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TRANSCRIPT
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND
CARMEN THOMPSON, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OFHOUSING AND URBANDEVELOPMENT, et al.,
Defendants.
Civil Action No. MJG-95-309
PLAINTIFFS’ POST-TRIAL REPLY BRIEF
Peter BuscemiE. Andrew SoutherlingEdward S. KeefeDavid M. KerrHarvey Bartle, IVJason G. BenionJennifer A. BowenMORGAN, LEWIS & BOCKIUS LLP1111 Pennsylvania Avenue, NWWashington, D.C. 20004202-739-3000
Barbara Samuels, Bar No. 08681ACLU FOUNDATION OF MARYLAND3600 Clipper Mill Road, Suite 350Baltimore, MD 21211410-889-8555
Theodore M. Shaw, Director-CounselRobert H. StroupMelissa S. WoodsMatthew ColangeloMelanca D. ClarkNAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.99 Hudson St., 16th FloorNew York, NY 10013212-965-2200
Andrew D. Freeman, Bar No. 03867BROWN, GOLDSTEIN & LEVY, LLP120 E. Baltimore Street, Suite 1700Baltimore, MD 21202410-962-1030
Attorneys for Plaintiffs
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TABLE OF CONTENTS
OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. HUD Has Violated the Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. HUD Has Violated the Fair Housing Act’s Requirement That HUD Further FairHousing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Duty to Further Fair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. HUD’s Actions and Failures to Act Fall Far Short of its Statutory Duty toFurther Fair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. HUD Has Not Met its Statutory Obligations Through Productionof Hard Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. The Section 8 Voucher Program Has Failed to Promote RegionalFair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. HUD’s Block Grant Funding Programs Have Not Been Used toPromote Regional Fair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. HUD’s FHEO Office Has Made No Meaningful Contribution toFurthering Fair Housing During the Open Period . . . . . . . . . . . . . . . . . . 14
C. The Court’s Finding of § 3608(e)(5) Liability Should Stand . . . . . . . . . . . . . . . 17
III. This Court Should Order the Relief Contained in Plaintiffs’ Proposed Order . . . . . . . . 18
A. Broad Injunctive Relief Is a Necessary and Proper Remedy for HUD’sFailure to Correct the Harms Caused by its Prior Racial Discrimination . . . . . . 18
1. HUD’s No-Remedy Argument Has No Support in the Law . . . . . . . . . . 18
2. Burford Abstention Does Not Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Plaintiffs’ Proposed Order Is an Appropriate Remedy for HUD’sConstitutional and Statutory Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Plaintiffs’ Remedy Is Not Only Consistent With But DirectlyAdvances National Housing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2. Housing Segregation Is Not Too Complex for Judicial Resolution . . . . . 26
ii
3. HUD’s Criticisms of Plaintiffs’ Opportunity Approach Are Invalid . . . . 28
4. The Proposed Remedy Expands Plaintiffs’ Choices . . . . . . . . . . . . . . . . 31
5. HUD Has Both the Authority and the Ability to Use its LeverageOver Grant Programs in the Service of a Remedy . . . . . . . . . . . . . . . . . . 36
6. Hard Units Are an Appropriate Component of the DesegregationRemedy in this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7. The Possibility That a Remedy Will Cost Money to Implement Is Not aBarrier to Ordering Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8. The Remedy Is Appropriately Deferential to HUD’s Discretion . . . . . . . 46
9. HUD Ignores the Central Goal of a Desegregation Remedy, WhichIs to Redress Unconstitutional, Race-Based Harm . . . . . . . . . . . . . . . . . 49
C. HUD’s Post-Trial Brief Is Rife With Inconsistencies . . . . . . . . . . . . . . . . . . . . . 49
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
iii
TABLE OF AUTHORITIES
FEDERAL CASES
Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35
Bolling v. Sharpe, 347 U.S. 497 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 45
Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) (Brown II) . . . . . . . . 12, 26-27, 47
Burford v. Sun Oil Co., 319 U.S. 315 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23
Califano v. Westcott, 443 U.S. 76 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Clients’ Council v. Pierce, 711 F.2d 1406 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Colorado River Water Conservation District v. United States,424 U.S. 800 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
Columbus Board of Education v. Penick, 443 U.S. 449 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Darst-Webbe Tenant Association Board v. St. Louis Housing Authority,417 F.3d 898 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8
Darst-Webbe Tenant Association Board v. St. Louis Housing Authority,339 F.3d 702 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Davis v. School Commissioners of Mobile County, 402 U.S. 33 (1971) . . . . . . . . . . . . . 18-19, 24
Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Freeman v. Pitts, 503 U.S. 467 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5, 27
Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Green v. County School Board of New Kent County,391 U.S. 430 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12, 19, 26-27
Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30
Hills v. Gautreaux, 425 U.S. 284 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19-21, 25, 36-40
Holmes v. New York City Housing Authority,398 F.2d 262 (2d Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
iv
Holton v. City of Thomasville School District,425 F.3d 1325 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Johnson v. Collins Entertainment Co., 199 F.3d 710 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 23
Keyes v. School District No. 1, 413 U.S. 189 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Louisiana v. United States, 380 U.S. 145 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
Marable v. Walker, 704 F.2d 1219 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19
McNeese v. Board of Education, 373 U.S. 668 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Milliken v. Bradley, 418 U.S. 717 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 33
Monroe v. Board of Commissioners, 391 U.S. 450 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
NAACP v. A.A. Arms, Inc., 2003 WL 1049011 (E.D.N.Y. Feb. 24, 2003) . . . . . . . . . . . . . . . . . 45
NAACP v. HUD, 817 F.2d 149 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 6-8, 17, 19, 37, 47
NAACP v. Kemp, 721 F. Supp. 361 (D. Mass. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 47
National Association of Regional Councils v. Costle,564 F.2d 583 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
New Orleans Public Service, Inc. v. Council of New Orleans,491 U.S. 350 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
North Carolina State Board of Education v. Swann,402 U.S. 43 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373 (2004) . . . . . . . . . . . . . . . . . . . . 7
NRDC v. Rodgers, 2005 WL 1388671 (E.D. Cal. June 9, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 49
Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) . . . . . . . . . . . . . . . . . . . . . 43
Otero v. New York City Housing Authority,484 F.2d 1122 (2d Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
v
Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976) . . . . . . . . . . . . . . . . . . . . . 4
Pomponio v. Fauquier County Board of Supervisors,21 F.3d 1319 (4th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Raney v. Board of Education, 391 U.S. 443 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
School Board of City of Richmond v. Baliles,829 F.2d 1308 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 37, 48-49
Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Swann v. Charlotte-Mecklenberg Board of Education,402 U.S. 1 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19
Thompson v. HUD, 404 F.3d 821 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Thompson v. HUD, 2006 WL 581260,(D. Md. Jan. 10, 2006) (Summary Judgment Order) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
Thompson v. HUD, 348 F. Supp. 2d 398 (D. Md. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Thompson v. HUD, 2001 WL 1636517 (D. Md. Dec. 12, 2001)(Report and Recommendation) (Grimm, M.J.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Thompson v. HUD, Order Certifying Class & ApprovingPartial Consent Decree (June 25, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
United States v. City of Parma, Ohio, 661 F.2d 562 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Fordice, 505 U.S. 717 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. HUD, 239 F.3d 211 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Paradise, 480 U.S. 149 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30
Walker v. City of Mesquite, 402 F.3d 532 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Walker v. County School Board, 413 F.2d 53 (4th Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Walker v. HUD, No. 3:85-CV-1210-R (N.D. Tex. Dec. 5, 1997)(Modified Remedial Order Affecting HUD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 39, 47
White v. Mathews, 559 F.2d 852 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
vi
Young v. Cisneros, No. P-80-8-CA(E.D. Tex. Mar. 30, 1995) (Final Judgment and Decree) . . . . . . . . . . . . . . . . . . . . . . . . 47
Young v. Pierce, 685 F. Supp. 975 (E.D. Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Young v. Pierce, 685 F. Supp. 986 (E.D. Tex. 1988) (Interim Injunction) . . . . . . . . . . . . . . . . . 40
FEDERAL CONSTITUTION AND STATUTES
U.S. Const. Art. I, § 9, cl. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
42 U.S.C. § 3608(e)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
OTHER AUTHORITIES
114 Cong. Rec. 2281, 2527-28 (1968) (statement of Sen. Brooke) . . . . . . . . . . . . . . . . . . . . . . . 17
Erwin Chemerinsky, Federal Jurisdiction (4th ed. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Richard H. Fallon, Jr., Marbury and the Constitutional Mind, 91 Cal. L. Rev. 1 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3 Richard J. Pierce, Jr., Administrative Law Treatise (4th ed. 2002) . . . . . . . . . . . . . . . . . . . . . 48
Leonard S. Rubinowitz & James E. Rosenbaum, Crossing the Class andColor Lines: From Public Housing to White Suburbia (2000) . . . . . . . . . . . . . . . . . . . . 39
Peter H. Schuck, Diversity in America (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Herbert Wechsler, The Courts and the Constitution,65 Colum. L. Rev. 1001 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1
OVERVIEW
Plaintiffs have presented an irrefutable case that the vestiges of prior segregation persist
and that HUD never effectively acted to remedy them. HUD responds that it isn’t quite clear
what the “vestiges” of prior discrimination are. But the vestiges of past segregation are
straightforward: the Baltimore Region’s public housing is, as it always has been,
overwhelmingly concentrated in the poorest, blackest ghettos of East and West Baltimore.
Those locations are the continuing results of HUD’s approval of public housing sites in the
ghetto and HUD’s failure to use its leverage to create public housing in white neighborhoods.
Plaintiffs also have demonstrated, and this Court has held, that HUD failed to meet its
obligation to promote fair housing under 42 U.S.C. § 3608(e)(5). In response, HUD points only
to a grab-bag of vague, misleading, and de minimis activities that it cannot show had the effect,
or even the intended effect, of desegregating public housing in the Baltimore Region. HUD
ignores the overwhelming evidence presented at trial that “not one penny” (or at best very few
pennies) of federal housing funds in the Baltimore Region helped African-American public
housing families to live in integrated neighborhoods away from the ghettos of Baltimore City.
Plaintiffs have presented a Proposed Remedial Order that is tailored to the violations at
issue, consistent with the Court’s authority, and deferential to HUD’s discretion. HUD has
responded with unfounded assertions about the limits of this Court’s ability to vindicate
constitutional rights – assertions that would render constitutional rights unenforceable against
federal actors in all cases and that are counter to bedrock constitutional principles dating back to
Marbury v. Madison. HUD also has responded with excuses regarding HUD’s inability to
achieve desegregation – excuses that not only are incorrect but also are inconsistent with HUD’s
claims that it has not violated the law.
“Pls.’ Br.” refers to Plaintiffs’ Post-Trial Brief filed May 31, 2006, and docketed at1
Paper 817. “Fed. Defs.’ Br.” refers to Federal Defendants’ Post-Trial Brief filed May 31, 2006,and docketed at Paper 815.
2
HUD warns this Court that even if HUD has violated the Constitution and the Fair
Housing Act, the “risk of a misstep is too great” to warrant a remedial order beyond declaratory
relief. Fed. Defs.’ Br. 1, 29. The risk here is not in making a remedial misstep – equitable relief
is flexible, and this Court can retain jurisdiction over implementation of the remedy to make
practical adjustments as necessary. The risk instead is in doing nothing, thus preserving the
status quo and condemning future generations of African-American public housing residents to
the devastating, segregated conditions that have persisted for more than half a century.
The Fifth Amendment, the mandate of Brown v. Board, and the sweeping language and
goals of the Fair Housing Act are more than aspirational statements of high ideals to which HUD
may refer in word but not in deed. It is well past time for HUD to live up to these imperatives
and accomplish the desegregation of Baltimore’s public housing.
ARGUMENT
I. HUD Has Violated the Fifth Amendment.
Plaintiffs’ evidence conclusively shows that HUD participated in the creation and
operation of intentionally segregated public housing in Baltimore and that public housing
remains segregated to this day. See Pls.’ Br. 5-12. The facts presented at trial confirm what this1
Court previously has found: public housing in Baltimore was intentionally segregated in the past,
and the vestiges of that segregation persist to this day. See Thompson v. HUD, 348 F. Supp. 2d
398, 443, 461 (D. Md. 2005). This showing establishes a presumption that HUD’s prior
segregation caused the present conditions, a presumption that HUD cannot rebut. Instead of
The Fourth Circuit described the allocation of burdens in desegregation cases as “well2
established”: “It is well established that once a court has found an unlawful dual school system,the plaintiffs are entitled to the presumption that current disparities are causally related to priorsegregation, and the burden of proving otherwise rests on the defendants.” Sch. Bd. of City ofRichmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987).
3
attempting to do so, HUD presses an ill-considered argument about the allocation of burdens in
equal protection cases, an argument that flies in the face of fifty years of desegregation case law.
Plaintiffs’ showing of a prior policy of intentional segregation and de facto present
segregation creates a presumption of causation. See Freeman v. Pitts, 503 U.S. 467, 494 (1991)
(“If the unlawful de jure policy of a school system has been the cause of the racial imbalance in
school attendance, that condition must be remedied. The school district bears the burden of
showing that any current imbalance is not traceable, in a proximate way, to the prior violation.”
(emphasis added)); see also Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 200, 207-11 (1973); Swann
v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 26 (1971). HUD’s elliptical reference to2
“whichever party bears whatever burden” in Plaintiffs’ Fifth Amendment claim, see Fed. Defs.’
