WIlliams v. Matthews Company Petition for a Writ of Certiorari

    I n  t h e

Olmtrt 0! tip InttpJs BtnPs
October Term, 1974 

No. ----- -

D. C. W illia m s ,

v.
Petitioner,

M atth ew s  C ompany , et al.

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

THE EIGHTH CIRCUIT

J ack Greenberg 
J ames M. N abrit, III 
S ylvia D rew  
E ric S ch n a pper

10 Columbus Circle
New York, New York 10019

J o h n  W . W alker 
Walker, Kaplan & Mays, P.A. 

622 Pyramid Life Building 
Little Rock, Arkansas 72201

Attorneys for Petitioner



TABLE OF CONTENTS

Opinions Below......................     1

Jurisdiction ...................      1

Issue Presented .................................      2

Statutes Involved ...........................................................  2

Statement of the Case ..................................................  4

Reasons for Granting the Writ ....... ............................  7
I. Denial of Broad Injunctive Relief to a Black 

Fair Housing Plaintiff Frustrates the Effec­
tive Enforcement of Important Civil Rights 
Legislation ......................................................  8

II. Denial of Broad Injunctive Relief Is Not in 
Accord With Applicable Decisions of This 
Court in Fair Housing and Civil Rights Cases 
Generally ..............................    15

Conclusion ..................     19

T able op A u th o rities

Cases:

Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963) ......  18
Brown v. Board of Education, 349 U.S. 294 (1955) __  17
Buckner v. County School Board, 332 F. 452 (4th Cir.

1964) ...............................................................    17

PAGE

Cash v. Swifton Land Corp., 434 F.2d 569 (6th Cir.
1970) ........ ......................................................... ..........7,15



ii

Clemons v. Board of Education of Hillsboro, 228 F.2d 
853 (6th Cir. 1956), cert, denied, 350 U.S. 1006 (1956) 17

Crim v. Clover, 338 F. Supp. 823 (S.D. Ohio 1972) .... 8
Cypress v. Newport News General & Nonsectarian 

Hosp. Ass’n, 375 F.2d 648 (4th Cir. 1967) .................. 18

Goosby v. Osser, 409 TJ.S. 512 (1972) ............... .............  16
Green v. County School Board, 391 U.S. 430 (1968) ..... 17
Griffin v. County School Board, 377 U.S. 218 (1968) .... 17 
Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir. 

1969) _______    18

Hutchins v. United States Industries, Inc., 428 F.2d 303 
(5th Cir. 1970) ................... ...................... .... ....... . 18

J. I. Case Co. v. Borah, 377 U.S. 426 (1964) .................. 15
Jenkins v. Union Gas Corp., 400 F.2d 28 (5th Cir.) .... 18
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) __8,9,

15,16

Keyes v. School District No. 1, 413 U.S. 189 (1973) .... 17

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 14

Newman v. Piggie Park Enterprises, 390 U.S. 400 
(1968) ...........................................................  15,18

Parham v. Southwestern Bell Telephone Co., 433 F.2d
421 (8th Cir. 1970) ...        18

Pegues v. Bakane, 445 F.2d 1140 (5th Cir. 1971)   .8,15
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ................  17

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th 
Cir. 1971)

PAGE

18



I l l

PAGE

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229
(1969) .............................. ...........................................  9

Swann v. Charlotte-Mecklenburg Board of Education,
402 TJ.S. 1 (1970) .......................... ............................. 17

Tillman v. Wlieaton-Haven Recreational Assoc., 410
TJ.S. 431 (1973) ...........................................................  9

Traffieante v. Metropolitan Life Ins. Co., 409 TJ.S. 205 
(1972)  ........................................... ............. ..........15,16

United States v. Atkins, 323 F.2d 733 (5th Cir. 1963) .. 17 
United States v. Georgia Power Co., 7 E.P.D. 1)9167

(X.l). Ga. 1974) ....................................................... 13
United States v. Jefferson County Board of Education,

372 F.2d 836 (5th Cir. 1966) ................................. .....  13
United States v. Louisiana, 380 U.S. 145 (1965) ..... . 16
United States v. Oregon State Medical Soc., 343 U.S.

-326 (1951) ........... ...................... .............................. 13
United States v. Ramsey, 331 F.2d 824 (5th Cir. 1964) 13
United States v. Reddoch, 1 P.H.E.O. H. Rptr 1)13,569 

(S.D. Ala. 1972), aff’d, 467 F.2d 897 (5th Cir. 1972)..13,14 
United States v. United States Steel Corp., 5 E.P.D.

1)8619 (N.D. Ala. 1973) ..............................................  13
United States v. West Peachtree Tenth Corp., 437 F.2d 

221 (5th Cir. 1971) ....................................................13,14

Statutes:

28 U.S.C. § 1254(1) ...... ................................................... 1
28 U.S.C. § 1343(3) (4) .............................................. 3,5,16
42 U.S.C. § 1981 ...................................................... 2, 5, 7,18
42 U.S.C. § 1982 .................................................. 2, 5, 7, 9,16
42 U.S.C. § 3601 ...... ......................................................  7, 8



IV

42 U.S.C. § 3602(b) ........................................................  3
42 U.S.C. § 3604 .......................................................... 2,5,13
42 U.S.C. § 3610 ..............................................................  8
42 U.S.C. § 3612 ............................ ................................  5, 8
42 U.S.C. § 3612(c) ........................................................ 4,16
42 U.S.C. § 3613 ........................................................9,14,16

Federal Regulations:
12 C.F.R. § 528.4 & .5 ...............    13
12 C.F.R. § 528.6 ................      13
12 C.F.R. § 6.13.3160 & .3170 ................     13
12 C.F.R. § 701.31 .......................       13
24 C.F.R. § 1 ............................................................  13
24 C.F.R. §1.6 .......    13

Rules:

Federal Rules of Civil Procedure, Rule 23(b) (2) ........  5
Federal Rules of Civil Procedure, Rule 54(c) .............. 16

Legislative Authorities: ' 1
114 Cong. Rec. 2706 ....................................   15
114 Cong. Rec. 2765 .................................................... 9
114 Cong. Rec. 3422 .........................     15

Other Authorities:

Equal Opportunity in Suburbia 64 (July 1974) .....9, 10,11
Hearing Before the U.S. Commission on Civil Rights, 

Washington, D.C. (1971) ................... .................. .....9,10

PAGE



I n  t h e

(Emtrt nf %  IttM  Btutm
October Term, 1974 

No. ----- -

D. C. W illia m s ,

v.
Petitioner,

M atth ew s  Company , et al.

