Richmond Virginia School Board v Virginia Board of Education Brief for Petitioners

    No. 81-1317

(31 n itje Suprem e Court of the ^tmteft S ta tes
October Term, 1981

City of P arma , Ohio , petitioner

v. , -
United  States of A merica

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

R ex E. Lee
Solicitor General

W m . Bradford Reynolds
Assistant Attorney General

W alter W. Barnett 
M iriam R. Eisenstein 

Attorneys
Department o f Justice 
Washington, D. C. 20530 
(202) 633-2217



QUESTIONS PRESENTED

1. Whether the Fair Housing Act of 1968 applies to 
official acts of municipalities.

2. Whether the district court’s remedial order, predi­
cated upon a finding that Parma had engaged in purposeful 
racial discrimination in violation of the Fair Housing Act, 
traversed constitutional limitations or was otherwise an 
abuse of discretion because it enjoined operation of some 
ordinances and required affirmative corrective actions.

3. Whether the courts below were precluded or estopped 
from rendering the decisions here by principles of res judi­
cata or collateral estoppel.



TABLE OF CONTENTS

Opinions below ............................................................ 1
Jurisdiction .....................................................................  1
Statement .......................................................................  2
Argument .......................................................................  8
Conclusion .........................   13

TABLE OF AUTHORITIES
Cases:

Acevedo v. Nassau County, New York,
500 F. 2d 1078 ..............................................  7, 10

Berenyi v. District Director, Immigration & 
Naturalization Service, 385 U.S. 630 .................  2

Citizens Committee for Faraday Wood v.
Lindsay, 507 F. 2d 1065, cert, denied,
421 U.S. 948 ..................................................  7, 10

City o f Eastlake v. Forest City Enterprises,
Inc., 426 U.S. 668 .... ........................................ 7, 9

City o f Kenosha v. Bruno, 412 U.S. 507 .............  9
Fitzpatrick v. Bitzer, A ll U.S. 445 ...................... 10
Hills v. Gautreaux, 425 U.S. 284 ..............    10
James v. Valtierra, 402 U.S. 137................... 7, 8, 9
Jones v. Alfred H. Mayer Co.,

392 U.S. 409 .......................   9-10
Joseph Skilken & Co. v. City o f Toledo,

528 F. 2d 867, vacated and remanded,
429 U.S. 1068, decision adhered to,
558 F. 2d 350, cert, denied, 434 U.S. 985 .......... 7

Page

III



IV

Cases—Continued:
Kennedy Park Homes Association v. City o f 

Lackawanna, 436 F, 2d 108, cert, denied,
401 U.S. 1010 .....................................................  8

Mahaley v. Cuyahoga Metropolitan Housing 
Authority, 355 F. Supp. 1257, rev’d,
500 F. 2d 1087, cert, denied,
419 U.S. 1108 .......................................... 7, 11, 12

Metropolitan Housing Development Corp. v.
Village o f Arlington Heights, 558 F. 2d 1283, 
cert, denied, 434 U.S. 1025 ...........................  8, 10

Monell v. New York Department o f Social 
Services, 436 U.S. 658 ................................. .. 9

Resident Advisory Board v. Rizzo,
564 F. 2d 126, cert, denied, 435 U.S. 908 . . . . . .  8

United States v. City o f Black Jack,
508 F. 2d 1179, cert, denied,
422 U.S. 1042 ...........................................  8, 9, 10

Wisniewski v. United States, 353 U.S. 901 ........ 12
Constitution and statutes:

United States Constitution, Thirteenth
Amendment ..................................................  2, 9

Civil Rights Act of 1964, Title VII,
42 U.S.C. 2000e et seq.:

42 U.S.C. 2000e(b)..........................................  9
Fair Housing Act of 1968, 42 U.S.C. 3601 

et seq.:
Section 804(a), 42 U.S.C. 3604(a) .............  5,9
Section 813, 42 U.S.C. 3613 ................... 5,6,8

Page



V

Constitution and statutes—Continued:
Section 815, 42 U.S.C. 3615 . 
Section 817, 42 U.S.C. 3617

42 U.S.C. (1970 ed.) 1415 ..........
42 U.S.C. 1437c(e) .....................
42 U.S.C. 1983 ...........................

.. 9 

.. 5

Page

4, 11
1!