Br. 29, should not distract this Court from the settled allocation of burdens and the resultant
evidentiary burden HUD must meet in this case.
HUD has failed to present any evidence that supports its evidentiary burden; indeed, even
if (contrary to precedent) Plaintiffs bore the burden here, Plaintiffs would have met it. Plaintiffs
presented overwhelming evidence of HUD’s past intentional segregation. See Pls.’ Br. 5-8.
HUD never has disputed this showing, and it cannot do so. Plaintiffs also presented
overwhelming evidence of the unbroken history of segregation leading to the current segregated
conditions of African-American public housing residents. See id. at 8-12. HUD never has
disputed this showing either, and it cannot do so. HUD’s own witnesses conceded both of these
points at trial, as HUD has done on other occasions. See id. at 10. Because HUD cannot
Moreover, Prof. Fishman acknowledged at trial that he knew little about the actual3
implementation of HUD policies, in Baltimore or elsewhere. Trial Tr. 1347-51 (Fishman).
4
disprove the elements of Plaintiffs’ prima facie case, HUD must show that the present
segregation of African-American public housing residents in Baltimore is not caused by its prior
discriminatory acts.
HUD cannot meet this burden with its reference to Prof. Fishman’s cursory and
superficial testimony that HUD’s policies have changed since 1954. See Fed. Defs.’ Br. 27. The
Supreme Court requires a searching, fact-intensive demonstration of effective efforts to eliminate
racially identifiable patterns. See Freeman, 503 U.S. at 493-97; Pasadena City Bd. of Educ. v.
Spangler, 427 U.S. 424, 436-37 (1976); Jenkins v. Missouri, 122 F.3d 588, 599 (8th Cir. 1997);
see generally Pls.’ Br. 12-17. HUD made no effort to show that the policies Prof. Fishman
described were effective in desegregating Baltimore’s public housing. HUD’s brief does not3
even acknowledge (though HUD’s witnesses at trial did) the present segregated living conditions
of African-American public housing residents in Baltimore.
Citing only Prof. Fishman’s general statements and offering no evidence of effective
desegregation, HUD asserts that the public housing system in Baltimore has achieved “unitary
status.” Fed. Defs.’ Br. 27. This Court should again reject that assertion, as it did in denying
HUD’s 2005 motion for summary judgment. Thompson v. HUD, Civ. No. MJG-95-309, 2006
WL 581260, at *11-12 (D. Md. Jan. 10, 2006) (Summary Judgment Order) (“A system in
‘unitary status’ means that vestiges of past discrimination have been eliminated to the extent
practicable. This is by no means the situation in what HUD itself defines as the Baltimore
Region.” (internal citation omitted)). HUD does not and cannot show that African-American
public housing residents were ever offered a meaningful opportunity to live anywhere in the
HUD contradictorily argues on the one hand that it cannot be liable because its remedial4
obligations with regard to prior discrimination are unclear, and on the other hand that it cannotbe liable because it has met all of its remedial obligations. HUD’s Brief is riddled withinconsistent positions like this one, which Plaintiffs list in more detail in Part III.C below.
5
Baltimore Region other than in black ghettos in Baltimore City, nor does HUD argue that such
opportunities could not have been (or cannot now be) created.
Nor is it sufficient for HUD merely to point out that population shifts have occurred in
the Baltimore Region over the past fifty years. See Fed. Defs.’ Br. 27. HUD must show that
population changes substantially caused the present segregation of black public housing
residents. Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1338-39 (11th Cir. 2005); see
also Freeman, 503 U.S. at 494. HUD does not attempt such a showing and could not make this
showing if it tried. Plaintiffs’ evidence – verified by the testimony of HUD’s own experts and
fact witnesses – proves that African-American public housing residents in Baltimore always
have been confined to areas of the City with disproportionate African-American populations and
excluded from areas of the Region with white majorities. See Pls.’ Br. 12-17.
HUD finally contests constitutional liability on the dubious ground that Plaintiffs have
not clearly identified the vestiges of prior discrimination and that this alleged lack of clarity
makes HUD’s remedial obligations unclear. See Fed. Defs.’ Br. 26. As Plaintiffs have4
articulated on multiple occasions, the vestiges of discrimination are apparent: HUD intentionally
deprived African-American public housing residents of the opportunity to live anywhere but in
poor neighborhoods of overwhelming black population concentration. Because of this
intentional, race-based housing policy, African-American public housing residents still live in
the same poor neighborhoods of overwhelming black population concentration and still lack the
opportunity that all other residents of the Baltimore Region have to choose where they live. See
HUD also argues that Plaintiffs “have not demonstrated any untoward motivation on5
HUD’s part during the course of the Open Period.” Fed. Defs.’ Br. 28-29. HUD knows full wellthat proof of present discriminatory intent is not necessary to establish a constitutional violationfor failure to disestablish the vestiges of prior segregation. United States v. Fordice, 505 U.S.717, 729-32 (1992); Thompson Summary Judgment Order, 2006 WL 581260, at *7; Thompson,348 F. Supp. 2d at 413, 451.
6
Pls.’ Br. 8-12; Hills v. Gautreaux, 425 U.S. 284, 286-92, 296 (1976); United States v. City of
Parma, Ohio, 661 F.2d 562, 566 (6th Cir. 1991); Walker v. HUD, No. 3:85-CV-1210-R, slip op.
at 1 (N.D. Tex. Dec. 5, 1997) (Modified Remedial Order Affecting HUD) [hereinafter Walker
1997 Remedial Order]; cf. Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 435-38,
441-42 (1968). HUD’s remedial obligations are similarly clear: HUD must effectively dismantle
the segregated system. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979). Any
protestations of uncertainty about what HUD must do to comply with the constitutional
command of equal protection are disingenuous.5
II. HUD Has Violated the Fair Housing Act’s Requirement That HUD Further FairHousing.
A. The Duty to Further Fair Housing.
HUD’s statutory obligation is to take actions that affirmatively further fair housing by
“fulfill[ing] . . . the goal of open, integrated residential housing patterns.” Otero v. N.Y. City
Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973); see also NAACP v. HUD, 817 F.2d 149, 155
(1st Cir. 1987); Shannon v. HUD, 436 F.2d 809, 816, 821-23 (3d Cir. 1970); Pls.’ Br. 20-24 &
n.18 (citing cases).
HUD ignores these many judicial decisions interpreting the obligation to affirmatively
further fair housing under § 3608(e)(5) and instead cites only a single case, Darst-Webbe Tenant
Ass’n Board v. St. Louis Housing Authority, 417 F.3d 898 (8th Cir. 2005), that HUD thinks
imposes a lower obligation on HUD under the Fair Housing Act. See Fed. Defs.’ Br. 3-4. But
7
the Darst-Webbe court read the § 3608(e)(5) obligation as requiring HUD to “demonstrate[]
consideration of, and an effort to achieve,” results in the form of furthering opportunities for fair
housing. Darst-Webbe, 417 F.3d at 907 (emphasis added). This interpretation is fully consistent
with the interpretation of the statute articulated by the First, Second, and Third Circuits in
Shannon, NAACP, and Otero.
HUD separately points to language from Darst-Webbe stating that the court’s review is
not “to determine whether HUD has, in fact, achieved tangible results.” Darst-Webbe, 417 F.3d
at 907. In suggesting that this language limits the Court’s review in this case, HUD takes this
passage out of its factual context. Darst-Webbe involved a challenge to only a single decision by
HUD – the approval of a local revitalization plan. Id. Here, by contrast, Plaintiffs challenge a
pattern of actions and failures to act over time that perpetuated Region-wide segregation. This
distinction is important because the Darst-Webbe court was considering the reviewability of
HUD’s actions under the APA in light of Norton v. Southern Utah Wilderness Alliance, 124 S.
Ct. 2373 (2004), which expressed concern that agency action not be reviewed against
unmeasurable standards. As then-Judge Breyer explained in NAACP v. HUD, the § 3608(e)(5)
standard is one that can properly be measured by evaluating the result of HUD’s actions over
time, even if applying that standard to individual decisions may be more difficult:
This is a case in which plaintiffs, in effect, claim thatHUD’s practice over time, its pattern of behavior, reveals a failure“affirmatively . . . to further” Title VIII’s fair housing policy. TheNAACP does not complain of individual instances so much as ituses individual instances to show a pattern of activity, whichpattern constitutes the alleged violation. Thus, we need not decidehow, or whether, a court can fashion standards governing when . . .HUD should use individual grant decisions affirmatively to bringabout desegregation. . . .
Rather, here the court must decide whether, over time,HUD’s pattern of activity reveals a failure to live up to itsobligation. The standard for reviewing that pattern can be drawn
8
directly from the statutory instruction to “administer” its programs“in a manner affirmatively to further the policies” of “fairhousing.” 42 U.S.C. §§ 3608(e)(5), 3601. This standard, likemany, may be difficult to apply in borderline instances, yet a courtshould be able to determine a clear failure to live up to theinstruction over time.
NAACP, 817 F.2d at 158. The Court’s review here is therefore not the kind of review about
which the Darst-Webbe court was concerned (that is, evaluation of whether one particular
decision did or did not achieve certain measurable outcomes), but rather is a review to determine
whether HUD “fail[ed] to live up to the instruction [of § 3608(e)(5)] over time,” which, as Judge
Breyer explained, can be measured by reference to the statutory standard. NAACP, 817 F.2d at
158-59 (“[W]e do not see how, or why, it is any more difficult [to measure compliance with
§ 3608(e)(5) over time] than other civil rights cases in which courts have judged the lawfulness
of agency behavior against roughly analogous standards.”).
HUD is thus under an affirmative statutory obligation to take active steps toward the goal
of open and integrated housing for African-American public housing residents throughout the
Baltimore Region.
B. HUD’s Actions and Failures to Act Fall Far Short of its Statutory Duty toFurther Fair Housing.
None of the evidence that HUD presented at trial, and that HUD now describes in its
Post-Trial Brief, undermines this Court’s finding that HUD has failed to promote regional
housing opportunities for African-American residents of Baltimore City public housing.
HUD first cites testimony from two of Plaintiffs’ experts, Margery Turner and Xavier de
Souza Briggs, to the effect that when they worked at HUD the research agenda included a focus
on racial discrimination, segregation, and the concentration of poverty. Fed. Defs.’ Br. 5-7. A
decade-old research agenda is hardly proof that HUD has met its burden to promote fair housing
9
on a regional basis in Baltimore. As noted above and in Plaintiffs’ Post-Trial Brief, the mere
consideration of fair housing approaches at the national level does not suffice to meet HUD’s
§ 3608(e)(5) obligations. Pls.’ Br. 20-24. A research agenda is a valuable component of
understanding the scope of the problem and how to begin addressing it, but does not on its own
effectively reduce the number of people who live in segregated public housing in Baltimore.
HUD ignores the testimony that identifying racial desegregation as a research priority did not
ensure that that objective was achieved in practice, nor did it ensure that that priority was
implemented over other, competing priorities. Trial Tr. 1018-19, 1080-82 (Briggs). HUD also
ignores the testimony that the reason its research agenda needed to include a focus on racial
segregation and poverty concentration was that HUD’s actions and policies had played a role in
creating and contributing to those conditions. Trial Tr. 174-75 (Turner). As made clear in the
refutations of HUD’s arguments below, HUD never implemented a strategy to desegregate
public housing or otherwise took effective actions to fulfill the goal of open housing in the
Baltimore Region, notwithstanding the good intentions of some of its former researchers.
1. HUD Has Not Met its Statutory Obligations Through Production ofHard Units.
HUD’s argument that it has provided funding for the creation of hard units in the
Baltimore Region, see Fed. Defs.’ Br. 8-9, relies on selective references that misrepresent the
evidence presented at trial.
HUD points to the construction of public housing units outside of Baltimore City in
Annapolis and Havre de Grace. Id. at 8. But as Plaintiffs showed at trial, these units were a
small fraction of the total: nearly 92% of the Region’s family public housing was concentrated in
Baltimore City as of 1995, and nearly 94% was concentrated in census tracts with above-average
“SOF” refers to Plaintiffs’ Post-Trial Statement of Facts filed on May 31, 2006, and6
docketed at Paper 817.
HUD’s own expert, Dr. William Rohe, conducted a research study for HUD that7
described the siting pattern of public and assisted housing in the Baltimore Region during the1980s as “regressive,” meaning that public and assisted housing was concentrated in tracts with ahigh percentage of African-Americans. Trial Tr. 2531-33 (Rohe); PX-773, Lance Freeman &William M. Rohe, The Siting of Assisted Housing and Its Impact on Neighborhood RacialTransition 38 (Dec. 1998).
10
percentages of African-American residents. Pls.’ Br. 9-10, SOF ¶¶ 6-8. The Region’s public6
housing units are overwhelmingly concentrated in the poorest, blackest areas of Baltimore City.
HUD also cites its creation of hard units through the project-based Section 8 program,
but these assisted housing units were also located in areas with above average percentages of
African-American residents and are likewise concentrated in Baltimore City, often in close
proximity to public housing developments. See PX-768, Webster Written Test. 19-20 & tbl.9;7
Pendall Written Test. 104-14 (Paper 574). And as HUD concedes in a footnote, none of the
project-based Section 8 units developed during the Open Period (that is, since 1989) were
available to African-American public housing families – every single one was limited to elderly
and disabled occupancy. Fed. Defs.’ Br. 8-9 n.3; Pls.’ Br. 45. In addition, the existing stock of
project-based Section 8 units is steadily declining, with no consideration of the fair housing
impact of the loss of these units. Pls.’ Br. 45-46.
