Hills v. Gautreaux Brief Amici Curiae

    SU PR E M E C O U R T  O F T H E  U N IT E D  S T A T E S
OCTOBER TERM, 1975

IN THE

No. 74-1047

Carla A. H ills. Secretary of 
H ousing and Urban Development,

v.
Petitioner,

Dorothy Gautreaux, et. al.

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

BRIEF OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AND THE NATIONAL 

ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE 
AS AMICI CURIAE

September 15, 1975

J. H arold Flannery 
Paul R. Dimond 
William E. Caldwell 
Norman J . Chachkin

520 Woodward Building 
733 - 15th Street, N.W. 
Washington, D.C. 20005

Nathaniel R. J ones
General Counsel, N.A.A.C.P. 
1790 Broadway 
New York New York 10019 
A ttorn eys for Am ici Curiae.

Washington, D.C. • THIEL PRESS ■ 12021638-4521



(0

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................. i
INTEREST OF AMICI CURIAE .................................... ................1
STATEMENT OF FACTS............................................................. .. . 4
ARGUMENT

Introduction ......................................................................................13
I. The Writ of Certiorari Should Be Dismissed And 

Review o f This Matter Postponed Until After
Further Proceedings in the Trial C ou rt.............................. 14
A. Petitioner Does Not Have Standing To Attack 

the Judgment of the Court of Appeals on the 
Grounds Raised in its Petition and Brief . . . . . . . .  14

B. The Record in This Matter is Insufficient To 
Permit Decision of the Constitutional Claim
Raised by Petitioner............................................... 19

II. Should This Court Reach the Merits, the Judgment 
Below Should be Affirmed Because It is Consistent
With Milliken v. Bradley ..........................................................25

CONCLUSION................................................................  27

TABLE OF AUTHORITIES
Cases:
Adams v. Richardson, 351 F. Supp. 636 (D.D.C. 1972),

356 F. Supp. 92 (D.D.C.), modified in part and
aff’d, 480 F.2d 1159 (D.D.C. 1973).......................................  8n

Alabama State Federation of Labor v. McAdory, 325
U.S. 450 (1 9 4 5 ) ............................................... .. ......................... 25

CIO v. McAdory, 325 U.S. 472 (1 9 4 5 ).......................................  25
County Court of Braxton County v. State ex rel.

Dillon, 208 U.S. 192 (1 9 0 8 )..................................................... 18
Diaz v. Patterson, 263 U.S. 399 ( 1 9 2 3 ) ......................... 18
Gautreaux v. Chicago Housing Authority, 503 F.2d 

930 (7th Cir. 1974), cert, granted, 44 L.Ed.2d 
448 (1 9 7 5 )..................................................................  12, 16n, 21



Gautreaux v. Chicago Housing Authority, 436 F.2d 
306 (7th Cir. 1970), cert, denied, 402 U.S. 992 
(1 9 7 1 )............................................................................................... 9n

Gautreaux v. Chicago Housing Authority, 384 F. Supp.
37 (N.D. 111. 1974), mandamus denied, 411 F.2d
82 (7th Cir. 1975).................................................... .. ................  9n

Gautreaux v. Chicago Housing Authority, 342 F. Supp.
827 (N.D. 111. 1972), aff’d sub nom. Gautreaux v.
City of Chicago, 480 F.2d 210 (7th Cir. 1973),
cert, denied, 414 U.S. 1144 (1974)...........................................  9n

Gautreaux v. Chicago Housing Authority, 304 F. Supp.
736 (N.D. 111. 1969)...............................................................  6, 7n

Gautreaux v. Chicago Housing Authority, 296 F. Supp.
736 (N.D. 111. 1969)..........................................................................5

Gautreaux v. Chicago Housing Authority, 265 F. Supp.
582 (N.D. 111. 1967).......................................................................... 5

Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) . . . .  ,7, 8
Gautreaux v. Romney, 363 F. Supp. 690 (N.D. 111.

1973). ................................................................................  11
Gautreaux v. Romney, 332 F. Supp. 366 (N.D. 111.

1971), rev’d 457 F.2d 124 (7th Cir. 1 9 7 2 ) ........... .. 9n
ICC v. Chicago, R.I. & P.R. Co., 218 U.S. 88 (1 9 1 0 ).............. 19
Kelsey v. Weinberger, 498 F.2d 701 (D.C. Cir. 1 9 7 4 ) ........... ,23
Massachusetts v. Mellon, 262 U.S. 447 (1 9 2 3 )............................. ,19
Massachusetts v. Painten, 389 U.S. 560 (1968).............. .. 21n
Milliken v. Bradley, 418 U.S. 717 (1 9 7 4 ) ...............................passim

Parker v. County of Los Angeles, 338 U.S. 327
(1949) ..............................................................................................  25

Penfield Co. v. SEC, 330 U.S. 585 (1947).................................  19
Rescue Army v. Municipal Court, 331 U.S. 549

(1 9 4 7 ).................................. ..........................................................  25
Shannon v. HUD, 436 F.2d 809 (3d Cir. 1 9 7 0 )......................... 2
Southern Burlington County NAACPv. Township

of Mt. Laurel, 67 N.J. 1 5 7 ,___A.2d___ (1975).......................2

Cases, continued:  Page



Cases, continued:
Warth v. Seldin, 45 L„Ed.2d 343 (1975) 
Wheeler v. Barrera, 417 U.S. 402 (1974)

14, 15, 18, 19 
. . . .  24n, 25

Page

Statutes:

42 U.S.C. § § 1437f(b)(l)-(2). .............................................22n, 23n
42 U.S.C. § § 1439(a)(3)-(4).......................................................... 22n
42 U.S.C. §2000d .................................................     5n
42 U.S.C. §5301(c)(6 ).................................... .. ........................ ..  . 22n
42 U.S.C. §5304(a)(4)(c)(ii)......................... .. .............................. 22n

Other Authorities:

Northeastern Illinois Planning Commission, Moderate and 
Low-Income Housing, A Ten Year Estimate of Regional 
Needs ( 1 9 7 3 ) ................................   10n

K. & A. Taeuber, Negroes in Cities (1965)......................................... 3
S. Rep. No. 200, 92d Cong., 2d Sess. (1970)................................   3
U.S. Comm’n on Civil Rights, The Federal Civil Rights

Enforcement Effort (1 9 7 4 )................... .....................................3



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975

No. 74-1047

Ca rla  A. H il l s . Sec r eta r y  of 
H ousing  and U rban Dev elo pm en t ,

v.
Petitioner,

D o ro th y  G a u tr ea u x , e t . a l .

on writ o f  c e r tio r a r i
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

BRIEF OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW AND THE NATIONAL 

ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
AS AMICI CURIAE

INTEREST OF AMICI CURIAE*

The Law yers’ Com m ittee for Civil Rights U nder Law 
was organized on June  21, 1963 following a conference 
of lawyers called at the White House by the President. 
The C om m ittee’s principal mission is to  involve private

*Both the Petitioner and the Respondents have consented to 
the filing of this brief. Copies of letters from their counsel to 
this effect have been filed with the Clerk of this Court pursuant 
to Rule 42(2).

i



2

lawyers th roughout the  country  in the struggle to  assure 
all citizens o f their civil rights through the legal process, 
in particular by  affording legal services otherwise unavail­
able to  Black and o ther m inority  Americans pursuing 
claims for equal trea tm ent under law. The Law yers’ 
Com m ittee is a nonprofit, private corporation  whose 
Board o f Trustees includes th irteen  past presidents of the 
Am erican Bar Association, three form er A ttorneys G en­
eral, and tw o form er Solicitors General.