(3ln ti|e Suprem e Court of itjo ^n itoh  j^iates
October Term, 1981

No. 81-1317
City of Parma, Ohio, petitioner

v.
United States of America

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW
The district court’s memorandum opinion (Pet. App. 

A40-A153) is reported at 494 F. Supp. 1049, and the reme­
dial order (Pet. App. A154-A178) at 504 F. Supp. 913. The 
decision of the court of appeals (Pet. App. A1-A39) is 
reported at 661 F. 2d 562. The order denying the City of 
Parma’s petition for rehearing (Pet. App. A212-A223) is 
unreported.

JURISDICTION
The judgment of the court of appeals was entered on 

October 14, 1981, and petitioner’s timely petition for 
rehearing was denied on December 10, 1981. The petition 
for a writ of certiorari was filed on January 13, 1982. The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

1



2

STATEMENT1
A. The City of Parma lies immediately southwest of 

Cleveland, Ohio, and is its largest suburb. By 1970, the City 
had a population of more than 100,000 persons, most of 
whom moved there after World War II, taking advantage of 
liberal VA and FHA home loan policies (Pet. App. A51- 
A52). According to the 1970 census, metropolitan Cleve­
land had a population 16% black; most of the blacks lived 
on the east side of Cleveland itself. Parma had 50 black 
residents (id. at A49-A51). Expert testimony credited by the 
district court showed that every ethnic group except blacks 
could be found in every part of the Cleveland area, and the 
abnormal concentration of blacks could not be accounted 
for by choice or by economics (Pet. App. A57-A73). In 
addition, witnesses familiar with the real estate industry in 
the Cleveland area testified that the private housing market 
in Parma was known to be inhospitable to black brokers 
and home buyers (Pet. App. A53-A57).

Against this background, the petitioner took a series of 
official actions with the purpose and effect of excluding 
black persons on account of race.

1. Rejection o f the “welcome ” resolution
After passage of the federal Fair Housing Act, a council­

man introduced in the Parma City Council a resolution 
announcing that all persons of good will were welcome to 
the city (Pet. App. A74-A78). The resolution failed to pass

'The facts recited here are those found by the district court, which the 
court of appeals held (Pet. App. AS4-A15) were not clearly erroneous. 
They are not directly contested by the petition, although petitioner has 
reiterated its factual contentions in its statement (Pet. 3-9). Despite this 
alternative recitation of the facts, petitioner presents no reason to 
disturb the concurrent findings of the two courts below. Berenyi v. 
District Director, Immigration & Naturalization Service, 385 U.S. 630, 
635 (1967).



3

due to intense opposition from, among others, the mayor, 
who expressed the view that Cleveland’s problems would 
better be left to Cleveland (Pet. App. A76-A77). This action 
was designed to enhance, and did have the effect of enhanc­
ing, petitioner’s reputation as a place where blacks are, in 
fact, unwelcome (Pet. App. A78).

2. The rejection o f Parmatown Woods
In the fall of 1971, the City government denied a building 

permit for construction of Parmatown Woods (Pet. App. 
A90-A117). The project, which initially had support from 
the City Planning Commission, was to be a lederally- 
subsidized apartment building principally for senior citi­
zens. Both citizens and officials, however, openly expressed 
the fear that blacks would move into the project . At an open 
meeting in July 1971, the City Council president said pub­
licly that he did not want Negroes in Parma (Pet. App. 
A102-A103), and the mayor reassured those present that 
the project would not be filled by persons from the east side 
of Cleveland (Pet. App. A 103). Similar concerns were 
expressed by representatives of petitioner to HUD officials 
(Pet. App. A104-A107). Soon after it became apparent that 
occupancy of the project could not be limited to senior 
citizens or Parma residents, the permit was denied. The 
court found the technical reasons offered to explain the 
denial not to be credible. Similar technicalities had been 
waived when the project in question was not to be federally 
subsidized (Pet. App. A107-A113).

3. Resistance to other low-cost housing
Petitioner has also manifested racially-motivated resist­

ance to low-cost housing by passing exclusionary ordinan­
ces, by refusing to cooperate with the Cuyahoga Metropoli­
tan Housing Authority (“CMHA”), and by refusing to 
apply for Community Development funds (which would 
have incurred a commitment to develop such housing).