Finally, HUD claims that the HOME program was used to create 3,450 rental units in the
Baltimore Region from 1992 to 2005. Fed. Defs.’ Br. 8-9. HUD grossly overstates the import of
this figure – there is no evidence that any of these units were made available to African-
American public housing residents, and HUD’s own witness conceded at trial that of these 3,450
units, only 122 were occupied by any African-Americans outside of Baltimore City over a 14-
year time period (fewer than nine units per year) and that HUD did not know what percentage of
11
these few units were occupied by families as opposed to the elderly. Trial Tr. 1621-24
(Sardone); Pls.’ Br. 37-38. HUD’s reliance on the creation of hard rental units in meeting its
obligation to further fair housing is misplaced.
2. The Section 8 Voucher Program Has Failed to Promote Regional FairHousing.
The facts do not support HUD’s argument that Section 8 vouchers help it to meet its
statutory obligations. See Fed. Defs.’ Br. 9-13.
Plaintiffs have shown that there are significant obstacles to voucher portability including
administrative barriers, lack of information, lack of transportation, and racial discrimination.
Pls.’ Br. 26-31; SOF ¶¶ 24-51. HUD’s decisions with regard to voucher subsidy levels also have
served to place entire areas of the Baltimore Region off-limits to voucher users. Pls.’ Br. 29-31;
SOF ¶¶ 52-65; Thompson, 348 F. Supp. 2d at 460 (“[T]he relative expense and lack of
affordability of housing outside of Baltimore City may present a significant barrier to Section 8
voucher-holders who might wish to pursue private housing in the Baltimore Region but outside
the city.”). Plaintiffs’ witnesses testified about the difficulty they faced in trying to find housing
with a regular Section 8 voucher. See Trial Tr. 444 (Doreen Brooks); Trial Tr. 892-95
(Robinson); Trial Tr. 2657-65 (Neal); Liability Trial Tr. 640 (Leighton). This evidence is
supported by HUD’s own documents and expert witness testimony. See, e.g., FDR-2, Fishman
Written Test. 6 (“[M]erely providing region-wide vouchers [is] not enough to provide real
‘freedom of choice’ for those households who wish[] to use their vouchers to move to a suburban
location.”); PX-815, HUD, Moving to Opportunity for Fair Housing, at HUDBAL 38186 (Dec.
5, 2000) (“[M]any households receiving Section 8 rental assistance are confronted by an array of
barriers – market conditions, discrimination, lack of information and/or transportation, among
others – that force them to rent housing in neighborhoods of intense poverty.”).
12
As the result of these obstacles, African-American voucher users in the Baltimore Region
are concentrated in Baltimore City and in extremely poor neighborhoods with extremely high
black population levels. Pls.’ Br. 25-26; SOF ¶¶ 17-23. HUD’s claim that the voucher program
“has opened so many regional opportunities,” Fed. Defs.’ Br. 12, is simply not true for African-
Americans in the Baltimore Region and, in particular, members of the plaintiff class.
Supreme Court rulings in other contexts further undermine HUD’s argument. The
Supreme Court long has recognized in school desegregation cases that merely providing
“freedom of choice” is an insufficient step toward desegregation:
The [school board’s] “freedom-of-choice” plan cannot be acceptedas a sufficient step to “effectuate a transition” to a unitarysystem. . . . Rather than further the dismantling of the dual system,the plan has operated simply to burden children and their parentswith a responsibility which Brown II placed squarely on the SchoolBoard.
Green, 391 U.S. at 441-42 (citing Brown v. Bd. of Educ., 349 U.S. 294 (1955) (Brown II)).
HUD’s argument that vouchers provide families with “free choice” is equivalent to the argument
rejected by the Supreme Court in Green. HUD’s assertion is no more than a justification for
burdening tenants with what should be HUD’s responsibility – to desegregate public housing.
HUD separately argues that the Moving to Opportunity (“MTO”) demonstration study
and the Regional Opportunities Counseling (“ROC”) program – both of which were voucher-
based study programs – promoted fair housing by “building regional capacity.” Fed. Defs.’ Br.
21-24. As Plaintiffs have shown, both programs were far too small and short-lived to have had
any impact on the problem of segregation in Baltimore City public housing. Pls.’ Br. 32-35.
Nor is there any evidence to suggest that the significant obstacles to regional voucher use
described above were in any way lessened by either program – to the contrary, the only review
of the ROC program concluded that it was not successful in addressing administrative barriers to
13
voucher portability. See FDR-31, Assessment of Technical Assistance Needs of the Regional
Opportunity Counseling (ROC) Program Sites, at II-2 (Apr. 2000); SOF ¶¶ 86-87.
There is no evidence that the Section 8 voucher program has served as an effective tool to
desegregate Baltimore City public housing. See Thompson, 348 F. Supp. 2d at 460 (“Just as
rearranging the siting of public housing units within Baltimore City is insufficient to advance the
cause of desegregation, Section 8 vouchers are inadequate to achieve this end.”).
3. HUD’s Block Grant Funding Programs Have Not Been Used toPromote Regional Fair Housing.
Disregarding the testimony of its own employee-witnesses, HUD argues that CDBG and
HOME block grants have promoted fair housing in the Baltimore Region. Fed. Defs.’ Br. 13-15.
Charles Halm testified that “not a penny” of the millions of dollars provided by CDBG funds in
the Baltimore Region went to help African-American public housing residents move to
desegregative areas. Trial Tr. 2086 (Halm). Virginia Sardone similarly testified that HUD has
no idea whether even a single African-American public housing family from Baltimore City has
ever been assisted by the HOME program. Trial Tr. 1523, 1607 (Sardone).
In the face of these concessions, HUD resorts to vague assertions regarding the assistance
the CDBG and HOME programs have provided for “poor families.” Fed. Defs.’ Br. 13. These
assertions provide no evidence that either program has ever assisted members of the Plaintiff
class – public housing families are extremely poor, are well below the income-targeting levels
required by the CDBG and HOME programs, and are not benefitted by assistance to the elderly
poor. Pls.’ Br. 36, 40; SOF ¶¶ 118-21, 154. There is no support in the record for HUD’s claim
that these block grant programs have promoted fair housing by helping African-American public
housing families move out of segregated areas in Baltimore City. See Pls.’ Br. 35-41.
HUD’s assertions regarding “non-financial support” to grantees and PHAs are similarly
14
unsupported by any evidence that such support assisted African-American public housing
families. See Fed. Defs.’ Br. 15-17. HUD notes, for example, that grantees must undertake
affirmative marketing procedures for a subset of their housing programs, and that these
procedures must be directed to persons least likely to apply. But HUD’s witness testified that
despite this requirement, HUD has never recommended that outreach be made to public housing
residents. Trial Tr. 1629 (Sardone); SOF ¶¶ 143-47. HUD also points to its “technical
assistance” activities, which include the development of training manuals and classes for
grantees. But the trial testimony shows that none of the technical assistance products developed
by HUD headquarters has ever recommended to field offices, participating jurisdictions, or
developers that there be any outreach to public housing residents to help them access HOME-
funded housing opportunities. Trial Tr. 1629-30 (Sardone). HUD also argues that it distributes
information on housing opportunities to prospective beneficiaries, citing its use of a pamphlet
called “The Locator.” Fed. Defs.’ Br. 17. As Plaintiffs’ Post-Trial Brief notes, HUD has not
made any efforts to distribute The Locator to residents of Baltimore City public housing or to
voucher recipients. Pls.’ Br. 29 n.24. There is no evidence that this pamphlet had any value in
promoting fair housing. Id.
4. HUD’s FHEO Office Has Made No Meaningful Contribution toFurthering Fair Housing During the Open Period.
Contrary to HUD’s assertion that its Office of Fair Housing and Equal Opportunity
(“FHEO”) “contributes significantly” to HUD’s effort to affirmatively further fair housing, the
efforts of the FHEO Office in this regard have been de minimis and have not satisfied HUD’s
obligations under Title VIII or the Constitution. See Fed. Defs.’ Br. 18.
The FHEO activities HUD catalogs can only be described as sporadic, uncoordinated,
precatory, and ineffective. For instance, HUD points to a single letter written in 1991 suggesting
15
to HABC that it “should try” to use Section 8 vouchers to move tenants into non-minority areas
within and outside of the City. Fed. Defs.’ Br. 19-20. In the absence of a framework of
incentives or sanctions designed to achieve increased fair housing choice, this isolated
suggestion was predictably ineffective and cannot carry the weight of HUD’s burden to further
fair housing. Similarly, HUD cites FHEO’s attempts to “spread the message of regional housing
choice” through education and outreach activities. Id. at 20. FHEO’s sporadic efforts in this
area have been wholly inadequate to meet HUD’s statutory obligations, as there is not a shred of
evidence that HUD’s “message spreading” has been connected with concrete action to increase
desegregative housing opportunities for public housing residents.
In a similar vein, HUD referred repeatedly at trial and in its Post-Trial Brief to FHEO’s
publication of the Fair Housing Planning Guide. See Fed. Defs.’ Br. 18. But HUD offered no
evidence that the actions recommended by the Fair Housing Planning Guide were implemented
or that they helped African-American public housing families in Baltimore City obtain access to
housing in integrated suburban neighborhoods. See Trial Tr. 2206-07 (Walsh). HUD’s reliance
on the publication of the Fair Housing Planning Guide as in any way satisfying its statutory and
constitutional obligations is particularly ironic given HUD’s own admonition that the “sole
measurement of successful fair housing planning is achievement of results.” PX-826, Letter
from Smith to Henson (Oct. 30, 1998) (emphasis added). As the record demonstrates, HUD has
no results to show.
HUD also cites its involvement in the preparation by Baltimore-area grantees of the
Analysis of Impediments (“AI”) as evidence that it has promoted fair housing. Fed. Defs.’ Br.
20, 24-25. HUD’s inadequate application of procedures related to the AI has been described at
length in Plaintiffs’ Post-Trial Brief and requires little mention here. See Pls.’ Br. 41-45. The
For example, FHEO has no involvement in approving policies relating to voucher8
portability. PX-631, Walsh Dep. Tr. 132 (May 27, 2005). FHEO has no involvement inapproving multi-family foreclosure or disposition decisions, Trial Tr. 2487 (Brooks), and has noinvolvement in approving policies related to the Mark-to-Market Program. PX-631, Walsh Dep.Tr. 132 (May 27, 2005). FHEO has no involvement in decisions by HUD to terminate project-based Section 8 contracts. PX-634, Brooks Dep. Tr. 129 (July 12, 2005). FHEO has no role inreviewing or approving sites for replacement housing when CDBG funds are used fordemolition. Trial Tr. 2487 (Brooks). FHEO does not review project and site selection forLIHTC projects, and does not coordinate with the IRS or Treasury Department to ensure thatLIHTC projects affirmatively further fair housing. Trial Tr. 2205-06 (Walsh).
16
Baltimore Region grantees have yet to update their ten-year-old AI, but HUD has continued year
after year to approve these grantees’ Con Plan submissions, AFFH Certifications, and
performance reports despite persistent noncompliance with fair housing requirements. Id.
In addition to failing to achieve results with regard to its interactions with HUD grantees
and PHAs, FHEO has failed to implement a coordinated fair housing approach among the line
offices within HUD to ensure that fair housing considerations are raised at appropriate times in
decisionmaking processes. To the contrary, the evidence presented at trial shows that FHEO
plays no role in HUD’s major decisions that affect the supply, location, availability, and
affordability of housing for poor African-Americans in the Baltimore Region. Given the8
“fragmented” and “decentralized” nature of decisionmaking across HUD program areas, see PX-
765, Khadduri Written Test. 9-10, this failure to provide for any overarching review to ensure
consideration of statutory and constitutional desegregation mandates is an abdication of HUD’s
duty to further fair housing and remedy the effects of prior discrimination.
In short, FHEO has been a non-factor in implementing HUD’s duty to remedy the effects
of prior discrimination and meet its statutory obligations under the Fair Housing Act. HUD
witness Pamela Walsh, Director of the Program Standards Division in HUD’s FHEO Office,
perhaps put it best when she stated, “I think our [fair housing] mission in HUD is to reduce
17
discrimination when we see it. And if public housing is segregated, then HUD has a lot more
work to do.” Trial Tr. 2210 (Walsh) (emphasis added).
C. The Court’s Finding of § 3608(e)(5) Liability Should Stand.
HUD’s arguments in defense of statutory liability ultimately show little more than that
HUD pursued general programmatic activities relating to the provision of housing services from
1989 to the present. With an annual budget in the tens of billions of dollars, the only way for
HUD not to have provided housing services over the past fifteen years would be for it to have
shut down completely. But § 3608(e)(5) requires more of HUD than merely to oversee the
ongoing operation of general housing programs – it requires HUD to use its programs “to assist
in ending discrimination and segregation, to the point where the supply of genuinely open
housing increases.” NAACP, 817 F.2d at 155. None of the activities HUD identifies in its Post-
Trial Brief were undertaken as part of a plan to desegregate Baltimore public housing, and none
have had the effect of promoting desegregative housing opportunities throughout the Region for
Baltimore City’s black public housing residents.
During the Senate debate on the Fair Housing Act, Senator Edward Brooke explained the
importance of the proposed law as follows:
Today’s Federal housing official commonly inveighs against theevils of ghetto life even as he pushes buttons that ratify theirtriumph – even as he ok’s public housing sites in the heart ofNegro slums, releases planning and urban renewal funds to citiesdead-set against integration, and approves the financing ofsuburban subdivisions from which Negroes will be barred.
