Sing, James J

English

Yale Law School Legal Scholarship Repository

Case Note
Integration as a Two-Way Street
Raso v. Lago, 135 F.3d 11 (1st Cir. 1998)
It was a judge's nightmare in every respect: two racial groups, both the
victims of serious yet incomparable injustices, pitted against one another in
litigation. This was precisely the unpleasant scenario facing the First Circuit in
Raso v. Lago,' a case that inspired "conflicting sympathies" for white former
tenants of a Boston neighborhood ousted by "urban renewal" on the one hand
and racial minorities wrongly denied fair housing opportunities on the other In
the end, the First Circuit ruled that the defendant housing agencies did not violate
the constitutional rights of a class of white plaintiffs when they curtailed the
plaintiffs' preferential status as displaced former tenants in a housing draw.
This Case Note argues that although the court correctly determined that the
defendants' housing plan did not involve the use of a forbidden racial
classification, its constitutional analysis confounds the criteria for triggering the
strict scrutiny standard and results in undesirable implications for future policy.
Rather than relying on the consent decree and fashioning an outcome-
determinative justification of the denial of preference, the court should have
focused on the broader integrative objectives of the Fair Housing Act (FHA)3 in
order to show the constitutionality of the defendants' action.4 Reading the
housing plan in accordance with the goals of the FRA would have provided more
convincing support for the panel's contention that the intervention would be
1. 135 F.3d I 1 (1st Cir. 1998).
2. Id. at 18.
3 42 U.S.C. §§ 3601-3631 (1994).
4. Of course, statutory legitimacy is not dispositive of the constitutionality of a state action, and
no language in this Case Note should be read to propose simply supplanting adjudication under equal
protection principles with Title VIII analysis. Title VIII's limited function within the context of this
Case Note is to illustrate how the defendants' statutory obligations constituted a motive for housing
intervention, a motive that would in turn illuminate the ways in which race played a role in the action.
The Yale Law Journal
compelled in any racially imbalanced housing environment, thereby insulating
the housing plan against strict scrutiny.
Title VIII of the Civil Rights Act of 1968, commonly known as the Fair
Housing Act, was aimed at both eliminating housing discrimination and
promoting housing integration. Although it has been nearly thirty years since the
passage of the Act, much of the housing in this country's large urban cities
remains deeply segregated. In Boston, as a result of litigation brought by the
NAACP,6 a federal district court ruled that the Department of Housing and Urban
Development (HUD)7 failed to ensure minorities equal access to public housing
and entered a consent decree providing remedial guidelines to HUD for the
enforcement of Title VIII. The consent decree stipulates that all Boston HUD
housing marketing plans targeting white neighborhoods "shall have as their goal
and measure of success" the achievement of a racial composition that "reflects
the racial composition of the City [of Boston] as a whole."8
Recently, HUD's activities again were subjected to judicial scrutiny-this
time, ironically, as a result of the department's attempts to implement an
integrative housing measure. In Boston's Old West Side, an urban renewal plan
resulted in the displacement of more than three thousand mostly white former
residents of the neighborhood. Pursuant to Massachusetts law,9 the developer
who was selected to complete the project signed a participation agreement with a
group of former West Enders promising displaced families first preference in the
purchase of residential units in the new West End Place. HUD initially funded a
substantial grant to the developer, but in light of the overwhelmingly white
tenancy that would have resulted from the preferential system, HUD
subsequently indicated that it viewed the participation agreement as contrary to
both federal fair housing requirements and the consent decree. After rejecting a
system of limited preference for displaced families proposed by a mediator, the
plaintiffs sued in federal district court, alleging, inter alia, that the arbitration
compromise violated their equal protection rights. The district court dismissed all
complaints pursuant to the defendants' motion to dismiss.
Judge Boudin, writing for the First Circuit panel, upheld the
constitutionality of the curtailment of preference. He reasoned that because (a)
the West End apartments were made available to all applicants regardless of race,
5. For overviews of the causes and extent of urban segregation, see DOUGLAS S. MASSEY &
NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 19-
57, 61-82 (1993); and Richard H. Sander, Comment, Individual Rights and Demographic Realities: The
Problem of Fair Housing, 82 Nw. U. L. REv. 874, 883-85 (1988).