4

At the time the 10-story Parmatown Woods was under 
consideration, Parma residents initiated and passed two 
ordinances by referendum. One ordinance placed a 35-foot 
maximum on the height of all residential buildings. The 
other required referendum approval for the construction or 
acquisition of all federally subsidized housing (Pet. App. 
A117-A123).2 The height limit would preclude economical 
construction of the types of elevator buildings normally 
built to serve senior citizens. Testimony showed, moreover, 
that developers would be reluctant, given Parma’s racial 
climate, to run the referendum gauntlet (Pet. App. A 121- 
A123). In addition, petitioner has consistently rebuffed the 
Cuyahoga Metropolitan Housing Authority’s (CMHA) 
efforts to interest the City in any type of public housing, 
“turn-key” (Pet. App. A83), or other subsidized housing 
(Pet. App. A79-A90). Petitioner’s resistance to such hous­
ing, admittedly much needed even by Parma residents, 
extended to sacrificing available Community Development 
funds in 1975. To acquire these funds for other civic pur­
poses, municipalities must identify low-cost housing needs 
and plan to meet them. Petitioner identified the need, but 
refused to plan to meet any of it. When the funds were 
denied, petitioner refused to reapply (Pet. App. A127- 
A135).3

2The referendum requirement would apply to all housing the con­
struction of which would be federally subsidized or in which rent would 
be subsidized (Pet. App. A235-A236). That requirement goes well 
beyond the “local-consent requirement” (Pet. 3) in the federal statute 
pertaining to conventional public housing (42 U.S.C. 1437c(e)).

3The district court found that two other ordinances have an inhibiting 
effect on construction of low-cost housing, though (as the court noted) 
the record does not show that they were passed with that purpose. One 
requires two-and-a-half parking spaces per apartment unit. The other 
requires referendum approval of all zoning changes (Pet. App. 
A123-A126).



5

B. The United States commenced this action in the 
United States District Court for the Northern District of 
Ohio on April 27, 1973, pursuant to Section 813 of the Fair 
Housing Act of 1968 (42 U.S.C. 3613).4 The complaint 
alleged that petitioner had engaged in a pattern and practice 
of making dwellings unavailable to black persons on 
account of race, and had interfered with the exercise by 
blacks of the rights protected by the Act in violation of 
Sections 804(a) and 817 of the Act, 42 U.S.C. 3604(a) and 
3617.5

The district court, after trial, made findings of fact as 
described in part A, above, and held that the petitioner (Pet. 
App. A146):

violated the Fair Housing Act not only because it made 
decisions with the intent to discriminate, but also 
because its decisions have had significant discrimina­
tory effects. * * * * * ***** * * In the opinion of the Court, these

4That section provides, in pertinent part:
Whenever the Attorney General has reasonable cause to believe 

that any person or group of persons is engaged in a pattern or 
practice of resistance to the full enjoyment of any of the rights 
granted by this subchapter, or that any group of persons has been 
denied any of the rights granted by this Act and such denial raises 
an issue of general public importance, he may bring a civil action
* * * [and request] such preventive relief* * * as he deems neces­
sary to insure the full enjoyment of the rights granted by this 
subchapter.

5These provisions read, in pertinent part:
[I]t shall be unlawful—

(a) To* * * make unavailable or deny, a dwelling to any per­
son because of race, color, religion, sex, or national orgin.

* * * * *
It shall be unlawful to coerce, intimidate, threaten, or interfere 

with any person in the exercise or enjoyment of * * * any right 
granted or protected by section * * * 3604 * * * of this title.



6

acts clearly constitute a pattern and practice of resist­
ance to rights secured by Sections 804(a) and 817
* * * j"6J

The district court ordered the parties to attempt to reach 
agreement as to a remedy (Pet. App. A 349). When this 
proved impossible, the court entered a comprehensive 
remedial order based upon the recommendations of the 
United States and testimony adduced at a special remedial 
hearing (id. at A155-A157). The order enjoined future dis­
crimination in general terms (id. at A160-A161), enjoined 
operation of the referendum provision for low-cost hous­
ing, and suspended application of three other ordinances as 
applied to subsidized housing (id. at A164-A166).6 7 The rest 
of the provisions, well summarized by the court of appeals 
(id. at A11-A14), contained three main features. First, peti­
tioner was ordered to correct its reputation for official 
discrimination by adopting a welcoming resolution and 
publicizing its change of policy.8 Second, petitioner was 
ordered to undertake an educational campaign to assure 
that all City employees know their obligations under the 
Act and the decree. Finally, petitioner was ordered to create 
a “fair housing committee” (id. at A12) which would take 
steps to attract and permit construction of low-cost, subsi­
dized housing. This effort was to include applying, again,

6The district court also held that the United States had proved a 
violation under the second branch of Section 813, i.e., preventing 
groups of persons from enjoying rights protected by the Act (Pet. App. 
A 147).

