UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

CARMEN THOMPSON, et al.,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OFHOUSING AND URBANDEVELOPMENT, et al.,

Defendants.

Civil Action No. MJG-95-309

PLAINTIFFS’ POST-TRIAL REPLY BRIEF

Peter BuscemiE. Andrew SoutherlingEdward S. KeefeDavid M. KerrHarvey Bartle, IVJason G. BenionJennifer A. BowenMORGAN, LEWIS & BOCKIUS LLP1111 Pennsylvania Avenue, NWWashington, D.C. 20004202-739-3000

Barbara Samuels, Bar No. 08681ACLU FOUNDATION OF MARYLAND3600 Clipper Mill Road, Suite 350Baltimore, MD 21211410-889-8555

Theodore M. Shaw, Director-CounselRobert H. StroupMelissa S. WoodsMatthew ColangeloMelanca D. ClarkNAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.99 Hudson St., 16th FloorNew York, NY 10013212-965-2200

Andrew D. Freeman, Bar No. 03867BROWN, GOLDSTEIN & LEVY, LLP120 E. Baltimore Street, Suite 1700Baltimore, MD 21202410-962-1030

Attorneys for Plaintiffs

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TABLE OF CONTENTS

OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. HUD Has Violated the Fifth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. HUD Has Violated the Fair Housing Act’s Requirement That HUD Further FairHousing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Duty to Further Fair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. HUD’s Actions and Failures to Act Fall Far Short of its Statutory Duty toFurther Fair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. HUD Has Not Met its Statutory Obligations Through Productionof Hard Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. The Section 8 Voucher Program Has Failed to Promote RegionalFair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. HUD’s Block Grant Funding Programs Have Not Been Used toPromote Regional Fair Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. HUD’s FHEO Office Has Made No Meaningful Contribution toFurthering Fair Housing During the Open Period . . . . . . . . . . . . . . . . . . 14

C. The Court’s Finding of § 3608(e)(5) Liability Should Stand . . . . . . . . . . . . . . . 17

III. This Court Should Order the Relief Contained in Plaintiffs’ Proposed Order . . . . . . . . 18

A. Broad Injunctive Relief Is a Necessary and Proper Remedy for HUD’sFailure to Correct the Harms Caused by its Prior Racial Discrimination . . . . . . 18

1. HUD’s No-Remedy Argument Has No Support in the Law . . . . . . . . . . 18

2. Burford Abstention Does Not Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. Plaintiffs’ Proposed Order Is an Appropriate Remedy for HUD’sConstitutional and Statutory Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Plaintiffs’ Remedy Is Not Only Consistent With But DirectlyAdvances National Housing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2. Housing Segregation Is Not Too Complex for Judicial Resolution . . . . . 26

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3. HUD’s Criticisms of Plaintiffs’ Opportunity Approach Are Invalid . . . . 28

4. The Proposed Remedy Expands Plaintiffs’ Choices . . . . . . . . . . . . . . . . 31

5. HUD Has Both the Authority and the Ability to Use its LeverageOver Grant Programs in the Service of a Remedy . . . . . . . . . . . . . . . . . . 36

6. Hard Units Are an Appropriate Component of the DesegregationRemedy in this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

7. The Possibility That a Remedy Will Cost Money to Implement Is Not aBarrier to Ordering Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

8. The Remedy Is Appropriately Deferential to HUD’s Discretion . . . . . . . 46

9. HUD Ignores the Central Goal of a Desegregation Remedy, WhichIs to Redress Unconstitutional, Race-Based Harm . . . . . . . . . . . . . . . . . 49

C. HUD’s Post-Trial Brief Is Rife With Inconsistencies . . . . . . . . . . . . . . . . . . . . . 49

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35

Bolling v. Sharpe, 347 U.S. 497 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 45

Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) (Brown II) . . . . . . . . 12, 26-27, 47

Burford v. Sun Oil Co., 319 U.S. 315 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23

Califano v. Westcott, 443 U.S. 76 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Clients’ Council v. Pierce, 711 F.2d 1406 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Colorado River Water Conservation District v. United States,424 U.S. 800 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22

Columbus Board of Education v. Penick, 443 U.S. 449 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 18

Darst-Webbe Tenant Association Board v. St. Louis Housing Authority,417 F.3d 898 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8

Darst-Webbe Tenant Association Board v. St. Louis Housing Authority,339 F.3d 702 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Davis v. School Commissioners of Mobile County, 402 U.S. 33 (1971) . . . . . . . . . . . . . 18-19, 24

Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Freeman v. Pitts, 503 U.S. 467 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5, 27

Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Green v. County School Board of New Kent County,391 U.S. 430 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12, 19, 26-27

Grutter v. Bollinger, 539 U.S. 306 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30

Hills v. Gautreaux, 425 U.S. 284 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 19-21, 25, 36-40

Holmes v. New York City Housing Authority,398 F.2d 262 (2d Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iv

Holton v. City of Thomasville School District,425 F.3d 1325 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Jaffee v. United States, 592 F.2d 712 (3d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Johnson v. Collins Entertainment Co., 199 F.3d 710 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 23

Keyes v. School District No. 1, 413 U.S. 189 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Louisiana v. United States, 380 U.S. 145 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Marable v. Walker, 704 F.2d 1219 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19

McNeese v. Board of Education, 373 U.S. 668 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Milliken v. Bradley, 418 U.S. 717 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 33

Monroe v. Board of Commissioners, 391 U.S. 450 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

NAACP v. A.A. Arms, Inc., 2003 WL 1049011 (E.D.N.Y. Feb. 24, 2003) . . . . . . . . . . . . . . . . . 45

NAACP v. HUD, 817 F.2d 149 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 6-8, 17, 19, 37, 47

NAACP v. Kemp, 721 F. Supp. 361 (D. Mass. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 47

National Association of Regional Councils v. Costle,564 F.2d 583 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

New Orleans Public Service, Inc. v. Council of New Orleans,491 U.S. 350 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22

North Carolina State Board of Education v. Swann,402 U.S. 43 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373 (2004) . . . . . . . . . . . . . . . . . . . . 7

NRDC v. Rodgers, 2005 WL 1388671 (E.D. Cal. June 9, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 49

Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) . . . . . . . . . . . . . . . . . . . . . 43

Otero v. New York City Housing Authority,484 F.2d 1122 (2d Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7

v

Pasadena City Board of Education v. Spangler, 427 U.S. 424 (1976) . . . . . . . . . . . . . . . . . . . . . 4

Pomponio v. Fauquier County Board of Supervisors,21 F.3d 1319 (4th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Raney v. Board of Education, 391 U.S. 443 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

School Board of City of Richmond v. Baliles,829 F.2d 1308 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7, 37, 48-49

Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Swann v. Charlotte-Mecklenberg Board of Education,402 U.S. 1 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 19

Thompson v. HUD, 404 F.3d 821 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Thompson v. HUD, 2006 WL 581260,(D. Md. Jan. 10, 2006) (Summary Judgment Order) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

Thompson v. HUD, 348 F. Supp. 2d 398 (D. Md. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Thompson v. HUD, 2001 WL 1636517 (D. Md. Dec. 12, 2001)(Report and Recommendation) (Grimm, M.J.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Thompson v. HUD, Order Certifying Class & ApprovingPartial Consent Decree (June 25, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

United States v. City of Parma, Ohio, 661 F.2d 562 (6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Fordice, 505 U.S. 717 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. HUD, 239 F.3d 211 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Paradise, 480 U.S. 149 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30

Walker v. City of Mesquite, 402 F.3d 532 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Walker v. County School Board, 413 F.2d 53 (4th Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Walker v. HUD, No. 3:85-CV-1210-R (N.D. Tex. Dec. 5, 1997)(Modified Remedial Order Affecting HUD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 39, 47

White v. Mathews, 559 F.2d 852 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

vi

Young v. Cisneros, No. P-80-8-CA(E.D. Tex. Mar. 30, 1995) (Final Judgment and Decree) . . . . . . . . . . . . . . . . . . . . . . . . 47

Young v. Pierce, 685 F. Supp. 975 (E.D. Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Young v. Pierce, 685 F. Supp. 986 (E.D. Tex. 1988) (Interim Injunction) . . . . . . . . . . . . . . . . . 40

FEDERAL CONSTITUTION AND STATUTES

U.S. Const. Art. I, § 9, cl. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

5 U.S.C. § 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

42 U.S.C. § 3608(e)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

114 Cong. Rec. 2281, 2527-28 (1968) (statement of Sen. Brooke) . . . . . . . . . . . . . . . . . . . . . . . 17

Erwin Chemerinsky, Federal Jurisdiction (4th ed. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Richard H. Fallon, Jr., Marbury and the Constitutional Mind, 91 Cal. L. Rev. 1 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

3 Richard J. Pierce, Jr., Administrative Law Treatise (4th ed. 2002) . . . . . . . . . . . . . . . . . . . . . 48

Leonard S. Rubinowitz & James E. Rosenbaum, Crossing the Class andColor Lines: From Public Housing to White Suburbia (2000) . . . . . . . . . . . . . . . . . . . . 39

Peter H. Schuck, Diversity in America (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Herbert Wechsler, The Courts and the Constitution,65 Colum. L. Rev. 1001 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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OVERVIEW

Plaintiffs have presented an irrefutable case that the vestiges of prior segregation persist

and that HUD never effectively acted to remedy them. HUD responds that it isn’t quite clear

what the “vestiges” of prior discrimination are. But the vestiges of past segregation are

straightforward: the Baltimore Region’s public housing is, as it always has been,

overwhelmingly concentrated in the poorest, blackest ghettos of East and West Baltimore.

Those locations are the continuing results of HUD’s approval of public housing sites in the

ghetto and HUD’s failure to use its leverage to create public housing in white neighborhoods.

Plaintiffs also have demonstrated, and this Court has held, that HUD failed to meet its

obligation to promote fair housing under 42 U.S.C. § 3608(e)(5). In response, HUD points only

to a grab-bag of vague, misleading, and de minimis activities that it cannot show had the effect,

or even the intended effect, of desegregating public housing in the Baltimore Region. HUD

ignores the overwhelming evidence presented at trial that “not one penny” (or at best very few

pennies) of federal housing funds in the Baltimore Region helped African-American public

housing families to live in integrated neighborhoods away from the ghettos of Baltimore City.

Plaintiffs have presented a Proposed Remedial Order that is tailored to the violations at

issue, consistent with the Court’s authority, and deferential to HUD’s discretion. HUD has

responded with unfounded assertions about the limits of this Court’s ability to vindicate

constitutional rights – assertions that would render constitutional rights unenforceable against

federal actors in all cases and that are counter to bedrock constitutional principles dating back to

Marbury v. Madison. HUD also has responded with excuses regarding HUD’s inability to

achieve desegregation – excuses that not only are incorrect but also are inconsistent with HUD’s

claims that it has not violated the law.

“Pls.’ Br.” refers to Plaintiffs’ Post-Trial Brief filed May 31, 2006, and docketed at1

Paper 817. “Fed. Defs.’ Br.” refers to Federal Defendants’ Post-Trial Brief filed May 31, 2006,and docketed at Paper 815.

2

HUD warns this Court that even if HUD has violated the Constitution and the Fair

Housing Act, the “risk of a misstep is too great” to warrant a remedial order beyond declaratory

relief. Fed. Defs.’ Br. 1, 29. The risk here is not in making a remedial misstep – equitable relief

is flexible, and this Court can retain jurisdiction over implementation of the remedy to make

practical adjustments as necessary. The risk instead is in doing nothing, thus preserving the

status quo and condemning future generations of African-American public housing residents to

the devastating, segregated conditions that have persisted for more than half a century.

The Fifth Amendment, the mandate of Brown v. Board, and the sweeping language and

goals of the Fair Housing Act are more than aspirational statements of high ideals to which HUD

may refer in word but not in deed. It is well past time for HUD to live up to these imperatives

and accomplish the desegregation of Baltimore’s public housing.

ARGUMENT

I. HUD Has Violated the Fifth Amendment.

Plaintiffs’ evidence conclusively shows that HUD participated in the creation and

operation of intentionally segregated public housing in Baltimore and that public housing

remains segregated to this day. See Pls.’ Br. 5-12. The facts presented at trial confirm what this1

Court previously has found: public housing in Baltimore was intentionally segregated in the past,

and the vestiges of that segregation persist to this day. See Thompson v. HUD, 348 F. Supp. 2d

398, 443, 461 (D. Md. 2005). This showing establishes a presumption that HUD’s prior

segregation caused the present conditions, a presumption that HUD cannot rebut. Instead of

The Fourth Circuit described the allocation of burdens in desegregation cases as “well2

established”: “It is well established that once a court has found an unlawful dual school system,the plaintiffs are entitled to the presumption that current disparities are causally related to priorsegregation, and the burden of proving otherwise rests on the defendants.” Sch. Bd. of City ofRichmond v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987).

3

attempting to do so, HUD presses an ill-considered argument about the allocation of burdens in

equal protection cases, an argument that flies in the face of fifty years of desegregation case law.

Plaintiffs’ showing of a prior policy of intentional segregation and de facto present

segregation creates a presumption of causation. See Freeman v. Pitts, 503 U.S. 467, 494 (1991)

(“If the unlawful de jure policy of a school system has been the cause of the racial imbalance in

school attendance, that condition must be remedied. The school district bears the burden of

showing that any current imbalance is not traceable, in a proximate way, to the prior violation.”

(emphasis added)); see also Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 200, 207-11 (1973); Swann

v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 26 (1971). HUD’s elliptical reference to2

“whichever party bears whatever burden” in Plaintiffs’ Fifth Amendment claim, see Fed. Defs.’

