Detroit Housing Commission v. Lewis

• Decision Date: 05 October 1955
• Docket Number: No. 12305.,12305.
• Citation: 226 F.2d 180
• Parties: The DETROIT HOUSING COMMISSION, a duly authorized Department of the City of Detroit, Finlay C. Allen, President, Mary M. Streit, Vice-President, Walter J. Gessel, George A. Isabel and James H. Quello, Members; and Harry J. Durbin, Director-Secretary of the Detroit Housing Commission, Appellants, v. Walter Arthur LEWIS et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

226 F.2d 180 (1955)

The DETROIT HOUSING COMMISSION, a duly authorized Department of the City of Detroit, Finlay C. Allen, President, Mary M. Streit, Vice-President, Walter J. Gessel, George A. Isabel and James H. Quello, Members; and Harry J. Durbin, Director-Secretary of the Detroit Housing Commission, Appellants, v. Walter Arthur LEWIS et al., Appellees.

No. 12305.

United States Court of Appeals Sixth Circuit.

October 5, 1955.

Vance Ingalls, Detroit, Mich. (Paul T. Dwyer, Helen W. Miller, Detroit, Mich., on the brief), for appellants.

Constance Baker Motley, New York City (Willis M. Graves, Francis M. Dent, Detroit, Mich., Thurgood Marshall, New York City, on the brief), for appellees.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from a judgment of the District Court issuing a permanent injunction against The Detroit Housing Commission, its members, and Director-Secretary, in an action attacking racial segregation as claimed to be practiced in public housing projects carried on in Detroit by defendants.¹ The action prayed for a declaratory judgment that the policy, custom and usage of the defendants in refusing to lease to qualified Negro applicants certain units of public housing, solely because of the race and color of such applicants, and of segregating tenants into projects on the basis of race or color is in violation of the Constitution and laws of the United States. The case was tried upon a stipulation of facts, the pertinent parts of which are printed in the margin.²

The District Court found:

"That the regulation, policy, custom, usage, conduct and practice of the defendants in refusing to lease to plaintiffs, and other eligible Negro applicants similarly situated, certain units of public housing under their administration, control and management in accordance with a strict policy of racial segregation, is a violation of the Constitution and laws of the United States, particularly the Fourteenth Amendment to the Constitution of the United States and Title 8, Sections 41 and 42 of the United States Code.^*

"That the resolution of the Detroit Housing Commission adopted September 26, 1952, has not in fact ended the discrimination against the plaintiffs and members of their class, and that such discrimination on the basis of race and color in housing facilities under the auspices of public funds, local or federal, is in violation of the Fourteenth Amendment to the Constitution of the United States and Title 8, Sections 41 and 42 of the United States Code."

The court concluded that plaintiffs and others similarly situated for whom this class action was instituted were, by reason of the segregation complained of, deprived of the equal protection of the laws as guaranteed by the Fourteenth Amendment. Defendants, their agents, employees, representatives and successors, were permanently enjoined from:

"1. Denying the plaintiffs, and members of the class which the plaintiffs represent, the right to lease any unit in any public housing project solely because of the race and color of the plaintiffs and members of the class which plaintiffs represent.

"2. Maintaining separate lists of eligible Negro and white applicants for public housing.

"3. Maintaining racially segregated public housing projects."

Defendants contend (1) that the present policy and practices of The Detroit Housing Commission in allotting units in public housing do not violate the Fourteenth Amendment to the Constitution and Title 8 U.S.C. Sections 41, 42 and 43.^*

We think the court is clearly right in its conclusion that the claimed discrimination by The Detroit Housing Commission against plaintiffs and members of their class on the basis of race and color still exists. As shown by the stipulation as of May 31, 1950, the eligible pool of colored applicants for public housing included more than twice as many Negro as white families, and as of April, 1954, the eligible pool included more than twenty times as many Negro as white families. Meanwhile, the vacancies in public housing projects limited to white occupancy were seventeen times as many as those in public housing projects limited to Negro occupancy, there being on the date of the last official report of the Commission 51 vacancies in white and 3 vacancies in Negro projects. It also is conceded that separate lists of eligible Negro and white families are maintained, for the purpose of making the allotments.

