Opposition Brief — Walker v. City of Mesquite

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No. 99-296

Re kak,

In The ;

Supreme Court of the United States

DEBRA WALKER, JEANETTE WASHING, LO

HAZEL WILLIAMS, ZELMA LANG, RENITA |

LILLIE THOMPSON, TRACEY SMITI

CITY OF MESQUITE, TX; DEPARTIME?

HOUSING & URBAN DEVELOPME?

HOUSING AUTHORITY OF THE CITY OF DA

HIGHLANDS OF McKAMY IV AND ‘ ONIN

DEVELOPMENT ASSOCIATION: GINGER |

PRESTON HIGHLANDS HOMEOW?

ASSOCTATION, ING DAVID BEER: HICGHLANI

McKAMY IV AND V COMMUNITY IMPROVENM

ASSOCIATION; and THE CILY O}

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITIONERS’ PETITION FOR

WRIT OF CERTIORARI

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QUESTION PRESENTED FOR REVIEW

|. WHETHER PETITIONERS PRESENTED SUFFICIENI

EVIDENCE TO SATISFY THE CONSTITUTIONAI

REQUIREMENTS OF NARROW-TAILORING TELAI

RACE-BASED NEW CONSTRUCTION IN PREDOMI!

NANTLY WHITE AREAS OF THE CITY WAS NEG

ESSARY TO DESEGREGATE PUBLIC HOUSING IN

DALLAS WHEN SECTION 8 RENT SUBSIDIES. A

SPEEDIER, LESS INTRUSIVE AND RACE-NEUTRAI

REMEDY WAS AVAILABLE AND HAD BEEN SU¢

CESSFUL IN: MOVING BLACK FAMILIES INTO

WHITE AREAS OF THE CITY

PARTIES TO THE PROCEEDING

[he tollowing listed persons are parties to this pro

ceeding

Name

Debra Walker Petitioner

leanette Washington Petitioner

Hlazel Williams Petitioner

Zelma Lang Petitioner

Kenita Brown Petitioner

Lille Thompson Petitoner

lracey Smith Petitioner

City of Mesquite, Texas Kespondent

Department of Housing &

Lrban Dey elopment Respondent

lhe Housing Authority

ot The City of Dallas Kespondent

Highlands ot McKamy IV and \

Community Development

\ssociation Kespondent

Gainvger Lee Respondent

Preston Highlands Homeowners

\ssociation, Ine Kespondent

David Beer Kespondent

Highlands of McKamy IV And \

Community mprovement

Vssociation Kespondent

lhe City of Dallas Kesponde

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW

PARTIES TO THE PROCEEDING rT

TABLE OF CONTENTS 1

[ABLE OF AUTHORITIES

OPINIONS BELOW

IURISDICTION

CONSTITUTION, STATUTES. RUI FS AND REGI

LATIONS

STATEMENT OF THE CAS}

Introduction

Facts

SUMMARY OF THE ARGI MENT !

\RGUMENTS SUPPORTING DENIAL OF THI

WRIT

| NEITHER NATIONAL PUBLIC POLICY NOR

HUD’S SITE-SELECTION REGI LATION IS

THREATENED BY THI FIFTH CIRCUIT'S

DECISION IN THIS CAS| \ND NEITHER

MATTER IS SQUARELY PRESENTED FOR

REVIEW BY THE DECISION BELOW

i. NO REAL OR INTOLERABLE CONPLICY

EXISTS BETWEEN TH] DECISION OF THI

FIFTH CIRCUIT IN’ THIS CASE AND THI

DECISIONS O} OTHER CIRCUITS ON TH

SAME MATTER lO)

(HE PIP TEE CIRO UTES DECISION DOES NOt

PROHIBIE RACK CONSCIOUS SEITE SELLE

HON AND DORS NOPE CONEFEICL WEEE

DECISION OF THIS COURT

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BALANCED TEE RICHES OF THE CONMPE |

(PARTIES IN ACCORDANCE WIEEE TE

LANDARDS ESTABLISHED BY THIS COURI

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LABLE OF AUTHORITIES Continued

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Stern. Grossman, Shapiro & Geller, Supreme

Court Practice, p 17> (7th Ed. 1993) 1?

TO THE HONORABLE JUSTICES OF THE

UNITED STATES SUPREME COURT:

Respondents respecttully submit the following brief

In Opposition to the Petition For A Writ Of Certiorari

OPINIONS BELOW

lhe opinion of the Court of Appeals (App. 1-35) ts

reported at 169 F.2d 973, The opinions of the district court

(App h-H5. hb 206) are unreported

JURISDICTION

Respondents agree with the statement of jurisdiction

in the Petition tor Writ of Certiorari

CONSTITUTION, STATUTES,

RULES AND REGULATIONS

[he tollowing constitutional, statutory, and regula

tory provisions are involved in this case: U.S. Const

\mend. XIV (Equal Protection Clause); 42 U.S.C. § 1983

(1994); The Unitorm Relocation Assistance and Real Prop

erty Acquisition Policies Act of 1970, 42 U.S.C. 8§ 4601

1626 (1995); 24 CER. §& 880.103(a) (1996); and 24 C_ER

8S YAL202(c) (1996) and Rule 10 Supreme Court Rules

STATEMENT OF THE CASE

Introduction

As detatled below. the Pitth Corcuit’s deciston oun thos

case does not merit review by this Court because it cor

rectly applied striet scrutiny to the distriet courts race

comsctous remedial order requiring the construction of

M4 units of publ housing in opredominantly white

areas oot Dallas. Elowever, betore addressing the reasons

why the Petition should be denied, Respondents wish to

correct one of the assertions om the Petition

Petitioners state that Respondent Llomeowners

sought to Keep public housing amd public Housing resi

dents outot white areas Pet. at 3. (emphasis added) Uhis

is mot true As Petitioners are torced to acknowledge on

page dot ther Petition, Respondents have never sought

to keep public-housing residents out of white areas

Respondents have only sought to have the district court

use a race-neutral remedy, Section S vouchers, betore

resorting to construction of new public housing in “pre

dominantly white areas” of the citv. Elomeowners objec

thon to the construction of new public housing in this case

is based on (1) the intrusiveness of new construction, (2)

the propensity of government owned housing to become

slums and (3) the race-based method by which the sites in

this case were selected. Llomeowners do not object to the

public-housing residents themselves whether they are

white or black. Indeed, Ginger Lee, one of the Home

owners who tiled this case. is black

bacts

Respondents adopt the statement of tacts contained

inthe “Backyround” section of the Fifth Cire wits Opinion,

\pp. 3-10, with one exception. The Court ot Appeals

states that in “September, 1994, the district court held a

trial on the issue of a remedy” App. 7. It then states that

The district court entered its: remedial order attecting

DEA in Pebruary 1995 and its remedial order attecting

HUD in April, 1996.’ App. 7. The conjunction of these

sentences gives the misleading Impression that the dis

trict courts remedial orders in this case. see Supp. App

and 60, were the result of contested hearings. In tact,

however, the order dffecting DHA was purely the result

Of Neyotiations between two of the parties to this case,

, 1

DOHA and Petitioners Supp App. 6, 7, 13

It must be remembered that DHA and Petitioners

have been litigating this case since it was tiled in) 1985,

App. 3, long betore Respondent Homeowners filed their

own action in 1996 which was thereafter consolidated

with Petitioners’ case. During the negotiations leading up

to the entry of the district court’s order, DHA never made

a proposal that did not include some construction of new

public housing. Supp. App. 19 Accordingly, the POSsI-

bility that desegregation could be ac complished without

New construction was never considered before Home-

owners tiled their case. Even the definition of a “predom-

Inantly white area”, defined as having a minority

population of less than 37°. but meaning more than 63°,

White, and the total number ot public-housing units to be

Respondents have included a Supplemental Appendix

herematter Supp. App Jat the end of this brief which

supphes new material not contamed in Petitioners’ Appendix

a a

created by the district court’s order, were the result of

proposals made by Petitioners to DHA. Supp. App. at 15,

l6. The district court simply adopted this negotiated

order without any consideration of alternatives or of the

impact it would have on third parties.

Only in 1996 after the public-housing sites had been

selected and Respondent Homeowners had filed their

suit, did the district court even consider that its race-

conscious order was subject to strict scrutiny. However,

after giving Respondents an evidentiary hearing, the dis-

trict court simply rubber-stamped its original decree

derived from the negotiated settlement. It then abrogated

the task of making any independent findings by adopting

in toto the Findings of Fact and Conclusions of Law

submitted to it by Petitioners’ counsel. App. 24.

SUMMARY OF THE ARGUMENT

The Fifth Circuit correctly reversed the race-

conscious portion of the district court’s remedial order

which required construction of 474 units of new public

housing in “predominantly white areas” of Dallas. It left

intact 5,628 units of Section 8 housing. The Fifth Circuit

held, after application of the five part test in United States

v. Paradise, 480 U.S. 149 (1987), that the district court's

order was not “narrowly-tailored” because Petitioners

had not presented sufficient evidence that race-conscious

new construction was necessary when a race-neutral

alternative, Section 8& rent subsidies, was available.

Petitioners’ argument that review is warranted by

this Court because HUD’s site-selection regulation is

somehow threatened by the Fifth Circuit’s decision is

contrary to Petitioners’ own assertion below and would

require this Court to review a hypothetical case because

the Fifth Circuit never addressed the constitutionality of

HUD’s regulation. There is likewise no conflict between

the Fifth Circuit’s decision and any decision of this Court

or of any sister Court of Appeals. The decisions on which

Petitioners rely never applied strict scrutiny to a choice

between race-based new construction and race-neutral

Section 8 rent subsidies and therefore do not concern “the

same important matter” within the meaning of Rule 10 of

this Court. There is likewise no conflict between the Fifth

Circuit’s decision and this Court’s decision in United

States v. Paradise, 480 U.S. 149 (1987) on whether new

construction best fits the violation in this case because

Petitioners never presented sufficient evidence that it did.

Finally, Petitioners failed to show that the Fifth Cir-

cuit did not give proper deference to the exercise of the

district court’s discretion to fashion a remedy because

such discretion had to be exercised “within appropriate

constitutional and statutory limits” and was not. The

district court applied the wrong legal standards for

narrow-tailoring in a number of respects and squandered

its discretion by adopting in toto Petitioners’ Proposed

Findings of Fact and Conclusions of Law. App. 24.

ARGUMENTS SUPPORTING DENIAL OF THE WRIT

I. NEITHER NATIONAL PUBLIC POLICY NOR

HUD’S SITE-SELECTION REGULATION IS

THREATENED BY THE FIFTH CIRCUIT’S DECI-

SION IN THIS CASE AND NEITHER MATTER IS

SQUARELY PRESENT FOR REVIEW BY THE DECI-

SION BELOW.

In an effort to make its Petition more appealing to

this Court, Petitioners argue that 24 C.F.R. § 941.202(c)

(1996)?, a regulation dealing with site selection for new

construction projects funded by HUD, is somehow threat-

ened by the Fifth Circuit’s decision in this case. However,

this argument is directly contrary to Petitioners own

assertion in a memorandum filed in the district court

after the Fifth Circuit’s decision was rendered. Supp.

App. 27 (“the HUD site-selection criteria were not chal-

lenged by the Homeowners and were not overturned by

the Fifth Circuit.”) Furthermore, there is simply no basis

for this argument.

The Fifth Circuit’s opinion never addressed the con-

stitutionality of HUD’s regulation. All the Fifth Circuit

held in this case was that it would be premature to order

new construction of public housing in predominantly

white areas of Dallas as part of a judicially-mandated

2 24 C.F.R. § 941.202(c) (1996) provides as follows: “The site

for new construction projects must not be located in: (1) an area

of minority concentration unless (i) sufficient, comparable

opportunities exist for housing for minority families, in the

income range to be served by the project, outside areas of

minority concentration, or (ii) the project is necessary to meet

overriding housing needs which cannot otherwise feasibly be

met in that housing market area.”

desegregation order when Section 8 vouchers offer a

promising race-neutral alternative to desegregate public

housing. App. 24-25, 35.

HUD is before the district court in this case not as a

governmental agency engaged in an impartial funding

decision, but as a defendant that has been ordered by the

district court to fund the projects in question in order to

make restitution for its own acts of past discrimination.

Supp. App. 39; App. 3. By contrast, the constitutionality

of the HUD regulation presents the issue of what condi-

tions government may constitutionally impose on the

public financing of housing projects that are not the sub-

ject of court-ordered desegregation, an issue not pre-

sented by this case. There is nothing in the Fifth Circuit's

decision which prohibits race-based site selection that

results from voluntary agreements entered into between

HUD and local housing agencies outside of the context of

court-ordered desegregation. To use this case as a vehicle

for deciding that issue is therefore to present what is only

a hypothetical issue for review by this court.

The language of the Petition itself implicitly acknowl-

edges that the issue raised is not squarely presented by

the decision below. The Petition argues that national pub-

lic policy and the HUD regulation supports and requires

the use of a “similar race conscious public-housing site-

selection procedure”. Pet. at 9. (emphasis added). Like-

wise, Petitioners argue that “[T]he district court remedial

order declared unconstitutional by the Fifth Circuit is

similar to the regulation”. Pet. at 10 (emphasis added).

Petitioners further argue that the application of narrow

tailoring to the remedial order “has the potential to aftect

the application of the HUD regulation and national policy

throughout the country.” Pet. at 11-12 (emphasis added).

The use of such ambiguous terms clearly reveals that

no national public policy or any HUD regulation is

directly implicated by anything decided by the Fifth Cir-

cuit. This Court should not accept review of an issue that

exists, if at all, only by way of analogy. The constitu-

tionality of the HUD regulation should await decision in

a case where it is squarely presented so that this Court

will not be taken far afield into undecided matters. An

illustration will help make this clear.

If Petitioners were to secure review of this case on

the grounds that the Fifth Circuit’s decision “potentially”

threatens national policy as reflected in HUD’s site-selec-

tion regulation, then the Court would also have to

address the potential impact of other housing regulations

and statutes such as 42 U.S.C. § 4626 (1995) and 24 C.E.R.

§ 880.103(a) (1996) which are applicable in the circum-

stances of this case, but were not considered below.

In 42 U.S.C. § 4626 (Section of the Uniform Relocation

Assistance and Real Property Acquisition Policies Act of

1970 entitled, “Housing replacement by Federal Agency

as a last resort”), Congress indicated a clear preference

for the use and acquisition of existing housing structures

such as apartments over new construction in relocating

public-housing tenants. A HUD regulation likewise speci-

fies that, with certain exceptions, new housing may orily

be erected as a last resort. 24 C.F.R. § 880.103(a) (1996).

See also Society Hill Civic Assn. v. Harris, 632 F.2d 1045,

1056 (3rd Cir. 1980).

The circumstances of this case are directly relevant to

the Relocation Act because the district court’s order con-

templates 2,807 replacement units, App. 31, and the

relocation of thousands of public-housing tenants from

the demolished units in West Dallas. See App. 5, n.5;

Walker v. HUD, 912 F.2d 819 (5th Cir. 1990). The Reloca-

tion Act reflects a congressional preference to use new

construction for relocation purposes as “a last resort” and

an intent by Congress that relocation of persons “shall be

carried out in a manner that entails the minimum disrup-

tion of neighborhoods.” Society Hill v. Harris, 632 F.2d

1045, 1054 (3rd Cir. 1980). The Fifth Circuit’s decision in

this case declaring new construction of public housing in

white areas of the city to be “a last resort measure”, App.

34, is supported by the Relocation Act which, as a con-

gressional statute, supersedes any HUD regulation.

Of course, the Relocation Act is not controlling in this

case any more than HUD’s regulation. The controlling

issue here is the constitutionality of alternative remedies

in court-ordered remediation of past discrimination. Such

decrees are based on constitutional grounds and, as such,

are not trammeled by statutes or regulations, even if they

may be informed or guided by them.

But there is no need to decide any of these issues.

Petitioners have not been denied a remedy because of any

misapplication of the HUD regulation. Indeed, Petitioners

have not been denied a remedy at all; they have in fact

received a full and comprehensive one. See Remedial

Order Affecting DHA Supp. App. 60. They have only

been denied one particular kind of remedy, 474 units of

new construction out of a total of 6,012 housing units,

App. 31, and only because the evidence offered to justify

ears

it was insufficient. The Fifth Circuit merely held that

Petitioners had failed to sustain their burden of produc-

ing sufficient evidence to show that race-based new con-

struction instead of race-neutral Section 8 housing meets

the constitutional requirements of a narrowly-tailored

remedy in the circumstances of this case.* See App. 19-20,

28-35. Such a fact-specific, evidentiary holding does not

require intervention by this Court.

