Amicus Curiae Brief — Walker v. City of Mesquite

<< c)

& No. 99-296

IN THE

SUPREME COURT OF THE UNITED STATES

DEBRA WALKER, JEANETTE WASHINGTON,

HAZEL WILLIAMS, ZELMA LANG, RENITA BROWN,

LILLIE THOMPSON, TRACEY SMITH,

Petitioners,

Vv.

CITY OF MESQUITE, TX; DEPARTMENT OF HOUSING & URBAN

DEVELOPMENT; THE HOUSING AUTHORITY OF THE CITY OF

DALLAS; HIGHLANDS OF McKAMY IV AND V COMMUNITY

DEVELOPMENT ASSOCIATION; GINGER LEE; PRESTON

HIGHLANDS HOMEOWNERS’ ASSOCIATION, INC.; DAVID BEER;

HIGHLANDS OF McKAMY IV AND V COMMUNITY

IMPROVEMENT ASSOCIATION;

and THE CITY OF DALLAS,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE

AND BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

DANIEL F. KOLB RICHARD T. SEYMOUR

CHARLES T. LESTER, JR. CHERYL L. ZIEGLER

Co-Chairs Lawyers’ Committee for

NORMAN REDLICH Civil Rights Under Law

Trustee 1401 New York Ave., N.W., Suite 400

BARBARA R. ARNWINE Washington, DC 20005

THOMAS J. HENDERSON* (202) 662-8600

Attorneys for Amicus Curiae

October 18, 1999 *Counsel of Record

Oe wma wee - EE SE EERE OM Deer mn oo

IN THE

SUPREME COURT OF THE UNITED STATES

DEBRA WALKER, JEANETTE WASHINGTON, HAZEL

WILLIAMS, ZELMA LANG, RENITA BROWN, LILLIE

THOMPSON, TRACEY SMITH,

Petitioners,

V.

CITY OF MESQUITE, TX; DEPARTMENT OF HOUSING

& URBAN DEVELOPMENT; THE HOUSING

AUTHORITY OF THE CITY OF DALLAS; HIGHLANDS

OF McKAMY IV AND V COMMUNITY

DEVELOPMENT ASSOCIATION; GINGER LEE;

PRESTON HIGHLANDS HOMEOWNERS’

ASSOCIATION, INC.; DAVID BEER; HIGHLANDS OF

McKAMY IV AND V COMMUNITY IMPROVEMENT

ASSOCIATION; and THE CITY OF DALLAS,

Respondents.

MOTION FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE IN SUPPORT OF PETITIONERS

The Lawyers’ Committee for Civil Rights Under Law

moves for leave to file a brief as amicus curiae. Proposed

amicus draws on its own experience and offers analyses of the

subject matter of the petition that differ from those of

Petitioners. Petitioners and the United States, as a Respondent,

have consented to the filing of this brief. Consent has not been

received from Highlands of McKamy IV and V Community

Improvement Association, et al., who have filed a waiver of

response to the petition, or from the Housing Authority of the

City of Dallas or the City of Mesquite.

Respectfully submitted,

Thomas J. Henderson

Dated: October 18, 1999

5 al

aakeambel

i.

QUESTION PRESENTED FOR REVIEW

Amicus suggests that an alternative formulation of the

question presented might be considered by the Court, as

follows:

Whether the narrow tailoring inquiry as to a remedy order

providing for the race-conscious selection of sites for public

housing, fashioned to afford prompt and effective relief to the

victims of unconstitutional racial segregation, requires that a

court identify the particular unconstitutional conditions to be

addressed by that remedy, assess the relative effectiveness of

race-neutral site selection alternatives, and distinguish race-

conscious from race-neutral remedies.

li.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

STATEMENT OF INTEREST .....cccccccccccsevees l

STATEMENT OF THE CASE .........ceccecececees 2

SUMMARY OF ARGUMENT .........ccccecccccses 8

PED 0k PCa Rak 6 Chea es oss cota 9

1. The Decision of the Court of Appeals

Involves a Question of Great National

Importance. ....... 6s eee eee eeeeceeceeeees 9

2. The Decision of the Court of Appeals

Substantially Departs from This Court’s

Precedent Regarding the Obligation of

Courts to Afford Victims of a Constitutional

Violation Prompt and Effective Relief

That Is Narrowly Tailored to Remedy

Sy I ecu cuca eeeue eee saeenaeee 12

3. The Court of Appeals’ Decision in this

Case Creates a Conflict Between the

RG we nNeegevhabeeniekekedes vi0een cus 18 :

CURIE oo. ids Cokctvs ee ae 20 :

eeeeereeemeceaimmmeaiiiaaiaiaiiieiieiial

lll.

