Defense Fund Attorneys Win St. Augustine, Fla. Victory

    No. 80-988

I n T he

(Emtrt uf th? lUttiteh States
October Term, 1981

Havens Realty Corporation and Rose J ones,
Petitioners,v.

Sylvia Coleman, R. Kent W illis and 
Housing Opportunities Made E qual

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., THE CENTER FOR 
NATIONAL POLICY REVIEW, AND THE WASHINGTON 
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

LAW AS AMICI CURIAE

J ack Greenberg 
J ames M. Nabrit, III 
Lowell J ohnston 
Beth Lief 
J udith Reed

10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

William L. Taylor 
Glenda G. Sloane 

Center for National 
Policy Review 

Catholic University School 
of Law

Washington, D.C. 20064 
(202) 832-8525

Richard C. Dinkelspiel 
Maximilian W. Kempner

Co-Chairmen
William L. Robinson 
Norman J. Chachkin  *

Attorneys
Lawyers’ Committee for Civil 

Rights Under Law 
Suite 520, 733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Roderic V. O. Boggs 
Kerry Scanlon

Washington Lawyers’ Committee 
for Civil Rights Under Law 

Suite 427, 733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 347-3801

Attorneys for Amici Curiae
* Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



I N D E X

Table of Authorities.......................    ii

Interest of Amici Curiae ........................................... - 1

Statem ent............................       4

Summary of Argument.—.-----------   7

ARGUMENT
I. In Light of Events Which Have Occurred Sub­

sequent To The Entry Of Judgment Below,
This Court Should Not Reach The Merits Of 
This Case....................      8

II. Alternatively, This Court Should Remand For 
Further Development And Narrowing Of The 
Issues.................         11

Conclusion ........ ............. —- .......... .............. ....................  15
Appendix—The Standing of “Testers” To Challenge 

Racial Steering Under the Fair Housing 
Act of 1968 ............. .......... ..........................  la

Page



ii

TABLE OF AUTHORITIES
Cases: Page

Coles v. Havens Realty Corp., 633 F.2d 384 (4th
Cir. 1980) ____ ____________ _______ -----...... -  13, 14

Coles v. Havens Realty Corp., Civ. No. 79-0024 
(E.D. Va., Feb. 17, 1981), reprinted in EQUAL
OPP. HOUS. H 18,031 (P-H) __________ 6,7,8,9,12

County of Los Angeles v. Davis, 440 U.S. 625
(1979) --------- ---------------------------- ---------.....  4,11

DeFunis v. Odegaard, 416 U.S. 312 (1974)............ 9
Evers v. Dwyer, 358 U.S. 202 (1958) ------- -------  4a
Fair Housing Council v. Eastern Bergen County

MLS, 422 F. Supp. 1071 (D.N.J. 1976) ...........  la
Gladstone, Realtors v. Village of Bellwood, 441

U.S. 91 (1979)....................... -- .4 , 10, 11, 12,13,14, 15
Grant v. Smith, 574 F.2d 252 (5th Cir. 1978) (per

curiam) _________ -............................ ................  4a
Indiana Employment Security Div. v. Burney, 409

U.S. 540 (1973) ................. - --------- ---------- ---  9,11
Johnson v. Board of Educ. of Chicago, ——  U.S.

-, 66 L. Ed. 2d 162 (1980) .......... .................  4, 11
Meyers v. Pennypack Woods Home Ownership

Ass’n, 559 F.2d 894 (3d Cir. 1977).................... la, 4a
Minnick v. California Dep’t  of Corrections, 49

U.S.L.W. 4609 (June 1, 1981) ............... ......... 9, 10, 13
Moore v. Townsend, 525 F.2d 482 (7th Cir. 1975).. la  
Northside Realty Associates, Inc. v. United States,

605 F.2d 1348 (5th Cir. 1979)-------------- ------  4a
Pierson v. Ray, 386 U.S. 547 (1967) ....................  4a
Sierra Club v. Morton, 405 U.S. 727 (1972) ......... 14
Smith v. YMCA of Montgomery, 462 F.2d 634

(5th Cir. 1972)............... ................  ........ -........ - 4a
South Spring Hill Gold Mining Co. v. Amador

Medean Gold Mining Co., 145 U.S. 300 (1892).. 9
Swift & Co. v. Hocking Valley R.R., 243 U.S. 281

(1917) - .... - - ...... - .... ...... ..... - ........... .......... ....  9
Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

205 (1972) ------- ----- ------ ----------------- -------- 13, 2a
Turner v. A.B, Carter, Inc., 85 F.R.D. 360 (E.D.