7These included the 35-foot height limitation, the two-and-a-half 
parking space requirement, and the requirement that all zoning changes 
be subjected to a referendum.

8To the extent that the district court’s order appeared to require 
petitioner to “advertise” the sentiments of its residents, the court of 
appeals corrected it to apply only to official City policies (Pet. App. 
A29).



7

for Community Development funds (id. at All).  The dis­
trict court appointed a Special Master to oversee the opera­
tions of this facet of the remedial order (id. at A12-A14).

C. On appeal, petitioner contested “virtually every con­
clusion of the district court” (Pet. App. A 14). The court of 
appeals nevertheless affirmed as to liability, although it 
ordered some modification in the remedial order (Pet. App. 
A33).9

The court of appeals held, in pertinent part, that (1) the 
Fair Housing Act applies to the activities of municipalities 
(Pet. App. A15-A19); (2) application of the Act to munici­
palities is an appropriate exercise, by Congress, of its power 
to enforce the Thirteenth Amendment (id. at A21); (3) this 
Court’s decisions in James v. Valtierra, 402 U.S. 137 
(1971), and City o f Eastlake v. Forest City Enterprises, 
Inc., 426 U.S. 668 (1976), are inapposite (Pet. App. A22); 
and (4) the decision below is consistent with decisions in the 
Second Circuit on related subjects (id. at A23-A24)10 11 and 
consistent with prior decisions in the Sixth Circuit (id. at 
A22).! 1 In addition, the court of appeals held that the lower 
court’s remedial order, though far reaching, was “not as

’Specifically, the court of appeals clarified the advertising portion of 
the order (Pet. App. A29) and deleted the provision for a Special Master 
(Pet. App. A31-A33). It also deleted the district court’s requirement 
that Parma plan fora minimum of 133 low-cost units per year, saying 
that the fair housing committee could set its own reasonable goals (Pet. 
App. A31).

10Acevedo v. Nassau County, New York, 500 F. 2d 1078 (1974), and 
Citizens Committee for Faradav Wood v. Lindsay, 507 F. 2d 1065 
(1974), cert, denied, 421 U.S. 948 (1975).

11 Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 
F. Supp. 1257 (N.D. Ohio 1973), rev’d, 500 F. 2d 1087 (6th Cir. 1974), 
cert, denied, 419 U.S. 1108 (1975); Joseph Skilken & Co. v. City o f 
Toledo, 528 F. 2d 867 (1975), vacated and remanded, 429 U.S. 1068 
(1977), decision adhered to, 558 F. 2d 350 (1977), cert, denied, 434 U.S. 
985 (1977).



8

unusual as Parma suggests” (id. at A28) and was, with the 
few exceptions noted supra, note 9, tailored to correct the 
statutory violations found (ibid.).

Petitioner filed a timely petition for rehearing (with a 
suggestion of rehearing en banc), which was denied. Judge 
Weick filed a dissenting opinion expressing the view that 
the panel decision was inconsistent with James v. Valtierra, 
402 U.S. 137 (1971), and that a prior decision in the circuit 
bound the panel, under principles of res judicata or collat­
eral estoppel, to find for the petitioner in this case (Pet. 
App. A213-A214).

ARGUMENT
1. No decision of this Court or any court of appeals casts 

doubt on the accepted principle that the Fair Housing Act 
applies to governmental acts of municipalities. As early as 
1970, the Court of Appeals for the Second Circuit sustained 
application of the Act to a municipal action in Kennedy 
Park Homes Association v. City o f Lackawanna, 436 F. 2d 
108, and this Court denied certiorari, 401 U.S. 1010 (1971). 
That precedent was followed in United States v. City o f 
Black Jack, 508 F. 2d 1179 (8th Cir. 1974), cert, denied, 422 
U.S. 1042(1975), in Resident Advisory Board v. Rizzo, 564 
F. 2d 126 (3d Cir. 1977), cert, denied, 435 U.S. 908 (1978), 
and in Metropolitan Housing Development Corp. v. Vil­
lage o f Arlington Heights (“Arlington Heights II’), 558 
F. 2d 1283 (7th Cir. 1977), cert, denied, 434 U.S. 1025 
(1978).

