 15, 1970, was leased a unit in Ruth L. Bennett
Homes (303 Ayars Place) on that same day and which unit
had been vacated on May 15, 1970.
4. One Juanita Boyland, a Negro female, who applied
un April 22, 1970, was leased a unit in William Penn Village
(312 Gartside) on June 1, 1970 which had been vacated on
March 16, 1970.
C. One Charles Huck, a white male, applied on Feb-
ruary 8, 1971 for a 2-bedroom unit and on June 8, 1971 was
PHRC Findings, Conclusions, Decision, Final Order A41
leased a unit in totally-white McCaffery Village (1002
Hardwick) which had been vacated on May 21, 1971. In the
period from February 8, 1971 to June 8, 1971 a 2-bedroom
unit in totally-Negro Ruth L. Bennett Homes (1118 W.
Norris) had been vacated on May 11, 1971 and was leased
on June 9, 1971 to one Brenda Bradley, a Negro female,
who applied on April 12, 1971, more than two months after
the date of the aforesaid Huck’s application.
D. One Charles Rothwell, a white male, applied for a
2-bedroom unit on January 12, 1971 and on April 30, 1971
was leased a unit in totally-white McCaffery Village (1207
Ganster) when on March 18, 1971 such a unit had become
vacant in totally-Negro Ruth L. Bennett Homes (926 Sto-
vall) and which, on April 5, 1971, was leased to Victoria
Oliver, a Negro female, who had applied on March 17, 1971,
over two months after the date of Rothwell’s application.
8. Although burned-out families were to be accorded
priority, Respondent, disregarding such priority, placed
white applicants in a totally-white project and Negro ap-
plicants in a totally-Negro or substantially Negro project,
to wit:
A. One Adele Lewis, a Negro female, applied on Feb-
ruary 16, 1971 for a 2-bedroom unit and was granted a
burned-out priority. She was leased a unit in totally-Negro
Ruth L. Bennett Homes (1316 W. Norris) on February 22,
1971 when, on February 18, 1971, such a unit in totally-
white McCaffery Village (1200 Pulaski), vacant since Janu-
ary 30, 1971, was leased to one Sigola, a white female, who
had applied on February 11, 1971, notwithstanding that the
aforesaid Sigola did not have the aforesaid Lewis’s priority.
B. One Althea Nickens, a Negro female, applied on
June 30, 1970 for a 2-bedroom unit and was granted a
burned-out priority. She was leased a unit in substantially-
A42 PHRC Findings, Conclusions, Decision, Final Order
Negro William Penn Village (404 Ayars) on July 1, 1970
when, on July 7, 1970, such a unit in totally-white Me-
Caffery Village (1306 Pulaski), vacant since June 19, 1970,
was leased to one Barbara Hickey, a white female, who had
no priority.
9. As a result of the aforesaid practices the racial com-
positions of Respondent’s aforesaid public housing projects
were and are segregated by the race of the tenants thereof.
10. The maintaining of the aforesaid practices by Re-
spondent has increased the racial segregation of the public
schools of the City of Chester. Of 3,000 students in the
four Chester Public Housing units, approximately 2,700 to
2,800 attend Chester Public Schools. If the aforesaid four
Public Housing units were racially-balanced, the Chester
School District plan for racially-balancing its Public
Schools would have been redesigned so as to reduce the
need and cost of busing Chester School District students.
Coxc.iustions oF Law.
1. At all times herein mentioned Respondent, an Au-
thority of the Commonwealth of Pennsylvania, maintained
and continues to maintain the public housing projects, as
aforesaid, in Chester, Delaware County, Pa., under its
supervision, direction and control.
2. At all times herein mentioned Complainant had and
still has jurisdiction over the subject matter of these pro-
ceedings and over Respondent.
3. Because of its tenant selection and assignment pro-
cedures Respondent has maintained and continues to main-
tain public housing projects under its supervision, direction
and control that are segregated by the race of the tenants
thereof, an unlawful discriminatory practice in violation of
PHRC Findings, Conclusions, Decision, Final Order A43
Section 5(h)(1) of the Act of October 27, 1955 P. L. 744, as
amended, known as the Pennsylvania Human Relations Act.