The N ational Association for the A dvancem ent of 
Colored People (NAACP) is a nonprofit m embership 
association representing the interests o f approxim ately 
500,000 members in 1800 branches throughout the 
U nited States. Since 1909, the NAACP has sought 
through the courts to  establish and p ro tec t the civil rights 
of m inority  citizens. In this respect, the NAACP has 
often appeared before this C ourt as an amicus in cases 
involving school desegregation, em ploym ent, voting 
rights, ju ry  selection, capital punishm ent, and o ther cases 
involving fundam ental hum an rights.

The NAACP and the Law yers’ Com m ittee, and their 
local com m ittees, affiliates, branches, and volunteer 
lawyers, have long been actively engaged in providing 
legal representation to  those seeking free and nondiscrim- 
inatory access to  decent housing. Their litigation has 
concerned issues similar to  those in the instan t case. 
See, e.g., Shannon v. HUD, 436 F ,2d  809 (3d Cir. 1970); 
Southern Burlington County NAACP v. Township o f  Mt. 
Laurel, 67 N .J. 157, A .2d (1975). Along w ith 
o ther in terested  organizations, the Law yers’ Com m ittee 
on D ecem ber 9, 1969 subm itted a brief amicus curiae in 
the D istrict C ourt in the com panion case to  this one. {See 
Record [Gautreaux v. Chicago Housing Authority  file], 
Vol. I, Item  No. 50).



3

The experience of amici in these cases has am ply 
dem onstrated to  us the validity of the tw o central 
findings reiterated  in num erous academic and official 
studies o f housing patterns in the U nited  States: first, 
tha t racial residential segregation is neither accidental nor 
desired by Black Americans, b u t is the p ro d u c t of 
discrim ination against them ; and second, th a t govern­
m ental policies — including, since 1937, the num erous, 
diversified, and om nipresent activities in the housing 
m arket o f the Petitioner HUD and its predecessor 
agencies—are responsible in significant measure for the 
exacerbation and perpetuation  o f such racial discrim ina­
tion and resulting racial residential segregation. E.g., 
K. & A. Taeuber, Negroes in Cities (1965); II U.S. 
Com m ’n on Civil Rights, The Federal Civil Rights 
Enforcem ent E ffort (1974); c f  Statem ent o f  HUD 
Secretary Rom ney, S. Rep. No. 200, 92d Cong., 2d Sess. 
121 et seq. (1970). Indeed, the segregative effects o f the 
federal governm ent’s policies have been the m ore severe 
because their form ulation and im plem entation coincided 
with the period o f greatest expansion of housing and of 
suburban developm ent in the U nited States, and because 
such policies served as a m odel for racially discrim inatory 
actions of o ther governmental agencies and private 
parties.1

In the instan t case, Petitioner seeks to  have this C ourt 
confine, w ithin the boundary lines o f individual political 
subdivisions, the equitable powers o f federal courts to  *

* See Record (Gautreaux v. Chicago Housing Authority file), 
Vol. II, Item No. 76 (Stipulation dated June 29, 1968), Exhibit 
3: “The Chicago Housing Authority, at the time of its organization, 
adopted a policy that had been established by the [federal] PWA 
Housing Division — namely, that the Authority would not permit 
a housing project to change the racial make-up of the neighborhood 
in which it was located . . . .”



4

rem edy governm ental discrim ination which was never so 
lim ited in execution or effect. A ny absolute lim itation of 
this sort w ould cripple our efforts, and those of others, to 
open to  m inority  Americans housing opportunities which 
until now  have been closed to  them  because of their race. 
The NAACP and the Law yers’ C om m ittee accordingly 
have a vital in terest in the disposition of this m atter. 
Because we believe th a t Petitioner has m isapprehended 
the effect o f the ruling below  and because, in any event, 
the posture of this case is unsuited  for disposition of the 
u ltim ate rem edial questions before this C ourt, we subm it 
this Brief as friends of the C ourt urging tha t the w rit of 
certiorari heretofore granted be dismissed for lack of 
standing or as having been im providently granted.2

STATEMENT OF FACTS

The parties have set forth  the intricate procedural 
h istory  and related factual setting o f this m atter in their 
respective briefs. For the purposes o f this amici sub­
mission, however, we summarize the salient facts below.

This case (and the com panion suit w ith which it was 
consolidated in 1971) was institu ted  in 1966. Plaintiffs 
are Negro residents of, or applicants for admission to , 
public housing constructed  or operated by the Chicago 
Housing A uthority  [hereinafter “CH A ”] and approved 
and financed by the U nited States through Petitioner

9
As we suggest infra pp. 25-27, we believe that Respondents 

should prevail before this Court should the matter be considered 
on its merits, because the remand ordered by the Court of Appeals 
is not in any way inconsistent with nor does it foreclose applica­
tion of the substantive ruling in Milliken v. Bradley, 418 U.S. 
717 (1974), as Petitioner seems to believe. To the contrary, the 
Seventh Circuit’s remand specifically requires District Court con­
sideration of Milliken.



5

HUD and its predecessors. Both suits a ttacked  the local 
and federal defendants’ historic policies and practices of 
locating m ost public housing in the C ity of Chicago 
w ithin areas of existing m inority  concen tration , so as to 
m aintain and aggravate racial residential segregation. 
Plaintiffs seek the opportun ity  to  reside in public housing 
which has n o t been deliberately restric ted  to  predom i­
nantly  Black residential areas.3

Following extensive discovery in the action against the 
CHA (proceedings in the HUD case having been stayed), 
the D istrict C ourt granted sum m ary judgm ent in favor of 
the plaintiffs. The C ourt found th a t the four Chicago 
housing projects located in w hite neighborhoods had 
quotas to  lim it the admission o f Negro tenants, and th a t 
CHA used a m ethod of site selection clearance which 
resulted in the veto of “ substantial num bers o f sites [in 
white neighborhoods] on racial grounds.”4 The D istrict 
Court rejected the possible rem edy o f term inating federal 
financial assistance to  the CHA5 because “ it is n o t clear 
w hether even a tem porary denial o f federal funds w ould 
no t im pede the developm ent of public housing and thus 
damage the very persons this suit was b rought to  
p ro tec t.” 6 Instead, the C ourt d irected  the parties to  
propose appropriate injunctive relief constitu ting  “a 
com prehensive plan to  p roh ib it the fu ture use and to  
rem edy the past effects of CHA’s unconstitu tional site 
selection and tenan t assignment procedures.” 7

3
Gautreaux v. Chicago Housing Authority, 265 F. Supp. 582, 

583 (N.D. 111. 1967) (denying motion to dismiss).
4Gautreaux v. Chicago Housing Authority,296 F. Supp. 907, 

909, 913 (N.D. 111. 1969)
5See 42 U.S.C. §2000d (Section 601, Civil Rights Act of 

1964).
6 296 F. Supp., at 915.
7Id., at 914.