Va. 1980) ...................... ------------------ ------------  6, 10



I l l

TABLE OF AUTHORITIES—Continued

United States v. Hunter, 459 F.2d 205 (4th Cir.),
cert, denied, 409 U.S. 934 (1972)___ __ _____  4a

United States v. Real Estate One, Inc., 433 F.
Supp. 1140 (E.D. Mich. 1977) ..........-....... ........  la, 4a

United States v. Youritan Constr. Co., 370 F. Supp.
643 (N.D. Cal. 1.973), modified as to relief and
aff’d, 509 F.2d 623 (9th Cir. 1975) ______ __  3a

Warth v. Seldin, 422 U.S. 490 (1975)_______~~ 12, 13
Wheatley Heights Neighborhood Coalition v. Jenna

Resales Co., 429 F. Supp. 486 (E.D.N.Y. 1977).. 3a, 4a 
Zuch v. Hussey, 394 F. Supp. 1028 (E.D. Mich.

1975), aff’d and remanded, 547 F.2d 1168 (6th 
Cir. 1977) (per curiam) ......... ................ —...... - la

Statutes and Rules:
42 U.S.C. § 1982 .............................. ........ ....... .......  6,12
42 U.S.C. §§ 3601 et seq. ................... .....................  6
42 U.S.C. § 3601 .............................. -.... ................ - 2a
42 U.S.C. § 3604(a).............. ............. ................ -la, 2a, 3a
42 U.S.C. § 3604(b)....... - ................ ... ........... - .....  3a
42 U.S.C. § 3604(c).....- ...... -......... ........... ........ ....  4a
42 U.S.C. § 3604(d) _____________ ---- ------- ----- 3a
F.R. Civ. P. 23(b) (2) .................. ..................... ----- 6
F.R. Civ. P. 5 4 (b )..............—- ---- ------------- ----- 6,7,8
Supreme Court Rule 17.1(c) ............................ - ....  12

Other Authorities:
114 Cong. Rec. (1968).......— .... -........ -........... - ....  2a, 3a
EQUAL OPP. HOUS. If 19,905 (P-H) ............ . 9

Page



In The

Bnprme ( ta r t nf %  Imtrti
October Term, 1981

No. 80-988

Havens Realty Corporation and Rose J ones,
Petitioners, v. ’

Sylvia Coleman, R. Kent W illis and 
Housing Opportunities Made E qual

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., THE CENTER FOR 
NATIONAL POLICY REVIEW, AND THE WASHINGTON 
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

LAW AS AMICI CURIAE

INTEREST OF AMICI CURIAE *
The Lawyers’ Committee for Civil Rights Under Law 

was organized in 1963 at the request of the President of 
the United States to involve private attorneys through­
out the country in the national effort to assure civil rights 
to all Americans. Through its national office in Washing­
ton, D.C. and local Lawyers’ Committee such as the Wash­
ington, D.C. Lawyers’ Committee for Civil Rights Under

* The parties’ letters of consent to the filing' of this brief are 
being filed with the Clerk pursuant to Rule 36.1.



2

Law, the organization has over the past eighteen years 
enlisted the services of thousands of members of the pri­
vate bar in addressing the legal problems of minorities 
and the poor in voting, education, employment, housing, 
municipal services, the administration of justice, and law 
enforcement.

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit organization incorporated under the laws 
of the State of New York in 1940. It was formed to 
assist blacks to secure their constitutional rights by the 
prosecution of lawsuits. Its purposes include rendering 
legal aid gratuitously to blacks suffering injustice by 
reason of race who are unable, on account of poverty, to 
employ legal counsel on their own behalf, and its charter 
was approved by a New York court, authorizing the or­
ganization to serve as a legal aid society. The Fund is 
independent of other organizations and is supported by 
contributions from the public.

Attorneys employed by or associated with the Legal 
Defense Fund have participated in numerous fair hous­
ing cases in the federal courts, including this Court, e.g., 
Shelley v. Kraemer, 334 U.S. 1 (1948), and have sub­
mitted briefs amicus curiae in other such cases, e.g., 
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 
(1972).

The Center for National Policy Review (CNPR) is a 
privately-funded public interest law center located in 
the Catholic University School of Law. Founded in 
1970, CNPR represents the interests of the civil rights 
community within the federal policy-making and admin­
istrative process. Because the need for the enforcement 
of the right to secure housing free of discrimination is 
of primary importance, CNPR has been particularly con­
cerned with the administration and implementation of 
Title VIII (Fair Housing Act of 1968).



3

The Washington Lawyers’ Committee for Civil Rights 
Under Law was founded in 1968 to help focus the en­
ergies of the private bar on civil rights and poverty is­
sues affecting the greater Washington area. The Wash­
ington Committee has organized panels of volunteer 
attorneys to work on cases affecting individuals and im­
portant law reform, issues in the areas of equal housing 
and employment opportunities, narcotics addiction, the 
parole process, and immigration. More than 650 volun­
teer attorneys from over 80 area law firms have worked 
on Washington Committee projects, expending (for ex­
ample) in 1978 well over 20,000 hours of lawyers’ time.

All of the amici organizations, their local committees, 
affiliates and volunteer attorneys thus have been actively 
engaged in providing legal representation to those seek­
ing relief under federal civil rights legislation. Their 
litigation includes cases raising housing discrimination 
issues similar to those presented here.