Br. 29, should not distract this Court from the settled allocation of burdens and the resultant

evidentiary burden HUD must meet in this case.

HUD has failed to present any evidence that supports its evidentiary burden; indeed, even

if (contrary to precedent) Plaintiffs bore the burden here, Plaintiffs would have met it. Plaintiffs

presented overwhelming evidence of HUD’s past intentional segregation. See Pls.’ Br. 5-8.

HUD never has disputed this showing, and it cannot do so. Plaintiffs also presented

overwhelming evidence of the unbroken history of segregation leading to the current segregated

conditions of African-American public housing residents. See id. at 8-12. HUD never has

disputed this showing either, and it cannot do so. HUD’s own witnesses conceded both of these

points at trial, as HUD has done on other occasions. See id. at 10. Because HUD cannot

Moreover, Prof. Fishman acknowledged at trial that he knew little about the actual3

implementation of HUD policies, in Baltimore or elsewhere. Trial Tr. 1347-51 (Fishman).

4

disprove the elements of Plaintiffs’ prima facie case, HUD must show that the present

segregation of African-American public housing residents in Baltimore is not caused by its prior

discriminatory acts.

HUD cannot meet this burden with its reference to Prof. Fishman’s cursory and

superficial testimony that HUD’s policies have changed since 1954. See Fed. Defs.’ Br. 27. The

Supreme Court requires a searching, fact-intensive demonstration of effective efforts to eliminate

racially identifiable patterns. See Freeman, 503 U.S. at 493-97; Pasadena City Bd. of Educ. v.

Spangler, 427 U.S. 424, 436-37 (1976); Jenkins v. Missouri, 122 F.3d 588, 599 (8th Cir. 1997);

see generally Pls.’ Br. 12-17. HUD made no effort to show that the policies Prof. Fishman

described were effective in desegregating Baltimore’s public housing. HUD’s brief does not3

even acknowledge (though HUD’s witnesses at trial did) the present segregated living conditions

of African-American public housing residents in Baltimore.

Citing only Prof. Fishman’s general statements and offering no evidence of effective

desegregation, HUD asserts that the public housing system in Baltimore has achieved “unitary

status.” Fed. Defs.’ Br. 27. This Court should again reject that assertion, as it did in denying

HUD’s 2005 motion for summary judgment. Thompson v. HUD, Civ. No. MJG-95-309, 2006

WL 581260, at *11-12 (D. Md. Jan. 10, 2006) (Summary Judgment Order) (“A system in

‘unitary status’ means that vestiges of past discrimination have been eliminated to the extent

practicable. This is by no means the situation in what HUD itself defines as the Baltimore

Region.” (internal citation omitted)). HUD does not and cannot show that African-American

public housing residents were ever offered a meaningful opportunity to live anywhere in the

HUD contradictorily argues on the one hand that it cannot be liable because its remedial4

obligations with regard to prior discrimination are unclear, and on the other hand that it cannotbe liable because it has met all of its remedial obligations. HUD’s Brief is riddled withinconsistent positions like this one, which Plaintiffs list in more detail in Part III.C below.

5

Baltimore Region other than in black ghettos in Baltimore City, nor does HUD argue that such

opportunities could not have been (or cannot now be) created.

Nor is it sufficient for HUD merely to point out that population shifts have occurred in

the Baltimore Region over the past fifty years. See Fed. Defs.’ Br. 27. HUD must show that

population changes substantially caused the present segregation of black public housing

residents. Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1338-39 (11th Cir. 2005); see

also Freeman, 503 U.S. at 494. HUD does not attempt such a showing and could not make this

showing if it tried. Plaintiffs’ evidence – verified by the testimony of HUD’s own experts and

fact witnesses – proves that African-American public housing residents in Baltimore always

have been confined to areas of the City with disproportionate African-American populations and

excluded from areas of the Region with white majorities. See Pls.’ Br. 12-17.

HUD finally contests constitutional liability on the dubious ground that Plaintiffs have

not clearly identified the vestiges of prior discrimination and that this alleged lack of clarity

makes HUD’s remedial obligations unclear. See Fed. Defs.’ Br. 26. As Plaintiffs have4

articulated on multiple occasions, the vestiges of discrimination are apparent: HUD intentionally

deprived African-American public housing residents of the opportunity to live anywhere but in

poor neighborhoods of overwhelming black population concentration. Because of this

intentional, race-based housing policy, African-American public housing residents still live in

the same poor neighborhoods of overwhelming black population concentration and still lack the

opportunity that all other residents of the Baltimore Region have to choose where they live. See

HUD also argues that Plaintiffs “have not demonstrated any untoward motivation on5

HUD’s part during the course of the Open Period.” Fed. Defs.’ Br. 28-29. HUD knows full wellthat proof of present discriminatory intent is not necessary to establish a constitutional violationfor failure to disestablish the vestiges of prior segregation. United States v. Fordice, 505 U.S.717, 729-32 (1992); Thompson Summary Judgment Order, 2006 WL 581260, at *7; Thompson,348 F. Supp. 2d at 413, 451.

6

Pls.’ Br. 8-12; Hills v. Gautreaux, 425 U.S. 284, 286-92, 296 (1976); United States v. City of

Parma, Ohio, 661 F.2d 562, 566 (6th Cir. 1991); Walker v. HUD, No. 3:85-CV-1210-R, slip op.

at 1 (N.D. Tex. Dec. 5, 1997) (Modified Remedial Order Affecting HUD) [hereinafter Walker

1997 Remedial Order]; cf. Green v. County Sch. Bd. of New Kent County, 391 U.S. 430, 435-38,

441-42 (1968). HUD’s remedial obligations are similarly clear: HUD must effectively dismantle

the segregated system. Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979). Any

protestations of uncertainty about what HUD must do to comply with the constitutional

command of equal protection are disingenuous.5

II. HUD Has Violated the Fair Housing Act’s Requirement That HUD Further FairHousing.

A. The Duty to Further Fair Housing.

HUD’s statutory obligation is to take actions that affirmatively further fair housing by

“fulfill[ing] . . . the goal of open, integrated residential housing patterns.” Otero v. N.Y. City

Hous. Auth., 484 F.2d 1122, 1134 (2d Cir. 1973); see also NAACP v. HUD, 817 F.2d 149, 155

(1st Cir. 1987); Shannon v. HUD, 436 F.2d 809, 816, 821-23 (3d Cir. 1970); Pls.’ Br. 20-24 &

n.18 (citing cases).

HUD ignores these many judicial decisions interpreting the obligation to affirmatively

further fair housing under § 3608(e)(5) and instead cites only a single case, Darst-Webbe Tenant

Ass’n Board v. St. Louis Housing Authority, 417 F.3d 898 (8th Cir. 2005), that HUD thinks

imposes a lower obligation on HUD under the Fair Housing Act. See Fed. Defs.’ Br. 3-4. But

7

the Darst-Webbe court read the § 3608(e)(5) obligation as requiring HUD to “demonstrate[]

consideration of, and an effort to achieve,” results in the form of furthering opportunities for fair

housing. Darst-Webbe, 417 F.3d at 907 (emphasis added). This interpretation is fully consistent

with the interpretation of the statute articulated by the First, Second, and Third Circuits in

Shannon, NAACP, and Otero.

HUD separately points to language from Darst-Webbe stating that the court’s review is

not “to determine whether HUD has, in fact, achieved tangible results.” Darst-Webbe, 417 F.3d

at 907. In suggesting that this language limits the Court’s review in this case, HUD takes this

passage out of its factual context. Darst-Webbe involved a challenge to only a single decision by

HUD – the approval of a local revitalization plan. Id. Here, by contrast, Plaintiffs challenge a

pattern of actions and failures to act over time that perpetuated Region-wide segregation. This

distinction is important because the Darst-Webbe court was considering the reviewability of

HUD’s actions under the APA in light of Norton v. Southern Utah Wilderness Alliance, 124 S.

Ct. 2373 (2004), which expressed concern that agency action not be reviewed against

unmeasurable standards. As then-Judge Breyer explained in NAACP v. HUD, the § 3608(e)(5)

standard is one that can properly be measured by evaluating the result of HUD’s actions over

time, even if applying that standard to individual decisions may be more difficult:

This is a case in which plaintiffs, in effect, claim thatHUD’s practice over time, its pattern of behavior, reveals a failure“affirmatively . . . to further” Title VIII’s fair housing policy. TheNAACP does not complain of individual instances so much as ituses individual instances to show a pattern of activity, whichpattern constitutes the alleged violation. Thus, we need not decidehow, or whether, a court can fashion standards governing when . . .HUD should use individual grant decisions affirmatively to bringabout desegregation. . . .

Rather, here the court must decide whether, over time,HUD’s pattern of activity reveals a failure to live up to itsobligation. The standard for reviewing that pattern can be drawn

8

directly from the statutory instruction to “administer” its programs“in a manner affirmatively to further the policies” of “fairhousing.” 42 U.S.C. §§ 3608(e)(5), 3601. This standard, likemany, may be difficult to apply in borderline instances, yet a courtshould be able to determine a clear failure to live up to theinstruction over time.

NAACP, 817 F.2d at 158. The Court’s review here is therefore not the kind of review about

which the Darst-Webbe court was concerned (that is, evaluation of whether one particular

decision did or did not achieve certain measurable outcomes), but rather is a review to determine

whether HUD “fail[ed] to live up to the instruction [of § 3608(e)(5)] over time,” which, as Judge

Breyer explained, can be measured by reference to the statutory standard. NAACP, 817 F.2d at

158-59 (“[W]e do not see how, or why, it is any more difficult [to measure compliance with

§ 3608(e)(5) over time] than other civil rights cases in which courts have judged the lawfulness

of agency behavior against roughly analogous standards.”).

HUD is thus under an affirmative statutory obligation to take active steps toward the goal

of open and integrated housing for African-American public housing residents throughout the

Baltimore Region.

B. HUD’s Actions and Failures to Act Fall Far Short of its Statutory Duty toFurther Fair Housing.

None of the evidence that HUD presented at trial, and that HUD now describes in its

Post-Trial Brief, undermines this Court’s finding that HUD has failed to promote regional

housing opportunities for African-American residents of Baltimore City public housing.

HUD first cites testimony from two of Plaintiffs’ experts, Margery Turner and Xavier de

Souza Briggs, to the effect that when they worked at HUD the research agenda included a focus

on racial discrimination, segregation, and the concentration of poverty. Fed. Defs.’ Br. 5-7. A

decade-old research agenda is hardly proof that HUD has met its burden to promote fair housing

9

on a regional basis in Baltimore. As noted above and in Plaintiffs’ Post-Trial Brief, the mere

consideration of fair housing approaches at the national level does not suffice to meet HUD’s

§ 3608(e)(5) obligations. Pls.’ Br. 20-24. A research agenda is a valuable component of

understanding the scope of the problem and how to begin addressing it, but does not on its own

effectively reduce the number of people who live in segregated public housing in Baltimore.

HUD ignores the testimony that identifying racial desegregation as a research priority did not

ensure that that objective was achieved in practice, nor did it ensure that that priority was

implemented over other, competing priorities. Trial Tr. 1018-19, 1080-82 (Briggs). HUD also

ignores the testimony that the reason its research agenda needed to include a focus on racial

segregation and poverty concentration was that HUD’s actions and policies had played a role in

creating and contributing to those conditions. Trial Tr. 174-75 (Turner). As made clear in the

refutations of HUD’s arguments below, HUD never implemented a strategy to desegregate

public housing or otherwise took effective actions to fulfill the goal of open housing in the

Baltimore Region, notwithstanding the good intentions of some of its former researchers.

1. HUD Has Not Met its Statutory Obligations Through Production ofHard Units.

HUD’s argument that it has provided funding for the creation of hard units in the

Baltimore Region, see Fed. Defs.’ Br. 8-9, relies on selective references that misrepresent the

evidence presented at trial.

HUD points to the construction of public housing units outside of Baltimore City in

Annapolis and Havre de Grace. Id. at 8. But as Plaintiffs showed at trial, these units were a

small fraction of the total: nearly 92% of the Region’s family public housing was concentrated in

Baltimore City as of 1995, and nearly 94% was concentrated in census tracts with above-average

“SOF” refers to Plaintiffs’ Post-Trial Statement of Facts filed on May 31, 2006, and6

docketed at Paper 817.

HUD’s own expert, Dr. William Rohe, conducted a research study for HUD that7

described the siting pattern of public and assisted housing in the Baltimore Region during the1980s as “regressive,” meaning that public and assisted housing was concentrated in tracts with ahigh percentage of African-Americans. Trial Tr. 2531-33 (Rohe); PX-773, Lance Freeman &William M. Rohe, The Siting of Assisted Housing and Its Impact on Neighborhood RacialTransition 38 (Dec. 1998).

10

percentages of African-American residents. Pls.’ Br. 9-10, SOF ¶¶ 6-8. The Region’s public6

housing units are overwhelmingly concentrated in the poorest, blackest areas of Baltimore City.

HUD also cites its creation of hard units through the project-based Section 8 program,

but these assisted housing units were also located in areas with above average percentages of

African-American residents and are likewise concentrated in Baltimore City, often in close

proximity to public housing developments. See PX-768, Webster Written Test. 19-20 & tbl.9;7

Pendall Written Test. 104-14 (Paper 574). And as HUD concedes in a footnote, none of the

project-based Section 8 units developed during the Open Period (that is, since 1989) were

available to African-American public housing families – every single one was limited to elderly

and disabled occupancy. Fed. Defs.’ Br. 8-9 n.3; Pls.’ Br. 45. In addition, the existing stock of

project-based Section 8 units is steadily declining, with no consideration of the fair housing

impact of the loss of these units. Pls.’ Br. 45-46.