6

On Ju ly  1, 1969, the D istrict C ourt entered its initial 
remedial order against CHA. The decree established a new 
tenan t assignment procedure for CHA projects as well as 
guidelines for location o f fu ture public housing. The City 
of Chicago was divided in to  a “ Lim ited Public Housing 
A rea” and a “ General Public Housing A rea” based upon  
existing racial residential concentrations; CHA was en­
jo ined  from  locating any additional public housing in the 
(more heavily Black) “ Lim ited Public Housing A rea” of 
the city. Thereafter, at least 75% of all new public 
housing was to  be located w ithin the “ General Public 
Housing A rea” o f the c ity .8 CHA was fu rther authorized 
to locate one-third of this am ount (25% of all new units 
after the initial 700):

. . .  in the General Public Housing A rea of the 
C ounty o f Cook in the S tate of Illinois, outside of 
the City o f Chicago, provided th a t (w hether or no t 
constructed  by CHA) the same are m ade available 
for occupancy by  CHA to, and are occupied by, 
residents of the C ity o f Chicago who have applied 
for housing to  CHA. . . .9

8 Gautreaux v. Chicago Housing Authority, 304 F. Supp. 736, 
738-40 (N.D. 111. 1969). At the time the 1969 order was entered, 
local housing authorities submitted estimates of public housing 
need to HUD and received “reservations” from the agency for 
specific numbers of public housing units, prior to undertaking the 
processes of site location and design; 700 units of a prior reser­
vation to CHA remained. The District Court’s order thus required 
that the balance of that reservation be located within predom­
inantly white areas of Chicago, and that three-quarters of all 
public housing units built pursuant to future reservations from 
HUD be located in predominantly white areas. Cf. p. 10, infra. 
In 1969 CHA received a reservation for 1500 additional units 
from HUD, after making a request for 5000 units. Record, 
Transcript o f Proceedings, September 28, 1972, at 188.

9Id,., at 739. To locate public housing for Chicago residents 
outside the city limits under the order, CHA not only had to enter

[ fo o tn o te  con tinued]



7

The order also contained provisions describing the  type 
o f public housing units CHA could build (to  avoid undue 
concentration  o f  public housing in any location), p rohib i­
ting CHA from  using the pre-clearance site selection p ro ­
cedure which had in the past resulted in discrim inatory 
location o f housing, and—to ensure tha t a rem edy was 
actually p rov ided10-  requiring CHA to use its best efforts 
“ to  increase the supply o f Dwelling Units as rapidly as 
possible. . . .” 11 No appeal was taken from  the D istrict 
C ourt’s sum m ary judgm ent or from  its rem edial order.

Proceedings in the com panion litigation against HUD 
were then  resumed. Plaintiffs pressed their claim for relief 
requiring the federal agency to  assist in rem edying the 
proven discrim ination, while Petitioner HUD sought 
dismissal o f the case. On Septem ber, 1, 1970, the  D istrict 
Court granted the governm ent’s request; b u t on appeal, 
summary judgm ent in favor of plaintiffs against HUD was 
directed .12 The C ourt of Appeals found th a t

into a cooperative relationship with the Cook County Housing 
Authority (which it did), but also had to secure agreement from 
the governing body of any local political subdivision in Cook 
County within whose boundaries such housing was proposed to 
be located. See Brief for Petitioner, pp. 7, 29-30, 31-34. These 
agreements were never secured and under the 1969 order CHA 
has located no public housing outside the city limits of Chicago.

10 “-pjjg c ourt . [has] determined that the several provisions 
of this judgment order are necessary to prohibit the future use and 
to remedy the past effects of the defendant Chicago Housing 
Authority’s unconstitutional site selection and tenant assignment 
procedures, to the end that plaintiffs and the class o f persons 
represented by them, Negro tenants o f and applicants for public 
housing in Chicago, shall have the full equitable relief to which 
they are entitled,” 304 F. Supp., at 737. See text at note 5 
supra.

**304 F. Supp., at 739, 741.
12Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971).



8

. . . the Secretary exercised the above described 
pow ers in a m anner which perpetuated  a racially 
discrim inatory housing system  in Chicago, . . . .  The 
fact th a t HUD knew  of such circum stances is borne 
ou t by the D istrict C o u rt’s specific finding in this 
suit th a t HUD tried  to  block “ the activity com ­
plained of, succeeded in some respects, b u t con­
tinued  funding know ing of the possible action the 
City Council w ould take .’’13

These HUD actions, said the C ourt o f Appeals, “ consti­
tu ted  racially discrim inatory conduct in their own 
righ t.” 14

When the case returned  to  the trial court, it  was 
consolidated w ith the CHA litigation and plaintiffs 
moved for fu rther relief, asking th a t all defendants be 
required to  subm it a com prehensive plan “ to  rem edy the 
past effects of unconstitu tional site selection in the 
Chicago public housing system. . . .” Record, Vol. II, 
Item  No. 3 .15 The m otion  alleged th a t some 30,000 units

13 Id., at 739.
14 Id. There is thus no warrant for Petitioner’s suggestion 

(Brief, p. 20 n.16) that there has been “no finding o f active 
misconduct by HUD.” The Court of Appeals expressly noted 
that HUD had failed to undertake appropriate action to enforce 
nondiscrimination by CHA, as required by the 1964 Civil Rights 
Act. Id.., at 737-38. Cf. Adams v. Richardson, 351 F. Supp. 636 
(D.D.C. 1972), 356 F. Supp. 92 (D.D.C.), modified in part and 
aff’d, 480 F.2d 1159 (D.C. Cir. 1973).

13In the interim, litigation to enforce the 1969 decree against 
CHA continued. In 1970, plaintiffs’ counsel brought to the atten­
tion o f the District Court the fact that, despite the injunction to 
use its “best efforts” to increase the supply of dwelling units in 
Chicago, and despite the specific requirement that 700 units of 
public housing be built in the “General Public Housing Area,” 
and despite HUD’s approval of CHA site recommendations for 
1500 additional units o f  public housing, CHA had as yet failed to 
recommend any new sites to the Chicago City Council. Following

[ fo o tn o te  continued]



9

of public housing had been im properly located  in 
segregated Negro neighborhoods as a result o f defendan ts’ 
discrim inatory policies, and th a t an appropriate m easure 
of relief was therefore the location  o f an additional

an extensive series of conferences between Court and counsel — at 
which CHA announced that it did not wish to submit new sites 
until after the April 1971 mayoralty election in Chicago — the 
District Court modified its “best efforts” order by establishing 
a specific timetable requiring CHA to submit site recommendations 
to the City Council. CHA appealed the denial o f its motion to 
vacate the timetable order, which was stayed pending its appeal, 
but the Seventh Circuit affirmed the District Court’s judgment. 
Gautreaux v. Chicago Housing Authority, 436 F.2d 306 (7th Cir. 
1970), cert, denied, 402 U.S. 922 (1971).

