Hicks v. Weaver, Civ. A. No. 68-986

• Decision Date: 10 September 1969
• Docket Number: 68-987.,Civ. A. No. 68-986
• Parties: Robert HICKS and Leon E. Rayford v. Robert C. WEAVER, in his capacity as Secretary of the United States Department of Housing and Urban Development. Robert HICKS and Leon E. Rayford v. Charles M. HUGHES, in his capacity as Chairman of the Board of Commissioners of the Housing Authority of the City of Bogalusa, and the Housing Authority of the City of Bogalusa.
• Court: U.S. District Court — Eastern District of Louisiana

302 F. Supp. 619

Robert HICKS and Leon E. Rayford v. Robert C. WEAVER, in his capacity as Secretary of the United States Department of Housing and Urban Development.

Robert HICKS and Leon E. Rayford v. Charles M. HUGHES, in his capacity as Chairman of the Board of Commissioners of the Housing Authority of the City of Bogalusa, and the Housing Authority of the City of Bogalusa.

Civ. A. Nos. 68-986, 68-987.

United States District Court E. D. Louisiana, New Orleans Division.

June 2, 1969.

Supplemental Order September 10, 1969.

Richard B. Sobol, Rita Murphy, Robert P. Roberts, New Orleans, La., for plaintiffs.

Hugh Fleischer, Dept. of Justice, Washington, D. C., for Robert C. Weaver.

John Gallaspy, Bogalusa, La., for Charles M. Hughes and The Housing Authority of City of Bogalusa.

Ernest R. Duff, Columbia, Miss., for Marvin L. Polk, d/b/a Polk Const. Co.

HEEBE, District Judge:

These suits were brought by Robert Hicks and Leon E. Rayford, Negro residents of Bogalusa, Louisiana, in their own behalf and on behalf of all other Negro residents of Bogalusa, seeking to prevent the construction of federally assisted low-rent public housing at various sites in the City of Bogalusa on the ground that the sites selected for the construction would perpetuate segregation in public housing, thus resulting in discrimination against the plaintiffs and all other members of the class they represent. One suit, invoking the jurisdiction of this Court under 28 U.S.C. §§ 1331, 1343(3), was filed against Charles Hughes in his capacity as Chairman of the Board of Commissioners of the Bogalusa Housing Authority (BHA) and the BHA. It seeks a declaratory judgment that the location of the housing project in racially segregated neighborhoods, where other locations for the construction of such housing are available, violates § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, as well as the due process and equal protection clauses of the Fourteenth Amendment, and prays for injunctive relief. The other suit, with jurisdiction based on 28 U.S.C. §§ 1331, 1343(4), 1346, 1361, was brought against Robert Weaver¹ as Secretary of the United States Department of Housing and Urban Development (HUD). It seeks a declaratory judgment that federal assistance to public housing units located in racially segregated neighborhoods or planned without the significant participation by minority group representatives violates § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and the due process clause of the Fifth Amendment, and prays for injunctive relief.

(1) Class Action. One of the plaintiffs, Robert Hicks, owns his own home and earns too much money to be eligible for low-rent public housing in Bogalusa. He is thus not within the class of persons subject to discrimination in public housing in Bogalusa and lacks standing to maintain this suit. See Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). However, the other plaintiff, Leon Rayford, is eligible for low-rent public housing in Bogalusa. His representation of the class satisfies the requirements of F.R.Civ.P. 23(a) and (b) (2). The BHA points out, however, that Rayford and his family were offered a vacancy in a low-rent housing unit located in an all-white area and that he refused it.² The BHA argues that because of Rayford's refusal to occupy the vacancy offered to him, he is not a proper member of the class and cannot maintain this action. We disagree.

The discrimination which this suit seeks to alleviate does not involve the assignment of tenants. If it did, then the BHA's argument would carry strong weight, because Rayford would hardly be in a position to claim that he was refused occupancy in a project occupied by whites solely because of his race. Rather, this suit seeks to alleviate discrimination in the location of the sites for the housing project. As a prospective tenant, Rayford has the same interest in this issue as any other Negro eligible for low-rent public housing in Bogalusa. Nor does it matter, as far as this claim is concerned, that Rayford could have obtained occupancy in a white project, for even those already occupying public housing projects have the right to freedom from discrimination in the location of sites. As stated by Gautreaux v. Chicago Housing Authority, 265 F. Supp. 582 (N.D.Ill.1967); 296 F.Supp. 907 (N.D.Ill.1969):

"Plaintiffs, as present and future users of the system, have the right * * * to have sites selected for public housing projects without regard to the racial composition of either the surrounding neighborhood or of the projects themselves." (emphasis added) 265 F.Supp. 582 at 583.