TABLE OF AUTHORITIES

1. Cases

Page

Adarand Constructors, Inc. y. Pena,

Paw See OI Se Fear ee ds A Boies ohe 12

Alschuler v. HUD,

686 F.2d 472 (7" Cir. Te os ae 19

Bell v. Hood,

gD Pree 13

Gautreaux v. Pierce,

690 F.2d 616 (7" Cir. | RRR ene ee ee 18, 19

Hills v. Gautreaux,

AS OT) 11,18

Louisiana v. United States,

oo St.) es 13

Milliken v. Bradley,

433 U.S. 267 (1977) (Milliken | ny See oad 14

Missouri v. Jenkins,

i oar clea 14

Shannon v. HUD,

436 F.2d 809 (3d Cir. 1970).................. 19

Shaw v. Hunt,

PET GOD, dns sn esdee dnd ooo one ne ee 14

iv.

United States v. Paradise,

BP eee Seb edsvcceucsavericdrian 14

United States v. Yonkers Bd. of Ed.,

837 F.2d 1181 (2d Cir. 1987), cert. denied,

Ge eae PEE. Wd sie cee acdeeewne ion 18

Walker v. City of Mesquite, Tex.,

169 F.3d 973, 976 n.3 (5" Cir. 1999) ............ 2

Walker v. HUD,

No. 3:85-CV-1210-R, slip op. at 7-20 (N.D.

poe 8S eer ee eee 2

Walker v. U.S. Dept. of Housing & Urban Dev.,

734 F. Supp. 1231 (N.D. Tex. 1989) ........... 4

43 UB, © P61: ccccccnsbspuetneeesecvcsteeneeas 2

2. Statutes :

1.

STATEMENT OF INTEREST'

The Lawyers' Committee for Civil Rights Under Law

(“Lawyers' Committee”) is a national civil rights organization,

established in 1963 at the request of President Kennedy to

involve private lawyers in a national effort to assure civil rights

for all Americans. The Lawyers' Committee, enlisting the

services of hundreds of private attorneys, has represented

thousands of clients in litigation to remedy racial

discrimination, including in federally assisted housing

programs.

The Lawyers' Committee has substantial knowledge of

and experience in cases involving the de jure segregation of

public housing. It currently represents clients in three such

cases, two of which implicate race-conscious site selection

remedies, to develop public housing in white communities from

which it has been excluded. The Lawyers’ Committee also

advocates public policy urging that federal and other public

authorities effectively eliminate all vestiges of the housing

segregation they and their predecessors have established and

perpetuated in communities throughout the nation.

The Lawyers' Committee submits this brief amicus

curiae, to suggest that this Court accept review of this

important case in order to confirm that, in formulating prompt

and effective relief for unconstitutional racial. segregation in

public housing, appropriate, carefully fashioned race-conscious

' No counsel for any party had any role in authoring this brief, and

no person or entity other than the named amici curiae or their counsel have

made any monetary contribution to the preparation or submission of this

brief.

J

site selection remedies satisfy narrow tailoring principles.

STATEMENT OF THE CASE

The factual background of this case is fully recounted

in the Petition for a Writ of Certiorari and is not repeated here.

Below, however, is a recitation of portions of the procedural

history and record relevant to the issues raised in this brief.

1. The Separate Public Housing and Section 8

Programs and the Distinct Constitutional Violations

in Each Program

The Dallas Housing Authority operates two separate and

distinct federal programs that provide low-income housing.

The first is the conventional public housing program, or

“housing units owned and operated by DHA.” App. at p. 4

n.3.’ Conventional public housing is comprised of fixed units

that are sited, developed, managed and otherwise controlled by

DHA. These units are offered to qualifying low-income

persons at a rent not exceeding 30% of their income. See 42

U.S.C. § 1437.

The second federal housing program administered by

DHA is the Section 8 program, through which DHA subsidizes

the rents of eligible low-income participants who reside in

participating privately owned housing units through the use of

? References to the decisions below are to the appendix to the

Petition for a Writ of Certiorari. The decision of the Fifth Circuit Court of

Appeals, Walker v. City of Mesquite, Tex., 169 F.3d 973 (5™ Cir. 1999), is

contained at pp. 1-35. The decision of the district court, Walker v. HUD,

No. 3:85-CV-1210-R (N.D. Tex. Oct. 6, 1997), is contained at pp. 66-209.