Finally, HUD claims that the HOME program was used to create 3,450 rental units in the

Baltimore Region from 1992 to 2005. Fed. Defs.’ Br. 8-9. HUD grossly overstates the import of

this figure – there is no evidence that any of these units were made available to African-

American public housing residents, and HUD’s own witness conceded at trial that of these 3,450

units, only 122 were occupied by any African-Americans outside of Baltimore City over a 14-

year time period (fewer than nine units per year) and that HUD did not know what percentage of

11

these few units were occupied by families as opposed to the elderly. Trial Tr. 1621-24

(Sardone); Pls.’ Br. 37-38. HUD’s reliance on the creation of hard rental units in meeting its

obligation to further fair housing is misplaced.

2. The Section 8 Voucher Program Has Failed to Promote Regional FairHousing.

The facts do not support HUD’s argument that Section 8 vouchers help it to meet its

statutory obligations. See Fed. Defs.’ Br. 9-13.

Plaintiffs have shown that there are significant obstacles to voucher portability including

administrative barriers, lack of information, lack of transportation, and racial discrimination.

Pls.’ Br. 26-31; SOF ¶¶ 24-51. HUD’s decisions with regard to voucher subsidy levels also have

served to place entire areas of the Baltimore Region off-limits to voucher users. Pls.’ Br. 29-31;

SOF ¶¶ 52-65; Thompson, 348 F. Supp. 2d at 460 (“[T]he relative expense and lack of

affordability of housing outside of Baltimore City may present a significant barrier to Section 8

voucher-holders who might wish to pursue private housing in the Baltimore Region but outside

the city.”). Plaintiffs’ witnesses testified about the difficulty they faced in trying to find housing

with a regular Section 8 voucher. See Trial Tr. 444 (Doreen Brooks); Trial Tr. 892-95

(Robinson); Trial Tr. 2657-65 (Neal); Liability Trial Tr. 640 (Leighton). This evidence is

supported by HUD’s own documents and expert witness testimony. See, e.g., FDR-2, Fishman

Written Test. 6 (“[M]erely providing region-wide vouchers [is] not enough to provide real

‘freedom of choice’ for those households who wish[] to use their vouchers to move to a suburban

location.”); PX-815, HUD, Moving to Opportunity for Fair Housing, at HUDBAL 38186 (Dec.

5, 2000) (“[M]any households receiving Section 8 rental assistance are confronted by an array of

barriers – market conditions, discrimination, lack of information and/or transportation, among

others – that force them to rent housing in neighborhoods of intense poverty.”).

12

As the result of these obstacles, African-American voucher users in the Baltimore Region

are concentrated in Baltimore City and in extremely poor neighborhoods with extremely high

black population levels. Pls.’ Br. 25-26; SOF ¶¶ 17-23. HUD’s claim that the voucher program

“has opened so many regional opportunities,” Fed. Defs.’ Br. 12, is simply not true for African-

Americans in the Baltimore Region and, in particular, members of the plaintiff class.

Supreme Court rulings in other contexts further undermine HUD’s argument. The

Supreme Court long has recognized in school desegregation cases that merely providing

“freedom of choice” is an insufficient step toward desegregation:

The [school board’s] “freedom-of-choice” plan cannot be acceptedas a sufficient step to “effectuate a transition” to a unitarysystem. . . . Rather than further the dismantling of the dual system,the plan has operated simply to burden children and their parentswith a responsibility which Brown II placed squarely on the SchoolBoard.

Green, 391 U.S. at 441-42 (citing Brown v. Bd. of Educ., 349 U.S. 294 (1955) (Brown II)).

HUD’s argument that vouchers provide families with “free choice” is equivalent to the argument

rejected by the Supreme Court in Green. HUD’s assertion is no more than a justification for

burdening tenants with what should be HUD’s responsibility – to desegregate public housing.

HUD separately argues that the Moving to Opportunity (“MTO”) demonstration study

and the Regional Opportunities Counseling (“ROC”) program – both of which were voucher-

based study programs – promoted fair housing by “building regional capacity.” Fed. Defs.’ Br.

21-24. As Plaintiffs have shown, both programs were far too small and short-lived to have had

any impact on the problem of segregation in Baltimore City public housing. Pls.’ Br. 32-35.

Nor is there any evidence to suggest that the significant obstacles to regional voucher use

described above were in any way lessened by either program – to the contrary, the only review

of the ROC program concluded that it was not successful in addressing administrative barriers to

13

voucher portability. See FDR-31, Assessment of Technical Assistance Needs of the Regional

Opportunity Counseling (ROC) Program Sites, at II-2 (Apr. 2000); SOF ¶¶ 86-87.

There is no evidence that the Section 8 voucher program has served as an effective tool to

desegregate Baltimore City public housing. See Thompson, 348 F. Supp. 2d at 460 (“Just as

rearranging the siting of public housing units within Baltimore City is insufficient to advance the

cause of desegregation, Section 8 vouchers are inadequate to achieve this end.”).

3. HUD’s Block Grant Funding Programs Have Not Been Used toPromote Regional Fair Housing.

Disregarding the testimony of its own employee-witnesses, HUD argues that CDBG and

HOME block grants have promoted fair housing in the Baltimore Region. Fed. Defs.’ Br. 13-15.

Charles Halm testified that “not a penny” of the millions of dollars provided by CDBG funds in

the Baltimore Region went to help African-American public housing residents move to

desegregative areas. Trial Tr. 2086 (Halm). Virginia Sardone similarly testified that HUD has

no idea whether even a single African-American public housing family from Baltimore City has

ever been assisted by the HOME program. Trial Tr. 1523, 1607 (Sardone).

In the face of these concessions, HUD resorts to vague assertions regarding the assistance

the CDBG and HOME programs have provided for “poor families.” Fed. Defs.’ Br. 13. These

assertions provide no evidence that either program has ever assisted members of the Plaintiff

class – public housing families are extremely poor, are well below the income-targeting levels

required by the CDBG and HOME programs, and are not benefitted by assistance to the elderly

poor. Pls.’ Br. 36, 40; SOF ¶¶ 118-21, 154. There is no support in the record for HUD’s claim

that these block grant programs have promoted fair housing by helping African-American public

housing families move out of segregated areas in Baltimore City. See Pls.’ Br. 35-41.

HUD’s assertions regarding “non-financial support” to grantees and PHAs are similarly

14

unsupported by any evidence that such support assisted African-American public housing

families. See Fed. Defs.’ Br. 15-17. HUD notes, for example, that grantees must undertake

affirmative marketing procedures for a subset of their housing programs, and that these

procedures must be directed to persons least likely to apply. But HUD’s witness testified that

despite this requirement, HUD has never recommended that outreach be made to public housing

residents. Trial Tr. 1629 (Sardone); SOF ¶¶ 143-47. HUD also points to its “technical

assistance” activities, which include the development of training manuals and classes for

grantees. But the trial testimony shows that none of the technical assistance products developed

by HUD headquarters has ever recommended to field offices, participating jurisdictions, or

developers that there be any outreach to public housing residents to help them access HOME-

funded housing opportunities. Trial Tr. 1629-30 (Sardone). HUD also argues that it distributes

information on housing opportunities to prospective beneficiaries, citing its use of a pamphlet

called “The Locator.” Fed. Defs.’ Br. 17. As Plaintiffs’ Post-Trial Brief notes, HUD has not

made any efforts to distribute The Locator to residents of Baltimore City public housing or to

voucher recipients. Pls.’ Br. 29 n.24. There is no evidence that this pamphlet had any value in

promoting fair housing. Id.

4. HUD’s FHEO Office Has Made No Meaningful Contribution toFurthering Fair Housing During the Open Period.

Contrary to HUD’s assertion that its Office of Fair Housing and Equal Opportunity

(“FHEO”) “contributes significantly” to HUD’s effort to affirmatively further fair housing, the

efforts of the FHEO Office in this regard have been de minimis and have not satisfied HUD’s

obligations under Title VIII or the Constitution. See Fed. Defs.’ Br. 18.

The FHEO activities HUD catalogs can only be described as sporadic, uncoordinated,

precatory, and ineffective. For instance, HUD points to a single letter written in 1991 suggesting

15

to HABC that it “should try” to use Section 8 vouchers to move tenants into non-minority areas

within and outside of the City. Fed. Defs.’ Br. 19-20. In the absence of a framework of

incentives or sanctions designed to achieve increased fair housing choice, this isolated

suggestion was predictably ineffective and cannot carry the weight of HUD’s burden to further

fair housing. Similarly, HUD cites FHEO’s attempts to “spread the message of regional housing

choice” through education and outreach activities. Id. at 20. FHEO’s sporadic efforts in this

area have been wholly inadequate to meet HUD’s statutory obligations, as there is not a shred of

evidence that HUD’s “message spreading” has been connected with concrete action to increase

desegregative housing opportunities for public housing residents.

In a similar vein, HUD referred repeatedly at trial and in its Post-Trial Brief to FHEO’s

publication of the Fair Housing Planning Guide. See Fed. Defs.’ Br. 18. But HUD offered no

evidence that the actions recommended by the Fair Housing Planning Guide were implemented

or that they helped African-American public housing families in Baltimore City obtain access to

housing in integrated suburban neighborhoods. See Trial Tr. 2206-07 (Walsh). HUD’s reliance

on the publication of the Fair Housing Planning Guide as in any way satisfying its statutory and

constitutional obligations is particularly ironic given HUD’s own admonition that the “sole

measurement of successful fair housing planning is achievement of results.” PX-826, Letter

from Smith to Henson (Oct. 30, 1998) (emphasis added). As the record demonstrates, HUD has

no results to show.

HUD also cites its involvement in the preparation by Baltimore-area grantees of the

Analysis of Impediments (“AI”) as evidence that it has promoted fair housing. Fed. Defs.’ Br.

20, 24-25. HUD’s inadequate application of procedures related to the AI has been described at

length in Plaintiffs’ Post-Trial Brief and requires little mention here. See Pls.’ Br. 41-45. The

For example, FHEO has no involvement in approving policies relating to voucher8

portability. PX-631, Walsh Dep. Tr. 132 (May 27, 2005). FHEO has no involvement inapproving multi-family foreclosure or disposition decisions, Trial Tr. 2487 (Brooks), and has noinvolvement in approving policies related to the Mark-to-Market Program. PX-631, Walsh Dep.Tr. 132 (May 27, 2005). FHEO has no involvement in decisions by HUD to terminate project-based Section 8 contracts. PX-634, Brooks Dep. Tr. 129 (July 12, 2005). FHEO has no role inreviewing or approving sites for replacement housing when CDBG funds are used fordemolition. Trial Tr. 2487 (Brooks). FHEO does not review project and site selection forLIHTC projects, and does not coordinate with the IRS or Treasury Department to ensure thatLIHTC projects affirmatively further fair housing. Trial Tr. 2205-06 (Walsh).

16

Baltimore Region grantees have yet to update their ten-year-old AI, but HUD has continued year

after year to approve these grantees’ Con Plan submissions, AFFH Certifications, and

performance reports despite persistent noncompliance with fair housing requirements. Id.

In addition to failing to achieve results with regard to its interactions with HUD grantees

and PHAs, FHEO has failed to implement a coordinated fair housing approach among the line

offices within HUD to ensure that fair housing considerations are raised at appropriate times in

decisionmaking processes. To the contrary, the evidence presented at trial shows that FHEO

plays no role in HUD’s major decisions that affect the supply, location, availability, and

affordability of housing for poor African-Americans in the Baltimore Region. Given the8

“fragmented” and “decentralized” nature of decisionmaking across HUD program areas, see PX-

765, Khadduri Written Test. 9-10, this failure to provide for any overarching review to ensure

consideration of statutory and constitutional desegregation mandates is an abdication of HUD’s

duty to further fair housing and remedy the effects of prior discrimination.

In short, FHEO has been a non-factor in implementing HUD’s duty to remedy the effects

of prior discrimination and meet its statutory obligations under the Fair Housing Act. HUD

witness Pamela Walsh, Director of the Program Standards Division in HUD’s FHEO Office,

perhaps put it best when she stated, “I think our [fair housing] mission in HUD is to reduce

17

discrimination when we see it. And if public housing is segregated, then HUD has a lot more

work to do.” Trial Tr. 2210 (Walsh) (emphasis added).

C. The Court’s Finding of § 3608(e)(5) Liability Should Stand.

HUD’s arguments in defense of statutory liability ultimately show little more than that

HUD pursued general programmatic activities relating to the provision of housing services from

1989 to the present. With an annual budget in the tens of billions of dollars, the only way for

HUD not to have provided housing services over the past fifteen years would be for it to have

shut down completely. But § 3608(e)(5) requires more of HUD than merely to oversee the

ongoing operation of general housing programs – it requires HUD to use its programs “to assist

in ending discrimination and segregation, to the point where the supply of genuinely open

housing increases.” NAACP, 817 F.2d at 155. None of the activities HUD identifies in its Post-

Trial Brief were undertaken as part of a plan to desegregate Baltimore public housing, and none

have had the effect of promoting desegregative housing opportunities throughout the Region for

Baltimore City’s black public housing residents.

