Trafficante v. Metropolitan Life Insurance Company Brief for the United States as Amicus Curiae

    N o. 71-708

Jit to  jgttpreme djourt of to  I t to l  ^iate
O ctober T e r m , 1971

P a u l  J . T r a f f ic a n t e , e t  a l ., petitioners

' V.

M etro po litan  L if e  I n su r a n c e  C o m p a n y , e t  a l .

ON W R IT  OF C E R T IO R A R I TO TH E UNITED STATES COURT OF 
A P P E A L S  FO R  TH E  N IN T H  CIRCU IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ERWIN N. GRISWOLD,
Solicitor General,

DAVID L. NORMAN,
A ssistant A ttorn ey General, 

LAWRENCE Gr. WALLACE,
D eputy Solicitor General,

A. RAYMOND RANDOLPH, Jr.,
A ssistant to the Solicitor General, 

WALTER W. BARNETT,
FRANK E. SCHWELB,
ELLIOTT D. McCARTY,

A ttorneys,
D epartm ent o f  Justice, 

W ashington, D.G. 20530.



I N D E X

Page
Opinions below________________________________  1
Jurisdiction____________________________________ 1
Question presented_____________________________  2
Statutes involved______________________________  2
Interest of the United States___________________  3
Statement_____________________________________  3
Argument_____________________________________  6

Introduction and summary_________________  6
I. Petitioners are within the terms of 

Section 810 as “persons aggrieved” 
by a discriminatory housing practice __ 10

II. The Purpose of Title VIII confirms 
that incumbent tenants have standing 
to sue their landlord for his refusal 
to rent to non-whites on the basis of 
race when the tenants have been 
injured by such discriminatory housing
practices____________________________ 11

III. The fact that the Attorney General is 
empowered to sue when there is a 
“pattern or practice” of discrimination 
does not preclude private suits in
such situations______________________  20

Conclusion____________________________________  22

CITATIONS
Cases:

Allen v. State Board of Elections, 393 U.S. 544__ 16, 21 
Association of Data Processing Service Organiza­

tions, Inc. v. Camp, 397 U.S. 150_________  17
Barlow v. Collins, 397 U.S. 157_____________  17
465-266— 71------- 1 (I)



II

Cases— Continued Page
Barrows v. Jackson, 346 U.S. 249___________  19
Federal Communications Commission v. Sanders

Bros. Radio Station, 309 U.S. 470_________ 17
Griffin v. Breckenridge, 403 U.S. 88_________  20
Griggs v. Duke Power Co., 401 U.S. 424_____ 20, 21
J. I. Case Co. v. Borak, 377 U.S. 426________ 21
Jones v. Alfred Mayer Co., 392 U.S. 409___  9, 20
Hackett v. McGuire Brothers, Inc., 445 F. 2d

442_________________________________  10
Kennedy Park Homes Ass’n v. City of Lack­

awanna, 318 F. Supp. 669, affirmed, 436 F.
2d 108, certiorari denied, 401 U.S. 1010___ 17

Newman v. Piggie Park Enterprises, 390 U.S.
400_________________________________  16,21

Nyquist v. Lee, 402 U.S. 935, affirming, 318
F. Supp. 710________________________  18

Perkins v. Matthews, 400 U.S. 379_____ 21
Sierra Club v. Morton, No. 70-34, decided

April 19, 1972_______________________  17
Sullivan v. Little Hunting Park, 396 U.S. 229__ 19
Udall v. Tollman, 380 U.S. 1___________  20

Constitution, statutes:
Article III of the Constitution__________  17
Civil Rights Act of 1866, 42 U.S.C. 1982__ 2, 4, 6, 20 
Civil Rights Act of 1968:

Title VII:
42 U.S.C. 2000a______________________  21
42 U.S.C. 2000c______________________  21
42 U.S.C. 2000e______________________  21
42 U.S.C. 2000e-5____________________  10
42 U.S.C. 2000e-5(a)_________________  10
42 U.S.C. 2Q00e-5(e)_________________  10

Title VIII:
42 U.S.C. 3601-3619 (Fair Housing Act) _ 2,

6, 7,12, 13, 14



III

Constitution, statutes—Continued Paee
42 U.S.C. 3601________________________  3, 12
42 U.S.C. 3602(d) _____________________  10
42 U.S.C. 3604_______________________ 4,7,11
42 U.S.C. 3605________________________  7
42 U.S.C. 3607________________________  7
42 U.S.C. 3608-3611__________________  3
42 U.S.C. 3610________________ 2, 3, 6, 7, 8, 10
42 U.S.C. 3610(a)_______ 2, 4, 5, 6, 8, 10, 15, 19
42 U.S.C. 3610(c)_____________________  4
42 U.S.C. 3610(d)___________________ 2,4,8, 10
42 U.S.C. 3612__________________  3, 5,8, 9, 11
42 U.S.C. 3612(a)_____________________  8
42 U.S.C. 3612(b)_____________________  8
42 U.S.C. 3612(c)_____________________  8
42 U.S.C. 3613_______________________3, 8, 20
42 U.S.C. 3614________________________  8
42 U.S.C. 3631________________________ 3

Miscellaneous:
/  114 Cong. Rec. (1968):

(  ILR. 2516, 90th Cong., 2d Sess_____________ 8
^ 2270__________________________________ 8