2.

certificates and vouchers. See App. at p. 4 n.3. In order to

utilize a voucher or certificate, the participant must find a

landlord willing to enter into a lease with the participant and

DHA, subject to certain regulatory conditions. See App at 141.

The Section 8 housing program differs fundamentally from the

conventional public housing program in that the number and

location of housing units are largely beyond the control of

DHA, because the Section 8 program depends entirely upon the

availability of privately owned housing and the willingness of

its owners to lease to an eligible participant and DHA.

It is undisputed that for decades the defendants in this

case committed distinct constitutional violations in both the

conventional public housing program and the Section 8

program in Dallas. See id. at p. 5. Through its various orders

in this case, the district court fashioned relief to remedy those

two separate and distinct constitutional violations. See id at

72-85.

Specifically, conventional family public housing was

originally sited and built only in minority neighborhoods and,

in order to keep such housing and its residents out of non-

minority neighborhoods, DHA refused to build any new family

public housing in Dallas from 1955 until the construction of

100 units pursuant to the 1987 consent decree in this case. See

id. at p. 78. Asa result of its racially discriminatory siting

practices and refusal to develop public housing, as of

September 27, 1994, 6,133 of the 6,411 units in DHA’s family

public housing projects were located in predominantly black or

minority concentrated areas. See id at p. 86.

With regard to the Section 8 program, it is undisputed

that DHA and the City of Dallas developed and implemented

4.

policies to steer minority Section 8 families to housing in

minority areas and to keep them in segregated public housing.

See id. at pp. 84-85. For example, in the 1970s, DHA allowed

only a few tenants to use Section 8 certificates in the suburbs

and then completely halted the practice. See id. at p. 84. In

addition, city inspectors consistently approved units for black

families in black neighborhoods that were in serious violation

of HUD’s housing quality standards. See id. at pp. 84-85. As

a result, as of September 27, 1994, approximately 60% of the

black households in the Section 8 program lived in

predominantly black or racially concentrated areas. See id. at

p. 86.

y & The Race-Neutral Remedies in the Consent Decree

and Their Failure to Remedy the Violations

A consent decree addressing the distinct constitutional

violations in the public housing program and the Section 8

program was approved by the district court in 1987 The relief

provided in that decree for each of the violations was generally

race-neutral. See Walker, 734 F. Supp. at 1247-62 (N.D. Tex.

1989). Specifically, as to the public housing site selection

violation, the decree required, inter alia, the demolition of

approximately 2600 units of public housing and their

replacement on a one-to-one basis with additional public

housing units and Section 8 certificates and vouchers. See id.

Of the replacement public housing units, 100 were required to

be sited in non-minority areas. No race-conscious criteria were

required with respect to the remaining replacement units. See

> The Consent Decree is contained as Appendix A in Walker v.

U.S. Dept. of Housing & Urban Dev., 734 F. Supp. 1231, 1247 (N.D. Tex.

1989).

5.

id. App. at 92. As to the violations with respect to the Section

8 program, the decree required the establishment of a Section

8 mobility plan to assist families in finding available private

housing. The objectives of the Section 8 mobility program

were race-neutral; to facilitate the use of vouchers and

certificates in non-Section 8 impacted areas of Dallas. See id.

at 1259-60.

The race-neutral remedies of the consent decree failed

to remedy the violations in either the public housing program

or the Section 8 program. With regard to public housing site

selection, DHA refused to develop public housing units in

white areas even after entry of the 1987 consent decree. DHA

violated its obligation to develop the 100 units required to be

sited in white areas, requiring the district court to order the

siting of those units. See App. at 81, 92. Moreover, the

defendants “continued to propose the development of all

additional new public housing units in the predominantly

minority West Dallas area.” Jd. at 92. Efforts to site public

housing in white areas were met with “strenuous and effective

neighborhood and political opposition.” Jd.

With regard to the Section 8 program, the mobility

remedy did achieve its race-neutral goal of utilization of 50%

of the certificates and vouchers in non-Section 8 impacted

census tracts. See id. at p. 99. But, as the district court noted,

“[t]his accomplishment did not erase the effects of

discrimination.” Jd The race-neutral mobility program largely

replaced one set of Section 8 impacted minority census tracts

with another set of such tracts. See id at p. 99-100. Although

some progress toward desegregation was made, the Section 8

program remained predominantly segregated. “While the

overall racial concentration of DHA’s certificate holders has

6.

improved somewhat, less than 21% of the black families on the

program live in predominantly white areas while over 45% of

white DHA white [sic] Section 8 families live in such areas.”