114 Cong. Rec. 2281 (1968). Senator Brooke later made his charge more pointedly, stating:
Rarely does HUD withhold funds or defer action in the name ofdesegregation. . . . It is clear that HUD is determined to speakloudly and carry a small stick.
Id. at 2527-28. Senator Brooke’s comments, previously cited to this Court in Plaintiffs’ Pre-
See also Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459-61 (1979); Davis v. Sch.9
(continued...)
18
Trial Memorandum, bear repeating here to underscore how little has changed in HUD’s
approach in the nearly forty years since the passage of the Act. Compliance with the
desegregative mandate of the Fair Housing Act is long overdue. This Court should affirm its
finding that HUD’s failure to promote fair housing for African-American public housing
residents is a violation of the law.
III. This Court Should Order the Relief Contained in Plaintiffs’ Proposed Order.
HUD argues that neither the law nor the facts permit the Court to order injunctive relief
to remedy HUD’s violations of the Fifth Amendment and the Fair Housing Act. HUD is
incorrect on both scores.
A. Broad Injunctive Relief Is a Necessary and Proper Remedy for HUD’sFailure to Correct the Harms Caused by its Prior Racial Discrimination.
1. HUD’s No-Remedy Argument Has No Support in the Law.
Injunctive relief is proper and necessary to remedy HUD’s violations of both the Fifth
Amendment and the Fair Housing Act. HUD’s arguments that the Court cannot order a remedy
that includes injunctive relief, and that the Court should instead do nothing more than issue a
declaratory judgment acknowledging that Plaintiffs’ rights have been violated, see Fed. Defs.’
Br. 29, 34, run counter to well-established precedent regarding courts’ remedial powers.
The assertion that no remedy should issue for unconstitutional racial segregation is
squarely foreclosed not simply by Brown v. Board and Bolling v. Sharpe, but also by the core
remedial principle that the Court “has not merely the power but the duty to render a decree which
will so far as possible eliminate the discriminatory effects of the past as well as bar like
discrimination in the future.” Louisiana v. United States, 380 U.S. 145, 154 (1965) (emphasis9
(...continued)9
Comm’rs of Mobile County, 402 U.S. 33, 37 (1971) (“Having once found a violation, the districtjudge . . . should make every effort to achieve the greatest possible degree of actualdesegregation, taking into account the practicalities of the situation. A district court may andshould consider the use of all available techniques . . . . The measure of any desegregation planis its effectiveness.”); Swann, 402 U.S. at 15-16 (“Once a right and a violation have been shown,the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth andflexibility are inherent in equitable remedies.”); Green, 391 U.S. at 437-38 & n.4.
See also Richard H. Fallon, Jr., Marbury and the Constitutional Mind, 91 Cal. L. Rev.10
1, 13-14 (2003) (noting that Marbury established the principle that “courts have no discretion . . .to decline to enforce constitutional rights”); Herbert Wechsler, The Courts and the Constitution,65 Colum. L. Rev. 1001, 1006 (1965) (explaining that Marbury requires courts to enforceconstitutional rights to “give effect to the supreme law of the land”).
19
added); see also Gautreaux, 425 U.S. at 297 (“[I]n the event of a constitutional violation ‘all
reasonable methods [are] available to formulate an effective remedy.’” (quoting N.C. State Bd. of
Educ. v. Swann, 402 U.S. 43, 46 (1971))); Pls.’ Br. 48-51. HUD’s no-remedy argument more
fundamentally runs counter to central tenets of constitutional law established more than two
hundred years ago in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Chief Justice Marshall
described the necessity of enforcing constitutional rights as follows: “The government of the
United States has been emphatically termed a government of laws, and not of men. It will
certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of
a vested legal right.” Id. at 163.10
Injunctive relief is also indisputably proper for HUD’s violation of the Fair Housing Act.
The APA specifically allows for injunctive relief against the United States, see 5 U.S.C. § 702;
Erwin Chemerinsky, Federal Jurisdiction § 9.2.2 (4th ed. 2003); and courts frequently have
reaffirmed the propriety of injunctive relief against HUD for Fair Housing Act violations. See,
e.g., Darst-Webbe Tenant Assoc. Bd. v. St. Louis Hous. Auth., 339 F.3d 702, 713-14 (8th Cir.
2003); NAACP, 817 F.2d at 160; see also Pls.’ Br. 49-50. Indeed, courts have held that declining
to order the injunctive relief necessary to remedy HUD’s violation of the Fair Housing Act is
Even if one accepted HUD’s argument regarding the costs and benefits of equitable11
remedies, that argument would merely support a finding that the Court may (not must) decline toimpose injunctive relief. This Court previously concluded that “HUD has failed adequately toconsider regionalization over the past half-century and, absent judicial compulsion, appears mostunlikely to do so in the foreseeable future.” Thompson, 348 F. Supp. 2d at 464. In light of thisfinding, there would seem to be no basis to decline to impose injunctive relief here.
20
reversible error. See Marable v. Walker, 704 F.2d 1219, 1221 (11th Cir. 1983) (holding that the
district court’s remedy for housing discrimination was insufficient because it “fail[ed] to require
any affirmative act by the defendant to correct the lingering effect of past discriminatory
policies,” and ordering that “[o]n remand the district court should tailor an injunction to more
nearly comply with the relief required in prior cases of this kind”). HUD’s argument against
injunctive relief for HUD’s violations of the Fifth Amendment and Fair Housing Act should be
rejected.
HUD additionally seeks to convince the Court that it may decline to impose injunctive
relief “[w]here the harms . . . outweigh the benefits.” See Fed. Defs.’ Br. 29-30. It is not clear
exactly what creditable harms HUD thinks will ensue from a remedy that disestablishes the
pervasive segregation of African-American public housing residents. In any event, a balancing
of costs and benefits from Plaintiffs’ proposed remedy assuredly tips in favor of eliminating –
instead of maintaining – racial segregation. See Pls.’ Br. 82 (quoting Thompson v. HUD, 200111
WL 1636517, at *16-17 (D. Md. Dec. 12, 2001) (Report and Recommendation) (Grimm, M.J.)).
In Gautreaux, the Supreme Court established that a regional remedy is well within the
scope of a district court’s equitable authority in a case of unconstitutional housing segregation:
[I]t is entirely appropriate . . . to order . . . HUD to attempt tocreate housing alternatives for the respondents in the Chicagosuburbs. Here the wrong committed by HUD confined therespondents to segregated public housing. The relevantgeographic area for purposes of the respondents’ housing optionsis the Chicago housing market, not the Chicago city limits. . . . An
21
order against HUD . . . regulating [its] conduct in the greatermetropolitan area will do no more than take into account HUD’sexpert determination of the area relevant to the respondents’housing opportunities and will thus be wholly commensurate withthe “nature and extent of the constitutional violation.”
Gautreaux, 425 U.S. at 299 (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974)); see also id.
at 306 (“[W]e conclude that a metropolitan area remedy in this case is not impermissible as a
matter of law.”). This Court plainly may exercise its equitable authority in this case.
2. Burford Abstention Does Not Apply.
HUD next makes the mystifying argument that the Court should not order a remedy in
light of the Burford abstention doctrine. See Fed. Defs.’ Br. 30-33. This limited abstention
doctrine has no application whatever here.
In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that the district
court should have deferred to Texas state courts for the interpretation and enforcement of Texas
state laws and regulations regarding oil drilling. Id. at 325-32. In subsequent cases, the Court
explicated the Burford abstention principle as follows: “Where timely and adequate state-court
review is available, a federal court sitting in equity must decline to interfere with the proceedings
or orders of state administrative agencies: (1) when there are ‘difficult questions of state law’ . . .
or (2) where the ‘exercise of federal review of the question . . . would be disruptive of state
efforts to establish a coherent policy.’” New Orleans Pub. Serv., Inc. v. Council of New Orleans,
491 U.S. 350, 361 (1989) (NOPSI) (quoting Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 814 (1976)). None of these considerations applies to Plaintiffs’ claims.
This case does not challenge a state administrative decision for which state court review would
be proper; this case does not involve complicated interpretations of state law; and federal court
review of federal anti-discrimination law cannot plausibly disrupt any state policy-making
22
efforts.
Assuming that there were applicable state administrative procedures or difficult
interpretations of state law with which this lawsuit conceivably could interfere – a proposition
for which HUD has offered no support – the Supreme Court forty years ago expressly rejected
the very argument that HUD makes here and held that Burford abstention does not apply in
desegregation cases. In McNeese v. Board of Education, 373 U.S. 668 (1963), the Supreme
Court refused to abstain on Burford grounds in a school desegregation case in which the
defendant school board claimed to have recourse to state administrative procedures for handling
the dispute:
We have . . . in the present case no underlying question of statelaw controlling this litigation. The right alleged is as plainlyfederal in origin and nature as those vindicated in Brown v. Boardof Education. Nor is the federal right in any way entangled in askein of state law that must be untangled before the federal casecan proceed. For petitioners assert that respondents have been andare depriving them of rights protected by the FourteenthAmendment. . . . Such claims are entitled to be adjudicated in thefederal courts.
McNeese, 373 U.S. at 674 (internal citations omitted); see also Holmes v. N.Y. City Hous. Auth.,
398 F.2d 262, 265-68 (2d Cir. 1968). The McNeese holding applies with even greater force to
this case, which seeks to remedy discriminatory conduct not by a local school board but by the
federal government itself.
Even in cases in which the factors implicating abstention are present, Burford abstention
is an “extraordinary and narrow exception to the duty of the District Court to adjudicate a
controversy properly before it.” Colo. River, 424 U.S. at 813; see also NOPSI, 491 U.S. at 362.
The argument cannot plausibly be made for applying this “extraordinary and narrow exception”
here, given that none of the factors implicating abstention are present. HUD’s suggestion that
The Fourth Circuit Burford cases that HUD discusses in its Post-Trial Brief are not12
remotely on point. In Johnson v. Collins Entertainment Co., the Fourth Circuit held that becauseof the “intensely state character of th[e] litigation,” the district court’s interpretation of stategambling laws and regulations “supplanted the legislative, administrative, and judicial processesof South Carolina and sought to arbitrate matters of state law and regulatory policy that are bestleft to resolution by state bodies.” 199 F.3d 710, 717, 719-20 (4th Cir. 1999). HUD also citesPomponio v. Fauquier County Board of Supervisors, 21 F.3d 1319 (4th Cir. 1994) (en banc), insupport of its argument that abstention may be proper in cases raising federal constitutionalclaims. The Fourth Circuit made clear, however, that abstention was appropriate in that caseonly because the plaintiff’s claims arose “solely out of state or local zoning or land use law” thatthe plaintiff had “attempt[ed] to disguise . . . as federal claims.” Id. at 1327-28.
23
Burford abstention precludes a remedy in this case must be rejected.12
B. Plaintiffs’ Proposed Order Is an Appropriate Remedy for HUD’sConstitutional and Statutory Violations.
Despite the Court’s authority to order a remedy as broad as necessary to remedy HUD’s
constitutional and statutory violations, HUD raises a host of objections to the Court doing so
here. These arguments take an inappropriately cramped view of the Court’s remedial authority,
overstate the obstacles to an effective remedy, mischaracterize Plaintiffs’ proposal, and misstate
HUD’s ability and duty to use federal housing resources to accomplish desegregation. Many of
HUD’s arguments resemble the discredited objections to school integration made by defenders
of segregated school systems forty or more years ago. None of HUD’s objections excuse HUD
from complying with the Fifth Amendment and Fair Housing Act.
1. Plaintiffs’ Remedy Is Not Only Consistent With But DirectlyAdvances National Housing Policy.
HUD argues that public policy would not be served by remedying the unconstitutional
segregation of African-American public housing residents. Because of the overriding
importance of eliminating the vestiges of HUD’s racial discrimination, and because Plaintiffs’
remedy is directly supportive of national housing policy, this Court should reject HUD’s
arguments.
24
HUD attempts to cast this case as nothing more than an abstract debate between equally
legitimate policy positions about how housing programs ought to be run. See Fed. Defs.’ Br. 35-
36. This argument seems to follow from HUD’s willful ignorance of the present segregated
conditions of African-American public housing residents. The maintenance of segregation is not
a legitimate policy position. HUD’s own witnesses conceded what HUD’s counsel will not –
that HUD can and must act to eliminate the present racial segregation caused by its past
discriminatory practices. See, e.g., Trial Tr. 2209-10 (Walsh); Trial Tr. 2056, 2061 (Halm).
Plaintiffs’ proposed remedy is not, as HUD alleges, a vehicle to effectuate the policy
priorities of Plaintiffs’ expert witnesses. The proposed remedy is, first and foremost, designed to
accomplish the remedial mandate articulated by the Supreme Court to “restore the victims of
discriminatory conduct to the position they would have occupied in the absence of such
conduct,” Milliken, 418 U.S. at 746, and to use “all available techniques” to “achieve the greatest
possible degree of actual desegregation,” Davis, 402 U.S. at 37. The remedy relies on the
accumulated expertise of Plaintiffs’ witnesses to overcome the obstacles to desegregation
currently posed by HUD’s programs and decisionmaking processes, and to identify the
appropriate levers to pull to accomplish desegregation most effectively. The remedy thus
follows the maxim that “the scope of the remedy is determined by the nature and extent of the
constitutional violation.” Milliken, 418 U.S. at 744.