4. Such aforesaid unlawful discriminatory practice by
Respondent aids and abets racial segregation in the public
schools of the City of Chester and is an unlawful discrim-
inatory practice in violation of Section 5(e) of the afore-
said Act.
5. The Complaint, as amended in the public hearing
herein, was properly made and executed in accordance with
Section 9 of the Pennsylvania Iluman Relations Act.
Ir Is, therefore, recommended that the Commission
enter an Order against Respondent requiring it to cease
and desist from employing its present tenant selection and
assignment procedures and to take affirmative action to
eliminate its unlawful discriminatory practices.
Josepn X. Yarre, Esq.,
Joseph X. Yaffe,
Presiding Commissioner.
Rosert Jouxsox Situ,
Dr. Robert Johnson Smith,
Hearing Commissioner.
Anprew G. Freeman,
Andrew G. Freeman,
Hearing Commissioner.
A44 PHRC Findings, Conclusions, Decision, Final Order
_ Commiussion’s Decision.
Anp Now, the 24th day of April, 1972, upon the recom-
mendation of the Hearing Commissioners and upon all the
evidence at the public hearing of this case and in considera-
tion of the Findings of Fact and Conclusions of Law, the
Pennsylvania Human Relations Commission, by unanimous
decision, finds and determines that Respondent Chester
Housing Authority has engaged in discriminatory practices
in violation of Section 5(h)(1) and 5(e) of the Pennsyl-
vania Human Relations Act of October 27, 1955 P. L. 744,
as amended, in that by the use of its tenant selection and
assignment procedures it has maintained the public housing
projects under its supervision, direction and control as
segregated by the race of the tenants thereof and, further,
aid and abets the continuing segregation of the students of
the public schools of the City of Chester, Delaware County,
Pennsylvania.
PHRC Findings, Conclusions, Decision, Final Order A45
COMMONWEALTH OF PENNSYLVANIA
PENNSYLVANIA HUMAN RELATIONS
COMMISSION
Doower No. H-TIIS.
PENNSYLVANIA HUMAN RELATIONS
COMMISSION,
Complainant,
v.
CHESTER HOUSING AUTHORITY,
Respondent.
FINAL OKDER.
Axp Now, this 24th day of April, 1972, upon considera-
tion of the foregoing Findings of Fact, Conclusions of
Law, Commission’s Decision and pursuant to Section 9 of
the Pennsylvania Human Relations Act it is hereby
ORDERED :
That Respondent Chester Housing Authority, its
agents, servants, employees and cach of their respective
SUCCESSOTS :
1. Shall cease and desist from employing its present
tenant selection and assignment procedures.
2. Shall cease and desist from renting housing accom-
modations in McCaffery Viilage to white tenant families
until the racial composition of said project reflects the
ratio of Negro to white tenant families in all public housing
projects under Respondent’s supervision, direction and
control.
3. Shall cease and desist from renting housing accom-
modations in Lamokin Village, William Penn Village and
A46 PHRC Findings, Conclusions, Decision, Final Order
Ruth L. Bennett Homes to Negro tenant families until the
racial composition of each of said projects reflects the ratio
of white to Negro tenant families in all public housing
projects under Respondent’s supervision, direction and
control.
4. Shall develop and submit to the Pennsylvania
Human Relations Commission (at its Regional Office, Room
101, State Office Building, Broad and Spring Garden
Streets, Philadelphia, Pennsylvania) for its approval,
within 60 days of the effective date of this Order, an
affirmative action program designed to achieve in Re-
spondent’s public housing projects the racial composition
as set forth in Paragraphs 2 and 3 above, and upon obtain-
ing said approval, forthwith to effectuate said program.
Said plan shall include, but not be limited to, preoceupancy
and postoccupancy counseling and the establishment of
tenant councils.
5. Shall, in writing, inform all applicants and all
present tenants of this Final Order and the content thereof.
6. Shall, beginning with the effective date of this
Order, submit written offers to rent accommodations in its
public housing projects to all applicants and require all
replies thereto to be in writing, maintaining a permanent
record of such offers and replies in its files.
7. Shall. from the effective date of this Order, utilize
the services of the intergroup specialist of the Equal
Gpportuniiy Staff of the U. S. Department of Housing and
Urban Development and the consultative services of the
Pennsylvania Human Relations Commission.