2271__________________________________  9
2271-2272_______________________________  9, 11
2274__________________________________ 12
2277 ________________________________  13
2277-2278____________________________  14
2278 ________________________________  9
2279-2280____________________________  12
2524-2528____________________________  12
2540__________________________________ 14
2704 ________________________________  12
2705 ________________________________  12
2706 _________l ______________________  12, 13
2991-2992____________________________  14
2993____________________________________  14, 16



IV

4Htr^5i€r^0tb-GeBg^-2d-Sess—- Continued Pasfe
3124__________________________________ 13
3127______■___________________________  14
3348__________________________________ 16
3421 ________________________________  14
3422 ________________________________  13, 14
3426 ______________________________  - 8
3427 ________________________________  8
4064 ________________________________  8
4065 ________________________________  8
4570__________________________________ 8
4570-4573____________________________  9
4573 ______________________________________ 9
4574 ________________________________  12
5515__________________________________ 16
5992__________________________________ 9
6000__________________________________ 15
9572__________________________________ 12
9599__________________________________ 14, 16
9604__________________________________ 16
9621__________________________________ 9

Hearings on H. Res. 1100 before the House 
Committee on Rules, 90th Cong., 2d Sess.
(1968)__________________________________  9, 12

Hearings before the Subcommittee on Housing 
and Urban Affairs of the Senate Committee on 
Banking and Currency on S. 1358, S. 3114,
and S. 3380, 90th Cong., 1st Sess. (1967)-----  9,

12, 13, 14, 19
S. 1358, 90th Cong., 1st Sess___________  8



J t i  t l »  ^ u p r ttn e  flfourt o f  the S tra te i p la t e s
O c t o b e r  T e r m , 1971

No. 71-708

P a u l  J .  T r a f f ic a n t e , e t  a l ., p e t it io n e r s

v.
M e t r o p o l it a n  L if e  I n s u r a n c e  C o m p a n y , e t  a l .

ON W R IT  OF C E R T IO R A R I TO TH E UNITED STATES COURT OF  
A P P E A L S  F O R  TH E N IN T H  CIR CU IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the court of appeals is reported 
at 446 F.2d 1158 (Pet, App. A, 1-9). The opinion 
of the district court is reported at 322 P. Supp. 352.

JURISDICTION

The judgment of the court of appeals was entered 
on August 6, 1971, and a petition for rehearing en 
banc was denied on September 13, 1971. The petition 
for a writ of certiorari was filed on November 26, 
1971, and was granted on February 22, 1972. The 
jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(i)



2

QUESTION PRESENTED

The United States will discuss the following 
question:

Whether, under Title V II I  of the Civil Rights 
Act of 1968, 42 U.S.C, 3601-3619, tenants in an 
apartment complex have standing to maintain a suit 
against their landlord for his refusal to rent to non­
whites on the basis of race.1

STATUTE INVOLVED

Section 810 of Title V II I  of the Civil Rights Act of 
1968, 42 U.S.C. 3610, provides in relevant part:

(a) Any person who claims to have been 
injured by a discriminatory housing practice 
or who believes that he will be irrevocably in­
jured by a discriminatory housing practice that 
is about to occur (hereafter “ person ag­
grieved” ) may file a complaint with the Secre­
tary. * * *

* * * * *
(d) I f  within thirty days after a complaint 

is filed with the Secretary or within thirty 
days after expiration of any period of refer­
ence under subsection (c) of this section, the 
Secretary has been unable to obtain voluntary 
compliance with this subchapter, the person ag­
grieved may, within thirty days thereafter, 
commence a civil action in any appropriate 
United States district court, against the re­
spondent named in the complaint, to enforce 
the rights granted or protected by this sub- 
chapter, insofar as such rights relate to the 
subject of the complaint: * * *

1 Petitioners also rely upon the Civil Eights Act of 1866, 
42 U.S.C. 1982. See notes 6,86 infra.



3
INTEREST OE THE UNITED STATES

In. 1968, Congress enacted Title V III  of the Civil 
Rights Act to implement the “ policy of the United 
States to provide, within constitutional limitations, 
for fair housing throughout the United States.”  42 
U.S.C. 3601. The fulfillment of this objective depends 
in large measure on the resources available for en­
forcement. While the Department o f  Housing and 
Urban Development and the Attorney General have 
important responsibilities under Title V III ,2 com­
plaints by private persons are the principal method of 
securing compliance with the fair housing provisions, 
whether through conciliation or litigation.3 Accord­
ingly, the United States has a substantial interest in 
this case, where the issue concerns the class of persons 
entitled to prosecute complaints under Title V III .4

STATEMENT

Petitioners Trafficante, a white, and Carr, a Negro, 
are tenants in Parkmerced, an apartment complex 
in San Francisco, California, having approximately 
8000 residents, less than one percent of whom are 
non-white (Pet. App. C, at 2). On May 13, 1970, they 
filed separate complaints with the Secretary of Hous­
ing and Urban Development pursuant to Section 810 
of Title V III  of the Civil Rights Act of 196-8, 42 
U.S.C. 3610, which provides in pertinent part that 
complaints may be filed by “Any person who claims to

2 See 42 U.S.C. 3608-3611, 3613, 3631.
3 See 42 U.S.C. 3610, 3612.
4 The United States participated as amicus curiae in the 

court of appeals and in support of the petition for certiorari 
in this case.