Far from being inconsistent with public policy, Plaintiffs’ proposed remedy – with its
emphasis on achieving desegregation through moves to high-opportunity areas – directly
effectuates central purposes of federal housing policy. Numerous federal statutes and HUD
regulations reflect the judgment of Congress and HUD that there is a geography of opportunity,
and that among the goals of federal housing policy are to deconcentrate race and poverty and to
Richard Kennedy, the director of HUD’s Office of Block Grant Assistance (which13
administers the CDBG program), was asked about Plaintiffs’ proposed requirement thatdisbursements of CDBG assistance be conditioned on a certain level of investment incommunities of opportunity, and testified that such a requirement was “clearly” consistent withthe purposes of the CDBG statute: “Q: In terms of the fit between that proposed requirement andthe statutory national objectives embodied in the CDBG statute, well, what is that fit? A: Well,these activities would clearly benefit the national objective of benefitting low and moderateincome persons.” Trial Tr. 1765 (Kennedy).
25
facilitate moves to high-opportunity areas. See Pls.’ Br. 63 & n.50 (listing statutes and13
regulations). The Supreme Court has ratified this approach, holding that “[a]n order directing
HUD to use its discretion under the various federal housing programs to foster projects located
in white areas of the Chicago housing market would be consistent with and supportive of well-
established federal housing policy.” Gautreaux, 425 U.S. at 301-03 (citing statutes and
regulations).
Contrary to the evidence from Chicago and elsewhere, including the Partial Consent
Decree (“PCD”) in this case, HUD argues that Plaintiffs’ proposed remedy is either unlikely to
achieve desegregation or is unlikely to accomplish the national goal of deconcentrating race and
poverty. In making this argument, HUD seeks to undermine the Gautreaux remedial approach
on which Plaintiffs’ remedy is partially based. See Fed. Defs.’ Br. 37-38. But HUD ignores its
own witnesses – including Prof. Schuck, Prof. Rohe, and Dr. Shroder – who have praised the
Gautreaux approach. See Trial Tr. 1926 (Schuck); Peter H. Schuck, Diversity in America 227,
259 (2003); FDR-5, Rohe Written Test. 4-5; PX-817, Mark Shroder, Moving to Opportunity: An
Experiment in Social and Geographic Mobility, Cityscape: J. Pol’y Dev. & Res., vol. 5 no. 2, at
57 (2001) (“The Gautreaux initiative in Chicago, a court-ordered remedy for segregation in that
city’s public housing program, produced striking evidence for neighborhood impacts.”). HUD
also ignores the testimony of Plaintiffs’ witnesses who already have benefitted from moves
HUD further suggests that the unpredictability of individuals’ reactions to a court order,14
and the possibility that white families will leave if public housing families move nearby, weighsagainst the entry of a remedial order. Fed. Defs.’ Br. 40, 43 n.14. This argument ignoresdecades of case law rejecting the “white flight” objection in school desegregation orders. See
(continued...)
26
under the PCD. See Pls.’ Br. 60 n.47; SOF ¶¶ 276-77. HUD’s assertion more generally is
contradicted by the unassailable proposition that neighborhoods matter, see Pls.’ Br. 60 & n.47,
and that a desegregation remedy that focuses on high-opportunity areas is the most effective way
to remedy the harms caused by the unlawful discrimination.
By giving Baltimore City public housing residents the opportunity to move to parts of the
Baltimore Region to which they hitherto have been denied access, Plaintiffs’ proposed remedy
not only is tailored to the scope of the violation, but also is consistent with and supportive of
national housing policy. At the same time, HUD has failed to articulate any policy goals that
possibly could be served by maintaining the segregation of African-American public housing
residents in the ghettos of Baltimore City. This Court should reject the argument that public
policy does not call for a remedy to unlawful racial segregation.
2. Housing Segregation Is Not Too Complex for Judicial Resolution.
HUD argues that housing markets are so complex that a judicial remedy to housing
segregation would be improper. See Fed. Defs.’ Br. 38-42. The Supreme Court has held that the
complexity of remedying segregation is not a basis for evading the constitutional mandate:
Brown II was a call for the dismantling of well-entrenched dualsystems tempered by an awareness that complex and multifacetedproblems would arise which would require time and flexibility fora successful resolution. School boards such as the respondent thenoperating state-compelled dual systems were nevertheless clearlycharged with the affirmative duty to convert to a unitary system inwhich racial discrimination would be eliminated root and branch.
Green, 391 U.S. at 437-38 (emphasis added).14
(...continued)14
Monroe v. Bd. of Comm’rs, 391 U.S. 450, 459 (1968) (“We are frankly told . . . that without thetransfer option it is apprehended that white students will flee the school system altogether. ‘Butit should go without saying that the vitality of these constitutional principles cannot be allowedto yield simply because of disagreement with them.’” (quoting Brown II, 349 U.S. at 300));Walker v. County Sch. Bd., 413 F.2d 53, 54 (4th Cir. 1969). Moreover, the likelihood of whiteflight has diminished considerably as white residents have become more accepting of blackneighbors. Trial Tr. 1470-71, 1512 (Charles); Trial Tr. 1001-05 (Queale).
27
The complexity of disestablishing vestiges of segregation is dealt with not by leaving the
status quo undisturbed, as HUD would have this Court do, but rather by monitoring compliance
with the remedy and adjusting the relief if necessary to account for any unforeseen changes in
circumstances. Equitable relief is flexible, and this Court has the “inherent capacity to adjust
remedies in a feasible and practical way to . . . redress the injuries caused by unlawful action.”
Thompson v. HUD, 404 F.3d 821, 830 (4th Cir. 2005); see also Freeman, 503 U.S. at 487
(stressing the flexibility of equitable relief). This Court therefore should address possible
obstacles to an effective remedy not by throwing up its hands and ignoring the unconstitutional
status quo, but instead by adopting a remedy – such as Plaintiffs’ proposed order – that is
designed with possible obstacles in mind, sets the necessary outcomes as goals, and monitors
implementation to ensure effective elimination of the vestiges of segregation. See Raney v. Bd.
of Educ., 391 U.S. 443, 449 (1968) (“In light of the complexities inhering in the disestablishment
of state-established segregated school systems, Brown II contemplated that . . . [district courts
should] retain jurisdiction until it is clear that disestablishment has been achieved.”).
In addition to evading the command of the Constitution and the Fair Housing Act,
HUD’s argument would improperly reward racial discrimination by absolving the worst
discriminators of the obligation to remedy the harms they imposed. HUD argues, in effect, that
the more pervasive and systemic the racial discrimination, the less able courts are to remedy it.
28
As the Supreme Court made clear in Green, the Constitution requires otherwise.
HUD also raises the specter that this Court could enter a decree that might “make matters
worse for members of the plaintiff class.” Fed. Defs.’ Br. 41. Isaac Neal testified that living on
Montford Avenue was “hell.” Trial Tr. 2655 (Neal). Numerous class members testified about
their daily exposure to violence and drugs, about infestation by cockroaches and other pests in
their homes, about their isolation from employment, about concern for the lives of their children,
about despair and hopelessness. See Trial Tr. 443 (Brooks); Trial Tr. 560-61, 564-66 (Dickey);
Trial Tr. 666-70 (Abayomi); Trial Tr. 890-91, 901-02 (Williams); Liability Trial Tr. 640-43
(Leighton); Liability Trial Tr. 668-69 (Davis); Liability Trial Tr. 683-96 (Isaac Neal); Liability
Trial Tr. 712-30 (Ishad Neal). It is hard to see how a remedy to the racial segregation that has
caused these harms could possibly make the lives of class members worse. The testimony of
Mr. Neal and others regarding the benefits obtained from the remedies provided under the PCD
offers powerful evidence to the contrary. See, e.g., SOF ¶¶ 276-77.
3. HUD’s Criticisms of Plaintiffs’ Opportunity Approach Are Invalid.
HUD criticizes Plaintiffs’ opportunity-based remedial approaches for a number of
reasons, all of which are without merit.
HUD first argues that Plaintiffs’ definition of communities of opportunity is “race-
conscious,” and that a “race-conscious approach is not permissible as a matter of constitutional
law.” Fed. Defs.’ Br. 43-44. HUD mischaracterizes the proposed remedy, which does not
define opportunity areas based on race; and HUD misstates the law, as there is no such
categorical bar to race-conscious remedies.
Plaintiffs have developed a race-neutral definition of “communities of opportunity” that
does not define opportunity areas based on neighborhood racial composition. See PX-766,
HUD makes much of the fact that Prof. powell testified at trial that the remedy should15
be race-conscious. Fed. Defs.’ Br. 43-44. As Prof. powell’s testimony makes clear, his use ofthe term “race-conscious” to describe the remedy refers only to the importance of assessing theeffectiveness of the remedy and ensuring that it does not result in resegregation. See PX-766,powell Written Test. at i-ii; Trial Tr. 309-12 (powell); Pls.’ Br. 61-62 & nn.48-49.
29
powell Written Test. 29-33; Trial Tr. 354 (powell). Prof. powell considered data regarding
educational opportunity, employment opportunity, and community safety. None of these data
mention race. If HUD is making the unremarkable suggestion that communities of highest
poverty and highest concentrations of African-American population tend to rank low on Prof.
powell’s indices of opportunity, that is precisely the point. HUD’s observation does not convert
Prof. powell’s factors to racial ones; rather it demonstrates why members of the Plaintiff class
should not be confined to the poorest, blackest, lowest-opportunity areas of Baltimore City and
Region. Plaintiffs’ proposed remedy therefore need not be evaluated under strict scrutiny, and
HUD’s argument that the remedy is impermissibly race-conscious should be rejected. See, e.g.,15
Walker v. City of Mesquite, 402 F.3d 532, 534-36 (5th Cir. 2005).
Even if Plaintiffs’ remedy were race-conscious, HUD is incorrect in asserting that such
an approach would be impermissible. The Supreme Court repeatedly has held that race-
conscious remedies for prior discrimination are permissible if they are narrowly tailored to serve
a compelling state interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003); United
States v. Paradise, 480 U.S. 149, 166-70 (1987) (plurality opinion of Brennan, J.). Remedying
prior discrimination is undoubtedly a compelling state interest. See Grutter, 539 U.S. at 328;
Paradise, 480 U.S. at 166; Sheet Metal Workers v. EEOC, 478 U.S. 421, 480 (1986) (“We have
consistently recognized that government bodies constitutionally may adopt racial classifications
as a remedy for past discrimination.” (citing cases)). In assessing whether a race-conscious
remedy is narrowly tailored to serve this compelling interest, however, the Supreme Court has
After entering a remedial order, this Court will retain its inherent capacity to adjust the16
order, as discussed in Part III.B.2 above. If Plaintiffs’ race-neutral definition of communities ofopportunity does not in fact make progress toward achieving the desegregation of African-American public housing residents, the Court could then order a race-based remedy to movepublic housing families to predominantly-white neighborhoods, because at that point a race-neutral remedy would have been attempted and found ineffective. See, e.g., Grutter, 539 U.S. at340 (holding that race-conscious provisions of the law school’s admissions policy were narrowlytailored because, inter alia, “the Law School sufficiently considered workable race-neutralalternatives”); Paradise, 480 U.S. at 162-65 (approving a race-conscious remedy in part becauseless restrictive alternatives had been attempted without success); United States v. HUD, 239 F.3d211, 219-20 (2d Cir. 2001) (approving race-conscious remedies in the Yonkers desegregationlitigation because public housing remained substantially segregated even after extensive race-neutral remedial efforts).
30
advised lower courts to consider the necessity of a race-based remedy and the efficacy of
alternative remedies – that is, to assess whether a race-neutral approach can be as effective a
remedy as a race-conscious approach. Paradise, 480 U.S. at 171. Plaintiffs’ communities of
opportunity approach is based on this guidance – Plaintiffs believe, at this point, that the race-
neutral opportunity approach can have the effect of desegregating public housing. See Pls.’ Br.16
61-62. HUD’s objection to the constitutionality of Plaintiffs’ communities of opportunity
approach is without merit.
HUD next criticizes Prof. powell’s opportunity-based remedial approach for failing to
include certain factors that he could have included (such as the location of parks, hospitals, and
public swimming pools). Fed. Defs.’ Br. 47-49 & n.16. But HUD has not demonstrated or even
argued that these criticisms render the set of neighborhoods identified by Prof. powell’s
definition either over-inclusive or under-inclusive in any meaningful way. As the Court noted,
the types of changes HUD proposes may affect a few census tracts at the margins but will not
change the core distribution of opportunity that is apparent to anyone familiar with the Baltimore
Region. See Trial Tr. 363-64 (Judge Garbis) (“[W]e could nitpick as long as we have time on
whether [Prof. powell] should have included a 15th factor and subtracted number 12. . . . But by
HUD also criticizes Prof. powell’s analysis for relying on census data. See Fed. Defs.’17
Br. 48. HUD does not explain why, if census data are such a poor source of demographicinformation, HUD relies on such data so extensively in the operation of HUD programs. Censusdata are required, for example, in calculating funding allocations for CDBG grants, HOMEgrants, and Section 8 vouchers; determining eligibility for CDBG grants, HOME grants, andLIHTC credits; establishing FMRs; determining income limits for program participation; andimplementing site and neighborhood standards. See The American Community Survey:Challenges and Opportunities for HUD 31-40 (2002) (HUD-contracted study evaluating HUD’sreliance on census data), available at http://www.huduser.org/publications/polleg/acs.html.
