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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0408%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 974

## Text

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
Ce ie (7
aie
t thee
i~
ree
te’, by

IN THE

Supreme Court of the United States

Ocroser Term, 1974.
No. 74-
CHESTER HOUSING AUTHORITY
Petitioner.
v.

PENNSYLVANIA HUMAN RELATIONS
COMMISSION
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA.

Chester Housing Authority hereby petitions that a
Writ of Certiorari issue to review the decision of the
Supreme Court of Pennsylvania entered in this case on
October 16, 1974.

I. OPINIONS BELOW.

The Pennsylvania Human Relations Commission did
not deliver an opinion in this case. The findings of fact,
conclusions of law, decision, and final order of the Penn-
. 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 <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 preservat

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0408%3A1. Public record. Not legal advice.