8. Shall report to the Pennsylvania Human Relations
Commission, at its Regional Offices as above set forth,
beginning one month from the effective date of this Order,
PHRC Findings, Conclusions, Decision, Final Order A47
and monthly thereafter until such time as the racial com-
position in each project, as set forth in items 2 and 3
above, is achieved. Such report to contain information
regarding the racial composition of each of its housing
projects, as well as a list of all applicants, transfers, as-
signment and re-assignments of all units in all said projects
under its supervision, direction and control by racial iden-
tification and reflecting the ratio of Negro and white tenant
families as set forth in Paragraphs 2 and 3 above, family
size and size of unit requested and assigned, list of vacan-
cies in each project and, thereafter, shall for a further
period of two years, make such reports quarter-annually.
9. Shall, within 90 days of the effective date of this
Order, establish objective written standards for the ap-
proval of applicants and assignment of units, copies of said
standards to be submitted to the Pennsylvania Human Re-
lations Commission (as above set forth) for its approval.
10. Shall meet with the Chester School District for
diseussion and drafting of a plan for a priority selection
system for the placement of tenants with school-age chil-
dren in Respondent’s housing projects which placement
will facilitate the desegregation of the schools of Chester
School District and which shall be made to the Pennsyl-
vania Human Relations Commission (as approval set
forth), within 180 days of the effective date of this Order,
for its approval, whereupon same shall be forthwith ef-
fectuated.
Pennsyitvanta Human Retations Commission,
E. E. Snira,
E. E. Smith, Chairman
ATTEST:
Rosert Jonxsox Satitx,
Robert Johnson Smith,
Secretary.
A48 Const. Provisions, Statutes, Regulations
APPENDIX B.
CONSTITUTIONAL PROVISIONS, STATUTES, AND
REGULATIONS INVOLVED.
United States Constitution.
Article VI, Clause 2.
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.
Amendment XIV, Section 1.
All persons horn or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
Civil Rights Act of 1866,
Section 1, 42 U. S. C. § 1982.
All citizens of the United States shall have the same
right, in every State and Territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.
Const. Provisions, Statutes, Regulations A49
Civil Rights Act of 1964, Title VI,
Section 601, 42 U. S. ©. § 2000d.
No person in the United States shall, on the ground
of race, color, or national origin, be excluded from partici-
pation in, be denied the benefits of, or be subjected to dis-
crimination under any program or activity receiving Fed-
eral financial assistance.
Fair Housing Act of 1968, Title VIII.
Section 801, 42 U. 8. C. §3601.
It is the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the
United States.
Section 804, 42 U. S. C. § 3604.
As made applicable by section 3603 of this title and
except as exempted by sections 3603(b) and 3607 of this
title, it shall be unlawful—
(a) To refuse to sell or rent after the making of a
bona fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a dwell-
ing to any person because of race, color, religion, or na-
tional origin.
(b) To diseriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or
in the provision of services or facilities in connection there-
with, because of race, color, religion, or national origin.
(ce) To make, print, or publish, or cause to be made,
printed, or published any notice, statement, or advertise-
ment, with respect to the sale or rental of a dwelling that
indicates any preference, limitation, or discrimination
based on race, color, religion, or national origin, or an in-
A50 Const. Provisions, Statutes, Regulations
tention to make any such preference, limitation, or dis-
crimination.
(d) To represent to any person because of race, color,
religion, or national origin that any dwelling is not avail-
able for inspection, sale, or rental when such dwelling is
in fact so available.
(e) For profit, to induce or attempt to induce any
person to sell or rent any dwelling by representations re-
garding the entry or prospective entry into the neighbor-
hood of a person or persons of a particular race, color,
religion, or national origin.
Section 815, 42 U. 8. C. § 3615.
Nothing in this subchapter shall be construed to in-
validate or limit any law of a State or political subdivision
of a State, or of any other jurisdiction in which this sub-
chapter shall be effective, that grants, guarantees, or pro-
tects the same rights as are granted by this subchapter;
but any law of a State, a political subdivision, or other such
jurisdiction that purports to require or permit any action
that would be a discriminatory housing practice under this
subchapter shall to that extent be invalid.
United States Housing Act of 1937,
as amended through 1974.