4

have been injured by a discriminatory housing prac­
tice or who believes that he will be irrevocably injured 
by a discriminatory housing practice that is about to 
occur (hereafter ‘person aggrieved’) ,” 42 U.S.C. 
3610(a). (Pet. App. C, at 5.) They alleged that Metro­
politan Life Insurance Company, then owner of Park- 
merced, had discriminated against non-whites on the- 
basis of race in the rental of apartments within the 
complex, in violation of Section 804 of Title- V III , 42 
U.S.C. 3604. (Ibid.)

Pursuant to 42 U.S.C. 3610(c), HUD notified the 
appropriate state agency in California of their com­
plaints ( ibid.). After the state agency referred the 
complaints back to HUD because it did not have ade­
quate resources to deal with the charges,5 and after 
HUD had failed to secure voluntary compliance with­
in 30 days, petitioners Trafficante and Carr brought 
this action against Metropolitan in the United States 
district court under 42 U.S.C. 3610(d).

Their complaint alleged that, in violation o f Title 
V III , Metropolitan had discriminated against non­
white rental applicants by, among other things, mak­
ing it known to them that they would not be welcome 
at Parkmerced; manipulating the waiting lists for 
apartments and delaying action on their applications; 
and adopting and applying discriminatory acceptance 
standards (Pet. App. C, at 3 -4).6 They claimed that, 
as a result of these practices, they had been injured

5 Pet App. A, at 2 n. 1.
6 The complaint also sought relief on the basis of 42 U.S.C. 

1982 (Pet. App. C, at 6).



5

in the following respects: (a) they had been deprived 
o f the social benefits of living in an integrated com­
munity; (b) they had lost the business and profes­
sional advantages they would have derived from liv­
ing with members of minority groups; and (c) they 
had been “ stigmatized” within the community as resi­
dents of a “ white ghetto,”  and had thereby suffered 
embarrassment and economic damages in “ social, busi­
ness and professional activities”  (Pet. App. C, at 
4-5). Plaintiffs sought an order directing Metropoli­
tan to cease and desist from engaging in discrimina­
tory housing practices, an award of actual and puni­
tive damages, and reasonable attorneys’ fees (Pet. 
App. C, at 7).

Later, the Commitee o f Parkmerced Residents Com­
mitted to Open Occupancy and other Parkmerced 
tenants filed a complaint in intervention under Sec­
tion 812 of Title V III , 42 U.S.C. 3612, which substan­
tially repeated the allegations of the original com­
plaint; also, Parkmerced Corporation, which acquired 
the apartment complex from Metropolitan after the 
original complaint had been filed, was joined as a 
defendant (Pet. App. A, at 2).

The district court held that petitioners were not 
within the class of persons entitled to sue under Title 
V II I  and dismissed the complaints. The court of 
appeals affirmed on the same basis (Pet. App. A ). 
Although recognizing that the language in the statute 
authorizing suit by any person “who claims to have 
been injured by a discriminatory housing practice,”  
42 U.S.C. 3610(a), is “ very broad”  {id. at 4 n. 6 ), the 
court of appeals construed the statute narrowly to

465- 266— 71------------2



6

permit complaints only by 4‘persons who are the ob­
jects of discriminatory housing practices”  (id. at 6).7

ARGU M EN T

INTRODUCTION AND SUMMARY

The issue in this case is one of statutory interpreta­
tion: are tenants “ persons aggrieved”  within the 
meaning of Section 810 when they have been injured 
by their landlord’s discriminatory housing practices 
against non-white rental applicants? I f  only the lan­
guage of the statute were considered we think there 
would be no doubt that such tenants have standing 
to sue as “ persons aggrieved.”  They “ have been in­
jured by a discriminatory housing practice”  and, 
on its face, Section 810(a) requires no more.

The legislative history of the Pair Housing Act 
points in the same direction. The Act was intended 
to eliminate the harmful consequences to both whites 
and non-Whites of racial discrimination in housing. 
The damage to incumbent tenants from their land­
lord’s exclusion of non-whites may differ from the 
damage to persons who are the direct objects of dis­
crimination. But Congress recognized, throughout its 
consideration of the Act, the kind of injury alleged 
by petitioners here as incumbent tenants, and in Sec­
tion 810 required only that the complainant’s injury 
result from discriminatory housing practices.

Moreover, private complaints are the primary 
method of securing compliance with the Act. There is

7 The court of appeals also held, as had the district court, 
that petitioners had no standing to sue under 42 U.S.C. 1982 
(Pet. App. A, at 7-9). See note 36 infra.



7

no reason why Congress would have intended to ex­
clude any group of persons who could be expected to 
seek enforcement in order to redress the injury they 
sustain, especially incumbent tenants who are in a 
position to know of their landlord’s practices and who 
incur a continuing injury even when those wdio have 
been unlawfully turned away satisfy their housing 
needs elsewhere before the landlord’s violation can be 
remedied.

Before turning to the specific question presented by 
this case, we will first discuss briefly the structure 
of Title V II I  of the Civil Rights Act of 1968, 42 
U.S.C. 3601-3619, commonly known as the Bair Hous­
ing Act. The Act prohibits discrimination on the basis 
of race, eolor, religion, or national origin in the sale 
or rental of housing by private owners, real estate 
brokers, 'and financial institutions. 42 U.S.C. 3604, 
3605, 3607. Specifically, it is unlawful to refuse to rent 
or negotiate for rental because of race or color; to 
discriminate against any person in the terms, condi­
tions, or privileges of rental because of race or color; 
or to represent to any person because of race or color 
that a dwelling is not available for rental when the 
dwelling is in fact available. 42 U.S.C. 3604.