This case raises a welter of questions concerning the 
standing of various parties plaintiff and the timeliness 
of the filing of the action. Determination of those issues 
turns on the peculiar facts and circumstances involved, 
but the Court’s decision will also have a significant effect 
upon other lawsuits under the Fair Housing Act of 1968 
and similar statutes. This is especially so because peti­
tioners raise standing claims under Article III of the 
Constitution.

Amici believe that the Court should proceed cautiously, 
however, in addressing the issues in this case. As we 
show below, events which have transpired since the entry 
of the judgment below, about which the Court has not yet 
been informed, have worked a significant material change 
in the factual posture of this case and may render it 
moot.

For this reason, amici suggest that the most appro­
priate disposition of this matter would be to dismiss



4

the writ as improvidently granted. Alternatively, the 
Court could remand the case to the district court for 
consideration of possible mootness, and for reconsideration 
of the trial court’s earlier ruling in light of this Court’s 
intervening decision in Gladstone, Realtors v. Village of 
Bellwood, 441 U.S. 91 (1979). See, e.g., Johnson v. Board
of Educ. of Chicago, -----  U.S. ----- , 66 L. Ed. 2d 162
(1980) (remanding for consideration of matters raised 
in Suggestion of Mootness and responses thereto). That 
disposition would require vacating the opinion and judg­
ment below. See County of Los Angeles v. Davis, 440 
U.S. 625, 634 n.6 and accompanying text (1979).

Even if the Court does not wish to dispose of the case 
in this fashion, amici submit that it is neither necessary 
nor appropriate to reach and decide all of the various 
issues which have been raised and briefed by the parties 
as a result of the alternative holdings anounced by the 
Fourth Circuit. The Court should adhere to its practice 
of adjudicating constitutional questions only when neces­
sary to the disposition of a case. Because the substan­
tive issues presented by petitioners in this matter are in­
extricably interrelated on the present record, they cannot 
be appropriately narrowed for decision by this Court in 
the absence of further proceedings below. The remand 
for this purpose which amici suggest would isolate and 
sharpen the questions which must be decided here, leav­
ing for another day those which should be reached only in 
the context of a different case in which their determina­
tion will be critical.

STATEMENT
The relevant facts of record in this matter are not 

disputed. In the spring of 1978, Coleman and Willis 
visited the offices of petitioner Havens to obtain informa­
tion about apartment availability for their employer, 
respondent H.O.M.E. (Housing' Opportunities Made



5

Equal). Subsequently, Coleman, Willis, and other 
H.O.M.E. employees conducted “tests” to determine 
whether prospective lessees of different races were given 
the same information about availability in two apart­
ment complexes managed by petitioner Havens Realty. 
These “tests” involved successive visits and inquiries 
about vacancies of Havens’ employees by Coleman, who 
is black, and Willis, who is white (or by another white 
H.O.M.E. employee, John Barr, who is not a respondent 
in this case). The “tests” indicated that Havens em­
ployees were “steering,” either by directing blacks who 
inquired about apartment availability only to one of the 
two complexes, or by representing to them that there were 
no vacancies—while whites who inquired were told of 
apartments available in either development.

Coleman and Willis were “testers” because at the times 
they visited Havens’ offices, they had no present intention 
to enter into a lease of any apartment which might be 
available in either complex; rather, their motivation was 
to determine whether Havens treated black and white 
prospective lessees differently on account of race. The 
complaint alleges that both Coleman and Willis are 
“residents of the City of Richmond or Henrico 
County . . . .”

On July 13, 1978, a black man named Paul Allen Coles, 
who did wish to reside in one of the apartment develop­
ments handled by Havens, inquired about availability 
from Havens’ employees. Coles was informed that the 
only apartment available was in the other complex, to 
which the earlier “tests” indicated that blacks were being 
steered. Later that same day, the complaint alleges, 
white “tester” John Barr visited Havens’ offices and was 
told of an available apartment in the complex in which 
Coles had wished to reside.

This lawsuit, charging Havens Realty with racial 
steering in violation of the Fair Housing Act (Title VIII



6
of the Civil Rights Act) of 1968, 42 U.S.C. §§ 3601 et 
seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1982, 
was filed 180 days later. Plaintiffs in the suit were Coles, 
Coleman, Willis, and H.O.M.E. Broad injunctive relief, 
damages, and attorneys’ fees were sought. In response to 
Havens’ motion, the district court dismissed all of the 
plaintiffs except Coles, on the grounds that Coleman, 
Willis and H.O.M.E. lacked standing, and that the suit was 
filed too late with respect to Coleman and Willis in any 
event since their last “test” of Havens’ practices occurred 
more than 180 days prior to the filing of the suit.

Respondents were then granted a final judgment as 
to the standing and timeliness issues, pursuant to F.R. 
Civ. P. 54(b), and they appealed to the Fourth Cir­
cuit, which on September 11, 1980 rendered its opinion 
and judgment reversing the district court’s rulings. This 
Court granted certiorari to review that judgment on April 
20, 1981.

