MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
This case challenges the administration of Section 8 rental assistanceprograms by eight Massachusetts suburban public housing authorities("PHAs").1 The plaintiffs are four racial minority, lower-incomewomen residing in Randolph and Brockton, the class of similarly situatedindividuals that they represent,2 and the Massachusetts Coalition forthe Homeless ("MCH").3 The communities in which the PHAs aresituated are predominantly white, with low percentages of racial minorityresidents and a low overall rate of poverty.
The plaintiffs' principal challenge is to the use of a preference forlocal residents in determining a Section 8 applicant's position on thewaiting list, as well as the logistics of the application processes.Suing under 42 U.S.C. § 1983, they maintain that the PHAs' policieseffectively discriminated against minorities by favoring local,predominantly white applicants and violated the PHAs' duties to targethousing to extremely low-income families, and to "affirmatively further"fair housing.
Defendants counter on a number of fronts, both procedural andsubstantive. They claim that recent decisional law casts doubt on theuse of § 1983 to enforce the very statutes, regulations, andexecutive orders plaintiffs cite. Moreover, even if § 1983 isavailable to enforce these provisions, defendants deny that they haveviolated any of their legal obligations under them. Rather, they allegethat the 1998 Quality Housing and Work Responsibility Act ("QHWRA")allows them to administer Section 8 housing as they have done, namelywith preferences for local residents.
The following issues, then, are joined:
(1) Can § 1983 be used to enforce the particular statutes,regulations, and orders at issue here? I conclude that § 1983enforcement is proper here, based on the language of the statutes andtheir implementing regulations, on the one hand, and § 1983's uniquehistory and expansive language, on the other. Of all the cases in which§ 1983 has been used to enforce state statutes and regulations, fewcomecloser to the statute's purpose and history since its enactment postCivil War than cases like the instant one — cases that seek toenforce antidiscrimination laws in general, and fair housing provisionsin particular.
(2) Have the plaintiffs met the standard for summary judgment on thequestion of whether the law has been violated, particularly given the1998 Act's provisions on local housing preferences? I conclude that— with certain limitations described below — the plaintiffshave proven such violations, notwithstanding the language of the QHWRA.The Act's reference to "local needs and priorities" does not give thePHAs carte blanche to effect preferences for local residents. Rather, itwas intended to encourage local authorities to determine the kind ofhousing mix that suits local needs, within the framework of theapplicable laws.
For the following reasons, Langlois et al.'s motion for summaryjudgment [docket entry #76] is GRANTED IN PART AND DENIED IN PART, andAbington Housing Authority et al.'s motion for summary judgment [docketentry #86] is GRANTED IN PART AND DENIED IN PART.
I. FACTUAL BACKGROUND
1. The Section 8 Program
In 1974, Congress established the Section 8 program as a vehicle forproviding an adequate supply of housing for low-income families. Housingand Community Development Act of 1974, Pub.L. No. 93-383, tit. II, §8(a), 88 Stat. 633, 662 (codified at 42 U.S.C. § 1437f).4 Thecomponent of the Section 8 program at issue here has been known variouslyas the Section 8 Existing Housing Program, the Certificate/Voucher5Program, or the Section 8 "Tenant-Based" Program. See42 U.S.C. § 1437f(o) (2002); Comer v. Cisneros, 37 F.3d 775, 781 (2dCir. 1994). The Program provides subsidies to private landlords. InMassachusetts, about 44,000 Section 8 tenant-based subsidies areadministered by about 130 local housing authorities ("PHAs") and theMassachusetts Department of Housing and Community Development.
Under the tenant-based provisions of the Section 8 Program, the UnitedStates Department of Housing and Urban Development ("HUD") enters intoannual contracts with PHAs to fund Section 8 vouchers. See42 U.S.C. § 1437f(o). In connection with this contract, each PHAmust submit a plan to HUD describing the administrative details of theSection 8 program and its compliance with federal and state equal housingrequirements. 42 U.S.C. § 1437c-1(b) (annual plan requirement),1437c-1(d)(15) (2002) (civil rights certification requirement);24 C.F.R. § 982.53, 982.54; see also 60 Fed. Reg. 34660, 34661 (July3, 1995).6
To participate in a Section 8 program, an eligible family7 mayapply to any state PHA. Each PHA maintains a waiting list and then awardssubsidies — in the form of vouchers, as they become available— to eligible participants on its list.42 U.S.C. § 1437f(o)(13)(J). Generally, participants may use theirvouchers to rent eligible dwelling units anywhere in the state with rentsmeeting the fair market rent standards set by HUD.42 U.S.C. § 1437f(r)(1). A Section 8 family conveys its vouchertogether with the family's previously determined rent contribution— generally about 30% of its income — to the landlord, who inturn forwards the voucher to the PHA for the remainder of the rent.42 U.S.C. § 1437a(a), 1437f(o)(2)(A)(i). HUD then reimburses thelocal PHA. 24 C.F.R. § 982.151 (annual contributions contract).
The federal administrative requirements for the PHAs have shifted overthe past several years. It is the latest change in the federalrequirements that the PHAs identify as the basis for the disputed changesthey have made in their programs. It is useful to outline that history:
a. 1980-1995: Federal Preferences
From 1980 until 1995, Congress required the PHAs to rank eligiblefamilies on their waiting lists according to three statutorily mandatedselection preferences ("federal preferences"): (1) families who occupysubstandard housing (including the homeless); (2) families who areinvoluntarily displaced; and (3) families who are paying more than 50% oftheir family income to rent. 42 U.S.C. § 1437d(c)(4)(A)(i),1437f(o)(3)(B) (repealed October 21, 1998).8
b. 1995-1998: Administrative Suspension of the Mandatory Preferences
These mandatory "federal preferences" were suspended from 1995 through1998 in various HUD Appropriations Acts in which Congress gave PHAs somediscretion to set their own admissions preferences. See Pub.L. No.104-99, § 402(d), 110 Stat. 26, 41 (Jan. 26, 1996); Pub.L. No.104-204, § 201(c)(2), 110 Stat. 2874, 2893 (Sept. 26, 1996); Pub.L.No. 105-65, § 201(d)(2), 111 Stat. 1344, 1364 (Oct. 27, 1997).
c. QHWRA: Permanent Repeal of Mandatory Preferences Coupled with Targeting of Extremely Low Income Families
On October 21, 1998, President Clinton signed the Quality Housing andWork Responsibility Act of 1998 ("QHWRA"), which permanently repealed theSection 8 federal preferences, giving PHAs discretion within certainlimits to establish localpreferences in their agency plans. Pub.L. No.105-276, § 514(b), 112 Stat. 2461, 2547-48 (amending42 U.S.C. § 1437f(d)(1)(A)) ("[F]or the purpose of selecting familiesto be assisted, the public housing agency may establish localpreferences, consistent with the public housing agency plan submittedunder section 5A by the public housing agency . . . ."); see also42 U.S.C. § 1437f(o)(6)(A)(i) (2002) ("Each public housing agency mayestablish a system for making tenant-based assistance under thissubsection available on behalf of eligible families that providespreference for such assistance to eligible families having certaincharacteristics . . . .").9 The question raised by this litigationis the scope of that discretion.
Both the statutory text and the legislative history reflect Congress'concern that federal over-regulation was impeding the PHAs' ability tofunction effectively. Specifically, Congress was concerned that federalpreferences did not afford PHAs sufficient flexibility to channelassistance where the local need was greatest. See, e.g., Pub.L. No.105-276, § 514(a)(1), 112 Stat. at 2547 (amending42 U.S.C. § 1437d(c)(4) to require that PHAs develop systems ofpreferences "based upon local housing needs and priorities"). Congressalso felt that removing the federal preferences and allowing preferencesbased on local needs would ultimately lead to diminished residentialsegregation by income. See, e.g., Pub.L. No. 105-276, § 502(a)(3),112 Stat. at 2520 (noting Congress' finding that "the public housingsystem is plagued by a series of problems, including the concentration ofvery poor people in very poor neighborhoods"); id. § 502(b)(3), 112Stat. at 2521 (articulating a statutory purpose of, inter alia,"facilitating mixed income communities and decreasing concentrations ofpoverty in public housing").
But the PHA's flexibility was not without limits. Senator Kerrydescribed the rationale for repealing the previous federal preferenceswhile still retaining the framework for the protection of the most needyapplicants:
[T]he reform measure permanently repeals Federal preferences, which had the unintended consequence of concentrating poverty in public housing developments. The bill allows PHAs to develop their own preferences, including a preference for working families, but requires that at least 40 percent of all public housing units and 75 percent of all section 8 units that become available each year be provided to people making below 30 percent of area median income. These protections . . . will benefit residents at all income levels by facilitating the creation of mixed income developments.
The value of mixed income developments cannot be overstated. Working families stabilize communities by offering hope and opportunity in environments of despair. In recognition of this important principle, the reform bill will require housing authorities to develop plans for the economic desegregation of their distressed communities. Each PHA must develop their plan in consultation with its residents, and all plans will be submitted to HUD for approval.
144 Cong. Rec. S11833-02, at S11839 (daily ed. Oct. 8, 1998).
It is worth noting that nowhere in the legislative history or in thestatute itself is there reflected any concern that the previous systemdisadvantaged local residents, or any desire that the new system shouldafford them greater priority. In other words, while the statute allowsPHAs to develop local preferences, nothing in the statute or legislativehistory shows any desire of Congress to elevate preferences for localresidents over fair housing concerns.
There are several significant restrictions on the PHAs' flexibility:the 75% rule, the guarantee of nondiscrimination and the PHAs' duty toaffirmatively further fair housing.
(1) 75% Rule
First, in order to maintain protection for the most needy ofapplicants, the QHWRA includes an admissions-targeting requirement forextremely low-income families (the "75% Rule"):
Of the families initially provided tenant-based assistance under section 1437f of this title by a public housing agency in any fiscal year, not less than 75 percent shall be families whose incomes do not exceed 30 percent of the area median income, as determined by the Secretary with adjustments for smaller and larger families; except that the Secretary may establish income ceilings higher or lower than 30 percent of the area median income on the basis of the Secretary's findings that such variations are necessary because of unusually high or low family incomes.
42 U.S.C. § 1437n(b)(1) (codifying Pub.L. No. 105-276, § 513(a),112 Stat. at 2545-46 (1998)); 24 C.F.R. § 982.201(b)(2).10
A second set of restrictions ensures that local preferences comportwith principles of nondiscrimination. PHAs must certify that their planscomply with civil rights laws, including Title VI of the Civil Rights Actof 1964 and Title VIII of the Civil Rights Act of 1968 (the "Fair HousingAct"), 42 U.S.C. § 3601 et seq. 42 U.S.C. § 1437c-1(d)(15).
Within this framework, the QHWRA and its accompanying regulationsauthorized the PHAs, when compiling their waiting lists for vouchers, todevelop their own "system[s] of local preferences for selection offamilies admitted to the program." 24 C.F.R. § 982.207(a)(1) (2002).Such systems "must be based on local housing needs and priorities, asdetermined by the PHA." Id. § 982.207(a)(2) (2002).
At the same time, PHAs are explicitly forbidden to adopt residencyrequirements, and although the regulations allow them to adopt residencypreferences, they may do so "only . . . in accordance withnon-discrimination and equal opportunity requirements listed at 5.105(a)of thistitle." Id. § 982.207(b)(1)(i) (emphasis added).Significantly, the PHAs are required to specify in their administrativeplans that any residency preferences they adopt "will not have the purposeor effect of delaying or otherwise denying admission to the program basedon the race, color, ethnic origin, gender, religion, disability, or ageof any member of an applicant family." Id. § 982.207(b)(1)(iii).
(3) Affirmative Furtherance of Fair Housing
The actions of the PHAs must also take place within the framework ofthe duty to affirmatively further fair housing, as stated in42 U.S.C. § 1437c-1(d)(15) (United States Housing Act) and itsimplementing regulation, 24 C.F.R. § 903.7(o);42 U.S.C. § 3608(e)(5) (Fair Housing Act), and its implementingregulation, 24 C.F.R. § 982.53(b)-(c); Executive Order 11063, 27Fed. Reg. 11527 (Nov. 20, 1962) and its implementing regulations,24 C.F.R. § 5.105(a) and 107.21; and Executive Order 12892, 59 Fed.Reg. 2939 (Jan. 17, 1994).
2. The Defendant PHAs' Policies11
The defendants in this case are eight public housing authoritieslocated in the suburban South Shore area of Massachusetts. Thecommunities in which the PHAs are situated are predominantly white, withrelatively low percentages of racial minority residents (ranging from1.4% to 8.5% minority) and a low overall rate of poverty (ranging from3.8% to 6.8% of the population in poverty).12 Langlois, 1998 WL1029208, at *4 n. 13. By way of comparison, Brockton, Massachusetts, alarge neighboring city where named plaintiffs Fabian, Rivera, and Stewartreside, is 22.5% minority, with 13.6% of its population living inpoverty. Id.
In 1998, after determining that their current Section 8 waiting listswould soon be exhausted, the eight defendant PHAs consulted with eachother and decided jointly to open up their waiting lists to newapplicants via a new round of lotteries. Id. In so doing, they adopted,inter alia, the following policies and procedures, in which localresidents had a priority position.
a. The Application Process
The eight PHAs, in an effort to generate a high rate of participationin the application process while placing some limit on their respectiveadministrative burdens, all decided that they would require prospectiveSection 8 applicants to request their applications during the sametwo-day period. In October 1998, the PHAs issued a public notice13stating that applications could be requested from each individual PHA,either in person or over the phone, between 9:30 a.m. and 2:30 p.m. onOctober 29 and 30, 1998. Id. at *5. The applications were to bereturned by hand or postmarked no later than 12:00 noon on November 17,1998. Each PHA would then hold its separate lottery on December 1, 1998,at 1:00 p.m.
In addition to the procedures set forth in the public notice, socialservice agencies and housing advocates were permitted either to telephoneeach PHA as often as they could and request five applications with eachtelephone call, or to send an employee to each PHA to pick up as manyapplications as they needed. Id. at *5. The success of these supportorganizations varied, depending on their access to manpower,transportation, time, and the happenstance of getting through on thetelephone. Id. Moreover, some of the PHAs apparently did permitorganizations to fax or mail in a list of applicants' names, rather thanrequiring the workers to submit the lists in person. Id. at *5 n. 29.
b. Formulation of the Waiting Lists: Residency Preferences
The PHAs also adopted a procedure for determining which applicantswould make the waiting lists and in what order. The first stage of theprocess consisted of an individual randomized lottery for each PHA thatwould determine which applicants would make the respective waiting listsfor the available Section 8 vouchers. Id. at *4-*5. Once that lotterywas complete, the PHAs would then place the selected applicants in orderon their Section 8 waiting lists. Significantly, the PHAs gave priorityto applicants currently living or working in the community where the PHAwas located. Id. at *5. In other words, once it was established whomade the waiting list and who did not, local residents on the waitinglist moved to the front of the line for receipt of a Section 8 voucher.
For some of the PHAs, this residency preference was initiated in 1998;for others, the preference had been in place before, in some cases asearly as the 1970s.
3. The Plaintiffs' Interaction with the PHAs
The named plaintiffs in this case — Kelley Langlois, YasmineRivera, Lissett Fabian, and Annette Stewart — are all extremelylow-income women of color. In 1998, they were either homeless or hadsevere housing problems. Id. at *6. Langlois currently resides inRandolph, MA; Rivera, Fabian, and Stewart reside in Brockton, MA. Thesefour women, along with other members of the class they represent —i.e., extremely low-income individuals residing in the Brockton andBoston metropolitan areas — attempted to participate in thedefendant PHAs' lottery systems in October 1998 and encountered variouslogistical and substantive problems with the PHAs' procedures. Id. at *6n. 25.