6. See NAACP v. Pierce, 624 F. Supp. 1083 (D. Mass. 1985), vacated sub nom. NAACP v.
Secretary of HUD, 817 F.2d 149 (1st Cir. 1987), on remand NAACP v. Kemp, 721 F. Supp. 361 (D.
Mass. 1989).
7. Under § 3608 of the Fair Housing Act, the Secretary of HUD is charged with the task of
enforcing Title VIII and affirmatively promoting fair housing. 42 U.S.C. § 3608.
8. NAACP v. Kemp, No. 78-850-S, slip op. at 2 (D. Mass. Mar. 8, 1991) (consent decree),
cited in Raso, 135 F.3d at 14.
9. See MASS. GEN. LAWS ch. 121B, § 49 (1986).
[Vol. 108: 479
Case Note
and (b) the consent decree did not foreclose future HUD challenges to housing
plans that exclude whites, the defendants' action did not trigger strict scrutiny. As
a threshold matter, Judge Boudin noted that Adarand Constructors v. Pena"° does
not require that every state action reflecting a concern with race be subjected to
strict scrutiny. A "racial classification" in equal protection jurisprudence refers
only to a governmental standard that burdens or grants preferential treatment to a
group based on its race." As Judge Boudin observed, the constitutional litmus
test for the defendants' action under this standard was whether it was motivated
by the fact that the former West Enders were nearly all white.
II
Unfortunately, the panel could not demonstrate that the defendants' action
passed this litmus test because it failed to consider how the defendants' Title VIII
obligations factored into the constitutional analysis. The first prong of Judge
Boudin's analysis confused the action taken by the defendants with the "race-
blind" result it produced. The majority could not reasonably infer that a race-
blind housing lottery either retroactively determines or necessarily flows from a
housing plan free of racial classifications. This problematic ex post reasoning
betrays a more fundamental incompatibility between Judge Boudin's "racial
concern" argument and his treatment of the consent decree-which only
addresses housing in predominantly white neighborhoods-as the sole predicate
of the defendants' action. Seizing on this inconsistency, Judge Stahl in dissent
challenged the vision of "two-way" integration that the majority ascribed to the
plan: "[B]ecause the consent decree operates only in favor of racial and ethnic
minorities, it could not be read to require the curtailment of the preference if the
former West Enders were predominantly black."' 2 Reading the defendants'
action together with the consent decree indeed necessitates singling out the
plaintiffs because they are white, 3 casting doubt upon the panel's suggestion that
the plan's integrative function does not take into account the race of the burdened
group." Judge Stahl was right to observe that the disparate impact necessarily
implicated by the majority's reading of the housing plan plainly violates the
Constitution.'"
10 515 U.S. 200 (1995).
11. See Raso, 135 F.3d at 16 (citing Adarand, 515 U.S. at 226-27,235).
12. Id at 19 (Stahl, J., dissenting).
13. There is little doubt that taken alone, the consent decree passes constitutional muster since it
merely identifies goals for racial composition and does not implement a formal quota. See id. at 17. It is
only when the court reads the housing plan as an intervention taken in exclusive compliance with the
decree that it fixes and formalizes the decree's guidelines, transforming them into impermissible racial
quotas.
14. In defending its adherence to the decree, the panel relied on the somewhat disingenuous
conflation of race-based actions that are affirmatively compelled by the consent decree and actions that
are merely permitted by the decree. See id. Although it is certainly true that the consent decree does not
preclude hypothetical HUD challenges to a housing plan that excludes whites, more germane to the
analysis is the fact that the decree does not at all speak to this "inverse" scenario. Thus, a court would be
hard pressed to characterize the consent decree as the motivation for a similar HUD intervention had the
plaintiffs been predominately black.
15. See Adarand, 515 U.S. at 224.
1998]
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Both Judge's Stahl's critique and Judge Boudin's outcome-determinative
test, however, share a myopic view of the statutory underpinnings of the consent
decree and the defendants' action. Since HUD was subject not only to the
consent decree but also to the federal fair housing obligations that gave rise to
it,'6 the plaintiffs' constitutional claim must be viewed against the backdrop of
the FHA. Judge Stahl argues that in filing their motion to dismiss, the defendants
did not dispute the plaintiffs' claim that the curtailment of preference was
motivated exclusively by concern for achieving the consent decree's target racial
composition.' 7 But it is impossible to separate the consent decree from the
defendants' statutory duties under Title VIII since the decree merely provides
guidelines to HUD for enforcing the FHA. Compliance with the consent decree
necessitates performance of the defendants' Title VIII obligations, even if the
latter are not explicitly mentioned in the plaintiffs' complaint. Judge Boudin
therefore should have read the complaint to include the defendants' federal fair
housing duties as the cause of the housing intervention.