Section 1, 42 U. S.C. § 1401.
It is declared to be the policy of the United States to
promote the general welfare of the Nation by employing
its funds and credit, as provided in this chapter, to assist
the several States and their political subdivisions to alle-
viate present and recurring unemployment and to remedy
the unsafe and insanitary housing conditions and the acute
Const. Provisions, Statutes, Regulations A5l1
shortage of decent, safe, and sanitary dwellings for families
of law income, in urban, rural nonfarm, and Indian areas,
that are injurious to the health, safety, and morals of the
citizens of the Nation. In the development of low-rent
housing it shall be the policy of the United States to make
adequate provision for larger families and for families con-
sisting of elderly persons. It is the policy of the United
States to vest in the local public housing agencies the
maximum amount of responsibility in the administration
of the low-rent housing program, including responsibility
for the establishment of rents and eligibility requirements
(subject to the approval of the Authority), with due con-
sideration to accomplishing the objectives of this chapter
while effecting economies. It is the sense of the Congress
that no person should be barred from serving on the board
of directors or similar governing body of a local public
housing agency because of his tenancy in a low-rent hous-
ing project.
Section 10(g) (2), 42 U. S. C. § 1410(g) (2).
(g) Every contract for annual contributions for any
low-rent housing project shall provide that—
(2) the public housing agency shall adopt and
promulgate regulations establishing admission policies
which shall give full consideration to its responsibility
for the rehousing of displaced families, to the appli-
cant’s status as a serviceman or veteran or relationship
to a serviceman or veteran or to a disabled serviceman
or veteran, and to the applicant’s age or disability,
housing conditions, urgency of housing need, and
source of income: Provided, That in establishing such
admission policies the public housing agency shall ac-
cord to families of low income such priority over single
persons as it determines to be necessary to avoid undue
hardship;
A52 Const. Provisions, Statutes, Regulations
Housing and Urban Development Act of 1968, as amended,
Title XVI, § 1601, 42 U. S. C. § 1441(a).
(a) The Congress finds that the supply of the Nation’s
housing is not increasing rapidly enough to meet the na-
tional housing goal, established in the Housing Act of
1949, of the ‘‘ realization as soon as feasible of the goal of a
decent home and a suitable living environment for every
American family’. The Congress reaffirms this national
housing goal and determines that it can be substantially
achieved within the next decade by the construction or
rehabilitation of twenty-six million housing units, six mil-
lion of these for low and moderate income families.
(b) The Congress further finds that policies designed
to contribute to the achievement of the national housing
goal have not directed sufficient attention and resources to
the preservation of existing housing and neighborhoods,
that the deterioration and abandonment of housing for the
Nation’s lower income families has accelerated over the
last decade, and that this acceleration has contributed to
neighborhood disintegration and has partially negated the
progress toward achieving the national housing goal which
has been made primarily through new housing construction.
(c) The Congress declares that if the national housing
goal is to be achieved, a greater effort must be made to
encourage the preservation of existing housing and neigh-
borhoods through such measures as housing preservation,
moderate rehabilitation, and improvements in housing
management and maintenance, in conjunction with the
provision of adequate municipal services. Such an effort
should concentrate, to a greater extent than it has in the
past, on housing and neighborhoods where deterioration
is evident but has not yet become acute.
Const. Provisions, Statutes, Regulations A53
Housing and Community Development Act of 1974,
Pub. L. 93-383, 88 Stat. 663.
Section 101.
See. 101. (a) The Congress finds and declares that
the Nation’s cities, towns, and smaller urban communities
face critical social, economic, and environmental problems
arising in significant measure from—
(1) the growth of population in metropolitan and
other urban areas, and the concentration of persons
of lower income in central cities; and
(2) inadequate public and private investment and
reinvestment in housing and other physical facilities,
and related public and social services, resulting in the
growth and persistence of urban slums and blight and
the marked deterioration of the quality of the urban
environment.