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

THE EIGHTH CIRCUIT

The petitioner, Mr. D. C. Williams, respectfully prays 
that a Writ of Certiorari issue to review the judgment and 
opinion of the United States Court of Appeals for the 
Eighth Circuit entered on June 20, 1974.

Opinions Below

The opinion of the Court of Appeals, which is not yet 
reported, is reprinted in Appendix A hereto. The opinion 
of the District Court, which is not reported, is set forth 
in Appendix B hereto.

Jurisdiction

The judgment of the Court-of Appeals was entered on 
June 20, 1974. Jurisdiction of this Court is invoked under 
28 U.S.C. § 1254(1).



2

Issue Presented

Whether, where a black plaintiff proves a major real 
estate developer has maintained a policy of racial dis­
crimination, the district court must, in the absence of 
special circumstances, grant broad injunctive relief to over­
come the effects of past discrimination and prevent such 
discrimination in the future?

Statutes Involved

Part of the Civil Bights Act of 1866, codified as 42 U.S.C. 
§ 1981, provides:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

Part of the Civil Bights Act of 1866, codified as 42 U.S.C. 
§ 1982 provides:

All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by 
white citizens thereof to inherit, purchase, lease, sell, 
hold and convey real and personal property.

Section 804 of the Civil Bights Act of 1968, 42 U.S.C. 
§ 3604, provides in relevant p a rt:

[I] t shall be unlawful—■
(a) To refuse to sell or rent after the making of a 

bona fide offer, or to refuse to negotiate for the sale



3

or rental of, or otherwise make unavailable or deny, 
a dwelling to any person because of race, color, reli­
gion, or national origin.

(b) To discriminate against any person in the terms, 
conditions, or privileges of sale or rental of a dwell­
ing, or in the provision of services or facilities in con­
nection therewith, because of race, color, religion, or 
national origin.

“Dwelling” as used in Section 804 is defined in Section 
802(b), 42 U.S.C. § 3602(b), as:

(b) “Dwelling” means any building, structure, or 
portion thereof which is occupied as, or designed or 
intended for occupancy as, a residence by one or more 
families, and any vacant land which is offered for sale 
or lease for the construction or location thereon of any 
such building, structure, or portion thereof.

28 U.S.O. §1343(3) and (4) provide:
The district courts shall have original jurisdiction of 

any civil action authorized by law to be commenced by 
any person:
. . .  (3) To redress the deprivation, under color of any 
State law, statute, ordinance, regulation, custom or 
usage, of any right, privilege or immunity secured by 
the Constitution of the United States or by any Act of 
Congress providing for equal rights of citizens or of 
all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or 
other relief under any Act of Congress providing for 
the protection of civil rights, including the right to 
vote.



4

Section 812(c) of the Civil Eights Act of 1968, 42 U.S.C. 
§ 3612(c), provides:

(c) The court may grant as relief, as it deems appro­
priate, any permanent or temporary injunction, tem­
porary restraining order, or other order, and may 
award to the plaintiff actual damages and not more 
than $1,000 punitive damages, together with court 
costs and reasonable attorney fees in the case of a pre­
vailing plaintiff: Provided, the said plaintiff in the 
opinion of the court is not financially able to assume 
said attorney’s fees.

Statement of the Case

Mr. D. C. Williams is a black resident of North Little 
Eock, Arkansas. North Little Eoek is a suburban com­
munity adjacent to Little Eoek, Arkansas. In 1970, Little 
Eock had a population of 132,483 of which 74.8 percent 
were white and 25.0 percent black. At the same time, North 
Little Eock had a population of 60,040 of which 83.7 per­
cent were white and 16.1 percent black.

Mr. Williams tried unsuccessfully to purchase a vacant 
lot in the North Little Eock subdivision of Lakewood from 
its developer in order to build a larger house for his fam­
ily. There are 2,000 residential lots in Lakewood and ap­
proximately one-quarter are vacant. Lakewood is a middle 
to upper-middle income subdivision. Lakewood had never 
had a black resident and was completely white in popula­
tion at the time the complaint was filed in April, 1970. 
Lakewood, as are four other all white North Little Eock 
subdivisions, is being developed by the Matthews Company. 
The Matthews Company is the largest real estate developer 
in North Little Eock. The Company had an official policy 
of not selling any lots in its subdivisions to black pur­
chasers from 1945 to, at least, 1965. Although the Com­



5

pany claimed to have reversed its exclusionary policy, 
no public statement or notice to that effect was given nor 
were affirmative steps taken to desegregate the subdivi­
sion.

In March, 1970, Mr. Williams began his efforts to pur­
chase one of the vacant Lakewood lots marked with a “for 
sale” sign. Each sign gave the price and size of the lot 
and listed the Matthews Company as seller with its tele­
phone number. Initially, Mr. Williams’ offer to purchase a 
lot from the Company’s chief executive officer was deferred 
for a week, until after the officer spoke with the absent 
chairman of the board of directors. However, within sev­
eral days Mr. Williams was informed that it was the pol­
icy of the Company to. sell only to certain unidentified ap­
proved builders, not directly to individual purchasers. 
There are no black approved builders. Mr. Williams then 
approached several white builders who had had dealings 
with the Matthews Company. All of the white builders 
refused to purchase a lot and build a house for Mr. Wil­
liams in Lakewood. Finally, Mr. Williams hired a black 
builder. The Company then refused to deal with the black 
builders until the return of the chairman of the board in 
several months time.

