Petition for Writ of Certiorari — Chester Housing Authority v. Pennsylvania Human Relations Commission

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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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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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