31
and large, the hard core is, it’s going to be pretty bloody obvious that for the most part
everybody understand[s] what are the high opportunity areas and what are not.”).17
HUD finally argues that Prof. powell’s analysis does not provide the Court with enough
information to identify communities of opportunity. See Fed. Defs.’ Br. 49. This is incorrect.
Plaintiffs’ Proposed Order not only defines communities of opportunity with reference to Prof.
powell’s analysis, but also lists the individual census tracts that meet Prof. powell’s definition.
See Proposed Order § I.D & app. A (docketed at Paper 817).
HUD intentionally segregated African-American public housing residents in
impoverished African-American neighborhoods. The law commands that this wrong be
remedied with effective desegregation. The communities of opportunity approach is designed to
desegregate public housing in a manner that redresses the harms that class members have
suffered, places class members as nearly as possible in the position they would have occupied
absent discrimination, avoids reconcentration of poverty and disruption to receiving
neighborhoods, responds to the Supreme Court’s preference for race-neutral remedies where
possible, and effectuates the central goals of national housing policy.
4. The Proposed Remedy Expands Plaintiffs’ Choices.
Locational targeting of the remedial vouchers would expand, not reduce, the
neighborhoods effectively available to African-American public housing families. In the
And for class members who would nonetheless prefer a regular Section 8 voucher,18
applying for a remedial voucher would not cause those families to lose their place on the regularSection 8 waiting list. Proposed Order § IV.D.9.
Locational targets apply only to the use of remedial vouchers by families who19
voluntarily participate. Proposed Order § IV.D.4. Plaintiffs’ proposal provides that locationaltargets would not apply to Thompson class members who are involuntarily displaced (as, forexample, through demolition of public housing) and who receive a voucher as a form ofrelocation housing. Id.
32
absence of locational targeting, HUD’s regular Section 8 vouchers constrain housing choice and
cause racial segregation because of administrative obstacles, lack of information, lack of
transportation, discrimination, and other factors. See Pls.’ Br. 24-31, 57-61; Thompson, 348 F.
Supp. 2d at 460. HUD’s argument that remedial vouchers would require class members to forgo
meaningful alternatives, see Fed. Defs.’ Br. 42-47, ignores the reality that African-American
voucher users in the Baltimore Region do not presently possess unfettered or informed choice to
use their vouchers wherever they wish. Plaintiffs’ remedial proposal including locational18
targets thus expands housing choice over the status quo by actually delivering housing
opportunities in high-opportunity neighborhoods instead of offering merely the empty promise
of voucher portability. See Trial Tr. 1024 (Briggs). As Dr. Briggs explained, the Baltimore
Region is large enough that “even with several locational guidelines or targeting features focused
on maximizing access to opportunity communities, one could have dozens of choices, depending
on how large a pool of landlords is developed . . . if you’re talking about a regional approach.”
Id. In addition, Plaintiffs have proposed that the remedial vouchers be targeted to communities
of opportunity for the initial year of occupancy only. Proposed Order § IV.D.4.19
HUD also argues that Plaintiffs’ proposal should be rejected because it does not provide a
remedy for every class member – HUD claims that Plaintiffs’ proposal does not benefit those
who want to remain in public housing. Fed. Defs.’ Br. 44-45. This assertion is factually
33
incorrect. Numerous provisions of Plaintiffs’ Proposed Order would benefit all class members,
whether or not they choose to move to opportunity neighborhoods. The proposed Affordable
Housing Desegregation Plan, for example, requires HUD to identify steps it will take to ensure
fair housing consideration in decisions relating to the demolition or disposition of public
housing, approval of PHA five-year plans, and decisions that affect users of and applicants for
regular Section 8 vouchers (not just remedial vouchers). Proposed Order §§ I.G.1-6; II.D.8.
Plaintiffs’ proposal also requires HUD to ensure that all local grantees and PHAs – including
HABC – are taking meaningful steps to affirmatively further fair housing, and requires HUD to
discourage assisted housing development in impacted areas unless that development also
involves certain revitalization efforts. Id. § III.A.1. These requirements would benefit class
members who choose not to move out of public housing or into opportunity neighborhoods.
Those class members would also benefit from the deconcentration of poverty that would result
when a substantial number of their poorest neighbors move away as a result of the proposed
remedy. Trial Tr. 330 (powell).
Moreover, there is no legal basis for HUD’s objection – HUD has pointed to no case law,
and Plaintiffs are aware of none, that would require the remedy to offer moves to opportunity
areas to every member of the Plaintiff class. The proper scope of a remedy for unconstitutional
discrimination is to put victims of discriminatory conduct in the position they would have
occupied absent the unlawful conduct. Milliken, 418 U.S. at 746. Absent HUD’s unlawful
segregation of black public housing families, many of those families – though not all – would
now live in high-opportunity neighborhoods in the suburbs. Others would not, either by choice
or because some public housing would still have been created in poor black neighborhoods in the
City. Indeed, Plaintiffs’ proposal is precisely designed to address these differences: Plaintiffs
The Supreme Court also held that class certification was improper because the Rule20
23(b)(3) predominance requirement was not met. Amchem, 521 U.S. at 622-25 (noting thatindividual questions such as the extent of exposure and injury overwhelmed common questionsof fact). The predominance requirement does not apply in this case because the Thompson classwas certified under to Rule 23(b)(2), not Rule 23(b)(3). See Thompson v. HUD, Civ. No. MJG-95-309, Order Certifying Class & Approving Partial Consent Decree, at 1-2 (June 25, 1996)(Paper 54); Pls.’ Am. Compl. ¶¶ 28, 30(d) (Paper 280). Even if the predominance requirementof Rule 23(b)(3) did apply, common questions of law and fact do predominate here. A remedyfor HUD’s unconstitutional and unlawful housing discrimination does not entail the same kind ofconsideration as the review of the individualized health and exposure circumstances of the“perhaps millions” of class members that concerned the Court in Amchem, 521 U.S. at 597.
34
calculated the number of desegregative housing opportunities that should be included in the
remedy by making the reasonable assumption that the housing choices of public housing
residents in the Baltimore Region would have mirrored the housing choices of families of
limited means on the private rental market. Pls.’ Br. 55-56. Because HUD’s discrimination
deprived those class members who would have chosen suburban, non-segregated housing of the
opportunity to do so, Plaintiffs’ remedial proposal is properly aimed at rectifying the harm by
providing that opportunity.
Because Plaintiffs are all similarly situated and all will have a similar chance to benefit
from the remedy, the fact that not all will in fact move to a community of opportunity does not
create any conflict among class members and so does not violate the precepts of Amchem
Products, Inc. v. Windsor, 521 U.S. 591 (1997). Amchem held that certification of a settlement
class in consolidated asbestos litigation was improper because the class did not meet the Rule
23(a)(4) “adequacy of representation” requirement. Amchem, 521 U.S. at 625-28. The Court20
explained that the class contained distinct subclasses – parties who currently had asbestos-related
illnesses, and parties who had asbestos exposure but no current injuries – and that the interests of
the distinct subclasses could not be reconciled: “[F]or the currently injured, the critical goal is
generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in
35
ensuring an ample, inflation-protected fund for the future.” Id. at 626. HUD claims that the
instant case is like Amchem because Plaintiffs’ proposal “creat[es] a remedy only for those class
members who decide to live where plaintiffs’ experts think they should live.” Fed. Defs.’ Br. 45.
There is no intra-class conflict here that even remotely implicates the Supreme Court’s concerns
in Amchem. All Thompson Plaintiffs have suffered the same harm: denial of the opportunity to
live, if they chose to do so, in non-segregated areas of the Baltimore Region. And all will have
an equal opportunity to access the desegregative remedies, even though some may not take
advantage of that opportunity. As described in Part III.B.3 above, the communities of
opportunity approach identifies neighborhoods that can serve to desegregate public housing. A
remedy for segregation must involve desegregative effect, and providing remedial housing
opportunities in desegregative neighborhoods hardly can be said to create class conflict.
As shown by the testimony of Plaintiffs’ fact witnesses and experts, locational targets
work well for African-American public housing families, disproving HUD’s argument that racial
housing preference patterns render locational targets unworkable. See Fed. Defs.’ Br. 46-47.
The evidence shows not only that low-income African-Americans generally prefer more
integrated neighborhoods than the ones in which they currently reside (especially when their
current neighborhoods are nearly entirely black, as is the case for Baltimore City public housing
residents), but also that school quality, employment opportunities, safety, neighborhood quality,
and numerous other factors are higher priorities than neighborhood racial composition in making
residential decisions. See Trial Tr. 1471-73, 1482-83, 1517-18 (Charles); Trial Tr. 313 (powell);
PX-764, Briggs Written Test. 21; PX-770, DeLuca Written Test. 20-21; see also SOF ¶¶ 292-94.
A number of African-American witnesses testified at trial that they have chosen to move
to predominantly white neighborhoods to improve their lives and provide a better environment to
36
their families. Reverend Kwame Abayomi testified that he and African-American members of
his congregation moved to neighborhoods that offered them better education, jobs, and safety.
Trial Tr. 672-76 (Abayomi). Reverend Johnny Golden testified that low-income black families
in his congregation moved to white neighborhoods in the suburbs. Trial Tr. 702-03 (Golden).
And former residents of Baltimore City public housing who moved to the suburbs on a PCD
voucher testified that safety, schools, and neighborhood quality, rather than racial composition,
motivated their moves to predominantly white neighborhoods. See Trial Tr. 562-63 (Dickey);
Trial Tr. 897-99 (Robinson); Trial Tr. 2657-64 (Neal); see also SOF ¶¶ 290-91. These witnesses
testified as well that they have been welcomed warmly by their new neighbors. See Trial Tr.
562-63 (Dickey); Trial Tr. 897-99 (Robinson); Trial Tr. 2657-64 (Neal).
5. HUD Has Both the Authority and the Ability to Use its Leverage OverGrant Programs in the Service of a Remedy.
In Hills v. Gautreaux, the Supreme Court unanimously rejected each argument that HUD
makes here regarding HUD’s purported lack of leverage to influence local jurisdictions. In its
losing effort thirty years ago in Gautreaux, HUD asserted the same three arguments that it raises
now – that HUD has no ability to influence what local jurisdictions do with federal housing
funds; that any efforts to assert the leverage HUD does have are not likely to be effective; and
that it is unfair to impose conditions on local actors who are not parties to the case. The reasons
for rejecting these arguments will be discussed in turn below.
HUD’s first argument is that it has no statutory power to affect the actions of local
jurisdictions, or to condition the receipt of federal funds on compliance with civil rights
requirements. HUD claims that the various funding statutes at issue give local recipients the
prerogative to determine how those funds will be spent. Fed. Defs.’ Br. 50-53. HUD made this
argument unsuccessfully to the Supreme Court in Gautreaux. See Brief for the Petitioner at 29,
37
Hills v. Gautreaux, 425 U.S. 284 (1975) (No. 74-1047) [attached hereto as Appendix A] (“An
inter-district remedy here would be contrary to the statutory scheme, which reserves to the local
community the decision whether to participate in federally funded public housing programs.”);
see also id. at 31-34 (arguing that the “practical operation” of many HUD-funded programs is
“in a significant degree [] under local control.”). The Court rejected this argument and held that
the district court could order a regional remedy requiring HUD to impose and enforce civil rights
conditions on the use of federal housing funds:
[A] metropolitan area relief order directed to HUD . . . wouldneither force suburban governments to submit public housingproposals to HUD nor displace the rights and powers accordedlocal government entities under federal or state housing statutes orexisting land-use laws. The order would have the same effect onthe suburban governments as a discretionary decision by HUD touse its statutory powers to provide the respondents withalternatives to the racially segregated Chicago public housingsystem . . . .
Gautreaux, 425 U.S. at 305-06. Numerous federal court decisions since Gautreaux have
followed this holding and approved orders requiring HUD to condition federal funds on
compliance with remedial desegregation obligations. See, e.g., NAACP, 817 F.2d at 155, 157
(“Clearly, HUD possesses broad discretionary powers to develop, award, and administer its
grants and to decide the degree to which they can be shaped to help achieve Title VIII’s goals.”);
Shannon, 436 F.2d at 816, 820-23; NAACP v. Kemp, 721 F. Supp. 361, 367 (D. Mass. 1989)
(“[HUD’s] control of current and future [CDBG] grant funds gives the agency leverage to
remedy past and current noncompliance with fair housing goals.”).
These judicial findings simply confirm the argument Plaintiffs already have made that
the statutory and regulatory provisions governing federal housing funds (whether public housing
funds, Section 8 voucher funds, CDBG grants, HOME grants, or other programmatic funding
38
sources) provide HUD with tremendous leverage to ensure that grantees and PHAs use those
funds in a manner that furthers fair housing and complies with the duty to desegregate under the
Fifth Amendment. See Pls.’ Br. 73-75. HUD’s argument rests on the assertion that there is
nothing wrong with how federal housing funds have been spent to date; the Court’s finding of
Fair Housing Act liability and its finding that HUD has not eliminated the vestiges of past
segregation demonstrate that that assertion is incorrect. Enforcement of the long-standing
requirement that HUD funds be used to promote fair housing is thus a proper component of the
remedy here, and would not deprive local jurisdictions of the appropriate level of flexibility
under current funding statutes.