II. NO REAL OR INTOLERABLE CONFLICT EXISTS

BETWEEN THE DECISION OF THE FIFTH CIR-

CUIT IN THIS CASE AND THE DECISIONS OF

OTHER CIRCUITS ON THE SAME MATTER.

Petitioners argue that the decision by the Fifth Cir-

cuit in this case is in conflict with decisions of the Second,

Third and Seventh Circuits because these circuits have

applied “the use of racial classifications to individual site

decisions without requiring exhaustion of race-neutral

efforts,” citing United States v. Yonkers Bd. Of Education,

837 F.2d 1181, 1236-37 (2d Cir. 1987); Gautreaux v. Pierce,

690 F.2d 616, 622-623 (7th Cir. 1982); Alschuler v. HUD, 686

F.2d 472, 482 (7th Cir. 1982); Otero v. New York Housing

Authority, 484 F.2d 1122, 1134 (2nd Cir. 1973); and Shan-

non v. HUD, 436 F.2d 809, 821-22 (3rd Cir. 1970). Pet. at

12-13.

3 Cf. City of Richmond v. J. A. Croson Co., 488 U.S. 469, 500

(1989), quoting Wygant v. Jackson Bd. Of Education, 476 U.S. 267,

277 (1986) (requiring the City of Richmond to show a “strong

basis in evidence for its conclusion that remedial action was

necessary.”); Wessmann v. Gittens, 160 F.3d 790, 808 (1st Cir.

1998) (“Croson, in particular, leaves no doubt that only solid

evidence will justify allowing race-conscious action... ”).

But in none of Petitioners’ cases did the Court

address or the parties argue that under principles of strict

scrutiny of race-conscious judicial decrees, a race-neutral

remedy — Section 8 vouchers that could be used in “any

area” of the city — constituted a less intrusive but still

adequate remedy that should be tried before using a race-

conscious remedy — construction of new housing in pre-

dominantly white areas of the city.

The mere fact that some of Petitioners’ cases involved

decrees that included both Section 8 housing and new

construction in no way establishes that such decisions are

in conflict with the decision below. None of Petitioners,

cases invoked strict scrutiny as a basis for engaging in a

balancing of race-conscious and race-neutral alternatives

as more recent cases do. See In Re Birmingham Reverse

Discrimination Employment Litigation, 20 F.3d 1525, 1545-49

(11th Cir. 1994).

Rule 10(a) of this Court’s rules indicates that this

Court will consider as a possible ground for granting a

writ of Certiorari a decision in conflict with the decision

of another United States Court of Appeals “on the same

important matter.” The cases Petitioners cite do not even

discuss the matter of whether race-neutral Section 8

vouchers can be utilized as a means to remedy past

discrimination in public housing before ordering new

construction. The absence of any discussion of such an

issue in Petitioners’ cases may be due to the fact that,

except for Yonkers, all of Petitioners’ cases, pre-date this

Court’s decision in United States v. Paradise, 480 U.S. 149

(1987) which applied strict scrutiny analysis for the first

time to judicial decrees.*

Moreover, Yonkers is easily distinguishable on its

facts because Yonkers utilized a geographical rather than a

race-conscious decree and involved no discussion of Sec-

tion 8 vouchers as an alternative remedy to new construc-

tion.> Accordingly, the absence of any real or intolerable

contlict on “the same important matter” and the ancient

vintage of Petitioners’ cases which predate intervening

Supreme Court authority on the strict scrutiny require-

ment make any alleged conflict an insufficient ground for

granting a Writ in this case. Rule 10; Stern, Gressman,

Shapiro & Geller, Supreme Court Practice, p. 172 (7th Ed.

1993) (“A conflict with a decision which has been dis-

credited or has lost all weight of authority by reason of

intervening decisions of the Supreme Court. . . will not

be an adequate basis for granting certiorari.”).°

+ Three of Petitioners’ cases, Alschuler, Otero, and Shannon

are also distinguishable because they do not even involve

remedial desegregation orders based on past racial

discrimination, but only whether there was compliance with

federal housing regulations.

* In Yonkers, the Court ordered the city to construct 200

units of family housing “outside of Southwest Yonkers.” 837

F.2d at 1236-37. The only restriction on location of the new sites

was thus purely geographic. There was no racial component to the

order. There is likewise no indication in the opinion that the city

ever suggested the use of Section 8 housing as an alternative to

new construction.

* Furthermore, the factual circumstances of this case are

very different from the factual circumstances in Petitioners’

cases due to the extensive relocation of tenants required by the

demolition of projects in West Dallas and the limitations on

Il. THE FIFTH CIRCUIT’S DECISION DOES NOT

PROHIBIT RACE-CONSCIOUS SITE SELECTION

AND DOES NOT CONFLICT WITH ANY DECI-

SION OF THIS COURT.

Petitioners argue that “the Fifth Circuit’s decision

prohibiting the use of race-conscious site selection con-

flicts with the decisions of this Court that require all

remedies, race-conscious or race-neutral, fit the viola-

tion.” Pet. at 13-14. However, Petitioners misread the

Fifth Circuit’s opinion.

The Fifth Circuit adopted no broad-based prohibition

on race-conscious site selection. All the Court held was

that “[blecause there are promising non-racially discrimi-

natory ways to continue desegregating housing in Dal-

las... it is premature to utilize such a last resort measure

[as race-conscious site selection].” (Emphasis added).

App. 34. The Fifth Circuit also stated: “the District Court

erred in employing a race-conscious remedy before utiliz-

ing race-neutral alternatives.” (Emphasis added). App.

34-35. Clearly if the Fifth Circuit had intended any kind

of blanket prohibition of race-conscious site selection, it

would not have used terms like “premature” and

“before” in describing the problem with a race-conscious

remedy. If the race-neutral alternatives are not successful,

the Fifth Circuit has not ruled out using race-conscious

site selection at a later date.

replacement housing imposed by the Relocation Act. Such

important differences arising from differences in states of fact

and not in the application of any principle of law is not a proper

ground for granting a Writ of Certiorari. See The Wisconsin

Electric Co. v. The Dumore Co., 282 U.S. 813 (1931).

Petitioners nonetheless try to demonstrate a conflict

with this Court’s decision in United States v. Paradise, 480

U.S. 149 (1987) on the alleged ground that the remedy in

this case will not “fit” the violation. This argument, when

closely examined, reveals no conflict with any legal prin-

ciple in Paradise or any other decision of this Court.’

Rather Petitioners’ argument amounts to a disagreement

over the application of well-established principles to the

specific facts of this case. Ordinarily, that is not a proper

ground for review by this Court.

Even on its own terms, however, the argument is

unfounded. Petitioners argue that “race-neutral site-

selection criteria will leave predominantly black and

other minority-concentrated areas eligible for develop-

ment of the already allocated public-housing units.” Pet.

at 14. But this argument is largely irrelevant because the

eligibility for construction of new public housing in

minority areas does not mean that such units will or are

even likely to be built there. In Yonkers, the Court ordered

construction “outside of Southwest Yonkers”, a race-neu-

tral criteria that made it theoretically possible that some

construction could occur in minority areas. That possi-

bility did not render the order constitutionally suspect."

7 Petitioners cite, but do not claim any conflict with Hills v.

Gautreaux, 425 U.S. 284 (1976). Pet. at 10. That decision was

distinguished by the Fifth Circuit. App. 21, n.20.

8 Petitioners’ suggestion that “existing neighborhood and

political opposition will continue to pressure DHA’s decision on

sites away from white areas and into minority areas”, Pet. at 14,

adds nothing to this argument. As the Fifth Circuit found,

Plaintiffs, DHA and HUD, are now al! “cooperating

defendants.” App. 28. There is no evidence in this record that

Furthermore, the persuasiveness of Petitioners’ argu-

ment is not enhanced by their suggestion that under

certain circumstances construction might occur in census

tracts with a “non-Hispanic white population between

50% and 63%.” Pet. at 14. In the real world such an area

would be considered predominantly white and therefore

suitable for integrated housing. However, under the dis-

trict court’s order predominantly white is defined as “less

than 37% Hispanic, black or other minority,” App. 8, or

the equivalent of 63% white. Thus, while Petitioners are

correct in suggesting that under the Fifth Circuit's order

public housing could theoretically be built in areas with a

50% to 63% white population, it is hard to discern how

that would harm the effort to desegregate public housing

in Dallas or cause the remedy not to “fit” the violation.

Furthermore, the Fifth Circuit found that “[T]here is no

evidence in the record to support the Court's arbitrary

definition of a predominantly white neighborhood” as

63% white. App. 32.

Petitioners’ argument that the remedy doesn’t fit the

violation is also misguided because it focuses entirely on

the 474 units of new construction in the district court’s

order as if that were the only legitimate method for

Cesegregating public housing in Dallas. However, other

alternatives including Section 8 housing offer superior

means for accomplishing that end.

absent an order requiring DHA to locate public housing only in

white areas, that DHA will in fact place any appreciable number

of units of new construction in minority areas. In fact, given the

present DHA administration, the likelihood is just the opposite

— most if not all units will be placed in white areas whenever

HUD and DHA find the opportunity to do so.

This case is about people, not about any particular

form of housing. There is no constitutional right “to

dwellings of a particular quality,” Lindsay v. Normet, 405

U.S. 56, 74 (1972), nor do municipalities have any consti-

tutional duty to provide low-income housing. Acevedo v.

Nausau County, New York, 500 F.2d 1078, 1080-81 (2d Cir.

1978). New construction is therefore not an entitlement

that is owed to the victims of past housing discrimina-

tion. What they are entitled to receive is integrated housing

whatever form it may take.

It is undisputed from this record that blacks can be

moved into white areas of Dallas more rapidly, less

expensively and with far less intrusiveness to adjacent

property owners through Section 8 rent subsidies than

through new construction. Between 1994 and 1996, the

number of black families that had been moved into pre-

dominantly white areas of the city under the Section 8

program increased by 27%, App. 25, and the Fifth Circuit

found that the record indicates that [the program] could

be more successful with, for example, “increased funding

for both more vouchers and the mobility program, more

mobility counselors and higher fair market exception

rents.” App. 26-27.

Even more tellingly, the Fifth Circuit observed that

the district court’s own order relied overwhelmingly on

Section 8 vouchers to achieve desegregation because

5,628 units or 92% of the units to be created under that

order would be Section 8 units. As the Court of Appeals

stated:

If Section 8 can effectively satisfy the district

court’s remedial goal regarding 5,628 units, it is

baffling to assume that it cannot do so for an

additional 474 units.

App. 31. Because Petitioners never presented evidence

sufficient to answer this question, the Fifth Circuit

reversed that portion of the district court’s order which

required DHA to build 474 units of new construction in

white areas of the city. App. 25. Petitioners have pointed

to no evidence that would show that the Fifth Circuit

abused its discretion in reaching this conclusion.’

Although Petitioners fail in their effort to show that

the Section 8 remedy does not fit the violation, Petitioners

fall back on the argument that a race-conscious, “predom-

inantly white” remedial site-selection criteria “best” fits

the violation in this case because “it is framed to address

the exact effect and harm resulting from the predomi-

nantly minority site-selection criteria of the past.” Pet. at

16. This argument is based on the concept of retributive

justice, namely an eye for an eye; if the original wrong

involved new construction, then new construction must

be part of the remedy. However, this argument misper-

ceives the nature of the wrong in this case.

The constitutional harm suffered by black tenants of

public housing in Dallas has been to segregate them from

whites, thereby denying them “the important benefits of

’ Petitioners also make the truly astounding argument that

“Section 8 vouchers do not fit the public-housing violation.”

Pet. at 15. However, this argument, if true, would apply with

equal force to 92% of the district court’s own order, the terms of

which Petitioners themselves negotiated. If Section 8 does not

fit the violation, why have Petitioners accepted it for over 90%

of the relief they sought in this case?

interracial association.” Trafficante Oo. Metropolitan” Life

Insurance Co. 409 ULS. 205, 210 (1972). While the benetits

of interracial association were originally taken away by

forcing blacks into public-housing, projects in black areas

of the city, see Walker oo HUD, 734 BeSupp. 1289, 1294-96

(N.D. Tex. 1989), toreing blacks today into housing, pro-

jects in white areas of the city is not the only way or even

the best way to remedy that wrong.

The history of housing projects in Dallas has been a

dismal one. The West Dallas project reterred to by various

Courts as a “publicly-owned slum,” Walker o. HUD, 73-

F.Supp. at 1276, 1308, and as “one of Dallas’ worst

slums,” Walker oo HUD, 912 F.2d at 821, consisted of 3500

Units, 1300 of which had been vacant and boarded up for

at least ten vears because they were not tit to be occupied

by humans. Walker vo. HUD, 734 F.Supp. at 1308. As a

result, the district court required the demolition ot

approximately 2600 units of public housing in the West

Dallas project. See Walker vo. HUD, 912 F.2d at 819. See also

App. 5. It was these units that were to be replaced on a

one-for-one basis with additional public-housing units

and with rental units subsidized by Section 8 certificates

and vouchers. See App. 5.

Given these facts, there is no reason why the housing

projects of the past need to be replaced with housing

projects of the future and why the residents of Dallas,

and these Homeowners in particular, must risk more

housing projects turning into slums. Judges are not

required to ignore the lessons of history. Because of the

massive failure of public housing in the past, Congress in

recent vears has overwhelmingly favored rental subsidies

over new construction in its appropriation of public-

housing funds.'? That same preference is embodied in the

Unitorm Relocation and Real Property Acquisition Policies

Act of 1990, 42 U.S.C. §8 4601, 4626, et. seq. Moreover, it is

undisputed that the majority of public-housing partici-

pants in this case preter Section 8 housing over public-

housing projects. App. 22. Even the district court itself in

its decree overwhelmingly favored Section & housing to

public-housing projects and agreed that Section 8 housing

Was more cost-efficient than new construction. App. 22.

Unquestionably, Section 8 housing can accomplish racial

Integration more quickly than housing projects since the

apartment units already exist and Section & rent subsidies

are Clearly less intrusive to adjacent property owners than

the mortar and brick of new construction.

Public projects also have significant drawbacks that

may be less pronounced in Section 8 housing. For exam-

ple, housing projects where the residents are primarily of

one race, often lead to resegregation within the projects

themselves, see Otero v. New York Housing Authority, 484

F.2d 1122, 1132-56 (2d Cir. 1973), whereas Section 8 hous-

ing is more likely to contain fee-paying tenants of other

races.

these and other reasons substantially undermine

Petitioners’ assertion that new construction “best” fits the

' For example, as part of its 1997 budget, Congress

appropriated over $9 billion ($9,000,000,000) for housing

assistance programs, $8 billion ($8,000,000,000) of which is

expressly allocated to “Section 8 subsidy contracts.” 105 PL. 65,

Lil Stat. 1344 (1997). By contrast, Congress appropriated only

$300 million dollars ($300,000,000) in the Hope VI statute under

which DHA got its new construction funds in this case.

violations in this case. Because the benefits of interracial

association can be fostered just as completely by Section 8

housing as by new construction, but without many of the

disadvantages of new construction and without the use of

explicit racial criteria, Petitioners’ argument is not. per-

suasive. Even if it were, however, the necessity for new

construction was never established by sufficient evidence

in the trial court. More importantly, none of these argu-

ments demonstrate a conflict with any decision of this

Court.

IV. THE FIFTH CIRCUIT DECISION CORRECTLY

BALANCED THE RIGH S OF THE COMPETING

PARTIES IN ACCORDANCE WITH THE STAN-

DARDS ESTABLISHED BY THIS COURT.

Petitioners argue that the Fifth Circuit’s decision con-

thicts with this court’s decision in United States vo. Paradtse,

480 U.S. 149 (1987) because it adopts a “new [and dras-

tically lower] standard for impermissible impact on third

parties...” Pet. at 18. There is simply no truth to this

claim.

First, in articulating the standard for review in this

case, the Fifth Circuit explicitly adopted the standard for

reviewing race-conscious remedies set out in United States

v. Paradise. App. 19. There is no statement anywhere in

the Fifth Circuit’s decision that it was following any

difterent or lesser standard.

Second, there is no indication that the Court of

Appeals gave any undue weight to that particular part of

the Paradise standard that requires consideration of the

Impact of the remedy on the rights of innocent third

parties. If anything, the Court dealt with this factor rather

perfunctorily. App. 33-34. A fair reading of the Fifth

Circuit’s decision quickly reveals that it was other factors

in the Paradise test that played a far larger role in the

balancing, process undertaken by the Court of Appeals

than did the impact on third parties. Compare App. 28-33

with 33-34.