Most commentators agree that the promotion of housing integration is a
central objective of the FHA. 8 Of course, the integrative duties that fall upon
HUD under Title VIII must be performed within constitutional limitations. The
leading case law distinguishes between a constitutionally suspect system of
inflexible racial quotas and a benign race-consciousness that extends equal
treatment to different races. Like Raso, Otero v. New York Housing Authority9
also involved a housing authority's curtailment of a placement preference to
former tenants displaced by an urban renewal plan. The New York Housing
Authority (NYHA), however, reneged on its agreement with the former tenants
because admission of all displaced residents would have made the housing
project over eighty percent black. Claiming that the granting of unconditional
preferences would have "tipped" the racial balance in the community and
prompted white flight, the NYHA sought to limit minorities to forty percent of
the public units. In upholding the NYHA action, the Second Circuit commented
that the purpose of Title VIII's racial integration goal is to benefit the community
as a whole, not just certain of its members.20
16. See Raso, 135 F.3d at 14.
17. See id. at 19 (Stahl, J., dissenting). Judge Stahl reasoned that the court must read into the
complaint "the allegation ... that defendants would not have acted as they did had the plaintiff class
been predominantly of color." Id Under this view, the defendants admitted to using a racial
classification, and their action therefore must be subjected to strict scrutiny.
18. See, e.g., Dale J. Lois, Note, Racial Integration in Urban Public Housing: The Method Is
Legal, the Time Has Come, 34 N.Y.L. SCH. L. REv. 349, 351-52 (1989); Sander, supra note 5, at 918.
Although there are no committee reports discussing the bill's provisions, the limited legislative history
of Title VIII reveals that a desire to foster housing integration was a key factor motivating enactment of
the bill. See Lisa J. Laplace, Note, The Legality of Integration Maintenance Quotas: Fair Housing or
Forced Housing?, 55 BROOK. L. REv. 197,209-10 (1989).
19. 484 F.2d 1122 (2d Cir. 1973).
20. See id. at 1125 (rejecting the view that the duty to integrate under Title VIII is a "'one-way
street' limited to introduction of minorities into a predominantly white community"). In support of its
"two-way street" argument, the Otero court observed that the Supreme Court held that even those who
were not the direct objects of discrimination had an interest in fair housing and therefore had standing to
sue for 'the loss of important benefits"' caused by the lack of integration. Id at 1134 (quoting
Trafficante v. Metropolitan Life Ins, 409 U.S. 205, 210 (1972)).
[Vol. 108: 479
Case Note
Fifteen years after Otero, the Second Circuit in United States v. Starrett
City Associates2 determined that a state actor may not employ a system of strict
quotas in public housing to promote the FHA's goal of integration.22 In adopting
an affirmative action analysis under equal protection and Title VII principles,
however, the circuit explicitly rejected the Department of Justice's argument for a
strict colorblind interpretation of the FHA.' The court's narrow holding carefully
steered around Otero, striking down the quota system in question-not by
ignoring race, but rather by focusing on it. The Starrett City decision in fact
agreed with the Otero court that limited race-conscious measures to promote
integrated housing were not proscribed by the FHA.24 The Second Circuit
distinguished the two cases by arguing that the action taken by the Starrett City
defendants employed strict racial quotas that were unlimited in duration and
therefore unlawful. In contrast, the challenge in Otero involved a "single event"
that lacked "procedures for the long-term maintenance of specified levels of
integration."25
III
An examination of Starrett City's unique adjudicatory framework, which
maps Title VIII principles onto equal protection analysis,26 leaves little question
of both the continued precedential value of the decision and its importance for
evaluating the claims in Raso. Starrett City's careful maneuvering around Otero
carves out a limited sphere of constitutional legitimacy that both foreshadows
Judge Boudin's "racial concern" argument and insulates Starrett City and Otero
against the restrictions placed on race-based state action in the post-Adarand era.