The additional relevant facts about which the Court 
appears not yet to have been advised are as follows:

After respondents appealed with respect to plaintiffs 
Coleman, Willis and H.O.M.E., proceedings in the dis­
trict court continued on behalf of plaintiff Coles. On 
February 13, 1980, pursuant to F.R. Civ. P. 23(b) (2), 
Coles was recognized as the representative of a certified 
plaintiff class of “all black persons who may have been 
injured monetarily by the alleged racial steering prac­
tices of [Havens]on or since January 9, 1977,” Coles v. 
Havens Realty Corp., Civ. No. 79-0024 (E.D. Va,, Feb. 
17, 1981), reprinted in EQUAL OPP. HOUS. 18,031 
(P-H). See Turner v. A.B. Carter, Inc., 85 F.R.D. 360 
(E.D. Va. 1980). The case was tried June 22 and 23,
1980, and the parties thereafter entered into a Consent 
Decree approved by the district court on February 17,
1981, which recites that

The Court finds from the evidence presented in this
case that the policies and acts of the defendants



7

Havens Realty Corporation and Rose Jones violated 
the provisions of the Fair Housing Act of 1968 and 
the Civil Rights Act of 1866.

Coles v. Havens Realty Corf., supra, at 18,136. The con­
sent decree permanently enjoined the petitioners from vio­
lating either statute and granted extensive additional in­
junctive relief for a period of three years, including 
recordkeeping of visitors to Havens’ offices and appli­
cants for apartments, posting of racial occupancy and 
vacancy information in its offices on a current basis for 
both apartment complexes, display of fair housing logos 
in the office, and use of the logos on all forms and in all 
advertisements. It awarded $2250 damages to Coles and 
established a $13,500 claim fund for class members, per­
mitting H.O.M.E. to counsel prospective claimants against 
the fund. Finally, it required the payment of $17,500 in 
attorneys’ fees by Havens. Id. at 18,136-38. The only 
matters not addressed explicitly in the consent decree are 
the claims of Coleman, Willis and H.O.M.E. for damages.

On July 1, 1981, the district court approved payment of 
various claims filed by class members against the $13,500 
fund established by the consent decree. The court further 
directed that the case be “closed,” subject to the terms of 
the permanent injunction which had issued as part of 
the decree.

SUMMARY OF ARGUMENT

The appeal below involved an order of dismissal as to 
some, but not all, of the plaintiffs in this case, pursuant 
to F.R. Civ. P. 54(b). After the Court of Appeals issued 
its decision, the remaining plaintiff (who had been certi­
fied as representative of a class) and the petitioners en­
tered into a consent decree which appears to grant sub­
s tan tia l all of the relief sought in the complaint, and 
which includes language that may be interpreted as re­
linquishing the claims of the dismissed plaintiffs who had 
appealed. The Court should, therefore, dismiss the writ



8

as improvidently granted or remand this case for a de­
termination as to possible mootness.

Alternatively, the Court should remand so that the is­
sues can be further developed and narrowed with the re­
sult of limiting the number or scope of constitutional ques­
tions which this Court would be required to decide in 
this case. Because of the alternative holdings announced 
below, the issues cannot be narrowed absent such a 
remand.

ARGUMENT
I

In Light Of Events Which Have Occurred Subsequent 
To The Entry Of Judgment Below, This Court Should 
Not Reach The Merits Of This Case

As indicated in the brief Statement, supra, this case 
reaches the Court in a rather unusual posture. As a re­
sult of the F.R. Civ. P. 54(b) judgment permitting an 
appeal of the trial judge’s standing and timeliness deter­
minations as to respondents, those issues were litigated 
before the Fourth Circuit at the same time as the factual 
allegations of the complaint were made the subject of 
evidentiary proof and hearing.1 Following the hearing, 
the remaining plaintiff (represented by the same coun­
sel as respondents) and the petitioners stipulated to a 
finding of racial steering in violation of the Fair Hous­
ing Act of 1968 and the Civil Rights Act of 1866—and 
to the entry of a judgment awarding broad injunctive 
relief, damages to Coles and to the class of plaintiffs 
whom he represented, and attorneys’ fees to plaintiffs’ 
counsel.

1 Although it is not apparent from the record before this Court 
nor from the consent decree entered February 17, 1981, Coleman 
and Willis testified as H.O.M.E. employees on behalf of Coles at the 
June, 1980 trial. The consent decree makes specific provision for 
H.O.M.E. to counsel class members. See Coles v. Havens Realty 
Cory., supra at 18,138.



9

In these circumstances, it simply is not clear what is 
left of this lawsuit, as it was originally framed in the 
complaint filed by respondents and Coles. On its face, 
the consent decree appears to provide substantially the 
relief sought in the case. To be sure, respondents had 
been dismissed as formal plaintiffs in the case at the time 
the consent decree was negotiated and approved, and 
their respective claims for damages from petitioner 
Havens were not addressed explicitly in that decree. 
However, the decree on its face does appear to resolve 
the claims of

. . .  all plaintiffs, including those that may hereafter 
be joined by the Court pursuant to the class certifica­
tion of this action, for all damages, costs, expenses, 
and fees incurred in all negotiations and/or other 
activities arising out of the Complaint filed herein.