Id. at p. 100.

3 The Distinct Race-Conscious Remedies Ordered by

the District Court and Their Effectiveness

In light of the failures of the consent decree and the

defendants’ violations of its terms, the district court vacated the

decree, determined the defendants’ liability ,and formulated a

its own remedial orders that included race-conscious remedies.

With regard to public housing, the remedial order affecting

DHA required the development of all new public housing units

in predominantly white areas until the number of units in white

areas equaled the number of units in minority areas. “These

units, and any others allocated in the future, must be developed

in predominantly white areas until there are approximately as

many non-elderly public housing units in those areas as in

minority areas.” See id. at p. 87. In addition, the remedial

order contained provisions to ensure that the public housing

units were maintained, and to afford nearby property owners a

role in the planning and management of new public housing.

See id. at p.88.

With regard to the Section 8 program, the remedial

order required mobility counseling for African-American

families in the Section 8 program to assist them in finding

available private housing in predominantly white areas. “The

mobility services are to be provided to black DHA participants

for the purpose of achieving and maintaining a percentage of

aa

A

DHA’s Section 8 in predominantly white areas.” Jd at p. 91.

Under that program, “[w]hite families do not get the mobility

services required under the decree” and “[b]lack Section 8

Participants do not get the use of mobility services to help

locate housing in minority areas.” Jd

The white homeowners’ challenge was essentially

directed at the provisions in the remedial orders requiring the

Siting of new public housing units in predominately white areas

until equal to the number of units in minority areas. In rejecting

that challenge, the district court considered alternatives to the

race-conscious site selection required in its remedial order and

found that none of those alternatives would remedy the

violations in the public housing program in this case. As the

court noted, allowing or requiring new public housing units in

minority or racially integrated areas would only perpetuate the

vestiges of prior Segregation and the unequal conditions and

opportunities afforded white families and black families. See

id. at pp. 100-01. The district court also considered, and

rejected, the alternatives Proposed by the defendants and the

white homeowners (which included, inter alia, non race-

conscious site selection methods and conversion of public

housing allocation to Section 8 vouchers and certificates)

because those plans would not remedy the segregation in the

public housing Program. See id. at pp. 101-11. The district

court specifically found that without race-conscious remedial

measures, desegregation would not be accomplished. See id at

pp. 100-14. As the court explained, any new public housing

developed by DHA will be placed in either a white area,

minority area, or racially mixed area. See id at p. 106.

Because placing such housing in either a minority or racially

mixed area would only serve to continue the racial segregation

that is at issue, the only option available to remedy the

segregation is to require the placement of such housing in a

white area. See id. at p. 107.

SP

4. The Court of Appeals’ Decision

The only issue presented on appeal was the

constitutionality of the race-conscious site selection relief in the

district court’s remedial order affecting DHA, providing that

construction of new public housing units be in predominantly

white areas of Dallas. See App. at p. 2. The Court of Appeals

held the race-conscious site selection criteria unconstitutional

and directed the district court to employ only race-neutral site

selection criteria to the development of new and replacement

public housing. See id. at p. 27. In reaching its decision, the

court of appeals did not review, analyze, set-aside or disturb the

fact findings of the district court that race-neutral site selection

criteria had not been, and would not be, effective in remedying

the public housing site selection violation. The court of appeals

summarily concluded that: “The district court’s concern that if

it does not attach a race-conscious site selection criterion to

new construction, then the new units will end up in minority

areas and, as a consequence, Dallas’s public housing projects

will almost all remain in minority areas, is unfounded.” Jd.

SUMMARY OF ARGUMENT

This Court should review the decision of the court of

appeals because decisions regarding segregation in the federal

public housing program affect a vast number of families,

hundreds of local government authorities, and federal policy.

This case represents a rare opportunity to review a judgment on

the question of appropriate remedies in this area, and presents

a thoroughly developed record.

9.

The test of narrowly tailoring articulated and applied by

the court of appeals departs substantially from that established

in this Court’s jurisprudence. This Court should grant review

to correct and provide further guidance to the courts and public

authorities regarding the purpose, elements, and application of

the narrow tailoring inquiry.

This Court should accept review to resolve a conflict in

the courts of appeals regarding the proper consideration of race

in remedying, and preventing, discrimination in public housing.