For example, both applicants and housing advocates reported seriousdifficulties obtaining lottery applications. Relatively few of theapplicants own cars — advocates estimate that between 0 and 10% oftheir clients have cars — and it would have been extremelydifficult, if not impossible, to visit all eight PHAs by publictransportation within the two-day window allotted for picking upapplications. Some housing advocates and social workers with access tocars were able to pick up applications, but not all of them had theresources to drive to all eight PHAs. The telephone option did notaltogether alleviate the situation: both applicants and advocatesreported that it was often difficult to reach some of the PHAs by phoneduring the two-day window. Moreover, some advocates claimed that, whenthey did get through on the phone, they were allowed to request only acertain number of applications during that single telephone call and weredirected to call back if they wanted more.
In addition, even when those seeking applications were able to getthem, theapplication forms each contained notice of the PHA's intentionto give waiting list priority to those applicants living in its owncommunity. None of the plaintiffs reside in any of the defendant PHAs'communities, and none of them would have qualified for the residencypreference. Notice of the PHAs' residency preferences discouraged manypotential applicants from bothering to apply at all.
On October 30, 1998, the plaintiffs' counsel wrote to the ExecutiveDirectors of the eight PHAs to express their concerns about theapplication procedures and to suggest that the procedures might violatestate and federal fair housing and antidiscrimination laws. This lawsuitfollowed.
B. Procedural History
The case at bar was filed on November 16, 1998. The complaint, aslater amended on December 1, 1998, originally listed five counts forrelief.14 However, at the present time, only three counts remain:Count I (violation of federal Fair Housing Act, 42 U.S.C. § 3608(e)(5);QHWRA § 511(a); Executive Order 11063, 27 Fed. Reg. 11527 (Nov. 20,1962); and Executive Order 12892, 59 Fed. Reg. 2939 (Jan. 20, 1994)),Count II (violation of various provisions of QHWRA), and Count IV(42 U.S.C. § 1983).
Three days after filing suit, on November 19, 1998, the plaintiffsmoved for class certification15 and for a temporary restraining order("TRO") allowing the defendant PHAs to proceed with the randomizedhousing lotteries scheduled for December 1, but prohibiting any otheraction, including ordering the waiting list according to the residencypreference or distributing any available Section 8 certificates. ThisCourt issued the requested TRO on November 30, 1998, pending resolutionof the plaintiffs' motion for preliminary injunction.
After examining the data on the outcome of the December 1 lotteries, Iissued findings of fact on December 16. The facts suggested to me that apreliminary injunction was warranted, based on the likelihood that theprocedures of Abington and Rockland PHAs, if fully implemented, wouldviolate the 75% Rule and that the proposed residency preference in Avon,Holbrook and Middleborough, if implemented, would work a discriminatorydisparate impact on minority applicants.16 Apreliminary injunction issued on December 30, 1998, by which, inter alia,
(1) the Abington and Rockland PHAs were enjoined from distributing anyof their available Section 8 certificates to applicants on their December1 waiting lists according to their residency preference policies untilthey presented this Court with a specific plan to ensure compliance withthe 75% Rule17;
(2) the Avon, Holbrook, and Middleborough PHAs were enjoined fromdistributing any of their available Section 8 certificates to applicantson their December 1 waiting lists according to their residency preferencepolicies;
(3) the Abington, Avon, Holbrook, Middleborough, and Rockland PHAs wereordered to begin distribution of their Section 8 certificates, as theybecame available, to applicants on their December 1 waiting listsaccording to their randomized ranking scheme, i.e., without residentialpreferences;
(4) all of the defendant PHAs were permitted to begin immediatedistribution of available Section 8 certificates to the households ontheir pre-existing waiting lists; and
(5) the Bridgewater, Halifax, and Pembroke PHAs were ordered to reportto the Court after they exhausted their pre-existing waiting lists, andprior to any distribution of certificates to applicants on their December1 waiting lists.
The defendants appealed the entry of the preliminary injunction to theFirst Circuit on February 10, 1999. On March 27, 2000, the First Circuitaffirmed the preliminary injunction enjoining Abington and Rockland fromdistributing Section 8 vouchers to their December 1 lists because of lackof compliance with the 75% Rule. Langlois v. Abington Housing Auth.,207 F.3d 43, 52 (1st Cir. 2000). The First Circuit also affirmed theinjunction against the Avon, Holbrook, and Middleborough PHAs, which hadbeen based on a finding that there was a likelihood of success on themerits of plaintiffs' disparate-impact claim, although the First Circuitparted company with this Court on its legal analysis. Id.
On the disparate impact issue, the First Circuit held that the FairHousing Act prohibits "actions that have an unjustified disparate racialimpact." Id. at 49. However, while the First Circuit left undisturbedthe trial court's conclusion that the defendants' plans had a disparateimpact on the plaintiffs, that finding served only to create a primafacie case of a Fair Housing Act violation. The next stage of theanalysis dealt with whether the demonstrated disparate impact was"justified by a legitimate and substantial goal of the measure inquestion." Id. at 50-51. Insofar as the trial court's rationale forgranting the preliminary injunction appeared to rest on "balancing" themerits of that goal against the magnitude of the disparate impact, theFirst Circuit rejected that approach, observing that a "balancing" rolefor the district court would violate separation of powersvis-à-vis Congress and is"in tension with the course taken by theSupreme Court and Congress under Title VII where a standard ofjustification is constructed and applied." Id. at 51.
Nevertheless, the First Circuit ordered that within 90 days theinjunction was either to be vacated or "reinstituted based upon thegrounds not yet considered by the district court." Id. at 52.18Those grounds consisted of alleged violations of the duty to"affirmatively further fair housing," under 42 U.S.C. § 1437c-1(d)(15);24 C.F.R. § 982.53(b)-(c); 24 C.F.R. § 903.7(o); and ExecutiveOrders 11063 and 12892, which had not been addressed in the preliminaryinjunction proceedings.
The plaintiffs filed their motion for summary judgment on September 8,2000; the defendants cross-moved for summary judgment on October 24,2000. The first motion hearing was held on November 28, 2000. On June4, 2001, the Court requested supplemental briefing from the parties, inlight of recent developments in the law on § 1983 enforcement, and asecond motion hearing was held on June 7, 2002.
II. LEGAL ANALYSIS
A. Summary Judgment Standard
Summary judgment is warranted only "if the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Fed.R.Civ.P. 56(c). In assessing a motion for summaryjudgment, I am required to view the facts in the record in the light mostfavorable to the nonmoving party, drawing all reasonable inferences inthat party's favor. Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1stCir. 1999); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. Causes of Action
The plaintiffs' legal claims stem from two alleged "wrongs": the PHAs'proposed implementation of residency preferences and the logistics of thelottery application process. At this stage of the litigation, all of theplaintiffs' remaining claims are brought under the jurisdictional umbrellaof 42 U.S.C. § 1983. In other words, the plaintiffs allege no impliedright of action for each of their legal claims; rather, they sue under§ 1983, claiming deprivations of rights secured by the respectivefederal laws allegedly violated by defendants.
Those rights fall into five basic categories:
(1) With regard to the Abington and Rockland PHAs, violation of the 75%Rule, as stated in 42 U.S.C. § 1437n(b)(1) (QHWRA) and24 C.F.R. § 982.201(b)(2);
(2) With regard to Avon, Holbrook and Middleborough, violations of theduty to affirmatively further fair housing, as stated in42 U.S.C. § 1437c-1(d)(15) (United States Housing Act) and itsimplementing regulation, 24 C.F.R. § 903.7(o);42 U.S.C. § 3608(e)(5) (Fair Housing Act) and its implementingregulation, 24 C.F.R. § 982.53(b)-(c); Executive Order 11063, 27Fed. Reg. 11527 (Nov. 20, 1962), and its implementing regulations,24 C.F.R. § 5.105(a) and 107.21; and Executive Order 12892, 59 Fed.Reg. 2939 (Jan. 17, 1994);
(3) With regard to Avon, Holbrook and Middleborough, utilization ofpolicies thathave a discriminatory disparate impact on minorityapplicants and/or violate other civil rights laws, in violation of42 U.S.C. § 3604(a)-(b) (Fair Housing Act) and24 C.F.R. § 982.207(b);
(4) With regard to all of the PHAs, discriminatory advertising withrespect to the sale or rental of a dwelling, as prohibited in42 U.S.C. § 3604(c) (Fair Housing Act); and
(5) With regard to all of the PHAs, violation of HUD regulations at24 C.F.R. § 982.54, 982.204(a)-(b), for the PHAs' failures to complywith their own Section 8 administrative plans and to maintain waitinglists including racial and other data.
Before launching into the merits of each of these claims, defendantsraise an important threshold question, namely, which of the federal lawscited by the plaintiffs may support claims for relief under § 1983.
In this regard, defendants suggest that the ground may have shiftedunder the plaintiffs since they initially brought their claim. Recentcase law, they argue, has substantially narrowed the scope of §1983, particularly for statutory and administrative claims. I willproceed as follows: First, I will set forth the standards for assessingthe viability of a cause of action under § 1983. Then I will addresseach category of the plaintiffs' claims in turn, first whether thestatutory, regulatory, and other provisions at issue meet the standardfor creating rights cognizable under § 1983, and if so, the merits ofthose claims.
1. The Blessing Test: § 1983, Statutes, and "Rights"
In Blessing v. Freestone, 520 U.S. 329 (1997), the Supreme Court setforth its interpretation of the scope of § 1983. It reaffirmed thefact that § 1983 "safeguards certain rights conferred by federalstatutes," and accordingly, that § 1983 suits may be premised ondeprivations of such rights. Id. at 340 (citing Maine v. Thiboutot,448 U.S. 1 (1980)).
At the same time, the Blessing court stressed that the § 1983remedy is available for violations of federal rights, not just of federalstatutes per se. Id. at 340. Rights enforceable under § 1983 centeron the needs of particular people, thereby reflecting "individualentitlements" as opposed to yardsticks for measuring "systemwideperformance." Id. at 343 (emphases in original); see also Gonzaga Univ.v. Doe, ___ U.S. ___, 122 S.Ct. 2268, 2274 (2002). The Blessing court,extrapolating from its earlier case law, outlined a three-factor test fordetermining when a federal statute gives rise to such a right:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.
Id. at 340-41 (citations omitted); see also, e.g., Visiting Nurse Ass'nof North Shore, Inc. v. Bullen, 93 F.3d 997, 1002-03 (1st Cir. 1996).
Significantly, the inquiry was whether the statute created a federalright. It was not whether Congress intended to create a rightenforceable through § 1983. Section 1983 by itself announcedCongress' intention to provide a remedy for state violations of rights.Asthis Court noted in Furtick v. Medford Housing Auth., 963 F. Supp. 64(D.Mass. 1997): "Congress is presumed to legislate against the backgroundof section 1983 and thus to contemplate private enforcement of therelevant statute against state and municipal actors absent fairlydiscernible congressional intent to the contrary." Id. at 71 n. 18; seealso Henry Paul Monaghan, Federal Statutory Review Under Section 1983 andthe APA, 91 Colum. L. Rev. 233, 249 (1991).
A plaintiff's successful showing that a federal statute creates acognizable individual right raises "only a rebuttable presumption thatthe right is enforceable under § 1983." Id. at 341. At that point,the burden of proof shifts to the defendant to show that Congress"specifically foreclosed a remedy under § 1983." Id. at 341 (quotingSmith v. Robinson, 468 U.S. 992, 1005 n. 9 (1984)) (internal quotationmarks omitted). Congressional foreclosure may be either explicit— written into the statute itself — or implicit, when thereviewing court identifies a "comprehensive enforcement scheme that isincompatible with individual enforcement under § 1983." Id. (citingLivadas v. Bradshaw, 512 U.S. 107, 133 (1994)).
The burden of showing an implicit rejection of § 1983 remedies bydint of a "comprehensive enforcement scheme" is a substantial one. Asone scholar notes, the "[i]mplied preemption of a section 1983 remedy onthe basis of the assertedly comprehensive nature of the remedial schemecreated by the federal legislation is not favored." Monaghan, supra, at247. The mere availability of some administrative mechanism to protectthe plaintiff's interest is not enough to foreclose recourse to §1983. E.g., id. at 347 (citing Golden State Transit Corp. v. LosAngeles, 493 U.S. 103, 106 (1989)); Wright v. City of Roanoke Housing& Redevelopment Auth., 479 U.S. 418, 427-28 (1987) ("[T]he existenceof a state administrative remedy does not ordinarily foreclose resort to§ 1983.")). Rather, the administrative scheme must be both federaland "sufficiently comprehensive . . . to demonstrate congressional intentto preclude the remedy of suits under § 1983." Id. at 346 (quotingWilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 521 (1990)) (alterations inoriginal) (internal quotation marks omitted).
It should be noted that the Blessing inquiry is a different"rights-creating" inquiry than the one undertaken by the Supreme Court inAlexander v. Sandoval, 532 U.S. 275 (2001). In Sandoval, the"rights-creating language" that the Court found absent from § 602 ofTitle VI referred to a private right of action flowing directly from thestatute. Id. at 288-89. If courts imply a right of action from astatute, when Congress itself provided no explicit remedies, separationof powers concerns are arguably raised.
Court implementation of § 1983, in contrast, does not trigger thesame level of concern for the separation of powers. Section 1983 is astatute of considerable breadth, passed by Congress after the Civil Warto provide judicial remedies for state violations of federal law and, inparticular, to provide federal remedies for discrimination against racialminorities:
It is plain that Congress intended to create new enforcement mechanisms to redress state violations of federal law. The experience following the Civil War called for a dramatic expansion in the role of the national government, including the federal courts, in regulating the conduct of the states. It is no doubt true that Congress was primarily concerned with providing a remedy for constitutional violations and unlawful invasions of rights protected by civil rights laws. But it is consistent with the historical evidence to understand the underlying purposes as more general than that, reaching all violations of federal law.
Cass R. Sunstein, Section 1983 and the Private Enforcement of FederalLaw, 49 U. Chi. L. Rev. 394, 408-09 (1982).
As I describe below, the statutes at issue in this case, especiallythose concerned with housing discrimination, fit squarely within thelanguage of § 1983, its purpose, and its historical mission.
2. Enforceability of Administrative Regulations and Executive Orders under § 1983
Enforcement of administrative regulations and executive orders directlyunder § 1983, the defendants suggest, does raise separation of powersconcerns not unlike those raised in Sandoval. While there is someferment in this area, existing Supreme Court law suggests a broad rulefor § 1983 enforceability of regulations: Where an administrativeregulation is validly issued pursuant to a congressional delegation ofauthority and carries the force of law, it may serve as the premise for a§ 1983 suit so long as the regulation itself meets the Blessingcriteria. Other case law suggests a narrower view: Only statutes conferrights under § 1983; regulations can provide an interpretation of thestatute, to which deference is due. See Chevron U.S.A., Inc. v. NaturalResources Defense Council, 467 U.S. 837, 844 (1984). While thedifference between the two is less than clear,19 as I describebelow, plaintiffs succeed under either test.
The broad view is suggested in Wright v. City of Roanoke Housing &Redevelopment Auth., 479 U.S. 418 (1987). Wright involved a challenge bytenants of low income housing projects who claimed that utilityovercharges violated the Brooke Amendment to the United States HousingAct of 1937, 42 U.S.C. § 1437(a). The Brooke Amendment imposed aceiling for rents charged to tenants of low income housing projects;their rent had to be a specified percentage of their income. Id. at420. In the Act's implementing regulations, the Department of Housingand Urban Development ("HUD") defined the statutory term "rent" asincluding sums for reasonable utility costs. Id. at 420-21 & nn. 3-4(quoting 24 C.F.R. § 860.403 (1982) and citing 24 C.F.R. § 865.470(1983)). Arguing from both the statute and the regulations, the tenantsclaimed that the housing authority had exceeded thestatutory ceiling by overbilling them for utilities.