We cannot deny the status of Rayford to maintain this suit, in which he has a clear interest, as a class action merely because he would be an improper person to maintain a suit on some different claim. The class, of course, includes all Negroes in Bogalusa who reside in federally-assisted low-rent public housing or who are eligible therefor.

(2) Merits. The vast majority of Negroes in Bogalusa live in two neighborhoods — the so-called Poplas Quarter in northeast Bogalusa, which is totally Negro, and a portion of southeast Bogalusa, which is overwhelmingly Negro. The portion of Bogalusa west of Columbia Road is predominantly white. Six public housing projects are presently in existence in Bogalusa. Two of these projects, containing a total of 140 units, are located in the predominantly white area of Bogalusa west of Columbia Road and are occupied solely by white persons. The other four projects, with a total of 200 units, are located in the Negro areas of Bogalusa — two of the projects are located in the Poplas Quarter and two are located in the Negro section of southeast Bogalusa. These four projects are occupied solely by Negroes. In 1963 the BHA made a determination to construct 100 additional low-cost housing units. The BHA's decision to construct additional low-cost housing units was motivated, in part, by a prior decision of a large manufacturing corporation in Bogalusa to destroy the large number of dwellings the corporation had formerly rented to Negroes. The additional 100 housing units were planned for Negro occupancy, and the BHA considered sites only in Negro neighborhoods. The sites for the proposed project were selected between June and September 1963. Since the original selection of the sites, two of the proposed 100 units were abandoned, but the sites on which the BHA now proposes to construct the 98 units are the same sites that were selected in 1963 and approved by HUD shortly thereafter. There have been no additions and no changes in the sites. All of the proposed 98 units would be built in the Negro sections of Bogalusa. Fifty-two units would be built in the Poplas Quarter and 46 would be built in the Negro section of southeast Bogalusa.

The BHA was established in 1948 or 1949. It is composed of five members, all of whom are appointed by the Mayor of Bogalusa. No Negro has ever been a member of the BHA in its twenty-year history. All of the employees of the BHA, other than maintenance men, are white. No Negro citizen of Bogalusa was called upon to advise or consult with the BHA on the question whether the Negro community wanted additional public housing to be built for Negroes, or the question whether such housing should be located in all-Negro neighborhoods, or the question of the selection of particular sites, or any other aspect of the program.

On May 16, 1963, the Public Housing Administration ("PHA," a predecessor agency to HUD) approved a "reservation" for the BHA of 100 low-rent dwelling units to be financed under the U. S. Housing Act of 1937. On November 23, 1964, a Mr. Tedman, representing the PHA, visited Bogalusa to inspect the sites that had been selected by the local authorities for the construction of the new units. It was made "absolutely" clear to Mr. Tedman that all of the proposed sites were in all-Negro neighborhoods. Previously, the PHA had been informed by the BHA that the proposed units were planned for Negro occupancy. Beginning with its approval of the original "reservation," and continuing up until the time of the institution of this suit, officials of HUD or predecessor agencies directed every detail of the development and construction of the proposed units, even down to the question of the location of the plumbing fixtures in the kitchens of the proposed units. The approval of federal officials was required at every step.

In a series of interpretations, and with increasing clarity and vigor, HUD has indicated that Title VI of the Civil Rights Act of 1964 forbids the construction of federally-financed public housing in all-Negro neighborhoods in the absence of a clear showing that no other acceptable sites are available. Its most recent interpretation provides as follows:

"The aim of a Local Authority in carrying out its responsibility for site selection should be to select from among sites which are acceptable under the other criteria of this Section those which will afford the greatest opportunity for inclusion of eligible applicants of all groups regardless of race, color, creed, or national origin, thereby affording members of minority groups an opportunity to locate outside of areas of concentration of their own minority group. Any proposal to locate housing only in areas of racial concentration will be prima facie unacceptable and will be returned to the Local Authority for further consideration and submission of either (1) alternative or additional sites in other areas so as to provide more balanced distribution of the proposed housing or (2) a clear showing, factually substantiated, that no acceptable sites are available outside the areas of racial concentration." (emphasis added) Low-Rent Housing Manual, § 205.1 ¶ 4(g), (February 1967 Revision).

As HUD is the administrative agency charged with the interpretation and enforcement of Title VI in the housing area, its interpretation is...