The Secretary of Housing and Urban Development 
is empowered to receive and investigate complaints 
regarding discriminatory housing practices. 42 U.S.C. 
3610. The Secretary must defer to state agencies that 
can provide relief, but if  the state agency does not act 
the Secretary may seek to resolve the complaint “ by 
informal methods of conference, conciliation, and per­



8

suasion.” 42 U.S.C. 3610(a). I f  these attempts fail, the 
complainant may proceed to court under Section 810 
(d ). 42 U.S.C. 3610(d).

Also, a person aggrieved may proceed under Section 
812 by bringing an action in court within 180 days 
after the alleged discriminatory housing practice oc­
curred. 42 U.S.C. 3612. The court may appoint an 
attorney for the complainant, may grant as relief an 
injunction, and may award actual damages and punitive 
damages up to $1,000, together with costs and attorney 
fees. 42 U.S.C. 3612(b) and ( c ) .

In addition, under Section 813 the Attorney General 
may bring a civil action in federal court whenever he 
has reasonable cause to believe that any person “ is 
engaged in a pattern or practice of resistance to the 
full enjoyment of any of the rights granted”  by the 
Act. 42 U.S.C. 3613. Such suits by the Attorney Gen­
eral, as well as suits by private persons under Section 
812, shall “ be in every way expedited.” 42 U.S.C. 3614.

Thus, complaints by private persons under Section 
810 or Section 812 are the primary method of securing 
compliance with Title V III .8 And, in our view, incum­

8 Section 810 is derived from Section 11 of S. 1358, 90th 
Cong., 1st Sess., which Senator Mondale offered as an amend­
ment to ILK. 2516—the hill that eventually became the Civil 
Eights Act of 1968. 114 Cong. Rec. 2270 (1968). (As intro­
duced and passed in the House, LI.R. 2516 did not contain a 
fair housing title.)

After a number of cloture motions failed, see 114 Cong. Rec. 
3426,3427,4064,4065, the Senate passed Senator Mondale’s motion 
to table his proposed amendment. 114 Cong. Rec. at 4570. Senator 
Dirksen then introduced a substitute amendment to LI.R. 2516,



9

b e n t  te n a n ts  a l le g in g  th a t  th e y  h a v e  b e e n  in ju r e d  b y  
th e ir  la n d lo r d ’s d is c r im in a t o r y  h o u s in g  p r a c t i c e s  
a g a in s t  n o n -w h ite  r e n ta l  a p p lic a n t s  a re  e n t it le d  to  file  

s u ch  c o m p la in ts  w it h  th e  S e c r e t a r y  a n d  m a y  th e r e ­

a f t e r  su e  in  c o u r t  i f  th e  S e c r e t a r y  is  u n a b le  to  se tt le  

th e  m a t te r  t h r o u g h  in f o r m a l  m e a n s .

which also contained a fair housing title. 114 Cong. Eec. at 
4570-4573.

The Dirksen substitute, which the Senate later passed, 114 
Cong. Rec. at 5992, and the House subsequently agreed to, 114 
Cong. Rec. at 9621, retained from the Mondale amendment the 
provision in Section 810(a) allowing complaints to be filed 
by “ [a]ny person who claims to have been injured by a dis­
criminatory housing practice or who believes that he will be 
irrevocably injured by a discriminatory housing practice that is 
about to occur (hereafter ‘person aggrieved’ ).”

Section 812 is derived from the Dirksen substitute, which 
deleted the provisions in the Mondale amendment that would 
have empowered the Secretary to hold hearings and issue cease 
and desist orders upon complaint or on his own initiative, which 
orders would have been enforceable in court. See 114 Cong. 
Rec. at 2271-2272, 4573. (Under the Mondale amendment a com­
plainant coidd also sue in court if the Secretary declined to 
resolve a charge or if the person aggrieved refused to consent 
to a settlement, see 114 Cong. Rec. at 2271 (Section 11(a)).

There are no Committee reports on Title V III either in the 
House or the Senate. However, the Senate held extensive hear­
ings on S. 1358—the Mondale amendment, see Hearings before 
the Subcommittee on Housing and Urban Affairs of the Sen­
ate Committee on Banking and Currency on S. 1358, S. 2111/., 
and S. m o ,  90th Cong., 1st Sess. (1967), and these were fre­
quently referred to in the floor debates, see 114 Cong. Eec. at 
2278 (Sen. Mondale); Jones v. Alfred Mayer Co., 392 U.S. 409, 
415 n. 16. Also, the House held hearings on the bill as passed 
by the Senate, see Hearings on H. Res. 1100 before the House 
Com/mittee on Rules, 90th Cong., 2d Sess. (1968).



10

I

PETITIONEES ARE WITHIN THE TERMS OF SECTION 810 AS
"PERSONS AGGRIEVED'’ '’ BY A DISCRIMINATORY HOUSING
PRACTICE

Section 810, pursuant to which petitioners Traffieante 
and Carr brought this action, provides in relevant part 
that “ [a]ny person who claims to have been injured by a 
discriminatory housing practice * * * (hereafter ‘person 
aggrieved’) ” may file a complaint with the Secretary 
and, if  the complaint is not resolved, may bring a civil 
action in court, 42 U.S.C. 3610 (a) and (d ) . Construing a 
similar "standing”  provision in Title Y II  of the Civil 
Rights Act of 1968,42 TJ.S.C. 2000e-5,9 the Third Circuit 
has held that the language Congress used “ shows a con­
gressional intention to define standing as broadly 
as is permitted by Article I I I  of the Constitution.”  
Hackett v. McGuire Brothers, Inc., 445 F. 2d 442, 446 
(C.A. 3) .10 Here, the court below itself recognized that 
the relevant language in Section 810(a) is “very broad” 
(Pet. App. A, at 4 n. 6).