Thereafter, although CHA submitted recommendations, very 
few sites in the “General Public Housing Area” received City Coun­
cil approval. Upon motion, the District Court enjoined HUD 
from distributing federal Model Cities program funds to the City 
of Chicago until 700 public housing units in white areas had been 
approved by the Mayor and Council. On appeal, entry of this 
decree was held to be an abuse of discretion because HUD’s dis­
criminatory activities had occurred in the context of public hous­
ing, and not Model Cities, programs. Gautreaux v. Romney, 332 F. 
Supp. 366 (N.D. 111. 1971), rev’d 457 F 2d 124 (7th Cir. 1972).

Following that appellate ruling, the District Court dealt 
directly with the City Council’s unexplained and unjustified failure 
to process CHA site recommendations in white areas by super­
seding, for the purposes of this case, the Illinois statutory require­
ment that CHA’s site selections be approved by the Chicago City 
Council. This order was affirmed and this Court denied review. 
Gautreaux v. Chicago Housing Authority, 342 F. Supp. 827 (N.D. 
111. 1972), a ff’d sub nom. Gautreaux v. City of Chicago, 480 F.2d 
210 (7th Cir. 1973), cert, denied, 414 U.S. 1144 (1974).

As of June 30, 1975 — six years after the entry o f the first 
remedial order — only nine units of public housing located in other 
than predominantly Black areas of Chicago have been constructed. 
(CHA Report No. 17, p, 2). The District Court has referred the 
matter to a Master in an effort to determine responsibility for 
this lack o f progress. Gautreaux v. Chicago Housing Authority, 
384 F. Supp. 37 (N.D. 111. 1974). mandamus denied, 511 I .2d 
82 (7th Cir. 1975).



10

30,000 public housing units in integrated neighbor­
hoods.16 However, it recited, the “ General Public H ous­
ing A rea” rem aining w ith the city limits o f Chicago was 
insufficient to  support such a num ber o f additional 
public housing units located  in accordance w ith  the 1969 
decree. Hence, plaintiffs suggested th a t relief involving 
construction of additional public housing w ithou t the 
City of Chicago should be granted, and no ted  tha t all 
parties had previously expressed agreem ent upon the 
desirability of a “m etropo litan”  rem edy. Following fur­
ther proceedings, plaintiffs on Septem ber 24, 1972 
subm itted  a proposed Judgm ent O rder em bodying a form 
of “ m etropo litan” relief17 and hearings were held Sep­
tem ber 28-29 and Novem ber 27-28, 1972.

On Septem ber 28, 1972, the CHA D irector testified 
tha t CHA was applying for a new reservation o f 3500 
units from  HUD b u t tha t, in his opinion, 7 5% of the units 
could n o t be located in w hat rem ained of the “ General 
Public Housing A rea” in Chicago, as defined by the 
C ourt’s 1969 decree.18 On N ovem ber 27, 1972, an 
expert dem ographer tendered by plaintiffs described the 
rapidly shifting racial com position of Chicago’s popula-

1 Chicago’s 1973-1980 public housing needs have been esti­
mated at 67,000 new units. Northeastern Illinois Planning Com­
mission, Moderate and Low-Income Housing, A Ten Year Esti­
mate o f Regional Needs 12 (1973).

1 *7

Plaintiffs’ proposed decree was modeled upon the 1969 
remedial order. It defined a “Limited” and “General” public 
housing area in terms of the Chicago Urbanized Area rather than 
the city limits, and established floors and percentages for future 
site location within those areas. It suggested a mechanism whereby 
the District Court might vest CHA with authority to locate units 
outside the City o f Chicago if voluntary agreement o f local agen­
cies could not be secured.

1 8 Record, Transcript of Proceedings, September 28, 1972, at
6 5 .



11

tion, and estim ated th a t the “ General Public Housing 
A rea” as defined in the 1969 decree was being rapidly 
elim inated and w ould disappear entirely  by  about the 
year 2000 .19 Finally, plaintiffs presented a form er U.S. 
Civil Rights Commission official w ho described the 
pervasive role of HUD and its predecessor agencies in 
creating and perpetuating racial residential segregation in 
private, as well as public, housing.20 (This testim ony, 
however, was stricken by  the trial co u rt.)21 On Septem ­
ber 11, 1973, the D istrict C ourt entered its M em orandum  
O pinion and Order, in which it refused even to  consider 
some form of “ m etropo litan” relief because

the wrongs were com m itted  w ith in  the lim its of 
Chicago and solely against residents of the City. It 
has never been alleged th a t CHA and HUD discrimi­
nated  or fostered racial discrim ination in the sub­
urbs and, given the limits of CHA’s jurisdiction, such 
claim could never be proved against the principal 
offender herein .22

On appeal, the C ourt below (per Mr. Justice  Clark, sitting 
by designation) held tha t “m etropo litan” relief was 
necessary and equitable under the facts of the  case, and 
was n o t inconsistent w ith this C o u rt’s decision in Milliken 
v. Bradley, 418 U.S. 717 (1974). The initial opinion of 
the panel directed a remand

*9 Record, Transcript of Proceedings, November 27, 1972, at 
85-86.

20 Id,., at 134 et seq.
Q 1

Id., at 185-86. The parties disagree on whether other evi­
dence before the District Court is indicative of area-wide viola­
tions by HUD. See, e.g., Brief for Petitioner, at pp. 21, 23-24.

22 Gautreaux v. Romney, 363 F. Supp. 690, 691 (N.D. 111. 
1973).



12

. . . for fu rther consideration in the light o f this 
opinion, to  w it: the adoption  o f a comprehensive 
m etropolitan  area plan th a t will n o t only disestab­
lish the segregated public housing system in the City 
of Chicago which has resulted from  CHA’s and 
H U D ’s unconstitu tional site selection and tenan t 
assignm ent procedures b u t will increase the supply 
of dwelling units as rapidly as possible.23

However, upon  petition  for rehearing, the C ourt of 
Appeals significantly narrow ed its holding. I t reaffirm ed 
its “view th a t the trial judge should n o t have refused to  
‘consider the p ropriety  of m etropolitan  area relief’ ” 24 
b u t rem anded the case

fo r  additional evidence and fo r  further consideration 
o f  the issue o f  metropolitan area relief in light o f  
this opinion and that o f  the Supreme Court in 
Milliken v. Bradley. In the m eantim e, intra-city relief 
should proceed apace w ithou t further delay.25

