Young v. Pierce, P-80-8-CA.

Decision Date01 July 1982
Docket NumberNo. P-80-8-CA.,P-80-8-CA.
PartiesLucille YOUNG, et al. v. Samuel PIERCE, Jr., Secretary of the Department of Housing and Urban Development, et al.
CourtU.S. District Court — Eastern District of Texas

COPYRIGHT MATERIAL OMITTED

Elizabeth Julian, East Texas Legal Services, Dallas, Tex., for plaintiffs.

William J. Cornelius, Jr., Asst. U. S. Atty., Tyler, Tex., Christine Nicholson, Dept. of Justice, Washington, D. C., for defendants.

ORDER

JUSTICE, Chief Judge.

The above-styled civil action is brought by Lucille Young, Virginia Wyatt and Helen Ruth Jackson, charging that the United States Department of Housing and Urban Development (HUD) and certain local housing authorities in East Texas have, through policy and practice, maintained racially segregated housing in violation of the Constitution and laws of the United States. Plaintiffs Young and Wyatt are residents of Clarksville, Texas; plaintiff Jackson is a resident of Pittsburg, Texas. The three plaintiffs, all black, are applicants for public housing programs1 in the areas of their residence. Defendants are the Secretary of HUD, the Regional Administrator of HUD responsible for the public housing programs in the relevant areas of East Texas, the Housing Authority of Clarksville and its Executive Director, and the Housing Authority of Pittsburg.

Plaintiffs claim that HUD has knowingly acquiesced in the racially discriminatory housing practices of local housing authorities in East Texas. They allege that this complicity violates the affirmative duty, incumbent on HUD as a result of certain statutes and regulations, and the United States Constitution as well, to eliminate financial participation by the federal government in illegal racial discrimination. Specifically, plaintiffs bring their action against HUD under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., the Civil Rights Act of 1871, 42 U.S.C. §§ 1981 and 1982, and the Fifth Amendment to the United States Constitution. The suit against the Housing Authorities of Clarksville and Pittsburg includes claims under 42 U.S.C. § 1983, but does not include the constitutional claim.

This civil action was filed as a class action. Plaintiffs seek to represent a class of black applicants for, and residents of, HUD-assisted housing in thirty-six East Texas counties.2 HUD strenuously opposes the certification of such a class. In addition to disputing the propriety of certifying this action as a class action pursuant to Rule 23, F.R.Civ.P., defendant HUD has raised a variety of questions which logically precede the Rule 23 inquiry. Specifically, defendant contends, first, that plaintiffs do not have a cause of action against HUD under Title VI. Second, defendant argues that plaintiffs have standing only to bring suit against the local housing authorities which allegedly have denied them housing on the basis of race. HUD first advanced its standing contention in a motion to dismiss filed May 6, 1980. This motion was denied on May 13, 1980. Shortly thereafter, HUD filed a Motion for Reconsideration of this order, in which it elaborated on its thesis that plaintiffs lack standing to challenge HUD's practices in East Texas. In addition, HUD has filed three lengthy briefs challenging the standing of plaintiffs, as well as the maintainability of this action as a class action. A hearing on the issue of class certification was held on October 30, 1981. In the course of the hearing, the parties adduced evidence concerning the Rule 23 requirements for class certification; additionally, the parties orally argued the threshold questions of the existence of a cause of action under Title VI and the standing of plaintiffs to bring suit against HUD.

In the course of the hearing and the parties' subsequent submissions in this matter, the issues of justiciability and standing have been blended with the questions of class certification. In complex actions such as this, this coalescence is understandable. Nonetheless, the issues are distinct and must be analyzed separately. Accordingly, the threshold issues of private right of action and standing will be addressed before the requirements of Rule 23.

I. PLAINTIFFS' CAUSES OF ACTION
A. Title VI, Civil Rights Act of 1964.

Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:

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

Title VI further creates an administrative mechanism, by which federal funding agencies are required to implement this plain principle of equality. The Act directs each federal funding agency to effectuate the provisions of § 2000d, by issuing rules, regulations, or orders of general applicability which are consistent with the underlying statute authorizing federal financial assistance. 42 U.S.C. § 2000d-1. Under § 2000d-1, federal agencies are authorized to implement the non-discrimination policy of Title VI.

by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding ... of a failure to comply with the requirement of non-discrimination.

