Clients' Council v. Pierce

• Decision Date: 15 September 1983
• Docket Number: No. 82-1383,82-1383
• Citation: 711 F.2d 1406
• Parties: CLIENTS' COUNCIL, Debra Wyatt and Merlene McGloughlin, Appellants, v. Samuel R. PIERCE, Jr., Secretary of the Department of Housing and Urban Development; Thomas Armstrong, Regional Administrator, Region Six Department of Housing and Urban Development; and Andrew Watts, Area Manager, Department of Housing and Urban Development, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1406

711 F.2d 1406

CLIENTS' COUNCIL, Debra Wyatt and Merlene McGloughlin, Appellants, v. Samuel R. PIERCE, Jr., Secretary of the Department of Housing and Urban Development; Thomas Armstrong, Regional Administrator, Region Six Department of Housing and Urban Development; and Andrew Watts, Area Manager, Department of Housing and Urban Development, Appellees.

No. 82-1383.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 9, 1982.

Decided June 28, 1983.

Rehearing and Rehearing En Banc Denied Sept. 15, 1983.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Larry R. McCord, U.S. Atty., Fort Smith, Ark., Anthony J. Steinmeyer, Michael Jay Singer, Attys.' Civ. Div., Dept. of Justice, Washington, D.C., for appellees; Gershon M. Ratner, Associate Gen. Counsel for Litigation, John W. Herold, Atty., Dept. of Housing and Urban Development, Washington, D.C., of counsel.

Michael M. Daniel, Elizabeth K. Julian, Julian & Daniel, Dallas, Tex., Gary R. Thomas, East Texas Legal Services, Nacogdoches, Tex., for appellants.

Before HEANEY and BRIGHT, Circuit Judges, and HENLEY, Senior Circuit Judge.

HEANEY, Circuit Judge.

Debra Wyatt and Merlene McGloughlin, black women who are eligible for admission to the Texarkana public housing program, ask this Court to reverse the district court ¹ and to find that the Secretary of the Department of Housing and Urban Development (HUD) and various other HUD officials have discriminated against black persons who reside in or are eligible for public Public housing in Texarkana was totally segregated from the occupancy of the first project in 1952 until 1971, and remained virtually one hundred percent segregated until after the initiation of this lawsuit in 1979. The units that housed black persons were less well constructed and less well maintained than the units occupied by whites. Black employees were also subject to discriminatory working conditions. HUD officials abdicated their affirmative duty to eliminate the racially discriminatory practices of the Texarkana Housing Authority, and in fact participated in that discrimination in violation of the federal constitution and federal housing laws. Accordingly, we reverse the district court's dismissal of the action and remand the case to it with directions to fashion an appropriate, effective remedy to eradicate the effects of past discrimination in the Texarkana public housing program.

housing in Texarkana, Arkansas. ² After a careful review of the record and the briefs, we do so.

I. PROCEDURAL HISTORY

Wyatt and McGloughlin filed this action against officials of the Texarkana Housing Authority (THA) and HUD on November 15, 1979. Their complaint alleged that HUD and the THA were liable for racial discrimination in the operation of federally funded housing projects in Texarkana. The suit against the THA was settled by a court-approved "Agreed Judgment" prior to trial. ³ The Civil Rights Division of the Department of Justice commenced a separate action against the Housing Authority after the appellants initiated their suit, which was also settled by a consent order. ⁴

The district court considered the case against HUD officials on the basis of the pleadings, the interrogatories and answers thereto, and the agency's files. The appellants moved for partial summary judgment on the issue of liability under Title VI of the Civil Rights Act of 1964, ⁵ Title VIII of the Civil Rights Act of 1968, ⁶ and the fifth amendment. ⁷ HUD filed a cross-motion for dismissal of the complaint or, in the alternative, for summary judgment on the merits. The district court ruled that the appellants could not recover under the fifth amendment because they failed to prove intentional racial discrimination on the part of HUD officials. The court also dismissed their Title VI claim on the ground that Title VI did not create a private cause of action against a federal funding agency, and that even if it did, the appellants had failed to exhaust their administrative remedies and had failed to prove that HUD's actions had a discriminatory impact or purpose. Finally, the district court held that HUD officials

had met their duty under section 808(e)(5) of Title VIII to promote fair housing in Texarkana.