Coles v. Havens Realty Corp., supra, at 18,138 (emphasis 
supplied). The effect of this language has not yet been 
determined, but it is certainly conceivable that, either 
as a result of this provision of the decree or by virtue of 
the substantial relief awarded in the decree, the con­
troversy between the parties is now moot.2

2 Neither petitioners (in their petition for certiorari or their 
brief on the merits) nor respondents (in their Brief in Opposition 
to Certiorari or in a subsequent filing) have yet advised the Court 
of the entry of the consent decree. Respondents may have felt 
bound to defend the judgment and opinion of the court below—or 
may wish to obtain a ruling from this Court because H.O.M.E.’s 
operations in the Richmond area continue. See, e.g., EQUAL OPP. 
HOUS. ft 19,505 (P~H). Petitioners similarly may desire to have 
this Court’s views on the reasoning of the court below. Of course, 
the parties may not stipulate a case to be within the jurisdiction 
of this Court. See Minnick v. California Dep’t of Corrections, 49 
U.S.L.W. 4609 (June 1, 1981) ; DeFunis v. Odegaard, 416 U.S. 312 
(1974) ; Indiana Employment Security Div. v. Burney, 409 U.S. 540 
(1973) ; Sw ift & Co. v. Hocking Valley R.R., 243 U.S. 281, 289 
(1917) ; South Spring Hill Gold Mining Co. v. Amador Medean 
Gold Mining Co., 145 U.S. 300 (1892).



10

Petitioners have advanced serious constitutional 
claims, but that fact only underscores the urgency of de­
termining whether or not this litigation has continuing 
vitality. For this Court has many times emphasized that 
it follows a “ ‘policy of strict necessity in disposing of 
constitutional issues,’ Rescue Army v. Municipal Court, 
331 U.S. 549, 568 . . . Minnick v. California Dep’t of 
Corrections, 49 U.S.L.W. 4609, 4613 (June 1, 1981).

The mootness determination can best be made by the 
district court, which is also in the best position to con­
strue the terms of the consent decree. Further pro­
ceedings in the trial court, if the case is determined not 
to be moot, would have several additional advantages: 
(1) the trial court could reconsider its rulings as to the 
standing of the various respondents in light of this 
Court’s subsequent decision in Gladstone, Realtors v. Vil­
lage of Bellwood, supra [hereinafter cited as “Bell- 
wood”].3 (2) The ambiguities of the record, upon which 
petitioners focus significant attention (see Brief for Peti­
tioners, at 26-27, 30-31), could be clarified by appropri­
ate amendment of the complaint to delineate the exact 
location of Coleman’s and Willis’ residences, and the pre­
cise impact upon the surrounding neighborhoods of 
Havens’ adjudicated racial steering practices, see Bell- 
wood, supra, 441 U.S. at 112 n.25. (3) Similarly, uncer­
tainties concerning the residential location of H.O.M.E.’s 
membership {see Brief for Petitioners, at 13-14) could 
be eliminated through amendment of the pleadings. (4) 
The question of the timeliness of the filing of this action 
could be redetermined by the district court with respect 
to the claims of Coleman and Willis as residents of the 
affected community (see pp. 12-14 infra), if the trial *

* The district judge apparently recognized that his ruling was 
open to question after Bellwood, for he sought a remand of this 
case from the Fourth Circuit in light of that decision. See Turner 
v. A.B. Carter, Inc., supra, 85 F.R.D. at 363 n.3.



11

court reaches a different result as to their standing in 
this capacity under Bellwood, supra.

For these reasons, and in light of the altered posture 
of this case, amici suggest that the writ of certiorari be 
dismissed as improvidently granted, which will have the 
effect of returning the matter to the district court. Alter­
natively, the Court may wish to vacate the judgment be­
low and remand the case to the district court for con­
sideration of possible mootness, see, e.g., Johnson v. 
Board of Educ. of Chicago, supra; Indiana Employment 
Security Div. v. Burney, supra-, this disposition would 
remove any precedential weight from the ruling below, 
see County of Los Angeles v. Davis, supra, 440 U.S. at 
634 n.6.

II

Alternatively, This Court Should Remand For Further 
Development And Narrowing Of The Issues

As we have previously remarked, the Court is pre­
sented with a multiplicity of issues relative to respond­
ents’ standing and the timeliness of this suit’s commence­
ment because of the alternative holdings by the Fourth 
Circuit. At the same time, as we show below, many of 
the issues are interrelated and their disposition in this 
case depends upon specific additional factual allegations 
or proof. Amici urge the Court to remand this case, 
rather than attempting to decide all of these questions, 
so as to allow reconsideration of the district court’s rul­
ings in light of Bellwood, supra, amendment of the plead­
ings, and narrowing of the issues. This disposition is 
likely to result in avoiding the necessity for this Court 
to decide at least some of the multiple questions pre­
sented in the current posture of this action.