On May 12, 1975, this C ourt granted H UD ’s petition  for 
a w rit of certiorari to  review the C ourt of A ppeals’ 
judgm ent and rem and.26

28 Gautreaux v. Chicago Housing Authority, 503 F.2d 930, 
939 (7th Cir. 1974).

24 Id., at 939.
25 Id., at 940 (emphasis added).
26 44 L.Ed.2d 448 (1975).



13

ARGUMENT

INTRODUCTION

Decision of the question presented for review in this 
case will have broad and im portan t im plications for the 
future conduct o f governmental housing program s and 
related activities which have, in this and o ther instances, 
been instrum ental in the past in creating or exacerbating 
racial residential segregation. A fter careful consideration 
of the positions taken by the respective parties and study 
of the record in this m atter, however, amici have 
concluded th a t the issues raised by Petitioner are n o t 
appropriately presented on this record; we very respect­
fully suggest th a t this C ourt should dismiss the w rit of 
certiorari so tha t the m atter m ay be re tu rned  to  the trial 
court for the taking o f evidence and fu rther proceedings 
as directed by the Seventh C ircuit’s order on P etitioner’s 
request for rehearing below.

Such a course o f action is appropriate here fo r tw o 
reasons: first, the Petitioner in this m a tte r is so little 
directly concerned w ith m ost o f the various detailed 
aspects of a po ten tial remedial decree about which it 
speculates and com plains, th a t it should n o t be accorded 
standing to  raise those issues; second, the “ scope” o f any 
supposed “ in ter-d istric t” rem edy which m ay ultim ately 
be fashioned in this case is so com pletely undefined on 
this record tha t issues relating to  its sufficiency or 
justifiability  are simply n o t ripe for decision by this 
Court. Further proceedings in the trial court will n o t only 
com plete the record, bu t will also provide ample o p po rtu ­
nity for the parties w ho m ight be d irectly  affected  to  be 
heard and to  themselves seek such appellate review as 
they deem appropriate, following the shaping o f an 
equitable decree by the D istrict C ourt.



14

I.
THE WRIT OF CERTIORARI SHOULD BE DISMISSED 
AND REVIEW OF THIS MATTER POSTPONED UNTIL 
AFTER FURTHER PROCEEDINGS IN THE TRIAL 
COURT

A. Petitioner Does N ot Have Standing To A ttack  
The Judgm en t O f The C ourt O f Appeals On the 
G rounds Raised In  Its Petition  And Brief

Because this is a case involving racial discrim ination by 
the Petitioner HUD, and because the plaintiffs have 
continously pressed for H U D ’s participation in a rem edy 
designed to  alleviate the effects of th a t discrim ination, 
there is a t first blush little  reason to  doub t H U D ’s right to  
attack, in this C ourt, a judgm ent which sends the case 
back to  the D istrict C ourt for reconsideration o f the kind 
of rem edy w hich should be ordered. However, Petitioner 
attacks n o t so m uch the C ourt of A ppeals’ judgm ent of 
rem and as it does certain consequences to  others which 
Petitioner speculates m ay occur as the result of tha t 
remand. Petitioner’s standing to  seek this C o u rt’s opinion 
about the po ten tia l orders which m ay be entered by the 
D istrict C ourt on rem and m ust therefore be carefully 
considered, for “ the question of standing is w hether the 
litigant is en titled  to  have the court decide the m erits of 
the dispute or o f  particular issues.” Warth v. Seldin, 45 
L .Ed.2d 343, 354 (1975) (emphasis added).

We respectfully subm it th a t Petitioner lacks the neces­
sary concrete adversary interests to  w arrant exercise o f 
this C o u rt’s certiorari jurisdiction. The contours o f the 
analysis are described in Warth, supra, 45 L .Ed.2d at 
354-55:

This inquiry involves b o th  constitu tional lim itations 
on federal court jurisdiction and prudential lim ita­
tions on its exercise. . . .



15

In its constitu tional dim ension, standing im ports 
justiciability: w hether the p la in tiff has m ade ou t a 
“ case or controversy” betw een him self and th a t 
defendant w ithin the m eaning of A rt. III. . . . The 
A rt. I ll  judicial pow er exists only to  redress or 
otherwise to  p ro tec t against injury to the com plain­
ing party , even though the c o u rt’s judgm ent m ay 
benefit others collaterally. . . .
. . . [T] his C ourt has recognized o ther lim its on the 
class of persons who may invoke the co u rt’s 
decisional and remedial powers. . . . [E] ven when 
the p la in tiff has alleged injury sufficient to  m eet the 
“ case or controversy” requirem ent, this C ourt has 
held tha t the  p lain tiff generally m ust assert his own 
legal rights and interests, and cannot rest his claim 
to  relief on the legal rights or interests o f th ird  
parties. . . .

The “prudential considerations” o f Wurth apply to  
Petitioner here. See 45 L .Ed.2d, at 355-56, n. 12 and 
accom panying tex t. The question, therefore, is w hether 
Petitioner can dem onstrate sufficient “ in ju ry” to  HUD to 
entitle it to  litigate the issue it presents:

W hether in light of Milliken v. Bradley, 418 U.S. 
717, it is inappropriate for a federal court to  order 
inter-district relief for discrim ination in public hous­
ing in the absence of a finding o f  an inter-district 
violation. [Brief for Petitioner, at p. 2.]

Petitioner points to  no language o f the  C ourt o f 
Appeals which com pels an order on rem and restricting 
HUD in any particular w ay.27 A lthough Petitioner

°7A Consider Petitioner’s description of the trial court proceed- 
ings which led to the Seventh Circuit reversal:

In the order underlying the present Petition, the dis­
trict court directed HUD to use its “best efforts to

[ fo o tn o te  con tinued]



16

makes m uch o f the fact that, in its view, the C ourt of 
Appeals has m andated  an “ in ter-d istric t”  rem edy w ithou t 
finding an “ inter-district v io lation” or an “ inter-district 
effect”  (Brief for Petitioner, a t pp. 15-28),* 28 it now here

cooperate with CHA in its efforts to increase the 
supply o f dwelling units, in conformity with” all appli­
cable federal statutes, HUD rules and regulations, and 
the provisions of the judgment against CHA and all 
other final orders in this litigation . . . .
[Petitioner has expressed no objection to this decree.]
The district court rejected the order proposed by 
Respondents, which would have directed CHA and 
HUD to use their best efforts to provide dwelling 
units outside the City of Chicago in Cook, DuPage 
and Lake Counties, and refused to conduct additional 
proceedings designed to develop a plan of metropol­
itan area-wide relief . . . .

(Brief for Petitioner, at pp. 9, 10). The Court of Appeals, however, 
did not direct the District Court to enter the order proposed by 
the plaintiffs (see note 16 supra). It did not direct the lower 
court to require HUD to use its best efforts to provide dwelling 
units outside Chicago without regard to “all applicable federal 
statutes, HUD rules and regulations,” etc. It merely directed the 
trial court to conduct further proceedings in light o f its opinion 
and that of this Court in Milliken v. Bradley, supra.