The Court agreed. Id. at 430. The Court found that the statute metthe first and third prongs of Blessing, that the Brooke Amendment imposeda rent ceiling intended to benefit the plaintiffs, and that it was abinding obligation on the states. Further, using language found in thenarrow test, the court concluded that HUD's regulations comprised aninterpretation of the term "rent" that was entitled to deference. Id.With respect to the second prong of the Blessing test, however —whether the regulations were too amorphous and thus, beyond thecompetence of the Court to enforce — the Court's language wasbroad. It suggested that the regulations may be an independent source ofrights under § 1983 so long as they have the "force of law." Id. at431-32.
Justice O'Connor dissented, arguing for the narrow approach —that Congress had conferred § 1983 rights only under the statute andnot under the regulations. While deference was due to the agency'sinterpretation of those rights through its regulations, the regulationswere not independently actionable. The broader view — that "anyregulation adopted within the purview of the statute creates rightsenforceable in federal court," she suggested, was "troubling indeed."Id. at 437-38 (O'Connor, J., dissenting) (emphasis in original).20
Three years later, in Wilder v. Va. Hospital Ass'n, 496 U.S. 498(1990), the Wright holding was reaffirmed. Without much analysis,however, the Court characterized its earlier holding in Wright assuggesting that "the [statute] and its implementing regulations didcreate rights enforceable under § 1983." Id. at 511. Likewise, tenyears later, in his dissent in Alexander v. Sandoval, Justice Stevenscharacterized Sandoval's denial of relief on respondents' direct cause ofaction under Title VI as "something of a sport" because "[l]itigants whoin the future wish to enforce the Title VI regulations against stateactors in all likelihood must only reference § 1983 to obtainrelief." 532 U.S. at 299-300 (Stevens, J., dissenting); see alsoGuardians Ass'n v. Civil Serv. Comm'n of New York, 463 U.S. 582, 638(1983) (Stevens, J., dissenting) ("[I]t is clear that the § 1983remedy is intended to redress the deprivation of rights secured by allvalid federal laws, including statutes and regulations having the forceof law.").
The lower federal courts have split on the meaning of this case law.The Sixth Circuit, and the Ninth Circuit, together with district courtsin Michigan, California, and Florida, have followed the broader rule.See, e.g., Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994) ("As federal regulations have the force of law, they likewise maycreate enforceable rights"); see also Buckley v. City of Redding,California, 66 F.3d 188, 192 (9th Cir. 1995),21 Hill v. San FranciscoHousing Auth.,207 F. Supp.2d 1021, 1027 (N.D.Cal. 2002),22 White v.Engler, 188 F. Supp.2d 730, 745 (E.D.Mich. 2001).
Other courts (this circuit and this Court not among them) have takenthe view suggested by Justice O'Connor's dissent in Wright — thatregulations may help define the scope of the statutory right created byCongress, but they do not independently create rights. See S. CamdenCitizens in Action v. New Jersey Dep't of Envtl. Protection, 274 F.3d 771,790-91 (3d Cir. 2001) (finding that environmental disparate-impactregulations adopted pursuant to Title VI of Civil Rights Act of 1964§ 602, 42 U.S.C. § 2000d-1, do not create rights enforceableunder § 1983 because the right only appears in the regulation, not inthe statute). See also Harris v. James, 127 F.3d 993, 1009 (11th Cir.1997); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987); Ceaser v.Pataki, No. 98 CIV.8532(LMM), 2002 WL 472271, at *3 (S.D.N.Y. Mar. 26,2002).
I find the broader view — also endorsed by the dissenting judgein South Camden, 274 F.3d at 797-98 (McKee, J., dissenting) — to bemore consonant with Supreme Court doctrine, the academic commentary andsignificantly, the fundamental purpose of § 1983.23 On its face,§ 1983's broad language encompasses regulations. Section 1983provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (emphasis added). While the plain meaning of"laws" is broad,24 the statutory text, as the Blessing courtnoted, incorporates the limitation that recourse to § 1983 isavailable only to redress the "deprivation of rights, privileges,or immunities" secured by the "laws" in question.
The sticking point appears to be the source of the right in question.The Third, Fourth, and Eleventh Circuits, as well as the dissenters inWright, are troubled by the idea that a § 1983 suit could vindicate"rights" stemming not directly from Congress but from an agency'sregulation. These courts have to be saying more than the truism that noaction will lie to assert a right conferred by an agency acting outsideits statutory authority. Rather, they must be suggesting that regulationsthat derive from broad delegations of congressional authority rather thannarrow grants of authority are somehow too far removed from congressionalaction to meaningfully permit § 1983 enforcement.
But the lodestar under Blessing is congressional intent to conferrights. To say that such rights, contained in valid regulations issuedpursuant to narrow congressional delegations, are enforceable, but thatthe same rights contained in valid regulations enacted pursuant to broaddelegations are not, poses a distinction that exists nowhere in thelanguage, the doctrine, the rationale or the history of § 1983.Moreover, the effect of such a distinction is quite paradoxical: The morelatitude Congress expressly intended to allow the agency, the fewer§ 1983 "rights" that agency may validly create through itsregulations.
In any event, the distinction between the broad and narrow tests isbeside the point here. The statutes at issue already contain therequisite "rights-creating" language. They meet the Blessing test, bothin letter and spirit. Under those circumstances, it should make littledifference whether Congress specifies the right even further in thestatutory text or charges the agency to do so via regulations.
Moreover, two of the three claims involve statutory provisionsconcerned with discrimination — redressing illegal discriminationon the one hand, affirmatively furthering fair housing on the other.They are precisely the kinds of rights with which § 1983, passedimmediately after the Civil War, was uniquely concerned. They arephrased in mandatory not precatory terms. And antidiscriminationprovisions are hardly beyond the competence of courts to administer.25Courts have beenthe place where such rights have been enforced for decades.
To the extent the fair housing statutes delegate details of enforcementto regulation, the regulations implementing these statutes are notmaterially different from court decisions implementing like statutes inother areas concerned with discrimination.26 Thus, however onecharacterizes the test — broadly as the Wright majority did, ormore narrowly, as in the Wright dissent, the result is the same. Theregulations27 here are either independent sources of rights becausethey have the force of law, or they represent HUD's authoritativeinterpretations of the statutoryantidiscrimination rights, or theyflowed from a statutory scheme that itself met the Blessing standard.28
C. Abington and Rockland: Compliance with the 75% Rule
1. The 75% Rule: Does It Meet the Blessing Standard?
The QHWRA's "75% Rule" resides in the statute,42 U.S.C. § 1437n(b)(1), which provides:
Of the families initially provided tenant-based assistance under section 1437f of this title by a public housing agency in any fiscal year, not less than 75 percent shall be families whose incomes do not exceed 30 percent of the area median income, as determined by the Secretary with adjustments for smaller and larger families . . . .
A straightforward application of Blessing to this provision recognizesthat a private action under § 1983 to enforce the 75% Rule isappropriate.
The statute is crafted to ensure that a designated class of families— those described in HUD regulations as "extremely low incomefamilies" — comprises at least three quarters of the total numberof families awarded assistance by a given PHA. The named plaintiffs allfit this classification, and the plaintiff class is precisely tailored toinclude only those individuals "with incomes at or below 30% of areamedian income." There is no doubt that Congress intended the 75% Rule tobenefit the plaintiffs; the 75% Rule therefore passes the first componentof the Blessing test.
Nor is the right so "vague and amorphous" that a court cannot enforceit. The statute gives an explicit directive to PHAs: make sure that 75%of the families awarded aid are at a certain level of income. Thepreliminary injunction issued against the Abington and Rockland PHAs inthis case is demonstrative of this provision's enforceability in thecourts. The available data showed that the wait-lists, as configured byAbington and Rockland, threatened to violate the 75% Rule. Langlois, 1998WL 1029207, at *3-*4. An order followed to ensure their compliance.
Finally, Congress took pains to phrase the 75% Rule "in mandatory,rather than precatory, terms." 42 U.S.C. § 1437n(b)(1) ("[N]ot lessthan 75 percent shall be families whose income exceeds 30 percent . . . ."(emphasis added)).
2. The 75% Rule: Does the Rockland Plan Comply?
As mentioned above, on April 4, 1999, the defendants submitted to thisCourt the "specific plan" that the Rockland and Abington HousingAuthorities proposed to ensure compliance with the 75% Rule. Theproposed amendment to both PHAs' administrative plans is as follows:
Of the families initially provided tenant based assistance under section 8 by the [Rockland/Abington] Housing Authority in any fiscal year, not less than 75% shall be families whose incomes do not exceed 30% of the area median income as determined by the Secretary. The local preference policy is subordinate to this provision, and admissions to the program will be monitored to assure compliance.
Abington has chosen to cease administration of Section 8. This analysisapplies to Rockland only.
The plaintiffs respond that the proposed amendment is not at all"specific"; rather, it is just a statement of intended compliance withoutany details as to how compliance will take place. The First Circuit, inaffirming the preliminary injunction against the Abington and RocklandPHAs, left it to this Court to resolve whether the amendment constitutescompliance with the 75% Rule. Langlois, 207 F.3d at 48-49.
I agree with the plaintiffs that the proposed amendment is essentiallymore of a promise of compliance than a plan for compliance. Theamendment is not at all specific as to what statistical and proceduralmechanisms the Abington and Rockland PHAs would use to ensurecompliance.
At the same time, however, a given PHA's compliance with the 75% Ruledoes not strike me as requiring a particularly complex assessment. As Iobserved in my Memorandum and Order of December 30, 1998, the plaintiffsin this case were easily able to assess projected compliance by (1)counting the number of extremely low-income households due to receiveSection 8 certificates and (2) assessing what percentage of thosehouseholds would in fact receive certificates under the system in placeat a given PHA. Langlois, 1998 WL 1029207, at *3-*4. What the RocklandPHA's amendment appears to mean is that the 75% Rule will function as abackstop in formulation of the waiting lists, and that it will takeprecedence over any system of local preferences — as the law in factrequires.
At this point, however, I am willing to give the Rockland PHA thebenefit of the doubt. Rockland is now on more than adequate notice as towhat compliance means; there is little to gain from hamstringing itfurther at this point. Should it turn out that, despite the amendment toits administrative plan, the Rockland PHA still fails to comply with the75% Rule, the plaintiffs are free to come back to court and seek aninjunction requiring them to do so.
D. Disparate Impact (Title VIII/Fair Housing Act)
In relevant part, 42 U.S.C. § 3604 (Title VIII/Fair HousingAct) provides:
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful —
(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.
There is no question that the Fair Housing Act meets the Blessingframework. As I have explained, § 1983 was passed after the CivilWar as part of Congress's effort to give racial minorities ammunition tofight state-sponsored and private discrimination. Application ofBlessing confirms what the history of§ 1983 suggests: (1) the FairHousing Act was enacted to protect racial minorities, (2) courts arewell-positioned to enforce norms against discrimination and have done sofor decades, and (3) Title VIII's prohibition of discrimination —and the PHAs' obligation to comply with them — arenondiscretionary.29
Moreover, there is no question that Fair Housing Act claims may rest ona disparate impact theory of discrimination.30 Langlois, 207 F.3d at49; see also cases cited supra note 25. The First Circuit held that oncea plaintiff establishes a prima facie case of disparate impact, thequestion then becomes only whether the disparate impact is "justified bya legitimate and substantial goal of the measure in question" — the"simple justification test," id. at 51 — and whether there is noless discriminatory means by which the defendant can meet thatobjective, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926,936 (2d Cir.), aff'd, 488 U.S. 15 (1988); see also Langlois, 207 F.3d at50 n. 6 (inviting the parties to review the question of lessdiscriminatory alternatives on remand).
1. The Prima Facie Case for Disparate Impact: Residency Preferences
As the First Circuit observed in the appeal of the preliminaryinjunction in this case, the "Supreme Court has said that no single testcontrols in measuring disparate impact." Langlois, 207 F.3d at 50 (citingWatson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n. 3 (1988)).It is my task, then, to review each PHA's residency preference againstthe several tests that are before me.
It is important, however, to put this analysis in context. As a simplematter of logic, the residency preference of every one of the defendantPHAs raises concerns. All of the communities in this case havesignificantly lower percentages of minority residents than their urbanneighbors; all of them have fewer minority residents per capita than thestate average. It follows logically, then, that any policy that faciallyfavors the residents of these communities will disproportionately favorwhites over minorities in the long run.
But the law requires proof of a substantial disparate impact. Fudgev. City of Providence Fire Dep't, 766 F.2d 650, 657-58 (1st Cir. 1985).The various tests for disparate impact that the plaintiffs propose (thedefendants themselves propose none) yield a variety of conclusions;occasionally a PHA's residency preference passes a particular test,sometimes there is insufficient data to apply a given test to a PHA. Nosingle methodology is airtight, as the defendants hasten to point out,and I will address the imperfections of each testbelow. Nevertheless, Iwant to keep my eye on the context: Predominantly white suburbancommunities have enacted a Section 8 preference to bring their ownresidents to the front of the line for housing vouchers. That there willbe a disparate impact over time seems clear. The question is the extentof that impact and whether it meets the applicable legal standards.
a. The Preliminary Injunction Tests
In this Court's Memorandum and Order of December 30, 1998, I applied,at the plaintiffs' urging, two different standards for proving disparateimpact on minority applicants: the Equal Employment OpportunityCommission's "four-fifths rule" and the Comer standard. Langlois, 1998WL 1029207, at *5-6. My focus at that time was on the 1998 wait listsand minority prospects for selection in the coming year.
(1) The "Four-fifths" Rule
The four-fifths rule provides that "a selection rate for any race,sex, or ethnic group which is less than four-fifths (or eighty percent)of the rate for the group with the highest rate will generally beregarded by the Federal enforcement agencies as evidence of adverseimpact . . . ." 29 C.F.R. § 1607.4(D). A typical application of theEEOC test would find fault if, say, 13% of white applicants were givenemployment as against 4% of black applicants (4% being less than fourfifths of 13%). See Fudge, 766 F.2d at 658 n. 10 (applying the test inthis manner, but noting that small sample size makes the comparison ofpercentages less reliable).
The EEOC test is particularly effective in employment cases where anapplicant pool is ascertainable. In our case, however, it is not. Thewaiting lists generated by the 1998 lotteries do not necessarily reflectall qualified applicants. There is evidence that notice of the residencypreference discouraged members of the plaintiff class from applying forthe defendant PHAs' vouchers. The plaintiffs point to additionalbarriers to application — for example, the time constraints, thePHAs' requirements that applications be retrieved in person or by phone.Obviously, it is not possible to account for the number of thwarted ordeterred potential applicants with any statistical certainty. Cf. U.S.v. City of Warren, Michigan, 138 F.3d 1083, 1092 (6th Cir. 1998) (holdingthat the plaintiff's "inability to isolate the specific reason for thedearth of black applicants was not fatal to its claim" that recruitingpractices worked a disparate impact against qualified minority applicantsfor employment). In addition, at the preliminary injunction stage, thevariation of the four-fifths rule that I applied did not compare theselection rate of minorities to the selection rate of whites, as the EEOCtest suggests. Instead I compared the percentage of minority applicantsselected with the residency preference scheme to the percentage ofminorities selected without the preference in place. Thus, if aparticular PHA's selection rate for minority applicants with the residencypreference in place was less than four fifths of its selection rate forminorities without the preference, the PHA would fail the EEOC test.Langlois, 1998 WL 1029207, at *6.
