CLIENTS'COUNCIL v. Pierce, 79-4086.

• Decision Date: 01 February 1982
• Docket Number: No. 79-4086.,79-4086.
• Citation: 532 F. Supp. 563
• Parties: CLIENTS' COUNCIL; Debra Wyatt; and Merlene McGloughlin 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; Andrew Watts, Area Manager, Department of Housing and Urban Development.
• Court: U.S. District Court — Western District of Arkansas

532 F. Supp. 563

CLIENTS' COUNCIL; Debra Wyatt; and Merlene McGloughlin 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; Andrew Watts, Area Manager, Department of Housing and Urban Development.

No. 79-4086.

United States District Court, W. D. Arkansas, Texarkana Division.

February 1, 1982.

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John Buckley, David J. Manley, East Texas Legal Services, Texarkana, Tex., Michael M. Daniel and Elizabeth K. Julian, Dallas, Tex., for plaintiffs.

David Folsom, Young, Patton & Folsom, Texarkana, Ark., and Henry I. LaHaie, U. S. Dept. of Justice, Civil Division, Washington, D. C., for defendants.

MEMORANDUM OPINION

ROY, District Judge.

The instant suit involves a charge of race discrimination brought by individuals and an unincorporated group against the Secretary of the Department of Housing and Urban Development (HUD) and certain HUD administrators. The plaintiffs are low income minorities who are eligible for public housing. The Texarkana, Arkansas, Housing Authority (THA) and its Board of Commissioners were originally defendants, but have reached a settlement with plaintiffs and, therefore, the suit against them was dismissed. The remaining defendants shall be collectively termed "HUD" or "the federal defendants."

Plaintiffs contend that HUD has knowingly supported a public housing authority which has engaged in racially discriminatory practices, in violation of Title VI of the Civil Rights Act of 1964, Title VIII of the Civil Rights Act of 1968 and the fifth amendment to the Constitution of the United States. Plaintiffs failed to file a Motion for Class Certification within the time prescribed by the local rules; therefore, the action is brought only by the named plaintiffs.

The Court must now decide this case without a trial since the parties agreed to submit it for decision based on the administrative record. Said record is 914 pages long. The Court has reviewed the entire record.

The THA operates nine low income housing projects. It is clear from the record that the residents of these projects have been assigned to their apartments according to race. Three of the projects — Ozan Courts, Carver and George Johnson Homes — are populated exclusively by black people. Until recently, Highpoint, Hacota I and Ingram were populated exclusively by white people. (R. 44) Furthermore, those projects which were integrated still had residents assigned to a certain area based on race, resulting in "white areas" and "black areas" within the projects.

Plaintiffs filed a Motion for Summary Judgment, renewing their contention that the federal defendants violated Title VI, Title VIII and the fifth amendment by failing "to take effective affirmative action to end racial segregation in the operation of defendant Housing Authority."

Defendants have also filed a Motion for Summary Judgment.

Under Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968, HUD has a duty to administer its housing programs and activities in a manner that furthers policies of nondiscrimination. Pursuant to those statutory mandates, HUD has issued regulations to prohibit discrimination and to promote fair housing, including anti-discrimination regulations governing all HUD assistance programs. 24 C.F.R. §§ 1.1, et seq.; §§ 2.1, et seq.; regulations allowing administrative complaints from persons who claim to have been injured by discriminatory housing practices, 24 C.F.R. §§ 105.1, et seq.; §§ 200.300, et seq.: site selection regulations, 24 C.F.R. §§ 200.700, et seq.; § 800.209; § 880.206; tenant selection regulations, 24 C.F.R. §§ 860.203, 880.603; and affirmative marketing regulations, 24 C.F.R. §§ 108.05, et seq.; §§ 200.600, et seq. The agency implements these regulations primarily by way of Title VI compliance reviews and Title VI/Title VIII complaint investigations.