This construction of the Act is wholly consistent with its 
language and purpose.12 In terms, Section 813 (42 U.S.C. 
36 5 3) authorizes the Attorney General to sue “any person or 
group of persons” believed to be engaged in a “pattern or

12 As the court of appeals noted (Pet. App. A16), there is little legisla­
tive history bearing directly on this question.



9

practice” of violating the Act, e.g., by making housing 
unavailable because of race in violation of 42 U.S.C. 
3604(a). The Act does not exempt municipal corporations 
from the “persons” made subject to suit, and it is the general 
rule that, absent express exception,13 the term “person” will 
be taken to include municipalities. Monell v. New York 
Department o f Social Services, 436 U.S. 658 (1978).14 
Finally, as the court of appeals noted (Pet. App. A19), 
Section 815 (42 U.S.C. 3615) reflects the congressional 
expectation that cities as well as private parties would be 
sued under the Act by declaring invalid any local law that 
purports to authorize or require discriminatory housing 
practices.

2. There is no substance to petitioner’s contention that 
“constitutional principles” prevent application of federal 
law to local legislative actions (Pet. 14-15). It is true that in 
the absence of federal legislation, the Constitution allows 
localities considerable discretion to make land-use deci­
sions. Moreover, “legislative” delegations of land-use 
decision-making power to the electorate will not necessarily 
be struck down as contrary to the Due Process or Equal 
Protection Clauses. City o f Eastlake v. Forest City Enter­
prises, Inc., 426 U.S. 668 (1976); James v. Valtierra, 402 
U.S. 137 (1971). But the Fair Housing Act is an exercise of 
congressional power to enforce the Thirteenth Amend­
ment. See Jones v. Alfred H. Mayer Co., 392 U.S. 409

l3For example, Title V'lI of the Civil Rights Act of 1964, until it was 
amended in 1972, expressly excluded states and political subdivisions 
from the term “employer” in 42 U.S.C. 2000e(b).

14The only case in which the application of the Fair Housing Act to 
cities was squarely questioned was United States v. City o f Black Jack, 
supra. That challenge was a direct result of this Court’s decision in City 
o f Kenosha v. Bruno, 412 U.S. 507 (1973), indicating that a city might 
not be a person for purposes of certain other civil rights statutes. That 
issue, however, was laid to rest in Monell, supra.



10

(1968). Congress has acted to prevent municipalities, as well 
as private parties, from imposing badges and incidents of 
slavery, and the courts can give force to Congress’ intent. 
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Petitioner cites 
no authority to the contrary, and makes no effort to explain 
or distinguish the cases in which federal courts have, in fact, 
enjoined local land-use decisions. See, e.g., City o f Black 
Jack, supra; Arlington Heights II, supra.15

Petitioner also suggests that principles of federalism or 
“separation of powers” (Pet. 14) preclude construction of 
the Fair Housing Act to require a municipality to build 
low-cost housing. See also Pet. 17, citing Hills v. Gau- 
treaux, 425 U.S. 284 (1976). But neither the district court 
nor the court of appeals in this case found an affirmative 
duty, in the Fair Housing Act itself, requiring the City to 
build low-cost housing. Both courts, following well-trodden 
paths, found that deliberate, racially-based actions, designed 
to prevent the building of low-cost housing, could amount 
to a “pattern and practice” of resistance to rights guaran­
teed by the Act. See, e.g., Pet. App. A26. Following equally 
familiar lines, the district court enjoined those obstacles 
which petitioner had placed in the way of low-cost housing 
(such as the obligatory referendum), and required it to take 
steps to make the environment hospitable to developers. To 
be sure, the City enjoyed a greater degree of freedom when it 
was not under court decree. It cannot be, though, that a

15In Part 2 of the Petition, the petitioner relies on Second Circuit 
decisions in claiming there is a “conflict” (Pet. 15) among the circuits on 
this point. See Acevedo v. Nassau County, New York, 500 F. 2d 1078 
(2d Cir, 1974); Citizens Committee for Faraday Wood v. Lindsay, 507 
F. 2d 1065 (2d Cir. 1974), cert, denied, 421 U.S. 948(1975). It is in no 
way inconsistent with the general principles stated here, however, that 
on different facts, other plaintiffs were unable to show that particular 
actions were taken with racially discriminatory purpose and effect (Pet. 
App. A23-A24).