Under the above-quoted language of Section 810(a), 
it seems apparent that petitioners Traffieante and Carr 
are “persons aggrieved” : each is a “person,” see 42 
U.S.C. 3602(d) ; each “ claims to have been injured by a

9 Under that Section, charges may be filed with the Equal Em­
ployment Opportunity Commission by “ a person claiming to be 
aggrieved” by an unlawful employment practice, 42 U.S.C. 2000e- 
5(a) ; if the matter is not resolved by EEOC, the person aggrieved 
may bring a civil action in court, 42 U.S.C. 2000&-5 (e ).

10 The court there held that a pensioner had standing to file a 
complaint against his former employer charging unlawful em­
ployment discrimination against him in the past and against all 
present and potential non-white employees.



11

discriminatory housing practice” ; and each has alleged 
acts by his landlord that constitute violations of the 
Act, see 42 U.S.C. 3604. Moreover, since petitioners’ 
allegations must be treated as true,11 they are persons 
who have in fact been injured by discriminatory hous­
ing practices that their landlord committed.12

II

THE PURPOSE OP TITLE VIII CONFIRMS THAT INCUMBENT 
TENANTS HAVE STANDING TO SUE THEIR LANDLORD FOR 
HIS REFUSAL TO RENT TO NON-WHITES ON THE BASIS 
OF RACE WHEN THE TENANTS HAVE BEEN INJURED BY 
SUCH DISCRIMINATORY HOUSING PRACTICES

Although petitioners thus come squarely within 
the terms of the Act as “ persons aggrieved,”  the court

11 The court of appeals affirmed the district court’s dismissal at 
the pleading stage for failure to state a claim upon which relief 
could be granted (see Pet. App. A, at 6 n. 8).

12 While the original complaint in this case was brought 
pursuant to Section 810, which authorizes complaints to 
be filed and suits to be brought by all “ persons aggrieved,” the 
complaint in intervention was based on Section 812, which does 
not contain a standing provision. However, there is nothing to 
indicate that Congress intended to entitle a narrower class of per­
sons to sue under Section 812 than under Section 810 for redress 
of the same violations.

Rather, Section 812, which is derived from the Dirksen sub­
stitute for the Mondale amendment, see note 8 supra, was added 
in place of the provisions empowering the Secretary o f Hous­
ing and Urban Development to enforce cease and desist orders 
in court, ibid. Since under the Mondale amendment the Secre­
tary could have issued such orders after charges had been filed 
by any person aggrieved, see 114 Cong. Rec. at 2271-2272, and 
since the Dirksen substitute was intended merely to supply a 
different method of enforcement for the same class of persons, 
Sections 810 and 812 should not be interpreted differently with 
respect to standing.



12

of appeals held that they were not entitled to prose­
cute complaints because Congress did not intend “ to 
grant standing to sue to any private persons other 
than the direct victims o f  discriminatory housing 
practices proscribed by the A ct”  (Pet. App. A, at 7). 
But the purpose of the Pair Housing Act, as revealed 
by its language and legislative history, lends no sup­
port to the limiting construction the court of appeals 
imposed on the broad language Congress utilized; 
instead it confirms what the plain meaning o f Section 
810 (a) clearly indicates—that incumbent tenants have 
standing to maintain actions against their landlord 
when they have been injured by his discriminatory 
practices against rental applicants.

The general purpose o f the Pair Housing Act is set 
forth in Section 801: “ It is the policy o f the United 
States to provide, within constitutional limitations, 
for fair housing throughout the United States.”  42 
U.S.C. 3601. When Congress passed legislation to this 
end in 1968, it did so because of the severe damage 
that minority groups suffered as a result of housing 
discrimination13 and because state laws had not been 
fully enforced and had therefore proven ineffective.14

While it was generally recognized that members of 
minority groups were damaged the most from dis­

13 See, e.g., 114 Cong. Rec. 2274 (1968) (Sen. Mondale); id. 
at 2279-2280, 2524-2528 (Sen. Brooke); id. at 2704 (Sen. 
Javits).

14 See, e.g., Senate Hearings, supra note 8, at 16 (colloquy 
between Sen. Mondale and Attorney General Clark); 114 Cong. 
Rec. 2705, 2706 (1968) (Sen. Javits); id. at 4574 (Sen. Dirk- 
sen); id. at 9572 (Rep. Leggett); House Hearings (Part / ) ,  
supra note 8, at 4 (Rep. Celler).



13

crimination in housing, proponents of this legislation 
also emphasized that persons other than those who 
were the direct objects of discrimination had a sub­
stantial interest in ensuring fair housing since they 
suffered as well.15 16 It was pointed out that to a large 
extent housing patterns had been imposed on home- 
seekers—both white and non-white10—and that the 
“ readiness of Americans to live in mixed neighbor­
hoods is ahead of the policies and practices of the

15 For example, Senator Javits pointed out that housing 
discrimination adversely affected not only the person discrimi­
nated against but also the people in the community where he 
had chosen to live. 114 Cong. Rec. at 2706.