With respect to the THA, HUD has conducted several reviews and investigations over the past several years. During the most recent review, completed in August 1978, HUD found THA to be in noncompliance with Title VI because of its racially segregated projects, its tenant assignment practices and its failure to appoint a black person to its Board of Commissioners. (R. 4-5) As a result of that finding, THA entered into a compliance agreement with the agency to rectify those shortcomings. (R. 33-34; 26-32) The Housing Authority also agreed to submit to periodic reports to HUD detailing its progress in implementing the compliance agreement. (R. 33)

Because THA failed to submit those periodic reports, HUD conducted a follow-up review in September 1979. (R. 346-348) Although that review indicated that THA was making some progress in carrying out the compliance agreement (R. 409), HUD ultimately determined that the housing projects were still being administered in noncompliance with Title VI. (R. 410-412) THA then submitted updated data which it contended demonstrated a good faith effort to implement the compliance agreement. (R. 413-422)

Two weeks later, HUD conducted another on-site review. (R. 425-518) The results of that review were communicated to HUD's Assistant Secretary for Fair Housing and Equal Employment Opportunity who, in turn, indicated that if voluntary compliance was not secured from THA, the Department would initiate enforcement by way of realignment as a party plaintiff in this case. (R. 423) However, HUD does not have authority to bring affirmative suits under either Title VI or Title VIII. Only the Civil Rights Division of the Justice Department has such authority. 42 U.S.C. § 3613; 28 C.F.R. §§ 0.50(a), 0.51(b).

HUD has attempted in other ways to promote policies of nondiscrimination and fair housing with respect to the City of Texarkana. On August 25, 1978, HUD advised the Mayor of Texarkana that the City was ineligible to participate in the Urban Development Action Grant (UDAG) Program because it failed to provide fair housing to its citizens, especially in the THA's housing projects (on the same date that HUD advised THA that it was in noncompliance with Title VI. (R. 4, 5) HUD recommended, inter alia, the following course of action:

The City should initiate actions which it deems appropriate against the local Housing Authority in order to make some progress in the area of Equal Opportunity in housing, and to insure that the housing authority is operated in accordance with Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968. (R. 10)

A year later, HUD again declared the City ineligible to apply for UDAG funds because of the Housing Authority's continued failure to provide equal housing opportunities to minorities. (R. 408)

In addition to the 1978-1980 Title compliance reviews of THA and the denials of UDAG eligibility to the City of Texarkana, HUD recently investigated a Title VIII complaint from a Housing Authority tenant. (R. 519-622) Upon completing the investigation, HUD conciliated the complaint in March 1979 to the satisfaction of the tenant. (R. 631-633)

Before 1978, HUD has undertaken several compliance reviews and complaint investigations of THA. The first compliance review occurred in May 1969 and resulted in a finding of noncompliance. Numerous deficiencies were listed and corrective recommendations were outlined by HUD officials to the Housing Authority. (R. 902-909) Subsequently, "agreement was reached between HUD and THA on all points of correction." (R. 908) According to subsequent correspondence in the administrative record filed with the Court, the Executive Director of THA sent HUD a letter on July 23, 1969, in which he indicated that the Housing Authority would comply with the recommendations outlined by the agency. (R. 773)

In January 1971, HUD received a complaint from a resident of Texarkana alleging, inter alia, that the Housing Authority was assigning units on the basis of race. (R. 756; 761-768; 770-771) Three weeks later, the agency conducted an investigation that substantiated these charges. (R. 773, 774; 777-782) HUD promptly notified THA that it was in noncompliance with Title VI and applicable HUD regulations. (R. 773-776) The agency also indicated that failure to effectuate compliance would jeopardize future contractual agreements with respect to two additional housing projects and a modernization program for an existing project. (R. 774, 776, 791)

Shortly after receiving that notice of noncompliance, THA passed a resolution directing its Executive Director "to immediately implement the recommendations" outlined by HUD. (R. 783-788) HUD then conducted an on-site review which revealed that full compliance had not yet been achieved. (R. 804, 805) Nonetheless, because THA had begun "to implement some of the procedures necessary for compliance with Title VI" (R. 802) and because HUD officials "did not want to continue withholding funds which would materially improve the community," (R. 799), the agency approved contracts for the construction of two more projects and modernization of Ozan Courts, an existing, all-black project. (R. 806, 846)

Subsequently, HUD conducted another on-site review, and the Authority was again found to be in noncompliance. HUD decided, however, to delay further action until the modernization of Ozan Courts was underway, for it viewed this project as an opportunity for THA to integrate the existing units. (R. 809; 4)

In January 1973, HUD conducted a third follow-up compliance review and found that the Housing Authority still had not achieved full compliance with Title VI. (R. 813-815) HUD's Regional Office recommended that any nonmandatory financial assistance to THA be deferred until the agency was able to secure compliance from the Housing Authority. (R. 820)

Shortly thereafter, THA applied for additional funds to complete its continuing...