671 F.2d 702 (2nd Cir. 1982), 292, Hudson Valley Freedom Theater, Inc. v. Heimbach

Docket Nº:292, Docket 81-7425.
Citation:671 F.2d 702
Party Name:HUDSON VALLEY FREEDOM THEATER, INC., Plaintiff-Appellant, v. Louis HEIMBACH, individually and as the Orange County Executive; Peter Replogle, individually and as the Director of the Orange County Employment and Training Administration; June Cook, individually and as former Director of the Orange County Employment and Training Administration; Lawren
Case Date:February 01, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 702

671 F.2d 702 (2nd Cir. 1982)



Louis HEIMBACH, individually and as the Orange County

Executive; Peter Replogle, individually and as the Director

of the Orange County Employment and Training Administration;

June Cook, individually and as former Director of the Orange

County Employment and Training Administration; Lawrence

Gaskins, individually and as an employee of the Orange

County Employment and Training Administration and the County

of Orange, Defendants-Appellees.

No. 292, Docket 81-7425.

United States Court of Appeals, Second Circuit

February 1, 1982

Argued Oct. 29, 1981.

William M. Kunstler, New York City (C. Vernon Mason, James I. Meyerson and Mark B. Gombiner, New York City, of counsel), for plaintiff-appellant.

James L. Fischer, New York City (Wilson, Elser, Edelman & Dicker, New York City, Herbert Dicker, New York City, of counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, FRIENDLY and PIERCE, [*] Circuit Judges.

Page 703

FRIENDLY, Circuit Judge:

This is an appeal from the dismissal by the District Court for the Southern District of New York for lack of standing of an action involving alleged violations of the civil rights laws, 42 U.S.C. §§ 1981, 1983, 1985, and 2000d, and the equal protection and due process clauses of the Fourteenth Amendment. 1

The plaintiff, Hudson Valley Freedom Theatre, Inc. (HVFT), is a not-for-profit, tax-exempt corporation which was organized in 1972 and serves the Newburgh, New York area. There are no individual plaintiffs and HVFT explicitly affirms that it is suing solely on its own behalf. According to its complaint the purpose of HVFT is "to produce theatrical and artistic productions in Orange County and the Mid-Hudson area which particularly reach and involve the Black and Hispanic communities", and "which ... reflect the cultural needs, aspirations and creativity of the Black and Hispanic communities of the Mid-Hudson area." HVFT claims to have received financial support from a variety of public and private sources for this purpose and to have "earned and received substantial community support."

The defendants in the present action are the County of Orange and various of its present and past officials and administrators. Defendant Louis Heimbach is the County Executive of Orange County and, according to plaintiff, is responsible for the administration of the County's program under the Comprehensive Employment and Training Act, 29 U.S.C. § 801 et seq. (CETA). Defendant Peter Replogle is the Director of Orange County's Employment and Training Administration (ETA), a county agency changed with administering the local CETA program. Also named as defendants are June Cook, Director of ETA at the time plaintiff's claims arose, and Lawrence Gaskins, an employee of ETA.

HVFT's claims are based principally upon two instances of alleged racially discriminatory conduct by the defendants. HVFT's primary allegation relates to its application to the Orange County ETA in the summer of 1978 for CETA funds for a project entitled "Expansion of the Theatre Arts Industry in the Greater Newburgh Community". This application, which sought some $188,000 for "compilation of a theatre directory and production of eleven plays which would be performed by a touring troupe at area colleges, high schools and at other locations", was denied. The plaintiff, pointing to allegedly "improper, biased and perjurative (sic) comments" by defendant Gaskins on an ETA form rating the project, claims that ETA's denial was racially motivated. HVFT's further allegations focus on an alleged "series of actions (undertaken by defendants) which were designed to, and did in fact, discourage the HVFT's activity as a CETA sub-contractor." Plaintiff alleges, inter alia, that defendants "inordinately delayed" two of HVFT's previously approved ETA youth programs and discontinued two Title II Public Service Employment positions and a "restoration trainee" position in HVFT projects. Moreover, plaintiff alleges that various defendants made unfavorable public statements about HVFT and initiated

Page 704

inquiries into HVFT affairs, both "with the attempted purpose of discrediting" the theatre. Plaintiffs allege that these actions were motivated by racial animus. 2

The district judge dismissed this portion of the complaint for lack of standing. Relying on language of the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977), which we quote below, he reasoned that "a corporation, as a faceless creature of the state, may not assert claims of racial discrimination under the Fourteenth Amendment on its own behalf, and cannot be the 'target' of racial discrimination." Although a literal reading of one sentence in the Arlington Heights opinion indeed supports the judge's ruling, the sentence was of only academic importance and we do not believe that the Supreme Court would slavishly apply it so as to deny HVFT its day in court.

Arlington Heights involved a refusal by a village of that name, allegedly on racial grounds, to permit the rezoning from a single family to a multiple family classification of a tract on which Metropolitan Housing Development Corporation (MHDC), a non-profit corporation, proposed to construct racially integrated low and moderate income housing to be known as Lincoln Green. MHDC and three individuals seeking to represent a class of "low and moderate income minority-group members who work or desire to work in Arlington Heights but cannot find decent housing in Arlington Heights at rents they can afford", 373 F.Supp. 208, 209-10 (N.D.Ill.1974), brought an action asking declaratory and injunctive relief on the basis of the Equal Protection clause of the Fourteenth Amendment and the Fair Housing Act, 42 U.S.C. § 3601 et seq. The district court dismissed the complaint primarily for failure to establish that the denial of the rezoning was racially motivated, 373 F.Supp. at 211, but the Court of Appeals, "proceeding in a somewhat unorthodox fashion," 429 U.S. at 271, 97 S.Ct. at 566, reversed on the constitutional claim, 517 F.2d 409 (7 Cir. 1975), without considering the statutory one; it held that disparate impact sufficed to establish a violation of the Equal Protection Clause. The Supreme Court reversed this constitutional holding.

The district judge in Arlington Heights had assumed that MHDC had standing, apparently on the basis of a ruling by a predecessor judge, see 373 F.Supp. at 209, and the question was not discussed in the opinion of the court of appeals. In the Supreme Court MHDC's standing was challenged. The Court first concluded that "there can be little doubt that MHDC meets the constitutional standing requirements." 429 U.S. at 261, 97 S.Ct. at 561. It had "shown an injury to itself that is 'likely to be redressed by a favorable decision.' " Id. at 262, 97 S.Ct. at 561, quoting from Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). The Court refused to accept the Village's argument "that MHDC lacks standing because it has suffered no economic injury." 429 U.S. at 262, 97 S.Ct. at 561. MHDC had expended thousands of dollars for plans and studies many of which would be rendered useless if the denial of the requested rezoning were to stand. Id. Even more important, "(i)t has long been clear that economic injury is not the only kind of injury that can support a plaintiff's standing.... (MHDC's) interest in building Lincoln Green stems not from a desire for economic gain, but rather from an interest in making suitable low-cost housing...

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