Petitioners also incorrectly characterize the Fifth Cir-

cuit’s decision as holding that the district court’s “strin-

gent measures” to prevent harm to adjacent homeowners

“did not show narrow-tailoring”. Pet. at 18. This is incor-

rect. The Fifth Circuit never concluded that the district

court's efforts to prevent deterioration of the projects was

not a factor in favor of narrow-tailoring. In fact, the Fifth

Circuit was careful to note that “the district court Showed

considerable sensitivity to the fact that public housing

has in the past been disyracetully neglected in Dallas.”

App. 33. However, the Court concluded that these safe-

guards cut two ways:

On the one hand, it attempts to placate their

fears of deterioration in their neighborhoods.

On the other hand, it lends credibility to those

fears.

App. 34.

In making this statement, the Court of Appeals was

merely suggesting that the impact factor was fairly

evenly balanced. However, it concluded that “because

there are promising, non-racially discriminatory ways to

continue desegregating public housing in Dallas,

_ under the balance of the Paradise factors, the criterion

[new construction] is not narrowly-tailored, and it is pre-

mature to utilize such a last resort measure.” App. 34.

The court thus gave no undue weight to the factor of

third party impact, but rather assessed the need for new

construction in relation to the availability of other

remedies and found Petitioners’ need for that remedy

“premature” at this time. There was no error in the Fifth

Circuit's methodology and no conflict with any decision

of this Court

Finally, the result reached by the Fifth Circuit,

although different from the one reached in Paradise, is

fully consistent with the rationale of that decision. In

Paradise, this Court reviewed the constitutionality of a

race-conscious order whereby the district court required

that one black officer in the Alabama Department of

Public Safety be promoted for every one white officer

until the department had developed a promotion plan

without adverse impact on black officers. In holding that

such a one-to-one order was narrowly-tailored, this Court

emphasized that the order was: (1) temporary in dura-

tion, (2) within the department's power to end, (3) limited

In scope because it was only applicable in limited circum-

stances and (4) diffuse in impact because it only post-

poned promotions for whites rather than ending them. In

hight of the conclusion that the district court had no other

effective remedy available to it, 480 U.S. at 177, this Court

found that the promotion requirement “does not dispro-

portionately harm the interests or unnecessarily trammel

the rights of innocent individuals.” 480 U.S. at 183.

The impact of the district court’s order in this case is

very different. First and perhaps most importantly, the

Impact in this case is not temporary. As long as Home

owners live adjacent to public housing built pursuant to

the district court’s order, the value of their homes, the

quality of their lives and their personal safety will be

attected by any deterioration in or anti-social behavior

from the public-housing projects.!! One can debate end

lessly the likelihood of these events occurring at the new

sites or the sufficiency of the so-called “stringent”

methods taken by the district court to prevent such dete-

noration (e.g., enforcement of city housing codes), but

the extended duration of any impact on the Homeowners

if the housing deteriorates is not debatable. It will last as

long as they live in the neighborhood. As previously

noted, large portions of the West Dallas projects were

uninhabitable for ten years

Second, Homeowners have little, if any, control over

the impact that the public housing will have on their

neighborhoods. If the public housing deteriorates, they

can do no more than complain to the City of Dallas or

hire attorneys to bring such issues to the attention of the

district court. Therefore, unlike the defendants in Paradise

who had the ability to end the race-conscious order by

devising a constitutional promotion procedure, Home

owners have no such control. They are totally at. the

mercy of others

See Walker o. HUD, 734 F.Supp. 1272, 1276 (N.D. Tex

1989) (describing “the appalling conditions at West Dallas

housing that was barely fit to live in, almost 1300 units that were

boarded up; severe problems with druy dealers, with other

crimes, with transients, and with vandalism; health risks due to

lead contamination; a bitter life with roaches and rats and

rubbish.”

fhird, the impact of the district court’s order 1s not

limited in scope. The public housing 1s either built or not

built. [he only unknown 1s the extent of any impact that

such construction will have on Homeowners In the

future. However, the inability to quantify such impact

and the possibility that it might grow in subsequent years

only makes the potential Impact more unlimited in scope.

Fourth, the impact on Homeowners will not be “dif-

fuse” if the public housing deteriorates. One can debate

whether this will occur, but the history of public housing,

in Dallas shows the possibility cannot be dismissed.

Finally, and perhaps most importantly, in this case

there 1 an effective alternative. Section 8 housing has far

less impact than new construction on neighborhoods and

on adjacent homeowners because it utilizes existing

apartments. The existence of this alternative affects the

entire balance of hardships between the facts in this case

and the facts in Paradise. Here the harm 1s “unnecessary”

and “disproportional” because of the existence of a viable

alternative that has not been given an adequate chance to

accomplish deseyreyation.

Given the very significant differences between the

nature, duration and scope of the impact of a race-con

scious remedy in this case and in Paradise, there 1s no

basis for the claim that the Fifth Circuit has “drastically

lowered” the standard for impermissible impact on third

parties set out in this court’s decisions. What Petitioners

are really quibbling, about 1s the application of settled

principles to specific facts. [hat is not a sufficient ground

for review by this court

V. THE FIFTH CIRCUIT DID NOT INTERFERE

WITH THE SOUND DISCRETION OF THE TRIAL

COURT.

In U.S. v Paradise, 480 U.S. 149, 184 (1987), this Court

recognized that “the choice of remedies to redress racial

discrimination is a balancing process left, within appro-

priate constitutional or statutory limits, to the sound

discretion of the trial court.” The Fifth Circuit expressly

acknowledged this limitation, saying: “we are mindful of

the respect owed a district judge’s judgment that speci-

fied relief is essential to cure a violation of the Fourteenth

Amendment.” App. 28. However, the Fifth Circuit noted

that the district court’s equitable powers “remain con-

strained by the boundaries of narrow-tailoring”, App. 28,

an approach consistent with the requirement that the

district court’s discretion must be exercised “within

appropriate constitutional and statutory limits.” Paradise,

480 U.S. at 184. In concluding that Petitioners had not

provided sufficient evidence of the necessity for a race-

conscious remedy at this time, the Fifth Circuit did not

interfere with the district court’s discretion as Petitioners

suyyest.

First, Petitioners’ claim that the Fifth Circuit

rebalanced the equities between the feared injury to adja-

cent property Owners and the steps taken to prevent it

when such equities had already been balanced by the

district court. But a reading of Petitioners’ references to

the district court’s decision show that the balancing

conducted by the district court was not the balancing

required by the Paradise case.'?

Under the Paradise case, the district court was

required to assess the impact on third parties in terms of

its duration, scope, diffuseness, and the degree of control

given to the affected parties in proportion to the avail-

ability or other remedies. No balancing of this type was

undertaken by the district court.!* The Fifth Circuit could

not therefore have interfered with the exercise of the

district court’s “sound discretion” within appropriate

“constitutional and statutory limits” because no sound

12 What the district court did was balance the safeguards

on the projects to be built in white areas with the lack of

safeguards in the projects that had previously been built in

black areas. App. 88-89; 174. Such balancing 1s a specific

application of the discredited theory adopted by the district

court that Homeowners would have no equal protection claim

unless they could first identify a similarly situated set of black

persons who have been treated better. App. 171. The Fifth

Circuit specifically rejected this equal protection theory as an

incorrect legal standard in this case because it applies only

where there is no explicit use of racial criteria. App. 16. Since the

district court’s findings on this issue were based on a “mistaken

impression of applicable legal principles, the reviewing court

was not bound by the clearly erroneous standard”. Inwood Labs,

Inc. v. Ives Labs, Inc., 456 U.S. 844, 855, n.15 (1982); United States

v. Bently-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993).

1’ The district court did find that the “impact on the

Homeowners near the sites will be comparatively minimal and

diffuse.” App. 204. (emphasis added). However, the district

court never gave reasons for this conclusion nor stated to what

the impact was being compared. The only comparison that can

be found is the comparison to the impact on blacks in black

areas of the city which has no constitutional significance.

discretion within the appropriate constitutional limits

was ever exercised.

Petitioners also argue that the district court provided

a specific means to allow Section 8 vouchers to substitute

for future allocations of public housing in white areas

once the defendants could show that Section 8 would

ensure housing in white areas. Pet. at 20. But the district

court reversed the burden of producing evidence on this

issue. It was Petitioners, not Homeowners, who had the

burden to offer evidence showing that a race-conscious

remedy like new construction in white areas of the city

Was necessary to achieve racial integration. App. 19-20.

The Fifth Circuit correctly rejected the district court’s

misapplication of the burden of production and therefore

owed no deference to any conclusion reached on that

basis. App. 20.

Petitioners next complain that the Court of Appeals

“ignored” the long record of neighborhood opposition to

public housing in white areas. Pet. at 20. But Petitioners

never explain how this opposition would have justified

the use of new construction instead of Section 8 housing

(certainly the opposition to new construction would be

no less than opposition to use of Section 8 vouchers) nor

do Petitioners explain how “ignoring” this fact interfered

with the exercise of the district court’s discretion.

Petitioners also complain that the Fifth Circuit over-

looked findings that DHA historically segregated His-

panics by race. Pet. at 21. But Petitioners never explain

how the district court’s order which excludes Hispanics

and “other minorities” from eligibility for public housing

in their areas will remedy any wrong, against either His-

panics or Blacks. Similarly, Petitioners never explain why

other minorities, e.g., Asians, are included in the district

court’s remedy when there are no findings of discrimina-

tion as to any other minorities. As the Fifth Circuit noted:

[his suit was brought by black plaintiffs on

behalf of a class of black plaintiffs. There is no

suggestion that the suit was ever expanded to

include all minorities

App. 32.

Finally, Petitioners contend that the Fifth Circuit

incorrectly characterized the Section 8 voucher program

as “race neutral”, when the Section & mobility program

that accompanied the successful movement of blacks into

white areas “is explicitly race conscious.” Pet. at 21-22.

[his argument is disingenuous.

Ihe Section 8 program that successfully moved black

families into white areas between 1994 and 1996, App. 25,

is clearly race-neutral in terms of site-selection criteria.

See App. 56, 91, 113 (“No Section 5 participant is denied

the right to use the Section 8 assistance In any areas.”’)

(emphasis added). Furthermore, as the district court

noted, “There are no race-conscious limits on who gets

Section 8 or any racial preferences for applicants of any

race.” App. Y].

Phe only aspect of Section 8 that is race-consclous is

the mobility program. Mobility services are simply coun-

seling services to help public-housing tenants find Sec-

tion 8 housing. App. 6, n.6; 90-91. Blacks get counseling

for use of Section 8 vouchers only when they are used in

white areas. They do not get such services 1f they choose

to live in black areas “because there is no record that

black Section 8 participants encounter any problem find-

ing housing in minority areas.” App. 91. Likewise, white

participants do not get mobility services “because there is

no record that white Section 8 participants encounter any

problems finding housing in white areas.” App. 91. Thus

mobility services are tailored to those circumstances

where they are shown to be needed.

The fact that race plays a minor role in the dispens-

ing of counseling services in no way undermines the

legitimacy of the Fifth Circuit’s distinction between the

race-conscious order to locate new construction in “white

areas” and the race-neutral use of Section 8 vouchers

which can be used in “any area.” Thus, in terms of site

selection, the remedy of new construction in the district

court's order is clearly “race conscious” whereas the use

of Section 8 vouchers is clearly “race neutral.” The fact

that there is a racial component to the counseling services

is, from a legal perspective, irrelevant to the issues in this

Case.

Finally, Petitioners argue that the Fifth Circuit

improperly limited the scope of the district court’s discre-

tion. Pet. at 19. In some cases this might be true. How-

ever, In this case it is most disingenuous to stress the

exercise of the district court’s sound discretion when the

district court’s entire Memorandum Opinion, App.

66-228, was copied verbatim (together with typographical

errors) from Petitioners’ Proposed Findings of Fact and

Conclusions of Law. As the Fifth Circuit noted, the dis-

trict court’s opinion “[A]dopt[ed] the Walker plaintiffs’

proposed findings of fact and conclusions of law in toto.”

App. 24. While there may be cases in which a Court of

Appeals has interfered with the sound discretion of a

district court, this is not such a case. Indeed, this case

would present a particularly poor vehicle through which

to emphasize the deference to be accorded a district

court’s judgment when the trial court squandered most, if

not all, of its discretion by ceding to Petitioners’ counsel

the difficult and delicate constitutional task of balancing

the competing interests of the respective parties.

CONCLUSION

[he Fifth Circuit properly reversed this case and

remanded for further proceedings. That result was Cor-

rect and presents no issue of sufficient importance to

merit this Court’s review. Petitioners’ Petition for Writ of

Certiorar) should therefore be denied.

Respectfully submitted,

Ror E. Gooporrmnp, PC.

Texas State Bar No. 08149000

750 N. St. Paul Street

Suite 1400

Dallas, Texas 75201

214-991-3833

Attorney for Kespondents

Supp. App. ]

ip. 1] IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HIGHLANDS OF McKAMI,

et al.,

Plaintiffs,

Civil Action No.

)

VS ) 3-96C V1866-R

HOUSING, AUTHORITY OF }

[HE CITY OF DALLAS, y

)

Defendants

ORAL DEPOSITION OF ALPHONSO JACKSON

TAKEN ON AUGUSI 29, 1996

REPORTED BY: Tina Youny

lina Young & Associates

7122 Jack Franzen

Corlana, Jexas 75043

(214) 226-6365

A 4 4

[p. 8] PROCEEDINGS

MR. MELSHEIMER: Under the Rules

ALPHONSO JACKSON,

having been first duly cautioned and sworn upon his

oath to tell the truth, the whole truth, and nothing but the

truth, testified as follows, to wit:

Supp. App. 2

EXAMINATION

BY MR. MELSHEIMER:

Q. Mr. Jackson, would you please state your name

for the record.

A. Alphonso Jackson, A-l-p-h-o-n-s-0, J-a-c-k-s-o-n.

Q. Mr. Jackson, my name is Tom Melsheimer. We

met immediately prior to starting here today. And do you

understand that I represent a group of homeowners who

have filed suit in Judge Buchmeyer’s court in a case that

has been consolidated with the Walker case, and it’s a

case in which they’re essentially challenging the con-

struction of public housing in their neighborhoods. Are

you familiar with that case?

A. Yes.

[p. 9} Q. You understand that’s the case we're here

take your deposition in today?

A. Yes.

Q. How are you currently employed?

A. Iam the vice president of Corporate Resources

for Central and Southwest Energy, an International Cor-

poration.

Q. And how long have you held that position? I

think it’s only a couple of months, isn’t it?

A. About five weeks.

Q. It’s nice they would give you time off to come do

this after five weeks, huh?

Supp. App. 3

A. I didn’t have a choice.

Q. Can I dispense with the normal admonitions

with respect to a deposition? | assume you’ve had your

deposition taken before?

A. Yes.

Q. And you understand that everything you say

here is under oath, and is being taken down by a court

reporter, just as if we were in court today?

A. Yes.

Q. And if I misstate anything or ask a question that

you don’t understand, would you

* * +

[p. 10] please feel free to correct me or ask me to clarify a

question?

A. Yes.

Q. What was your job immediately prior to going to

Central and Southwest?

A. Iwas the president and CEO of the Dallas Hous-

ing Authority.

Q. How long did you hold that position?

A. Approximately seven and a half years.

Q. When did you go to work for the Dallas Housing

Authority?

A. January 1989.

Q. Did you go to work as the president and CEO?

Supp. App. 4

A. At that time it was the executive director, but

that’s the equivalent.

©. You had the same duties as executive director as

you had as president and CEO?

A. Yes.

Q. Can you just describe for me briefly the duties

and responsibilities of the president and CEO ot the

Dallas Housing Authority?

A. The responsibilities are ~ 1s to manage the Hous-

ing Authority on a day-to-day basis, that is, to run the

respective departments within the [p. 11] Housing

Authority of the City of Dallas, housing, modernization,

maintenance, client services, Section 8, et cetera, and to

interface with the external community.

Q. Is it fair to say you were the boss of the Dallas

Housing Authority?

A. | was responsible for all the activities of the

Dallas Housing Authority.

Q. Anyone have any more responsibility than you?

A. No.

Q. Prior to coming, to the Dallas Housing Authority

in January of 1989, did you have any previous experience

in the area of public housing?

A. Yes.

Q. What sort of experience did you have?

A. | was director of Housing for the District of

Columbia and chair of the Redevelopment Authority.

Supp. App. 5

Q. When did you hold that position?

A. From ‘87 to ‘89.

Q. Any other experience in public housing prior to

DHA?

A. Yes, I was director of the St. Louis Housing

Authority.

[p. 25] disbanded; and second, we would make every

effort to disperse those certificates and vouchers to non-

impacted areas in accordance with the consent decree;

and that we would — we would do everything to maintain

the buildings, the present conventional units, better than

they had been maintained.

