United States v. Hughes Memorial Home

• Decision Date: 02 May 1975
• Docket Number: Civ. A. No. 75-0005.
• Parties: UNITED STATES of America, Plaintiff, v. HUGHES MEMORIAL HOME, a corporation, Defendant.
• Court: U.S. District Court — Western District of Virginia

396 F. Supp. 544

UNITED STATES of America, Plaintiff, v. HUGHES MEMORIAL HOME, a corporation, Defendant.

Civ. A. No. 75-0005.

United States District Court, W. D. Virginia.

May 2, 1975.

COPYRIGHT MATERIAL OMITTED

Frank E. Schwelb, Chief, Housing Section, U. S. Dept. of Justice, Washington, D. C., for United States.

James F. Ingram, Danville, Va., for defendant.

DECREE

DALTON, District Judge.

The Attorney General filed this action on January 30, 1975 alleging that the defendant, a Pittsylvania County, Virginia children's home, had made dwellings unavailable to black children, in violation of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. On February 12, 1975, defendant filed a motion to dismiss the complaint, or, in the alternative, for summary judgment. On February 21, 1975, the Court denied the motion, but reserved the right to reconsider its decision at a later stage of the proceeding. The Court requested the parties to act expeditiously to develop the factual and legal issues involved.¹

Pursuant to the Court's direction, plaintiff took the depositions of T. Anthony Pollard, defendant's Executive Director, and of Ernest Baxa and Clyde S. Cassels, the President and Vice-President, respectively, of defendant's Board of Trustees. Plaintiff had also served on defendant a Request for Admissions, to which defendant responded by admitting or substantially admitting each of the statements in the Request. The principal facts in this proceeding are therefore not in dispute, but the parties differ as to whether defendant is covered under the provisions of the Fair Housing Act.

Based on the evidence in the record, the Court makes the following Findings of Fact, Conclusions of Law and Decree:

FINDINGS OF FACT

1. The Hughes Memorial Home (hereinafter the Home) is a private, non-sectarian children's home located in Pittsylvania County, Virginia, outside the City of Danville. The Home was established pursuant to a trust set up by the will of John E. Hughes, a resident of Danville, which will was admitted to probate April 3, 1922. The provision of Mr. Hughes' will here pertinent is set out in the margin.²

2. Pursuant to the will of Mr. Hughes, the Home is governed by a Board of Trustees, of which the president is currently Mr. Ernest Baxa. The Home is managed in its day-to-day operations by its Executive Director, Mr. T. Anthony Pollard, who has occupied that position since 1947. Both of these gentlemen testified on deposition concerning the history and current operation of the Home.

3. As it is presently operated, the Home is open to needy and dependent children, whether orphans or not, who are determined to be in need of a residence at the Home because of unsatisfactory conditions in their families. Pollard deposition at 11-12. Some children are referred to the Home by courts or social agencies, while others are admitted on the application of their parents or guardians. Id. at 11. Parents and guardians are requested to pay to the Home a monthly sum of money to defray some of the cost of the child's care, and most in fact make such payments. Id. at 29-30. Once admitted, the children are permanent residents rather than transients, and the average length of stay is about four years. Id. at 23-24.

4. The ages of the children in residence at the Home range from six to eighteen years. Pollard deposition at 21. The children are housed in dormitory fashion in five "cottages", under the supervision of resident house parents. Id. at 14. The maximum total capacity of these houses is approximately 60 children.³ Pollard deposition at 33. At present, approximately 36 children reside there. A dining hall, a gymnasium, and other facilities are also located on the grounds of the Home. Id. at 18. The children attend the schools which serve the area generally. Id. at 5.

5. Throughout the history of the Home, its Trustees have interpreted the clause in the will of Mr. Hughes which provides that the institution shall be established "for the white children of Virginia and North Carolina" as forbidding them to admit blacks as residents. Defendant's Response to Plaintiff's Request for Admissions (hereinafter Req. Adm.), paragraph 2A; Baxa dep. at 39; Cassels dep. at 48. One application, filed by Robert H. Turner of Danville on behalf of his grandson, a black child, was rejected by the Home for this explicitly racial reason on April 18, 1973. Req.Adm. para. 2H.