After these events, Mr. Williams filed a complaint against 
the Matthews Company and its principal officers on April 
29, 1970 in the United States District Court for the East­
ern District of Arkansas. Jurisdiction was asserted under 
28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 3612 to enforce 
§ 804 of the Civil Rights Act of 1968, 42 U.S.C. § 3604, and 
the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982. Mr. 
Williams sued individually and as class representative of 
other black persons similarly situated pursuant to Rule 
23(b)(2), Fed. R. Civ. P. The complaint requested (1) a



6

declaratory judgment defining tlie rights and legal rela­
tions between the parties; (2) an injunction enjoining the 
Company and its officers from refusing to sell properties 
to black persons which they offer for sale to white citizens; 
(3) an injunction enjoining the Company and its officers 
from limiting Mr. Williams to purchasing a lot through 
an approved builder; (4) an injunction enjoining the Com­
pany and its officers from limiting its dealings to white 
builders; (5) an injunction enjoining the Company and its 
officers from enforcing any policy which continues past 
racial discrimination; (6) an injunction enjoining the Com­
pany and its officers from adopting any policy which causes 
black persons to be treated differently from white citizens; 
(7) an injunction enjoining the Company and its officers 
from selling any other lots or removing any other lots from 
the market until the matter was resolved; and (8) dam­
ages, attorneys fees, costs and such other relief as appears 
equitable, legal and just.

On September 20, 1974, after a trial on the merits, the 
district court dismissed both the individual and class 
action. The Court of Appeals, on June 20, 1974, reversed 
and held that:

We think that racial discrimination by the defen­
dants in their real estate operations is known as a mat­
ter of fact and law. The defendants’ policy of selling 
lots only to builders, which, under the circumstances, 
operated to exclude black persons from acquiring 
building lots in the real estate subdivision, does not 
afford any legal justification for defendants’ conduct. 
Infra, at p. A-3—A-4.

As to the class action, the Court of Appeals stated:
Although we do find some evidence in the case which 

might have justified a class action, the court deter­



7

mined that plaintiff has failed to show that other black 
persons have attempted and been denied the right to 
purchase property in Lakewood or other Matthews 
Company subdivisions. This finding afforded an appro­
priate basis for the dismissal of the class action, since 
one family is not a class and the burden is on the 
plaintiff to justify permitting the suit to proceed as a 
class action. Infra, at p. A-15.

The Court of Appeals then decided that Mr. Williams was 
entitled to a declaration of his right to purchase any 
Matthews Company lot, actual damages, punitive damages 
not to exceed $1,000, attorneys fees and costs, but failed 
to state that Mr. Williams wTas entitled to any injunctive 
relief. No reason was given for the denial of injunctive 
relief.

On August 3, 1974, the Matthews Company and its offi­
cers filed a petition for a writ of certiorari, No. 74-63, from 
the judgment of the Court of Appeals that the Company 
engaged in a racially discriminatory business policy. The 
instant petition does not seek review of that portion of the 
decision.

Reasons for Granting the Writ

The Court of Appeals’ decision is the latest in a series 
of lower federal court decisions that frustrate effective 
enforcement of Title VIII of the Civil Eights Act of 1968, 
42 U.S.C. §§ 3601, et seq., and the Civil Rights Act of 1866, 
42 U.S.C. §§ 1981, 1982, by denying private litigants broad 
injunctive relief. The prior decisions in this series reason 
that discrimination by realtors against one black family 
does not justify a class action in a fair housing action, and 
concomitant broad injunctive relief. Cash v. Swifton Land 
Corp., 434 F.2d 569, 571 (6th Cir. 1970) (class action not



8

maintainable where realtor conveys apartment to named 
plaintiff and allegation of discrimination against one black 
family remains); Pegues v. Bakane, 445 F.2d 1140, 1141-42 
(5th Cir. 1971) (no justiciable controversy where realtor 
conveys home to named plaintiff in class action); Crim v. 
Glover, 338 F. Snpp. 823, 826 (S.D. Ohio 1972) (class action 
not maintainable by one black family). The instant decision 
of the Court of Appeals for the Eighth Circuit, however, 
goes much further. It denied, for no stated reason, any 
injunctive relief, whether to vindicate the rights of the in­
dividual litigant, or of the class.

I.
Denial of Broad Injunctive Relief to a Black Fair 

Housing Plaintiff Frustrates the Effective Enforcement, 
of Important Civil Rights Legislation.

It is six years since Congress declared that “fair housing 
throughout the United States” shall be national policy, 42 
U.S.C. § 3601, and created the Title VIII statutory scheme, 
42 U.S.C. §§ 3601, et seq. It was the intent of Congress to 
establish “federal machinery” and “a complete arsenal of 
federal authority” for the enforcement of fair housing 
rights. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 416-17 
(1968). This intent is manifest in the statutory provision 
for three independent methods of obtaining compliance: 
first, initial administrative conciliation by the Department 
of Housing and Urban Development with subsequent option 
for bringing a private suit pursuant to § 810, 42 U.S.C. 
§ 3610; second, private suits authorized by § 812, 42 U.S.C. 
§ 3612, without required prior recourse to administrative 
proceedings; and third, suits brought by the Attorney Gen­



9

eral pursuant to § 813, 42 U.S.C. § 3613. See, e.g., 114 Cong. 
Eec. 2765 (remarks of Congressman Celler). The Fair 
Housing Title has, as have numerous other civil rights 
statutes, thus conferred ultimate remedial authority upon 
the federal courts. This Court has also recognized that the 
Civil Rights Act of 1866, 42 U.S.C. § 1982, is enforceable 
by federal courts sitting in equity. Jones v. Alfred H. 
Mayer Co., supra, 392 U.S. at 414. In subsequent opinions 
this Court had directed that the remedial powers conferred 
upon the federal courts by the 1866 Act be liberally con­
strued. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 
(1969); Tillman v. Wheaton-Haven Recreational Assoc., 
410 U.S. 431 (1973). Yet, fair housing is no more a reality 
today than in 1968. That subdivisions of the size of Lake- 
wood remain all white is no anomaly; it is all too typical of 
American suburban communities.

The United States Commission on Civil Rights has re­
cently documented that, “ [DJespite a plethora of far- 
reaching remedial legislation, a dual housing market con­
tinues today in most metropolitan areas across the United 
States,” Equal Opportunity in Suburbia 64 (July 1974).1 
Moreover, racial segregation in housing patterns is in­
creasing1 2 because racial discrimination keeps black families,

1 The latest census revealed that 64 percent of white Americans 
and 73 percent of black Americans lived in metropolitan areas, 
but 60 percent of white families lived in suburban areas and 79 
percent of black families lived in central cities. Statement of 
Dr. George H. Brown, Director, Bureau of the Census, U. S. Dept, 
of Commerce, Hearing Before the U. S. Commission on Civil Rights, 
Washington, D. C. 523 (1971) [hereinafter Census Bureau State­
ment] .