Q. Is it your understanding that there came time

when the consent decree was vacated

A. Yes.

Q. - or overturned?

A. Yes.

Q. What is your understanding of what led up to

A. I really can’t remember.

©. Okay. You understand that as a result of the

vacation of the consent decree, that the Court entered a

remedial order affecting DHA?

A. Yes.

Q. And that was in April of this year, or May of this

year?

Supp. App. 6

A Yes

©. I want to ask you a little bit about the circum-

stances leadiny up to the remedial order. I'm sorry | said

May. It's February

MR. WERNER: You vot the year [p. 26] wrong

MR. MELSHEIMER: And it’s in February last

vear. ['m all messed up

record, you understand that the remedial order affecting

DHA, which replaced effectively the consent decree, Was

issued by the Court in February of last year

A. Yes

() ‘95? Let me show you what’s been marked 1n a

previous deposition as Exhibit 18. Do you recognize that

as a true and correct COPY of the Remedial Order Attect

ing DEHLA?

\ Yes

©. [want to tocus your attention on that order, Mr

lackson. Were there negotiations or conversations with

the Plaintiffs that you participated in leading up to the

entry of this order, Exhibit 18?

A Yes

©. Can you describe tor me the course of those

conversations or negotiations?

\. Yes

() When did they start?

Supp. App. 7 '

A. I can’t tell you exactly when they [p. 27] started.

(. Was it sometime in 1994?

A. I~ I can’t specifically give you the date. I just

don’t know. I know it was about a year and a half before.

QO. Okay. So it could have been in late ‘93, but

certainly in the late ‘93-°94 time period, you were

involved in negotiations and conversations with the

Plaintiffs with respect to what eventually became Exhibit

18?

A. Yes.

Q. Who participated in those negotiations?

A. Joe Werner, Mattye Jones, Lori Moon, Mike Dan-

iels and his colleagues — I can’t remember each — each

person ~ Billy Daily, Bill Cerbone, Chris Wittmayer, Judge

Buchmeyer, Special Master Louis Webber. | think that’s

I think that’s all.

Q. Can you summarize for me how What you

Were negotiating about?

A. Sure. We were neyotiating about how we we

would utilize the thirty-five hundred units or so that we

had to replace with the demolition of Lakewest. You

know it as West Dallas. And the negotiations started at

Whether [p. 28] we, from the Plaintiffs and Plaintiffs’

attorney's position, whether we build thirty-five hundred

units; or whether we bought thirty-five hundred units; or

whether we used some section 8 certificates and some

section 8 vouchers; whether we had some conventional

units built. It was trying to come down, because as I’ve

said on a number of occasions, | didn’t see how we could

Supp. App. 8

build or buy thirty-five hundred units in North Dallas. 50

we started negotiating.

Q. The thirty-five hundred unit number, where did

that come from?

A. I’m not sure.

Q. Was that a part ot the . what the Court had

ordered with respect to new units?

A. You know, I’m - Tm not - | think that it was - It

was the replacement units to North Dallas from Lake-

west, plus some new units. I'm just not as familiar as |

used to be with it.

Q. Ican certainly understand that. And I'll try not

to refresh your recollection too much, because I’m sure

your diminished one is far superior to mine. But in any

event, can you summarize for me DHA’s position in those

negotiations? And if it changed, tell me that, [p. 29] too.

But youve described a negotiation process over how

these thirty-five hundred units were to be demolished.

What was DHA’s position with respect to those thirty-

five hundred units?

A. Well, at first, our concern Was. How do we

replace them? Do we replace them ~ we replace some on

that site? Do we build all of them outside of that site?

Speaking for the agency, I just didn’t think we could find

thirty-five hundred units or build thirty-five hundred

units in North Dallas.

Q. Why not?

A. I don’t -I didn't think the land was there nor the

units were there.

Supp. App. 9

Q. By units being there, do you mean pre-existing

units?

A. Pre-existing units with the size that we needed.

Q. And when you say “the size that vou needed in

pre-existing units,” you mean the prospect of DHA buy-

ing a pre-existing building and converting that to public

housing?

A. No. Whether there were apartment complexes or

duplex complexes that could house two-, three-. tour-,

five-bedroom families. It was [p. 30] my perception that

they didn’t exist. We had two — we had had success with

two bedrooms, but we had not had that kind of success

with three, four, and five bedrooms.

Q. When you're talking about these thirty-five hun-

dred units, are you talking about public housing replace-

ment units and Section 8?

A. Our position was, is that we couldn't — |] didn't

believe, and I still don’t believe, that we could have

tound or built thirty-five hundred conventional units. So,

therefore, we sat down with the Plaintiffs and the Plain-

tiffs’ attorney and tried to come to some agreement where

some would be conventional units and some would be

section 8 certificates and vouchers.

Q. So when you say the thirty-five hundred units

Was an unattainable number, you mean any combination

of construction and Section 8 in North Dallas wasn’t

going to lead to thirty-five hundred units?

A. No. that’s not what I said.

QO. Okay. Please

Supp. App. 10

A. | said when we started out, it was my under-

standing, that the Plaintitfts and the Plaintiffs’ attorneys

wanted thirty-five hundred [p. 31] units. [hose were

conventional units | felt that that was impossible

MR. WERNER [hirtyv-tive hundred structures

as opposed

tHE WITNESS | hirtv-tive hundred structures

MR. WERNER to some combination of struc

tures and Section %?

IHIE WITNESS: Right

A. I felt that that was impossible to accomplish. So |

asked our lawyer to permit us to ~ and the Court did, too

to neygotiate with the Plaintiffs to try to have some

mixture of both certificates, vouchers, and conventional

housing,

©. (By Mr. Melsheimer) | see. Just so I’m clear, the

impossibility was that there wasn’t going, to be a way to

tind structures in North Dallas to house thirty-five hun-

dred units of public housing?

A. To have structures or to build

©. Or to build the thirty-five hundred units. And,

therefore, you, on behalt of DHA, sought to have that

thirty-five hundred number comprise some new con:

struction, some purchase of pre-existing structures, and

some Section %?

|p. 52] A. Yes.

©. Other than your belief that there wasn’t thirty-

tive hundred units in North Dallas

————————————

Supp. App. 1]

MR. WERNER: That’s not what he said.

Q. (By Mr. Melsheimer) Well, and let me try to get it

straight. Other than your belief that there weren't thirty-

five hundred ~ you weren't going to be able to accommo-

date thirty-five hundred units in North Dallas through

the use of construction or buying pre-existing units, was

there any other reason why you wanted to see that

number comprised of new construction, pre-existing

buildings, and Section 8?

A. Yes

©. What were those reasons?

A. The tair market rents. If we found houses in the

communities that the agreed order of the consent decree

or the ~ later the remedial order talked about, most of the

time they are out of our FRM’s — well, the fair market rent

area. | mean, we're only allocated so much money that we

can pay for a three-bedroom or four-bedroom or a five-

bedroom. And so, therefore, if you have a four-bedroom

going for two thousand dollars in that [p. 33] area, we

can’t afford to rent that apartment complex.

So my answer to that is, let’s try to find a mixture of

section 8 certificates and vouchers, new construction, and

buying. And hopefully in the process of buying, we

would — we would be able to adequately accommodate

the needs of the thirty-five hundred people.

Q. Did you have any policy considerations with

respect to the new construction versus Section 8 that, for

example, you thought that additional Section 8 would

just be a better idea as a matter of policy, or was it all just

a matter of availability?

Supp. App. 12

A. Well, are you asking me my opinion?

©. Yes

A. Oh. I think Section & is excellent. There’s no

question that it's an excellent program. But the problem

is, from a pragmatic point of view, you can’t address the

needs of the families that exist presently on our waiting

list in the Housing Authority

©. Why its that?

A. Because we have three, four, and five bedrooms

and the fair market rent does not equate

* + *

[p. 46] Q. You couldn't do all those units, in your

judgment, in North Dallas under Section 5 because for the

reasons that we discussed, they weren't available?

A. No. That’s not what I said. I said that we had,

between us, the Plaintiffs, and the Plaintiffs’ attorney,

experienced a spirited debate about what number would

be conventional, what number would be Section 5 |

understood clearly why the Plaintiffs and the Plaintifts’

attorneys was not going to let us have all Section & units

They felt that some of them should be replaced with

conventional units.

©. Was that based on your did you understand

them to want new construction because of they knew

what vou knew about Section 5 in North Dallas or some

other reason?

A. Tamconvinced he’s a very bright man. He knew

the market was not there. In fact, he probably knows

better than I do

Supp. App. 13

YO The negotiations, then, were basically a neyotia-

tion between DHA, the involvement of the other parties

and the Plaintiffs, with respect to how these thirty-five

hundred units were yoing to be allocated?

& &

[p 47 | A [hat’s correct

QO. During the course of the negotiations, did you

conduct any survey, like the housing opportunities sur

vey, to determine how much of Section & could be borne

In nonimpacted areas?

A. Thonestly can’t remember that. We might have. |

don’t know

QO. Wouldn't that have been an Important thing for

you to know in terms of determining how much Section &

could be used?

A. Oh, | think it’s an Important factor, but at the

same time there were other factors. And the other factors

to me, at that point, were more important. That is, to try

to get an agreement with the Plaintiffs and the Plaintiffs’

attorney. That was the most important thing to me,

because | just did not believe that there was ample room

to build or to buy thirty-five hundred units

When I started out the process, if you asked me: “Did

| have the data?” No. It was a gut feeling that they were

not there. And I think it would have been a little prema-

ture on our part to talk about, “Yes, we can find land and

build thirty-five hundred units or buy thirty-five hun-

dred units.”

Supp. App. 14

Ip. 48] QO. With respect to the Section & issue,

though, and the availability of housing in nonimpacted

areas, you don't know whether or not you did any kind

ot Study during the negotiations as to what the availabil-

ity Was?

A. DT yust don’t remember

O. We have been using North Dallas and nonim-

pacted areas sort mnterc hanyeably but, in tact, that’s not

the same thing, right? North Dallas and nonimpacted are

not synonymous In the sense

\ That's correct

() [hat there are areas that are nonimpacted that

are outside ot North Dallas, correct?

\ That's correct

QO. Would your answers be the same concerning the

avatlability of Section 8 housing in North Dallas, if we

include North Dallas and all the nonimpacted areas, that

there's just not tor the reasons you've stated, not

enough, and when they are available, there’s not enough

money? We're talking about nonimpacted areas as a

whole, including North Dallas

A. It vou’re talking about the suburbs, |

[p. 50] A. People don’t want public housing resi-

dents in their community

QO. Excluding the suburbs, okay, nonimpacted areas,

North Dallas, anvwhere else in Dallas, yvour view that

Supp. App. 15

there’s not going to be sufficient — or let’s yo back to — let

me strike that.

The process of the negotiation leading up to the

remedial order in February of ‘95, it’s your view that

there simply were not enough units, for the reasons that

you ve stated, in nonimpacted areas to satisfy the thirty-

tive hundred allocation?

A. Well, there’s a there’s a bit more that we're

talking about with these units. There were some percent-

ages that we agreed upon that had to be represented

when we were talking about where the units would go in

North Dallas. And I’ve forgotten that figure. I think it

was it has to be thirty-five percent or less African-

American and Hispanic population. It had to be thirteen

percent or less poverty. And so that relegated to where

we would go, even though we had some nonimpacted

areas that might be sixty percent. But in the agreement

that we reached, they did not qualify areas where the

tour hundred and seventy-four units would [p. 51] go.

Q. Where did the numbers — with respect to pov-

erty, crime rates, and percentage of Atrican-American

population, where did those numbers come from?

A. Census data.

Q. But where did the numbers that you agreed

Upon come from in the sense of what was the basis for

choosing

MR. WERNER: Why. thirteen percent or why

Sixty-five percent?

Supp. App. 16

A. Oh, I can’t -I can’t remember. I know. I just can’t

remember at this time. I know - I would have to refresh. |

just don’t remember.

Q. (By Mr. Melsheimer) Were those numbers that

you proposed on behalf of DHA?

A. No.

Q. Were they numbers that the Plaintiff proposed?

A. Yes.

Q. Including all the requirements in the agreement

with respect to poverty rates and percentage of African-

Americans and crime rates, limiting it to those areas, it’s

your view that [p. 52] there simply weren't enough Sec-

tion 8 units available for the reasons that you've stated?

A. For the reasons that I stated, and second of all, |

thought that to get the Plaintiffs and the Plaintiffs’ attor-

neys from thirty-five hundred units down to there, I — |

really thought that they had given an awful lot. That’s

just my personal opinion; I thought they had given an

awful lot. And I think to keep asking and asking and

prolong the negotiation would have been frivolous

because we might have been back up to thirty-five hun-

dred units.

Q. I’msorry. I think I missed you there. To get them

down from thirty-five hundred units, down from what?

A. From thirty-five hundred units to basically four

hundred and seventy-four units of conventional housing

and the rest in certificates and vouchers - I’m sorry, with

two hundred units being permitted to be in Lakewest. |

think it’s two hundred units.

Se nen, ee eee

Supp. App. 17

Q. So in your view, the Plaintiffs had given in so

significantly on the thirty-five hundred number down to

four hundred and seventy-four new construction units,

that it simply wasn’t - you [p. 53] weren't going to get

anything more out of this. Is that what you're saying?

A. I think they had given more than | expected to

get out of them when we started negotiating.

Q. In this negotiation process, when you finally

arrived at that four hundred and seventy-four number,

did you make any assessment at that time whether four

hundred and seventy-four units — let’s put aside whether

or not the Plaintiffs would agree to it, but whether or not

four hundred and seventy-four units could have been

accommodated through the Section - use of Section 8 in

North Dallas?

A. That was a decision the Court had to make. We

did the negotiation. We presented it to him, and it was

clear from my perspective that we were not going to

leave that negotiation without having some conventional

units, period. I think the Plaintiffs and the Plaintiffs’

attorney made that very clear, we had to have some

conventional units.

Q. And I’m not trying to ask a hypothetical ques-

tion. I am just trying to ask, did you do any analysis or

study or determination at that time [p. 54] with respect to

whether or not four hundred and seventy-four units

could be accommodated through the use of Section 8?

A. But it is a hypothetical question. We started out

the negotiation talking about thirty-five hundred conven-

tional units. We knew in the beginning of that negotiation

Supp. App. 18

that we were going to have some conventional units. We

didn’t know whether they were going to be four hundred

and seventy-four, whether they were going to be five

hundred, or whether they were to be a thousand. We

knew we were going to have them. So to say that we did

an analysis of whether this could have been converted to

something else is absolutely of no value. We knew we

were going to have conventional units.

(. And because you knew that, you didn't do any

such determination or study about Section &. Is that a fair

statement?

A. No, because we had Section 8 involved in that.

©. {understand that, but with respect to whether or

not the final four seventy-four could have been accommo-

dated through the use of Section 8, you didn’t do any

determination as to [p. 55] whether or not that would

that could be used as Section 8 in North Dallas because

you didn’t think it made any sense to do it?

A. Didn’t make any sense to do it.

©. And you didn't do it?

A. No. It didn’t make any sense. I think I made it

clear to you that we started off with thirty-five hundred

conventional units. We knew from the very beginning

that the Court had said for us to get together and try to

come up with an agreement that would be acceptable to

the Court. It took us a year and a half to get there. And

my position is, is that to get the Plaintiffs to agree to

come down from where they were to where we were Was

absolutely surprising to me. Okay?

ea eS ON cnet

Supp. App. 19

©. Where did the thirty-five hundred number come

from?

A. I can’t remember. I still can’t remember.

Q. Did that come from the Court?

I still can’t remember.

©. Did you ever give any consideration of going to

the Court and ~ strike that.

Did DHA ever make a proposal to the Plaintiffs — in

the year and a half of [p. 56] negotiations leading up to

the ‘95 remedial order, did DHA ever make a proposal to

the Plaintiffs or counterproposal that included no new

construction?

A. No.

Q. Why not?

A. Because from my perspective, knowing what |

know about the market, there was no way in the world

we were going to find thirty-five hundred units in Section

8 certificates and vouchers. They're not there, not in the

not according to the guidelines that we set up, they're not

in North Dallas.

Q. Or in any other nonimpacted area with the crime

and minority population and poverty rate percentages as

required?

A. I can’t speak for the counties because — again,

youre asking me to speak for the counties. I can’t — I

can't speak for them because we don’t have the right to

vO there.

Supp App 20

©. Anywhere else in Dallas?

A. No. | mean, are you yeah. There are other

places Yeah. We could have we could have found

thirtv-five hundred certificates and vouchers in Dallas,

but the bulk of them would have been in impacted areas

Ip. 57] O Did DHA ever make a proposal to the

Plaintitts that did not contain a racial Component as to

where the new units had to be located?