At that time, I found that the Avon (25% selection rate with thepreference versus 38% without), Holbrook (0% with the preference versus33% without), and Middleborough (40% with the preference versus 57%without) PHAs failed the four-fifths rule.
The plaintiffs submitted further evidence suggesting a disparate impactfor Rockland (47% with the preference versus 73% without), but because Ihad already identified the QHWRA's 75% Rule as asufficient ground tosuspend Rockland's preference, id. at *4, *5 n. 21, I reserved rulingagainst Rockland on the disparate impact issue. Abington passed thefour-fifths test (54% with the preference versus 63% without). TheBridgewater, Halifax, and Pembroke PHAs had not exhausted their existingwait lists and would not reach the lists compiled under the new regime in1999. Due to the lack of evidence of any projected impact in the comingyear, disparate or not, the preliminary injunction's disparate impactanalysis did not take account of these three PHAs' programs.
(2) The Comer Test
The second test I applied at the preliminary injunction stage wasborrowed from Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994). Comerinvolved challenges by minority residents of Buffalo to, inter alia, asuburban PHA's residency preference in distribution of Section 8subsidies and the Buffalo PHA's practice of keeping inner-city plaintiffsfrom using their subsidies in suburban communities.
In the Comer case the Second Circuit assessed disparate impact bycomparing the percentage of minority families holding Section 8certificates from the suburban housing authority with the percentage ofminorities on the PHA's waiting list for housing. Id. at 793. At thepreliminary injunction stage I was concerned with the immediate effect ofthe residency preferences, so I adjusted the Comer test to focus on thePHAs' projected selections for the coming year. A PHA's residencypreference would pass muster if the percentage of minority representationin its projected 1999 selections was equal to or greater than minorityrepresentation on the entire wait list. My charge at this stage,however, is to determine the impact of residency preferences onminorities in future years.31
At the preliminary injunction stage, Avon failed the Comer test becauseonly 25% of the applicants to be admitted to the program in 1999 wereminorities, as against a wait list that was 55% minority. Abington(minorities comprised 54% of projected admissions on a wait list that was55% minority), Holbrook (0% share of admissions from a wait list that was51% minority), and Rockland (47% share of admissions from a wait listthat was 56% minority) also failed the test. Again, no data wasavailable for Bridgewater, Halifax and Pembroke, as they had not yetexhausted their wait lists.
On appeal, the First Circuit found no reason to disturb thesefindings. Langlois, 207 F.3d at 50. It did, however, make brief commenton the methodology, and the EEOC rule in particular. The panel took noteof the defendants' objection that the four-fifths rule — as withmost statistical formulas — is "less reliable when the numbers aresmall; and the numbers in each of the PHAs in this case are fairlysmall." Id. (citation omitted). Ultimately, however, this allegeddeficiency was not enough to overturn this Court's finding that theplaintiffs were likely to succeed on the merits of the disparate impactissue, particularly given the prospect of expert testimony on thesubject. Id.
b. The Summary Judgment Stage
Taking the First Circuit's cue, the plaintiffs have come forward withthe opinions and analysis of an expert witness, Professor Chris Tilly.Dr. Tilly has reviewed the available data as to each PHA, and theplaintiffs now propose a battery of fourentirely new tests for disparateimpact. The defendants have offered no expert.
(1) The Track Records of Pre-1998 Residency Preferences
First, the plaintiffs offer evidence of the effect of prior (namelypre-1998) residency preferences upon Section 8 selection. In effect, withthis approach, the plaintiffs seek to develop a track record of pastpractices, implying that such past practices are a reasonable predictionabout the impact of post-1998 residency preferences. This is a viablemethodology only to the extent that the PHAs maintained such preferencesand there is data on race and residency available to assess theirimpact. Only Abington, Pembroke, and Rockland are reviewable here, fortwo reasons: (1) only these PHAs maintained residency preferences priorto 1998 and (2) only these PHAs kept sufficient data on the race,residency, and disposition of their applicants. Avon and Middleboroughhad no preferences in place before 1998, and Halifax, Bridgewater, andHolbrook had preferences but did not keep data sufficient to show theracial impact of their residency preferences upon the selection process.
The story that the plaintiffs tell about these PHAs is compelling.Looking to Abington's most recent reorientation of its wait list, in1996, the plaintiffs find that implementation of the residency preferencepushed back the distribution of vouchers to nonresidents by fourteenmonths. All six of the Abington residents moved to the top of the listwere white. Seven minorities ultimately received vouchers, albeit over ayear later, as opposed to the eleven who would have without the residencypreference in place. Similarly, Pembroke gave preference to twelveresidents in 1996. Nine of the preferred residents were white; thus,while 54% of Pembroke's wait list were minorities, the group brought tothe top of the list was 75% white. It took Pembroke thirteen months toreach the nonresidents on its list. Ultimately, because 54% of the waitlist was minority, Pembroke should have given vouchers to thirteenminority candidates, but because of the residency preferences, only sevenreceived vouchers. Rockland, the plaintiffs suggest, demonstrated nodisparate impact in this analysis.
(2) The Effect of Pre-existing Residency Preferences on Current Participation
The plaintiffs' second test also examines the past performance of thedefendant PHAs' pre-1998 residency preferences, as presently reflected ineach PHA's roster of individuals who actually hold vouchers. This testcompensates for the limitations of the first. Whereas the first test wasable to address only those towns that had a track record of selection anddata about the racial makeup and residency of its applicants, this testrecords the minority presence among current voucher holders (all of whomwere selected under pre-existing residency preferences), and compares itto the percentage of minorities on the 1998 wait list.32 This test'sfocus on the body of current voucher holders and not past selection ratesenables an assessment of all of the six PHAs' pre-1998 residencypreferences, not just those withextant past data about the race, residency, and disposition of applicants.
The downside of this approach is that emphasizing voucher holding overvoucher selection does not take account of the applicants who wereselected but refused vouchers or who accepted them, but are no longer inthe program. Voucher holding and selection are different. There is noone-to-one correlation between selection at some time in the past andcurrent participation in the voucher program.
To verify the statistical significance of the data,33 theplaintiffs' expert applied two standards. The first calculated thestandard deviations between the minority participation share andapplication share. If there were more than two standard deviationsbetween the percentage of voucher holders who are minorities and thepercentage of applicants who are minorities, the PHA would fail. Thesecond standard applies a four-fifths rule: if the percentage of currentSection 8 voucher holders who are minorities is less than four fifths ofthe percentage of applicants who are minorities, the PHA would fail.
For example, Abington showed that 25% of its voucher holders wereminorities, though in 1998 55% of applicants were minorities. There wasa difference of 4.6 standard deviations between these two figures, and25% is less than four fifths of 55%. Abington therefore failed in thisanalysis by both standards. Bridgewater (15% minority voucher holders,52% minority applicants, 5.8 standard deviations), Holbrook (20% minorityvoucher holders, 54% minority applicants, 5.3 standard deviations),Pembroke (24% minority voucher holders, 60% minority applicants, 6.1standard deviations), and Rockland (18% minority voucher holders, 60%minority applicants, 8.8 standard deviations) also failed by bothstandards. The numbers for Halifax (27% minority voucher holders, 55%minority applicants, 1.8 standard deviations) are passable by thestandard-deviation standard, but not under the four-fifths rule. Avonand Middleborough, again, had no residency preference in place prior to1998 and could not be studied.
(3) The Effect of the Preliminary Injunction
The plaintiffs' third proposed approach evaluates the effect of thisCourt's preliminary injunction on the roster of each PHA's voucherrecipients. The preliminary injunction ordered the parties to proceedwith the distribution of the vouchers, but without the residencypreferences in effect. Thus, the PHAs with unexhausted wait lists wouldexhaust them, then dip into the lotteried pool of 1998 applicants, andthose with entirely new wait lists would make selections according to thelottery results, without any favoring of residents.
The plaintiffs pay particular attention to the percentage of presentminorityvoucher holders who were taken from the 1998 waiting list.These percentages suggest that the preliminary injunction did wonders forminority participation in the Abington (87%), Middleborough (62%), andRockland (74%) Section 8 programs. The numbers for Avon (13%),Bridgewater (10%), Halifax (0%), Holbrook (0%), and Pembroke (6%) aresubstantially more equivocal. The plaintiffs suggest that the data"raises a strong inference that the preferences would have retarded theadmission of minorities had they not been enjoined."
The statistics here, in my estimation, are telling as to some of thePHAs, but not all. First, while data oriented around the current rostersof voucher holders is helpful, the connection is not airtight because ofthe variables that I describe above — selected candidates rejectingvouchers or moving quickly through the program. Second, though the datashows that the preliminary injunction's suspension of residencypreferences dramatically altered Abington, Middleborough, and Rockland'srosters of voucher holders, the injunction had a negligible impact atbest on the remaining five PHAs. Moreover, Middleborough had noresidency preference in place prior to 1998; implementation of thepreliminary injunction merely preserved the status quo.
This data suggests that some factor other than suspension of aresidency preference may also be at work. This does not suggest that theresidency preference did not have a substantial disparate impact on theminority participation within the meaning of the law. Rather, it is notat all clear that suspension of the residential preference was aloneresponsible for Middleborough's striking 62% result under this analysis.
(4) The Measure of Delay
Fourth and finally, the plaintiffs deploy statistical analysis of theextent of delay nonresidents would experience as a result of theresidency preferences before winning selection to the PHAs' Section 8programs. To perform this analysis, Dr. Tilly extrapolated from eachPHA's current pace of voucher issuance and found that Abington (1.2 monthdelay), Avon (2.7 months), Bridgewater (2.6 months), Middleborough (1.4months), Pembroke (3 months), and Rockland (1.4 months) promisedconsiderable delays to nonresidents. Halifax and Holbrook's residencypreferences would result in delays of less than one month. The plaintiffspropose that this test would find a disparate impact for each PHA thatpromises a delay of more than one month. It follows, then, that Halifaxand Holbrook pass scrutiny.
The problem with this analysis, at first glance, is that it quantifiesthe delays to nonresidents, but not to minorities, even though thepercentage of minorities in the nonresident group is high. Thequintessence of a residency preference is that it impacts nonresidents bydelaying their selection to the Section 8 program. Dr. Tilly's analysisonly reinforces with numbers what anyone could deduce from the face ofthe scheme. More to the point is the extent to which minorities as agroup would suffer delay in receiving their vouchers as a result of thepreference. While it seems eminently logical to assume that minoritieswill bear the brunt of the delay to nonresidents (because of thedemographic breakdown of the defendant communities), Dr. Tilly'sstatistics do not specifically address that question.
At the same time, Dr. Tilly's data appears to understate the amount ofdelay that might well befall nonresident applicants in the future. Thetest assumes a constant rate of selection based on eachPHA's pace ofvoucher issuance in the months following the preliminary injunction. AsI described above, when Abington launched its Section 8 program in 1996,its residency preference resulted in a fourteen-month delay tononresidents, and when Pembroke initiated its distribution of vouchersthat same year, thirteen months passed before nonresidents wereselected. The First Circuit itself observed that "given the limits onfunding, the delays apparently stretch into years, so delay may forpractical purposes be the equivalent of denial." Langlois, 207 F.3d at48.
As both the plaintiffs and defendants recognize, no single test leapsoff the page as ideal. The EEOC test I applied in my preliminaryinjunction decision may be inappropriate due to the small sample size.Langlois, 207 F.3d at 50. The Comer test at the preliminary injunctionstage dealt with projected selections from existing wait lists, but onlyfor the upcoming calendar year. Data insufficiencies stymie applicationof the first summary judgment test proposed by the plaintiffs to five ofthe PHAs. The second, and third tests, relying as they do on currentrosters of voucher holders, do not reflect selection with 100% accuracybecause they do not account for candidates who are offered vouchers andrefuse them or who have left the program. The delay test describes theimpact on nonresidents and not minorities.
The plaintiffs urge me to view their four tests as an integrated wholeand not to consider them individually. Dr. Tilly, for example,acknowledges that the data on delay "standing alone may not beconclusive, [but] when reviewed in conjunction with the other information. . ., it adds to the conclusion that the preference will negativelyimpact minority applicants." Accordingly, the plaintiffs propose that Ifind a prima facie case of disparate impact as to any PHA that fails morethan one of the tests. Abington fails all four tests, Bridgewater,Pembroke, and Rockland fail three of the four, and Avon and Middleboroughfail two. Halifax and Holbrook, in the plaintiffs' view, are to beexonerated for failing only one of the proposed tests on summaryjudgment.
I agree with the plaintiffs that it is critical to see the case as awhole. Indeed, given the context, the plaintiffs paint a more compellingpicture than they recognize. Though the defendant PHAs heavily critiquethe approach the plaintiffs have taken, they propose no bettermethodologies and offer no expert testimony to rebut Dr. Tilly's. SeeBoston Police Superior Officers Federation v. City of Boston, 147 F.3d 13,22 (1st Cir. 1998) (emphasizing the value of expert testimony instatistical proof of discrimination and taking notice of the plaintiffs'failure to provide the rebuttal testimony of an expert). Perhaps mostimportantly, they give me no reason to question the overarching intuitiveprinciple that compromises their case: where a community has a smallerproportion of minority residents than does the larger geographical areafrom which it draws applicants to its Section 8 program, a selectionprocess that favors its residents cannot but work a disparate impact onminorities.34
Significantly, the defendants give me no reason to believe that thefaults they identify in the plaintiffs' individual tests necessarily skewthe results of those tests in the plaintiffs' favor. For example, thesecond and third tests, which key on the current roster of voucherholders rather than statistics about selection, are troubling becauseselected parties often refuse vouchers, or they may have been cycled inand out of the program already. But no evidence is before me to suggestthat minority applicants are more likely than white applicants to refusevouchers or that they spend a shorter time participating in Section 8programs.35 Accordingly, I have no reason to believe that the datapertaining to current voucher holders understates the actual admission ofminorities to the program.
Similarly, the defendants point out that a number of the PHAsmaintained first-come first-serve open lists prior to 1998. Federalpreferences were also in place in a number of PHAs prior to the enactmentof the QHWRA. Accordingly, the defendants argue, the first and secondtests' inquiry into the effect of the residency preference under theseearlier schemes is not necessarily instructive of how the preference willplay in the future under a lottery scheme without federal preferences.36But again, the defendants offer no evidence to suggest that thesedifferences materially hurt their position.
The defendants fault the first test because data is available toexamine the track record of only three of the six PHAs' preexistingresidency preferences.Bridgewater, Halifax, and Holbrook PHAs did notkeep data on the race, residency, and selection order of applicants thatwould be sufficient to permit an informed assessment of the impact ofpreexisting residency preferences on minority selection.
As I describe below, the PHAs' failure to keep such statistics isitself in derogation of their duty to affirmatively further fairhousing. It was incumbent upon the PHAs to determine the extent to whichtheir Section 8 policies affected fair housing principles, and thatincluded gathering and reviewing data on exactly the question of theimpact of their residency preferences on the availability of vouchers forminorities. Though the plaintiffs appear to concede the point, I find itinappropriate to treat Bridgewater, Halifax and Holbrook as "passing"plaintiffs' first test. At best these PHAs deserve a grade of"Incomplete." The defendants summon no evidence and offer no argument tosuggest that the absent data would have supported a finding of no impact— and it was their duty under the law to keep that data.
Though the defendants' critiques of the plaintiffs' methodologies donot explain why the flaws they cite are material, the plaintiffs offerample evidence to suggest that the very fact of the residency preferencesresulted in fewer application submissions from nonresident minorities.Notice that the process favored residents from the PHA communitiesdeterred nonresidents from applying. More nonresident minorityapplicants would mean that a greater portion of the wait list wascomprised of minorities who would receive no advancement as a result ofthe residency preference.
