The opinion of the court was delivered by: Austin, District Judge.
RULING ON MOTIONS AND ORDER
Plaintiffs, all Negroes and either tenants in or applicants for
public housing, by this suit challenge, on behalf of themselves
and all others similarly situated, the Constitutional validity of
the site selection policy of the Chicago Housing Authority.
Plaintiffs allege that since 1950, the CHA has selected sites,
deliberately or otherwise, for public housing projects almost
exclusively within neighborhoods the racial composition of which
was all or substantially all Negro at the time the sites were
acquired, for the purpose of, or with the result of, maintaining
existing patterns of urban residential segregation by race in
violation of the Fourteenth Amendment.
Defendants move to dismiss the suit, claiming that plaintiffs
lack standing to sue or are barred by laches and that this is an
improper class action. After careful consideration of the briefs,
affidavits, and arguments of counsel, the Court holds that
plaintiffs have standing to maintain this action and that it is
a proper class action. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct.
549, 7 L.Ed.2d 512 (1962); Singleton v. Board of Commissioners,
356 F.2d 771 (5th Cir. 1966); Potts v. Flax, 313 F.2d 284 (5th
Cir. 1963). Nor are plaintiffs barred by laches.
What is at issue here is not the quality of the contacts with
the CHA of individual tenants or applicants but rather whether
the site selection policy of the CHA has been and is being
administered without regard to considerations of race. This issue
transcends any particular individual's relationship to the
system, and plaintiffs, as present and future users of the
system, have the right under the Fourteenth Amendment to have
sites selected for public housing projects without regard to the
racial composition of either the surrounding neighborhood or of
the projects themselves. Possessing this right and being of the
opinion that it is being denied them, plaintiffs may maintain
this action to determine whether their opinion is correct, and if
it is, to secure an appropriate remedy to insure protection of
their right. 42 U.S.C. § 1983. Defendants' motion to dismiss the
suit for lack of standing, laches, or for the reason that it is
an improper class action is denied.
Defendants move to dismiss Count II, predicated on Section 601
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, for failure to
state a claim under that section. Defendants' position has been
considered and rejected in Bossier Parish School Board v. Lemon,
370 F.2d 847, 5th Cir., January 5, 1967. While much is to be said
for defendants' position in light of the legislative history
surrounding the enactment of Title VI of the Civil Rights Act of
which Section 601 is a part,*fn1 and in light of the
reasoning found in Judge Robson's opinion in Green Street
Association v. Daley, 250 F. Supp. 139 (N.D.Ill. 1966), aff'd on
other grounds, 373 F.2d 1, 7th Cir., January 25, 1967, the Court
feels compelled to adhere to the construction of Section 601
found in Lemon and not specifically disapproved by Court of
Appeals for the Seventh Circuit when confronted with an
opportunity to do so in Green Street Association v. Daley, supra.
Defendants' motion to dismiss Count II is therefore denied.
Defendants move to dismiss Counts III and IV of the Complaint
for failure to state a claim upon which relief may be granted
because they do not allege that defendants implemented their site
selection policy with the deliberate intent to deprive plaintiffs
of rights secured them by the Fourteenth Amendment. Defendants'
motion to dismiss Counts III and IV is sustained because
plaintiffs must in fact prove, or prove facts from which the
inference necessarily follows, that defendants were prompted in
their selection of sites at least in part by a desire to maintain
concentration of Negroes in particular areas or to prevent them
from living in other areas. A public housing program,
conscientiously administered in accord with the statutory
mandates surrounding its inception*fn2 and free of any intent or
purpose, however slight, to segregate the races, cannot be
condemned even though it may not affirmatively achieve
alterations in existing patterns of racial concentration in
housing, however desirable such alterations may be. A showing of
affirmative discriminatory state action is required. Bell v.
School City of Gary, Indiana, 324 F.2d 209, 213 (7th Cir. 1963),
cert. denied 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964);
Thompson v. Housing Authority of City of Miami, 251 F. Supp. 121,
123-124 (S.D.Fla. 1966); Deal v. Cincinnati Board of Education,
369 F.2d 55, 63 (6th Cir. 1966); United States v. Chemical
Foundation, 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Webb v.
Board of Education, 223 F. Supp. 466, 469 (N.D.Ill. 1963). See
also, Green Street Association v. Daley, supra, at p. 6 of 373
F.2d; Progress Dev. Corp. v. Mitchell, 286 F.2d 222, 231 (7th
Cir. 1961). To accept plaintiffs' contention that allegation and
proof of an intent to discriminate among the races is unnecessary
is to conclude that the mere placement of public housing projects
that will in all probability be occupied largely by tenants of a
specific race in neighborhoods containing a significant number of
residents of the same race is in itself an act of discrimination
forbidden by the Fourteenth Amendment, regardless of the many
other factors, imposed here by statute,*fn3 such as need, cost, and
rehabilitation of deteriorating neighborhoods. The Constitution
compels no such conclusion; rather it commands only that
defendants administer the site selection aspect of their housing
program untainted by any design to concentrate Negro or white
tenants in some areas to the exclusion of other areas.
Defendants move for summary judgment as to Counts I and II,
asserting that no material issues of fact are present, and that
the allegations of those Counts are clearly and demonstrably
untrue. Summary judgment is rarely, if ever, appropriate where,
as here, motive and intent are important to a resolution of the
issues and never where, as here, serious questions of fact remain
unresolved, as, for example, the racial composition of the
neighborhoods involved. For these reasons, defendants' motion for
summary judgment is denied.
In reaching these conclusions, the Court did not consider,
except as indicated on oral argument, the contents of the
documents that form the basis of plaintiffs' requests for
admissions. The Court finds it unnecessary, therefore, to rule on
defendants' objections to those requests since they were made
only insofar as the documents bore on the issues raised by
defendants' motions to dismiss.
It is hereby ordered that:
(1) Defendants' motion to dismiss the entire suit is denied;
(2) Defendants' motions to dismiss Counts III and IV are
(3) Defendants' motions to dismiss or in the alternative for
summary judgment as to Counts I and II are overruled; defendants
are given 20 days ...