2 From 1960 to 1970, the white population of central cities 
decreased by 1,920,000 while the black population increased by 
2,811,000 in Standard Metropolitan Statistical Areas of 500,000 
or more. During the same period and in these same Standard 
Metropolitan Statistical Areas, the white suburban population



1 0

even when they are able to afford such housing, out of the 
suburbs.3 The discrimination suffered by Mr. Williams in 
attempting to purchase a lot in the Lakewood subdivision 
of suburban North Little Eock is thus a problem of national 
dimensions. That Mr. Williams seeks to move his family 
from a predominately black subdivision to all-white Lake- 
wood suggests that racial segregation can exist within sub­
urban areas as well as between suburban communities and 
central cities.

increased by 12,468,000, while black population increased by 
762,000. Census Bureau Statement at 531. In 1970, the black 
central city population was 24 percent in these areas while the 
white suburban population stood at 94.3. On the basis of such 
statistics and extensive testimony in hearings throughout the 
nation, the Commission was compelled to characterize American 
metropolitan areas as typically a “white suburban noose” surround­
ing a deprived and decaying, increasingly black, central city. 
Equal Opportunity in Suburbia, 1, 64-68.

In 1970, four cities were more than 50 percent black—Atlanta, 
Newark, Gary and Washington, D. C.—and seven others already 
more than 40 percent black—Detroit, St. Louis, Baltimore, New 
Orleans, Wilmington, Birmingham and Richmond. Census Bureau 
Statement at 526. Demographic projections indicate that by the 
year 2,000, American metropolitan areas will have central city 
populations 75 percent black and 25 percent white. Census Bureau 
Statement at 531.

8 Black Americans are concentrated in central cities regardless 
of income level: 85.5 percent of black families in metropolitan 
areas of a million or more with income less than $4,000 live in 
central cities compared with 46.4 percent of white families with 
the same income; 82.5 percent of black families with incomes 
between $4,000 and $10,000 live in central cities as do 41.6 per­
cent of white families with the same income; 76.8 percent of 
black families with incomes of $10,000 or more live in central 
cities compared with 30.9 percent of their white counterparts. 
Even if black families were to have incomes equivalent to white 
families, i.e., if actual income disparity were made up, the per­
centage of black central city residents of metropolitan areas 
of a million or more would only drop from 81.1 to 78.4 percent. 
I t is thus clear that racial discrimination in the sale and rental 
of housing, rather than that other often-cited factor, income dis­
parity, is principally responsible for the magnitude of racial 
separation in housing. Census Bureau Statement.



11

The Civil Rights Commission sought to find the causes 
of continued racial discrimination in housing as well as 
document effect and extent. To that end, the Commission 
cited the specific failure of the Justice Department and the 
Department of Housing and Urban Development to fulfill 
their Title VIII enforcement duties:

Neither HUD nor the Department of Justice has en­
forced existing antidiscrimination laws vigorously or 
effectively. The housing section of the Justice Depart­
ment’s Civil Rights Division, which is responsible for 
enforcement of the Title VIII antidiscrimination pro­
visions, has only 25 lawyers to handle what is supposed 
to be a nationwide effort. In 1971, HUD promulgated 
“affirmative marketing guidelines,” requiring devel­
opers of new FHA subdivisions and multi-family proj­
ects to adopt affirmative programs, including the hiring 
of minority sales and rental agents, to assure the 
marketing of housing to all races. But the regulations 
established no mechanism to guarantee that such plans 
will actually be carried out.

Unless the Federal Government undertakes a deter­
mined effort to enforce Federal anti-discrimination 
laws, city-suburban polarization will continue and the 
cycle of urban poverty will perpetuate itself uninter­
rupted and unabated. While the time has long passed 
for assessing blame, it cannot be denied that Federal 
agencies share with local authorities, the housing in­
dustry, and its related professions a moral and legal 
responsibility for having created a problem which will 
never solve itself. The task now is to employ the tools 
suggested, and to make better use of tools at hand, to 
break the suburban “noose” and put an end to Amer­
ica’s increasing racial polarization. Equal Opportunity 
in Suburbia 66.



12

See, generally, supra, 40-42. The failure of two of the three 
compliance methods Congress created to enforce Title VIII 
throws a greater burden of enforcement upon private liti­
gants. Private litigants, like Mr. Williams, of course lack 
even the enforcement resources presently possessed by the 
Justice Department and HUD. Restricting the relief private 
litigants may obtain after they have prevailed upon the 
merits threatens to remove even this last weapon from the 
Title VIII arsenal.

What is at stake is the practical enforcement of Title 
VIII. In finding that the Matthews Company had engaged 
in a racially discriminatory business policy the Court of 
Appeals necessarily laid the basis for requiring certain in­
junctive relief, standard in civil rights litigation, to safe­
guard fair housing rights.4 Without such broad relief, the 
Matthews Company is free to subject other black persons to 
the same discriminatory policy in continued violation of

4 Such standard forms of injunctive relief, which we respect­
fully submit are appropriate in this case, are as follows: First, 
the Company should be enjoined from failing or refusing to 
sell lots to any person, including individual purchasers, builders 
or their agents, because of race or color. Second, the Company 
should be enjoined from discriminating in the terms, conditions or 
privileges of ownership against any person because of race or 
color. Third, the Company should be enjoined from dealing with 
any builders, contractors, agents or other such person who dis­
criminates on the basis of race or color. Fourth, the Company 
should be affirmatively required to instruct its employees, builders, 
contractors, agents or other such persons that the Company will 
not enter into any business relation with any person who discrim­
inates on the basis of race or color. Fifth, the Company should be 
affirmatively required to include in all advertisements, brochures, 
pamphlets or signs a statement that sales are made without regard 
to race or color. Sixth, the Company should be affirmatively re­
quired to conspicuously post at its place of business a written 
sign or notice that sales are made without regard to race or color. 
Seventh, the Company should be affirmatively required to make 
periodic reports to the district court of its business practices and 
sales for such a term as the district court may require or until 
sales of vacant lots and other properties are completed.



