Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 66 C 1459, 66 C 1460 RICHARD B. AUSTIN, Judge.
Clark, Associate Justice,*fn1 Cummings and Tone Circuit Judges. Tone, Circuit Judge, dissenting.
Appellants, black tenants in and applicants for public housing, brought these consolidated cases separately in 1966 against the Chicago Housing Authority (CHA) and the Secretary of Housing and Urban Development (HUD) respectively, charging that CHA had intentionally violated 42 U.S.C. § 1981 and § 1982 in maintaining existing patterns of residential separation of races by its tenant assignment and site selection procedures, contrary to the Equal Protection Clause of the Fourteenth Amendment; and that HUD had "assisted in the carrying on . . . of a racially discriminatory public housing system within the City of Chicago" in violation of the Fifth Amendment. Appellants sought an injunction against CHA restraining such practices and requiring CHA to remedy the past effects of its unconstitutional site-selection and tenant-assignment procedures by building any future public housing units in predominantly white areas. This appeal grows out of the decision of the district court on remand for a determination of appropriate relief pursuant to separate findings that both CHA and HUD were responsible for de jure segregation in the public housing program in Chicago. In 1969 the District Court found with the appellants on the merits and since that time has devoted its efforts to effectuating this ruling. After some four years of hearings, several judgment orders and four appeals, the District Court on the last remand called on the parties to propose a "comprehensive plan" to remedy past effects of the public housing segregation indulged in by CHA and HUD, including "alternatives which are not confined in their scope to the geographic boundary of the City of Chicago." HUD proposed, and the District Court, after an evidentiary hearing, ordered a plan under which HUD would "cooperate" with CHA in the latter's efforts to increase the supply of public housing units but eliminated any relief not confined to the geographic boundary of the City of Chicago and refused to impose any specific affirmative obligations upon HUD beyond its "best efforts". 363 F. Supp. 690 (1973). The appellants contend that a metropolitan area remedial plan including housing in suburban areas, as well as those within the limits of Chicago, is necessary to remedy the past effects of said unconstitutional public housing segregation policy and attain that racial balance required by the Fourteenth Amendment. Given the eight year tortuous course of these cases, together with the findings and judgment orders of the District Court and the opinions of this Court (now numbering five), we believe the relief granted is not only much too little but also much too late in the proceedings. In effect, appellants, having won the battle back in 1969, have now lost the war. We are fully aware of the many difficult and sensitive problems that the cases have presented to the able District Judge and we applaud the care, meticulous attention and the judicious manner in which he has approached them. With his orders being ignored and frustrated as they were, he kept his cool and courageously called the hand of the recalcitrant. Perhaps in the opinion on remand on the third appeal, 457 F.2d 124 (7th Cir. 1972), the repetition of a statement in the opinion on remand in the second appeal, 448 F.2d 731 that: "It may well be that the District Judge, in his wise discretion, will conclude that little equitable relief above the entry of a declaratory judgment and a simple 'best efforts' clause, will be necessary . . ." led the beleaguered District Judge to limit any plan to the boundaries of the City of Chicago and the "best efforts" of CHA and HUD. This is to be regretted and we trust that upon remand the matter will be expedited to the end that the segregated public housing system which has resulted from the action of CHA and HUD will be disestablished, and the deficiency in the supply of dwelling units will be corrected as rapidly as possible and in the manner indicated in this opinion.