6. The Home formerly received referrals of children from various public welfare departments, which are now unable by reason of equal opportunity requirements to make such referrals because of the defendant's policy of not admitting black children. Pollard deposition at 28; Req.Adm. para. 2F. At one time approximately half of the residents of the Home were referred to it by such agencies. Pollard deposition at 32. The present inability of the Home to accept such referrals is at least partly responsible for the fact that it now operates substantially below capacity. Id. at 34-35.

7. Prior to 1965, the Home received surplus agricultural commodities under the Surplus Commodity Program and the Special Milk Program of the Department of Agriculture. Pollard deposition at 24-28. In that year, it was brought to the defendant's attention that future participation in these programs was to be available only to institutions with nondiscriminatory admissions policies. Id. at 27-28. Believing themselves to be foreclosed from adopting such a policy by the will of Mr. Hughes, the trustees elected to withdraw from the programs and have not participated since. Id. at 28; Req.Adm. para. 20. The assistance thus foregone was financially helpful to the Home, although Mr. Pollard was unable to estimate its precise value. Pollard deposition at 27. During the past fiscal year, the Home operated at a net loss of $29,000. Cassels dep. at 46.

8. The United States has not alleged that the officers of the Home have acted out of malice or bad faith in refusing to accept black children. The Court finds that they have acted throughout in the good faith belief that the terms of Mr. Hughes' will required them to keep the Home all-white. The defendant's policy has nevertheless had the purpose and effect of excluding black children from residence of the Home. Although the record discloses the identity of only one black child on whose behalf an application has been made and rejected, that child was excluded on overtly racial grounds, and it may reasonably be inferred other black children would have been referred to the Home by social welfare agencies if the defendant had not followed a "white only" admissions policy.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of this action under 28 U.S.C. § 1345 and 42 U. S.C. § 3613.

2. The Fair Housing Act of 1968 is a constitutional exercise of Congressional power under the Thirteenth Amendment to bar discrimination in housing. United States v. Hunter, 459 F.2d 205, 214 (4th Cir. 1972), cert. denied 409 U.S. 934, 93 S.Ct. 235, 34 L. Ed.2d 189 (1972). The Act implements a policy to which Congress has accorded the highest national priority, and is to be construed liberally in accordance with that purpose. 42 U.S.C. § 3601; Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 211-212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972); Mayers v. Ridley, 151 U.S.App.D.C. 45, 465 F.2d 630 (1972) (en banc). Good faith is no defense to practices prohibited by the Act which have a racially discriminatory effect. Williams v. Matthews, 499 F.2d 819, 826 (8th Cir. 1974) cert. denied, 419 U.S. 1021, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974); United States v. City of Black Jack, 508 F.2d 1179, 1184-1185 (8th Cir. 1974); see Griggs v. Duke Power Co, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

3. The defendant asserts that the Fair Housing Act does not apply. The Act makes it unlawful to make "dwellings" unavailable because of race. The term "dwelling" is defined by the Act as "any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families." 42 U.S.C. § 3602(b). "Family" includes a single individual. 42 U.S.C. § 3602(c). Whether the Home is within the scope of the prohibition in section 3604(a) thus turns on whether it is "occupied as . . . a residence."

4. The term "residence" is not specifically defined in the Act, and must be accorded its ordinary meaning. The applicable definition of the word in Webster's Third New International Dictionary is as follows:

a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit .

The record establishes that, as the very title of the institution implies, the Home is far more than a place of temporary sojourn to the children who live there, and that they are in fact, as the Home's officials refer to them, residents. The children go to school, outside the Home, Pollard deposition at 5, but live at the residential facilities provided by the Home. Executive Director Pollard described the Home in his deposition as a "residential center" for dependent, neglected or needy children. Id. at 5. The Court therefore holds that the Home is a dwelling within the meaning of section 3602(b).

5. Defendant contends that the activities of the Home are not covered by the Act because it is not engaged in the commercial sale or rental of residential facilities. While the Home receives some payment on behalf of 80%-90% of the residents, the Court concludes that the Act also reaches noncommercial activities, and that the Home is prohibited from discrimination even with respect to residents for whom no payment is made.⁴ In United States v. City of Parma, O.H.Rptr. para. 13,616, at p. 14015 (N.D.Ohio 1973), appeal from later Order dismissed No. 74-1643 (6th Cir., September 26, 1974), cert. denied, 420 U.S. 1008, 95 S.Ct. 1454, 43 L.Ed.2d 768 (March 31, 1975), the...