13

Title VIII.5 The complaint prayed for injunctive relief of 
this character and there is no clear proof that it is unneces­
sary, see United States v. Oregon State Medical Soc., 343 
U.S. 326, 333-35 (1951). The Company has not voluntarily 
and irrevocably ended its discriminatory policy, nor is the 
Williams family the only black family in the area that 
could possibly be interested in living in Lakewood.

In Justice Department fair housing suits authorized by 
§ 813, broad injunctive relief is standard. See, e.g., the 
decrees required in United States v. West Peachtree Tenth 
Corp., 437 F.2d 221, 229-31 (5th Cir. 1971), and United 
States v. Beddoch, 1 Prentice-Hall Equal Opportunity In 
Housing Rptr. ff 13,569 (S.D. Ala. 1972), aff’d, 467 F.2d 
897 (5th Cir. 1972). Compare the decrees entered in United 
States v. Ramsey, 331 F.2d 824, 829-30 (5th Cir. 1964) (vot­
ing rights case) ; United States v. Jefferson County Board 
of Education, 372 F.2d 836, 896-902 (5th Cir. 1966) (school 
desegregation case); United States v. United States Steel 
Corp., 5 E.P.D. If 8619 (N.D. Ala. 1973) (employment dis­
crimination ease); United States v. Georgia Power Com­
pany, 7 E.P.D. |f 9167 (N.D. Ga. 1974) (employment dis­
crimination case). Moreover, the federal courts have con­

6 The Company would merely be enjoined from engaging in acts 
prohibited by § 804, 42 U.S.C. § 3604 by a decree. As to affirma­
tive requirements: The requirement that the Company instruct its 
employees, builders, contractors, agents and such other persons 
that the Company will not tolerate discrimination arises from 
the Court of Appeals’ own observation that, “It stretches credulity 
to believe that the Matthews Company and its officers did not know 
that white builders would refuse to buy a lot and build a home 
for a black person in the Lakewood subdivision,” infra at p. A-13, 
n. 10. HUD regulations require the Company and other partic­
ipants in real estate transactions to publicly state that sales are 
made without regard to race or color. 24 C.F.R. § 1, 12 C.F.R. 
§ 528.4 and .5; 12 C.F.R. § 613.3160 and .3170; 12 C.F.R, § 701.31. 
HUD regulations also require record-keeping. 12 C.F.R. § 528.6; 
24 C.F.R. § 1.6.



14

strued possibly limiting statutory language concerning a 
‘‘pattern or practice of resistance” or an “issue of general 
public importance” in § 813 as not requiring the Justice 
Department to demonstrate that the discrimination it seeks 
to redress affects many persons before obtaining broad 
injunctive relief. United States v. West Peachtree Tenth 
Corp., supra, 437 F.2d at 227; United States v. Reddoch, 
supra, 1 P.H.E.O.H. Rptr. 13,569 at p. 13,777-78. In light 
of the Civil Rights Commission findings about federal en­
forcement, broad injunctive relief in private suits is all the 
more important.

The class action predicate for broadly applicable injunc­
tive relief was also established by the holding of the Court 
of Appeals that the Matthews Company had engaged in a 
policy of racial discrimination. By its very nature, racial 
discrimination affects all the members of a disfavored race. 
Mr. Williams was obviously not the only black person af­
fected by the exclusionary sales policy. Lakewood, North 
Little Rock’s largest subdivision, has never had a black 
resident. The Company not only refused to sell to Mr. 
Williams, but to his black builder as well. In deposition, 
Mr. Williams stated that he personally knew of at least 
two other black purchasers who were refused lots in Lake- 
wood. Appendix on Appeal at 315-316. It is one thing to 
use a series of similar discriminatory acts to establish that 
racial discrimination occurred, McDonnell Douglas Corp. 
v. Green, 411 U.S. 792, 804-05 (1973), but quite another to 
require a showing that demonstrated racial discrimination 
affects many other black persons before broad injunctive 
relief can issue. Nevertheless, the Court of Appeals did 
just that. The similar decisions of the Sixth Circuit in



15

Cash v. Swifton Land Corf., supra, 434 F.2d at 571, and the 
Fifth Circuit in Pegues v. Bakane, supra, 445 F.2d at 
1140-42, indicate that the Eighth Circuit decision is no 
isolated phenomenon.

II.
Denial of Broad Injunctive Relief Is Not in Accord 

With Applicable Decisions of This Court in Fair Hous­
ing and Civil Rights Cases Generally.

The denial, out of hand, of injunctive relief is inconsistent 
with the requirements of Title VIII, as construed by this 
Court. This Court has characterized Title VIII as a “com­
prehensive open housing law” and “a detailed housing law, 
applicable to a broad range of discriminatory practices,” 
Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 413, 417 
(1968). In Trafficante v. Metropolitan Life Ins. Co., 409 
U.S. 205, 211 (1972), the Court reviewed the legislative 
history indicating that Congress believed “the whole com­
munity” was the victim of discriminatory housing policies, 
114 Cong. Rec. 2706 (remarks of Senator Javits) and that 
the reach of the law was to replace ghettos with “truly 
integrated and balanced living pattern,” 114 Cong. Rec. 
3422 (remarks of Senator Mondale). Federal courts are 
mandated “ ‘to adjust their remedies so as to grant the 
necessary relief’ where federally secured rights are in­
vaded,” J. I. Case Co. v. Bor ok, 377 U.S. 426, 433 (1964). 
Moreover, the special function private civil rights litigants 
serve as “private attorneys general” who have assumed the 
mantle of the sovereign to enforce national policy is clear in 
fair housing actions. Newman v. Biggie Park Enterprises, 
390 U.S. 400, 402 (1968); Trafficante v. Metropolitan Life 
Ins. Co., supra, 409 U.S. at 211. If private attorneys gen­
eral, such as Mr. Williams, are not entitled to broad in­



16

junctive relief, the right of the community in an integrated 
living environment may never he vindicated. This Congress 
did not intend.6 In Tra.fficante, a white tenant had standing 
to sue the owner of an apartment building for violating 
Title V III; no less is a black plaintiff entitled to broad in­
junctive relief that guarantees an integrated living en­
vironment.