We shall not burden this opinion with the details*fn2 of the eight-year delay that has thus far deprived the appellants of the fruits of the District Court's judgment entered on July 1, 1969. In addition the unconstitutional action of CHA has stripped thousands of residents of the City of Chicago of their Fifth and Fourteenth Amendment rights for a score of years. Indeed, anyone reading the various opinions of the District Court and of this Court quickly discovers a callousness on the part of the appellees towards the rights of the black, underprivileged citizens of Chicago that is beyond comprehension. As far back as 1954, the District Court found that CHA had continuously refused to permit black families to reside in four public housing projects built before 1944; and that as far back as 1954 CHA has imposed a black quota on the four projects to the end that at the beginning of 1968 black tenants only occupied between 1 percent to 7 percent of the 1654 units in the projects. The non-white population of Chicago at that time was 34.4 percent. In 64 public housing sites, having 30,848 units (other than the four above mentioned), the tenants were 99 percent black. All during this period Illinois law required that CHA secure prior approval of new sites for public housing from the City Council of the City of Chicago, but the District Court found that CHA set up a pre-clearance arrangement under which the alderman in whose ward a site was proposed would receive an informal request from CHA for clearance. The alderman, the Court found, to whom sites in the white neighborhoods were submitted, vetoed the sites and the City Council rejected 99 1/2 percent of the units proposed for white sites while only 10 percent were refused in black areas. Moreover, the Court found that during this period about 90 percent of the waiting list of some 13,000 applicants to CHA for occupancy in its projects were black. These findings were neither challenged nor appealed. Furthermore, as early as July 1, 1969, a judgment order was entered herein, requiring CHA to build 700 new housing units in predominantly white areas and requiring 75 percent of all future units built by CHA to be constructed in such areas. This judgment also ran against the City Council of the City of Chicago (not then a party) on the basis of notice. Finally, CHA was directed by the District Court to "affirmatively administer its public housing system . . . to the end of disestablishing the segregated public housing system which has resulted from CHA's unconstitutional site selection and tenant assignment procedures . . . [and] use its best efforts to increase the supply of Dwelling Units as rapidly as possible . . .". 304 F. Supp. 736 (1969). No appeal was taken from this judgment.
Appellants and the District Court waited patiently for a year and a half but CHA submitted no sites for family dwellings to the City Council. The appellants contacted CHA and were advised that CHA had no intention to submit sites prior to the Chicago mayoralty election of April, 1971. The parties then asked for and were given informal hearings, so as to prevent publicity, and finally the District Court modified its "best efforts" provision in the July 1, 1969 judgment order so as to affirmatively require CHA to submit sites for no fewer than 1500 units to the City Council for approval on or before September 20, 1970. This order was appealed by CHA and affirmed, 436 F.2d 306, cert. den. 402 U.S. 922, 91 S. Ct. 1378, 28 L. Ed. 2d 661 (1971).
Meanwhile, in the separate suit against HUD filed simultaneously with the one against CHA (and now consolidated), the District Court had dismissed all four counts. On appeal this Court held that HUD had violated the due process clause of the Fifth Amendment and reversed with directions to enter a summary judgment for the appellants. This Court found that HUD had approved and funded family housing sites chosen by CHA in black areas of Chicago. HUD's explanation was "it was better to fund a segregated housing system" than deny housing altogether. This Court found that in the sixteen years (1950-1966) HUD spent nearly $350 million on such projects "in a manner which perpetuated a racially discriminatory housing system in Chicago"; that its excuse of community and local government resistance has not been accepted as viable and that this Court was "unable to avoid the conclusion that the Secretary's past actions constituted racial discriminatory conduct in their own right." Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971).
During the progress of this litigation, HUD was conferring with the City of Chicago concerning grants under the Model Cities Program (established by the Demonstration Cities and Metropolitan Development Act of 1966, 42 U.S.C. § 3301 et seq.). A $38 million grant was made for the calendar year 1970. However, for the 1971 calendar year HUD required a "letter of intention" signed by the Mayor of Chicago, the Chairman of CHA and the Regional Administrator of HUD, indicating how Chicago's large housing deficiency would be met. Under this letter CHA was to acquire sites for 1700 units within a specified timetable. HUD approved $26 million and had released $12 million when the opinion in Romney, supra, came down. Appellants then sought an injunction from the District Court restraining further payments by HUD under the Model Cities Program unless and until sites in predominantly white areas for 700 dwelling units had been certified to the City Council for approval (at the time only 288 had been approved). The District Court granted this relief but on appeal the order was reversed. 457 F.2d 124 (7th Cir. 1972). On remand the District Court entered a summary judgment against HUD, consolidated the cases and entered an order calling for each of the parties to file suggestions for a "comprehensive plan" to remedy the past effects of the public housing segregation, including "alternatives which are not confined in their scope to the geographic boundary of the City of Chicago."
