Schmidt v. Boston Housing Authority, Civ. A. No. 79-917-Z.

• Citation: 505 F. Supp. 988
• Decision Date: 20 January 1981
• Docket Number: Civ. A. No. 79-917-Z.
• Parties: Emily SCHMIDT, Marie Farrenkoff, Margaret O'Leary and James Kelly, individually and as representatives of the classes herein described v. The BOSTON HOUSING AUTHORITY; Barbara A. Carpenter, in her capacity as Chairperson of The Boston Housing Authority; John J. Battas, in his capacity as Treasurer of The Boston Housing Authority; O. Philip Snowden, in his capacity as Commissioner of The Boston Housing Authority; Patrick B. Mascaritalo, in his capacity as Commissioner of The Boston Housing Authority; John F. Murphy, in his capacity as Director of Occupancy of the Boston Housing Authority.
• Court: U.S. District Court — District of Massachusetts

505 F. Supp. 988

Emily SCHMIDT, Marie Farrenkoff, Margaret O'Leary and James Kelly, individually and as representatives of the classes herein described

v.

The BOSTON HOUSING AUTHORITY; Barbara A. Carpenter, in her capacity as Chairperson of The Boston Housing Authority; John J. Battas, in his capacity as Treasurer of The Boston Housing Authority; O. Philip Snowden, in his capacity as Commissioner of The Boston Housing Authority; Patrick B. Mascaritalo, in his capacity as Commissioner of The Boston Housing Authority; John F. Murphy, in his capacity as Director of Occupancy of the Boston Housing Authority.

Civ. A. No. 79-917-Z.

United States District Court, D. Massachusetts.

January 20, 1981.

COPYRIGHT MATERIAL OMITTED

Robert Sprei and Robert Dinsmore, Boston, Mass., for plaintiffs.

Paul M. Yee and George F. Mahoney, Boston Housing Authority Legal Dept., Boston, Mass., for defendants.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

Plaintiffs in this action have brought suit alleging that defendants have violated the Civil Rights Act of 1871, 42 U.S.C. § 1983; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3604(b) and (d) as well as the Fourteenth and First Amendments to the United States Constitution. They sue on behalf of four classes of white life-long residents of South Boston who claim to be injured as a result of the Tenant Selection and Assignment Plan (hereinafter the Plan) adopted by the Boston Housing Authority (BHA) to select tenants for public housing. Class One consists of white elderly residents of South Boston who are applicants for low income housing; Class Two of white applicants for low income housing who are residents of South Boston; Class Three of white tenants who reside in low income housing in South Boston and have applied for transfer to low income housing in that community; and Class Four of leaders of the South Boston community. The defendants, Carpenter, Battas, Snowden, Mascaritalo and Murphy are sued in their official capacity as Chairperson, Treasurer, Commissioners, and Director of Occupancy of the Boston Housing Authority respectively. The defendant BHA is a public corporation created under Chapter 121B, Section 3 of the Massachusetts General Laws and authorized to select tenants pursuant to Section 32 of that chapter.

Plaintiffs allege that the Plan adopted by the BHA in 1977 and implemented in 1978 as the criterion for selecting applicants for low income housing units owned or leased by the BHA and for granting transfers to tenants of such units, has operated to deprive plaintiffs in Classes One, Two, and Three of the opportunity to rent or secure transfers to low income housing in the South Boston area because they are white and are not considered "minority preference applicants". As a consequence plaintiffs allege that they are being given the choice between moving from a neighborhood in which they have developed life-long ties while accepting housing in neighborhoods that are hostile to them, and forefeiting their place on the waiting list for low income housing. They allege that this violates their constitutional and statutory rights.

As a result of the operation of the Plan on the members of Classes One, Two and Three, the members of Class Four allege that they would be deprived of the companionship and association provided by the members of Classes One, Two, and Three in violation of their First Amendment rights.

Plaintiffs seek a declaration that the Plan is unconstitutional on its face and as applied to plaintiffs and all members of their respective classes and violates federal law; an injunction restraining these defendants from using the Plan to select applicants and transfers for low income housing in the City of Boston; an injunction restraining defendants from denying units to persons prejudiced by the enforcement of the Plan; and damages for the members of Classes One, Two, and Three for injury caused by the use of the Plan by the defendants, their agents or servants, in selecting applicants or transfers. This matter is before this Court on defendants' motion to dismiss or in the alternative for summary judgment.