During the Senate debate on the Fair Housing Act, Senator Edward Brooke explained the

importance of the proposed law as follows:

Today’s Federal housing official commonly inveighs against theevils of ghetto life even as he pushes buttons that ratify theirtriumph – even as he ok’s public housing sites in the heart ofNegro slums, releases planning and urban renewal funds to citiesdead-set against integration, and approves the financing ofsuburban subdivisions from which Negroes will be barred.

114 Cong. Rec. 2281 (1968). Senator Brooke later made his charge more pointedly, stating:

Rarely does HUD withhold funds or defer action in the name ofdesegregation. . . . It is clear that HUD is determined to speakloudly and carry a small stick.

Id. at 2527-28. Senator Brooke’s comments, previously cited to this Court in Plaintiffs’ Pre-

See also Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459-61 (1979); Davis v. Sch.9

(continued...)

18

Trial Memorandum, bear repeating here to underscore how little has changed in HUD’s

approach in the nearly forty years since the passage of the Act. Compliance with the

desegregative mandate of the Fair Housing Act is long overdue. This Court should affirm its

finding that HUD’s failure to promote fair housing for African-American public housing

residents is a violation of the law.

III. This Court Should Order the Relief Contained in Plaintiffs’ Proposed Order.

HUD argues that neither the law nor the facts permit the Court to order injunctive relief

to remedy HUD’s violations of the Fifth Amendment and the Fair Housing Act. HUD is

incorrect on both scores.

A. Broad Injunctive Relief Is a Necessary and Proper Remedy for HUD’sFailure to Correct the Harms Caused by its Prior Racial Discrimination.

1. HUD’s No-Remedy Argument Has No Support in the Law.

Injunctive relief is proper and necessary to remedy HUD’s violations of both the Fifth

Amendment and the Fair Housing Act. HUD’s arguments that the Court cannot order a remedy

that includes injunctive relief, and that the Court should instead do nothing more than issue a

declaratory judgment acknowledging that Plaintiffs’ rights have been violated, see Fed. Defs.’

Br. 29, 34, run counter to well-established precedent regarding courts’ remedial powers.

The assertion that no remedy should issue for unconstitutional racial segregation is

squarely foreclosed not simply by Brown v. Board and Bolling v. Sharpe, but also by the core

remedial principle that the Court “has not merely the power but the duty to render a decree which

will so far as possible eliminate the discriminatory effects of the past as well as bar like

discrimination in the future.” Louisiana v. United States, 380 U.S. 145, 154 (1965) (emphasis9

(...continued)9

Comm’rs of Mobile County, 402 U.S. 33, 37 (1971) (“Having once found a violation, the districtjudge . . . should make every effort to achieve the greatest possible degree of actualdesegregation, taking into account the practicalities of the situation. A district court may andshould consider the use of all available techniques . . . . The measure of any desegregation planis its effectiveness.”); Swann, 402 U.S. at 15-16 (“Once a right and a violation have been shown,the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth andflexibility are inherent in equitable remedies.”); Green, 391 U.S. at 437-38 & n.4.

See also Richard H. Fallon, Jr., Marbury and the Constitutional Mind, 91 Cal. L. Rev.10

1, 13-14 (2003) (noting that Marbury established the principle that “courts have no discretion . . .to decline to enforce constitutional rights”); Herbert Wechsler, The Courts and the Constitution,65 Colum. L. Rev. 1001, 1006 (1965) (explaining that Marbury requires courts to enforceconstitutional rights to “give effect to the supreme law of the land”).

19

added); see also Gautreaux, 425 U.S. at 297 (“[I]n the event of a constitutional violation ‘all

reasonable methods [are] available to formulate an effective remedy.’” (quoting N.C. State Bd. of

Educ. v. Swann, 402 U.S. 43, 46 (1971))); Pls.’ Br. 48-51. HUD’s no-remedy argument more

fundamentally runs counter to central tenets of constitutional law established more than two

hundred years ago in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Chief Justice Marshall

described the necessity of enforcing constitutional rights as follows: “The government of the

United States has been emphatically termed a government of laws, and not of men. It will

certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of

a vested legal right.” Id. at 163.10

Injunctive relief is also indisputably proper for HUD’s violation of the Fair Housing Act.

The APA specifically allows for injunctive relief against the United States, see 5 U.S.C. § 702;

Erwin Chemerinsky, Federal Jurisdiction § 9.2.2 (4th ed. 2003); and courts frequently have

reaffirmed the propriety of injunctive relief against HUD for Fair Housing Act violations. See,

e.g., Darst-Webbe Tenant Assoc. Bd. v. St. Louis Hous. Auth., 339 F.3d 702, 713-14 (8th Cir.

2003); NAACP, 817 F.2d at 160; see also Pls.’ Br. 49-50. Indeed, courts have held that declining

to order the injunctive relief necessary to remedy HUD’s violation of the Fair Housing Act is

Even if one accepted HUD’s argument regarding the costs and benefits of equitable11

remedies, that argument would merely support a finding that the Court may (not must) decline toimpose injunctive relief. This Court previously concluded that “HUD has failed adequately toconsider regionalization over the past half-century and, absent judicial compulsion, appears mostunlikely to do so in the foreseeable future.” Thompson, 348 F. Supp. 2d at 464. In light of thisfinding, there would seem to be no basis to decline to impose injunctive relief here.

20

reversible error. See Marable v. Walker, 704 F.2d 1219, 1221 (11th Cir. 1983) (holding that the

district court’s remedy for housing discrimination was insufficient because it “fail[ed] to require

any affirmative act by the defendant to correct the lingering effect of past discriminatory

policies,” and ordering that “[o]n remand the district court should tailor an injunction to more

nearly comply with the relief required in prior cases of this kind”). HUD’s argument against

injunctive relief for HUD’s violations of the Fifth Amendment and Fair Housing Act should be

rejected.

HUD additionally seeks to convince the Court that it may decline to impose injunctive

relief “[w]here the harms . . . outweigh the benefits.” See Fed. Defs.’ Br. 29-30. It is not clear

exactly what creditable harms HUD thinks will ensue from a remedy that disestablishes the

pervasive segregation of African-American public housing residents. In any event, a balancing

of costs and benefits from Plaintiffs’ proposed remedy assuredly tips in favor of eliminating –

instead of maintaining – racial segregation. See Pls.’ Br. 82 (quoting Thompson v. HUD, 200111

WL 1636517, at *16-17 (D. Md. Dec. 12, 2001) (Report and Recommendation) (Grimm, M.J.)).

In Gautreaux, the Supreme Court established that a regional remedy is well within the

scope of a district court’s equitable authority in a case of unconstitutional housing segregation:

[I]t is entirely appropriate . . . to order . . . HUD to attempt tocreate housing alternatives for the respondents in the Chicagosuburbs. Here the wrong committed by HUD confined therespondents to segregated public housing. The relevantgeographic area for purposes of the respondents’ housing optionsis the Chicago housing market, not the Chicago city limits. . . . An

21

order against HUD . . . regulating [its] conduct in the greatermetropolitan area will do no more than take into account HUD’sexpert determination of the area relevant to the respondents’housing opportunities and will thus be wholly commensurate withthe “nature and extent of the constitutional violation.”

Gautreaux, 425 U.S. at 299 (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974)); see also id.

at 306 (“[W]e conclude that a metropolitan area remedy in this case is not impermissible as a

matter of law.”). This Court plainly may exercise its equitable authority in this case.

2. Burford Abstention Does Not Apply.

HUD next makes the mystifying argument that the Court should not order a remedy in

light of the Burford abstention doctrine. See Fed. Defs.’ Br. 30-33. This limited abstention

doctrine has no application whatever here.

In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the Supreme Court held that the district

court should have deferred to Texas state courts for the interpretation and enforcement of Texas

state laws and regulations regarding oil drilling. Id. at 325-32. In subsequent cases, the Court

explicated the Burford abstention principle as follows: “Where timely and adequate state-court

review is available, a federal court sitting in equity must decline to interfere with the proceedings

or orders of state administrative agencies: (1) when there are ‘difficult questions of state law’ . . .

or (2) where the ‘exercise of federal review of the question . . . would be disruptive of state

efforts to establish a coherent policy.’” New Orleans Pub. Serv., Inc. v. Council of New Orleans,

491 U.S. 350, 361 (1989) (NOPSI) (quoting Colo. River Water Conservation Dist. v. United

States, 424 U.S. 800, 814 (1976)). None of these considerations applies to Plaintiffs’ claims.

This case does not challenge a state administrative decision for which state court review would

be proper; this case does not involve complicated interpretations of state law; and federal court

review of federal anti-discrimination law cannot plausibly disrupt any state policy-making

22

efforts.

Assuming that there were applicable state administrative procedures or difficult

interpretations of state law with which this lawsuit conceivably could interfere – a proposition

for which HUD has offered no support – the Supreme Court forty years ago expressly rejected

the very argument that HUD makes here and held that Burford abstention does not apply in

desegregation cases. In McNeese v. Board of Education, 373 U.S. 668 (1963), the Supreme

Court refused to abstain on Burford grounds in a school desegregation case in which the

defendant school board claimed to have recourse to state administrative procedures for handling

the dispute:

We have . . . in the present case no underlying question of statelaw controlling this litigation. The right alleged is as plainlyfederal in origin and nature as those vindicated in Brown v. Boardof Education. Nor is the federal right in any way entangled in askein of state law that must be untangled before the federal casecan proceed. For petitioners assert that respondents have been andare depriving them of rights protected by the FourteenthAmendment. . . . Such claims are entitled to be adjudicated in thefederal courts.

McNeese, 373 U.S. at 674 (internal citations omitted); see also Holmes v. N.Y. City Hous. Auth.,

398 F.2d 262, 265-68 (2d Cir. 1968). The McNeese holding applies with even greater force to

this case, which seeks to remedy discriminatory conduct not by a local school board but by the

federal government itself.

Even in cases in which the factors implicating abstention are present, Burford abstention

is an “extraordinary and narrow exception to the duty of the District Court to adjudicate a

controversy properly before it.” Colo. River, 424 U.S. at 813; see also NOPSI, 491 U.S. at 362.

The argument cannot plausibly be made for applying this “extraordinary and narrow exception”

here, given that none of the factors implicating abstention are present. HUD’s suggestion that

The Fourth Circuit Burford cases that HUD discusses in its Post-Trial Brief are not12

remotely on point. In Johnson v. Collins Entertainment Co., the Fourth Circuit held that becauseof the “intensely state character of th[e] litigation,” the district court’s interpretation of stategambling laws and regulations “supplanted the legislative, administrative, and judicial processesof South Carolina and sought to arbitrate matters of state law and regulatory policy that are bestleft to resolution by state bodies.” 199 F.3d 710, 717, 719-20 (4th Cir. 1999). HUD also citesPomponio v. Fauquier County Board of Supervisors, 21 F.3d 1319 (4th Cir. 1994) (en banc), insupport of its argument that abstention may be proper in cases raising federal constitutionalclaims. The Fourth Circuit made clear, however, that abstention was appropriate in that caseonly because the plaintiff’s claims arose “solely out of state or local zoning or land use law” thatthe plaintiff had “attempt[ed] to disguise . . . as federal claims.” Id. at 1327-28.

23

Burford abstention precludes a remedy in this case must be rejected.12

B. Plaintiffs’ Proposed Order Is an Appropriate Remedy for HUD’sConstitutional and Statutory Violations.

Despite the Court’s authority to order a remedy as broad as necessary to remedy HUD’s

constitutional and statutory violations, HUD raises a host of objections to the Court doing so

here. These arguments take an inappropriately cramped view of the Court’s remedial authority,

overstate the obstacles to an effective remedy, mischaracterize Plaintiffs’ proposal, and misstate

HUD’s ability and duty to use federal housing resources to accomplish desegregation. Many of

HUD’s arguments resemble the discredited objections to school integration made by defenders

of segregated school systems forty or more years ago. None of HUD’s objections excuse HUD

from complying with the Fifth Amendment and Fair Housing Act.

1. Plaintiffs’ Remedy Is Not Only Consistent With But DirectlyAdvances National Housing Policy.

HUD argues that public policy would not be served by remedying the unconstitutional

segregation of African-American public housing residents. Because of the overriding

importance of eliminating the vestiges of HUD’s racial discrimination, and because Plaintiffs’

remedy is directly supportive of national housing policy, this Court should reject HUD’s

arguments.

24

HUD attempts to cast this case as nothing more than an abstract debate between equally

legitimate policy positions about how housing programs ought to be run. See Fed. Defs.’ Br. 35-

36. This argument seems to follow from HUD’s willful ignorance of the present segregated

conditions of African-American public housing residents. The maintenance of segregation is not

a legitimate policy position. HUD’s own witnesses conceded what HUD’s counsel will not –

that HUD can and must act to eliminate the present racial segregation caused by its past

discriminatory practices. See, e.g., Trial Tr. 2209-10 (Walsh); Trial Tr. 2056, 2061 (Halm).

Plaintiffs’ proposed remedy is not, as HUD alleges, a vehicle to effectuate the policy

priorities of Plaintiffs’ expert witnesses. The proposed remedy is, first and foremost, designed to

accomplish the remedial mandate articulated by the Supreme Court to “restore the victims of

discriminatory conduct to the position they would have occupied in the absence of such

conduct,” Milliken, 418 U.S. at 746, and to use “all available techniques” to “achieve the greatest

possible degree of actual desegregation,” Davis, 402 U.S. at 37. The remedy relies on the

accumulated expertise of Plaintiffs’ witnesses to overcome the obstacles to desegregation

currently posed by HUD’s programs and decisionmaking processes, and to identify the

appropriate levers to pull to accomplish desegregation most effectively. The remedy thus

follows the maxim that “the scope of the remedy is determined by the nature and extent of the

constitutional violation.” Milliken, 418 U.S. at 744.