For that matter, the plaintiffs provide census statistics demonstratingthat nonresidents who would have applied are disproportionatelyminorities. More than this, the plaintiffs' evidence that a lowerpercentage of minorities own cars and phones than do whites — evenwithin the plaintiff class — supports an inference that thelogistics of the process made it more difficult for minority nonresidentsas a group to submit Section 8 applications than for white nonresidents.Though the number of minorities and whites who would have applied in theabsence of these logistical barriers is not quantifiable, it may beinferred from this undisputed evidence that the tests that focus on thecomposition of the PHAs' wait lists actually understate the residencypreferences' impact on minorities. This warrants a further push towardfinding a prima facie case of disparate impact. Though the defendantshave plenty of reasons why the tests might not describe the impact of thepreferences with perfect accuracy, they offer no argument or evidence thatwould require a push in the opposite direction.
I therefore find that the plaintiffs have established a prima faciecase that the residency preferences of Abington, Avon, Bridgewater,Middleborough, Pembroke, and Rockland work a disparate impact on racialminorities.
2. The Prima Facie Case for Disparate Impact: Application Procedures
The plaintiffs mount a specific challenge to the applicationprocedure, which they seek to enjoin as creating a disparate impact onminorities. They claim that notice of the residency preference and thelogistics of the application process kept minority candidates for Section8 vouchers from even applying. The plaintiffs offer evidence thatsuggests it was next to impossible for potential applicants inneighboring communities to retrieve applications from the PHAs withoutcars and phones. Public transportation, forexample, was the onlyalternative for applicants without access to cars and phones Brockton orBoston residents, and the distance between the PHAs and the nearest trainstations would make trips to the PHAs hours long. Section 8 candidatesonly had two days to retrieve applications from the defendant PHAs.
The plaintiffs offer census data that demonstrates that greaterportions of minorities lack access to cars and phones than do whites. Theconclusion to infer from this is that it was substantially more difficultfor minorities, as a group, to obtain and submit applications than it wasfor similarly-located whites. And, the plaintiffs argue (and as Idiscuss above), the notice given to potential Section 8 applicants thatthe defendant PHAs had implemented residency preferences "prescreened"nonresident candidates who found it not worthwhile even to apply. Again,deterrence of applications from nonresidents is alleged todisproportionately impact minorities, because of the demographics of thePHAs' communities vis-à-vis their neighbors'.
Finally, the plaintiffs offer anecdotal evidence describing the effectsof the PHAs' chosen application processes and the residency preference onqualified candidates' ability — and decisions — to apply tothe PHAs for vouchers. At least one affidavit describes a nonresident'sdecision not to bother applying, because of the residency preference.One housing advocate described heroic expenditures of resources trying topick up applications for clients; another described clients' lack ofaccess to phones and cars and her own difficulty reaching the PHAs byphone — the lines were always busy. Candidates with phones whotried to call for themselves had similar luck.
The plaintiffs urge that the combination of the announcement of aresidency preference and the logistical barriers to applications works adisparate impact against minorities in violation of the Fair HousingAct. They cite United States v. City of Warren, Michigan, 138 F.3d 1083(6th Cir. 1998), an employment case, which found disparate impact in thecombination of the city's announced residency preference for applicantsand its failure to advertise municipal job openings beyond acircumscribed, predominately white local area. Id. at 1094.
In City of Warren, however, the United States proceeded on much moresolid statistical ground than the plaintiffs do here. The city reversedits recruitment practices for policemen and firefighters midstream,advertising job openings more broadly. A statistically significantincrease in minority applicants followed. On this evidence the districtcourt found that the city's recruitment practices for policemen andfirefighters worked a disparate impact on minorities. The city did notchange its recruiting practices for other municipal jobs, and the UnitedStates pressed the court for a similar finding against the city'spractices for non-police, non-firefighting positions. The Sixth Circuitfound just such a disparate impact, notwithstanding the absence ofstatistical evidence relating to the impact of the limited recruitment onnon-police, non-firefighting positions. Id. at 1092-93.
The same kind of smoking-gun evidence is not present here. Theplaintiffs cannot point to dramatic increases in minority applicationsgiven an application process more accommodating to out-of-towners.Through circumstances not of their creation, they can only speculateabout the number of qualified minorities who would have applied absentthe difficult conditions that they challenge. The plaintiffs must relyinstead on inferences drawn from evidence that eligible minorities haveless access than do eligible whites to the cars andphones that wouldhave facilitated their retrieval of Section 8 applications from thePHAs.
Dr. Tilly offers census data showing that 37.7% of black urbanhouseholds in the United States do not have access to cars, compared to14.1% of their white urban counterparts. This is a difference of 80.4standard deviations, but there is no ready data that breaks down thesenumbers by income group. The defendants have a strong argument that thedifferential in car access between whites and minorities is significantlyreduced at the pertinent income level: that is, at the level of incomewhere Section 8 eligibility triggers.
Dr. Tilly has also found in Massachusetts that more whites than blacksown phones — but by a statistically insignificant differential of1.9 standard deviations. A significant differential of 3.6 standarddeviation separates whites and Hispanics. Again, however, this data doesnot control for income level. Households nationwide earning less than$20,000 nationwide suggest that more whites than blacks own phones at aclip of 5.5 standard deviations, and that more whites than Hispanics havephone service, by a gap of 4.3 standard deviations. But these numbersreflect access to phone service nationwide, and the disparities mightwell vary significantly by reason.
Based on the evidence of car and phone ownership, as well as theestablished disproportionately high numbers of qualified minoritynonresidents, I have no doubt that the application procedures worked adisparate impact on racial minorities. While poor white families may nothave had access to phones and cars, if they lived in the relevant towns,they did not need it.
Given the current record, however, while I can find a disparateimpact, I cannot determine how disparate the impact was.37 Under thecircumstances, I decline to take the position that the PHAs' applicationprocedures violated the "because of race" provision in the Fair HousingAct.
The point is moot. As I describe above, I used this data to buttressthe conclusion that the residency preferences had a substantial disparateimpact on minorities. And, as I will make clear below, the PHAs' failureto consider the possible effect of its application procedures on theability and inclination of qualified minority residents to apply fortheir Section 8 vouchers is a clear violation of their duty toaffirmatively further fair housing. I will therefore proceed with aremedy on that basis.
3. The "Simple Justification Test"
In the present case, the First Circuit suggested that the defendantPHAs had passed the simple justification test for their residencypreferences, pointing to the "considerable history" of preferences forlocal residents, and moreover to "the 1998 amendment [in which] Congressitself endorsed the use of locally determined preferences in distributingsection 8 vouchers." Langlois, 207 F.3d at 51 (referring to42 U.S.C. § 1437f(o)(6), as well as earlierregulatory provisionsexpressly allowing residency preferences). The First Circuit concludedthat, absent a showing of a different theory of intentionaldiscrimination, the residency preferences at issue here "[do] not violatethe `because of race' provision of the Fair Housing Act standing alone."Id.
What the Court was saying, in effect, was that if Congress hasannounced that residency preferences are a legitimate goal of the QHWRA,then that is the end of the analysis. It does not matter if thesepreferences also have a substantial disparate impact on minorities.However, a closer analysis of the legislative history of the Act than waspossible during the preliminary injunction litigation suggests thefollowing: First, as I indicated above, Section I.A.1.(c), supra, andsummarize below, neither the statutory text nor the legislative historyof the QHWRA suggests that Congress wished to encourage implementation ofpreferences for local residents by PHAs. Rather, the statute suggests thatlocal needs and preferences should enter into the mix of housing promotedby Section 8 vouchers. Second, the QHWRA plainly had multiple goals.Even if the QHWRA implied an endorsement of preferences for localresidents, it cannot be read to trump other civil rights statutes thatpreceded it, and which are also part of the statutory and regulatoryframework.
Let me make this clear: It is not an issue of balancing one goalagainst another, "with individual judges deciding which seem to them moreworthwhile," which the First Circuit disapproved. Langlois, 207 F.3d at50. Rather, it is an attempt to discern what Congress had in mind bylisting multiple objectives which may only be harmonized as follows— residential preferences are permissible but only so long as othercivil rights laws are complied with.
a. Statutory Purpose and Intent
The First Circuit accurately observed that in creating and passingQHWRA, Congress gave voice to its concern that federal over-regulationwas impeding the PHAs' ability to function effectively. As I havediscussed, Congress concluded that the pre-QHWRA federal Section 8preferences regime did not afford PHAs sufficient flexibility to respondto local needs. Indeed, Congress' hope was that by enhancing localpreferences the ultimate effect would be to promote mixed-income housingand diminish residential segregation by income. See, e.g., Pub.L. No.105-276, § 502(a)(3), 112 Stat. at 2520 (reporting a congressionalfinding that "the public housing system is plagued by a series ofproblems, including the concentration of very poor people in very poorneighborhoods"); id. § 502(b)(3), 112 Stat. at 2521 (articulating astatutory purpose of, inter alia, "facilitating mixed income communitiesand decreasing concentrations of poverty in public housing"); 144 Cong.Rec. S11833-02, S11839 (daily ed. Oct. 8, 1998) (remarks of Sen. Kerry).
What is conspicuously absent from both QHWRA and its legislativehistory is any indication of concern that somehow local residents weregetting short shrift in their own PHAs' housing lotteries. It may be thecase, as the First Circuit observed, that "Congress itself endorsed theuse of locally determined preferences in distributing section 8vouchers," Langlois, 207 F.3d at 51 (emphasis added), but that is not thesame thing as preferences for local residents. From Congress' desire topromote flexibility and local autonomy for PHAs in the administration oftheir fair housing programs it does not follow that Congress intendedspecifically to endorse preferences for local residents —particularly in situations in which such preferencesthreaten to conflict with other congressional mandates.
Indeed, the Secretary's own interpretation of the PHAs' obligationsunder QHWRA — which is itself entitled to deference under Chevron— suggests precisely the opposite. The regulations demonstrate anexplicit concern about the racial impact of the PHAs' implementation ofresidency preferences. 24 C.F.R. § 982.207(b) provides, in relevantpart:
(1) Residency requirements or preferences.
(i) Residency requirements are prohibited. Although a PHA is not prohibited from adopting a residency preference, the PHA may only adopt or implement residency preferences in accordance with non-discrimination and equal opportunity requirements listed at § 5.105(a) of this title.
(ii) A residency preference is a preference for admission of persons who reside in a specified geographic area ("residency preference area"). A county or municipality may be used as a residency preference area. An area smaller than a county or municipality may not be used as a residency preference area.
(iii) Any PHA residency preferences must be included in the statement of PHA policies that govern eligibility, selection and admission to the program, which is included in the PHA annual plan (or supporting documents) pursuant to part 903 of this title. Such policies must specify that use of a residency preference will not have the purpose or effect of delaying or otherwise denying admission to the program based on the race, color, ethnic origin, gender, religion, disability, or age of any member of an applicant family.
This regulation can hardly be said to constitute an unlimitedendorsement of local residency preferences without regard to their impacton racial minorities. Rather, while not prohibiting PHAs outright fromadopting residency preferences, the regulation cautions that suchpreferences may only be adopted or implemented in accordance with anextensive list of nondiscrimination and equal opportunity requirementscontained in 24 C.F.R. § 5.105(a). That list includes, in relevantpart: The Fair Housing Act and its implementing regulations; ExecutiveOrder 11063, as amended by Executive Order 12259, and its implementingregulations; and Title VI of the Civil Rights Act of 1964 and itsimplementing regulations.
If anything, the regulation suggests a hierarchy of congressionalmandates, with civil rights laws taking precedence. Only if they are metare residency preferences permissible.38 Indeed, to ignore the civilrights impact of residential preferences is to do precisely what theFirst Circuit cautioned against — namely, to give effect to anindividual judge's view that one goal of the statute, concern for localneeds, is somehow more important than another, concern for fair housing.
b. The Broader Statutory Context: Local Needs Harmonized with Civil Rights Enforcement
QHWRA was enacted within a framework of civil rights statutes andregulations — one of which Congress and the Secretary were bothwell aware. In the face of the civil rights laws already discussed sofar, it is simply not enough to point toCongress' authorization of localpreferences and proclaim that any PHA's local preference adoptedthereunder trumps other statutes because Congress authorized it. See,e.g., Comer, 37 F.3d at 795 ("Although the U.S. Housing Act, by itsterms, does permit a local preference, such preference is subject tovarious limitations including that its administration must be consistentwith the Constitution and civil rights laws. . . . Therefore, theapplication of the local preference is null and void to the extent thatthe local preference is inconsistent with the Constitution . . . or anyof these acts.").
To put it another way, even taking as a given the First Circuit'sarticulation of the "simple justification" test — that thejustification has to be a "legitimate and substantial goal of the measurein question," Langlois, 207 F.3d at 51. Part of what goes intodetermining the legitimacy of that goal is how it fits into the statutoryand regulatory landscape. If the justification is in tension with otherlaws, it is difficult to see how it can qualify as "legitimate" in orderto justify a measure with a racially disparate impact.
The answer to the question — what is the legitimate andsubstantial goal of the practice that justifies its substantial disparateimpact on minorities — cannot be "preferences for local residents."It is not enough. To say that it is elevates some congressionalobjectives over others, when legislative history and authoritativeadministrative regulations say otherwise.
c. Proving More than Just "Residential Preferences Are Allowed"
Since Congress did not endorse preferences for local residents withoutlimitation, in order to evaluate the legitimate and substantialjustification for the disparate impact deriving from their use, I must gomore deeply into the purpose of the challenged practice in thesecommunities at this time. The defendants must set forth the reasons whythey want the preferences in place. And it is the reasons that must belegitimate in light of the statute's hybrid goals.39
The reasons the defendants have offered — that they want toprotect their administrative fees, that they want to make it easier fortheir residents to keep living in their communities, that it is importantfor community morale to know that the PHAs are working for the town's ownresidents — all collapse into the very definition of residencypreferences. If I accepted these as legitimate justifications, residencypreferences in and of themselves would forever justify the disparateimpacts that they cause.40
The "more" that is required, then, is the following: Defendant PHAsmust offer a record of local conditions and needs that suggests why theresidency preferences are necessary.41 Nowhere do they demonstratethat a residency preference would correct housing problems of the kinddescribed in the QHWRA's legislative history. And, as I describe below,nowhere do the defendants demonstrate that they even considered theimpact of their residency preferences on minorities and on theircompliance with other civil rights obligations. Likewise, the recordbefore me is devoid of any evidence suggesting that the PHAs met theirduty to affirmatively further fair housing, which included an obligationto investigate the potential effects of their proposed residencypreferences before their implementation. 24 C.F.R. § 903.7(o).Accordingly, I find that the justifications offered by the defendants donot overcome the prima facie case of disparate impact the plaintiffs haveestablished.
4. Less Discriminatory Alternatives
Even if I were to find that the defendants rebutted the prima faciecase merely by pointing to language in the regulations permittingresidency preferences, the defendants would still have to show that noless discriminatory alternative is available to meet its justified ends.Huntington Branch, NAACP, 844 F.2d at 939.
The plaintiffs describe at least two initiatives that would enable thedefendants to recover their administrative fees. First, they might workharder to recruit Section 8 voucher recipients to take up residence intheir communities — a fee-preserving measure with the incidentalbenefit of fostering community integrations. Second, the PHAs couldendeavor to contract for the administration of their Section 8 vouchersin other communities, thereby recovering their fees.