HUD next argues that any efforts to assert its leverage – leverage that it has claimed,
contradictorily, not to have – will not be effective. HUD contends that if it attempts to influence
the behavior of local grantees, those jurisdictions “may turn down grant money if they are not
interested in complying with whatever conditions HUD imposes.” Fed. Defs.’ Br. 53-54. HUD
made this precise claim to the Supreme Court in Gautreaux. See Brief for the Petitioner at 30,
Gautreaux, 425 U.S. 284 (No. 74-1047) (“[R]eluctance to participate in a metropolitan area-wide
plan designed to remedy the effects of discrimination in Chicago may lead suburban
communities to refrain from applying to HUD for public housing assistance.”). Not only did the
Supreme Court reject this argument in authorizing a remedy that placed civil rights conditions on
the receipt of CDBG funds, see Gautreaux, 425 U.S. at 303-06, but the experience of
implementing the Gautreaux remedy disproved HUD’s concern (and discredits HUD’s attempt
to reassert the argument now). HUD correctly notes that some jurisdictions in Chicago turned
down grant money to avoid participating in the remedy. See Fed. Defs.’ Br. 53; Trial Tr. 2515-
16 (Rohe). But HUD fails to tell this Court that the number of jurisdictions that turned down
The seminal analysis of the implementation of the Gautreaux remedy similarly notes21
that “[m]ost of the Chicago area’s eligible municipalities, as well as all four of the region’seligible counties, applied for CDBG funds and developed the required housing plans. However,five Chicago suburbs turned down CDBG funds so they would not have to accommodate low-income minorities as residents.” Leonard S. Rubinowitz & James E. Rosenbaum, Crossing theClass and Color Lines: From Public Housing to White Suburbia 46 (2000).
Moreover, HUD actions to comply with a remedial decree in this case would carry the22
substantial force of a federal court order, increasing the likelihood of local cooperation. SeeClients’ Council v. Pierce, 711 F.2d 1406, 1426 (8th Cir. 1983) (directing HUD to imposecertain requirements on the local PHA, and noting that the court had “no reason to believe thatthe [PHA would] refuse to comply with a specific directive issued by HUD at the direction of thedistrict court”); cf. Walker 1997 Remedial Order, at 2-3 (¶¶ A.3-A.5) (requiring HUD to requestthat suburban jurisdictions enter into cooperation agreements for the development of suburbanpublic housing units, and directing HUD to consider initiating a civil rights investigation if anyjurisdiction refused the request).
39
funds was a small fraction of the total number of jurisdictions involved in implementing the
Gautreaux remedy. There were more than two hundred participating municipalities in the
Chicago housing market area. See Brief for the Petitioner at 36, Gautreaux, 425 U.S. 284 (No.
74-1047). Of those two hundred local actors, just five decided to forfeit federal funds to avoid
having to participate in the remedy. Trial Tr. 2515-16 (Rohe) (“[I]n Gautreaux, in Chicago,
there were five communities that decided not to participate, and actually gave up their [CDBG]
dollars because they were not willing to participate.”). This works out to a participation rate of21
over 97% – hardly an indictment of HUD’s ability to attain local cooperation in desegregation
remedies. The experience of implementing the desegregation remedy in Gautreaux does not
support HUD’s warning to this Court regarding the extent of HUD’s ability to achieve local
cooperation.22
Finally, HUD argues that it is unfair or unlawful to impose conditions on local
jurisdictions that are not parties to the case. See Fed. Defs.’ Br. 34, 49, 74-75. Again,
Gautreaux squarely precludes this argument – the Supreme Court held that a metropolitan-area
remedy requiring HUD to act in certain ways outside the city of Chicago would not
40
impermissibly interfere with the authority of local jurisdictions, because those jurisdictions were
not required to apply for or receive federal funds and could be held to constitutional and
statutory civil rights requirements if they did so. Gautreaux, 425 U.S. at 300-06.
A subsequent housing desegregation lawsuit in East Texas applied this holding from
Gautreaux to explain the permissibility of remedial elements that required HUD to impose
conditions on local jurisdictions:
[T]he interim injunction is directed solely to HUD, whoseconstitutional violations form the “necessary predicate” for theremedies formulated. . . . [T]he injunction does not coerce“uninvolved governmental units” to do anything. It does not alterthe constitutional, statutory, or regulatory ground rules that longhave governed – or, at least, should have governed – HUD’srelationships with its clients. Nor does it force unwilling localgovernments, PHAs, or others, to apply for, or continue to receive,HUD assistance.
Young v. Pierce, 685 F. Supp. 975, 981 (E.D. Tex. 1988) (quoting Gautreaux, 425 U.S. at 297);
see also Young v. Pierce, 685 F. Supp. 986, 987-90 (E.D. Tex. 1988) (Interim Injunction).
Likewise, the remedy here does not alter the constitutional, statutory, and regulatory framework
that long should have – but has not – governed HUD’s relationship with its grantees in the
Baltimore Region. Nor does the remedy force grantees to apply for or continue to receive
federal funds.
Plaintiffs’ proposed remedy makes permissible use of HUD’s leverage over local
jurisdictions in the Baltimore Region and requires only that HUD enforce the desegregative
mandate that should have been pursued all along through the use of federal funds.
6. Hard Units Are an Appropriate Component of the DesegregationRemedy in this Case.
HUD argues that this Court should not include hard units in the remedy. See Fed. Defs.’
Br. 55-58. Plaintiffs presented extensive evidence at trial demonstrating the need to include hard
41
units to provide homes to large families and to assure availability if the rental market tightens.
See, e.g., Trial Tr. 92-100 (Khadduri); Trial Tr. 317-18 (powell); Trial Tr. 391-92 (Basu); Trial
Tr. 1038 (Briggs); PX-765, Khadduri Written Test., at rebuttal 3; see also Pls.’ Br. 67-70; SOF
¶¶ 315-17. HUD says nothing to rebut this evidence, but instead argues only that there are
difficulties associated with including hard units.
HUD speculates that local actors may not be willing to make hard units in their
jurisdictions available to African-American public housing residents from Baltimore City. Fed.
Defs.’ Br. 56-57. But HUD is the source of the funds being used to create these units, and as
such HUD must wield its leverage in a way that ensures compliance with civil rights
requirements. The discussion in the preceding section refutes HUD’s claim that it has no ability
to influence the decisions of state and local actors. Moreover, the possibility that another actor
may resist civil rights requirements does not absolve HUD of its obligation to take all necessary
steps to eliminate the effects of its past discrimination. See Gautreaux v. Romney, 448 F.2d 731,
738-39 (7th Cir. 1971).
HUD also suggests that hard units should not be developed outside Baltimore City
because of the possibility that the “best” tenants will leave the City and the “worst” tenants will
remain behind (an argument HUD has termed “creaming”). This speculative argument is in fact
contradicted by the experience of both the Gautreaux program and the MTO demonstration. Dr.
Stefanie DeLuca testified that results from the Gautreaux remedy showed that families who
moved out of segregated public housing were very similar to the families who did not choose to
move. See Trial Tr. 879 (DeLuca) (“[W]e do know that these families [who moved] are not the
cream of the crop. These are families that are really similar to other very poor low income black
families who have lived a large portion of their lives in public housing.”). MTO research shows
42
that successful movers actually had lower incomes, were less likely to be employed, and were
more likely to receive welfare than families in the control group. See FDR-32, HUD, MTO
Current Status and Initial Findings 31-32 & tbl.5 (Sept. 1999) (“The families that elected to join
MTO are thus not the highest-income families nor the ones with the most employment: MTO has
not ‘creamed’ from the public housing population.”). Dr. Jill Khadduri similarly testified that
HUD’s “creaming” argument is factually flawed, not least because it assumes that the
characteristics that make families “good” or “bad” tenants are immutable. See PX-765,
Khadduri Written Test., at rebuttal 10. In any event, HUD may not evade its desegregative
obligations on the speculative ground that hard-to-serve populations of public housing families
may require additional assistance. Prof. Rohe himself, the source of HUD’s “creaming”
argument, testified that it is not legitimate to “keep people in central city developments just for
the sake of keeping a healthy environment.” Trial Tr. 2550 (Rohe) (agreeing that “families who
want to move should not be required to stay to prevent creaming”).
7. The Possibility That a Remedy Will Cost Money to Implement Is Nota Barrier to Ordering Relief.
HUD claims that this Court may not order a remedy that will cost money to implement.
HUD’s argument is so broad that it would bar injunctive relief against government actors in all
cases.
HUD first suggests that the Appropriations Clause of the Constitution might bar
injunctive relief in this case. See Fed. Defs.’ Br. 58. The Appropriations Clause states: “No
Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”
U.S. Const. Art. I, § 9, cl. 7. As demonstrated by the cases that HUD cites, the Supreme Court
and lower courts have applied the Appropriations Clause to preclude courts from ordering the
payment of money damages when no express congressional appropriation exists, or to preclude
HUD also cites Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), for23
the premise that Congress has exclusive authority to appropriate public funds. See Fed. Defs.’Br. 58. Richmond involved a former federal employee’s claim that he was entitled to an annuityfrom the government. Richmond, 496 U.S. at 417-18. In applying the Appropriations Clause tobar such a payment, the Supreme Court held that the employee could not receive a payment ofmoney that was “in direct contravention of the federal statute upon which his ultimate claim tothe funds must rest.” Id. at 424. Richmond is inapplicable here – Plaintiffs do not seek apayment of money, much less a payment of money that is directly foreclosed by federal statute,but instead seek injunctive relief. For this Court to order injunctive relief would not usurpCongress’s role in appropriating public funds.
43
courts from extending a specific appropriation past its expiration. Neither circumstance is
present in Plaintiffs’ proposed remedy.
HUD cites National Association of Regional Councils v. Costle, 564 F.2d 583 (D.C. Cir.
1977) (NARC), for the proposition that courts may not order the obligation of public funds. See
Fed. Defs.’ Br. 58, 71-72. NARC concerned unspent funds that Congress appropriated to EPA
for a water quality program in 1972. EPA delayed implementation of the program and by 1975,
when the plaintiffs filed suit, EPA’s statutory budget authority for the preceding years had gone
unspent. The district court ordered EPA to spend the specific allocation of money for the prior
years, even though the budget authority had lapsed. The D.C. Circuit reversed, holding that the
district court could not order EPA to spend a specific appropriation that had lapsed before the
suit was filed. NARC, 564 F.2d at 589. The holding in NARC is thus far narrower than the dicta
that HUD cherry-picks for inclusion in its brief – the appeals court held that the district court
could not order EPA to spend a specific appropriation that had already expired. Plaintiffs do not
seek to force HUD to spend any specified appropriations, expired or otherwise, and NARC does
not foreclose the permissibility of injunctive relief that may cost money to implement.23
Contrary to HUD’s suggestion, the Appropriations Clause does not bar court orders from
altering the way that federal agencies spend existing appropriations to vindicate constitutional
44
rights. HUD cites Justice Powell’s opinion concurring in part and dissenting in part in Califano
v. Westcott, 443 U.S. 76 (1979), for the general point that courts may not use remedial powers to
“circumvent the intent of the legislature.” Id. at 94 (Powell, J., concurring in part and dissenting
in part). In the first place, there is no evidence for the proposition that the desegregative remedy
sought by Plaintiffs would circumvent the intent of Congress, which imposed the “affirmatively
further fair housing” requirement nearly forty years ago and has maintained it ever since. More
importantly, HUD fails to discuss the majority opinion in Califano, which directly supports the
permissibility of the relief that Plaintiffs seek.
Califano was a suit against the federal Department of Health, Education, and Welfare
regarding the constitutionality of the AFDC-UF (“Unemployed Father”) program, which
provided benefits to families where the father was unemployed but not to families where the
mother was unemployed. Id. at 78 (majority opinion). All nine Justices agreed that this
restriction was unconstitutional sex discrimination. See id. at 89; see also id. at 93 (Powell, J.).
The majority further held that the district court properly ordered the agency to continue the
AFDC-UF program and render it gender-neutral – allowing families with an unemployed mother
to qualify, and thereby making large numbers of additional families eligible for the program at
potentially significant cost to the agency. Id. at 89-90, 93 (majority opinion). Indeed, the Court
held that extension of federal benefits to unlawfully excluded groups is generally the proper
remedy, and noted that “this Court regularly has affirmed District Court judgments ordering that
welfare benefits be paid to members of an unconstitutionally excluded class.” Id. at 89-90
(citing cases). Lower courts similarly have held that injunctive relief against the federal
government is proper even if it may cost money to implement. See, e.g., Jaffee v. United States,
592 F.2d 712, 715 (3d Cir. 1979); White v. Mathews, 559 F.2d 852, 858-60 (2d Cir. 1977).
45
Accepting HUD’s Appropriations Clause argument would be to accept that injunctive
relief could never be ordered against the federal government, because “[a]lmost all injunctive
relief will require some expenditure of funds by a defendant in order to comply with the terms of
the injunction.” NAACP v. A.A. Arms, Inc., 2003 WL 1049011, at *6 (E.D.N.Y. Feb. 24, 2003).
HUD’s argument, for example, would have foreclosed the Supreme Court in Bolling v. Sharpe
from ordering that the federal government remedy the segregation of public schools in the
District of Columbia. The law does not limit this Court’s remedial powers as HUD proposes.
HUD next engages in many pages of discussion regarding the precise methods for
calculating overall assistance levels to PHAs and local grantees. See Fed. Defs.’ Br. 59-72. This
discussion is entirely irrelevant – none of Plaintiffs’ proposed remedies would contravene
statutory formulas for setting overall assistance levels. There is ample room within
programmatic budget allocations for HUD to set priorities. As the facts of this case show,
desegregating public housing in Baltimore has not been a HUD priority to date. The
Constitution and the Fair Housing Act require that it become one.