(b) The Congress further finds and declares that the
future welfare of the Nation and the well-being of its citi-
zens depend on the establishment and maintenance of viable
urban communities as social, economic, and political en-
tities, and require—
(1) systematic and sustained action by Federal,
State, and local governments to eliminate blight, to
conserve and renew older urban areas, to improve the
living environment of low- and moderate-income
families, and to develop new centers of population
growth and economic activity;
(2) substantial expansion of and greater con-
tinuity in the scope and level of Federal assistance,
together with increased private investment in support
of community development activities; and
A54 Const. Provisions, Statutes, Regulations
(3) continuing effort at all levels of government
to streamline programs and improve the functioning
of agencies responsible for planning, implementing,
and evaluating community development efforts.
(c) The primary objective of this title is the develop-
ment of viable urban communities, by providing decent
housing and a suitable living environment and expanding
economic opportunities, principally for persons of low
and moderate income. Consistent with this primary objec-
tive, the Federal assistance provided in this title is for the
support of community development activities which are
directed toward the following specifie objectives—
(1) the elimination of <lums and blight and the
prevention of blighting influences and the deterioration
of property and neighborhood and community facilities
of importance to the welfare of the community, prin-
cipally persons of low and moderate income;
(2) the elimination of conditions which are detri-
mental to health, safety, and public welfare, through
code enforcement, demolition, interim rehabilitation
assistance, and related activities;
(3) the conservation and expansion of the Na-
tion’s housing stock in order to provide a decent home
and a suitable living environment for all persons, but
principally those of low and moderate income;
(4) the expansion and improvement of the quan-
tity and quality of community services, principally for
persons of low and moderate income, which are essen-
tial for sound community development and for the
development of viable urban communities;
(5) a more rational utilization of land and other
natural resources and the better arrangement of resi-
Const. Provisions, Statutes, Regulations A55
dential, commercial, industrial, recreational, and other
needed activity ceniers ;
(6) the reduction of the isolation of income groups
within communities and geographical areas and the
promotion of an increase in the diversity and vitality
of neighborhoods through the spatial deconcentration
of housing opportunities for persons of lower income
and the revitalization of deteriorating or deteriorated
neighborhoods to attract persons of higher income ;
and
(7) the restoration and preservation of properties
of special value for historic, architectural, or esthetic
reasons.
It is the intent of Congress that the Federal assistance
made available under this title not be utilized to reduce
substantially the amount of local financial support for com-
munity development activities below the level of such sup-
port prior to the availability of such assistance.
(d) It is also the purpose of this title to further the
development of a national urban growth policy by consoli-
dating a number of complex and overlapping programs of
financial assistance to communities of varying sizes and
needs into a consistent system of Federal aid which—
(1) provides assistance on an annual basis, with
maximum certainty and minimum delay, upon which
communities can rely in their planning;
(2) encourages community development activities
which are consistent with comprehensive local and
areawide development planning;
(3) furthers achievement of the national housing
goal of a decent home and a suitable living environment
for every American family; and
A56 Const. Provisions, Statutes, Regulations
(4) fosters the under‘aking of housing and com-
munity development activities in a coordinated and
mutually supportive manner.
Section 109(a).
Sec. 109. (a) No person in the United States shall on
the ground of race, color, national origin, or sex be ex-
cluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or ac-
tivity funded in whole or in part with funds made available
under this title.
Section 201(a) [Providing for Sections 2, 3(1), 3(2),
and 6(c)(4)(A) of the United States Housing Act of 1937,
as amended.]
Sec. 201. (a) The United States Housing Act of 1937
is amended to read as follows:
**DECLARATION OF POLICY
‘Sec. 2. It is the policy of the United States to pro-
mote the general welfare of the Nation by employing its
funds and credit, as provided in this Act, to assist the sev-
eral States and their political subdivisions to remedy the
unsafe and unsanitary housing conditions and the acute
shortage of decent, safe, and sanitary dwellings for families
of low income and, consistent with the objectives of this
Act, to vest in local public housing agencies the maximum
amount of responsibility in the administration of their
housing programs. No person should be barred from serv-
ing on the board of directors or similar governing body of
a local public housing agency because of his tenancy in a
low-income housing project.