28 The Seventh Circuit’s remand does not require a metro­
politan housing remedy, but rather reconsideration in light of 
Milliken v. Bradley, supra. Any doubt on this score was resolved 
by the Court’s Order on Rehearing, which deliberately omitted 
language describing the result which was to flow from the further 
proceedings. 503 F.2d, at 940. The Order (mandate) o f the Court 
of Appeals, issued August 26, 1974, merely states that the District 
Court’s judgment is reversed and

this cause be and the same is hereby REMANDED to 
the said District Court for further consideration in 
accordance with the opinion of this Court filed this 
day.

(No separate order was issued following consideration and dis­
position of HUD’s petition for rehearing, although the opinion 
of the Court was amended as described above, p. 12, supra.)

[ fo o tn o te  con tinued]



17

indicates how  the specific provisions of the decree 
affecting HUD will differ as a result o f the Seventh 
C ircuit’s rem and. Of course, it cannot, since no  particular 
form of rem edy has been directed pending reconsidera­
tion of the m atter by the trial court.

Petitioner instead attacks the rem and on tw o grounds. 
The first—tha t the record does no t, in P e titioner’s view, 
m eet the Milliken standards for “ in ter-d istric t” relief—is 
considered infra, pp. 19-25. The second is Petitioner’s 
claim th a t an inter-district rem edy which requires the 
construction of public housing outside Chicago, over the 
objection of local agencies or jurisdictions, will entail 
immense practical difficulties. But the practical problem s 
discussed at great length in P etitioner’s b rief (pp. 
28-40) all affect th ird  parties, none o f whom  is before 
this C o u r t . N o  plan will be form ulated  or ordered until 29

Petitioner thus errs in opening its argument by contending 
that the Seventh Circuit remanded this case “for ‘the adoption of 
a comprehensive metropolitan area plan’ (Pet. App. 59a)” as though 
that statement in the initial opinion of the panel were not modified 
by the terms o f the Order denying HUD’s petition for rehearing.

29
Petitioner opens its argument on the merits as follows (Brief, 

pp. 15-16):
The court of appeals, by remanding this case to the 
district court for “the adoption of a comprehensive 
metropolitan area plan” (Pet. App. 59a), has departed 
from the long-standing rule of federal equity practice 
that “the nature of the violation determines the scope 
of the remedy.” Swann v. Board o f  Education, 402 
U.S. 1, 16. See also Brown v. Board o f  Education,
349 U.S. 294, 300. The state and local agencies that 
are made subject to the district court’s remedial orders 
by that decision (see p. 12, supra), with the exception 
of CHA itself, have not been implicated in any unlaw­
ful discrimination; they have in effect been consoli­
dated for remedial purposes by the court of appeals 
apparently solely because the court believed that met­

[ fo o tn o te  c o n tinued]



18

after such parties have been jo ined  and heard (see Brief 
for Petitioner, at p. 12).30 Clearly, in this case nothing 
respecting “ m etropo litan” relief has yet occurred which 
so d irectly  affects Petitioner’s interests as to  w arrant this 
C ourt in reviewing the judgm ent below at Petitioner’s 
request. Possible injury to  third parties does no t confer 
standing upon  a litigant unless very unusual circumstances 
(not present here) make direct assertion of a claim by 
the injured parties im probable. Warth v. Seldin, supra, 
45 L .Ed.2d, at 355-56.

The Petitioner, despite H lJD ’s ongoing relationship 
w ith local agencies and political subdivisions, is no t 
en titled  to  judicial recognition as the p ro tec to r of their 
interests in litigation which does n o t directly affect HUD. 
See County Court o f  Braxton County v. State ex rel. 
Dillon, 208 U.S. 192 (1908) (county  governing body 
m em bers have no standing to  attack, in Supreme Court, 
West Virginia sta tu te  whose effect will be to  require 
co u n ty ’s default on bonds; only bondholders w ould have 
standing); Diaz v. Patterson, 263 U.S. 399 (1923) 
(fraudulent titleholder w ho unsuccessfully sued to  estab­
lish his claim m ay n o t a ttack  judgm ent of trial court on 
ground tha t court did n o t determ ine w hether th ird

ropolitan area-wide residential desegregation is a desir­
able goal of social policy. That judicial view of 
desirable social policy does not, standing alone, jus­
tify the award of inter-district relief. Milliken v. 
Bradley, 418 U.S. 717. [Emphasis added.]

30 We do not interpret Judge Austin’s Order permitting the 
filing o f the Second Supplemental Complaint and adding additional 
parties defendant as an adjudication on the merits against these 
parties. Rather, it seems to us, the District Court has wisely 
determined to have all potentially affected parties before it when 
it reconsiders the question o f metropolitan relief pursuant to the 
Seventh Circuit’s remand. Cf. Milliken v. Bradley, supra, 418 
U.S., at 752.



19

parties m ay have had b e tte r title than defendant); ICC v. 
Chicago, R.I. & P.R. Co., 218 U.S. 88 (1910) (railroad 
may n o t a ttack  ICC judgm ent reducing through rates on 
petition  o f shippers on ground tha t ICC left local rates 
unaltered, since effect of fu rther action by ICC w ould 
no t benefit, bu t further injure, railroads); c f  Massa­
chusetts v. M ellon , 262 U.S. 447 (1923).

The only direct effect upon Petitioner o f the Seventh 
C ircuit’s order is to  lift from  it an injunctive decree to  
which it did n o t object. (See no te  27 supra.) A fter 
further proceedings take place, Petitioner may becom e 
subject to another injunctive decree, bu t there will be 
ample o p po rtun ity  a t tha t tim e to seek review of its 
provisions. There is, in sum, no th ing  about which 
Petitioner m ay properly com plain since the C ourt of 
Appeals neither im posed any restrictions upon Petitioner 
nor denied relief which Petitioner sought. Thus, the 
“prudential considerations” identified in Warth counsel 
against according standing to  HUD to litigate the “ in ter­
district”  issues it fears the D istrict C ourt may address 
on rem and. Since Petitioner lacks standing, the w rit o f 
certiorari should be dismissed. Pen fie Id Co. v. SEC, 330 
U.S. 585 (1947).

B. The Record In This M atter Is Insufficient To
Perm it Decision O f The C onstitu tional Claim Raised
By Petitioner.

Petitioner seeks to  have this C ourt answer a legal 
question which was never resolved by the trial court, 
which is posed in the abstract because it was never 
the focus of evidentiary p resen ta tion ,31 and which will

SI -The District Court explicitly refused to consider the very
evidence which Petitioner now asserts is essential. Sec text at 
notes 19, 20, supra.



20

be the subject o f  inquiry by the trial court pursuant 
to  the judgm ent below. Because this record is inade­
quate to  perm it a reasoned disposition of the  claim 
presented by Petitioner, the w rit o f  certiorari should be 
dismissed as im providently granted.