The plaintiffs also take note of the possibility of qualifying theresidency preferences rather than applying them strictly. They proposean innovative preference system by which the defendant PHAs would develop"reciprocal regional residency preference" programs in partnership withthe PHAs of nearby urban communities with much larger minoritypopulations. For example, a PHA could align with the city of Brockton toallow residents of both communities preferential status in bothcommunities' Section 8 selection processes. This tempered approach wouldstill help support local residents in their efforts to maintain theirresidencies in the defendant communities, while at the same time keepingthe strategy from running afoul of the fair housing requirement of nodisparate impact.
The defendants, for their part, do not address these proposals or evenargue that no less discriminatory means is available to achieve the endsthey describe.
E. Duty to Affirmatively Further Fair Housing
Plaintiffs argue that two principal statutory provisions support thePHAs' duty to affirmatively further fair housing:42 U.S.C. § 1437c-1(d)(15), by which PHAs must submit annual plans tothe Secretary of HUD that include a certification that the PHAs willaffirmatively further fairhousing; and 42 U.S.C. § 3608(e)(5), whichrequires the Secretary of HUD to "administer the programs and activitiesrelating to housing and urban development in a manner affirmatively tofurther the policies of this subchapter." The plaintiffs also identifytwo executive orders in support of their claims: Executive Order 11063,27 Fed. Reg. 11527 (Nov. 20, 1962), and Executive Order 12892, 59 Fed.Reg. 2939 (Jan. 20, 1994). I will consider each statute or executiveorder and its accompanying regulations in turn before proceeding to themerits of the plaintiffs' affirmative furtherance claim.
1. Does the "Affirmatively Further" Standard Comply with Blessing and Other Procedural Prerequisites?
a. 42 U.S.C. § 1437c-1(d)(15) (QHWRA)
An annual public housing agency plan . . . for a public housing agency shall contain . . . [a] certification by the public housing agency that the public housing agency will carry out the public housing agency plan in conformity with title VI of the Civil Rights Act of 1964, the Fair Housing Act, . . . and will affirmatively further fair housing.
In its decision affirming the preliminary injunction in this case, theFirst Circuit first raised a question of timeliness. The court observedthat there was an open question as to whether this provision of QHWRAapplied to the defendant PHAs' 1998 lotteries. Langlois, 207 F.3d at 52& n. 9. QHWRA § 511(e) provides that "[t]his section [i.e.,§ 511] shall take effect, and the amendments made by this section aremade on, and shall apply beginning upon, the date of the enactment ofthis Act" — i.e., October 21, 1998. Pub.L. No. 105-276, §511(e), 112 Stat. at 2539. 42 U.S.C. § 1437c-1(d)(15) is among thestatutory provisions added by § 511 of QHWRA. However, §§1437c-1(a), which governs PHAs' five-year plans, and (b), which appliesto PHAs' annual plans, both specify an effective date of October 1, 1999for the requirement that a PHA submit a plan "under this subsection."Accordingly, Congress has specified that, notwithstanding the generaleffective date for the QHWRA, the effective date for the requirements setforth in § 1437c-1 — including this certification — isOctober 1, 1999.
The PHAs' lotteries at issue here all occurred on December 1, 1998.Because of this Court's injunction, no other lotteries or applicationprocedures have taken place since then that the plaintiffs argue violate§ 1437c-1(d)(15). Accordingly, I find that the plaintiffs in thiscase do not have a cause of action under § 1437c-1(d)(15), becausethis subsection of the statute was not in effect at the time the PHAs'contested conduct occurred.
b. 42 U.S.C. § 3608(e)(5) (Title VIII)
(1) The Statute
The Secretary of Housing and Urban Development shall . . . administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter[.]
"This subchapter" refers to ch. 45, subchapter I, of title 42 of theUnited States Code. The declaration of policy for subchapter Iprovides, "[i]t is the policy of the United States to provide, withinconstitutional limitations, for fair housing throughout the UnitedStates." 42 U.S.C. § 3601.
Both the statutory text and the case law construing it make clear that§ 3608(e)(5) is fundamentally concerned with, and aimed at,affirmatively promoting and protecting the right to fair housing.In addressing the significance of this very statute, the First Circuitobserved that there was a substantial difference between a statute thatmerely exhorts officials not to discriminate in effect (a negativeobligation) and one that exhorts them to take steps to promote fairhousing (an affirmative obligation):
[A] statute that instructs HUD to administer its grant programs so as `affirmatively to further' the Act's fair housing policy requires something more of HUD than simply to refrain from discriminating itself or purposely aiding the discrimination of others. . . . If one assumes that many private persons and local governments have practiced discrimination for many years and that at least some of them might be tempted to continue to discriminate even though forbidden to do so by law, it is difficult to see how HUD's own nondiscrimination by itself could significantly "further" the ending of such discrimination by others.
N.A.A.C.P. v. Sec'y of Housing & Urban Development, 817 F.2d 149, 154(1st Cir. 1987); see also id. at 155 (finding the legislative history toreflect "the desire to have HUD use its grant programs to assist inending discrimination and segregation, to the point where the supply ofgenuinely open housing increases"); id. (surveying the case law andnoting that "every court that has considered the question has held orstated that Title VIII imposes upon HUD an obligation to do more thansimply refrain from discriminating (and from purposely aidingdiscrimination by others)").
Section 3608(e)(5) also meets the Blessing criteria. It could not beclearer from the statute, the legislative history, and the case lawconstruing it that this provision was intended to benefit the plaintiffshere: people in desperate need of access to fair housing, minorities andthe poor.
Nor is the duty to affirmatively further too vague and amorphous forthe courts to enforce. Essentially, as the Court in Blessing noted, thisis an issue of judicial competence. As noted above, it is anantidiscrimination statute and few discrimination statutes are morespecific. See, e.g., 42 U.S.C. § 2000e-2(a)(1) ("It shall be anunlawful employment practice for an employer to fail to or refuse to hireany individual, or otherwise so discriminate against any individual withrespect to his compensation, terms, conditions, or privileges ofemployment, because of such individual's race, color, religion, sex, ornational origin . . . ."). Judicial decisions and administrativeregulations have given content to these provisions over the past twentyyears.
The First Circuit in N.A.A.C.P. v. HUD held that the obligation to"affirmatively further" fair housing gave rise to "a plausible claim of aTitle VIII violation," id. at 157, and cited numerous other cases inwhich other courts recognized the obligation as enforceable under §1983, id. at 155. HUD's regulations give content to the provision,spelling out specific ways in which a PHA is supposed to affirmativelyfurther fair housing. For the most part, these regulations createlogical obligations. They describe how the PHA might monitor the impactof proposed programs on the groups the provision was intended to serve:
A PHA shall be considered in compliance with the certification requirement to affirmatively further fair housing if the PHA fulfills the requirements of § 903.2(b) and:
(i) Examines its programs or proposed programs;
(ii) Identifies any impediments to fair housing choice within those programs;
(iii) Addresses those impediments in a reasonable fashion in view of the resources available;
(iv) Works with local jurisdictions to implement any of the jurisdiction's initiatives to affirmatively further fair housing that require the PHA's involvement; and
(v) Maintains records reflecting these analyses and actions.
24 C.F.R. § 903.7(o)(3).
The final Blessing criterion — whether the statutory language atissue imposes an unambiguous and binding obligation on the state —is also met here. The language of the statute is mandatory: it providesthat the Secretary "shall" administer the relevant programs in a manneraffirmatively to further the policies of the statutory subchapter.
The remaining question is whether the mandatory obligation imposed by§ 3608(e)(5) on the Secretary of HUD can be enforced against thePHAs. When viewed in the larger context of Title VIII, the legislativehistory, and the case law, there is no way — at least, none thatmakes sense — to construe the boundary of the duty to affirmativelyfurther fair housing as ending with the Secretary.
That is precisely what the Second Circuit held in Otero v. New YorkCity Housing Authority, 484 F.2d 1122 (2d Cir. 1973), a seminal case inthis area. The court observed, in its analysis of what is now §3608(e)(5):
[W]e are satisfied that the affirmative duty placed on the Secretary of HUD by § 3608[(e)](5) and through him on other agencies administering federally-assisted housing programs also requires that consideration be given to the impact of proposed public housing programs on the racial concentration in the area in which the proposed housing is to be built. Action must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat. . . . Senator Mondale, who drafted § 810(a) of the Act, 42 U.S.C. § 3610, pointed out that the proposed law was designed to replace the ghettos "by truly integrated and balanced living patterns." 114 Cong. Rec. 3422.
Id. at 1133-34 (emphasis added) (citations omitted). Indeed, for thepast thirty years, claims arising under Title VIII and § 3608(e)(5)have been enforced consistently with Otero — recognizing anaffirmative duty imposed upon the Secretary of HUD and through him onentities like the PHAs.42
Precedent interpreting different statutory and regulatory schemes issimply inapposite here. In Stowell v. Ives, 976 F.2d 65 (1st Cir.1992), the First Circuit ruled that various provisions of the SocialSecurity Act relating to the Aid to Families with Dependent Children(AFDC) program, 42 U.S.C. § 601-15 and 1396a(c)(1), could not sustaina cause of action under § 1983 because they obliged the federalgovernment, and not the states, to take action. Stowell, 976 F.2d at69; see also id. (holding that "section 1396a(c)(1) provides incentives— not commands — to the States"). Accordingly, the FirstCircuit held, "when a provision in a statute fails to impose a directobligation on the States, instead placing the onus of compliancewith the statute's substantive provisions on the federal government, nocause of action cognizable under section 1983 can flourish." Id. at 70(citing Suter v. Artist M, 503 U.S. 347, 356-57 (1992)).
This case is multiply distinguishable from both Stowell and Suter, onwhich it rests. First, and significantly, the Suter Court's analysis ofthe scope of the obligation conferred by the statute in question did notend with the statutory language itself. Rather, the Court also examinedthe agency's implementing regulations and found that "the regulations arenot specific and do not provide notice to the States that failure to doanything other than submit a plan with the requisite features, to beapproved by the Secretary, is a further condition on the receipt of fundsfrom the Federal Government." Suter, 503 U.S. at 362.
This is simply not the case here. 42 U.S.C. § 3608(e)(5) places anaffirmative obligation on the Secretary to ensure that the PHAs complywith civil rights laws. This obligation is embodied in the statutoryprovisions that require the PHA to certify its compliance,42 U.S.C. § 1437 c-1(d)(15). 24 C.F.R. § 982.53(c) confers on thePHAs an independent obligation to affirmatively further fair housingthemselves. Moreover, 24 C.F.R. § 903.7(o)(3), incorporated byreference into § 982.53(c), explicitly lists precisely what stepsPHAs have to take in order to be considered in compliance with theirobligation. Thus, insofar as the holdings of Suter and Stowell bothrested on the respective courts' conclusions that neither the statute inquestion nor the agency's own interpretation thereof placed any specificobligation on the states, Title VIII's provisions warrant differenttreatment.
Moreover, both Suter and Stowell addressed statutes very different fromthe civil rights provisions at issue in this case. Both the AdoptionAssistance and Child Welfare Act provision at issue in Suter and the AFDCprovision in Stowell involved conditional funding grants or "incentives"to the states that hinged on the states' assumption of some systemicobligation that they were not otherwise required to meet. Suter, 503U.S. at 350-51 (reading the statute at issue to provide "that States willbe reimbursed for a percentage of foster care and adoption assistancepayments when the State satisfies the requirements of the Act"); Stowell,976 F.2d at 69 ("States are not obliged by federal law to sponsor medicalassistance plans or to accept federal funds for this purpose.").
Title VIII, however, is different. It is a civil rights statutefocused on ensuring individual rights to fair housing. Its obligationsare not ancillary to a federal-state spending contract. Rather, itsprovisions operate directly on local PHAs, spelling out their obligationswith precision. Gonzaga Univ. v. Doe, ___ U.S. ___, 122 S.Ct. 2268, 2277(2002) (finding that, in the Spending Clause context, "[u]nlike theindividually focused terminology of Titles VI and IX (`no person shall besubjected to discrimination'), FERPA's provisions speak only to theSecretary of Education, directing that `no funds shall be made available'to any `educational agency or institution' which has a prohibited `policyor practice.'"); see also id. at 2282 (Stevens, J., dissenting)(observing that the majority "contrasts FERPA's `no funds shall be madeavailable' language with `individually focused terminology'characteristic of federal antidiscrimination statutes").
This interpretation is not only consistent with the statute, itslegislative history, and the overall context of civil rights law, as Ihave described. Significantly, thisinterpretation comports with HUD'sown understanding of Title VIII; reflected in HUD's implementingregulations — which, as the plaintiffs point out, are entitled tosubstantial deference under Chevron U.S.A. v. Natural Resources DefenseCouncil, 467 U.S. 837, 843-44 (1984) ("If Congress has explicitly left agap for the agency to fill, there is an express delegation of authorityto the agency to elucidate a specific provision of the statute byregulation. Such legislative regulations are given controlling weightunless they are arbitrary, capricious, or manifestly contrary to thestatute.").
(2) The Regulations
24 C.F.R. § 982.53(b)-(c) provides as follows:
(b) Civil rights certification. The PHA must submit a signed certification to HUD that:
(1) The PHA will administer the program in conformity with the Fair Housing Act, Title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act.
(2) The PHA will affirmatively further fair housing in the administration of the program.
(c) Obligation to affirmatively further fair housing. The PHA shall affirmatively further fair housing as required by § 903.7(o) of this title.
24 C.F.R. § 903.7(o) provides, in relevant part:
(o) Civil rights certification.
(1) The PHA must certify that it will carry out its plan in conformity with title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-2000d-4), the Fair Housing Act (42 U.S.C. § 3601-19), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), and title II of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.). The PHA also must certify that it will affirmatively further fair housing.
(3) A PHA shall be considered in compliance with the certification requirement to affirmatively further fair housing if the PHA fulfills the requirements of § 903.2(b) and:
(i) Examines its programs or proposed programs;
(ii) Identifies any impediments to fair housing choice within those programs;
(iii) Addresses those impediments in a reasonable fashion in view of the resources available;
(iv) Works with local jurisdictions to implement any of the jurisdiction's initiatives to affirmatively further fair housing that require the PHA's involvement; and
(v) Maintains records reflecting these analyses and actions.
These regulations unambiguously impose mandatory requirements on thePHAs not only to certify their compliance with the fair housing laws, butactually to comply. Section 982.53(c) provides that the PHAs have anindependent obligation to affirmatively further fair housing, and §903.7(o)(3) sets out with precision just what PHAs must do in order to bedeemed in compliance.
Plainly, these regulations, enacted pursuant to a rights-creatingstatute, confer a right cognizable under § 1983. They could scarcelyhave any other purpose than to benefit specific individuals in need offair housing. The agency was very specific about both the obligation toaffirmatively further fair housing and the content of that obligation,demonstrating that,far from vague and amorphous, the right admits of aclear plan of enforcement. And the language speaks solely in terms ofwhat the PHAs, not the agency, "must" and "shall" do. Compliance is notoptional.
c. Executive Orders 11063 & 12892
Plaintiffs are entitled to enforce the executive orders, Orders 11063and 12892, through § 1983. First, they have the force and effect oflaw. They were enacted "pursuant to a statutory mandate or delegation ofauthority from Congress." Second, quite apart from whether they areindependently enforceable, both executive orders differ from those incases that have denied § 1983 enforcement. While not necessarilypromulgated pursuant to a federal statute, they were subsequentlyincorporated explicitly into a federal statute. 42 U.S.C. § 3608sets out the obligations of the Secretary of Housing and UrbanDevelopment in administering the Fair Housing Act. Section 3608(e)(6)requires the Secretary to make annual reports to Congress and the publicregarding the data underlying various HUD-administered programs thatfalls under the coverage of a list of specified laws. That list of lawsis set forth in § 3608(f), and both Executive Orders 11063 and 12892are on it. 42 U.S.C. § 3608(f)(11).