The denial of injunctive relief is also not in accord with 
applicable decisions of this Court that define the purpose of 
judicial equity power in civil rights cases generally. In 
United States v. Louisiana, 380 U.S. 145, 154 (1965), this 
Court declared that “the court lias not only the power but 
the duty to render a decree which will so far as possible 
eliminate the discriminatory effects of the past as well as 
bar like discrimination in the future.” See also, Goosby v. 
Osser, 409 U.S. 512, 517, n. 5 (1972). The refusal of the 
Court of Appeals to prescribe injunctive safeguards for 
the desegregation of the Lakewood subdivision by the first 
black family to move in is inconsistent with the remedial 
principle of the school desegregation cases beginning with

6 Indeed, Congress set forth the guiding presumption that in­
junctive relief is ordinarily available in fair housing eases. Section 
812(c) of Title VIII -expressly states that a court may grant as 
relief any appropriate “permanent or temporary injunction, tem­
porary restraining order, or other order.” § 813 authorizing Justice 
Department suits contains identical remedial language. This Court 
has stated that, “ [t]he fact that 42 U.S.C. § 1982 is couched in 
declaratory terms and provides no explicit method of enforcement 
does not, of course, prevent a federal court from fashioning an 
effective -equitable remedy [citations omitted],” Jones v. Alfred H. 
Mayer Co., supra, 392 U.S. at 413, n. 13. The jurisdictional stat­
ute, 28 U.S.C. § 1343(4) confers jurisdiction upon the district 
courts in any civil rights action authorized by law “to secure 
equitable or other relief under any Act of Congress providing for 
the protection of civil rights.” The equity imperative that “every 
final judgment shall grant the relief to which the party in whose 
favor it is rendered is entitled” has of course been codified in 
Rule 54(c), Fed. R. Civ. P.



17

Brown v. Board of Education, 349 U.S. 294 (1955). E.g., 
Griffin v. City School Board, 377 U.S. 218 (1968); Green v. 
City School Board, 391 U.S. 430 (1968); Swann v. Char- 
lotte-Mecklenburg Board of Education, 402 U.S. 1 (1970); 
Keyes v. School District No. 1, 413 U.S. 189 (1973). This 
line of cases is perhaps the classic instance in which this 
Court has synthesized the constitutional imperative to vin­
dicate civil rights and traditional notions of equity breadth 
and flexibility. “Once a right and a violation have been 
shown, the scope of a district court’s equitable powers to 
remedy past wrongs is broad, for breadth and flexibility 
are inherent in equitable remedies.” Swann v. Charlotte- 
MecMenburg Board of Education, supra, 402 U.S. at 15.

Today, it is in a fair housing action that the breadth and 
flexibility of injunctive relief is at issue. As a matter of 
history, the necessity for injunctive relief has been a re­
curring threshold problem in area after area of civil rights 
litigation. However, in no other civil rights area but fair 
housing law have the courts decided the question adversely 
to civil rights advocates. In Clemons v. Board of Education 
of Hillsboro, 228 F.2d 853 (6th Cir. 1956), cert, denied, 350 
U.S. 1006 (1956), the Court observed that “extensive re­
search has revealed no case in which it is declared that a 
judge has judicial discretion by denial of an injunction to 
continue the deprivation of basic human rights.” Justice 
Stewart, then a Circuit Judge, concurred, adding that in 
such cases “the area permissible under the law for the exer­
cise of judicial discretion was an extremely narrow one.” 
In Potts v. Flax, 313 F.2d 284, 288-90 (5th Cir. 1963), and 
Buchner v. County School Board, 332 F.2d 452, 454-56 (4th 
Cir. 1964) (en banc), the courts decided that named plain­
tiffs may obtain system-wide desegregation as well as in­
dividual relief. United States v. Louisiana, 380 U.S. 145 
(1965) and United States v. Atkins, 323 F.2d 733, 738-40



18

(5th Cir. 1963), stand for the same rule in voting rights. 
Compare, Bailey v. Patterson, 323 F.2d 201, 205-207 (5th 
Cir. 1963) (segregation in common carriers), and Cypress 
v. Newport News General and Nonsectarian Hosp. Ass’n, 
375 F.2d 648 (4th Cir. 1967) (segregation in health 
services).

In recent years it is in racial discrimination litigation 
anthorized by the Civil Rights Act of 1964, as amended, 
and 42 U.S.C. § 1981 that federal courts have been called 
upon with great frequency to decide that a private liti­
gant “ [i]f he obtains an injunction . . . does so not for 
himself alone, but also as a ‘private attorney general,’ 
vindicating a policy that Congress considered as the 
highest priority,” Newman v. Piggie Park Enterprises, 
supra, 390 U.S. at 401-02. “Whether in name or not, 
the suit is per se a sort of class action for fellow em­
ployees similarly situated,” Jenkins v. United Gas Corp., 
400 F.2d 28, 33 (5th Cir. 1968), and “ [discrimination on 
the basis of race . . .  is class discrimination,” Georgia 
Power Co. v. E.E.O.C., 412 F.2d 462, 468 (5th Cir. 1969) 
(original emphasis). “The trial judge in a Title VII case 
bears a special responsibility in the public interest to 
resolve the employment dispute, for once the judicial 
machinery has been set in train, the proceeding takes on 
a public character in which remedies are devised to vindi­
cate the policies of the Act, not merely to afford private 
relief to the employee.” Hutchins v. United States In­
dustries, Inc., 428 F.2d 303, 311 (5th Cir. 1970). See also, 
Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 
(8th Cir. 1970); Sprogis v. United Air Lines, Inc., 444 
F.2d 1194 (7th Cir. 1971).



19

CONCLUSION

For the above reasons, a writ of certiorari should issue 
to review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

J ack Greenberg  
J ames M. N abrit, III 
S ylvia D rew  
E ric S ch n a pper

10 Columbus Circle
New York, New York 10019

J o h n  W . W alker 
Walker, Kaplan & Mays, P.A. 

622 Pyramid Life Building 
Little Rock, Arkansas 72201

Attorneys for Petitioner



APPENDIX



— A-l —

APPENDIX A

United States Court of Appeals 
for the Eighth Circuit

No. 73-1765

D. C. Williams, et ux.,
Appellants,

v- (
The Matthews Company, et al.,

Appellees, j

A p p e a l  from the 
United States Dis­
trict Court for the 
Eastern District of 
Arkansas.

Submitted: March 13, 1974 

Filed: June 20, 1974

Before Gibson, Bright and Stephenson, Circuit Judges.

Bright, Circuit Judge.