The background of this litigation is provided by a state court action entitled Armando Perez, et al. v. BHA, Suffolk Superior Court No. 17222, filed in February 1975 by tenants of the BHA on behalf of themselves and others similarly situated in which the plaintiffs sought to correct alleged widespread violations of the State Sanitary Code in the housing developments owned or operated by the BHA. Pursuant to a state court finding of racial segregation in BHA's developments, Judge Paul Garrity of the Superior Court ordered the BHA in December of 1975 to collect data concerning the racial composition of its developments and its waiting lists; to propose revisions to its policies and procedures concerning tenant selection, assignment, and transfers to achieve a reduction of racial segregation; to develop a plan for desegregation of its developments; and to take interim steps to maintain racial balance in developments where there was a substantial racial mix and make assignments to all other developments by providing preference to applicants who would improve the racial balance of a development.

On June 1, 1977 Judge Garrity approved a consent decree, elements of which set forth the BHA's obligation to submit to the U. S. Department of Housing and Urban Development (HUD) and the state's Department of Community Affairs (DCA) a completed Tenant Selection, Assignment and Transfer Plan that had been developed pursuant to Judge Garrity's order. The Plan was subsequently submitted and approved by HUD and DCA and was implemented by BHA in June 1978. In July 1979 Judge Garrity vacated the consent decree and placed the BHA into receivership. However, the order of July 1979 directed the BHA to continue to implement the Plan.

In 1975 HUD had conducted a compliance investigation of the BHA and made a finding of violation of Title VI and HUD regulations. A compliance agreement was entered into by the BHA and HUD in November, 1977 in which the BHA agreed, among other terms, to process applications of all persons for occupancy of any dwelling unit owned or managed by the BHA in accordance with the Plan.

Essentially the Plan establishes a system of priorities for tenant assignment and selection. It accords priority to those applicants and transfer applicants who choose to be housed at a BHA development in which their race is substantially in the minority. A racial group is considered to be substantially in the minority if the percentage of tenants of that race living in one development is less than that racial group's percentage of the total number of people eligible for public housing in the City of Boston. However, white applicants are not eligible for this priority if the percentage of white tenants in a development is fifty percent or greater. Thus non-white applicants are deemed to be minority preference applicants for predominately white developments while white applicants are given priority for those developments which are predominately non-white.

Under the Plan when an applicant or transfer applicant is offered an apartment that applicant must accept within one week. If the applicant does not accept within that period his or her name is withdrawn from the waiting list unless a showing of unusual hardship is made (e. g. physical incapacity or financial hardship). The applicant may then choose to re-apply for public housing at which time his/her application will be placed at the bottom of the waiting list. The minority preference priority thus may increase the time on the waiting list for all those applicants and transfer applicants who do not choose to be minority preference applicants. As such it operates as a freedom of choice plan, providing incentives to act as a minority preference applicant without compelling such action.

Defendants contend that plaintiffs are precluded from suit under Title VI of the Civil Rights Act of 1964 because no private right of action exists for a Title VI violation. Regardless of whether such a private right of action exists defendant asserts that plaintiffs have failed to state a claim for relief under Title VI, § 1983, and the Fourteenth Amendment to the United States Constitution for failure to allege discriminatory intent. Additionally defendants contend that on the pleadings, the affidavits and the Plan itself there are no facts upon which this Court could make a finding of discriminatory effect necessary for a Title VIII violation and thus entry of summary judgment for defendants is appropriate. They further assert that plaintiffs have failed to state a First Amendment claim because no freedom of association, assembly and privacy rights have even arguably been infringed by the operation of the Plan.

I. Title VI (42 U.S.C. § 2000d), State Action (42 U.S.C. § 1983), and 14th Amendment Claims

A. Private Right of Action Under Title VI

Title VI of the Civil Rights Act of 1964, § 2000d provides that:

no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The Supreme Court has not yet decided whether a private right of action exists under Title VI. In Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) the Court left the question open (4 Justices explicitly finding a private right of action; 4 Justices assuming without deciding; 1 Justice finding no private right of action). However, in the more recent decision of Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) the Court strongly implied in dictum that a private right of action exists under Title VI and found a private...