Far from being inconsistent with public policy, Plaintiffs’ proposed remedy – with its

emphasis on achieving desegregation through moves to high-opportunity areas – directly

effectuates central purposes of federal housing policy. Numerous federal statutes and HUD

regulations reflect the judgment of Congress and HUD that there is a geography of opportunity,

and that among the goals of federal housing policy are to deconcentrate race and poverty and to

Richard Kennedy, the director of HUD’s Office of Block Grant Assistance (which13

administers the CDBG program), was asked about Plaintiffs’ proposed requirement thatdisbursements of CDBG assistance be conditioned on a certain level of investment incommunities of opportunity, and testified that such a requirement was “clearly” consistent withthe purposes of the CDBG statute: “Q: In terms of the fit between that proposed requirement andthe statutory national objectives embodied in the CDBG statute, well, what is that fit? A: Well,these activities would clearly benefit the national objective of benefitting low and moderateincome persons.” Trial Tr. 1765 (Kennedy).

25

facilitate moves to high-opportunity areas. See Pls.’ Br. 63 & n.50 (listing statutes and13

regulations). The Supreme Court has ratified this approach, holding that “[a]n order directing

HUD to use its discretion under the various federal housing programs to foster projects located

in white areas of the Chicago housing market would be consistent with and supportive of well-

established federal housing policy.” Gautreaux, 425 U.S. at 301-03 (citing statutes and

regulations).

Contrary to the evidence from Chicago and elsewhere, including the Partial Consent

Decree (“PCD”) in this case, HUD argues that Plaintiffs’ proposed remedy is either unlikely to

achieve desegregation or is unlikely to accomplish the national goal of deconcentrating race and

poverty. In making this argument, HUD seeks to undermine the Gautreaux remedial approach

on which Plaintiffs’ remedy is partially based. See Fed. Defs.’ Br. 37-38. But HUD ignores its

own witnesses – including Prof. Schuck, Prof. Rohe, and Dr. Shroder – who have praised the

Gautreaux approach. See Trial Tr. 1926 (Schuck); Peter H. Schuck, Diversity in America 227,

259 (2003); FDR-5, Rohe Written Test. 4-5; PX-817, Mark Shroder, Moving to Opportunity: An

Experiment in Social and Geographic Mobility, Cityscape: J. Pol’y Dev. & Res., vol. 5 no. 2, at

57 (2001) (“The Gautreaux initiative in Chicago, a court-ordered remedy for segregation in that

city’s public housing program, produced striking evidence for neighborhood impacts.”). HUD

also ignores the testimony of Plaintiffs’ witnesses who already have benefitted from moves

HUD further suggests that the unpredictability of individuals’ reactions to a court order,14

and the possibility that white families will leave if public housing families move nearby, weighsagainst the entry of a remedial order. Fed. Defs.’ Br. 40, 43 n.14. This argument ignoresdecades of case law rejecting the “white flight” objection in school desegregation orders. See

(continued...)

26

under the PCD. See Pls.’ Br. 60 n.47; SOF ¶¶ 276-77. HUD’s assertion more generally is

contradicted by the unassailable proposition that neighborhoods matter, see Pls.’ Br. 60 & n.47,

and that a desegregation remedy that focuses on high-opportunity areas is the most effective way

to remedy the harms caused by the unlawful discrimination.

By giving Baltimore City public housing residents the opportunity to move to parts of the

Baltimore Region to which they hitherto have been denied access, Plaintiffs’ proposed remedy

not only is tailored to the scope of the violation, but also is consistent with and supportive of

national housing policy. At the same time, HUD has failed to articulate any policy goals that

possibly could be served by maintaining the segregation of African-American public housing

residents in the ghettos of Baltimore City. This Court should reject the argument that public

policy does not call for a remedy to unlawful racial segregation.

2. Housing Segregation Is Not Too Complex for Judicial Resolution.

HUD argues that housing markets are so complex that a judicial remedy to housing

segregation would be improper. See Fed. Defs.’ Br. 38-42. The Supreme Court has held that the

complexity of remedying segregation is not a basis for evading the constitutional mandate:

Brown II was a call for the dismantling of well-entrenched dualsystems tempered by an awareness that complex and multifacetedproblems would arise which would require time and flexibility fora successful resolution. School boards such as the respondent thenoperating state-compelled dual systems were nevertheless clearlycharged with the affirmative duty to convert to a unitary system inwhich racial discrimination would be eliminated root and branch.

Green, 391 U.S. at 437-38 (emphasis added).14

(...continued)14

Monroe v. Bd. of Comm’rs, 391 U.S. 450, 459 (1968) (“We are frankly told . . . that without thetransfer option it is apprehended that white students will flee the school system altogether. ‘Butit should go without saying that the vitality of these constitutional principles cannot be allowedto yield simply because of disagreement with them.’” (quoting Brown II, 349 U.S. at 300));Walker v. County Sch. Bd., 413 F.2d 53, 54 (4th Cir. 1969). Moreover, the likelihood of whiteflight has diminished considerably as white residents have become more accepting of blackneighbors. Trial Tr. 1470-71, 1512 (Charles); Trial Tr. 1001-05 (Queale).

27

The complexity of disestablishing vestiges of segregation is dealt with not by leaving the

status quo undisturbed, as HUD would have this Court do, but rather by monitoring compliance

with the remedy and adjusting the relief if necessary to account for any unforeseen changes in

circumstances. Equitable relief is flexible, and this Court has the “inherent capacity to adjust

remedies in a feasible and practical way to . . . redress the injuries caused by unlawful action.”

Thompson v. HUD, 404 F.3d 821, 830 (4th Cir. 2005); see also Freeman, 503 U.S. at 487

(stressing the flexibility of equitable relief). This Court therefore should address possible

obstacles to an effective remedy not by throwing up its hands and ignoring the unconstitutional

status quo, but instead by adopting a remedy – such as Plaintiffs’ proposed order – that is

designed with possible obstacles in mind, sets the necessary outcomes as goals, and monitors

implementation to ensure effective elimination of the vestiges of segregation. See Raney v. Bd.

of Educ., 391 U.S. 443, 449 (1968) (“In light of the complexities inhering in the disestablishment

of state-established segregated school systems, Brown II contemplated that . . . [district courts

should] retain jurisdiction until it is clear that disestablishment has been achieved.”).

In addition to evading the command of the Constitution and the Fair Housing Act,

HUD’s argument would improperly reward racial discrimination by absolving the worst

discriminators of the obligation to remedy the harms they imposed. HUD argues, in effect, that

the more pervasive and systemic the racial discrimination, the less able courts are to remedy it.

28

As the Supreme Court made clear in Green, the Constitution requires otherwise.

HUD also raises the specter that this Court could enter a decree that might “make matters

worse for members of the plaintiff class.” Fed. Defs.’ Br. 41. Isaac Neal testified that living on

Montford Avenue was “hell.” Trial Tr. 2655 (Neal). Numerous class members testified about

their daily exposure to violence and drugs, about infestation by cockroaches and other pests in

their homes, about their isolation from employment, about concern for the lives of their children,

about despair and hopelessness. See Trial Tr. 443 (Brooks); Trial Tr. 560-61, 564-66 (Dickey);

Trial Tr. 666-70 (Abayomi); Trial Tr. 890-91, 901-02 (Williams); Liability Trial Tr. 640-43

(Leighton); Liability Trial Tr. 668-69 (Davis); Liability Trial Tr. 683-96 (Isaac Neal); Liability

Trial Tr. 712-30 (Ishad Neal). It is hard to see how a remedy to the racial segregation that has

caused these harms could possibly make the lives of class members worse. The testimony of

Mr. Neal and others regarding the benefits obtained from the remedies provided under the PCD

offers powerful evidence to the contrary. See, e.g., SOF ¶¶ 276-77.

3. HUD’s Criticisms of Plaintiffs’ Opportunity Approach Are Invalid.

HUD criticizes Plaintiffs’ opportunity-based remedial approaches for a number of

reasons, all of which are without merit.

HUD first argues that Plaintiffs’ definition of communities of opportunity is “race-

conscious,” and that a “race-conscious approach is not permissible as a matter of constitutional

law.” Fed. Defs.’ Br. 43-44. HUD mischaracterizes the proposed remedy, which does not

define opportunity areas based on race; and HUD misstates the law, as there is no such

categorical bar to race-conscious remedies.

Plaintiffs have developed a race-neutral definition of “communities of opportunity” that

does not define opportunity areas based on neighborhood racial composition. See PX-766,

HUD makes much of the fact that Prof. powell testified at trial that the remedy should15

be race-conscious. Fed. Defs.’ Br. 43-44. As Prof. powell’s testimony makes clear, his use ofthe term “race-conscious” to describe the remedy refers only to the importance of assessing theeffectiveness of the remedy and ensuring that it does not result in resegregation. See PX-766,powell Written Test. at i-ii; Trial Tr. 309-12 (powell); Pls.’ Br. 61-62 & nn.48-49.

29

powell Written Test. 29-33; Trial Tr. 354 (powell). Prof. powell considered data regarding

educational opportunity, employment opportunity, and community safety. None of these data

mention race. If HUD is making the unremarkable suggestion that communities of highest

poverty and highest concentrations of African-American population tend to rank low on Prof.

powell’s indices of opportunity, that is precisely the point. HUD’s observation does not convert

Prof. powell’s factors to racial ones; rather it demonstrates why members of the Plaintiff class

should not be confined to the poorest, blackest, lowest-opportunity areas of Baltimore City and

Region. Plaintiffs’ proposed remedy therefore need not be evaluated under strict scrutiny, and

HUD’s argument that the remedy is impermissibly race-conscious should be rejected. See, e.g.,15

Walker v. City of Mesquite, 402 F.3d 532, 534-36 (5th Cir. 2005).

Even if Plaintiffs’ remedy were race-conscious, HUD is incorrect in asserting that such

an approach would be impermissible. The Supreme Court repeatedly has held that race-

conscious remedies for prior discrimination are permissible if they are narrowly tailored to serve

a compelling state interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003); United

States v. Paradise, 480 U.S. 149, 166-70 (1987) (plurality opinion of Brennan, J.). Remedying

prior discrimination is undoubtedly a compelling state interest. See Grutter, 539 U.S. at 328;

Paradise, 480 U.S. at 166; Sheet Metal Workers v. EEOC, 478 U.S. 421, 480 (1986) (“We have

consistently recognized that government bodies constitutionally may adopt racial classifications

as a remedy for past discrimination.” (citing cases)). In assessing whether a race-conscious

remedy is narrowly tailored to serve this compelling interest, however, the Supreme Court has

After entering a remedial order, this Court will retain its inherent capacity to adjust the16

order, as discussed in Part III.B.2 above. If Plaintiffs’ race-neutral definition of communities ofopportunity does not in fact make progress toward achieving the desegregation of African-American public housing residents, the Court could then order a race-based remedy to movepublic housing families to predominantly-white neighborhoods, because at that point a race-neutral remedy would have been attempted and found ineffective. See, e.g., Grutter, 539 U.S. at340 (holding that race-conscious provisions of the law school’s admissions policy were narrowlytailored because, inter alia, “the Law School sufficiently considered workable race-neutralalternatives”); Paradise, 480 U.S. at 162-65 (approving a race-conscious remedy in part becauseless restrictive alternatives had been attempted without success); United States v. HUD, 239 F.3d211, 219-20 (2d Cir. 2001) (approving race-conscious remedies in the Yonkers desegregationlitigation because public housing remained substantially segregated even after extensive race-neutral remedial efforts).

30

advised lower courts to consider the necessity of a race-based remedy and the efficacy of

alternative remedies – that is, to assess whether a race-neutral approach can be as effective a

remedy as a race-conscious approach. Paradise, 480 U.S. at 171. Plaintiffs’ communities of

opportunity approach is based on this guidance – Plaintiffs believe, at this point, that the race-

neutral opportunity approach can have the effect of desegregating public housing. See Pls.’ Br.16

61-62. HUD’s objection to the constitutionality of Plaintiffs’ communities of opportunity

approach is without merit.

HUD next criticizes Prof. powell’s opportunity-based remedial approach for failing to

include certain factors that he could have included (such as the location of parks, hospitals, and

public swimming pools). Fed. Defs.’ Br. 47-49 & n.16. But HUD has not demonstrated or even

argued that these criticisms render the set of neighborhoods identified by Prof. powell’s

definition either over-inclusive or under-inclusive in any meaningful way. As the Court noted,

the types of changes HUD proposes may affect a few census tracts at the margins but will not

change the core distribution of opportunity that is apparent to anyone familiar with the Baltimore

Region. See Trial Tr. 363-64 (Judge Garbis) (“[W]e could nitpick as long as we have time on

whether [Prof. powell] should have included a 15th factor and subtracted number 12. . . . But by

HUD also criticizes Prof. powell’s analysis for relying on census data. See Fed. Defs.’17

Br. 48. HUD does not explain why, if census data are such a poor source of demographicinformation, HUD relies on such data so extensively in the operation of HUD programs. Censusdata are required, for example, in calculating funding allocations for CDBG grants, HOMEgrants, and Section 8 vouchers; determining eligibility for CDBG grants, HOME grants, andLIHTC credits; establishing FMRs; determining income limits for program participation; andimplementing site and neighborhood standards. See The American Community Survey:Challenges and Opportunities for HUD 31-40 (2002) (HUD-contracted study evaluating HUD’sreliance on census data), available at http://www.huduser.org/publications/polleg/acs.html.