D. C. Williams, a black man from North Little Rock, Arkan­
sas, brought this civil action, individually and as a class repre­
sentative for other black persons, charging defendants with 
racial discrimination in refusing to sell residential building lots 
to black people in violation of the Civil Rights Acts of 1870 
and 1866 (42 U.S.C. §§1981, 1982)1 and §804 of the Civil 1

1 42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the United States shall 

have the same right in every State and Territory to make and



—  A-2 ■—

Rights Act of 1968 (42 U.S.C. §3604).2 * In addition to declara­
tory and injunctive relief, plaintiff sought compensatory damages 
and reasonable attorney’s fees. Jurisdiction was asserted under 
28 U.S.C. § 1343s and 42 U.S.C. §3612,4

enforce contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for the se­
curity of persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1982 provides:
All citizens of the United States shall have the same right, in 

every State and Territory, as is enjoyed by white citizens 
thereof to inherit, purchase, lease, sell, hold and convey real 
and personal property.

2 42 U.S.C. § 3604 provides in relevant part:
[I]t shall be unlawful—

(a) 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 oth­
erwise make unavailable or deny, a dwelling to any person be­
cause of race, color, religion, or national origin.

(b) To discriminate against any person in the terms, condi­
tions, or privileges of sale or rental of a dwelling, or in the 
provision of services or facilities in connection therewith, be­
cause of race, color, religion, or national origin.

“Dwelling” as used in § 3604 is defined in 42 U.S.C. § 3602(b) as:
(b) “Dwelling” means any building, structure, or portion 

thereof which is occupied as, or designed or intended for occu­
pancy as, a residence by one or more families, and any va­
cant land which is offered for sale or lease for the construction 
or location thereon of any such building, structure, or portion 
thereof.

28 U.S.C. § 1343 provides in relevant part:
The district courts shall have original jurisdiction of any 

civil action authorized by law to be commenced by any person: 
* * * * * *  *

(3) To redress the deprivation, under color of any State law, 
statute, ordinance, regulation, custom or usage, of any right, 
privilege or immunity secured by the Constitution of the United 
States or by any Act of Congress providing for equal rights of 
citizens or of all persons within the jurisdiction of the United 
States;



— A-3

In dismissing the class action aspects of the case and denying 
Williams any individual relief, the trial court concluded that the 
defendants accorded Williams “special handling” only for the 
purpose of accomplishing smoothly some integration of their 
all-white real estate subdivision, Lakewood,, and that the defend­
ants refused to sell Williams a real estate lot in pursuance of 
their valid policy of restricting sale of lots only to “qualified” 
building contracts. We reverse and remand.

We think that racial discrimination by the defendants in their 
real estate operations is shown as a matter of fact and law. The

(4) To recover damages or to secure equitable or other relief 
under any Act of Congress providing for the protection of 
civil rights, including the right to vote.

4 42 U.S.C. § 3612 provides in relevant part:
(a) The rights granted by sections 3603, 3604, 3605, and 

3606 of this title may be enforced by civil actions in appropri­
ate United States district courts without regard to the amount 
in controversy and in appropriate State or local courts of gen 
era! jurisdiction. A civil action shall be commenced within one 
hundred and eighty days after the alleged discriminatory hous­
ing practice occurred: Provided, however, That the court shall 
continue such civil case brought pursuant to this section or 
section 3610(d) of this title from time to time before bringing 
it to trial if the court believes that the conciliation efforts of 
the Secretary or a State or local agency are likely to result in 
satisfactory settlement of the discriminatory housing practice 
complained of in the complaint made to the Secretary or to 
the local or State agency and which practice forms the basis 
for action in Court: And provided, however, That any sale, 
encumbrance, or rental consummated prior to the issuance of 
any court order issued under the authority of this Act, and in­
volving a bona fide purchaser, encumbrancer, or tenant with­
out actual notice of the existence of the filing of a complaint 
or civil action under the provisions of this Act shall not be af­
fected. * * * * * * * *

(c) The court may grant as relief, as it deems appropriate, 
any permanent or temporary injunction, temporary restraining 
order, or other order, and may award to the plaintiff actual 
damages and not more than $1,000 punitive damages, together 
with court costs and reasonable attorney fees in the case of a 
prevailing plaintiff: Provided, That the said plaintiff in the opin­
ion of the court is not financially able to assume said attorney’s 
fees.

[Footnotes 3 and 4 continued on following page]



— A-4 —

defendants’ policy of selling lots only to builders, which, under 
the circumstances, operated to exclude black persons from ac­
quiring building lots in the real estate subdivision, does not af­
ford any legal justification for defendants’ conduct.

I

The facts relating to defendants’ conduct appear without sub­
stantial dispute in the record. Although defendants attacked 
the bona fides of Williams’ proposal to purchase real estate, the 
trial court resolved that issue in Williams’ favor in finding that 
“Mr. and Mrs. Williams did in good faith attempt to purchase a 
lot in Lakewood with the intention of building a home valued 
between $30,000 and $40,000.’*

“Lakewood”, a large residential subdivision in North Little 
Rock, Arkansas, is being developed by the defendant Matthews 
Company, which holds in trust a number of tracts originally part 
of the vast land holdings of the late Justin Matthews, Sr. De- 
fendant-John Matthews, the son, is chairman of the board of the 
company; defendant-James Matthews, the grandson, is president. 
As was the case with four other Matthews Company subdivi­
sions, none of the 2,000 residential lots in Lakewood were 
occupied by blacks as of the date of the filing of the complaint. 
At the trial, John Matthews testified that the company had ex­
cluded blacks from its subdivisions as an official policy since 
1945, but that this policy had been abandoned in approximately 
1965. He admitted that he had never notified the public of 
this change nor taken any affirmative steps to integrate the Lake- 
wood community.

In March of 1970, Williams initiated his inquiry about pur­
chasing a lot in Lakewood. He and his wife, Dinah, taught in 
the public school system in Little Rock and, at the time of the 
suit, jointly earned approximately $16,000 annually. Beginning



— A-5 —

in September 1969, the Williamses began looking for property 
upon which to build a larger home for themselves and their two 
children. They had built their own home in Glenview (a Negro 
subdivision in North Little Rock) valued at $25,000, and, as a 
Korean War veteran, plaintiff had available to him V.A. loans. 
The couple planned to spend between $30,000 and $40,000 on 
a new home.