ARGUMENT

i. The Decision of the Court of Appeals Involves a

Question of Great National Importance.

The question presented in the Petition for Certiorari is

of great national importance. There are 1,238,490 units of

public housing in this nation, in 14,814 public housing projects,

administered by 1,926 public housing authorities.’ HUD funds

and oversees the operation of this public housing, administered

on a local level by housing authorities. Judicial decisions

regarding the administration of the nation’s public housing

program therefore affect an enormous number of families,

nearly two thousand local housing authorities, and the policies

and actions of the federal government.

This vast public housing program is racially segregated.

According to HUD: “African-American public housing

4

Goering, Kamely, and Richardson, U.S. Department of

Housing and Urban Development, The Location and Racial Composition

of Public Housing in the United States 12 (1994).

10.

residents typically live in African-American neighborhoods;

white public housing residents live in white neighborhoods;”

and “. .. African American residents living in family projects

are housed in segregated projects in severely poor

neighborhoods.”* This segregation is not fortuitous. Public

housing was established pursuant to local and federal policies

of de jure segregation.® De jure segregation in public housing

largely has been perpetuated through federal and local policies

and, to the limited extent that federal and local officials have

acted to relieve that segregation, they have been “largely

ineffective.”’ HUD leadership in administrations of both

political parties have acknowledged the obligation to remedy

the conditions and effects of this segregation, and recognized

that federal and local housing officials must have available the

full range of lawful remedial measures if that objective is to be

> Id. at 1, 78.

° See Discrimination in Federally Assisted Housing Programs,

1986: Hearings Before the Subcomm. on Housing and Community

Development of the Comm. on Banking, Finance and Urban Affairs, House

of Representatives, 99th Cong. (1986), particularly 16-19 (statement of

HUD General Counsel John Knapp) and 15-16 (statement of HUD

Secretary Pierce); Achtenberg, Keynote Address, Symposium Shaping

American Communities: Segregation, Housing & the Urban Poor, 143 U.

Pa. L. Rev. 1191, 1193 (1995) (“That the federal government, including

HUD, has a long history of having precipitated and perpetuated housing

discrimination, there can be no question. At their inception, federal housing

programs incorporated many of the prevailing practices of the private

housing market and were explicitly discriminatory as a result.”); Statement

of the President on Federal Policies Relative to Equal Housing Opportunity,

1 FH-FL 5121 (June 11, 1971).

’ Achtenberg, supra note 6 at 1193; See 62 Fed. Reg. 1026,

1028 (January 7, 1997); Hearings, supra, at 15 - 16 (statement of Knapp).

er ceeaceaceemaencatmaiaiiaiiiiiiiiii ial

1].

accomplished.*® Accordingly, the substantial limitations on the

availability of race-conscious remedial measures expressed in

the decision of the court of appeals can profoundly affect the

capacity of federal and local officials to address longstanding

segregation.

As the most recent pronouncement of a court of appeals

on the subject, and one that suggests that the applicable law has

changed since this Court’s decision in Hills v. Gautreaux, 425

U.S. 284 (1976), there is a significant risk, in the absence of

review by this Court, that HUD and other federal officials will

apply nationally the result reached by the court of appeals in

this case. So, too, local housing authorities may well conclude

that they are without the ability to consider race in any effort to

remedy, or to prevent, further racial segregation. It is not

unlikely that the decision of the court of appeals will, therefore,

affect the obligations of hundreds of local housing authorities

and the fate of tens of thousands of families, without further

Opportunity for review by any court.

This case is an ideal vehicle for this Court’s review of

the permissible consideration of Trace to remedy constitutional

violations regarding federally assisted housing. Cases

challenging racially discriminatory public housing site selection

are difficult and expensive because they require an extensive

examination of evidence of the decisions and actions taken by

federal and local government authorities over decades.

Therefore, despite the prevalence of racial Segregation in public

* See Achtenberg, supra note 6: Hearings, supra note 6 at 15 -

16 (statement of Pierce); Memorandum from HUD Secretary Pierce

Concerning Public Housing Desegregation, | FH-FL 5133, 5134 (February

28, 1984). See also Statement of the President, supra, 1 FH-FL at 5129.

12.

housing nationally, relatively few cases are litigated, and even

fewer are brought to a litigated conclusion. Thus, this case

presents a rare opportunity to address an issue affecting large

numbers of local governing authorities and the housing

conditions of tens of thousands of families. Moreover, the

extensive record in this case, the parties’ attempt to remedy the

violations through race-neutral means embodied in the consent

decree, and the courts’ subsequent assessment of the propriety

of race-conscious relief offer a thoroughly developed record on

which to decide squarely the question presented.