HUD also asserts that it has spent the money in its budget for fiscal year 2006. It is
exceedingly unlikely, however, that any remedy ordered in this case would be implemented prior
to the close of the current fiscal year on September 30. Indeed, Plaintiffs have proposed that the
remedy be implemented over a ten-year period, in light of the significant work that must be
undertaken to remedy the decades of unlawful public housing segregation in the Baltimore
Region. HUD’s listing of 2006 expenditures is therefore beside the point.
HUD’s lengthy discussion of funding availability appears to be an attempt to make itself
judgment-proof. But HUD may not evade its constitutional obligations simply by claiming it has
no money to spend – if this were permissible, federal actors could violate constitutional rights
HUD contends that tenant protection vouchers are only available to assist the families24
that are displaced through demolition or disposition of public and assisted housing. See Fed.Defs.’ Br. 64. This argument is incorrect: tenant protection vouchers become available for allunits in converted properties, whether or not those units are occupied. See PX-686, HUD,Notice PIH 2004-4, at 2-3 (Mar. 29, 2004) (reinstated by HUD, Notice PIH 2005-15 (Apr. 26,2005)). Any voucher not needed to relocate an on-site family may thus be used by the PHA forfamilies on the voucher waiting list. See PX-728, HUD, Notice PIH 2001-41, at 12-13 (Nov. 14,2001). In any event, HUD’s argument overlooks that any families displaced through futuredemolition of public housing will be Thompson class members. Because tenant protectionvouchers must, even using HUD’s characterization, be provided to these displaced Thompsonfamilies in the future, those vouchers could be supplemented with the remedial enhancementsPlaintiffs have proposed.
46
with impunity. Nor is it correct as a factual matter that HUD has no money available. Plaintiffs
have suggested numerous possible sources of funds to be used in implementing a remedy,
including block grant funds and tenant protection vouchers. Pls.’ Br. 79-80. Plaintiffs also24
have suggested that HUD, through the executive, could request a budget allocation from
Congress to meet its Thompson remedial obligations. Pls.’ Br. 80. HUD’s Post-Trial Brief
confirms the availability of this option – HUD concedes that it has in the past requested and
received funding from Congress for “the costs of judgments and settlement agreements.” See
Fed. Defs.’ Br. 63; see also Trial Tr. 2348-51 (Vargas). Plaintiffs discuss these funding sources
not to suggest that the Court order that a specific appropriation be used in service of the remedy
– Plaintiffs’ proposed remedy leaves to HUD the discretion to figure out how exactly to pay for
the necessary remedial measures – but rather to disprove as a factual matter HUD’s protestations
that it cannot afford to undo the long-standing segregation that it itself imposed on African-
American public housing families in Baltimore. HUD has, and is likely to have in the future,
sufficient resources to pay for a remedy in this case.
8. The Remedy Is Appropriately Deferential to HUD’s Discretion.
HUD argues that Plaintiffs’ proposed remedy denies HUD the discretion it is due as an
47
executive agency. HUD’s argument in effect seeks discretion to continue violating the
Constitution and Fair Housing Act. Plaintiffs agree that the Court’s remedial order should not
impose requirements that would interfere with HUD’s basic mission and should defer where
appropriate to HUD’s expertise. NAACP, 817 F.2d at 159. As discussed in Part III.B.1 above,
Plaintiffs’ Proposed Order, far from hindering the accomplishment of HUD’s general objectives,
in fact advances those objectives. And as discussed below, each element of Plaintiffs’ Proposed
Order is mindful of deferring to HUD’s discretion where appropriate.
Centrally, HUD would have the authority in the first instance to create the Affordable
Housing Desegregation Plan, a remedial component that both defers to HUD’s expertise and
grants HUD substantial discretion in identifying ways to rectify its long-standing failure to
desegregate. Proposed Order § II.A. HUD concedes that Plaintiffs’ Proposed Order is
deferential to HUD’s discretion in this way. Fed. Defs.’ Br. 72. HUD objects, however, that
review of the Desegregation Plan by Plaintiffs and the Court would intrude on its domain. Such
review is not an impermissible imposition on HUD’s discretion. District court review of steps
taken in compliance with a desegregation order is necessary to ensure effective compliance, is a
common element of desegregation decrees, and reflects the district court’s inherent equitable
authority to see that its remedial orders are properly implemented. See Brown II, 349 U.S. at 301
(directing district courts to consider the adequacy of desegregation plans proposed by the
defendants); see also, e.g., Walker 1997 Remedial Order 10; Young v. Cisneros, No. P-80-8-CA,
at 2, 19 (E.D. Tex. Mar. 30, 1995) (Final Judgment and Decree); Kemp, 721 F. Supp. at 372.
HUD also retains the authority to determine how to create the desegregative housing
opportunities required by the Proposed Order – HUD may determine the specific programs to be
used to create the desegregative opportunities and may decide the precise allocation of vouchers
48
and hard units to provide in any given year. Proposed Order § IV.A.3. HUD has discretion to
select the Regional Administrator and the Mobility Counselor for the remedial vouchers.
Proposed Order §§ IV.D.2, IV.E.2. Plaintiffs’ remedial proposal also defers to HUD in the
proposed changes to HUD decisionmaking, allowing HUD to develop the standards by which it
will ensure that it and its grantees sufficiently consider fair housing and the need to desegregate
in programmatic activities. Proposed Order §§ III.A.1, 4, 8.
In addition to being incorrect about the measure of deference accorded to HUD under
Plaintiffs’ Proposed Order, HUD mistakenly assumes that discretion only flows in one direction:
toward HUD. The purpose of judicial review of agency action is to check the potential for abuse
of agency discretion:
The widespread existence of broad discretionary power is a sourceof concern for several reasons. First, conferring broadpolicymaking power on unelected bureaucrats raises seriousquestions concerning the compatibility of the administrative statewith our basic system of democratic government. . . . Second,unlimited agency discretion would place in jeopardy theconstitutional and statutory rights of all citizens. . . . Third,unlimited agency discretion is subject to potential abuse in theform of differential treatment of like cases based on impermissiblemotives or as a consequence of poor institutional management ordesign. . . . At least part of the solution to the problem of agencydiscretion must lie in judicial review of agency actions.
3 Richard J. Pierce, Jr., Administrative Law Treatise §§ 17.1–17.2, at 1232-33 (4th ed. 2002).
Plaintiffs’ Proposed Order thus defers to HUD in many of the specifics as to how HUD
will fulfill its remedial obligations. But Plaintiffs’ Proposed Order does not give HUD the
discretion to continue its lengthy history of flouting the Constitution and the Fair Housing Act.
An agency’s discretion is not unlimited; HUD may not justify ignoring its statutory and
constitutional obligations under the guise of exercising discretion. See Shannon, 436 F.2d at 819
(“The defendants assert that HUD has broad discretion to choose between alternative methods of
49
achieving the national housing objectives set forth in the several applicable statutes. . . . We
agree that broad discretion may be exercised. But that discretion must be exercised within the
framework of the national policy against discrimination in federally assisted housing and in
favor of fair housing.” (internal citations omitted)). Where, as here, the agency has a long
history of ignoring legal mandates, the argument that the agency has any particular expertise in
determining how to comply with the law loses all force. See NRDC v. Rodgers, 2005 WL
1388671, at *5 (E.D. Cal. June 9, 2005) (“[N]othing suggests that the agency has any particular
expertise in determining what constitutes compliance with [the statute]. Indeed, its history of
ignoring its obligations under the statute suggests the contrary.”).
9. HUD Ignores the Central Goal of a Desegregation Remedy, Which Isto Redress Unconstitutional, Race-Based Harm.
HUD identifies through its experts and other witnesses a host of features that HUD
claims must be incorporated for a remedy to be permissible and effective. Plaintiffs have
discussed these objections above, and shown why none ought to deter this Court from entering
an effective remedy. It is telling, however, that among all of the features of remedial design that
HUD has chosen to emphasize, HUD has ignored the single most important element of a remedy
for constitutional and statutory violations of civil rights: the remedy must cure the conditions
that offend the Fifth Amendment and Fair Housing Act. HUD’s long list of justifications for
doing nothing must yield to this imperative.
C. HUD’s Post-Trial Brief Is Rife With Inconsistencies.
The repeated presentation of internally inconsistent arguments throughout HUD’s Post-
Trial Brief undermines HUD’s credibility and calls into question the reliability of HUD’s
positions regarding what HUD can and cannot do. These inconsistences surface in connection
with virtually every argument HUD makes:
50
• Vouchers: In its defense to liability, HUD argues that the voucher program promotes fairhousing on a regional basis. See Fed. Defs.’ Br. 9-13; HUD Findings of Fact ¶ 9.A. HUD specifically argues that it controls the level of voucher subsidies (FMRs), a tool itclaims to use to promote mobility. See Fed. Defs.’ Br. 10-11. Yet HUD then argues thatvouchers cannot be part of a remedy designed to promote fair housing on a regionalbasis, because “[v]irtually none of the budget authority made available to PIH providesHUD with any flexibility as to its allocation.” Id. at 61.
• Mobility Counseling: HUD argues that it operated two “capacity-building” programs thatincluded mobility counseling – ROC and MTO – and that these programs serve as adefense to liability. See Fed. Defs.’ Br. 21-24. But HUD then argues that mobilitycounseling should not be included in a remedy both because it is ineffective and becauseit would be “anomalous” for HUD to operate mobility programs. See id. at 73.
• CDBG and HOME: HUD relies on the CDBG and HOME programs as a defense toliability on the ground that the block grant programs promoted fair housing. See Fed.Defs.’ Br. 14-15. HUD then objects to the use of CDBG and HOME funds in the serviceof a desegregative remedy, however, claiming that “HUD has no discretion as to theallocation” of CDBG and HOME budget authority. Id. at 68, 70.
• Hard Units: HUD claims that it has funded or subsidized thousands of hard housing unitsthroughout the Baltimore Region as a defense to liability. Fed. Defs.’ Br. 8-9. HUD thenturns around and objects to the inclusion of hard units in Plaintiffs’ proposed remedy onthe ground that hard unit development is impractical and unlikely to be accomplished dueto cost and local government opposition. Id. at 55-57.
• Leverage Over Local Jurisdictions: HUD’s defense to liability relies extensively onHUD’s purported efforts to educate and train local jurisdictions on fair housingcompliance, and to enforce the obligation that recipients of HUD grants use those fundsto affirmatively further fair housing. See Fed. Defs.’ Br. 15-19; HUD Findings of Fact¶ 9.F. HUD, for example, cites the Analysis of Impediments that grantees completed toreceive block grants as a defense to Fair Housing Act liability. See Fed. Defs.’ Br. 24-25. But when it comes to using any of this influence to implement a remedy, HUD disclaimsnearly all authority to affect the actions of local governments. See id. at 49-55.
In every one of these examples HUD’s two positions cannot both be correct, as this Court
noted on the first day of trial:
[T]he simultaneous argument that HUD can’t possibly do anythingat all, I mean, this is ridiculous. The defendants are trying to saywe can’t do something, we can’t do anything, oh, by the way,Judge, we’re going to show you all the things we did do forregionalization. It’s kind of a little bit disingenuous. You’reentitle[d] to do both arguments, but at some point, you have todecide whether HUD absolutely can’t do anything, in which case
51
they haven’t done anything, or they can do something, and this iswhat we’ve done, and we can argue about that.
Trial Tr. 33 (Judge Garbis). Plaintiffs have demonstrated that HUD does have the power to use
its various programs in a way that could promote desegregation: vouchers, CDBG grants, the
HOME program, the various hard unit production programs, and the other HUD activities
discussed in this case all have the potential to be used to desegregate public housing. Yet the
evidence presented at trial and discussed in Plaintiffs’ post-trial papers demonstrates that despite
the potential of these programs, HUD never has operated them in a manner that met the
command of the Fifth Amendment and Fair Housing Act.
HUD’s arguments are essentially these: HUD has acted to desegregate public housing,
and, HUD can’t possibly act to desegregate public housing. The evidence shows HUD is
incorrect on both scores: HUD has not desegregated public housing, but HUD could do so if it
tried. HUD therefore should be ordered to use all of the tools at its disposal to comply, finally,
with the Fifth Amendment and the Fair Housing Act and provide African-American public
housing residents with the desegregated housing they should have had for the past half century.
CONCLUSION
For the reasons articulated above, this Court should hold that Federal Defendants violated
the Fifth Amendment by failing to disestablish segregated public housing; reaffirm its earlier
holding that HUD violated the Fair Housing Act by failing to affirmatively further fair housing;
and order the relief requested in Plaintiffs’ Proposed Order.
Dated: June 30, 2006.
Respectfully submitted,
Peter BuscemiE. Andrew SoutherlingEdward S. KeefeDavid M. KerrHarvey Bartle, IVJason G. BenionJennifer A. BowenMORGAN, LEWIS & BOCKIUS LLP1111 Pennsylvania Avenue, NWWashington, D.C. 20004202-739-3000
Barbara Samuels, Bar No. 08681ACLU FOUNDATION OF MARYLAND3600 Clipper Mill Road, Suite 350Baltimore, MD 21211410-889-8555
Theodore M. Shaw, Director-CounselRobert H. StroupMelissa S. WoodsMatthew ColangeloMelanca D. ClarkNAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.99 Hudson St., 16th FloorNew York, NY 10013212-965-2200
/ s / Andrew D. Freeman, Bar No. 03867BROWN, GOLDSTEIN & LEVY, LLP120 E. Baltimore Street, Suite 1700Baltimore, MD 21202410-962-1030
Attorneys for Plaintiffs