All of the issues raised before the Court are inter­
related with each other, and decision of some will make 
unnecessary disposition of the others. For example, if



12

Willis and Coleman have standing as residents of areas 
affected by the discriminatory steering practices of Ha­
vens,4 there would be no need to address the timeliness 
issues, since in their capacity as residents of the “target 
area,” 5 6 see Bellwood, supra, 441 U.S. at 112 n.25, they 
would have suffered injury when Coles was steered on 
July 13, 1978 B—and their complaint, filed 180 days later, 
would clearly have been timely. Similarly, if standing 
were sustained under § 1982, as the district court recog­
nized there would be no problem regarding timeliness. 
On the other hand, if Willis and Coleman have standing 
as “testers,” 7 then the timeliness questions must be de-

4 The district court held racial steering to violate both the 1968 
Fair Housing Act and the Civil Rights Act of 1866, 42 U.S.C. 
§ 1982. Coles v. Havens Realty Corp., supra, at 18,136. This holding 
was not disturbed by the Court of Appeals and petitioner has not 
contested that determination here. Hence, this Court need not 
pass upon the matter. See Bellwood, supra, 441 U.S. at 115 n.32.
(The Court in that case did recognize the severe consequences which 
could follow steering on a major scale, id. at 109-11.)

6 The complaint alleges that Coleman and Willis are “residents 
of the City of Richmond or Henrico County,” which is certainly 
broad enough to encompass residence within the “target area.” 
As this Court suggested in Warth v. Seldin, 422 U.S. 490, 501 
(1975), if there was a need for “further particularized allegations 
of fact deemed supportive of plaintiff [s’] standing,” the district 
court should have “require[d] the plaintiff [s] to supply [them], by 
amendment to the complaint or by affidavits,” rather than dis­
missing.

6 Steering “testers” does not affect their ability to reside in 
integrated communities nor deprive them of interracial associations 
since by definition “testers” are not seeking to relocate. But as 
residents of a “target area,” “testers” would suffer injury when­
ever a bona fide minority applicant for purchase or lease of property 
is steered.

7 Amici believe that the issue of “tester standing” involves a 
novel question as to which this Court’s guidance would be of 
assistance to the lower courts, see Supreme Court Rule 17.1(c), 
and that there is strong support in the statute, the legislative



13

eided—but not whether the allegations of the complaint 
were sufficient to support their alternative claims of 
standing as residents of the area affected by Havens’ 
steering who were denied the benefits of interracial 
associations by Havens’ conduct. The questions of 
H.O.M.E.’s standing—either in a capacity as representa­
tive of its members or suing in its own organizational 
status—and the timeliness of its filing, are likewise inter­
twined.

This phenomenon is not unusual, and ordinarily it 
would not counsel a remand. Here, however, such a dis­
position is appropriate for several reasons. First, this 
Court has traditionally sought to avoid unnecessary de­
cision of constitutional issues. See Minnick v. California 
Dep’t of Corrections, supra, and cases cited therein. De­
velopments on remand of this action may obviate the 
need for a decision of the constitutional questions raised. 
Second, as we have noted, petitioners’ arguments concern­
ing the standing of H.O.M.E. as representative of its

history and the case law for recognizing- “tester” standing to 
challenge racial steering practices. The question was briefed by 
the Lawyers’ Committee in its amicus brief in Bellwood, supra, but 
not reached by the Court, see id., 441 U.S. at 111. For the Court’s 
convenience, we repeat those arguments in an appendix hereto. 
Our submission is, in short, that the racial steering to which 
respondents Coleman and Willis were subjected deprived them of 
specific rights guaranteed by the Fair Housing Act—and that 
invasion of those rights therefore constitutes the requisite personal 
injury supporting their standing to sue. Warth v. Seldin, supra, 
422 U.S. at 514 (“. . . Congress may create a statutory right or 
entitlement the alleged deprivation of which can confer standing 
to sue even where the plaintiff would have suffered no judicially 
cognizable injury in the absence of statute”) ; Trafficante v. Metro­
politan Life Ins. Co., 409 U.S. 205 (1972). This was not the 
reasoning of the Court of Appeals, which viewed respondents as 
“bona fide surrogates” for the victims of discrimination and relied 
upon “strong public policy” considerations, Coles v. Havens Realty 
Corp., 633 F.2d 384, 387 (4th Cir. 1980).