A. Im sorry. You got me on that one

OQ. Well, it’s hard to ask questions. Joe it's easy tor

foe because he’s been in this seven years | should

MR WERNER: Do you want me to ask them tor

you?

MR. MELSHEIMER: Well, actually | should, but

it’s going to be so embarrassing when it comes out in the

record. Give me one more shot at it, then I'll see

©. (By Mr. Melsheimer) Did you ever propose to the

Plaintiffs or to the Court a settlement solution in the

Walker case that did not involve a race conscious site

selection method: i.e., choosing the site where the hous-

ing would be built based on the population?

MR. WERNER: Without regard to the racial

makeup of the neighborhood where the new project

would go.

(HE WITNESS: I’m still not sure what he’s ask-

ing.

[p. 58] MR. WERNER: Do you want me to ask

it?

Supp. App. 21

MR. MELSHEIMER: Yeah. Try it.

MRK. WERNER: He wants to know, did you ever

ive any consideration to putting new public housing

construction in neighborhoods without regard to the

racial makeup of the neighborhood where vou put it?

A. No

QO (By Mr. Melshe:imer) Why not?

A. Because we had an agreement, that became the

remedial order, that said we would look at areas that

were thirteen percent less poverty, thirty-five percent less

Atrican-American or Hispanic. And we knew where

those areas were. That’s the only guideline. It wasn’t

based on race. It was based on — on poverty and where

there wasn’t a concentration of African Americans and

Hispanics

©. Well, but that’s a racial component, correct?

A. I don’t think that’s racial. | mean, I think that’s

you can say it’s racial. | think racial is building all of

those developments in Ip. 59] South Dallas. That was a

conscious decision on the City part part of the City

©. Well, we can say that’s racial, too, can’t we?

A. No, that is. That is

MR. WERNER: May I?

MK. MELSHEIMER: Well, let me — I don’t want

to have you I don’t want you to bill my clients.

MR. WERNER: Oh, II] promise you | won't bill

them, depending on how the case turns out. | won’t bill

them for this question specifically.

Supp App 2?

MRO MELSHEIMER: 1 appreciate that, Joe

MR. WERNER: Ul give vou an offset.

©. (By Mr. Melshemmer) The site selection. process

that DHA undertook tor these new public housings has a

racial Component in terms of the neyhborhood ?

\ Tm not sure what you're asking

QO Well, you chose sites, looked tor sites in areas

that were predominantly white

\ [hat’s true. But Atrican-Americans — [p. 60] Atri-

an-Americans, Asians lve in those areas, unlike South

Dallas. where you won't tind them

() And I vuess — I’m not trying to argue with you

tbout the

\ No, Im not arguing. But ['m saying to you that

() the percentages I'm just saying that vou

understood that DHA, in connection with the negotia

tions leading up to this remedial order, agreed to look tor

sites using a bunch of different criteria

\ [hat’s correct

() but that one of the criteria was that they would

look tor sites tor new construction In areds that were

predominantly white?

\ Yes Correct

: 1s a policy matter, based on your experience In

public housing, do you behheve that Section & 1s an overall

e effective use of public housing dollars than con-

truction of public housing?

)

Supp App pA

MR. WERNER lhe question ts, 1s it more effec-

tive

MR. MELSHEIMER: Yeah

\ Yeah. That's a verv difficult question

Supp. App. 24

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEBRA WALKER, ET AL. *

+ 3:85-CV-1210-R

US. DEPARTMENT OF ce getty:

HOUSING AND URBAN eer en

DEVELOPMENT, FT AL. *

¥e

and

U.S. DEPARTMENT OF *

JUSTICE. *

PLAINTIFFS’ MOTION TO MODIFY THE

MODIFIED REMEDIAL ORDER AFFECTING HUD

Plaintiffs move the Court to modify the Modified

Remedial Order Affecting HUD as set out below. The

modifications are those made necessary by the 5th Cir-

cuit’s recent opinion in Walker v. City of Mesquite, 169 F.3d

973 (5th Cir. 1999). The justification for each modification

is set out below the modification and in the memoran-

dum filed in support of this motion.

Proposed modifications to Modified Remedial

Order Affecting HUD

Vestige A. same.

A.1l. same.

A.2. replace with the following:

A.2.1. HUD shall use its discretion to accomplish the

remedial goal of creating 3,130 units of family public

Supp. App. 25

housing in sites that sites, units, projects, and neighbor-

hoods which must provide housing Opportunities and

neighborhood conditions substantially equivalent to the

sites, units, projects, and neighborhoods in and around

the HUD assisted projects located in predominantly white

areas in the Dallas Metropolitan area. These are the pro-

jects listed on the attached “HUD subsidized — non-public

housing — Dallas and Collin Counties” list that are identi-

tied as located in “borderline” or “nonimpacted” loca-

tions. The units may not be located in census tract block

groups where the poverty rate exceeds the average “ of

poverty for Dallas County under the most recent U.S.

Census.

For purposes of this decree, “public housing”

includes traditional low rent public housing, Section 8

project based housing assistance, or other forms of hous-

ing assistance which are unit based rather than tenant

based and which provide housing an terms substantially

equivalent to the terms on which traditional low rent

public housing is available. “Public Housing” does not

include tenant based Section 8 certificates or vouchers.

“Predominantly white areas” has the meaning set out in

{ A.6.2. of this order. “Area” means the geographic area

within a quarter mile radius of the center point of the the

[sic] proposed location of the project.

The number of units needed for a desegregated bal-

ance of opportunities was not reversed or affected by the

Sth Circuit opinion.

The race conscious “predominantly white” provision

is removed. The requirement that the conditions and

Supp. App. 26

neighborhoods for the new public housing units be sub-

stantially equivalent to the conditions and neighborhoods

of the HUD assisted projects located in predominantly

white areas was also in the original order and was not

reversed or affected by the 5th Circuit opinion. The pre-

sent unequal neighborhood conditions between DHA‘s

predominantly black projects and the predominantly

white HUD assisted projects are one of the existing

effects of the de jure segregation and must be addressed

by the remedial order. The only race conscious element is

in the identification of the neighborhoods where the HUD

assisted projects which will be used as a standard for the

site selection are located. This race consciousness is no

more than that required when remedyviny any racial dis-

yy }

crimination. Race must be taken into account even when

coming up with a race-neutral remedy. The poverty crite-

rion was not reversed by the 5th Circuit.

A.2.2. No site will be approved by HUD for any form

of unit or project based DHA public housing without

prior court approval under the standards set out in this

order

This provision ensures that any new sites for DHA

project based assistance meet the remedial deseyreyation

standards

A.2.3. The sites for all additional public housing

units, including those funded under the HUD HOPE VI

program, and all additional units receiving any form of

unit or project based assistance, including project based

Section & assistance, shall comply with the same. site

selection standards as those contained in 24 CFR

§ 941.202

Supp. App. 27

[he HUD site selection criterja were not challenged

by the homeowners and were not overturned by the 5th

Circuit. It is necessary to include the HUD criteria into

the remedial order to prevent a conflict between the court

order and the HUD criteria. Such a conflict could result

from HUD refusing to approve a site that otherwise met

remedial criteria but which did not meet the HUD site

selection ¢ riteria

A.2.4. HUD shall implement these site and neighbor-

hood standards and all of jts housing development activ-

ities In a manner that will ensure the desegregated

construction or acquisition of any new public or other

forms of publicly assisted housing owned, Operated,

financed, or in any Way assisted by DHA

This language ine Orporates the 5th Circuit ruling that

race-neutral criteria “will ensure the desegregated con-

struction or acquisition of any new public housing.”

A.2.5. Without prior court approval, HUD shall not

approve any plan for DHA’s sale, lease, encumbrance, or

other transfer of any Ownership interest in any property

currently owned or leased by DHA or by any DHA

affiliate or related Corporation or other entity. This does

not apply to the leasing of public housing or other low-

income housing units to qualified tenants or to the sale of

the lurnkey III units to qualified households. The stan-

dard for court approval is whether the Proposed transac-

ton Is consistent with HUD’s and DHA’s constitutional

duties to eradicate the effect of past segregation to the

extent practical and to Prevent future disc rimination

related to the Past segregation.

Supp. App 24

[his term is made necessary by the 5th Circuit’s

elimination of the race conscious site selection criteria

DHA owns several inner City located properties which

because of demographic changes are in neighborhoods

that are either becoming whiter or have the potential to

become whiter. DHA also owns a few units that are in

white areas. The race-neutral site selection criteria could

result in the demolition and disposition of these sites and

their replacement in minority areas which would further

rather than eliminate the effects of past segregation. The

provision ensures that any sale or other disposition of

DHA property does not perpetuate racial segregation.

A.2.6. Without prior court approval. HUD shall not

approve any plan for the demolition or removal from the

inventory of subsidized public housing inventory of any

DHA public housing unit. The standard for court

approval is whether the proposed transaction Is CONnsis-

tent with HUD’s and DHA’s constitutional duties to erad-

icate the effect of past segregation to the extent practical

and to prevent future discrimination related to the past

seyreyation

This term is justified by the same reasoning as A.2.5

above

A.2.7. With the exception of the 50 units of low rent

public housing already used in the reconfiguration of the

West Dallas project, HUD shall not approve the use in

West Dallas of any of the 674 units of new public housing

fundiny already allocated to DHA.

The use of race-neutral site selection criteria clearly

leaves minority areas open for public housing develop-

ment. The use of additional units in West Dallas would

—

Supp. App. 29

make any balance of Opportunities even more difficult

Under the previous decree, the use of race conscious

criteria for most of the new units limited the impact of

locating some of the units in the high poverty, minority

concentrated West Dallas project.

A.2.8. HUD shall use its best efforts to ensure the

complete development and full initial oc« upancy of the

049 remaining units of the 674 units of new public hous-

ing funding already allocated to DHA within two years of

the date of this order. HUD shall use its best efforts to

complete the development and achieve full oc upancy of

the total 3,130 units within 7 Years of the date of this

order. If these deadlines are not met, plaintiffs may apply

to the Court for additional relief

Fundiny for 335 of the existing allocation of new

units Was awarded in 1990 and 199]. The remaining units

vere allocated in 1994 under the West Dallas HOPE VI

program. The delay of over a decade is too long. DHA 1s

already in noncompliance with the time limits in. the

original order. These deadlines are necessary to secure

the development of the units.

A.2.9. All units of public housing developed,

acquired, or otherwise assisted by DHA shall be leased to

tenants according to tenant selection and assignment pro-

cedures approved by the court. The tenant selection and

assignment procedures shall afford African-American

residents of and applicants for DHA’s family public hous-

ing units the first and highest priority in occupancy for

all newly developed units meeting the site and neighbor-

hood standards in this order.

Supp. App. 30

This provision ensures that the class members suffer-

ing from the existing effects of racial segregation are the

ones first in line for any new desegregative housing

opportunities developed under the race-neutral criteria.

A.2.10. HUD is permanently enjoined from approv-

ing sites for the location of housing units assisted

through any form of DHA assistance for the purpose or

which would have the effect of creating, maintaining, or

perpetuating racial segregation in the housing receiving

its assistance.

This provision simply states HUD’s legal obligation

to avoid future sites which would continue the previous

violation of de jure racial segregation HUD’s obligation is

to ensure desegregation even if race-neutral criteria are

being used.

A.2.11. HUD shall use its discretion to accomplish the

remedial goal of this section as soon as possible consis-

tent with the statutory mandates governing the allocation

of HUD assistance. HUD shall also exercise its discretion

under its various housing programs to create and develop

housing alternatives in areas and neighborhoods in

Dallas County, Texas and adjoining areas which will give

African-American applicants for and participants in

DHA‘s low income housing programs access to desegre-

gated housing opportunities.

This the same as A.2 in the Modified Remedial Order

Affecting HUD.

A.3. through A.5. the same.

A.6. renumber to A.6.1.

Supp. App. 31

Add A.6.2. A predominantly white area, as this term

is used in this order, is determined by first computing the

racial composition of the geographic area within a one-

quarter mile radius of the center point of the proposed

location of the unit. If the population, using the block

level data for the most current U.S. Census, is less than

37% total non-Hispanic African-American, Hispanic, or

other minority persons, then it may be a predominantly

white area. The area is not a predominantly white area if

it is located on or near a dividing line, such as a highway,

major thoroughfare, or railroad tracks, between a pre-

dominantly white area and a racially concentrated minor-

ity area. The area is not a predominantly white area if it is

located in an isolated, non-residential area.

A.6.3. If a plan under this section is not approved

and successfully implemented within 5 years from entry

of this order, plaintiffs may apply for additional relief.

This will give HUD until 2004 to submit and imple-

ment a court approved Section 8 substitution plan. This

plan is still race conscious because the 5th Circuit opinion

cited to it as evidence that a race conscious public hous-

ing remedy was not needed. Since the 5th Circuit held the

Section 8 substitution plan to be an acceptable alternative

to race conscious site selection, then if it does not pro-

duce desegregated housing opportunities within a rea-

sonable time, race conscious site selection should be

reinstituted under the 5th circuit rationale of giving Sec-

tion 8 a chance to produce desegregative results before

adopting race conscious site selection criteria.

Supp App 32

[he 37% mainornty yuideline is justified given the

record in this case showing the use of Hispanic and other

minority areas to keep public housing out of white areas

A.7. eliminate

fhe actrons identified in this section are no longer

available yiven the Sth Circuit's ruling on the use of the

race conscious site selection criteria. The Sth Circuit has

also required additional actions betore the race Conscious

site selection can be considered

A.& same, renumbered to A.7

AY. same, renumbered to A.%

Vestiye Bo same

B] through BY same

Vestiaye ( same

C1). through C.3. same

(4. HUD shall prepare and submit for Court

approval a plan for vigorous DHA mobility program with

more mobility Counselors and increased funding by HUD

that serves the relocation needs and concerns of black

tamilies, reaches out to white landlords, affords adequate

fair market rent exceptions, and combats illeyal private

discrimination.’ The plan Shall include

ad consideration of the use of public ly assisted mul

titamily housing such as low income housing tax credit

recipients OF other federal, state and local yovernment

! f.andlords other than white landlords may used to obtain

housing in predominantly white areas

Supp App 3%

assisted low and moderate income hou Inv proyrams that

Offer units in areas which will further the accomplish

ment of the goals in | ©.2 of the Modified kee medial

Order Aftecting DHA

b. reasonable modifications of the contract lease

and other forms used in the Section & proyram to encour

aye the partiapation of landlords wath units in area

Which wall turther the accomplishment of the goals in

;

Y © .2 of the Modified Kemedial Order Atte: tiny DHA

reasonable modifications of the procedures used

in the Section & program to en ouraye the participation of

landlords with units in areas which will further the

accomplishment of the goals in 7 € 2 of the Modified

Kemedial Order Affecting DHA

dl reyular COmMMuUNnIcCation between Eff 1), DHA and

the other vovernmental and private entithes entorcimy farr

housing laws on the identification of and climination of

Weval discrimination adversely afte: ting, DHIA’s ability to

accomplish the goals in J ©.2 of the Modified Kemedial

Order Affecting DHA

resources to eliminate other barniers to the accomplish

ment of the yoals in J ©.2. of the Modified Remedial

Order Affecting DHA such as the lack of child Care,

transportation, and high security deposit

f neyotiations or Consultations with landlords and

larpdlord associations on issues such as income and

employment requirements for tenants that limit section &

participants’ access to rental units. The nevotrations or

Supp App 54

Cconmsultation hould tocus om Ways to serve any leyrath

Miate concerns of landlords While eliminating or reduciny

the barriers to Section 4 participants access to rental

tinvit

vy oinereased tundinyg for both more vouchers and

the mobility program, more mobility counselors, and

biigthvers fair market exception rent

hh the yoal of achue viny and Mamtaininy 69°. of

DOHLA total Section & certificate and voucher allocation in

predomunantly white area: oft Dallas, the uburb and

adporniny area

Md HHL 10's estimate of the costs of implementing

DIHA’s Section & plan under C6. of the Moditred Reme

dial Order Attecting DHA, HUD's estimate of the costs of

the Hit DD prope als tor Section & under this order, the

costs that can be parc for out of existing ftundiny tor the

Section & program or other DHA tunds, and identification

of possible sources, including HUD tunds, of funding tor

any costs which cannot be paid trom existing sources and

thre herpes necessary to obtain tundiny trom those source:

I hie plan thall be submitted within 60 days of the

date DHA’s plan is submitted to the Court. HIUD shall

implement the plan as approved or modified by the

C «curt

lhis provision retlects the Sth Circuit rulings that a

Section & plan that is an alternative to a race conscious

rublic housing site selection remedy must be ViIvorous

} b,

Predominantly white’ as defined in A 62. of this Order

Supp App 35

C5. HUD shall determine Whether or not fair market

rent exceptions above 120%, are foreclosed as a matter of

law. If fair market rent exceptions above 120% are not

foreclosed as a matter of law, HUD shall take all actions

within its authority to implement the fair market rent

exceptions above 120%. If fair market rent exception:

above 120% are fore losed as a matter of law then HUD

hall take all actions within its authority to fully imple

ment 120% fair market exception rents. HUD’s dete;

mination and actions may be rey lewed by the Court on its

OWN Initiative or by motion of a party. HUD ’s determina

tion and plans to implement the exception rents shall be

made and provided to the Court and parties within 60

lays of the date of this order. The plan shall be imple

mented in the form approved by the Court HUD ’s

actions to implement these exception rents shall be

Included in its reports to the Court and the parties

[his provision reflects one of the 5th circuit's pre

conditions for use of a race cons tous public housing site

ele tion remedy

€ 6. HUD shall prepare and submit a plan to the

Court tor the Vigorous entorcement of federal laws pro

hibitiny racial disc rimination by private landlords who

refuse to Participate in DHA’s Section 8 program. The

plan shall be submitted to the Court within 60 days of the

date of this order and shall be implemented by HUD as

ipproved by the Court

This Provision reflects one of the Sth Circuit’s pre

maditions for use of a race conscious public housing site

ele tion remedy

Supp. App. 36

C.7) HUD shall prepare and submit a plan to the

Court tor increased tunding for more Section 5 cert

cates and vouchers. The plan shall be submitted to the

Court within 60 days of the date of this order and shall be

implemented by HUD as approy ed by the Court

This provision retlects one of the Sth Circuit's: pre

conditions for use of a race conscious public housiny, site

selection remedy

Vestiage 1). same

Lb. same

1.2. same

b. feliminate|

Phe Sth Circuit ruling has added actions which must

be taken and which are not included in this section

Pl. through boo same, renumbered to Bol. through

Ct same, renumbered to Fb.