Restricting Otero's scope to the limited, "one-time" nature of the curtailment of
preference ensured that race-based state interventions would exclude actions that
made use of the "racial classifications" outlawed seven years later by Adarand.27
Indeed, the Starrett City court affirmed that racial quotas were forbidden
precisely because they operate to single out and burden a racial group, reserving
benefits for a favored race without making provisions for changing racial
demographics.28 These quota systems preclude "two-way" integrative measures
even when the burdened racial group no longer overpopulates the housing
complex or applicant pool.
Like the housing authority's action in Otero, the Raso defendants'
curtailment of preference was a limited, "one-time measure" that would end as
soon as it was implemented. Unlike the NYHA in Otero, the Raso defendants
neither defined an explicit ceiling for white occupancy nor were concerned with a
specified "tipping" point. The criteria by which some scholars have characterized
21. 840 F.2d 1096 (2d Cir. 1988).
22. See id. at 1103.
23. See id. at 1101-02.
24. Seeid. at 1101, 1103.
25. Id
26. See id. at 100.
27. See text accompanying note 11.
28. See Starret City, 840 F.2d at 1101-03.
1998]
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the Otero plan as a racial quota are therefore inapplicable to Raso.29 If the denial
of preference in Otero falls within constitutional parameters, then surely the
defendants' action in Raso must be permissible as well.
The defendants' action was motivated merely by a desire to prevent one
race from constituting a super-majority in the housing complex, pursuant to
HUD's statutory obligations under Title VIII. Judge Boudin should have
considered these broader statutory requirements, not just the consent decree, in
reviewing the constitutionality of the housing intervention. The affirmative duty
placed on HUD involves the promotion of "two-way" integration, encompassing
not only predominantly white neighborhoods but all segregated areas. Thus,
since Title VIII would have compelled HUD to take similar action had the
plaintiffs been black, the defendants' action was motivated only by the fact that
the plaintiffs were "racially monolithic."'3 The curtailment of preference for the
former West Enders therefore did not involve the use of inflexible quotas or
racial classifications and should not have triggered strict scrutiny.
Raso may represent a Pyrrhic victory for housing integration, achieved
ironically at the expense of some of the most segregated and impoverished
communities in this country. While correctly ruling that the defendants' action
did not violate the Constitution, the First Circuit relied on an adjudicatory model
that ignores perhaps the most fundamental goal of the FHA: integrating the urban
black ghetto.3' To authorize a one-way integration plan without ensuring that the
same efforts be made in black ghettos is to deny many African Americans32 a
privilege that, according to the Supreme Court, all members of society deserve to
enjoy.33 A failure to fulfill the obligation to integrate all segregated communities
equally sends the clear message that those living in urban ghettos are neither
deserving of nor eligible for the "important benefits"34 of integrated housing.
Such disparate treatment would be tantamount to turning our backs on some of
the most disadvantaged populations in our society and would violate both the
integration and antidiscrimination objectives of Title VIII.
-James J. Sing
29. Some commentators seem to assume that the racial "tipping" point in Otero functioned as a
de facto "ceiling" quota for blacks. See, e.g., Laplace, supra note 18, at 203. The Otero opinion itself is
ambiguous as to whether the defendants' curtailment of preference makes use of a racial quota. See
Otero v. New York City Hous. Auth., 484 F.2d 1122, 1136 (2d Cir. 1973).
30. Raso, 135 F.3d at 19 (Stahl, J., dissenting).
31. See Sander, supra note 5, at 874-75.
32. Over 80 percent of the black population in some cities lives in conditions of deep racial
segregation. For a discussion of the vicious cycle of economic hardships and social ills that these
segregated ghettos perpetuate for blacks, see MASSEY & DENTON, supra note 5, at 118-25, 137-42.
33. See Trafficante v. Metropolitan Life Ins., 409 U.S. 205, 210 (1972). But see Michael R.
Tein, Comment, The Devaluation of Nonwhite Community in Remedies for Subsidized Housing
Discrimination, 140 U. PA. L. REv. 1463, 1492 (1992) (arguing that "the exclusive pursuit of
neighborhood integration can inflict discriminatory stigma on nonwhite community").
34. Trafficante, 409 U.S. at 210.
[Vol. 108:479


Integration as a Two-Way Street

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Integration as a Two-Way Street

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