This record could hardly be m ore opaque w ith respect 
to  the question presented by  Petitioner to  this C ourt:

W hether, in light of Milliken v. Bradley, 418 U.S. 
717, i t  is inappropriate for a federal court to  order 
inter-district relief for discrim ination in public hous­
ing in the absence of a finding of an inter-district 
violation.

(Brief for Petitioners, at p. 2.) As we earlier po in ted  
o u t,32 the C ourt of A ppeals’ disposition o f this m atter 
did not require adoption  o f a “m etropolitan  area p lan .” 
Its judgm ent did n o t “m a [k ]e  subject to  the district 
c o u rt’s rem edial orders” the additional parties jo ined 
upon  m otion  o f the plaintiffs (compare Brief for Peti­
tioners, at p. 15). T hat judgm ent certainly did not direct 
th a t injunctive decrees be entered against these parties 
irrespective o f their “ im plication in any unlaw ful discrim­
ination [or its effects] ” (id.) bu t instead instructed  the 
trial cou rt to  decide w hether relief against such parties 
was appropriate under the principles of this C ourt’s 
decision in Milliken v. Bradley. A nd by  no stretch  of the 
im agination can the C ourt of A ppeals’ ruling be said to  
have “ consolidated” either the fourteen new  parties 
defendant or the “ m ore than  3 00” political jurisdictions 
to  which Petitioner subsequently refers in the course of 
the in terrorem  argum ent which it constructs (Brief for 
Petitioner, at p. 36.)

32 See no te  28 supra.



21

If the “ finding” of an “ in ter-d istric t” violation or 
effect (Milliken v. Bradley, supra) is critical, then the 
C ourt of Appeals was em inently correct in rem anding the 
case so as to  perm it the parties to present evidence and 
the D istrict C ourt to  make such a finding if w arranted by 
tha t evidence.33 Since the case was heard  in the D istrict 
C ourt long before Milliken was decided, neither the court 
nor the parties (including HUD) anticipated  the poten tial 
relevance of such a finding. Cf, 503 F.2d, a t 934 .34 The 
C ourt of Appeals reversed and rem anded no t because it 
posited “ in ter-d istric t” relief w ithou t the necessary find­
ing, b u t because the D istrict C ourt im properly refused 
even to consider such relief. Id,, a t 939. Plainly, the issue 
described by Petitioner is no t in this case because the 
C ourt of Appeals has done no m ore than afford an 
opportun ity  for the D istrict C ourt to receive evidence 
and to  make such findings as are w arranted by the 
evidence.

O f even greater significance is the absence of specific 
remedial directions in the rem and. N ot only does the 
C ourt o f A ppeals’ order fail ipso facto to  subject agencies 
who were n o t parties to  the suit to  fu tu re remedial

33 See note 31 supra.
34 See Massachusetts v. Painten, 389 U.S. 560, 561 (1968):

At the time of respondents’ trial in 1958, Massachu­
setts did not have an exclusionary rule for evidence 
obtained by an illegal search or seizure . . . and the 
parties did not focus upon the issue now before us.

After oral argument and study o f the record, we have 
reached the conclusion that the record is not suffic­
iently dear and specific to permit decision o f the im­
portant constitutional questions involved in this case. 
The writ is therefore dismissed as improvidently granted



22

decrees, or to  “ consolidate” them , b u t it leaves wholly 
undefined the nature and scope of any “m etropo litan” 
plan which m ight be ordered on rem and. It is far from 
unreasonable to  assume—especially in light o f the 
D istrict C ourt’s cautious, step-by-step approach to  rem ­
edy th roughou t the course o f this litigation35 — th a t the 
court m ay fashion “ m etropo litan” relief which is no t 
“ in ter-d istric t” in the Mil liken sense. F or instance, as the 
Brief o f R espondents details, Petitioner HUD adm inisters 
its housing programs by “ m arket areas,” of which the 
Chicago Housing M arket A rea is an exam ple. Consistent 
w ith existing sta tu to ry  law ,36 the D istrict C ourt m ight 
on rem and restrain HUD from  financing housing p ro­
grams th roughou t the entire Chicago Housing M arket 
A rea unless they  m eet the siting and tenan t assignment 
requirem ents established in the 1969 intra-Chicago de­
cree.

Such a rem edy w ould be “m etropo litan” or area-wide, 
b u t it w ould involve no decrees against new parties to  the 
lawsuit, and it would n o t be “ in ter-distric t” in the 
Milliken sense. I t w ould n o t take away from  local 
jurisdictions any rights they  have to  determ ine w hether 
to  participate in federal housing programs (see Brief for 
Petitioner, a t p. 36).37 It would simply amplify the 
conditions (which local public housing programs already

D See pp. 6-9, supra.
36 42 U.S.C. §5301 (c)(6): “ . . . Federal assistance provided 

in this chapter is for the support of community development 
activities which are directed toward . . . the spatial deconcen­
tration of housing opportunities for persons of lower income . . . .” 
See also, 42 U.S.C. §§1439(a)(3)-(4), 5304(a)(4)(c)(ii).

0 7
3 The Housing and Community Development Act o f 1974 

authorizes HUD to bypass local governmental entities in some 
instances. Sec 42 U.S.C. § § 1437f(b)(l)-(2).



23

m ust m eet) to be considered by a locality when 
m aking its decision. Cf. Kelsey v. Weinberger, 498 F .2d 
701 (D.C. Cir. 1974). Such a decree w ould n o t “ subject 
suburban governm ental agencies . . .  to  substantial finan­
cial and adm inistrative burdens” (id., at p. 35) unless 
those agencies undertook  to  participate in federal housing 
programs. What such a decree would  do is to  require 
HUD to  operate federal housing program s w ithin the 
Chicago Housing M arket Area in such a fashion as to  
alleviate the racial residential segregation which it helped 
to  create.

A variety o f o ther rem edial approaches is appropriate 
under the judgm ent of rem and entered by the C ourt of 
Appeals. For exam ple, the D istrict C ourt m ight direct 
HUD to  act directly to  provide additional housing units 
outside the City of Chicago pursuant to  the “bypass” 
provisions o f the Housing and C om m unity D evelopm ent 
A ct of 1974.38 39 * * 42

These rem edial steps are a long way from the h ypo the­
tical decree which Petitioner assumes will be entered on 
rem and (Brief for Petitioner, at pp. 35-40). Petitioner 
suggests tha t the C ourt of A ppeals’ ruling will necessarily 
deprive local jurisdictions of decision-making pow er w ith 
respect to  undertaking public housing program s, over 
zoning and land use control, for provision of public 
services, etc., so as to  constitu te  the D istrict C ourt, “ in

38 See Brief for Respondents in Opposition to Certiorari, at
p. 13.

aq
42 U.S.C. §1437f(b)(l) provides: “ . . . In areas where . . . the 

Secretary determines that a public housing agency is unable to 
implement the provisions of this section, the Secretary is author­
ized to enter into such contracts and to perform the other func­
tions assigned to a public housing agency by this section.” See 
also, 42 U.S.C. § 1437(b)(2).