A  witness at the Senate hearings testified that the 
“ damage of racial injustice and segregation in housing is 
greatest on the colored people but it is placing a heavy 
burden on white Americans * * Senate Hearings, supra 
note 8, at 180 (statement of Algernon D. Black, Member of 
the Board of Directors, American Civil Liberties Union). 
Others noted that housing segregation contributed to a divided 
society, with whites and blacks hostile to one another because 
they had been kept apart by a wall of discrimination. Id. at 83 
(statement of Commissioner Frankie M. Freeman, United States 
Commission on Civil Rights); 114 Cong. Rec. at 3124 (Sen. 
Hatfield).

The Secretary of Housing and Urban Development testified 
that fair housing legislation was needed to stabilize neighbor­
hoods, thus benefiting both whites and blacks in the community. 
Senate Hearings, supra note 8, at 37; see also id. at 21.

And in advocating passage of the Fair Housing Act, Senator 
Mondale, the author of the provision at issue in this case, see 
note 8 supra, and 114 Cong. Rec. at 2277, stated that “We have 
learned many times over that in truly integrated neighborhoods 
people have been able to live in peace and harmony—and both 
Negroes and -whites are richer for the experience.” 114 Cong. 
Rec. at 3422.

16 Senate Hearings, supra note 8, at 78 (statement of Com­
missioner Frankie M. Freeman, United States Commission on 
Civil Rights).



14

housing establishment.” 17 Landlords and apartment 
managers, for example, often refused to rent to non­
whites on the basis of race not so much out of bigotry 
but because of business considerations.18

Of particular relevance to this case is the example, 
frequently cited during consideration of the Act,19 of 
the discrimination experienced by a black Naval offi­
cer when he attempted to rent an apartment in a cer­
tain building.20 The officer, in his testimony at the Sen­
ate hearings, included a letter from one of the tenants 
complaining of the officer’s exclusion and stating that 
“ as a tenant, I  would neither approve nor want to 
support a policy as vicious and uncalled for as racial 
exclusion.” 21 After referring to this officer’s plight 
during the Senate debates, Senator Mondale, the au­
thor of the provision at issue in this case, see notes 
8 & 14 supra, predicted that passage o f the Fair Hous­
ing Act would dispel fear and ignorance and that 
'“ 'both Negroes and whites [would use] * * * the law 
in the spirit in which it was intended.”  114 Cong. 
Rec. at 3422.22 On the other hand, there is nothing to

17 Id. at 180 (statement of Algernon D. Black, Member of 
tlie Board of Directors, American Civil Liberties Union).

18 See, e.g., 114 Cong. Bee. at 2991-2992, 2993, 3421 (Sen. 
Mondale): id. at 3127 (Sen. Hatfield) ; id. at 9599 (Bep. Cor- 
m an); Senate Hearings, supra note 8, at 35 (statement of 
Bobert C. Weaver, Secretary of Housing and Urban 
Development).

19 See, e.g., 114 Cong. Bee. 2277-2278, 2540, 2993, 3422 (1968).
20 Senate Hearings, supra note 8, at 200-204.
21 Id. at 202.
22 The quotation in the text is taken from the following por­

tion of Senator Mondale.’s statement (114 Cong. Bee. at 3422) :
“We have learned many times over that in truly integrated 

neighborhoods people have been able to live in peace and har-



15

indicate that Congress thought it had barred tenants 
from seeking administrative and judicial relief to pre­
vent discrimination against those attempting to rent 
or that relief could be obtained only by those persons 
directly discriminated against.

Indeed, when Congress’ evident concern with the in­
jury resulting from discrimination against others is 
considered together with matters relating to enforce­
ment of the Act, it becomes even more apparent why 
Congress used the broad language of Section 810(a) 
to define the persons entitled to file complaints and 
why incmnbent tenants, such as petitioners, were there­
by granted standing to sue. Congress knew that the Act 
would cover more than 52 million housing units,23 that

mony—and both Negroes and whites are the richer for the 
experience.

“ Thus, a large part of the job that lies ahead of us—that of 
overcoming ignorance, and teaching the truths of integration—- 
can be assigned to the role of law as a teacher. The same ignor­
ance and fear was present in the debates over public accom­
modations in the 1964 civil rights law, the same horror stories 
with a few changes were circulated then. But the law has, 
on the whole, operated smoothly and well, and both Negroes 
and whites have used the law in the spirit in which it was 
intended.

“ I believe the same will be true when we pass this measure. 
There will not be a great influx of all the Negroes in the 
ghettos into the suburbs—in fact, the laws of supply and 
demand will take care of who moves into what house in which 
neighborhood. There will, however, be the knowledge by 
Negroes that they are free—if they have the money and the 
desire—to move where they will; and there will be the knowl­
edge by whites that the rapid, block-by-block expansion of the 
ghetto will be slowed and replaced by truly integrated and 
balanced living patterns.”