Co? same. renumbered to F.2

(, 3. eliminate

Ihe Sth Circuit ruling requires additional actions

other than those in the Moditied Remedial Order Attect

ing HUD. The ten vear time frame on this section is no

longer appropriate given the Sth Circuit's requirement

that Section 8 and race-neutral site selection methods be

implemented betore a race conscious site selection rem

edy can be implemented,

(.4. same, renumbered to F.3.

—

Supp. App. 37

G.5. through G.7. eliminate

These provisions were based on the use of a remedy

Which included race conscious site selection and did not

include many of the Section & program retorms ordered

by the Sth Circuit. These provisions no longer tit: the

remedial obligations ordered by the 5th ( ircuit

H. eliminate

[his provision is not consistent with the sweeping

oth Circuit ordered retorms to the Sex ton dS program and

the other “helping hands” programs such as increased

tur housing entorcement. While no funds « an be spent in

Violation of the Congressional appropriations bills and

statutory authorizations, there may be other funds within

the discretionary control of HUD that could be used to

comply with the mandates of the Sth Circuit

Ll. eliminate.

1.2. eliminate

These Provisions were based on the agreement of

plaintitts and HUD to a remedial order that included the

Use of race conscious public housing site selection and

that did not include the Sth ¢ ircuit mandated Section &

reforms. The remedy revisions made necessary by the Sth

Circuit ruling make these Provisions Inappropriate and

inequitable to apply

Respecttully Submitted.

MICHAEL M. DANIEL. Pc.

3301 Elm Street

Dallas, Texas 75226-1637

214-939-9230)

Supp App 38

Ly s/ Michael M. Daniel

Michael M. Dantel

State Bar No. 05360500

baura BO Beshara

State Bar No. 02261750

Attornevs tor Vlarntitts

Certificate of conference

| certity that a written conference on the subject of

this motion was held by sending a dratt of the proposed

relief to counsel tor the detendants in this case. No agree

ment could be reached

Iyy / Michael M. Daniel

Michael M. Daniel

laura BO Beshara

Certificate of Service

} certify that a true and correct copy of the above

document was served upon counsel tor all detendants by

beiny, placed in the US. marl, first « lass postage prepaid,

and on counsel tor EIUD by Fed Ex delivery on luly 3,

LOGY

Michael M. Daniel |

Michael M. Dantel

Supp App 39

IN THE UNITED STATES DISTRICT COURT

POR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEBRA WALKER, ET AL. § -85-CV-1210-R

VS - CLASS ACTION

US. DEPARTMENT OF 5

HOUSING AND URBAN. x5

DEVELOPMENT. US §

DEPARTMENT OF §

JUSTICE, ET Al §

REMEDIAL ORDER AFFECTING HUD

(Filed April 16, 1996)

In its findings of tact and conclusions of law,! this

Court found the U.S. Department of Housing and Urban

Development (“HUD”) liable tor its role (and the role of

its tederal predecessor agencies) in perpetuating and

maintaining racial segregation in DHA’s low-income

housing programs. In response, HUD has proposed var-

tous remedial actions and it has provided or allocated

significant resources tor a tinal remedial order. This has

been done by HUD Secretary Henry G Cisneros, though

several different versions of “the Cisneros Plan” which

were submitted to this court for approval. For example,

the best Cisneros Plan “devised to tulfill two policy

See Order Regarding Facts Established By Class Plaintifts’

Motion Por Partial Summary Judgment Against DHA and HUD

(filed May 26, 1994) and Order Granting Motion For Partial

Summary Judgment Against DHA and HUD On The Issue Of

liability To The Class For Injunctive Relhet (filed May 27, 1994)

Supp. App. 40

objectives to which [Secretary Cisneros] is strongly com-

mitted: (i) improving, the quality of living conditions for

residents of the Lakewest Developments [the West Dallas

Housing Project|; and (1) promoting desegregation in

DHA programs” offered, among other things, some

$65.7 million and $1.5 million in HUD tunding for these

two critical needs

In response to the plaintiffs’ objections, HUD made

substantial changes to the Cisneros Plan, but the plaintiffs

and DHA still have some objections to that revised plan.

Addressing those objections, this final Remedial Order

approves the Cisneros Plan, but with certain modifications

necessary to eliminate the vestiges of rac ial segregation in

DHA’s low income housing, programs.-

Vestiage A: 2,876 (92%) of the 3,116 black

households in DHA‘s non-elderly public hous-

ing, projects units* reside in predominantly black

or minority concentrated projects in predomi-

nantly black or minority concentrated areas

where the poverty rate exceeds 40% | plaintiffs’

9/27/94 exhibit #79]. 6,133 of the 6,411 units in

DHA‘s non-elderly public housing projects are

in these predominantly black or minority con-

centrated areas where the poverty rate exceeds

40% [plaintiffs’ 9/27/94 exhibit #79].

‘ HUD’s 9/27/94 exhibit #1 - Secretary Cisneros’ Plan bor

the Revitalization Of The Lakewest Public Housing

Developments And For Housing Assistance For The Dallas

Metropolitan Area

' These figures exclude the approximately 46 single famuly

homes for which DHA does not separately report racial

occupancy data [plaintifts’ 9/27/94 exhibit #68 — excerpt from

DHA monthly report]

Supp. App 4]

HUD ts ordered to take the following actions to elim

inate this vestiage of racial segregation

A.l. HUD shall provide one-for-one replacement

units, as defined by law, for each of the 2.630 units

demolished in DHA‘’s West Dallas project before the

demolition of that unit. The 100 public housing units and

1,335 Section & certificates and vouchers previously pro

vided by HUD are one-tor-one replacen nt units. The 3349

public housing units allocated to DHA since 1990 are one

for-one replacement units. The 335 public housing units

allocated under the HUD Urban Revitalization Demon

stration Grant are one-tor-one replacement units” An

additional 698 Section & vouchers will be provided by

HiUD),4 and these will be one-tor-one replacement units to

the extent that HUD and DHA are proceeding with

demolition under the previously approved demolition

plan and if the number of units in the one, two, three.

tour, and tive bedroom unit categories being replaced are

matched in the allocations of replacement units. If a new

demolition plan is approved, then the 42 U.S.C. 14 7p

prohibition against the use of vouchers as replacement

units wall apply

A.2. HUD shall use its discretion, within the frame

work of 42 U.S.C. 1439(d), to accomplish the remedial

yoal of creating a comparable number of units’ in pre

dominantly white areas as soon as possible consistent

with the statutory mandates governing the allocation of

hAS provided in a plan to be submitted to this Court by

HitU pp

See Remedial Order Attecting DHA, 9 A.3 (heb. 7, 1995)

Supp App 4?

HUD assistance. In determining, the tormula needed pur

suant to 42 USC. 1439(d), HUD shall include as an

objective, measurable ¢ ondition affecting the allocation of

units, the number of units needed to eliminate the ves

tises of racial segregation for purposes of the determina

tons made pursuant to 24 ¢ PR 791 402(b). This obligation

also apples to reallocations of funding. Phe desepreya

tion factor does not substitute for the other indieators of

need in the tormula but is en addition to those indicators

HUD shall also exercise its discretion under its various

housing, programs to create and develop housing, alterna

tives and a areas and neighborhoods in Dallas County,

fexas and adjommny areas which will yive the Afriean

American appheants tor and participants in DELA’s low

income housing, programs access to deseyreyated housing,

Opportunities

A} HID shall request that the City of Plano and

each suburb in Dallas County, except for Csrand Prairie

and Wilmer, enter into a cooperation ayreement with

DEA to allow the development of a reasonable number of

public hous, units in ede h suburb

A4 HUD shall request the assistance of Dallas

County, Texas, as part ot the County's « omphiance with its

obligation to attirmatively turther far housing in its

housing and community development related activities,

In SeCUrINg, Cooperation ayreements between DELTA and

the area suburbs

PANY Cooperation ay reements se ured with Dallas

County's assistance should be credited by HUD to Datlas

County's obligation to attiomatively further tart brevtasanny

Supp. App. 43

A.5S. It any suburb or Dallas County refuses to enter

Into Cooperation ayreements with DHA, HUD shall init:

date an investiyation to determine whether or not) the

refusal violates civil rights laws, HUD regulations, of

other legal requirements

A.6. Given the applicants’ and residents’ stated pret

erence for Section S&S units, HUD is urged to devise and

submut tor court approval a plan which would use Se

tron dS certificates and vouchers to substitute for at least

part of the future allocations of new public housing in

predominantly white areas. In order to be approved by

the Court, HUD ’s plan must

a ensure that the Section & units are from

an allocation over and above DHA‘’s past alloca

tions and over and above DHA’s future fair

share allocation and are not provided as a sub

stitute for any units which would be provided to

DHA under the normal allocation process. The

housing assistance must be over and above what

DHA or the City would otherwise receive from

HUD, and can have no effect on the amounts of

future assistance HUD may provide or award to

DHA or the City, and

b. ensure that the certificates and vouchers

tor which an offset ayainst the new public hous

ny, development is claimed are and will be in

use in predominantly white areas for the fore

seeable future

A.7 HOD shall pertorm the tollowing functions with

reyerd to the other HUD Assisted Housing in Dallas

County and Plano

Supp. App. 44

Modification of Affirmative Fair Housing Market-

ing Plans

HUD shall direct the owners, operators, or

managers of assisted housing developments in

Dallas County, Texas and Plano which are

located in census tracts with a non-Hispanic

white population equal to or greater than 60%

according to the most recent U.S. Census to

adopt or amend their existing Affirmative Fair

Housing Marketing Plan or Equal Housing

Opportunity Plan within 90 days of the date of

this Decree to include the following procedures:

(i) Each assisted housing development

will include DHA and the City of Dallas

Fair Housing Office as community sources

to be contacted for applicant referrals, and

specifically will recruit as applicants those

African-Americans referred to it by HUD,

DHA, or the City of Dallas Fair Housing

Office.

(ii) The owner, operator, or manager

will record, for each African-American

applicant, the dates each person applied,

the action(s) taken on each such application

and date of each action, the dates of each

offer of housing assistance made, whether

the offer(s) are accepted, the date of any

rejected or withdrawn applications, and the

specific reasons given by the applicant for

any rejection of an offer or withdrawal of an

application. On request and at least annu-

ally, the owner, operator, or manager will

provide a status report that shows its cur-

rent vacancies, its waiting list, each African-

American applicant’s place on this list, a

listing of each unit by bedroom size that

Supp. App. 45

was vacated and/or newly occupied since

the initial directive from HUD or previous

report, all applicants to whom offers were

not extended and the reasons therefor, and a

designation of offers and acceptances as to

each such unit by applicant name, as well as

making available the record itemized above.

(iii) Subject to federal preference per-

centage occupancy requirements, the devel-

opments will give African-American

applicants referred by HUD, DHA, or the

City of Dallas a preference, equal to, but no

greater than, the federal selection prefer-

ences that are accorded in the recipient-

selection process to other applicants who, at

the time they are seeking housing assis-

tance, fall in the categories listed in 24

C.F.R. § 960.211(a)(1) or in other applicable

HUD federal preference regulations. All

developments subject to this requirement,

however, shall cease giving those persons

the priority and preference required here if

and when the African-American occupancy

equals of exceeds the greater of (a) the per-

centage of the African-American population

in need of subsidized housing in Dallas

County, Texas and Plano, or (b) 75 percent.

If the class member preference is no longer

required, each class member will continue

to receive the same statutory or regulatory

federal preference to which the class mem-

ber would otherwise be entitled.

(iv) The development will determine

every three months, the racial composition

characteristics of those receiving its assis-

tance and the racial composition of those on

Supp. App. 46

the waiting list for its assistance, and HUD

will determine annually, the racial identi-

fication of the area of neighborhood within

which those receiving its assistance are

located.

b. Notice.

HUD shall provide annualy [sic] to DHA

and the City of Dallas Fair Housing Office for

distribution to each African-American partici-

pant in the low income housing program oper-

ated by DHA and the City annually, a written

notice of all HUD-assisted low-income housing

developments in Dallas County, Texas and Plano

that would offer those persons a desegregative

housing opportunity because it is located in an

area that is at least 60% non-Hispanic white

according to the most recent census information

available. HUD shall provide to DHA and the

City of Dallas for inclusion in the annual notice:

(i) The full address, telephone

number, and name of the person responsible

for accepting applications for the develop-

ment, a short description of the type of

housing offered by the development, and

the general eligibility requirements for the

development.

(ii) The notice shall also include: (a) a

provision that informs the recipients that,

upon request, HUD shall refer, in writing,

the name of the person to specific develop-

ments; that the developments will be under

a duty to recruit that person to apply; and

specifically what this duty requires; and (b)

the telephone number of the HUD Fair

Supp. App. 47

Housing and Equal Opportunity (“FHEO”)

Office that is designated to perform the

functions set out in paragraph d. below, and

a brief description of the functions to be

performed by that Office.

c. Response to Complaints

HUD’s Southwest Fair Housing Enforce-

ment Center shall respond to complaints of dis-

crimination or of violations of HUD applicant-

selection procedures or of the various civil

rights statutes applicable to transactions con-

ducted under this Decree. It shall keep written

records of the complaints and of all actions

taken by HUD as a result of the complaints.

d. HUD Functions

HUD shall perform the following functions:

i) HUD shall maintain a written record of

all referrals to assisted housing developments

and the results of such referrals, and shall moni-

tor the performance of assisted housing pro-

viders in extending offers to persons so referred.

ii) HUD shall designate specific personnel

to respond to requests for information and

requests for assistance from African-Americans

on the waiting lists for or participating in DHA’s

low income housing programs desiring to obtain

a desegregative housing opportunity. The assis-

tance to be provided shall include referrals of

those interested to public housing develop-

ments, and to programs other than low income

public developments, that offer desegregative

Supp. App. 48

housing opportunities in Dallas County, Texas

and Plano.

A.8. HUD shall submit to the Court, within 90 days

of the date of this order, its assessment of the feasibility

of, advantages and disadvantages of, likely cost of, and

obstacles or barriers to the operation of a Clearinghouse

for the Dallas metropolitan area. By “Clearinghouse” is

meant the Clearinghouse concept as set out in attachment

B to plaintiffs’ 9/27/94 exhibit # 2. Depending on the

results of HUD’s assessment and the comments of the

other parties to the lawsuit, the Court may order the

operation of such a Clearinghouse.

Vestige B: The units, projects, and neighbor-

hoods available for the black occupants of and

applicants for DHA’s low rent public housing

projects are substantially inferior to the condi-

tions in which low income whites receive HUD

assistance [plaintiffs’ 9/27/94 exhibits ## 62 —

66, 68 — 80]. Walker v. HUD, 734 F.Supp. 1231,

(N.D. Tex. 1989).