31

and large, the hard core is, it’s going to be pretty bloody obvious that for the most part

everybody understand[s] what are the high opportunity areas and what are not.”).17

HUD finally argues that Prof. powell’s analysis does not provide the Court with enough

information to identify communities of opportunity. See Fed. Defs.’ Br. 49. This is incorrect.

Plaintiffs’ Proposed Order not only defines communities of opportunity with reference to Prof.

powell’s analysis, but also lists the individual census tracts that meet Prof. powell’s definition.

See Proposed Order § I.D & app. A (docketed at Paper 817).

HUD intentionally segregated African-American public housing residents in

impoverished African-American neighborhoods. The law commands that this wrong be

remedied with effective desegregation. The communities of opportunity approach is designed to

desegregate public housing in a manner that redresses the harms that class members have

suffered, places class members as nearly as possible in the position they would have occupied

absent discrimination, avoids reconcentration of poverty and disruption to receiving

neighborhoods, responds to the Supreme Court’s preference for race-neutral remedies where

possible, and effectuates the central goals of national housing policy.

4. The Proposed Remedy Expands Plaintiffs’ Choices.

Locational targeting of the remedial vouchers would expand, not reduce, the

neighborhoods effectively available to African-American public housing families. In the

And for class members who would nonetheless prefer a regular Section 8 voucher,18

applying for a remedial voucher would not cause those families to lose their place on the regularSection 8 waiting list. Proposed Order § IV.D.9.

Locational targets apply only to the use of remedial vouchers by families who19

voluntarily participate. Proposed Order § IV.D.4. Plaintiffs’ proposal provides that locationaltargets would not apply to Thompson class members who are involuntarily displaced (as, forexample, through demolition of public housing) and who receive a voucher as a form ofrelocation housing. Id.

32

absence of locational targeting, HUD’s regular Section 8 vouchers constrain housing choice and

cause racial segregation because of administrative obstacles, lack of information, lack of

transportation, discrimination, and other factors. See Pls.’ Br. 24-31, 57-61; Thompson, 348 F.

Supp. 2d at 460. HUD’s argument that remedial vouchers would require class members to forgo

meaningful alternatives, see Fed. Defs.’ Br. 42-47, ignores the reality that African-American

voucher users in the Baltimore Region do not presently possess unfettered or informed choice to

use their vouchers wherever they wish. Plaintiffs’ remedial proposal including locational18

targets thus expands housing choice over the status quo by actually delivering housing

opportunities in high-opportunity neighborhoods instead of offering merely the empty promise

of voucher portability. See Trial Tr. 1024 (Briggs). As Dr. Briggs explained, the Baltimore

Region is large enough that “even with several locational guidelines or targeting features focused

on maximizing access to opportunity communities, one could have dozens of choices, depending

on how large a pool of landlords is developed . . . if you’re talking about a regional approach.”

Id. In addition, Plaintiffs have proposed that the remedial vouchers be targeted to communities

of opportunity for the initial year of occupancy only. Proposed Order § IV.D.4.19

HUD also argues that Plaintiffs’ proposal should be rejected because it does not provide a

remedy for every class member – HUD claims that Plaintiffs’ proposal does not benefit those

who want to remain in public housing. Fed. Defs.’ Br. 44-45. This assertion is factually

33

incorrect. Numerous provisions of Plaintiffs’ Proposed Order would benefit all class members,

whether or not they choose to move to opportunity neighborhoods. The proposed Affordable

Housing Desegregation Plan, for example, requires HUD to identify steps it will take to ensure

fair housing consideration in decisions relating to the demolition or disposition of public

housing, approval of PHA five-year plans, and decisions that affect users of and applicants for

regular Section 8 vouchers (not just remedial vouchers). Proposed Order §§ I.G.1-6; II.D.8.

Plaintiffs’ proposal also requires HUD to ensure that all local grantees and PHAs – including

HABC – are taking meaningful steps to affirmatively further fair housing, and requires HUD to

discourage assisted housing development in impacted areas unless that development also

involves certain revitalization efforts. Id. § III.A.1. These requirements would benefit class

members who choose not to move out of public housing or into opportunity neighborhoods.

Those class members would also benefit from the deconcentration of poverty that would result

when a substantial number of their poorest neighbors move away as a result of the proposed

remedy. Trial Tr. 330 (powell).

Moreover, there is no legal basis for HUD’s objection – HUD has pointed to no case law,

and Plaintiffs are aware of none, that would require the remedy to offer moves to opportunity

areas to every member of the Plaintiff class. The proper scope of a remedy for unconstitutional

discrimination is to put victims of discriminatory conduct in the position they would have

occupied absent the unlawful conduct. Milliken, 418 U.S. at 746. Absent HUD’s unlawful

segregation of black public housing families, many of those families – though not all – would

now live in high-opportunity neighborhoods in the suburbs. Others would not, either by choice

or because some public housing would still have been created in poor black neighborhoods in the

City. Indeed, Plaintiffs’ proposal is precisely designed to address these differences: Plaintiffs

The Supreme Court also held that class certification was improper because the Rule20

23(b)(3) predominance requirement was not met. Amchem, 521 U.S. at 622-25 (noting thatindividual questions such as the extent of exposure and injury overwhelmed common questionsof fact). The predominance requirement does not apply in this case because the Thompson classwas certified under to Rule 23(b)(2), not Rule 23(b)(3). See Thompson v. HUD, Civ. No. MJG-95-309, Order Certifying Class & Approving Partial Consent Decree, at 1-2 (June 25, 1996)(Paper 54); Pls.’ Am. Compl. ¶¶ 28, 30(d) (Paper 280). Even if the predominance requirementof Rule 23(b)(3) did apply, common questions of law and fact do predominate here. A remedyfor HUD’s unconstitutional and unlawful housing discrimination does not entail the same kind ofconsideration as the review of the individualized health and exposure circumstances of the“perhaps millions” of class members that concerned the Court in Amchem, 521 U.S. at 597.

34

calculated the number of desegregative housing opportunities that should be included in the

remedy by making the reasonable assumption that the housing choices of public housing

residents in the Baltimore Region would have mirrored the housing choices of families of

limited means on the private rental market. Pls.’ Br. 55-56. Because HUD’s discrimination

deprived those class members who would have chosen suburban, non-segregated housing of the

opportunity to do so, Plaintiffs’ remedial proposal is properly aimed at rectifying the harm by

providing that opportunity.

Because Plaintiffs are all similarly situated and all will have a similar chance to benefit

from the remedy, the fact that not all will in fact move to a community of opportunity does not

create any conflict among class members and so does not violate the precepts of Amchem

Products, Inc. v. Windsor, 521 U.S. 591 (1997). Amchem held that certification of a settlement

class in consolidated asbestos litigation was improper because the class did not meet the Rule

23(a)(4) “adequacy of representation” requirement. Amchem, 521 U.S. at 625-28. The Court20

explained that the class contained distinct subclasses – parties who currently had asbestos-related

illnesses, and parties who had asbestos exposure but no current injuries – and that the interests of

the distinct subclasses could not be reconciled: “[F]or the currently injured, the critical goal is

generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in

35

ensuring an ample, inflation-protected fund for the future.” Id. at 626. HUD claims that the

instant case is like Amchem because Plaintiffs’ proposal “creat[es] a remedy only for those class

members who decide to live where plaintiffs’ experts think they should live.” Fed. Defs.’ Br. 45.

There is no intra-class conflict here that even remotely implicates the Supreme Court’s concerns

in Amchem. All Thompson Plaintiffs have suffered the same harm: denial of the opportunity to

live, if they chose to do so, in non-segregated areas of the Baltimore Region. And all will have

an equal opportunity to access the desegregative remedies, even though some may not take

advantage of that opportunity. As described in Part III.B.3 above, the communities of

opportunity approach identifies neighborhoods that can serve to desegregate public housing. A

remedy for segregation must involve desegregative effect, and providing remedial housing

opportunities in desegregative neighborhoods hardly can be said to create class conflict.

As shown by the testimony of Plaintiffs’ fact witnesses and experts, locational targets

work well for African-American public housing families, disproving HUD’s argument that racial

housing preference patterns render locational targets unworkable. See Fed. Defs.’ Br. 46-47.

The evidence shows not only that low-income African-Americans generally prefer more

integrated neighborhoods than the ones in which they currently reside (especially when their

current neighborhoods are nearly entirely black, as is the case for Baltimore City public housing

residents), but also that school quality, employment opportunities, safety, neighborhood quality,

and numerous other factors are higher priorities than neighborhood racial composition in making

residential decisions. See Trial Tr. 1471-73, 1482-83, 1517-18 (Charles); Trial Tr. 313 (powell);

PX-764, Briggs Written Test. 21; PX-770, DeLuca Written Test. 20-21; see also SOF ¶¶ 292-94.

A number of African-American witnesses testified at trial that they have chosen to move

to predominantly white neighborhoods to improve their lives and provide a better environment to

36

their families. Reverend Kwame Abayomi testified that he and African-American members of

his congregation moved to neighborhoods that offered them better education, jobs, and safety.

Trial Tr. 672-76 (Abayomi). Reverend Johnny Golden testified that low-income black families

in his congregation moved to white neighborhoods in the suburbs. Trial Tr. 702-03 (Golden).

And former residents of Baltimore City public housing who moved to the suburbs on a PCD

voucher testified that safety, schools, and neighborhood quality, rather than racial composition,

motivated their moves to predominantly white neighborhoods. See Trial Tr. 562-63 (Dickey);

Trial Tr. 897-99 (Robinson); Trial Tr. 2657-64 (Neal); see also SOF ¶¶ 290-91. These witnesses

testified as well that they have been welcomed warmly by their new neighbors. See Trial Tr.

562-63 (Dickey); Trial Tr. 897-99 (Robinson); Trial Tr. 2657-64 (Neal).

5. HUD Has Both the Authority and the Ability to Use its Leverage OverGrant Programs in the Service of a Remedy.

In Hills v. Gautreaux, the Supreme Court unanimously rejected each argument that HUD

makes here regarding HUD’s purported lack of leverage to influence local jurisdictions. In its

losing effort thirty years ago in Gautreaux, HUD asserted the same three arguments that it raises

now – that HUD has no ability to influence what local jurisdictions do with federal housing

funds; that any efforts to assert the leverage HUD does have are not likely to be effective; and

that it is unfair to impose conditions on local actors who are not parties to the case. The reasons

for rejecting these arguments will be discussed in turn below.

HUD’s first argument is that it has no statutory power to affect the actions of local

jurisdictions, or to condition the receipt of federal funds on compliance with civil rights

requirements. HUD claims that the various funding statutes at issue give local recipients the

prerogative to determine how those funds will be spent. Fed. Defs.’ Br. 50-53. HUD made this

argument unsuccessfully to the Supreme Court in Gautreaux. See Brief for the Petitioner at 29,

37

Hills v. Gautreaux, 425 U.S. 284 (1975) (No. 74-1047) [attached hereto as Appendix A] (“An

inter-district remedy here would be contrary to the statutory scheme, which reserves to the local

community the decision whether to participate in federally funded public housing programs.”);

see also id. at 31-34 (arguing that the “practical operation” of many HUD-funded programs is

“in a significant degree [] under local control.”). The Court rejected this argument and held that

the district court could order a regional remedy requiring HUD to impose and enforce civil rights

conditions on the use of federal housing funds:

[A] metropolitan area relief order directed to HUD . . . wouldneither force suburban governments to submit public housingproposals to HUD nor displace the rights and powers accordedlocal government entities under federal or state housing statutes orexisting land-use laws. The order would have the same effect onthe suburban governments as a discretionary decision by HUD touse its statutory powers to provide the respondents withalternatives to the racially segregated Chicago public housingsystem . . . .

Gautreaux, 425 U.S. at 305-06. Numerous federal court decisions since Gautreaux have

followed this holding and approved orders requiring HUD to condition federal funds on

compliance with remedial desegregation obligations. See, e.g., NAACP, 817 F.2d at 155, 157

(“Clearly, HUD possesses broad discretionary powers to develop, award, and administer its

grants and to decide the degree to which they can be shaped to help achieve Title VIII’s goals.”);

Shannon, 436 F.2d at 816, 820-23; NAACP v. Kemp, 721 F. Supp. 361, 367 (D. Mass. 1989)

(“[HUD’s] control of current and future [CDBG] grant funds gives the agency leverage to

remedy past and current noncompliance with fair housing goals.”).

These judicial findings simply confirm the argument Plaintiffs already have made that

the statutory and regulatory provisions governing federal housing funds (whether public housing

funds, Section 8 voucher funds, CDBG grants, HOME grants, or other programmatic funding

38

sources) provide HUD with tremendous leverage to ensure that grantees and PHAs use those

funds in a manner that furthers fair housing and complies with the duty to desegregate under the

Fifth Amendment. See Pls.’ Br. 73-75. HUD’s argument rests on the assertion that there is

nothing wrong with how federal housing funds have been spent to date; the Court’s finding of

Fair Housing Act liability and its finding that HUD has not eliminated the vestiges of past

segregation demonstrate that that assertion is incorrect. Enforcement of the long-standing

requirement that HUD funds be used to promote fair housing is thus a proper component of the

remedy here, and would not deprive local jurisdictions of the appropriate level of flexibility

under current funding statutes.