In other words, Congress has now explicitly made the Secretaryresponsible for keeping track of whether the programs he administers— which surely include the Section 8 program — comply withExecutive Orders 11063 and 12892. Accordingly, regardless of whether theExecutive Orders would have had the force of law standing alone, I findthat they do so now, as incorporated by Congress into the Fair HousingAct.
Indeed, precisely because I treat these orders as part of the statutoryscheme, I must decide if they confer rights enforceable through §1983 under Blessing. I conclude that they do. Executive Order 11063,titled "Equal Opportunity in Housing," is deeply and fundamentallyconcerned with the right to fair housing. President Kennedy directed"all departments and agencies in the executive branch of the FederalGovernment, insofar as their functions relate to the provision,rehabilitation, or operation of housing and related facilities, to takeall action necessary and appropriate to prevent discrimination because ofrace, color, creed, or national origin . . . ." Exec. Order 11063,§ 101, 27 Fed. Reg. 11527 (Nov. 20, 1962). The mandate here couldnot be clearer or less ambiguous. The language is plainly mandatory, notprecatory.
The same is true of the regulations adopted by the Secretary pursuantto Executive Order 11063:24 C.F.R. § 5.105(a) and 107.21.24 C.F.R. § 5.105, in relevant part, provides:
The following Federal requirements apply as noted in the respective program regulations:
(a) Nondiscrimination and equal opportunity. The Fair Housing Act (42 U.S.C. § 3601-19) and implementing regulations at 24 C.F.R. part 100 et seq.; Executive Order 11063, as amended by Executive Order 12259 (3 C.F.R. § 1959-1963 Comp., p. 652 and 3 C.F.R. § 1980 Comp., p. 307) (Equal Opportunity in Housing Programs) and implementing regulations at 24 C.F.R. part 107; title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-2000d-4) (Nondiscrimination in Federally Assisted Programs) and implementing regulations at 24 C.F.R. part 1 . . . .
24 C.F.R. § 107.21 provides: "All persons receiving assistancefrom, or participating in any program or activity of the Departmentinvolving housing and relatedfacilities shall take all action necessaryand proper to prevent discrimination on the basis of race, color,religion (creed), sex or national origin."
Likewise, in Executive Order 12892, President Clinton directs theSecretary of HUD to ensure that affirmative furtherance of fair housingoccurs and requires the heads of other agencies that administer relevantprograms to cooperate and work in conjunction with HUD. Exec. Order12892, § 2, 59 Fed. Reg. 2939 (Jan. 17, 1994).
2. Did the PHAs' Plans Meet the Affirmative Furtherance Requirement?
The parties agree that this Court owes no deference to the defendantPHAs' certifications of compliance with the obligation to affirmativelyfurther fair housing. The local PHAs have no demonstrated expertise inthe pursuit of fair housing by which this Court might owe them deferenceas to their compliance with federal law.
Indeed, here again, the fair housing provisions are different fromother provisions in which deference to the PHAs may be due. Forexample, while HUD regulations specify that courts are to defer to thedecisions of PHAs regarding utility allowances, "unless found to bearbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with the law." 24 C.F.R. § 965.502(e), the implementationof antidiscrimination provisions rests on the courts. Congress hashistorically legislated to address problems, like civil rightsenforcement, left unresolved by states and localities and which courtsare uniquely suited to review. Notwithstanding the certifications of theindividual PHAs, then, it is the task of this Court to review thedefendants' compliance with the affirmative furtherance requirement.
The First Circuit teaches that the Fair Housing Act's affirmativefurtherance obligation "requires something more . . . than simply torefrain from discriminating itself or purposely aiding the discriminationof others." N.A.A.C.P., 817 F.2d at 154 (noting further that otherwisethe statute would afford protections no greater than are available underthe Equal Protection Clause). As an example of the kind of affirmativeduty imposed by the statute, the N.A.A.C.P. court cited the SecondCircuit's finding that "a Housing Authority might even ignore its ownregulations giving assignment priority in urban redevelopment projects toformer site residents if it is convinced that doing so is the only way toprevent ghettoization of the area." Id. at 155 (citing Otero, 484 F.2d at1134). It would seem to follow, a fortiori, that Section 8 residencypreferences violate the affirmative furtherance principle when theirinstitution would fortify predominantly white communities againstminority entry.
To give more specific content to the affirmative furtherancerequirement, it is appropriate to look to HUD's view on the matter asCongress' delegate. HUD regulations for the administration of PHA plansspecify that a PHA complies with the Fair Housing Act when it
(i) Examines its programs or proposed programs;
(ii) Identifies any impediments to fair housing choice within those programs;
(iii) Addresses those impediments in a reasonable fashion in view of the resources available;
(iv) Works with local jurisdictions to implement any of the jurisdiction's initiatives to affirmatively further fair housing that require the PHA's involvement; and
(v) Maintains records reflecting these analyses and actions.
24 C.F.R. § 903.7(o)(3). The defendants caution against a reading ofthis regulation that would hold all Section 8 selection systems to anunrealistic standard requiring precise racial correlation between Section8 applicant pools and selection rates.43 But this Court need not goso far to accept the plaintiffs' view that the defendant PHAs did notremotely satisfy their affirmative furtherance obligations under the FairHousing Act.
Whatever "affirmative furtherance" may mean in other settings, in thissetting it is clear. It should have occurred to the PHAs, prior to theiradoption of the 1998 plans, to, at the very least, investigate thepotential implications for fair housing of the proposed residencypreferences and application processes. They did not. Indeed, they couldnot. They did not bother to keep the kinds of records that would enablethem to determine the impact of their new processes. They did not botherto identify potential impediments to fair housing that their applicationprocedures might present. As such, they could not even begin to monitortheir compliance with the civil rights laws. The absence of any recordof fair housing considerations in the PHAs' development of its selectionsystems flatly runs afoul of the recording requirement in24 C.F.R. § 903.7(o)(3)(v).
The difficulties ultimately cited by the plaintiffs were not sounforeseeable that the requirements of 24 C.F.R. § 903.7(o)(3) werenot triggered. The deposition testimony cited by the plaintiffs, inwhich housing authority directors could not even articulate precisely howtheir organizations affirmatively furthered fair housing, supports animplication of "naked certification."
The law is clear that the mere recital of racial neutrality is notenough. N.A.A.C.P., 817 F.2d at 154. The filings before me give noindication that the defendant PHAs did any more than this beforeproceeding with their programs. Accordingly, the plaintiffs' motion forsummary judgment for their claims under the affirmative furtheranceprovision of the Fair Housing Act is GRANTED.
F. Miscellaneous Provisions
1. 42 U.S.C. § 3604(c): Advertising
As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful —
(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
The plaintiffs' argument here is that the PHAs' announcements andadvertisements in connection with the December 1998 lottery —including the application form itself — communicated adiscriminatory racial preference by including notice of the localresidency preference as to the PHAs' predominantly-white communities.
Although the First Circuit has not yet addressed the issue, othercourts have construed the requirement in § 3604(c) as follows: thestandard for a § 3604(c) violation is whether "an ad for housingsuggests to an ordinary reader that a particular race is preferred ordispreferred for the housing in question." Ragin v. New York Times Co.,923 F.2d 995, 999 (2d Cir. 1991) (citing United States v. Hunter,459 F.2d 205, 215 (4th Cir. 1972) and Spann v. Colonial Village, Inc.,899 F.2d 24 (D.C. Cir. 1990)); see also Jancik v. Dep't of Housing &Urban Devel., 44 F.3d 553, 556 (7th Cir. 1995) ("Significantly, noshowing of a subjective intent to discriminate is . . . necessary toestablish a violation of [§ 3604(c)]."); see also Ragin, 923 F.2d at1000.
The plaintiffs then point to the affidavits of various applicants andadvocates who indicated that the local residency preference directlydissuaded them from applying to the PHAs in question.44 However,even taking these affidavits at face value and accepting that notice ofthe residency preference in fact dissuaded some applicants of color fromapplying to the various PHAs because of the residency preference, I cannotagree that the advertisements and announcements at issue here, simply bynotifying applicants of the residency preference, communicated arace-based preference. That they communicated a preference is beyondquestion, but that preference, as is by now crystal clear, is for localresidents of the PHAs' communities.
Accordingly, summary judgment is hereby GRANTED to the defendants onthis claim.
2. PHAs' Compliance with Section 8 Plans
Finally, the plaintiffs seek to enforce, via § 1983, severalregulatory provisions relating to the PHAs' alleged failure to complywith HUD's requirements for the contents and maintenance ofadministrative plans. For example, 24 C.F.R. § 982.54 requires,inter alia, that each PHA adopt a written administrative plan thatestablishes local policies for administration of its programs inaccordance with HUD requirements, and that PHAs administer such programsin accordance with their own administrative plans.24 C.F.R. § 982.204(a) and (b) pertain to Section 8 waiting lists andrequire PHAs (a) to select participants from the waiting list inaccordance with the admission policies in their administrative plans, and(b) to organize and maintain their waiting lists based on specificinformation as to each applicant, including racial and ethnicinformation.
These provisions in and of themselves fail to meet the criteria setforth in Blessing for a cause of action under § 1983. However, theyare relevant to the "affirmative furtherance" issues described above, tothe extent that they require that the PHAs maintain data that relates tocivil rights enforcement. Accordingly, I find that the plaintiffs do nothave a § 1983 cause of action against the PHAs on these groundsalone. Summary judgment on this issue is GRANTED to the defendants.
Accordingly, for the foregoing reasons, Langlois et al.'s motion forsummary judgment [docket entry #76] is GRANTED IN PART AND DENIED INPART, and Abington Housing Authority et al.'s motion for summary judgment[docket entry #86]is GRANTED IN PART AND DENIED IN PART.
1. The defendant PHAs are located in Abington, Avon, Bridgewater,Halifax, Holbrook, Middleborough, Pembroke, and Rockland, Massachusetts.However, defense counsel notified this Court in an affidavit dated April30, 2002 that three of the defendants — the Abington, Halifax, andHolbrook PHAs — no longer administer their Section 8programs.
2. The plaintiff class consists of "all extremely low-incomeindividuals with incomes at or below 30% of area median income who residein the Brockton and Boston Primary Metropolitan Statistical Areas, butare not residents of [any of the towns of the defendant PHAs]."Approximately 34% of the class are racial minorities.
3. Plaintiff Massachusetts Coalition for the Homeless is a non-profitcorporation — comprised of homeless and formerly homeless persons,organizations, and agencies — that works to provide immediateshelter and transitional and permanent housing to homeless persons andfamilies.
4. As discussed below, the program was substantially modified with thepassage of the Quality Housing and Work Responsibility Act ("QHWRA") onOctober 21, 1998. Pub.L. No. 105-276, tit. V, § 545, 112 Stat. 2461,2596-2604 (codified as amended in scattered sections of 42 U.S.C.).
5. Prior to 1998, there were separate Section 8 programs for"vouchers" and "certificates." However, following the enactment of theQHWRA and promulgation of its attendant regulations, these programsmerged in October 1999, and only vouchers are now awarded.42 U.S.C. § 1437f(o) (2002); 24 C.F.R. § 982.502 (2002).
6. As part of its Administrative Plan, a PHA must describe thegeographic area that its program serves and its policies and proceduresfor (1) outreach to eligible families, (2) selecting families forparticipation without discrimination because of race, and (3) assistinghousing voucher holders who allege that illegal discrimination ispreventing them from leasing suitable units. See 24 C.F.R. § 982.53,982.54; 60 Fed. Reg. 34660, 34661.
7. Section 8 units rent only to families who qualify as low-income atthe time of their initial occupancy of the units. See42 U.S.C. § 1437a(a). "Low-income families" are defined as thosewhose incomes do not exceed 80% of the median family income for the areaas determined by the Secretary. See id. § 1437a(b)(2). "Verylow-income families" are defined as low-income families whose incomes donot exceed 50% of the median family income for the area. See id. TheHUD regulations recognize a third "extremely low-income" group, whichincludes families whose incomes are between 0 and 30% of the medianincome of the area. See 24 C.F.R. § 91.5.
8. Even under the federal preference system, HUD regulations madeprovisions for "approved" residency preferences, by which local residentswho also qualified for federal preferences would have waiting-listpriority over non-local residents. See Comer, 37 F.3d at 782 (citing24 C.F.R. § 882.219(b)(2)(iii)(A); 887.157(b)(2)(iii)(A) — nowreserved).
9. 42 U.S.C. § 1437d(c)(4), the federal preference statute, wasamended to read as follows:
[T]he public housing agency shall comply with such procedures and requirements as the Secretary may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to . . . (A) making dwelling units in public housing available for occupancy, which shall provide that the public housing agency may establish a system for making dwelling units available that provides preference for such occupancy to families having certain characteristics; each system of preferences established pursuant to this subparagraph shall be based upon local housing needs and priorities, as determined by the public housing agency using generally accepted data sources, including any information obtained pursuant to an opportunity for public comment as provided under section 5A(f) and under the requirements applicable to the comprehensive housing affordability strategy for the relevant jurisdiction.
Pub.L. No. 105-276, § 514(a) (1998), 112 Stat. at 2547 (emphasisadded).
10. Both the 75% rule and the repeal of the federal preferences becameeffective on the date of the statute's enactment: October 21, 1998. Pub.L.No. 105-276, §§ 513(b), 514(g), 112 Stat. at 2547, 2549.
11. This section is based on the parties' agreed statement ofundisputed facts and the findings of fact in support of the preliminaryinjunction issued in this case. Langlois v. Abington Housing Auth., No.C.A. 98-12336-NG, 1998 WL 1029208 (D.Mass. Dec. 16, 1998).
12. All statistics are based on the 1990 Census data.
13. The PHAs had issued another public notice earlier in the monthannouncing their decision to eliminate federal preferences and to install alocal residency preference in its place. This first notice sought publiccomment by October 28, 1998.
14. The original counts were as follows: violations of the federalFair Housing Act (Title VIII of the Civil Rights Act of 1968), Title VIof the Civil Rights Act of 1964, and the Equal Protection Clause of theU.S. Constitution (Count I); violations of federal housing law (CountII); violation of the Due Process Clause of the Fourteenth Amendment ofthe Constitution (Count III); violation of civil rights (Count IV); andviolation of the Massachusetts public accommodations statute (Count V).In November 2000, the plaintiffs moved voluntarily to dismiss Count III,Count V, and the equal protection claim in Count I, a motion that wasgranted.
Later, on June 7, 2002, the plaintiffs moved to dismiss the claim inCount I arising from Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d et seq., and its implementing regulations at24 C.F.R. § 1.4; this motion was also granted. Based on counsel'srepresentations at oral argument on June 7, 2002, I am proceeding on theassumption that the § 1983 claim premised on the alleged § 2000dviolation was also dropped. If this assumption is incorrect, counsel areinvited to move for clarification of the issue and I will address it atthat time.
15. The motion for class certification was ultimately granted on June 7,2000.
16. For a more detailed description of this analysis and the standardsused, see this Court's Memorandum and Order of December 30, 1998.Langlois v. Abington Housing Auth., No. C.A. 98-12336-NG, 1998 WL 1029207(D.Mass. 1998), aff'd, 207 F.3d 43 (1st Cir. 2000).
17. Once Rockland submitted such a plan, that plan was to be reviewedby this Court for possible violation of the Fair Housing Act prior to anyimplementation of the residency preference policy. Plans as to bothAbington and Rockland were submitted to the Court on April 7, 1999; thenext day, in a motion for further preliminary relief, the plaintiffsargued that these one-paragraph submissions were insufficiently specificto pass as compliant with the Court's injunction, and they requested thatthe injunctions remain in place until more specific details on compliancewere provided. The injunctions remained in place; the issue of thesufficiency of the plans, however, was never ruled upon and remains alive issue here.