HUD is ordered to take the following actions to elim-

inate this vestige of racial segregation:

B.1 HUD shall prepare and submit for court approval

a schedule for funding and achieving the unit and project

improvements necessary to make the unit and project

conditions at DHA’s projects substantially equal to the

unit and project conditions at the HUD assisted projects

located in predominantly white areas of Dallas. The fol-

lowing improvements shall be included in the schedule

as part of the improvements necessary for substantial

equality:

Supp. App. 49

a. Separate management staffs for each new

public housing development built or acquired

by DHA after February 7, 1995,” regardless of

whether those management staffs exceed HUD

unit-staff ratios.

b. Refrigerated air conditioning units in all

public housing units and utility allowances suf-

ficient to pay the entire actual cost of operation

of these air conditioning units.

c. A DHA public safety division staffed by a

DHA Assistant Director, whose sole respon-

sibility is the organization and supervision of

security patrols within each of DHA’s public

housing developments, and also staffed by off-

duty officers of the Dallas Police Department

under contract to DHA. Specifically, this DHA

security division should provide not fewer than

the following number of officers on duty at all

times for the designated DHA public housing

developments:

Lakewest Developments - no fewer than 10

officers.

Barbara Jordan Square - no fewer than 2 offi-

cers.

Frazier Courts — no fewer than 8 officers.

Rhoads Terrace -— no fewer than 4 officers.

Turner Court — no fewer than 4 officers.

Town Park Apartments - no fewer than 2

officers.

food

7 L.e., the date of this Court’s Remedial Order Affecting

HUD.

Supp. App. 50

Brackins Village — no fewer than 3 officers.

Cedar Springs Place — no fewer than 4 offi-

cers.

Little Mexico Village - no fewer than 2 offi-

cers.

Lakeland Manor - no fewer than 2 officers.

Park Manor -— no fewer than 2 officers.

Brooks Manor — no fewer than 2 officers.

Forest Green Manor — no fewer than 2 offi-

cers.

Audelia Manor - no fewer than 2 officers.

Cliff Manor - no fewer than 2 officers.

Simpson Place —- no fewer than 2 officers.

Oakland Apartments - no fewer than 2 offi-

cers.

All DHA scattered site housing units — no

fewer than 2 officers.

d. Youth gang intervention programs con-

ducted by qualified personnel at each DHA fam-

ily public housing development.

e. Laundry facilities equipped with automatic

clothes washers and dryers in all DHA low-rent

public housing developments.

f. Landscaping and automated landscape irri-

gation systems at each of DHA’s public housing

developments.

g. Supervised after-school study and tutoring

programs in each DHA family development for

Supp. App. 51

all children of school age living in those devel-

opments, with the necessary buildings, furni-

ture, equipment and supplies, including

personal computers suitable for student use.

h. “Headstart” programs in each DHA family

development for all preschool children, ages 3

years and older, living in those developments,

with the necessary buildings, furniture, equip-

ment and supplies.

i. At least two off-duty officers of the Dallas

Police Department to patrol the Lakewest Shop-

ping Center continuously between the hours of

8:00 a.m. and 10:00 p.m.

j. Video security surveillance systems, with

tape recording capacity, to provide security sur-

veillance of all points of ingress and egress if

each DHA public housing building for senior

and handicapped occupancy.

k. Resident-operated cooperative retail conve-

nience and grocery stores at Turner Court, Fraz-

ier Courts and Rhoads Terrace, with the

necessary facilities and management assistance.

l. Youth sports buildings, including facilities

for basketball, boxing, strength training and

similar athletic and recreational activities and

programs, at Little Mexico Village, Cedar

springs Place. Roseland Homes and Barbara Jor-

dan Square, with the necessary equipment and

staff to supervise youth athletic programs at

those facilities.

m. Ceiling rents at the minimum level permit-

ted by statute at all DHA public housing pro-

jects.

Supp. App. 52

The schedule shall be drafted to achieve the improve-

ments in the least possible time given the funding likely

to be available and list the sources of funding for each

improvement. Priority shall be given to achieving the

improvements in security necessary to achieve a safe

environment within each project. The projects with the

highest crime rate shall be given priority in the funding

for the prevention of crime.

B.2 The funding available for these improvements

includes the $15,000,000 in CIAP funding and DHA’s

formula Comprehensive Grant Program funding. Any

Comprehensive Grant Program funding which becomes

available for reallocation because an agency does not

qualify to receive all or a part of its formula allocation

pursuant to 42 U.S.C. 14371(k)(6) shall be made available

for these improvements in an amount equal to DHA’s

relative need as determined by 42 U.S.C. 14371(k)(2)(A).

Future funding for these improvements may also become

available under other programs created by Congress.

B.3 HUD has the authority to increase DHA’s oper-

ating subsidy beyond the performance funding system

formula amount when necessary because of circum-

stances beyond DHA’s control. 42 USC § 1437g; 24 CFR

990.109(d). The court order requiring DHA to remedy the

constitutional and statutory violations of racial segrega-

tion is just such a circumstance. HUD has itself admitted

the need for such increased funding by its continued

provisions of the operating subsidy for the vacant West

Dallas units. HUD shall take the remedial needs imposed

by this order into account when setting the operating

subsidy for DHA. If the subsidy provided, in combination

with other funding actually available to DHA, does not

Supp. App. 53

allow DHA to meet the obligations imposed under this

order within a reasonable time, DHA or the plaintiffs

may apply to the Court for relief.

B.4 HUD is ordered to catalog in writing all of

HUD’s grant programs and all of any other federal

agency’s grant programs which could be used to accom-

plish the improvements to the unit, project, and neighbor-

hood conditions of the DHA family projects necessary to

eliminate the vestiges of racial segregation. The catalog

shall be completed within 30 days of the date of this

order and shall be filed with the Court and served on the

parties. The catalog shall be updated as old programs are

abolished and new programs come into existence.

B.5 HUD is ordered to use its authority and leader-

ship under Executive Order 12892 to convene a task force

of representative of federal agencies with programs and

funding which could be used to accomplish the improve-

ments to the unit, project, and neighborhood conditions

listed in B.7. below. The obvious examples of such agen-

cies include EPA, Department of Education, Department

of Health and Human Services, and the Department of

Justice. HUD shall be responsible, using whatever assis-

tance the task force may provide, for providing the timely

identification of programs and funding to the local entity

or entities eligible for such programs and funding and

providing the technical assistance necessary to ensure

that timely and complete applications, if necessary, are

submitted and are given full and fair consideration by the

agency involved.

B.6 HUD is ordered to use its authority to enforce

the civil rights laws and the affirmatively further fair

Supp. App. 54

housing provisions in the Fair Housing Act and the Com-

munity Development Block Grant Act to require the City

of Dallas to affirmatively further fair housing by reducing

crime in and around and blighting neighborhood condi-

tions around DHA’s family projects and achieving sub-

stantial equality to the conditions found in and around

the predominantly white located HUD assisted projects in

the Dallas area. The conditions which must be addressed

include those listed in B.7. below.

B.7. In addition to high levels of crime, the other

conditions adversely affecting all or some of DHA’s fam-

ily projects include:

a. exposure to industrial uses and environmen-

tal hazards,

b. inappropriate industrial zoning,

c. unsatisfactory streets, curbs, drainage, side-

walks, lighting and other municipally provided

facilities,

d. lack of neighborhood commercial services

such as grocery stores, pharmacies, banks or

other financial institutions, and medical facili-

ties,

e. lack of decent, standard, affordable, single

family units in the neighborhoods around the

projects for the persons now residing in those

neighborhoods who wish to remain in those

areas,

f. high concentrations of poverty households

and households on public assistance, and

g. public schools challenged by high percent-

ages of students failing to pass minimum com-

petency tests.

Supp. App. 55

B.8. HUD shall submit a plan for achieving and

maintaining substantial equality of conditions in and

around DHA’s existing and future projects to the Court

for approval within 90 days of the date of this order.

B.9. In considering any applications by the City of

Dallas for HUD funds which could be used to eradicate

the vestiges racial segregation in DHA’s programs, HUD

shall include as an objective, measurable condition affect-

ing the allocation of assistance, the resources needed to

eliminate the vestiges of racial segregation in DHA’s low

income housing programs.

Vestige C. At least 2,850 [59.2%] of the

black households on DHA’s Section 8 certificate

and voucher program live in predominantly

black or racially concentrated and low income

areas. Only 21% of those households live in

predominantly white areas. 45.6% of white DHA

Section 8 households live in predominantly

white areas.

HUD is ordered to take the following actions to elim-

inate this vestige of racial secregation [sic]:

C.1. HUD shall provide DHA with $300,000 per

year for ten years for the provision of mobility services to

African-American applicants for DHA’s low income

housing programs.®

C.2. HUD shall take the need to eliminate Vestige C.

into account in the setting and approval of Section 8 Fair

Market Rent and Voucher Payment levels for Section 8

8 Housing mobility services shall be provided by DHA or,

with the consent of the Court, by one or more third-party

nonprofit organizations.

Supp. App. 56

certificate and voucher programs operating in Dallas

County and adjoining areas. If Fair Market Rent and

voucher payment levels are adversely affecting the pro-

motion of desegregation through the Section 8 program,

and an increase in those levels is otherwise consistent

with statutory requirements, HUD shall grant an excep-

tion to the Fair Market Rent level and approve an

increase in the Voucher Payment Standard level necessary

to obtain a desegregated housing opportunity in the

Dallas County area and Plano.

C.3. HUD shall, as it has agreed, provide at least

1,000 Section 8 vouchers to the City of Dallas to be used

by the City in complying with 43.5 of the City’s 1990

Consent Decree with the plaintiffs.

Vestige D. The neighborhood conditions

for a majority of the black Section 8 participants

are substantially inferior to the conditions in

which low income whites received HUD

assisted housing and to the conditions in which

whites paying rent comparable to the total rent

paid by and on behalf the Section 8 households

reside [plaintiffs’ 9/27/94 exhibits ## 70 - 73,

76, 78}.

HUD is ordered to take the following actions to elim-

inate this vestige of racial segregation:

D.1. The actions to eliminate Vestige C. above,

which will also aid in the elimination of this vestige.

D.2. HUD shall also take the need to eliminate this

vestige into account in its administration of the federal

programs for housing and community development

throughout Dallas County, Texas and the adjoining areas.

Supp. App. 57

E. Monitoring and reporting

E.1. HUD shall file quarterly reports detailing the

status of compliance with each provision of this order

and specifically reporting the results of that compliance.

E.2. The report for each quarter shall be filed with

the Court and copies served on the parties within thirty

days of the end of the quarter covered by the report.

E.3. The Court expects the parties to cooperate in the

provision of information necessary to monitor compliance with

this order. However, if agreement is not possible on any

matter, and if the Special Master is not able to resolve the

duspute [sic], then the discovery provisions of the Fed-

eral Rules of Civil Procedure shall be applicable.

F. Jurisdiction of the Court

F.1. The court retains jurisdiction to enforce and

modify this Remedial Order according to general equita-

ble principles.

F.2. Ten years after entry of this order, the Court

shall determine whether its jurisdiction over HUD shall

be continued or terminated. The Court shall extend its

jurisdiction over HUD if it determines that (i) HUD has

not fulfilled the specific obligations to be performed as

set forth in this order or, (ii) the DHA’s low income

housing programs have not been desegregated to the

extent practical. If the Court extends its jurisdiction solely

because of (i) above, its jurisdiction shall end upon fulfill-

ment of those specific obligations. If the Court extends its

jurisdiction because of (ii) above, such jurisdiction shall

end at such time as the Court determines that DHA’s low

Supp. App. 58

income housing programs have been desegregated to the

extent practical.

F.3. Should HUD choose to assert that unitary status

has been achieved before the expiration of the ten year

period, then HUD shall submit to the Court, with a copy

to all other parties, a detailed, factual account upon

which the assertion is based and all documents upon

which the assertions are based. The account shall include:

all steps taken to eradicate the vestiges of racial segrega-

tion, any publicly assisted housing desegregation pro-

cedures which were not used and the explanation for the

failure to use those procedures, the basis upon which

HUD relies for the assertion that no further action to

remove the vestiges of racial segregation is practical or

required, whether or not actions by an organization,

entity, or person other than HUD could further deseg-

regation, what such actions are and the steps taken by

HUD to secure the performance of such actions and the

results of those steps, and any other information relevant

to the determination of unitary status.

F.4. Unitary status means that the [sic] all reason-

able methods have been employed and all available

resources marshalled to eradicate the vestiges of racial

segregation in DHA’s and HUD’s public housing and

Section 8 housing programs, and that such vestiges have

been eradicated to the extent practical.

F.5. HUD’s acquiescence in the entry of this order

shall not be taken as a waiver of any of its arguments

based on principles of sovereign immunity.

F.6. The Secretary of HUD, the Assistant Secretary

of HUD for Public and Indian Housing, and the Assistant

Supp. App. 59

Secretary of HUD for Fair Housing and Equal Oppor-

tunity and their successors in office are personally

responsible for compliance with this order pursuant to 5

U.S.C. § 702.

F.7. HUD shall have the right to object to those

terms of the Remedial Order Affecting DHA (filed Febru-

ary 7, 1995) which impose obligations on HUD beyond

the obligations provided in this Remedial Order Affecting

HUD.

F.8. HUD’s performance of its obligations under

this Remedial Order will constitute full and complete

relief for the violations admitted by HUD and found by

the Court against HUD in this action.

ENTERED: APRIL 16, 1996

/s/ Jerry Buchmeyer

JERRY BUCHMEYER, CHIEF JUDGE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

Supp. App. 60

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DEBRA WALKER,

ET AL.

CIVIL ACTION NO.

3:85-C V-1210-R

_ * CLASS ACTION

U.S. DEPARTMENT OF *

HOUSING AND URBAN *

DEVELOPMENT, *

ET AL., *

and :

U.S. DEPARTMENT OF

JUSTICE

REMEDIAL ORDER AFFECTING DHA

(Filed Feb. 7, 1995)

Vestige A. 2,876 (92%) of the 3,116 black

households in DHA’s non-elderly public hous-

ing projects units! reside in predominantly black

or minority concentrated projects in predomi-

nantly black or minority concentrated areas

where the poverty rate exceeds 40% [plaintiffs’

9/27/94 exhibit # 79]. 6,133 of the 6,411 units in

DHA’s non-elderly public housing projects are

in these predominantly black or minority con-

centrated areas where the poverty rate exceeds

40% [plaintiffs’ 9/27/94 exhibit # 79].

1 These figures exclude the approximately 46 single family

homes for which DHA does not separately report racial

occupancy data [plaintiffs’ 9/27/94 exhibit # 68 - excerpt from

DHA monthly report].

Supp. App. 61

DHA is ordered to take the following actions to elim-

inate this vestige:

A.1. demolish at least 2,630 units of the public hous-

ing in the West Dallas project.

A.2. provide one-for-one replacement units for each

unit to be demolished before the demolition of that unit.

The 100 public housing units and 1,335 Section 8 certifi-

cates and vouchers previously provided by HUD are one-

for-one replacement units. The 339 public housing units

allocated to DHA since 1990 are one-for-one replacement

units. The 335 public housing units allocated under the

HUD Urban Revitalization Demonstration Grant are one-

for-one replacement units. The additional 698 Section 8

vouchers promised in the HUD plan submitted to the

Court are one-for-one replacement units to the extent that

HUD and DHA are proceeding with demolition under the

previously approved demolition plan and if the number

of units in the one, two, three, four, and five bedroom

unit categories being replaced are matched in the alloca-

tions of replacement units. If a new demolition plan is

approved then the 42 U.S.C. 1437p prohibition against the

use of vouchers as replacement units will apply.

A.3. Develop, through construction or acquisition,

an additional 3,205 public housing family units in pre-

dominantly white areas. These units shall be in place and

occupied before any non-family units or any units in non-

predominantly white areas are developed. The restriction

set out in the immediately preceding sentence does not

apply to the use of public housing units in the recon-

figuration of the West Dallas projects provided for in

q B.7. of this order. The site for each unit must be

Supp. App. 62

approved by the Court and the units, projects, and neigh-

borhoods for the units must provide housing oppor-

tunities substantially equivalent to the units, projects, and

neighborhoods in and around the predominantly white

located HUD assisted projects in Dallas County. The units

may not be located in areas where the poverty rate

exceeds 13%, the county average. The development of

these units is dependent upon the provision of funding

for public housing or comparable programs by HUD te

DHA.