I S

decree, as applied to a municipality, is per se “unconstitu­
tional” because it prohibits certain actions and requires 
others as remedial measures. Petitioner’s contention that 
the City was constitutionally protected either from a finding 
of liability or from relief in this case is wholly without a 
basis in law.

3. Petitioner urges (Pet. 18-19) that principles of res 
judicata or collateral estoppel precluded the district court in 
this case from reaching a decision different from that in 
Mahaley v. Cuyahoga Metropolitan Housing Authority, 
355 F. Supp. 1257 (N.D. Ohio 1973), rev’d, 500 F. 2d 1087 
(6th Cir. 1974), cert, denied, 419 U.S. 1108 (1975). But 
neither the issues nor the parties in the two cases even 
approach the degree of identity necessary for invocation of 
these doctrines; in fact the decision below is entirely consist­
ent with Mahaley.

Mahaley was a private suit against the Cuyahoga Metro­
politan Housing Authority (CMHA) and several cities, 
including petitioner. The plaintiffs sought to have enjoined 
as unconstitutional that provision of the 1937 Housing Act 
that requires a cooperation agreement between a city and 
the appropriate Housing Authority as a condition of build­
ing public housing in the city.16 The Department of Housing 
and Urban Development (HUD) was a defendant, defend­
ing the facial constitutionality of the provision. Having 
prevailed on that point in the district court, HUD did not 
participate in the appeal. Ultimately, a divided panel of the 
court of appeals, reversing the district court, held that no 
claim was stated under 42 U.S.C. 1983 for a city’s failure to 
sign a cooperation agreement with CMHA.17

l6The provision, referred to in Mahaley as 42 U.S.C. (1970 ed.) 1415, 
now appears at 42 U.S.C. 1437c(e).

l7The court below concluded that “Mahaley was a suit under the 
Housing Act of 1937, not the Fair Housing Act of 1968,"noting that the



12

All this is a far cry from the instant “pattern and practice” 
suit, brought against the City of Parma by the United 
States, in which the district court found that the City had 
engaged in a long-standing, racially exclusionary policy, 
manifested by a number of different actions and refusals to 
act.18

To the extent that the petition claims simply that Maha­
ley is legally inconsistent with the instant case, it presents no 
reason why this Court should depart from its settled prac­
tice of refusing to concern itself with this sort of alleged 
inconsistency within a circuit. Wisniewski v. United States, 
353 U.S. 903, 902 (1957). The issue was presented to the 
court of appeals, but a majority of the judges there appar­
ently see no conflict needing reconciliation.

statutory purposes of the two acts are quite dissimilar (Pet. App. A22). 
Judge Weick, in his dissent from the denial of rehearing en banc, 
disputed this conclusion (Pet. App. A214). In any event, even if the 
district court in Mahaley found a violation of the Fair Housing Act 
(compare 355 F. Supp. at 1259 with id. at 1268), the court of appeals in 
reversing did not discuss that Act at all (500 F. 2d 1087).

18Contrary to petitioner’s contention (Pet. 18), the decisions below do 
not find the City “guilty of violating the Fair Housing Act because it 
[has no] public housing.” To the extent that this is a correct characteri­
zation of the Mahaley decision in the district court, it differentiates 
Mahaley from the instant case.

More accurately, the central issue in Mahaley was petitioner’s (and 
others’) failure to sign the cooperation agreement required under the 
1937 Housing Act, which would have enabled CMHA to build conven­
tional public housing in the City. In the instant case, that same refusal is 
but one small item in a series of acts evidencing the City’s racially 
discriminatory purpose (see Pet. App. A 138). Even if the United States 
were collaterally estopped from utilizing that bit of evidence, it is 
difficult to see how that would affect the outcome of this case.



CONCLUSION
The petition for a writ of certiorari should be denied. 
Respectfully submitted.

R ex E. Lee

Solicitor General
Wm . Bradford Reynolds 

Assistant Attorney General
W alter W. Barnett 
M iriam R. Eisenstein 

Attorneys

M arch 1982