2. The Decision of the Court of Appeals Substantially

Departs from This Court’s Precedent Regarding the

Obligation of Courts to Afford Victims of a

Constitutional Violation Prompt and Effective Relief

That Is Narrowly Tailored to Remedy the Violation.

The court of appeals formulated and applied a narrow

tailoring analysis that profoundly confuses both the analysis to

be undertaken and the factors to be assessed. If left

unreviewed, its approach would transform the narrow tailoring

inquiry from one designed to ensure that race-conscious relief

is reasonably necessary, remedial in nature, and fashioned

substantially to address the conditions resulting from the

violation, into a flat prohibition on race-conscious relief where

any race-neutral alternative exists, even if it is clear that the

race-neutral alternative will not remedy the violation. The

analysis of the court of appeals would constrain courts and

public bodies considering race-conscious remedies in a manner

that would deny to many victims any effective relief. Such a

standard of narrow tailoring defies this Court’s admonition that

strict scrutiny is not “strict in theory, but fatal in fact.” Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 202 (1995).

The court of appeals’ approach to narrow tailoring

aac iiiaiitiiiiaiilia

13.

incorporates several fundamental errors. F irst, the court failed

to identify the particular, distinct, unconstitutional conditions

to be addressed by the remedial order. This failure caused the

court to consider two distinct remedies for two distinct

violations in two distinct housing programs as though they were

competing alternative remedies for a single violation. Second,

the court did not assess the relative effectiveness of race-

neutral, as compared to race-conscious, public housing site

selection criteria. This failure led the court to enjoin the use of

race-conscious site selection criteria, despite undisturbed

findings that race-neutral criteria had not, and would not,

effectively cure the unconstitutional conditions resulting from

racially discriminatory site selection violations. Third, the

court failed to distinguish race-conscious from race-neutral

relief, leading it to assess one of the distinct race-conscious

remedies as though it was a race-neutral alternative to the other

distinct race-conscious remedy. This resulted in the court’s

failure to apply an appropriate narrow tailoring analysis to

either of the two remedies ordered by the district court. It also

resulted in the court’s erroneous conclusion that the distinct

remedy it mistakenly perceived to be “race-neutral” should be

substituted as a race-neutral alternative for the distinct remedy

it did recognize to be race-conscious. Accordingly, this Court

should grant certiorari to correct and clarify the formulation and

application of the standards of narrow tailoring in fashioning

prompt and effective relief for constitutional violations.

The court of appeals’ analysis loses sight of the

fundamental obligation to fashion prompt and effective relief

for constitutional violations. “[W]here federally protected

rights have been invaded, it has been the rule from the

beginning that courts will be alert to adjust their remedies so as

to grant the necessary relief.” Beil y. Hood, 327 U.S. 678, 684

(1946). This court in Louisiana v. United States, 380 U.S. 145,

154 (1965), stated that where racial discrimination is involved,

“the court has not merely the power but the duty to render a

decree which will so far as possible eliminate the

14.

discriminatory effects of the past as well as bar like

discrimination in the future.” In Missouri v. Jenkins, 515 U.S.

70 (1995), this Court reiterated a three-part framework

regarding the exercise of remedial authority. The Court

required district courts to consider the following: “[1)] the

nature of the desegregation remedy is to be determined by the

nature and scope of the constitutional violation. . . . [; 2)] the

decree must indeed be remedial in nature, that is, it must be

designed as nearly as possible ‘to restore the victims of

discriminatory conduct to the position they would have

occupied in the absence of such conduct’. . . . [; and 3)] federal

courts in devising a remedy must take into account the interests

of state and local authorities in managing their own affairs,

consistent with the Constitution.” Jd. at 88 (quoting Milliken v.

Bradley, 433 U.S. 267 (1977) (Milliken IT)) (emphasis in

original); United States v. Paradise, 480 U.S. 149 (1987); see

also Shaw v. Hunt, 517 U.S. 899, 915-916 (1996);. The

analysis set forth by the court of appeals fails to follow this

long-established precedent in evaluating the relief ordered by

a district court.