A predominantly white area, as this term is used in

this order, is determined by first computing the racial

composition of the geographic area within a one-quarter

mile radius of the center point of the center of the pro-

posed location of the project. If the population, using the

block level data for the most current US Census, is less

than 37% total non-Hispanic African-American, Hispanic,

or other minority persons, then it may be a predomi-

nantly white area. The area is not a predominantly white

area if it is located on or near a dividing line, such as a

highway, major thoroughfare, or railroad tracks, between

a predominantly white area and a racially concentrated

minority area. The area is not a predominantly white area

if it is located in an isolated, non-residential area. The

relevant area for the determination of the poverty rate

shall be the US Census census tract block group in which

the site is located.

The already allocated 674 units of new public hous-

ing units shall be occupied within 3 years of the date of

this order, or, if allocated for suburban development

within 3 years and 6 months of the date of this order,

Supp. App. 63

unless an extension is granted by the Court for good

cause.

A.4. DHA shall make an application for public

housing assistance at each available opportunity. All

units allocated by HUD in the future shall be occupied

within 3 years of the date of the allocation unless an

extension is granted by the Court for good cause.

A.5. 350 of the currently available new public hous-

ing units and 50% of all subsequent allocations shall be

tentatively reserved for use in predominantly white areas

of the Dallas suburbs. DHA shall request that the suburbs

enter into a cooperation agreement with DHA to allow

the development of a reasonable number of public hous-

ing units in each suburb. If there are not enough subur-

ban cooperation agreements signed or suburban sites

available for acquisition within 6 months of the date of

this order, then DHA shall develop the units in predomi-

nantly white areas of the City of Dallas. The three years

for the initial occupancy of these units will begin to run

after the expiration of 6 months form the date of the

order.

A.6. DHA shall request the assistance of Dallas

County, Texas, as part of the County’s compliance with its

obligation to affirmatively further fair housing in its

housing and community development related activities,

in securing cooperation agreements between DHA and

the area suburbs.

A.7. Given the applicants’ and residents’ stated

preference for Section 8 units, DHA is urged to devise

and submit for court approval a plan which would use

Section 8 certificates and vouchers to substitute for at

Supp. App. 64

least part of the future allocations of new public housing

in predominantly white areas. In order to be approved by

the Court such a plan must:

a. ensure that the Section 8 units are from an alloca-

tion over and above DHA’s past allocations and over and

above DHA’s future fair share allocation and are not

provided as a substitute for any units which would be

provided to DHA under the normal allocation process.

The housing assistance must be over and above what

DHA or the City would otherwise receive from HUD, and

can have no effect on the amounts of future assistance

HUD may provide or award to DHA or the City, and

b. ensure that the certificates and vouchers for

which an offset against the new public housing develop-

ment is claimed are and will be in use in predominantly

white areas for the foreseeable future.

A.8. DHA may use a race conscious tenant selection

method for the purposes of preventing or reducing racial

identifiability if every person skipped over because of

race is provided an equivalent [in terms of cost to the

tenant, convenience and suitability for the family’s indi-

vidualized needs and location preferences] alternative

housing opportunity. Before use, the method shall be

submitted to the Court for approval. The race conscious

tenant selection and assignment method should be used

only in those instances where the desegregative benefit is

substantial enough to justify the use of the resources for

the alternative housing opportunities needed to achieve

the benefit.

A.9 DHA may use a tenant selection and assign-

ment method which maximizes applicant choice to the

Supp. App. 65

extent the exercise of such choice does not unavoidably

cause or maintain racially identifiable projects. For exam-

ple, if there are 10 units in predominantly black projects

available and the top ten applicants on the list are black,

then the exercise of choice will not unavoidably cause or

maintain racially identifiable projects. If there are 7 units

in predominantly black projects and there units in a non-

racially identifiable project and the top ten applicants 7

blacks and 3 whites, then the exercise of choice could

cause or maintain racially identifiable projects depending

on the preferences of the individual applicants.

A.10. Until another method is approved by the

Court, DHA shall make the applicant with the oldest

application date one offer which if refused results in

placement at the bottom of the waiting list. If any appro-

priate units vacant at the time of the offer is located in an

area or project where the applicant’s race does not pre-

dominate, those units shall be offered to the applicant.

Any offer to the West Dallas project may be refused by an

African-American applicant and that applicant shall not

lose her place on the waiting list. Any offer of a unit in a

predominantly white project or location may be refused

by a white applicant and that applicant shall not lose her

place on the waiting list.

A.11. DHA shall ensure that each African-American

household accepting a non-elderly, handicapped, or dis-

abled designated public housing shall be placed on the

Section 8 waiting list with an application date of the

acceptance of the public housing. If the person accepting

public housing is already on the Section 8 waiting list,

then the application date is the actual application date.

Supp. App. 66

Each African American household in a non-elderly, hand-

icapped, or disabled designated public housing unit who

is also on the Section 8 waiting list shall have a desegre-

gated housing opportunity preference equal to a federal

preference.

A.12. A racially identifiable minority public hous-

ing project has 75% or more non-Hispanic Black, His-

panic, or other minority total population. A racially

identifiable white public housing project has 75% or more

non-Hispanic white total population.

A.13. Propose and implement a plan, as approved

by the Court, providing magnet project improvements for

any family project located in minority racially concen-

trated areas for which there is not a substantial decline in

racial identifiability within the three years after the unit,

project, and neighborhood improvements required below

are completed.

Vestige B. The units, projects, and neigh-

borhoods available for the black occupants of

and applicants for DHA’s low rent public hous-

ing projects are substantially inferior to the con-

ditions in which low income whites receive

HUD assistance [plaintiffs’ 9/27/94 exhibits ##

62 - 66, 68 — 80]. Walker v. HUD, 734 F.Supp.

1231, (N.D. Tex. 1989).

DHA is ordered to take the following actions to elim-

inate this vestige:

B.1. Prepare and submit for court approval a sched-

ule for achieving the unit and project improvements nec-

essary to make the unit and project conditions at DHA’'s

Supp. App. 67

projects substantially equal to the unit and project condi-

tions at the HUD assisted projects located in predomi-

nantly white areas of Dallas and including the

improvements listed in paragraphs 32 — 35 on pages 23 -

25 and 38 - 46 on pages 26 - 27 of the DHA proposed

permanent injunction for each DHA project. The schedule

should be drafted to achieve the improvements in the

least possible time given the funding likely to be avail-

able and list the possible sources of funding for each

improvement. Priority should be given to achieving the

improvements in security necessary to achieve a safe

environment within each project. The projects with the

highest crime rate should be given priority in the funding

for the prevention of crime.

B.2. The funding available for these improvements

includes the $15,000,000 in CIAP funding and DHA’s

formula Comprehensive Grant Program funding. Future

funding may become available through other programs

from local or federal agencies. DHA shall make applica-

tion for all funding which could be used to address the

inequalities affecting its public housing program. DHA’s

ability to achieve the improvements in B.2. is limited by

the resources available, the need to maintain all of its

units in decent, safe, and sanitary condition, and to com-

ply with the statutory and regulatory requirements of

DHA’s low income housing programs.

B.3. HUD has the authority to increase DHA’s oper-

ating subsidy beyond the performance funding system

formula amount when necessary because of circum-

stances beyond DHA’s control. 42 USC § 1437g; 24 CFR

990.108(d). This order requiring a remedy for the consti-

tutional and statutory violations of racial segregation is

8 ee se ee ee ee

Supp. App. 68

just such a circumstance. HUD has itself admitted the

need for such increased funding by its continued provi-

sion of the operating subsidy for the vacant West Dallas

units. DHA shall take the remedial needs imposed by this

order into account when submitting its request for its

operating subsidy from HUD. If the subsidy provided, in

combination with other funding actually available to

DHA, does not allow DHA to meet the obligations

imposed under this order within a reasonable time, DHA

or the plaintiffs may apply to the Court for relief.

B.4. The neighborhood conditions around DHA’s

projects which must be addressed in order to achieve

substantial equality with the conditions in and around

the HUD assisted projects in predominantly white areas

include those listed in B.5. below.

B.5. The conditions adversely affecting all or some

of DHA’s projects include:

a. high rates of crime,

b. exposure to industrial uses and environmental

hazards,

c. inappropriate industrial zoning,

d. unsatisfactory streets, curbs, drainage, sidewalks,

lighting and cther municipally provided facilities,

e. lack of neighborhood commercial services such as

grocery stores, pharmacies, banks or other financial insti-

tutions, and medical facilities,

Supp. App. 69

f. lack of decent, standard, affordable, single family

units in the neighborhoods around the projects for the

persons now residing in those neighborhoods who wish

to remain in those areas,

g. high concentrations of poverty households and

households on public assistance, and

h. public schools challenged by high percentages of

students failing to pass minimum competency tests.

B.6. DHA’s ability to affect these neighborhood con-

ditions around the existing projects is limited to the oper-

ation of its own projects and to requesting actions by

local and federal agencies and the private sector. DHA’s

plan for improvement of the neighborhood conditions

shall include the determination of which agencies and

institutions can improve the conditions and a request to

those agencies and institutions for the actions which will

improve the conditions.

B.7. In addition to the improvements listed for each

DHA project, DHA shall implement a reconfiguration of

and improvements to the West Dallas project units consis-

tent with the concepts in the Lakewest Master Plan sub-

mitted to the Court under the following conditions:

a. no more than 950 units of public housing may

remain in place after the configuration and improvements

and this number shall be reduced by the number of City

Consent Decree 7 3.5 units provided as part of the recon-

figuration,

b. prior to the use of any new public housing units

in the reconfiguration of the West Dallas project, DHA

and plaintiffs shall seek the cooperation of the City of

Supp. App. 70

Dallas in provision of up to 200 necessary infill units

under | 3.5 of the City Consent Decree in this case.

c. In the event that City Consent Decree { 3.5 units

are not available in time to be used in the reconfiguration

of the first village no more than a total of 50 new public

housing units may be used in the reconfiguration and

improvements of that village,

d. In the event that no City Consent Decree { 3.5

units become available for use in the reconfiguration of

the West Dallas projects, no more than a total of 200 units

of new public housing may be used in that reconfigura-

tion. The use of these units shall not result in more than

950 public housing units remaining in place after the

reconfiguration.

e. Plaintiffs are arguing for a provision in the order

that would prohibit any reconfiguration or improvements

to the West Dallas site “until the status of the RSR/

Murmu tr site on the National Priorities List and any reme-

dial efforts have been fully resolved.” DHA opposes this

language because “there is no evidence of any significant

environmental health hazard to residents of DHA’s West

Dallas developments arising out of lead contamination

connected with the RSR/Murmur site” and thus there

should be no reason to delay the construction of improve-

ments in West Dallas [DHA’s Response to Plaintiffs’

Motion for Entry of Remedial Order Affecting DHA, page

1]. This paragraph is the only paragraph in this order that

has not been consented to by DHA [DHA’s Response to

Plaintiffs’ Motion for Entry of Remedial Order Affecting

DHA, page 1]. Therefore, the resolution of this issue will

be set for a future hearing and resolution by the Court.

Supp. App. 71

f. any construction, rehabilitation, excavation or

other construction work will be done in compliance with

all necessary safeguards against releases of hazardous

substances,

g. DHA has requested a change in zoning to pro-

vide an adequate “buffer zone” between the industrial

zoning and uses on Singleton Blvd. and the areas of the

West Dallas project to be used for residential purposes.

h. the tenant selection and assignment plan shall

provide that no applicant shall lose her or his place on

the waiting list because a unit in the West Dallas project

has been rejected,

i. the specitic reconfiguration and improvements

have been approved by the Court.

B.8. DHA shall submit a plan for achieving and

maintaining substantial equality of conditions in DHA’s

existing and future projects to the Court for approval

within 90 days of the date of this order.

Vestige C. At least 2,850 [59.2%] of the black

house-holds on DHA’s Section 8 certificate and

voucher program live in predominantly black or

racially concentrated and low income areas.

Only 21% of those households live in predomi-

nantly white areas. 45.6% of white DHA Section

8 households live in predominantly white areas.

C.1. DHA’s September, 1994 survey showed that at

least 23% of those on the waiting list preferred housing in

the suburbs, 27% preferred housing in North Dallas, and

11% preferred housing parts of Dallas “Other” than those

listed [plaintiffs’ 9/27/94 exhibit # 91].

Supp. App. 72

C.2. DHA shall provide the mobility services to

Atrican-American applicants tor DHA’s low income

housing programs and class members necessary to

achieve and maintain a percentage of DHA’s Section 8

allocation in predominantly white areas of the Dallas

suburbs and a percentage of DHA’s Section 8 allocation,

including those in the suburbs, in predominantly white

areas of North Dallas, predominantly white other parts of

Dallas County, and predominantly white adjoining areas.

The percentages shall be set atter completion of another

survey of the area preferences of DHA’s applicants and

participants. DHA and plaintiffs shall attempt to agree on

the contractor for the survey and the content and pro-

cedure of the survey. In the event such agreement cannot

be reached, the Court will determine any issues upon

which there is no agreement.

The results of the survey shall be considerec. by DHA

and the plaintifts in their proposals tor the target percent-

ages for the mobility program. If agreement cannot be

reached, the Court will set the target percentages. These

percentages shall be achieved within four years of the

date of the order setting the targets and maintained there-

atter.

C.3. The mobility services provided shall include

landlord recruitment, FMR and voucher payment levels,

child care and transportation services, and Title VIII

enforcement actions. The mobility services provided by

DHA shall include the provision of neighborhood specific

information on crime rates, objective indicators of school

quality such TAAS results tor the schools in the area,

Supp. App. 73

social services, job training and employment oppor-

tunities, day care, medical facilities, neighborhood shop-

ping services, transportation, and environmental hazards

or other conditions inimical to family life.

C.4. DHA’s ability to provide the mobility services

and achieve the target percentages depends on the avail-

ability of funding for the provision of those services, the

availability of willing landlords with units in appropriate

areas, the Fair Market Rent and voucher payment stan-

dard levels, and the choices of the program participants.

The need to avoid concentrations of assisted persons in

individual locations shall also be taken into account in

determining DHA’s performance in achieving the target

percentages.

C.5 DHA shall conduct quality control review inspec-

tions of at least 10° of all Section 8 EHP units within 90

days after the initial or annual Housing Quality Stan-

dards inspection and comply with all HUD HQS require-

ments.

Vestige D. The neighborhood conditions tor a

majority of the black Section 8 participants are

substantially inferior to the conditions in which

low income whites receive HUD assisted hous-

ing and to the conditions in which whites pay-

ing rent comparable to the total rent paid by and

on behalf the Section 8 households reside [plain-

tiffs’ 9/27/94 exhibits ## 70 - 73, 76, 78].

D.1. DHA shall conduct perimeter inspections of all

Section 8 EHP units at least twice annually, noting all

obvious code violations on surrounding properties and

reporting those violations to appropriate city code offi-

cials.

Supp App 74

Ly 2. DEA shall monitor criminal activity, including

criminal drug related activity, at and around all apart

ment projects in which LO or more DHA Section 8 partict-

pants reside. A level of criminal activity at rates higher

than the overall City of Dallas rates tor any category of

crime which level exists tor more than six months shall be

grounds for refusing to approve any additional section 8

contracts at that project and tor relocating those Section 8

participants ino residence

t. Monitoring and reporting

Pol. DHA shall tile quarterly reports detaining the

status of compliance with each provision of this order

and specifically reporting the results of that compliance

E.?. The report tor each quarter shall be tiled with the

Court and coptes served on the parties within thirty days

of the end of the quarter covered by the report

b.3. DHA shall give Plaintitts; counsel access upon

request and upon reasonable terms to intormation and

documents relevant to compliance with the decree.

F. Jurisdiction of the Court

bl. The Court retains jurisdiction to entorce and

modity this injunction according to general equitable

principles

F.2. Should DHA choose to assert that unitary status

has been achieved, then DHA shall submit to the Court.

with a copy to all other parties, a detailed, tactual account

upon which the assertion is based and all documents

Supp. App. 75

upon which the assertions are based. The account shall

include: all steps taken to eradicate the vestiges of racial

segregation, any publicly assisted housing desegregation

procedures which were not used and the explanation tor

the failure to use those procedures, the basis upon which

the party relies for the assertion that no further action to

remove the vestiges of racial seyregation is practical or

required, whether or not actions by an organization,

entity, or person other than DHA could turther desey

regation, what such actions are and the steps taken by

DHA to secure the performance of such actions and the

results of those steps, and any other information relevant

to the determination of unitary status.

F.3. Unitary status means that the all reasonable

methods have been employed and all available resources

marshalled to eradicate the vestiges of racial segregation

in DHA’s public housing and Section 8 housing pro-

grams, and that such vestiges have been eradicated to the

extent practical.

7 Feb. 95

Date

/s/ Jerry Buchmayer

United States District Judge

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