23114 Cong. Bee. at 6000.



16

state laws had made little impact, in part because they 
had not been enforced,24 that non-white rental ap­
plicants would not always be sure whether they had 
been rejected or turned away because of their race,25 
and that under the Act complaints by private persons 
would serve as the primary method of discovering 
violations and securing compliance.26 Thus, during the 
Senate debate, Senator Mondale stressed the need for, 
in his words, “ private attorneys general” to prosecute 
complaints27 and successfully opposed amendments 
that would have discouraged such actions.28 It is note­
worthy too that the only specific objection to the stand­
ing provision voiced in either the House or the Senate 
was that it was too broad.29

24 See note 14 supra.
25 See, e.g., 114 Cong. Rec. at 2993 (Sen. Monidale); id. at 

9599 (Rep. Corman: “There are the cases where Negroes driv­
ing about the city looking for apartments have seen ‘for rent’ 
signs in apartment house windows only to find upon inquiry 
that the apartment has been rented and that the landlord for­
got to remove the sign. * * * Those owners who on seeing a 
nonwhite applicant for an apartment fake records to show that 
the apartment rents for twice its advertised Cate.” ).

26 Senator Jordan had objected to the Mondale amendment, 
see note 8 supra, which empowered HUD to issue cease and de­
sist orders, because this would necessitate the hiring of a “ whole 
army of employees” to ensure full enforcement. 114 Cong. Rec. 
at 3348.

27114 Cong. Rec. at 5515.
23 This Court has recognized the critical importance o f pri­

vate litigation in the enforcement of civil rights legislation. See, 
e.g., Newman v. Piggie Parle Enterprises, 390 U.S. 400, 401-402; 
Allen v. State Board of Elections, 393 U.S. 544, 556-557.

29114 Cong. Rec. at 9604 (Rep. Pucinski).



17

Here, as this Court stated in Federal Communica­
tions Commission v. Sanders Bros. Radio Station, 309 
U.S. 470, 477, where the relevant statute authorized 
appeal by all “ persons aggrieved”  by the Commis­
sion’s grant or denial of a license, “ Congress had 
some purpose” in using such broad language.30 We 
have discussed above the goals Congress sought to 
achieve and the policies reflected in the Act. It would 
be inconsistent with these congressional aims for the 
class of persons entitled to sue under Title V II I  to be 
as limited as the court of appeals held.31

Tenants in housing facilities maintained on a segre­
gated basis by their landlord, as well as those who 
have been excluded because of their race, are injured

30 In our view the standing issue in this case is similar to the 
question presented in Sanders and is unlike Association of Data 
Processing Service Organizations Inc., v. Gamp. 397 U.S. 150, 
and Barlow v. Collins, 397 U.S. 159, because in the latter cases 
the relevant statute did not, as in this case and Sanders, have 
a specific provision conferring standing on a defined class of 
persons.

Thus, since there is no dispute that petitioners have alleged 
sufficient injury in fact to comply with Article III  require­
ments, see Sierra Club v. Morton, No. 70-34, decided April 19, 
1972, the question here is whether Title V III should be in­
terpreted to confer standing on petitioners and other incum­
bent tenants similarly situated.

31 See also Kennedy Park Homes Ass'n v. City of Lackawan­
na, 318 F. Supp. 669, 697 (W.D. N.Y.), affirmed, 436 F. 2d 
108, 112 (C.A. 2) (opinion of Mr. Justice Clark), certiorari 
denied, 401 U.S. 1010, upholding the standing of the Diocese 
of Buffalo and others to sue under Title V III of the Civil 
Bights Act of 1968. Plaintiffs there claimed that the city had 
discriminatorily rezoned property owned by the Diocese that 
had been selected as a site for a low-income housing project.



18

by such illegal practices,32 as Congress recognized. In 
their complaint in this case, petitioners have set forth 
in detail the nature of their injury (see statement, 
supra, p. 5 ).33 There is no reason why Congress would 
have intended to allow suits only by rejected appli­
cants and not by the tenants themselves.

The people already living in an apartment complex 
are in a position to know whether their landlord is 
discriminating on the basis of race; they will know the 
racial composition of their apartment building; they 
will know whether apartments are vacant while non­
white applicants are turned away; and they will know 
from their own experience how prospective tenants are 
chosen. Moreover, the continuing injury suffered by 
incumbent tenants as a result of their landlord’s dis­
criminatory practices is often more amenable to 
effective judicial redress than is the injury to a pros­
pective tenant who has been turned away, since the 
latter may satisfy his housing needs elsewhere before

32 Compare Nyquist v. Zee, 402 U.S. 935, where this Court 
affirmed a district court decision, 318 F. Supp. 710 (W.D.N.Y.), 
which sustained the standing of white and black parents to 
challenge, under the equal protection clause, a Few York statute 
limiting the authority of local school boards to desegregate 
their schools. The district court’s decision was based in large 
part on the injury suffered by school children attending sub­
stantially uniracial schools as a result of restrictions on their 
opportunity to know and attend school with children of other 
races, 318 F. Supp. at 714.

33 In addition to pecuniary loss, petitioners claim other injury, 
the nature of which is described in detail in the affidavit of the 
Associate Dean of the Harvard Medical School (Pet. App. D) 
and closely parallels the concerns expressed in Congress during 
consideration of the Act. See note 15 supra.



19

judicial or administrative relief can be secured.34 The 
incumbent tenants, therefore, may often have a sub­
stantially greater incentive to bring and prosecute 
fully a lawsuit, and there is no reason for construing 
the statutory conferral of standing contrary to this 
reality and the plain meaning of the language Con­
gress used.