More specifically, with respect to the first of the court

of appeals’ fundamental errors, it failed to examine closely the

violations to be remedied, the distinct character of the two

housing programs affected by the constitutional violations, and

the purposes to be served by the two remedies. This failure led

it to misperceive the remedial objective as simply “moving

black families into white areas” through the Section 8 program,

App. at p. 26, ignoring the nearly complete segregation of

existing public housing units in minority areas and the need to

ensure that further segregation did not result from the siting of

new public housing. This formulation of the “narrow tailoring”

inquiry is ill-founded because the remedy does not address the

nature of the violation, and instead compares apples with

oranges with respect to the efficacy of alternatives.

For this reason the court of appeals did not assess the

15.

effectiveness of race-neutral versus race-conscious site

selection standards, but compared only race-conscious site

selection standards to the mobility program regarding the use

of Section 8 certificates and vouchers:

Based on the relative success of DHA in moving blacks

into predominately white areas via its Section 8

program between 1994 and 1996, the Walker plaintiffs,

HUD, and DHA have produced insufficient evidence to

show that the district court’s race-conscious site

selection criterion is necessary to remedy the effects of

past discrimination.

App. at p. 26 (emphasis added). The Section 8 mobility

program, however, is a wholly distinct remedy designed to

address the separate violation of DHA’s discriminatory

administration of the Section 8 program. The Section 8

mobility program neither speaks to, nor is capable of affecting,

the selection of sites for the ongoing construction of new public

housing. Whatever the effectiveness of the Section 8 mobility

program, it simply does not answer the question whether race-

neutral, as opposed to race-conscious, site selection criteria will

effectively remedy the site selection violation with respect to

the new public housing that will be constructed.

The court of appeals was largely consumed with the

suggestion by the white homeowners that the Section 8

program alone could remedy both the public housing site

selection and the Section 8 steering violations. On that

question, the court of appeals “neither accept[ed] nor

attempt([ed] to reject the factual findings” of the district court

that both the Section 8 mobility program and race-conscious

site selection for the construction or acquisition of new public

housing were necessary to remedy the violations in the two

housing programs. App. At p. 24. Instead, focusing solely on

the fact that an additional 285 black families had used Section

16.

8 vouchers in white areas in the two-year period between 1994

and 1996, see App. at pp. 22-26, the court of appeals reached its

conclusion, quoted above, that the district court erred in

determining that race-conscious site selection criteria were

necessary for new public housing to be constructed in Dallas.

To the extent that the court of appeals was attempting to

undertake the narrowly tailoring inquiry of the efficacy of

alternative remedies, as noted above, it failed to comprehend

that the Section 8 mobility program has no effect on the

selection of sites for the new public housing that is being

developed.

With regard to the second fundamental error, beyond

the distractions and incongruities of its analysis of the Section

8 mobility program as an alternative remedy, on the specific

question of whether race-conscious site selection criteria were

necessary to remedy the public housing violation, the court of

appeals not only failed to undertake an analysis of that

question, but reached a conclusion contrary to the express

findings of the district court that race-conscious site selection

criteria were necessary. In less than one paragraph, the court of

appeals suggested that site selection criteria based on

geography or poverty levels were available and, without any

analysis or discussion of the application or effectiveness of

those criteria or the district court’s findings on the issue, simply

concluded that the district court’s concern that, absent race-

conscious criteria, “the new units will end up in minority areas

and, as a consequence, Dallas’ public housing will almost all

remain in minority areas, is unfounded.” App. at p. 26.

Thus, the court made no examination of the

effectiveness of race-neutral site selection standards and

ignored, but left undisturbed, the careful and appropriate

analysis of the relevant factors and record facts bearing on that

question through which the district court determined that race-

neutral site selection criteria had been and would continue to be

ineffective. Yet, the court of appeals determined that race-

17.

conscious site selection criteria were not narrowly tailored

because race-neutral criteria were available. See App. at p. 27,

28. That race-neutral measures are available, as they will

always be, does not answer the question the narrow tailoring

inquiry demands - will the race-neutral measures promptly and

effectively remedy the violation. Thus, the court of appeals’

standard of narrowly tailoring fails the essential test applied to

the formulation of any remedy - whether it will effectively cure

the violation.

Regarding the third error, the “narrow tailoring” analysis

of the court of appeals fails to apply a consistent definition of

race-consciousness to remedies it considered as alternatives.