II. FIFTH AMENDMENT

The district court correctly stated that in order to establish a constitutional violation, the appellants must prove that HUD officials acted with a discriminatory purpose. See Personnel Administrator v. Feeney, 442 U.S. 256, 272-281, 99 S.Ct. 2282, 2292-2297, 60 L.Ed.2d 870 (1979); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265, 97 S.Ct. 555, 562-563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239-241, 96 S.Ct. 2040, 2047-2048, 48 L.Ed.2d 597 (1976). Although there is ample evidence that the Texarkana Housing Authority intentionally discriminated on the basis of race, HUD cannot be held liable unless its own conduct was tainted with a discriminatory purpose. See Pullman-Standard v. Swint, 456 U.S. 273, 280, 102 S.Ct. 1781, 1786, 72 L.Ed.2d 66, 75 (1982).

The Supreme Court has stated that "determining the existence of a discriminatory purpose 'demands a sensitive inquiry into such circumstantial and direct evidence as may be available.' " Rogers v. Lodge, --- U.S. ----, ----, 102 S.Ct. 3272, 3276, 73 L.Ed.2d 1012, 1018 (1982) (citing Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 266, 97 S.Ct. at 564). The "totality of the relevant facts" must be examined in order to ascertain whether a discriminatory purpose may legitimately be inferred. See Rogers v. Lodge, supra, --- U.S. at ----, 102 S.Ct. at 3276, 73 L.Ed.2d at 1018 (citations omitted); Personnel Administrator v. Feeney, supra, 442 U.S. at 279 n. 24, 99 S.Ct. at 2296 n. 24; Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 266-268, 97 S.Ct. at 564-565; Washington v. Davis, supra, 426 U.S. at 242, 96 S.Ct. at 2049.

When a court is faced with an aggregation of many decisions made by different administrators as is the case here, the impact or effect of the choices made is "an important starting point" in determining purposeful discrimination. Crawford v. Board of Education, --- U.S. ----, ----, 102 S.Ct. 3211, 3221, 73 L.Ed.2d 948, 960 (1982) (citing Personnel Administrator v. Feeney, supra, 442 U.S. at 274, 99 S.Ct. at 2293; Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 266, 97 S.Ct. at 564).

Adherence to a particular policy or practice, "with full knowledge of the predictable effects of such adherence upon racial imbalance * * * is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn."

Columbus Board of Education v. Penick, 443 U.S. 449, 465, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979) (citations omitted).

Other factors which may be relevant include the historical background, the sequence of events leading up to the challenged decisions, the departures from the normal procedural sequence, the substantive departures from the norm, and the alternatives that were available. See Columbus Board of Education v. Penick, supra, 443 U.S. at 461, 99 S.Ct. at 2948; Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. at 266-268, 97 S.Ct. at 564-565; Note, Discriminatory Purpose and Disproportionate Impact: An Assessment After Feeney, 79 Colum.L.Rev. 1376, 1395-1396, 1407-1413 (1979). The inquiry is a practical one which is designed to determine whether the decisionmaker's actions--in this case, HUD's actions from 1969 through 1979--could not "reasonably be explained without reference to racial concerns." Columbus Board of Education v. Penick, supra, 443 U.S. at 461, 99 S.Ct. at 2948. HUD has intentionally discriminated if its officials "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' " the racially segregative effect of its actions in Texarkana. Personnel Administrator v. Feeney, supra, 442 U.S. at 279, 99 S.Ct. at 2296.

The district court held that "the federal defendants have taken no action with a discriminatory intent." 532 F.Supp. at 575. We are convinced that this finding is clearly erroneous. See Pullman-Standard v. Swint, supra, 456 U.S. at 287, 102 S.Ct. at 1789, 72 L.Ed.2d at 79. In our view, the evidence compels a finding that HUD officials acted with a discriminatory purpose. A detailed chronology of the facts reveals the basis for this conclusion.

The THA was established in 1948 pursuant to the Arkansas Housing Authorities Act, Ark.Stat.Ann. §§ 19-3001 et seq. (1980 & Supp.1981). A five-member Board of Commissioners serves as the governing body of the Housing Authority. ⁸ In 1950, the City of Texarkana and the THA Board entered into an agreement to develop low income housing. From 1950 to 1969, seven housing projects were built. These projects contained a total of 310 housing units, which were segregated by race from the date of their initial occupancy as follows:

HUD Representative John M. Nelson conducted the agency's first compliance review ⁹ in May, 1969. Nelson found sixteen Title VI violations and indicated in his report to the Director of Program Service and Review Division, Harold A. Odom, that:

The Executive Director [B.R. McCarley] admitted that project courts were segregated and that no effort was being made to integrate. A list furnished by the local Housing Authority (see Exhibit I) clearly reflects occupancy as white and non-white. [McCarley] stated that applicants, when filing, would indicate acceptance of occupancy in all-white occupied projects if they were white, and likewise Negroes preferred only all-Negro occupied projects. No objection was offered to trying to integrate which [McCarley] felt due to past and present community attitudes that such could not be...