Const. Provisions, Statutes, Regulations A57
** DEFINITIONS
‘*Sgec. 3. When used in this Act—
‘*(1) The term, ‘low-income housing’ means decent,
safe, and sanitary dwellings within the financial reach of
families of low income, and embraces all necessary ap-
purtenances thereto. Except as otherwise provided in this
section, income limits for occupancy and rents shall be fixed
by the public housing agency and approved by the Secre-
tary. The rental for any dwelling unit shall not exceed
one-fourth of the family’s income as defined by the Seere-
tary. Notwithstanding the preceding sentence, the rental
for any dwelling unit shall not be less than the higher of
(A) 5 per centum of the gross income of the family oceupy-
ing the dwelling unit, and (B) if the family is receiving
payments for welfare assistance from a public agency and
a part of such payments, adjusted in accordance with the
family’s actual housing costs, is specifically designated by
such agency to meet the family’s housing costs, the portion
of such payments which is so designated. At least 20 per
centum of the dwelling units in any project placed under
annual contributions contracts in any fiscal year beginning
after the effective date of this section shall be occupied by
very low-income families. In defining the income of any
family for the purpose of this Act, the Secretary shall con-
sider income from all sources of each member of the family
residing in the household, except that there shall be ex-
eluded—
‘*(A) the income of any family member (other
than the head of the household or his spouse) who is
under eighteen years of age or is a full-time student;
‘*(B) the first $300 of the income of a secondary
wage earner who is the spouse of the head of the house-
hold;
A58 Const. Provisions, Statutes, Regulations
‘«(C) an amount equal to $300 for each member of
the family residing in the household (other than the
head of the household or his spouse) who is under
eighteen years of age or who is eighteen years of age
or older and is disabled or handicapped or a full-time
student;
‘*(D) nonrecurring income, as determined by the
Secretary ;
‘*(E) 5 per centum of the family’s gross income
(10 per centum in the case of elderly families) ;
‘‘(F) such extraordinary medical or other ex-
penses as the Secretary approves for exclusion; and
‘*(G) an amount equal to the sums received by the
head of the household or his. spouse from, or under the
direction of, any public or private nonprofit child plac-
ing agency for the care and maintenance of one or more
persons who are under eighteen years of age and were
placed in the household by such agency.
‘*(2) The term ‘low-income families’ means families of
low income who cannot afford to pay enough to cause pri-
vate enterprise in their locality or metropolitan area to
build an adequate supply of decent, safe, and sanitary
dwellings for their use. The term ‘very low-income families’
means families whose incomes do not exceed 50 per centum
of the median family income for the area, as determined by
the Secretary with adjustments for smaller and larger
families. The term ‘families’ includes families consisting
of a single person in the case of (A) a person who is at least
sixty-two years of age or is under a disability as defined in
section 223 of the Social Security Act or in section 102(5)
of the Developmental Disabilities Services and Facilities
Construction Amendments of 1970, or is handicapped, (B)
Const. Provisious, Statutes, Regulations A59
a displaced person, and (C) the remaining membersof a
tenant family; and the term ‘elderly families’ means
families whose heads (or their spouses), or whose sole
members, are persons described in clause (A). A person
shall be considered handicapped if such person is deter-
mined, pursuant to regulations issucc by the Secretary, to
have an impairment which (i) ix expected to be of long-
continued and indefinite duration, (ii) substantially im-
pedes his ability to live independently, and (iii) is of such
a nature that such ability could be improved by more suit-
able housing conditions. The term ‘displaced person’ means
a person displaced by governmental action, or a person
whose dwelling has been extensively damaged or destroyed
as a result of a disaster declared or otherwise formally
recognized pursuant to Federal disaster relief laws. Not-
withstanding the preceeding provisions of this paragraph,
the term ‘elderly families’ includes two or more elderly,
disabled, or handicapped individuals living together, or one
or more such individuals living with another person who is
determined under regulations of the Secretary to be a per-
son essential to their care or well being.
**Sec. 6.
‘*(¢) Every contract for annual contributions shall pro-
vide that—
‘*(4) the public housing agency shall comply with such
procedures and requirements as the Secretary may pre-
seribe to assure that sound management practices will be
followed in the operation of the project, including require-
ments pertaining to—
**(A) the establishment of tenant selection criteria
designed to assure that, within a reasonable period of
A60 Const. Provisions, Statutes, Regulations
time, the project will include families with a broad
range of incomes and will avoid concentrations of low-
income and deprived families with serious social prob-
lems, but this shall not permit maintenance of vacancies
to await higher income tenants where lower income
tenants are available;
Regulations of the United States Department of Housing
and Urban Development Under the Civil Rights Act of
1964, 24 C.F. R.