14

members and of Coleman and Willis as residents of the 
“target area” primarily involve the degree of specificity 
of the allegations of the complaint (see Brief for Peti­
tioners at 11-17), a matter to which the court below was 
sensitive. The Fourth Circuit panel emphasized in its 
ruling that it was merely permitting respondents to pro­
ceed to trial, and that adequate proof to support the 
standing claims would have to be adduced; and it sug­
gested that the district court require amendment of the 
complaint to provide greater specificity. Coles v. Havens 
Realty Corp., supra, 633 F.2d at 391; see note 5 supra; 
see also Belhvood, supra, 441 U.S. at 112 n.25; Sierra 
Club v. Morton, 405 U.S. 727, 735 n.8 (1972). Third, 
the district court did not reject these alternative stand­
ing claims on the grounds now advanced by petitioners. 
Instead, the trial judge—acting in advance of this 
Court’s ruling in Bellwood—held that respondents (who 
claimed that the racial stering practiced by Havens de­
nied them the valuable benefits of interracial associa­
tions) “assert no more than the general public interest.” 
Remanding the matter would therefore give the trial 
court an occasion to reconsider that ruling in light of 
jBellwood,8 as well as to afford the opportunity for amend­
ment of the complaint which the Court of Appeals con­
templated. These developments could very well result 
in removing the need for further constitutional adjudi­
cation by this Court.

8 See note 3 supra.



15

CONCLUSION

For the foregoing reasons, amici suggest respectfully 
that the writ of certiorari previously granted herein be 
dismissed as improvidently granted; that the judgment 
below be vacated and the case remanded to the district 
court to consider possible mootness, reconsider its rul­
ings in light of Bellwood, and permit amendment of the 
complaint; or that the case be remanded for further 
development of the issues, to include such reconsidera­
tion and allowance of amendment.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Lowell J ohnston 
Beth Lief 
J udith Reed

Richard C. Dinkelspiel 
Maximilian W. Kempner

Co-Chairmen

10 Columbus Circle 
New York, New York 10019

William L. Robinson 
Norman J. Chachkin  *

Attorneys
(212) 586-8397

William L. Taylor 
Glenda G. Sloane

Lawyers’ Committee for Civil

Policy Review 
Catholic University School

Center for National

Rights Under Law 
Suite 520, 733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

of Law
Washington, D.C. 20064 
(202) 832-8525

Roderic V. O. Boggs 
Kerry Scanlon

Washington Lawyers’ Committee 
for Civil Rights Under Law 

Suite 427, 733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 347-3801

Attorneys for Amici Curiae

* Counsel of Record



APPENDIX



la

APPENDIX

The Standing of “Testers” to Challenge Racial Steering 
Under the Fair Housing Act of 1968

The statute identifies expansively the discriminatory 
practices which it is intended to outlaw. 42 U.S.C. 
§ 3604(a) makes it unlawful

To refuse to sell or rent after the making of a bona 
fide offer, or to refuse to negotiate for the sale or 
rental of, or otherwise make unavailable or deny, a 
dwelling to any person because of race, color, religion 
or national origin.

(Emphasis supplied.) The italicized terms are very 
broad indeed. The “refusal to negotiate” language is in­
dependent of the limiting words, “after the making of a 
bona fide offer,” a which appear in the first phrase. The 
statute confers on individuals the right to participate in 
negotiations for the sale or rental of property free from 
racial discrimination whether or not they have a bonu 
fide intention to follow through with actual lease or pur­
chase. The practice of racial steering constitutes a self- 
imposed limitation (on the ground of race or color) of a 
realtor’s willingness to negotiate.”

a At least one court has suggested that it is these words which 
have prompted decisions holding that “testers” have no standing. 
Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 
894, 898 n.4 (3d Cir. 1977).

b Racial steering practices uniformly have been held to be within 
the coverage of the Act, though generally on the theory that they 
are included within §3604 (a) ’s catchall phrase, “otherwise make 
unavailable or deny.” E.g., United States v. Real Estate One, Inc., 
433 F. Supp. 1140 (E.D. Mich. 1977); Fair Housing Council v. 
Eastern Bergen County MLS, 422 F. Supp. 1071 (D.N.J. 1976) ; 
Zuch v. Hussey, 394 F. Supp. 1028, 1047 (E.D. Mich. 1975), aff’d 
and remanded, 547 F.2d 1168 (6th Cir. 1977) {per curiam). Cf. 
Moore v. Townsend, 525 F.2d 482 (7th Cir. 1975).



2a

The three phrases of § 3604(a) are in the disjunctive; 
each applies “to any person” but only the first is re­
stricted by the language, “after the making of a bona 
fide offer.” Thus, construing § 3604(a) broadly to effec­
tuate the Congressional purpose “to provide, within con­
stitutional limitations, for fair housing throughout the 
United States,” 42 U.S.C. § 3601; see Trafficante v. Met­
ropolitan Life Ins. Co., 409 U.S. 205 (1972), the ban 
on racial steering extends to “testers” and other indi­
viduals who may not, at any given moment, be planning 
to make bona fide offers for the purchase or lease of par­
ticular property.