While the recent decisions of the Supreme Court of the United States in the 4 education cases, Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and 349 U.S. 294, 75 S.Ct. 753, in principle support the conclusion of the District Court that the practices of The Detroit Housing Commission violate the Fourteenth Amendment and the cited sections of the United States Code, plaintiffs' rights are not based solely upon education decisions. They have long been established in the adjudications of the Supreme Court and of the lower federal courts. Here plaintiffs are denied the right to lease housing facilities provided by public funds under conditions equal to those imposed upon applicants from white families. In Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16, 62 L.Ed. 149, decided in 1917, the Supreme Court considered an ordinance of the City of Louisville which forbade the occupation by a Negro of a residence in a block where the greater number of residences were occupied by white persons. The Supreme Court pointed out that this interdiction was based "wholly upon color; simply that and nothing more", 245 U.S. at page 73, 38 S.Ct. at page 18, and held that the occupancy and, necessarily, the purchase and sale of property of which occupancy is an incident cannot be inhibited by the State or one of its municipalities, solely because of the color of the proposed occupant of the premises. As the Supreme Court said, 245 U.S. at page 77, 38 S.Ct. at page 19, with reference to the Fourteenth Amendment:

"`What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?\'"

This decision was followed without opinion in Harmon v. Tyler, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, and in City of Richmond v. Deans, 281 U.S. 704, 50 S. Ct. 407, 74 L.Ed. 1128. In Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L. Ed. 1161, decided in 1948, the Supreme Court held that private agreements to exclude persons of a designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment. But the court declared that it is a violation of the equal protection clause of the Fourteenth Amendment for the state courts to enforce such agreements. To the same effect is Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, decided in 1953. See also Dawson v. Mayor, 4 Cir., 220 F.2d 386, which holds that the ruling of Brown v. Board of Education of Topeka, supra, should be extended to public recreation.

On this appeal, defendants do not urge a reversal of the finding of the District Court that the "separate but equal" doctrine has no place in public housing and constitutes a deprivation of constitutional rights. Nor do they urge a continuation of the doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, in connection with public housing. They state that they will not operate their facilities under any such doctrine or practice which has been disapproved with reference to public education in Brown v. Board of Education of Topeka, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873. Their appeal is based on the contention that they should be given sufficient time within which to complete orderly and peaceful integration, and that the District Court erred in requiring them to integrate forthwith every public housing unit. Plaintiffs contend that the judgment of the District Court is not a forthwith order. We do not so construe it. If the stay ordered by this court had not intervened, the Housing Commission would have been required in obedience to the judgment to cease maintaining separate lists of eligible Negro and white applicants for public housing, to cease maintaining segregated public housing projects, and to cease denying plaintiffs and members of the class which they represent the right to lease any unit in any public housing project solely because of race or color. However, the judgment ordered a gradual and not an immediate change in occupancy of the housing units.

The complaint herein was filed on June 5, 1950, pretrial hearings were held in 1951, and after various continuances the case was heard on June 22, 1954, the judgment being entered on that day. Due to the pendency of the proceedings in this court there has been another appropriate delay in view of the possible application of Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, and the other three education cases pending in the Supreme Court of the United States. Five years have elapsed since the instant case was filed. As the Supreme Court points out in its latest pronouncement on these questions issued May 31, 1955, the local authorities must proceed in these matters "with all deliberate speed."

We bear in mind that the Supreme Court in Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S. Ct. 753, 756, recognized that "a variety of obstacles" might have to be eliminated to make the transition to a nondiscriminatory basis and that the administrative problems must be considered to secure equitable enforcement of the principles laid down therein and in the preceding opinion in the same case, 347 U. S. 483, 74 S.Ct. 686, 98 L.Ed. 873.

We also realize that the...