Section 1.4(a).
(a) General. No person in the United States shall, on
the ground of race, color, or national origin, be excluded
from participation in, be denied the benefits of, or be other-
wise subjected to discrimination under any program or
activity to which this Part 1 applies.
Section 1.4(b) (1) and (2).
(b) Specific discriminatory actions prohibited. (1) A
recipient under any program or activity to which this Part
1 applies may not, directly or through contractual or other
arrangements, on the ground of race, color, or national
origin:
(i) Deny a person any housing, accommodations, facili-
ties, services, financial aid, or other benefits provided under
the program or activity;
(ii) Provide any housing, accommodations, facilities,
services, financial aid, or other benefits to a person which
are different, or are provided in a different manner, from
those provided to others under the program or activity ;
(iii) Subject a person to segregation or separate treat-
ment in any matter related to his receipt of housing, ac-
Const. Provisions, Statutes, Regulations A61
commodations, facilities, services, financial aid, or other
benefits under the program or activity;
(iv) Restrict a person in any way in access to such
housing, accommodations, facilities, services, financial aid,
or other benefits, or in the enjoyment of any advantage or
privilege enjoyed by others in connection with such hous-
ing, accommodations, facilities, services, financial aid, or
other benefits under the program or activity;
(v) Treat a person differently from others in deter-
mining whether he satisfies any occupancy, admission, en-
rollment, eligibility, membership, or other requirement or
condition which persons must meet in order to be provided
any housing, accommodations, facilities, services, financial
aid, or other benefits provided under the program or
activity:
(2){i) A recipient, in determining the types of hous-
ing, accommodations, facilities, services, financial aid, or
other benefits which will be provided under any such pro-
gram or activity, or the class of persons to whom, or the
situations in which, such housing, accommodations, facili-
ties, services, financial aid, or other benefits will be provided
under any such program or activity, or the class of persons
to be afforded an opportunity to participate in any such
program or activity, may not, directly or through con-
tractual or other arrangements, utilize eriteria or methods
of administration which have the effect of subjecting per-
sons to discrimination because of their race, color, or
national origin, or have the effect of defeating or substan-
tially impairing accomplishment of the objectives of the
program or activity as respect to persons of a particular
race, color, or national origin.
(ii) A recipient, in operating low-rent housing with
Federal financial assistance under the United States Hous-
A62 Const. Provisions, Statutes, Regulations
ing Act of 1987, as amended (42 U.S. C. 1401 et seq.), shall
assign eligible applicants to dwelling units in accordance
with a plan, duly adopted by the recipient and approved by
the responsible Department official, providing for assign-
ment on a community-wide basis in sequence based upon the
date and time the application is received, the size or type
of unit suitable, and factors affecting preference or priority
established by the recipient's regulations, which are not in-
consistent with the objectives of title VI of the Civil Rights
Act of 1964 and this Part 1. The pian may allow an ap-
plicant to refuse a tendered vacancy for good cause without
losing his standing on the list but shall limit the number of
refusals without cause as prescribed by the responsible De-
partment official.
United States Department of Housing and Urban Develop-
ment, Low-Rent Housing Administration of Program
Handbook, Circular RHA 7401.1, Chapter 9, Section 1,
Appendix 2, Paragraph 1(d) (1).
Requirements for Administration of Low-Rent Housing
Programs Under Title VI of the Civil Rights Act of
196-4,
The following requirements are established for Local Au-
thorities in the administration of their low-rent housing
programs receiving Federal financial assistance under the
United States Housing Act of 1957, as amended. The re-
quiremen's are established in order that Local Authorities
may meet their responsibilities pursuant to Title VI of the
Civil Rights Act of 1964 and in the interest of efficiency and
economy required by the United States Housing Act of
1957.
1. Methods of Administration. Methods of administration,
staffing arrangements, assignment of responsibilities and
d.
Const. Provisions, Statutes, Regulations A63
procedures shall provide for the following (reports
thereof, along with copies of all materials used or pro-
duced, to be furnished promptly to the Regional Housing
Assistance Office) :
A plan for selection of applicants and assignment of
dwelling units to assure equal opportunity and nondis-
crimination o
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