18. The parties agreed to the continuation of the injunction pendingresolution of the remaining issues in the case.
19. In fact, there are more than two views here:
1) Administrative regulations can create rights under § 1983, whenthey have the force of law and meet the Blessing criteria. The statutepursuant to which they have been enacted may or may not confer rightsunder Blessing. The phrase "laws" in § 1983 refers to any validsource of federal law that creates rights.
2) Administrative regulations can create rights under § 1983 whenthey are enacted pursuant to a statute that meets the Blessing criteria.If the statute confers rights and the regulations are enacted pursuant tothat statute, then the regulations are also enforceable under §1983.
3) Administrative regulations can never create rights; only statutescan. Administrative regulations may be used to interpret the scope ofthe statutory provisions, but only statutes may be the source of §1983 rights.
As I note above, the statutes and regulations at issue here meet allthree tests.
20. While the majority's language is not clear, Justice O'Connor'saccount may be overstating the "broad view." Viewed in context, onecould interpret the majority not as taking a position that any old validregulation would be enforceable under § 1983, as Justice O'Connorinterpreted it. Rather, in Wright, the regulation met the Blessingcriteria, and it was enacted under a statute that also met the Blessingstandard.
21. While the court in Buckley referred to enforcing statutory rightsunder § 1983, in fact, the statute at issue, Federal Aid in SportFish Restoration Act ("the Act"), 16 U.S.C. § 777-777k, did not dealwith the plaintiff's issue, the regulations governing personalwatercraft. It was, in effect, a suit seeking § 1983 enforcement ofa regulation.
22. Hill confronted a set of statutory provisions and regulationsdifferent from those at issue in this case: 42 U.S.C. § 1437d(f)(2)(providing for establishment of housing quality standards) andimplementing regulations 24 C.F.R. § 200.925a, 965.805, and 941.203.The plaintiffs in Hill were tenants in a public housing development whosued the city housing authority for violations of the U.S. Housing Actand the Fourteenth Amendment. The Hill court found that the statute andregulations in question did not pass the Blessing test because, interalia, they were not intended to confer a federal right on theplaintiffs. Hill, 207 F. Supp.2d at 1027-30.
23. The South Camden and Harris decisions have been critiqued in anumber of respects. First, it is suggested that the courts effectivelyasked the wrong question — not whether the statute created federalrights, the inquiry in Blessing, but rather, whether Congress intendedthe statute to create federal rights enforceable by § 1983. BrendanCody, South Camden Citizens in Action: Siting Decisions, Disparate ImpactDiscrimination, and Section 1983, 29 Ecology L.Q. 231, 244, 257 (2002);Recent Case, Harris v. James, 127 F.3d 993 (11th Cir. 1997), 111 Harv.L. Rev. 2444, 2447 (1998).
Moreover, the South Camden decision has been criticized for adoptingdicta in Sandoval concerning the scope of section 602 of Title VI,without analysis. The Third Circuit took the position that the statuteby its terms only created a right to sue under a disparate treatmenttheory, not a disparate impact theory, citing to the Sandoval decision.South Camden, 274 F.3d at 788-89. It then concluded that regulationsembodying the latter theory under section 602 were not independentlyactionable under § 1983. But Sandoval did not address the issueraised in South Camden. Sandoval concerned whether there is a privatecause of action to enforce regulations precluding disparate impactdiscrimination. South Camden concerned whether § 1983 provides anindependent avenue to enforce disparate impact regulations promulgatedunder § 602. See South Camden, 274 F.3d at 796 (McKee, J.,dissenting).
24. The most recent edition of Black's Law Dictionary defines "law" asfollows, in relevant part:
law. 1. The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system
Black's Law Dictionary 889 (7th ed. 1999).
25. It would indeed be difficult to suggest that enforcement of theban on housing discrimination "strains judicial competence," as courts soregularly undertake this task and have done so for at least twenty-fiveyears. See, e.g., Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994)(assessing a disparate impact theory of discrimination under the FHA);Edwards v. Johnston Cty. Health Dep't, 885 F.2d 1215 (4th Cir. 1989)(same); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2dCir. 1988) (same); Arthur v. City of Toledo, 782 F.2d 565 (6th Cir. 1986)(same); Metropolitan Housing Development Corp. v. Village of ArlingtonHeights, 558 F.2d 1283 (7th Cir. 1977) (same); see also Nat'l FairHousing Alliance, Inc. v. Prudential Ins. Co., 208 F. Supp.2d 46, 58(D.D.C. 2002) ("[E]very Circuit Court except the District of ColumbiaCircuit has held that disparate impact claims are cognizable under theFHA. These courts have recognized that the premise of a disparate impactclaim is that housing practices may operate in a manner that isfunctionally equivalent to intentional discrimination." (citing, interalia, Casa Marie, Inc. v. Sup. Ct. of Puerto Rico, 988 F.2d 252, 269 n.10 (1st Cir. 1993))).
26. To be sure, in South Camden and Ceaser, courts denied § 1983enforcement to regulations even when the statute and the regulations eachindependently met the Blessing test. The problem in both cases was thecourts' view that the statute, Title VI, said one thing —prohibiting intentional discrimination — and the regulations saidanother — prohibiting discrimination that had a disparate impact onracial minorities. Thus, the Third Circuit in South Camden concludedthat "inasmuch as the disparate impact regulations go far beyond theintentional discrimination interdiction in section 601 of [Title VI], thedistrict court's reliance on Wright is misplaced." Id. at 783. Likewisein Ceaser, the court suggested that the regulations were not "linked toTitle VI in the same way that the regulation was linked to the housingstatute in Wright." Ceaser, 2002 WL 472271, at *3.
While I do not agree with the interpretation of Title VI by the courtsin South Camden and Ceaser, for the reasons described above, the statuteand regulations at issue in this case are distinguishable, and therelationship between them more like the relationship the Supreme Courtidentified in Wright. The statute in Wright imposed a rent ceiling; theimplementing regulations interpreted a reasonable rent to include areasonable amount for the use of utilities.
Here the statute and its regulations have been interpreted in the sameway — to permit a disparate impact theory. See cases cited supranote 25. Indeed, in Huntington Branch, NAACP, the Second Circuit observedthat a strict requirement of discriminatory intent "would strip thestatute of all impact on de facto segregation." 844 F.2d at 934. TheHuntington Court adopted the analysis of Resident Advisory Board v.Rizzo, 564 F.2d 126 (3d Cir. 1977), where the Third Circuit emphasizedthe Senate's rejection of an amendment that would require proof ofdiscriminatory intent to establish claims under Title VIII. Id. (citingRizzo, 564 F.2d at 147). In fact, Title VIII's language in the FairHousing Act parallels the language of Title VII. Compare42 U.S.C. § 3604(a) ("[I]t shall be unlawful to refuse to sell orrent . . . or otherwise make unavailable or deny, a dwelling to anyperson because of race, color, religion, sex, familial status, or nationalorigin.") and 3604(b) ("[I]t shall be unlawful to discriminate againstany person in the terms, conditions, or privileges of sale or rental of adwelling, or in the provision of services or facilities in connectiontherewith, because of race, color, religion, sex, familial status, ornational origin."), with 42 U.S.C. § 2000e-2(a) ("It shall be anunlawful employment practice to fail or refuse to hire any individual, orotherwise to discriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment, because ofsuch individual's race, color, religion, sex, or national origin.").Just as that language in Title VII gave rise to two theories ofdiscrimination — disparate treatment and disparate impact —so did the language in Title VIII.
Likewise, the duty to affirmatively further fair housing is articulatedin the statutory scheme, 42 U.S.C. § 3608(e)(5); the regulationsinterpret it precisely as the regulations did in Wright.
27. The analysis is the same for executive orders.
28. Establishing that the laws at issue in this case confer rightsupon individuals essentially ends the Blessing analysis. There is nocomprehensive scheme in place to supplant § 1983 enforcement of the75% Rule, the Fair Housing Act's antidiscrimination mandate, or itsrequirement that HUD and state and local PHAs affirmatively further fairhousing. It is clear that Congress enacted against a backdrop oflongstanding § 1983 enforcement of the fair housing laws, and absentany affirmative evidence that it preferred some other means ofenforcement, § 1983 must provide the mechanism by which theplaintiffs here can enforce their rights. In fact, regarding therequirement that PHAs certify to HUD their plans' compliance with theFair Housing Act and their duty to affirmatively further fair housing,Congress expressly stated that HUD's determinations would not forecloserecourse to federal courts under § 1983.42 U.S.C. § 1437c-1(4)(B).
29. For that matter, § 1437c-1 expressly contemplates judicialreview of a PHA's compliance with that section's stated requirements forthe submission of annual and five-year plans to HUD. Id. §1437c-1(4)(B) (noting that a HUD finding of compliance "shall notpreclude . . . an action regarding such compliance under section 1979 ofthe Revised Statutes of the United States (42 U.S.C. § 1983)"). Oneof those requirements is to certify compliance with the Fair HousingAct. 42 U.S.C. § 1437c-1(15).
30. The lottery-and-preference process adopted by the defendant PHAsis precisely the sort of nondiscretionary selection procedure that issusceptible to disparate impact review. A disparate impact theory ofdiscrimination is generally available "to challenge selection proceduresbased on facially neutral selection criteria which allow no exercise ofdiscretion." David C. Baldus & James W.L. Cole, Statistical Proof ofDiscrimination § 1.2, at 46.
31. See Complaint ¶¶ 79, 81 & Part VII.d (alleging that theresidency preferences discriminate against minorities and asking thatthey be permanently enjoined).
32. This approach is similar in principle to the Comer analysisperformed at the preliminary injunction stage, but here the plaintiffsanalyze the universe of current participants in a PHA's program againstthe composition of the wait lists formulated in the 1998 lottery. Theearlier analysis compares the projected selections for 1999 to thecomposition of the 1998 wait lists.
33. Dr. Tilly's dual standards here seek to immunize his analysis fromthe challenge that the defendants made under Fudge to my application ofthe four-fifths test at the preliminary injunction stage. In Fudge, anemployment discrimination case, the First Circuit found application ofthe EEOC test inappropriate where sample sizes were so small that afour-fifths disparate impact might be the result of chance. Fudge, 766F.2d at 658. The First Circuit held that "in cases involving a narrowdata base, the better approach is for the courts to require a showingthat the disparity is statistically significant, or unlikely to haveoccurred by chance, applying basic statistical tests as the method ofproof." Id. Dr. Tilly has applied a standard-deviation analysis toaffirm the statistical significance of the identified disparities. OnlyHalifax has a statistically insignificant disparity; thus, if the samplesize were small enough to warrant abandonment of the four-fifthsstandard, Fudge vindicates only Halifax under this test.
34. The defendants instead expend considerable effort disputing theimplications of the logic. For example, they object that this logicleads ultimately to a ban on all residency preferences unless a communityis "politically perfect," that is, unless the racial breakdown of thecommunity's residents is statistically similar to that of nonresidents.
Defendants overstate the problem. The standard is not just disparateimpact, but substantial disparate impact; a "politically perfect"community is not required.
In any case, though HUD does expressly permit residency preferences,24 C.F.R. § 982.207(b)(1), it does not declare that communities areentitled to institute them without regard to their substantial impact onminorities. In fact, as I will show below, it is clear from theregulations that residency preferences are allowable only insofar as theydo not conflict with fair housing principles.
35. Defendants have offered evidence that when a Section 8 family"leases up" in a community other than the one that provides its voucher,the community where the family leases up will occasionally "absorb" thevoucher holder into its system. Thus, a family might lease up in Bostonwith a voucher from, say, Rockland, with the result that Boston elects toprovide the voucher to the family instead, as it is handling much of thelocal administration of the subsidy in any event. Because nonresidentsare more likely to be absorbed away from the rosters of a given PHA, andbecause, in this case, nonresidents are disproportionately minority,minorities are more likely to be absorbed into other voucher programs.That phenomenon would result in the defendant PHAs' current rostersunderstating their selection.
Though well taken, this narrower point depends on the same logic thatfundamentally undermines the defendants at every turn: Becausenonresident Section 8 candidates are disproportionately minority,anything that affects nonresidents affects minorities more than whites.Though accepting the phenomenon of absorption suggests resolving in thedefendants' favor some of the ambiguity left open by these tests, thefact that nonresidents are disproportionately minority works against thedefendants too often to save them. As I note below, evidence is also inthe record that notice of the residency preference discouragednonresident applications, that the two-day window for retrievingapplications frustrated nonresident applications, and that the residencypreference devalued nonresident applications. These effects onnonresidents greatly favor the plaintiffs' case and the counterweight ofnonresident absorption is not enough to overcome them.
36. Some account must be taken, as well, of the difficulty of the taskbefore the plaintiffs. They must prove, prior to the implementation ofthe PHA's new residency preference regimes, that these regimes are likelyto have a substantial disparate impact on minority applicants. Entry ofthe preliminary injunction in their favor has complicated matters stillmore: as long as the programs' residency preferences are suspended,assessment of their impact upon minorities under specific, controlledconditions is not possible.
37. The plaintiffs might have constructed a workable record withsurvey evidence. A survey of Section 8 candidates in neighboring areas,for example, could have developed data on how many nonresidents (and howmany minorities) were interested in applying, attempted to apply, orelected not to apply to the PHAs' programs and why. The plaintiffs mighthave performed identical surveys within the PHAs' communities andcompared the results. Or the plaintiffs could have compiled data aboutthe Section 8 application processes of other white, suburban PHAs in thestate. A showing of a statistically significant disparity betweenminority application totals to the defendants' programs and those withmore accommodating application processes would be a major step to a primafacie case against the processes.
38. Indeed, it is significant that authorization for residencypreferences is found in the regulations and not the statute.24 C.F.R. § 982.207(b)(1)(i). The statute refers to "local housingneeds and priorities." 42 U.S.C. § 1437d(c)(4)(A).
39. Any other view would make this analysis entirely circular:Plaintiffs show a disparate impact occasioned by the preferences forlocal residents; defendants respond that the impact is justified by thefact that there are preferences for local residents. That analysis wouldmake no sense.
Title VII suits, for example, require a showing that the challengedpractice is "job related for the position in question and consistent withbusiness necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). A privateemployer, put to it to justify a practice of residency preferences thatworks a disparate impact on minorities, cannot prevail by showing merelythat he is entitled to hire predominantly from within the community. Toovercome a prima facie case of disparate impact, some showing must bemade that the preference bears on the ability of the employees to dotheir work.
40. The defendants in the City of Warren, Michigan case, for example,could not justify the adverse impact of their residency preferences formunicipal jobs with claims that the preferences were necessary to improvethe unemployment rate in Warren and to nourish city income taxrevenues.
41. A PHA might install residency preferences if a fire in thecommunity has left an abnormally high number of residents homeless.Economic factors that hit the PHA's community especially hard — aplant closing, for example — — might provide a justificationfor a residency preference to overcome a prima facie case of disparateimpact. No such rationale is before me in this case.
42. The most recent case endorsing this view is Reese v. Miami-DadeCounty, 210 F. Supp.2d 1324 (S.D.Fla. 2002). The court held explicitlythat the provision requiring governmental agencies to "affirmativelyfurther fair housing" meets all of the tests for § 1983 enforcement.Id. at 1329.
43. Though the defendants' point here is not pertinent to my findingthat the PHAs violated the affirmative furtherance requirement of theFair Housing Act, I find that it does bear on the more difficult questionof crafting an appropriate injunctive remedy for the violation.
44. Note, however, that the applicants simply said they weredissuaded. They did not say they were dissuaded on the basis of race, butrather that they felt they had little chance at success because the localresidents would get priority over them. See, e.g., Munera Affidavit,¶ 4.