This reading of the statutory language is confirmed by 
the legislative history. Title VIII of the 1968 Civil 
Rights Act did not appear in the original House of Rep­
resentatives version. It was added by an amendment on 
the Senate floor introduced by Senator Dirksen. 114 
Cong. Rec. 4570 (February 28, 1968). However, § 204(a) 
in Senator Dirksen’s amendment omitted the language in 
question and would have made it a discriminatory prac­
tice

To refuse to sell or rent, to refuse to negotiate for 
the sale or rental of, or otherwise make unavailable 
or deny, a dwelling to any person because of race, 
color, religion, or national origin.

114 Cong. Rec. 4571 (February 28, 1968). The words 
“after the making of a bona fide offer or” were added 
subsequently, as the result of an amendment suggested 
by Senator Allott and accepted by the bill’s Floor Man­
ager, Senator Mondale. 114 Cong. Rec. 5515-16 (March 
6, 1968).

When his amendment was brought up for discussion 
(cloture having been invoked on the bill), Senator All­
ott was very specific about its reach and effect. He 
stated that it



. . . applies to sale or rental—the first four words 
only of line 7.
It will be noted that the latter part of paragraph (a) 
is not conditioned upon a bona fide offer, because the 
amendment as offered concludes with the word “or” 
rather than “and.”

114 Cong. Rec. 5515 (Mar. 6, 1968). On this basis, the 
amendment was accepted by Senator Mondale and incor­
porated into the bill. Id. at 5516-17.°

In addition, 42 U.S.C. § 3604(b) prohibits discrimina­
tion because of race or color

against any person in the terms, conditions of sale or 
rental of a dwelling, or in the provision of services or 
facilities in connection therewith . . .

(emphasis supplied). Just as requiring more onerous 
application procedures for blacks can be viewed as dis­
crimination in the terms or conditions of sale or rental, 
cf. United States v. Youritan Constr. Co., 370 F. Supp. 
643, 648 (N.D. Cal. 1973), modified as to relief and 
aff’d, 509 F.2d 623 (9th Cir. 1975) (holding such con­
duct to be within “otherwise make unavailable or deny” 
language of § 3604(a)), so may racial steering prac­
tices be interpreted to be within the prohibitions of this 
subsection, which bars these prohibited practices from 
being applied to “any person.” Wheatley Heights Neigh­
borhood Coalition v. Jenna Resales Co., 429 F. Supp. 
486, 488 (E.D.N.Y. 1977).

Finally, § 3604(d) makes it illegal
To represent to any person because of race, color, 
religion, or national origin that any dwelling is not 
available for inspection, sale, or rental when such 
dwelling is in fact so available.

0 There was no discussion of this language in the House, which 
passed the Senate version of the bill without change.



4a

Racial steering constitutes an implicit, and sometimes a 
verbal, representation about the availability of housing. 
Hence it can be considered within the reach of this sub­
section. Compare United States v. Hunter, 459 F.2d 
205, 215 (4th Cir.), cert, denied, 409 U.S. 934 (1972) 
(implicitly discriminatory advertising; § 3604(c)); 
United States v. Real Estate One, Inc., supra n.b. (racial 
steering effect of assignment of black and white em­
ployees by realty firm).

Thus, we submit, the Fair Housing Act creates sub­
stantive rights of nondiscriminatory access to informa­
tion and related housing market services in favor of 
any person, not just persons who make “bona fide offers” 
to purchase or lease property. These rights are pre­
cisely analogous to the “right to occupy certain public 
accommodations or conveyances” which petitioners con­
cede was the basis for recognition of “tester” standing 
in Pierson v. Ray, 386 U.S. 547 (1967) and Evers v. 
Dwyer, 358 U.S. 202 (1958). See Brief for Petitioners 
at 23-24.*,

Lower federal courts, while differing as to the appli­
cable statutory subsection, have followed this general 
analysis, with the result of construing the Act to pro­
tect “testers,” as well as “bona fide purchasers,” from 
racial steering. Grant v. Smith, 574 F.2d 252, 255 (5th 
Cir. 1978) {per curiam) ; Wheatley Heights Neighbor­
hood Coalition v. Jenna Resales Co., supra. See also 
Northside Realty Associates, Inc. v. United States, 605 
F.2d 1348, 1355 (5th Cir. 1979) ; Meyers v. PennypacJc 
Woods Home Ownership Ass’n, supra n.5, 559 F.2d at 
898; Smith v. YMCA of Montgomery, 462 F.2d 634, 
645-46 (5th Cir. 1972).

a Thus, the fact that an individual’s motivation for visiting a 
realty office was to conduct a “test” is irrelevant to his or her 
standing to redress deprivations of rights guaranteed by the Fair 
Housing Act. See Evers v. Dwyer, supra,, 358 U.S. a t 204.



Both Coleman and Willis sought to obtain accurate in­
formation about apartment availability by visiting the 
Havens Realty offices. Both were subjected to the de­
meaning experience of having Havens’ employees’ re­
sponses to their inquiries vary according to their racial 
identities. Each was, therefore, denied rights guaran­
teed by the Fair Housing Act of 1968 and had standing 
to sue for redress.