HUD next argues that any efforts to assert its leverage – leverage that it has claimed,

contradictorily, not to have – will not be effective. HUD contends that if it attempts to influence

the behavior of local grantees, those jurisdictions “may turn down grant money if they are not

interested in complying with whatever conditions HUD imposes.” Fed. Defs.’ Br. 53-54. HUD

made this precise claim to the Supreme Court in Gautreaux. See Brief for the Petitioner at 30,

Gautreaux, 425 U.S. 284 (No. 74-1047) (“[R]eluctance to participate in a metropolitan area-wide

plan designed to remedy the effects of discrimination in Chicago may lead suburban

communities to refrain from applying to HUD for public housing assistance.”). Not only did the

Supreme Court reject this argument in authorizing a remedy that placed civil rights conditions on

the receipt of CDBG funds, see Gautreaux, 425 U.S. at 303-06, but the experience of

implementing the Gautreaux remedy disproved HUD’s concern (and discredits HUD’s attempt

to reassert the argument now). HUD correctly notes that some jurisdictions in Chicago turned

down grant money to avoid participating in the remedy. See Fed. Defs.’ Br. 53; Trial Tr. 2515-

16 (Rohe). But HUD fails to tell this Court that the number of jurisdictions that turned down

The seminal analysis of the implementation of the Gautreaux remedy similarly notes21

that “[m]ost of the Chicago area’s eligible municipalities, as well as all four of the region’seligible counties, applied for CDBG funds and developed the required housing plans. However,five Chicago suburbs turned down CDBG funds so they would not have to accommodate low-income minorities as residents.” Leonard S. Rubinowitz & James E. Rosenbaum, Crossing theClass and Color Lines: From Public Housing to White Suburbia 46 (2000).

Moreover, HUD actions to comply with a remedial decree in this case would carry the22

substantial force of a federal court order, increasing the likelihood of local cooperation. SeeClients’ Council v. Pierce, 711 F.2d 1406, 1426 (8th Cir. 1983) (directing HUD to imposecertain requirements on the local PHA, and noting that the court had “no reason to believe thatthe [PHA would] refuse to comply with a specific directive issued by HUD at the direction of thedistrict court”); cf. Walker 1997 Remedial Order, at 2-3 (¶¶ A.3-A.5) (requiring HUD to requestthat suburban jurisdictions enter into cooperation agreements for the development of suburbanpublic housing units, and directing HUD to consider initiating a civil rights investigation if anyjurisdiction refused the request).

39

funds was a small fraction of the total number of jurisdictions involved in implementing the

Gautreaux remedy. There were more than two hundred participating municipalities in the

Chicago housing market area. See Brief for the Petitioner at 36, Gautreaux, 425 U.S. 284 (No.

74-1047). Of those two hundred local actors, just five decided to forfeit federal funds to avoid

having to participate in the remedy. Trial Tr. 2515-16 (Rohe) (“[I]n Gautreaux, in Chicago,

there were five communities that decided not to participate, and actually gave up their [CDBG]

dollars because they were not willing to participate.”). This works out to a participation rate of21

over 97% – hardly an indictment of HUD’s ability to attain local cooperation in desegregation

remedies. The experience of implementing the desegregation remedy in Gautreaux does not

support HUD’s warning to this Court regarding the extent of HUD’s ability to achieve local

cooperation.22

Finally, HUD argues that it is unfair or unlawful to impose conditions on local

jurisdictions that are not parties to the case. See Fed. Defs.’ Br. 34, 49, 74-75. Again,

Gautreaux squarely precludes this argument – the Supreme Court held that a metropolitan-area

remedy requiring HUD to act in certain ways outside the city of Chicago would not

40

impermissibly interfere with the authority of local jurisdictions, because those jurisdictions were

not required to apply for or receive federal funds and could be held to constitutional and

statutory civil rights requirements if they did so. Gautreaux, 425 U.S. at 300-06.

A subsequent housing desegregation lawsuit in East Texas applied this holding from

Gautreaux to explain the permissibility of remedial elements that required HUD to impose

conditions on local jurisdictions:

[T]he interim injunction is directed solely to HUD, whoseconstitutional violations form the “necessary predicate” for theremedies formulated. . . . [T]he injunction does not coerce“uninvolved governmental units” to do anything. It does not alterthe constitutional, statutory, or regulatory ground rules that longhave governed – or, at least, should have governed – HUD’srelationships with its clients. Nor does it force unwilling localgovernments, PHAs, or others, to apply for, or continue to receive,HUD assistance.

Young v. Pierce, 685 F. Supp. 975, 981 (E.D. Tex. 1988) (quoting Gautreaux, 425 U.S. at 297);

see also Young v. Pierce, 685 F. Supp. 986, 987-90 (E.D. Tex. 1988) (Interim Injunction).

Likewise, the remedy here does not alter the constitutional, statutory, and regulatory framework

that long should have – but has not – governed HUD’s relationship with its grantees in the

Baltimore Region. Nor does the remedy force grantees to apply for or continue to receive

federal funds.

Plaintiffs’ proposed remedy makes permissible use of HUD’s leverage over local

jurisdictions in the Baltimore Region and requires only that HUD enforce the desegregative

mandate that should have been pursued all along through the use of federal funds.

6. Hard Units Are an Appropriate Component of the DesegregationRemedy in this Case.

HUD argues that this Court should not include hard units in the remedy. See Fed. Defs.’

Br. 55-58. Plaintiffs presented extensive evidence at trial demonstrating the need to include hard

41

units to provide homes to large families and to assure availability if the rental market tightens.

See, e.g., Trial Tr. 92-100 (Khadduri); Trial Tr. 317-18 (powell); Trial Tr. 391-92 (Basu); Trial

Tr. 1038 (Briggs); PX-765, Khadduri Written Test., at rebuttal 3; see also Pls.’ Br. 67-70; SOF

¶¶ 315-17. HUD says nothing to rebut this evidence, but instead argues only that there are

difficulties associated with including hard units.

HUD speculates that local actors may not be willing to make hard units in their

jurisdictions available to African-American public housing residents from Baltimore City. Fed.

Defs.’ Br. 56-57. But HUD is the source of the funds being used to create these units, and as

such HUD must wield its leverage in a way that ensures compliance with civil rights

requirements. The discussion in the preceding section refutes HUD’s claim that it has no ability

to influence the decisions of state and local actors. Moreover, the possibility that another actor

may resist civil rights requirements does not absolve HUD of its obligation to take all necessary

steps to eliminate the effects of its past discrimination. See Gautreaux v. Romney, 448 F.2d 731,

738-39 (7th Cir. 1971).

HUD also suggests that hard units should not be developed outside Baltimore City

because of the possibility that the “best” tenants will leave the City and the “worst” tenants will

remain behind (an argument HUD has termed “creaming”). This speculative argument is in fact

contradicted by the experience of both the Gautreaux program and the MTO demonstration. Dr.

Stefanie DeLuca testified that results from the Gautreaux remedy showed that families who

moved out of segregated public housing were very similar to the families who did not choose to

move. See Trial Tr. 879 (DeLuca) (“[W]e do know that these families [who moved] are not the

cream of the crop. These are families that are really similar to other very poor low income black

families who have lived a large portion of their lives in public housing.”). MTO research shows

42

that successful movers actually had lower incomes, were less likely to be employed, and were

more likely to receive welfare than families in the control group. See FDR-32, HUD, MTO

Current Status and Initial Findings 31-32 & tbl.5 (Sept. 1999) (“The families that elected to join

MTO are thus not the highest-income families nor the ones with the most employment: MTO has

not ‘creamed’ from the public housing population.”). Dr. Jill Khadduri similarly testified that

HUD’s “creaming” argument is factually flawed, not least because it assumes that the

characteristics that make families “good” or “bad” tenants are immutable. See PX-765,

Khadduri Written Test., at rebuttal 10. In any event, HUD may not evade its desegregative

obligations on the speculative ground that hard-to-serve populations of public housing families

may require additional assistance. Prof. Rohe himself, the source of HUD’s “creaming”

argument, testified that it is not legitimate to “keep people in central city developments just for

the sake of keeping a healthy environment.” Trial Tr. 2550 (Rohe) (agreeing that “families who

want to move should not be required to stay to prevent creaming”).

7. The Possibility That a Remedy Will Cost Money to Implement Is Nota Barrier to Ordering Relief.

HUD claims that this Court may not order a remedy that will cost money to implement.

HUD’s argument is so broad that it would bar injunctive relief against government actors in all

cases.

HUD first suggests that the Appropriations Clause of the Constitution might bar

injunctive relief in this case. See Fed. Defs.’ Br. 58. The Appropriations Clause states: “No

Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

U.S. Const. Art. I, § 9, cl. 7. As demonstrated by the cases that HUD cites, the Supreme Court

and lower courts have applied the Appropriations Clause to preclude courts from ordering the

payment of money damages when no express congressional appropriation exists, or to preclude

HUD also cites Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), for23

the premise that Congress has exclusive authority to appropriate public funds. See Fed. Defs.’Br. 58. Richmond involved a former federal employee’s claim that he was entitled to an annuityfrom the government. Richmond, 496 U.S. at 417-18. In applying the Appropriations Clause tobar such a payment, the Supreme Court held that the employee could not receive a payment ofmoney that was “in direct contravention of the federal statute upon which his ultimate claim tothe funds must rest.” Id. at 424. Richmond is inapplicable here – Plaintiffs do not seek apayment of money, much less a payment of money that is directly foreclosed by federal statute,but instead seek injunctive relief. For this Court to order injunctive relief would not usurpCongress’s role in appropriating public funds.

43

courts from extending a specific appropriation past its expiration. Neither circumstance is

present in Plaintiffs’ proposed remedy.

HUD cites National Association of Regional Councils v. Costle, 564 F.2d 583 (D.C. Cir.

1977) (NARC), for the proposition that courts may not order the obligation of public funds. See

Fed. Defs.’ Br. 58, 71-72. NARC concerned unspent funds that Congress appropriated to EPA

for a water quality program in 1972. EPA delayed implementation of the program and by 1975,

when the plaintiffs filed suit, EPA’s statutory budget authority for the preceding years had gone

unspent. The district court ordered EPA to spend the specific allocation of money for the prior

years, even though the budget authority had lapsed. The D.C. Circuit reversed, holding that the

district court could not order EPA to spend a specific appropriation that had lapsed before the

suit was filed. NARC, 564 F.2d at 589. The holding in NARC is thus far narrower than the dicta

that HUD cherry-picks for inclusion in its brief – the appeals court held that the district court

could not order EPA to spend a specific appropriation that had already expired. Plaintiffs do not

seek to force HUD to spend any specified appropriations, expired or otherwise, and NARC does

not foreclose the permissibility of injunctive relief that may cost money to implement.23

Contrary to HUD’s suggestion, the Appropriations Clause does not bar court orders from

altering the way that federal agencies spend existing appropriations to vindicate constitutional

44

rights. HUD cites Justice Powell’s opinion concurring in part and dissenting in part in Califano

v. Westcott, 443 U.S. 76 (1979), for the general point that courts may not use remedial powers to

“circumvent the intent of the legislature.” Id. at 94 (Powell, J., concurring in part and dissenting

in part). In the first place, there is no evidence for the proposition that the desegregative remedy

sought by Plaintiffs would circumvent the intent of Congress, which imposed the “affirmatively

further fair housing” requirement nearly forty years ago and has maintained it ever since. More

importantly, HUD fails to discuss the majority opinion in Califano, which directly supports the

permissibility of the relief that Plaintiffs seek.

Califano was a suit against the federal Department of Health, Education, and Welfare

regarding the constitutionality of the AFDC-UF (“Unemployed Father”) program, which

provided benefits to families where the father was unemployed but not to families where the

mother was unemployed. Id. at 78 (majority opinion). All nine Justices agreed that this

restriction was unconstitutional sex discrimination. See id. at 89; see also id. at 93 (Powell, J.).

The majority further held that the district court properly ordered the agency to continue the

AFDC-UF program and render it gender-neutral – allowing families with an unemployed mother

to qualify, and thereby making large numbers of additional families eligible for the program at

potentially significant cost to the agency. Id. at 89-90, 93 (majority opinion). Indeed, the Court

held that extension of federal benefits to unlawfully excluded groups is generally the proper

remedy, and noted that “this Court regularly has affirmed District Court judgments ordering that

welfare benefits be paid to members of an unconstitutionally excluded class.” Id. at 89-90

(citing cases). Lower courts similarly have held that injunctive relief against the federal

government is proper even if it may cost money to implement. See, e.g., Jaffee v. United States,

592 F.2d 712, 715 (3d Cir. 1979); White v. Mathews, 559 F.2d 852, 858-60 (2d Cir. 1977).

45

Accepting HUD’s Appropriations Clause argument would be to accept that injunctive

relief could never be ordered against the federal government, because “[a]lmost all injunctive

relief will require some expenditure of funds by a defendant in order to comply with the terms of

the injunction.” NAACP v. A.A. Arms, Inc., 2003 WL 1049011, at *6 (E.D.N.Y. Feb. 24, 2003).

HUD’s argument, for example, would have foreclosed the Supreme Court in Bolling v. Sharpe

from ordering that the federal government remedy the segregation of public schools in the

District of Columbia. The law does not limit this Court’s remedial powers as HUD proposes.

HUD next engages in many pages of discussion regarding the precise methods for

calculating overall assistance levels to PHAs and local grantees. See Fed. Defs.’ Br. 59-72. This

discussion is entirely irrelevant – none of Plaintiffs’ proposed remedies would contravene

statutory formulas for setting overall assistance levels. There is ample room within

programmatic budget allocations for HUD to set priorities. As the facts of this case show,

desegregating public housing in Baltimore has not been a HUD priority to date. The

Constitution and the Fair Housing Act require that it become one.