Further, § 2000d-1 sets forth the procedure by which such funding termination may be accomplished.

It has been clearly held that § 2000d creates a private right of action against recipients of federal funding who do not comply with the underlying principle of equality. Bossier Parish School Board v. Lemon, 370 F.2d 847, 852 (5th Cir. 1967). See Cannon v. University of Chicago, 441 U.S. 677, 696 & nn.20, 21, 99 S.Ct. 1946, 1957 & nn. 20, 21, 60 L.Ed.2d 560 (1979). Thus, in this civil action, it is unquestioned that plaintiffs have a valid cause of action, implied under § 2000d, against the local housing authorities which receive federal financial assistance. However, HUD argues that Title VI contemplates a dual enforcement mechanism by which the egalitarian goals of § 2000d are to be effected: (1) private suits against recipients of federal largesse; (2) the compliance processes codified in § 2000d-1, including, ultimately, the sanction of funding termination. Under this view, the two modes of enforcement are wholly separate; i.e., private individuals are not permitted to interfere, in any manner, with the federal agency's enforcement proceedings; on the other hand, a suit by a private litigant challenging allegedly discriminatory conduct on the part of a local recipient of federal grant funds is not barred by agency actions directed toward federal de-funding.

This dichotomous view has received the imprimatur of two federal courts. NAACP v. Medical Center, Inc., 599 F.2d 1247 (3rd Cir. 1979); Community Brotherhood of Lynn, Inc. v. Lynn Redevelopment Authority, 523 F.Supp. 779 (D.Mass.1981). Neither of these holdings is particularly persuasive. The finding of the Third Circuit concerning private right of action under § 2000d is relegated to a footnote, the internal logic of which is open to question. 599 F.2d at 1254, n. 27. (The conclusion "that the beneficiary may not sue the administrative agency under § 2000d" does not, in any sense, "follow" from the previous premises set forth in the footnote, nor is it implicit in the Supreme Court's decision in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1977), cited as the dispositive authority for the entire discussion.3) The holding of the district court in Community Brotherhood similarly hails Cannon as mandating the conclusion that no private right of action exists under § 2000d. The court quoted at length from the problematic footnote in NAACP v. Medical Center, Inc., and added little more than its assent. 523 F.Supp. at 781-82.

Both the court in Community Brotherhood, and HUD cite Davis v. Ball Memorial Hospital Ass'n, 640 F.2d 30 (7th Cir. 1980), for further support. Davis holds that no private right of action against the federal funding agency exists under the Hill-Burton Act. 42 U.S.C. § 291 et seq. The opinion in Davis will not bear the weight of this reliance. The holding is highly conclusory in its logic, is tied closely to the particular facts of that action, and does not implicate the powerful governmental proscription of race-based discrimination.

Similarly, HUD's reference to the holding in Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), is not persuasive. First, the decision in Camenisch has been vacated. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (question of whether preliminary injunction should have been issued was moot). Second, the court's discussion of a private right of action against a federal agency took place in the context of an individual plaintiff's attempt to secure immediate relief for alleged discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In such a situation, the court properly concluded that "a complete cut-off of federal funds to the institution was an inappropriate result for an individual complainant." 616 F.2d at 135, citing Cannon, 441 U.S. at 706, n. 41, 99 S.Ct. at 1962, n.41. The logic behind this holding is simple: in Camenisch, the plaintiff's complaint was a single complaint against the University of Texas, for failure to comply with the provisions of the Rehabilitation Act. He did not claim that HEW had systematically failed to enforce the provisions of the act, or that it had knowingly acquiesced in ongoing non-compliance by one or more recipient institutions. In view of the limited scope of the plaintiff's complaint and the restricted nature of the remedy he sought, the court properly concluded that the administrative processes for enforcement by HEW of the terms of...

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