HUD proposed a "best efforts" judgment order under which it would "cooperate" with CHA in the latter's efforts to increase the supply of housing units in accordance with the earlier judgment order against CHA and reported in 304 F. Supp. 736. Its proposed relief was confined to the geographic boundaries of the City of Chicago. Its "best thinking" was that the letter of intention previously mentioned and signed by the Mayor, the Regional Administrator of HUD and CHA should be carried out. This letter only covered the matter of the relocation housing deficiency of 4300 units and did not spell out any "comprehensive plan to remedy the past effects". Appellants' proposed plan provided a mechanism by which CHA could supply remedial housing in suburban areas as well as within Chicago and required HUD to administer its programs affirmatively to ensure that the order was carried out. At the hearing the appellants introduced evidence of the need for a metropolitan plan and the unreliability of HUD's "best efforts". HUD offered evidence of the lack of funds then available and CHA offered no evidence. On December 8, 1972, Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1972) came down, holding that a remedial plan involving suburban school districts in the metropolitan area of Detroit was necessary to disestablish existing segregation. Appellants then requested a " Bradley plan" order. On September 11, 1973, the District Court sustained the HUD proposal and this appeal resulted.
We agree with the appellees that the District Court did not hold that it lacked power to adopt a metropolitan plan but rather that on the facts shown such relief was unwarranted. While neither CHA nor HUD concedes that the District Court has power to require compliance with a plan that includes areas outside the official boundaries of the City of Chicago, they both conclude that the District Judge's holding was not predicated on a lack of such power. At least until Milliken v. Bradley, 418 U.S. 717, 42 LW 5249, 41 L. Ed. 2d 1069, 94 S. Ct. 3112, the law was clear that political subdivisions of the States may be readily bridged when necessary to vindicate federal constitutional rights. Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1880); Brown v. Board of Education, 349 U.S. 294, 300-301, 99 L. Ed. 1083, 75 S. Ct. 753 (1954); Swann v. Board of Education, 402 U.S. 1, 27, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971); Griffin v. County Board, 377 U.S. 218, 12 L. Ed. 2d 256, 84 S. Ct. 1226 (1964); Bradley v. Milliken, 484 F.2d 215, 250 (6th Cir. 1973); Haney v. County Board, 410 F.2d 920 (8th Cir. 1969). The equal protection clause speaks to the state, and the state cannot escape its obligations under that clause by delegating some of its governmental functions to local units. Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 1961), affirmed, 368 U.S. 515, 7 L. Ed. 2d 521, 82 S. Ct. 529; Reynolds v. Sims, 377 U.S. 533, 575, 12 L. Ed. 2d 506, 84 S. Ct. 1362; Hart v. Community School Board, 383 F. Supp. 699, 42 LW 2428 (E.D.N.Y. 1974). Cf. Hunter v. City of Pittsburgh, 207 U.S. 161, 178, 52 L. Ed. 151, 28 S. Ct. 40.
We turn then to the Supreme Court's opinions in Milliken v. Bradley. That case clarifies an important equitable limitation on the substantial body of law just cited but does not overrule it. The Chief Justice's opinion for the Court assumes arguendo that the actions of local government are attributable to the state, 42 LW 5259, and it notes that school district lines are not sacrosanct if they conflict with the Fourteenth Amendment, 418 U.S. at 744, 94 S. Ct. 3112, 42 LW 5257. However, "proceeding from . . . basic principles [of remedies]," 42 LW 5255-5256, the Court holds that metropolitan relief does not follow automatically from these premises, 482 U.S. at 748, 94 S. Ct. 3112, 42 LW 5259. Boundary lines may be "bridged," but not "casually ignored." Consolidation of 54 independent school districts would present overwhelming problems of logistics, finance, administration and political legitimacy. The Court gives great deference to the "deeply rooted" and "essential" tradition of local control of the public schools. Unless the Michigan legislature completely restructured relevant statutes, the District Judge would become both de facto legislature and metropolitan school superintendent. 42 LW 5257. The conclusion that inter-district school desegregation is "in order" and "appropriate" only where there has been what the Court terms "an inter-district violation" (42 LW 5258) must be read in this light. Only an inter-district violation justifies incurring all the difficulties attendant on inter-district school desegregation.
This reading of the opinion is conclusively reinforced by Justice Stewart's concurrence, which expressly states the holding:
"the Court does not deal with questions of substantive constitutional law. The basic issue now before the Court concerns, rather, the appropriate exercise of federal equity jurisdiction.
"The opinion of the Court convincingly demonstrates . . . that traditions of local control of schools, together with the difficulty of a judicially supervised restructuring of local administration of schools, render improper and inequitable such an inter-district response to a constitutional violation found to have occurred only within a single school district." 418 U.S. at 755, 42 LW 5260-5261 (citation omitted).
Justice Stewart's view is pivotal because his vote makes a majority when added to any of the other opinions. It is also significant that the Chief Justice's opinion does not indicate any ...