Furthermore, where, as petitioners allege here, non­
white applicants are told by the landlord that “ resi­
dents, management and employees will create a hostile 
atmosphere”  for them if they are accepted (Pet. App. 
C, at 3), suits by such persons are discouraged. They 
may not want to live in such a place and may thus be 
unwilling to sue in order to secure their right to do 
so. In such situations, suits by the tenants themselves 
are essential if  private litigation is to secure full 
compliance as Congress intended.35

For these reasons, the Secretary of Housing and 
Urban Development, acting through the Regional 
Administrator, construed the statute as authorizing 
complaints to be filed by petitioners Traffieante and 
Carr as incumbent tenants (Pet. 12). But the court of 
appeals, by interpreting Section 810(a) to preclude 
suits by such tenants, apparently has also barred them 
from filing with the Department complaints seeking

34 During the Senate hearings, Senator Mondale pointed out 
that only 12 percent of the complaints filed under state housing 
laws were satisfactorily closed, in part because “ the complain­
ant finds that he cannot wait out the period required for in­
vestigation and settlement” (Senate Hearings, supra note 8, 
at 16).

35 See Sullivan v. Little Hunting Parle, 396 U.S. 229, 237; 
Barrows v. Jackson, 346 U.S. 249, 259; see also note 28 supra.



20

informal conciliatory action. The Secretary’s interpre­
tation of the statute he administers is entitled to great 
weight. Griggs v. Duke Power Co., 401 U.S. 424, 433- 
434; TJdall v. Tollman, 380 U.S. 1, 16. In light of this 
administrative construction, together with the lan­
guage of the statute itself and Congress’ evident pur­
pose in using that language, petitioners are within 
the class of persons entitled to sue and the court of 
appeals erred in holding otherwise.36

Ill

THE FACT THAT THE ATTORNEY GENERAL IS EMPOWERED 
TO SUE WHEN THERE IS A ‘  ‘  PATTERN OR PRACTICE”  
OF DISCRIMINATION DOES NOT PRECLUDE PRIVATE SUITS 
IN SUCH SITUATIONS

There is some suggestion in the opinion of the court 
of appeals that petitioners should not have standing 
because the Attorney General may sue under Section 
813 to correct “ patterns and practices”  of housing 
discrimination (see Pet. App. A, at 6-7). But there is 
nothing in the language or legislative history of the 
Act to indicate that when a landlord’s discrimination 
rises to such a level that a “ pattern or practice” may

36 In our view, proper resolution of the principal issues in 
this case, which are raised under Title V III, will make it un­
necessary for this Court to reach petitioners’ additional con­
tentions under 42 U.S.C. 1982. We note, however, that to the 
extent petitioner Carr claims to be a victim of tokenism in a 
housing development that discriminates against members of his 
race (see Pet. App. D, at 5-11), his complaint seems within 
the terms of Section 1982 as a claim that he is denied “the 
same right * * * * as is enjoyed by white citizens * * * to
* * * lease * * * real * * * property.” Cf. Jones v. Alfred  
Mayer Co., 392 U.S. 409; Griffin v. Brechenridge, 403 U.S. 
88. '



21

exist, private suits are or should be barred. To the 
contrary, the more pervasive the discriminatory prac­
tices the more need there is for private enforcement.

Congress knew, as this Court itself has recognized, 
see note 28 supra, that in light of the limited size of the 
Attorney General’s staff, private persons would have 
to be relied upon, even in situations where the Attor­
ney General is empowered to act. (At present, most 
of the fair housing litigation conducted by the Attor­
ney General is handled by the Housing Section 
of the Civil Eights Division, which currently has an 
authorized strength of 22 attorneys.) In such situa­
tions, suits by individual plaintiffs are both private 
and public actions; they act on their own behalf, 
but they also sue as private attorneys general in vin­
dicating a policy that Congress considered to be of the 
highest priority. See Newman v. Piggie Park Enter­
prises, 390 TJ.S. 400, 401-4Q2.37 To the extent that the 
court below viewed the availability of a suit by the 
Attorney General as precluding private litigation, its 
decision constitutes an unwarranted restriction on the 
resources available to combat patterns of discrimina­
tion in housing.

37 See also J I. Case Co. v. Borah. 377 U.S. 426, 432; Allen 
v. State Board of Elections, 393 U.S. 544, 556; Perkins v. 
Matthews, 400 U.S. 379, 392, 396.

Civil rights legislation over the past 15 years has generally 
contained provisions for both public and private enforcement. 
See, e.g., 42 U.S.C. 2000a (public accommodations); 42 II.S.C. 
2000c (public education) ; 42 U.S.C. 2000e (employment). And 
the fact that the Attorney, General may sue has precluded nei­
ther private litigation (see cases cited above) nor the granting 
of broad relief in private actions, see Griggs v. Duke Power 
Co.. 401 U.S. 424.



22

CONCLUSION

For tlie foregoing reasons the judgment of the court 
of appeals should be reversed.

Respectfully submitted.
E r w i n  1ST. G r is w o l d ,

Solicitor General. 
D a v id  L . N o r m a n ,

Assistant Attorney General. 
L a w r e n c e  G . W a l l a c e ,

Deputy Solicitor General.
A . R a y m o n d  R a n d o l p h , J r ., 
Assistant to the Solicitor General. 
W a l t e r  W .  B a r n e t t ,
F r a n k  E . S c h w 'e l b ,
E l l io t t  D . M c C a r t y ,

Attorneys.
M a y  1972.

U.S.  GOVERNMENT PRINTING OFFICE: 1972