HUD also asserts that it has spent the money in its budget for fiscal year 2006. It is

exceedingly unlikely, however, that any remedy ordered in this case would be implemented prior

to the close of the current fiscal year on September 30. Indeed, Plaintiffs have proposed that the

remedy be implemented over a ten-year period, in light of the significant work that must be

undertaken to remedy the decades of unlawful public housing segregation in the Baltimore

Region. HUD’s listing of 2006 expenditures is therefore beside the point.

HUD’s lengthy discussion of funding availability appears to be an attempt to make itself

judgment-proof. But HUD may not evade its constitutional obligations simply by claiming it has

no money to spend – if this were permissible, federal actors could violate constitutional rights

HUD contends that tenant protection vouchers are only available to assist the families24

that are displaced through demolition or disposition of public and assisted housing. See Fed.Defs.’ Br. 64. This argument is incorrect: tenant protection vouchers become available for allunits in converted properties, whether or not those units are occupied. See PX-686, HUD,Notice PIH 2004-4, at 2-3 (Mar. 29, 2004) (reinstated by HUD, Notice PIH 2005-15 (Apr. 26,2005)). Any voucher not needed to relocate an on-site family may thus be used by the PHA forfamilies on the voucher waiting list. See PX-728, HUD, Notice PIH 2001-41, at 12-13 (Nov. 14,2001). In any event, HUD’s argument overlooks that any families displaced through futuredemolition of public housing will be Thompson class members. Because tenant protectionvouchers must, even using HUD’s characterization, be provided to these displaced Thompsonfamilies in the future, those vouchers could be supplemented with the remedial enhancementsPlaintiffs have proposed.

46

with impunity. Nor is it correct as a factual matter that HUD has no money available. Plaintiffs

have suggested numerous possible sources of funds to be used in implementing a remedy,

including block grant funds and tenant protection vouchers. Pls.’ Br. 79-80. Plaintiffs also24

have suggested that HUD, through the executive, could request a budget allocation from

Congress to meet its Thompson remedial obligations. Pls.’ Br. 80. HUD’s Post-Trial Brief

confirms the availability of this option – HUD concedes that it has in the past requested and

received funding from Congress for “the costs of judgments and settlement agreements.” See

Fed. Defs.’ Br. 63; see also Trial Tr. 2348-51 (Vargas). Plaintiffs discuss these funding sources

not to suggest that the Court order that a specific appropriation be used in service of the remedy

– Plaintiffs’ proposed remedy leaves to HUD the discretion to figure out how exactly to pay for

the necessary remedial measures – but rather to disprove as a factual matter HUD’s protestations

that it cannot afford to undo the long-standing segregation that it itself imposed on African-

American public housing families in Baltimore. HUD has, and is likely to have in the future,

sufficient resources to pay for a remedy in this case.

8. The Remedy Is Appropriately Deferential to HUD’s Discretion.

HUD argues that Plaintiffs’ proposed remedy denies HUD the discretion it is due as an

47

executive agency. HUD’s argument in effect seeks discretion to continue violating the

Constitution and Fair Housing Act. Plaintiffs agree that the Court’s remedial order should not

impose requirements that would interfere with HUD’s basic mission and should defer where

appropriate to HUD’s expertise. NAACP, 817 F.2d at 159. As discussed in Part III.B.1 above,

Plaintiffs’ Proposed Order, far from hindering the accomplishment of HUD’s general objectives,

in fact advances those objectives. And as discussed below, each element of Plaintiffs’ Proposed

Order is mindful of deferring to HUD’s discretion where appropriate.

Centrally, HUD would have the authority in the first instance to create the Affordable

Housing Desegregation Plan, a remedial component that both defers to HUD’s expertise and

grants HUD substantial discretion in identifying ways to rectify its long-standing failure to

desegregate. Proposed Order § II.A. HUD concedes that Plaintiffs’ Proposed Order is

deferential to HUD’s discretion in this way. Fed. Defs.’ Br. 72. HUD objects, however, that

review of the Desegregation Plan by Plaintiffs and the Court would intrude on its domain. Such

review is not an impermissible imposition on HUD’s discretion. District court review of steps

taken in compliance with a desegregation order is necessary to ensure effective compliance, is a

common element of desegregation decrees, and reflects the district court’s inherent equitable

authority to see that its remedial orders are properly implemented. See Brown II, 349 U.S. at 301

(directing district courts to consider the adequacy of desegregation plans proposed by the

defendants); see also, e.g., Walker 1997 Remedial Order 10; Young v. Cisneros, No. P-80-8-CA,

at 2, 19 (E.D. Tex. Mar. 30, 1995) (Final Judgment and Decree); Kemp, 721 F. Supp. at 372.

HUD also retains the authority to determine how to create the desegregative housing

opportunities required by the Proposed Order – HUD may determine the specific programs to be

used to create the desegregative opportunities and may decide the precise allocation of vouchers

48

and hard units to provide in any given year. Proposed Order § IV.A.3. HUD has discretion to

select the Regional Administrator and the Mobility Counselor for the remedial vouchers.

Proposed Order §§ IV.D.2, IV.E.2. Plaintiffs’ remedial proposal also defers to HUD in the

proposed changes to HUD decisionmaking, allowing HUD to develop the standards by which it

will ensure that it and its grantees sufficiently consider fair housing and the need to desegregate

in programmatic activities. Proposed Order §§ III.A.1, 4, 8.

In addition to being incorrect about the measure of deference accorded to HUD under

Plaintiffs’ Proposed Order, HUD mistakenly assumes that discretion only flows in one direction:

toward HUD. The purpose of judicial review of agency action is to check the potential for abuse

of agency discretion:

The widespread existence of broad discretionary power is a sourceof concern for several reasons. First, conferring broadpolicymaking power on unelected bureaucrats raises seriousquestions concerning the compatibility of the administrative statewith our basic system of democratic government. . . . Second,unlimited agency discretion would place in jeopardy theconstitutional and statutory rights of all citizens. . . . Third,unlimited agency discretion is subject to potential abuse in theform of differential treatment of like cases based on impermissiblemotives or as a consequence of poor institutional management ordesign. . . . At least part of the solution to the problem of agencydiscretion must lie in judicial review of agency actions.

3 Richard J. Pierce, Jr., Administrative Law Treatise §§ 17.1–17.2, at 1232-33 (4th ed. 2002).

Plaintiffs’ Proposed Order thus defers to HUD in many of the specifics as to how HUD

will fulfill its remedial obligations. But Plaintiffs’ Proposed Order does not give HUD the

discretion to continue its lengthy history of flouting the Constitution and the Fair Housing Act.

An agency’s discretion is not unlimited; HUD may not justify ignoring its statutory and

constitutional obligations under the guise of exercising discretion. See Shannon, 436 F.2d at 819

(“The defendants assert that HUD has broad discretion to choose between alternative methods of

49

achieving the national housing objectives set forth in the several applicable statutes. . . . We

agree that broad discretion may be exercised. But that discretion must be exercised within the

framework of the national policy against discrimination in federally assisted housing and in

favor of fair housing.” (internal citations omitted)). Where, as here, the agency has a long

history of ignoring legal mandates, the argument that the agency has any particular expertise in

determining how to comply with the law loses all force. See NRDC v. Rodgers, 2005 WL

1388671, at *5 (E.D. Cal. June 9, 2005) (“[N]othing suggests that the agency has any particular

expertise in determining what constitutes compliance with [the statute]. Indeed, its history of

ignoring its obligations under the statute suggests the contrary.”).

9. HUD Ignores the Central Goal of a Desegregation Remedy, Which Isto Redress Unconstitutional, Race-Based Harm.

HUD identifies through its experts and other witnesses a host of features that HUD

claims must be incorporated for a remedy to be permissible and effective. Plaintiffs have

discussed these objections above, and shown why none ought to deter this Court from entering

an effective remedy. It is telling, however, that among all of the features of remedial design that

HUD has chosen to emphasize, HUD has ignored the single most important element of a remedy

for constitutional and statutory violations of civil rights: the remedy must cure the conditions

that offend the Fifth Amendment and Fair Housing Act. HUD’s long list of justifications for

doing nothing must yield to this imperative.

C. HUD’s Post-Trial Brief Is Rife With Inconsistencies.

The repeated presentation of internally inconsistent arguments throughout HUD’s Post-

Trial Brief undermines HUD’s credibility and calls into question the reliability of HUD’s

positions regarding what HUD can and cannot do. These inconsistences surface in connection

with virtually every argument HUD makes:

50

• Vouchers: In its defense to liability, HUD argues that the voucher program promotes fairhousing on a regional basis. See Fed. Defs.’ Br. 9-13; HUD Findings of Fact ¶ 9.A. HUD specifically argues that it controls the level of voucher subsidies (FMRs), a tool itclaims to use to promote mobility. See Fed. Defs.’ Br. 10-11. Yet HUD then argues thatvouchers cannot be part of a remedy designed to promote fair housing on a regionalbasis, because “[v]irtually none of the budget authority made available to PIH providesHUD with any flexibility as to its allocation.” Id. at 61.

• Mobility Counseling: HUD argues that it operated two “capacity-building” programs thatincluded mobility counseling – ROC and MTO – and that these programs serve as adefense to liability. See Fed. Defs.’ Br. 21-24. But HUD then argues that mobilitycounseling should not be included in a remedy both because it is ineffective and becauseit would be “anomalous” for HUD to operate mobility programs. See id. at 73.

• CDBG and HOME: HUD relies on the CDBG and HOME programs as a defense toliability on the ground that the block grant programs promoted fair housing. See Fed.Defs.’ Br. 14-15. HUD then objects to the use of CDBG and HOME funds in the serviceof a desegregative remedy, however, claiming that “HUD has no discretion as to theallocation” of CDBG and HOME budget authority. Id. at 68, 70.

• Hard Units: HUD claims that it has funded or subsidized thousands of hard housing unitsthroughout the Baltimore Region as a defense to liability. Fed. Defs.’ Br. 8-9. HUD thenturns around and objects to the inclusion of hard units in Plaintiffs’ proposed remedy onthe ground that hard unit development is impractical and unlikely to be accomplished dueto cost and local government opposition. Id. at 55-57.

• Leverage Over Local Jurisdictions: HUD’s defense to liability relies extensively onHUD’s purported efforts to educate and train local jurisdictions on fair housingcompliance, and to enforce the obligation that recipients of HUD grants use those fundsto affirmatively further fair housing. See Fed. Defs.’ Br. 15-19; HUD Findings of Fact¶ 9.F. HUD, for example, cites the Analysis of Impediments that grantees completed toreceive block grants as a defense to Fair Housing Act liability. See Fed. Defs.’ Br. 24-25. But when it comes to using any of this influence to implement a remedy, HUD disclaimsnearly all authority to affect the actions of local governments. See id. at 49-55.

In every one of these examples HUD’s two positions cannot both be correct, as this Court

noted on the first day of trial:

[T]he simultaneous argument that HUD can’t possibly do anythingat all, I mean, this is ridiculous. The defendants are trying to saywe can’t do something, we can’t do anything, oh, by the way,Judge, we’re going to show you all the things we did do forregionalization. It’s kind of a little bit disingenuous. You’reentitle[d] to do both arguments, but at some point, you have todecide whether HUD absolutely can’t do anything, in which case

51

they haven’t done anything, or they can do something, and this iswhat we’ve done, and we can argue about that.

Trial Tr. 33 (Judge Garbis). Plaintiffs have demonstrated that HUD does have the power to use

its various programs in a way that could promote desegregation: vouchers, CDBG grants, the

HOME program, the various hard unit production programs, and the other HUD activities

discussed in this case all have the potential to be used to desegregate public housing. Yet the

evidence presented at trial and discussed in Plaintiffs’ post-trial papers demonstrates that despite

the potential of these programs, HUD never has operated them in a manner that met the

command of the Fifth Amendment and Fair Housing Act.

HUD’s arguments are essentially these: HUD has acted to desegregate public housing,

and, HUD can’t possibly act to desegregate public housing. The evidence shows HUD is

incorrect on both scores: HUD has not desegregated public housing, but HUD could do so if it

tried. HUD therefore should be ordered to use all of the tools at its disposal to comply, finally,

with the Fifth Amendment and the Fair Housing Act and provide African-American public

housing residents with the desegregated housing they should have had for the past half century.

CONCLUSION

For the reasons articulated above, this Court should hold that Federal Defendants violated

the Fifth Amendment by failing to disestablish segregated public housing; reaffirm its earlier

holding that HUD violated the Fair Housing Act by failing to affirmatively further fair housing;

and order the relief requested in Plaintiffs’ Proposed Order.

Dated: June 30, 2006.

Respectfully submitted,

Peter BuscemiE. Andrew SoutherlingEdward S. KeefeDavid M. KerrHarvey Bartle, IVJason G. BenionJennifer A. BowenMORGAN, LEWIS & BOCKIUS LLP1111 Pennsylvania Avenue, NWWashington, D.C. 20004202-739-3000

Barbara Samuels, Bar No. 08681ACLU FOUNDATION OF MARYLAND3600 Clipper Mill Road, Suite 350Baltimore, MD 21211410-889-8555

Theodore M. Shaw, Director-CounselRobert H. StroupMelissa S. WoodsMatthew ColangeloMelanca D. ClarkNAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.99 Hudson St., 16th FloorNew York, NY 10013212-965-2200

/ s / Andrew D. Freeman, Bar No. 03867BROWN, GOLDSTEIN & LEVY, LLP120 E. Baltimore Street, Suite 1700Baltimore, MD 21202410-962-1030

Attorneys for Plaintiffs