Simply stated, the analysis fails to recognize that both the

public housing site selection criteria and the Section 8 mobility

program ordered by the district court are race-conscious. The

court of appeals’ formulation of the narrow tailoring inquiry is

fatally flawed because it considered the Section 8 mobility

program to be “a race-neutral measure,” App. at p. 26, and

therefore assessed it as an “option[{] . . . [that] should be

explored and tested before adopting a race-conscious remedy as

a last resort.” /d. at p. 27. Because the Section 8 remedy was

race-conscious, the court of appeals lacked a basis on which to

Suggest that it was a race-neutral alternative to race-conscious

site selection criteria. This failure to recognize the race-

conscious character of the Section 8 remedy therefore

undermines the essential basis on which the court rejected race-

conscious site selection criteria as an appropriate remedy.

The test of narrowly tailoring constructed by the court

of appeals is one that dispenses with the need to identify the

precise conditions that offend the Constitution and are to be

remedied, abandons any inquiry into whether race-neutral

alternatives will be effective in remedying the violation, and

foregoes the need to identify relief as race-conscious or to

distinguish race-conscious from race-neutral relief. This Court

should grant review in this case to provide further guidance in

18.

the purpose of the narrowly tailoring inquiry in assessing

appropriate, effective relief and to clarify the factors to be

considered in the inquiry and the proper analysis of those

factors.

3. The Court of Appeals’ Decision in this Case Creates

a Conflict Between the Circuits.

The decision of the Court of Appeals for the Fifth

Circuit is in conflict with decisions of other circuits on the

propriety and availability of race-conscious site selection

criteria as a remedy for the unconstitutionally segregated

location of public housing. In United States v. Yonkers Bd. of

Educ., 837 F.2d 1181, 1184, 1236-37 (2d Cir. 1987), cert.

denied, 486 U.S. 1055 (1988), the Court of Appeals for the

Second Circuit explicitly approved an order to build federally

funded low-income housing only outside of minority areas as

an appropriate remedy for de jure segregation in public housing

site selection. In that case, the Court found that such an order

was “closely tailored” to the constitutional violations to be

remedied.’ In Gautreaux v. Pierce, 690 F.2d 616, 622-23 (7"

Cir. 1982), the Court of Appeals for the Seventh Circuit

affirmed the approval of a consent decree under which HUD

was obligated to develop public and assisted housing

opportunities in non-minority areas.

In addition, although the appropriateness of utilizing a

race-conscious remedy was not squarely before this Court in the

Hills case, this Court observed that it was “entirely appropriate”

* The Fifth Circuit erroneously characterizes the Yonkers decision

as an example of race-neutral site selection based only on geographical

regions. See App. at p. 27. In that case, the Second Circuit recognized that

the geographical region designated was identified by reference to its white

population, from which subsidized housing had been excluded. See

Yonkers, 837 F.2d at 1184.

19.

for the Chicago Housing Authority and HUD to be ordered to

create housing opportunities in the predominantly white

Chicago suburbs as a remedy for the unlawful concentration of

most public housing in poor, black neighborhoods. 425 U.S. at

299-301.

The Court of Appeals’ decision in this case also

conflicts with decisions of other circuits that have held that race

may be considered in remedying unconstitutional racial

discrimination in housing programs. See Alschuler v. HUD,

686 F.2d 472, 482 (7" Cir. 1982) (“As part of HUD’s duty

under the Fair Housing Act, an approved housing project must

not be located in an area of undue minority concentration,

which would have the effect of perpetuating racial

segregation.”); Shannon v. HUD, 436 F.2d 809, 821 (3d Cir.

1970) (holding that HUD “must utilize some institutionalized

method whereby, in considering site selection or type selection,

it has before it the relevant racial and socio-economic

information necessary for compliance with its duties under the

1964 and 1968 Civil Rights Acts”).

The decision of the Fifth Circuit in this case stands

alone in reaching the result that race-conscious site selection

criteria may not be utilized in remedying the segregation

resulting from purposefully discriminating siting decisions.

Accordingly, this Court should grant certiorari in order to

resolve the conflict between the Fifth Circuit decision in this

case and the decisions of other circuits, and with this Court’s

decision in the Gautreaux case.

20.

CONCLUSION

On basis on the foregoing, Amicus respectfully suggest

that this court grant the Petition for a Writ of Certiorari.

October 18, 1999

Respectfully submitted,

Daniel F. Kolb, Co-chair

Charles T. Lester, Jr., Co-chair

Norman Redlich, Trustee

Barbara R. Arnwine

Thomas J. Henderson*

Richard T. Seymour

Cheryl] L. Ziegler

Lawyers’ Committee for

Civil Rights Under Law

1401 New York Ave., N.W.

Suite 400

Washington, DC 20005

(202) 662-8600

Attorneys for Amicus Curiae

*Counsel of Record