24

significant ways . . . the m aster m etropolitan  govern­
m en t” {id., a t 27). Such an assum ption is unw arranted 
on this record.

U nquestionably, this C ourt’s judgm ent about the 
appropriateness, under Milliken v. Bradley, o f  a decree 
which m ay be en tered  by the D istrict C ourt pursuant to  
the Seventh C ircuit’s rem and in this case will depend 
upon the exact natu re of th a t decree. The questions of 
constitu tional pow er and equitable discretion posed on 
the one hand by  a decree against HUD alone, and on the 
o ther hand  by  a decree which purports to  restric t the 
governm ental powers o f local jurisdictions in the m anner 
suggested by Petitioner, will be m arkedly dissimilar.40 
But the record  in this case, in its present form , is simply 
inadequate to  perm it the C ourt to  determ ine exactly 
w hat sort o f decree the trial court will in fact enter.

T raditionally, where such uncertain ty  of interpreting 
the opinion or judgm ent below  has becom e apparent, and 40

40 Thus, the issue presented by Petitioner is not ripe for review.
Wheeler v. Barrera, 417 U.S. 402, 426-27 (1974):

The second major issue is whether the Establishment 
Clause of the First Amendment prohibits Missouri from 
sending public school teachers paid with Title I funds 
into parochial schools to teach remedial courses. The 
Court o f Appeals . . . [held] the matter was not ripe 
for review. We agree. As has been pointed out above, 
it is possible for the petitioners to comply with Title 
I without utilizing on-the-premises parochial school 
instruction. Moreover, even if, on remand, the state 
and local agencies do exercise their discretion in favor 
of such instruction, the range of possibilities is a broad 
one and the First Amendment implications may vary 
according to the precise contours of the plan that is 
formulated . . . .
. . .  A federal court does not sit to render a decision 
on hypothetical facts . . . .



25

where tha t uncertain ty  can be clarified by fu rther 
proceedings in the same, or even another, m atter, this 
C ourt has declined to  pass upon constitu tional questions 
in the abstract and has dismissed writs of certiorari as 
im providently granted. E.g., Parker v. County o f  Los 
Angeles, 338 U.S. 327 (1949); Rescue A rm y v. Municipal 
Court, 331 U.S. 549 (1947); Alabama State Federation 
o f  Labor v. M cAdory, 325 U.S. 450 (1945); CIO v. 
M cAdory, 325 U.S. 472 (1945); c f  Wheeler v. Barrera, 
note 39 supra. That, we suggest, is the m ost appropriate 
disposition in this m atter as well.

II.
SHOULD THIS COURT REACH THE MERITS, THE JUDG­
MENT BELOW SHOULD BE AFFIRMED BECAUSE IT IS
CONSISTENT WITH MILLIKEN V. BRADLEY

We have suggested above th a t the proper disposition of 
this case is to dismiss the w rit o f certiorari, b o th  because 
Petitioner lacks standing to  argue the issue it presents for 
review and because this record is an insufficient basis 
upon  which to  determ ine the constitu tional question 
presented by Petitioner. Should the C ourt consider the 
case on the m erits, however, we believe th a t Respondents 
are entitled  to  prevail.

The thesis o f the P etitioner’s argum ent is th a t the 
Seventh C ircuit’s ruling in this case conflicts w ith, or 
erroneously in terprets, the opinion in Milliken v. Bradley, 
supra. Since (as we have explained above) the judgm ent 
of the C ourt o f Appeals m erely rem ands to  the D istrict 
C ourt for reconsideration o f “ m etropo litan” relief in 
light, inter alia, of Milliken, there is no  basis upon  which 
to alter tha t judgm ent. A lthough the opinion of the 
C ourt of Appeals is strongly supportive o f the concept of 
m etropolitan  relief, the rem and order anticipates tha t the



26

D istrict C ourt will receive additional evidence and make 
specific findings before undertaking a fresh determ ination 
on rem edy. Thus, Petitioner will have an adequate 
opportun ity  on rem and to  disprove w hat it has term ed 
m istaken assum ptions or erroneous factual in terpreta­
tions by  the C ourt o f A ppeals.41 Should the case then be 
reappealed b y  any party , we tru st tha t the record would 
contain  specific factual findings by  the D istrict C ourt on 
the subjects of inquiry necessitated by  b o th  the Seventh 
C ircuit’s opinion and M ilhken .42 Such a record would 
perm it com plete appellate review.

In  contrast, reversal o f the judgm ent below w ould 
am ount to  a holding by  this C ourt tha t “m etropo litan ,” 
“ in ter-d istric t,” or “ area-wide” relief in a segregation case 
is never appropriate, w hether “ inter-district violations,” 
“ inter-district effects,” or simply “ area-wide” discrimina­

41
Neither the parties nor the District Court can be faulted for 

the present inadequate state of the record on the subject of “inter- 
district effects,” since the evidentiary hearing which led to the 
District Court’s order took place in September and November, 
1972 — a year and a half before this Court rendered its opinion 
in Milliken. Pursuant to the Court of Appeals’ remand, plaintiffs 
may offer additional evidence about HUD’s area-wide violation and 
the appropriate remedy therefor, in addition to the evidence pre­
viously offered but refused by the District Court. HUD, or any 
added party, may attempt to rebut both the present evidence of 
record and any such additional evidence, or may propose such 
remedial alternatives as it deems fit. The District Court will then, 
for the first time in this litigation, make specific findings on the 
relevant issues.

42 No longer bound by its unnecessarily narrow, pre-Milliken 
view o f the case, the District Court will consider the nature and 
scope of the violations by HUD or any other parties, the range of 
remedies available against HUD and/or any other parties, and the 
appropriateness of those remedies to vindicate plaintiffs’ rights 
to nondiscriminatory housing opportunities guaranteed by, inter 
alia, the Thirteenth Amendment, the 19b4 and 1968 Civil Rights 
Acts, and the 1974 Housing and Community Development Act.



27

tion  can be proved. We do n o t believe the C ourt w ent so 
far in Milliken, nor tha t the door to m eaningful relief 
from unlaw ful housing segregation should be so firmly, 
and precipitously, shut in this case. A ccordingly, we 
subm it tha t if the case is considered on its m erits, the 
judgm ent below m ust be affirm ed.

CONCLUSION

W HEREFORE, for the foregoing reasons, amici re­
spectfully suggest tha t the w rit of certiorari herein should 
be dismissed, or in the alternative th a t the judgm ent 
rem anding the case for fu rther proceedings should be 
affirm ed.

Respectfully subm itted,

J. Ha r o l d  F la nn ery  
Paul R . D im ond  
Willia m  E . C aldw ell 
N orman  J .  Chachkin  

520 W oodward Building 
733 - 15th S treet, N.W. 
Washington, D.C. 20005

N a th a n iel  R. J ones

General Counsel, N.A.A.C.P. 
1790 Broadway 
New York, New York 10019 
Attorneys fo r  Amici Curiae.