During this time, they looked at property in the Lakewood 
subdivision where they found a “for sale” sign posted on each 
vacant lot. Each sign gave the price and size of the lot and 
listed the Matthews Company as seller, with its phone number. 
If a lot had been sold, the sign gave the owners name. Ac­
cording to the plaintiffs, these signs remained posted up to and 
after the time their suit was filed on April 29, 1970. Based 
on their visits to Lakewood, the couple decided to inquire fur­
ther about four particular pieces of property.

On March 16, 1970, the Williamses called to make an ap­
pointment at the Matthews Company. The next day, they met 
with Mr. James Matthews, the president of the company, who 
indicated that he could neither accept nor reject their offer to 
purchase a lot, but would have to take the matter up with his 
father, John Matthews, and call them later in the week.

On March 18, 1970, James Matthews called the Williamses 
and for the first time informed them that the company did not 
sell lots to individuals, but only to builders. He informed the 
plaintiff that they might find an approved builder and have him 
purchase a lot, and further advised the couple that it would be 
better for them to purchase an already constructed home. He 
suggested that he might even make his mother’s “villa” available 
for $60,000. The couple restated their intention of building 
their own home. No list of builders was furnished to the Wil­
liamses by James Matthews nor was any further contact initiated 
by him or other members of the Matthews Company.



— A-6 —

Shortly after this March 18 conversation with James Mat­
thews, plaintiff attempted to contact several of the builders 
whose names had appeared on signs on other homes in Lake- 
wood. One of the white builders to whom the couple talked indi­
cated that he would go out of business if he built a house in 
Lakewood for blacks, but offered to build in a black residential 
area if they wished. A second white builder also refused to 
build for the Williamses. After these conversations, the couple 
approached a black builder, Joe Anderson, to visit the Matthews 
Company on their behalf.

In mid-April, Joe Anderson met with James Matthews and 
stated his desire to purchase a lot for the Williamses. Matthews 
stated that Anderson would have to be an “approved builder” 
before he could sell a lot to him, but he did not outline any 
procedures for becoming an approved builder. He informed 
Anderson that he could not give him any answer on his request 
until his father, John Matthews, returned from the Orient two 
months later. At the trial, it appeared from defendants’ testi­
mony that the company never had any formal policies or pro­
cedures relating to approved builders. According to James 
Matthews, builders were approved or disapproved by the board 
of directors, but, according to John Matthews, who was chair­
man of the board, he had not made any decisions on approving 
builders for five years and it was his son, James, who made the 
decisions.

On April 24, 1970, Mrs. Williams contacted James Matthews 
for the last time. He informed her that he would not sell them 
a lot and would not give them a decision on letting their builder 
purchase a lot until John Matthews returned to the country in 
June. Five days later, the plaintiffs filed this suit.

In defense of the conduct of the Matthews Company, John 
Matthews introduced into evidence an office memorandum dated 
February 13, 1970, to demonstrate that the personnel of the



— A-7

Matthews Company contempiated integration of the all-white 
Lakewood subdivision. This memorandum, while espousing 
the principle of integration as “morally right”, ordered special 
treatment of any black person seeking entry into the subdivision,- 
to be handled personally by the senior Matthews, John.0

John Matthews, at trial, testified that the corporation could 
not sell Williams a lot in the subdivision without violating a firm 
policy to sell lots only to approved building contractors. That 
policy had allegedly been adopted in late 1969 as a means of 
insuring an orderly development of the subdivision since ap­
proved contractors would undertake prompt construction on 
those building lots which were made available to them for pur­
chase. As a further reason for justifying the refusal to sell Wil­
liams a lot, John Matthews testified that he believed that Wil­
liams’ attorney, John W. Walker, of Little Rock, would seek 
to invalidate certain subdivision building restrictions relating to 
size and cost of homes.

The office memorandum stated:
As discussed, the longer we develop residential communities, 
the more we realize, that more effort on the part of the de­
veloper and tighter controls on development seem the only way 
to achieve pleasant places to live where property values will 
continue to increase over the years.
Cost and square footage restrictions are virtually useless. Plan 
approval seems the best route but if builders or owners do not 
want to improve neighborhoods, then plan approval accom­
plishes little. Thus, we have returned to the regulation that 
lots will be sold only to approved builders or to individuals who 
agree to immediate construction by approved builders.
All the above has already been discussed with you and all 
officials of our Company in great detail.
As to the integration of Lakewood, our Company realizes that 
integration is the law of the land and our Board of Directors 
feels that integration is morally right. Thus, we realize that 
integration of Lakewood is inevitable and. we welcome black 
residents, the sooner the better.
On the other hand, we realize that all-white communities, like 
Lakewood, are extremely sensitive and that great care is neces-



— A-8 —

In denying Williams claim, the district court characterized 
defendants' policy of selling only to builders as free of racial 
considerations and described defendants’ fear—that sale of a 
subdivision lot to Williams would produce a challenge to their 
building restrictions— as sincerely but perhaps mistakenly held. 
Accordingly, the trial court concluded that plaintiff was not de­
nied the right to purchase property because of his race and that 
plaintiff was afforded the same opportunity as others to pur­
chase from an approved builder. The trial court additionally de­
termined that “defendants have here demonstrated that their 
practice of selling to builders has a demonstrated business reason 
for its retention.”

An examination of the statutes and case law require a con­
clusion contrary to that reached by the distnct court.

II

The policy of the United States contained in Title VIII of the 
Civil Rights Act of 1968 is to provide, within constitutional 
limitations, fair housing throughout the country. 42 U.S.C.

sary if integration is to be accomplished smoothly and without 
unpleasant incident.
We also realize that some black people are becoming more mili­
tant in their frustration and may wish to cause all the excite­
ment, publicity, harassment, etc. possible, which we feel would 
be such poor policy for the Negroes and so disruptive to the 
welfare of this or any other subdivision that, we feel we have 
a most serious obligation to the community of Lakewood to 
make every effort to accomplish integration quietly without 
hurting anyone, black or white, and without lowering Lakewood 
property values.
To accomplish this, our Board of Directors has requested me 
to make a personal case of the first black families who move 
to Lakewood, Our hope is that these black families can 
quietly move into an existing home with the ieast possible fan­
fare or publicity.
Whenever any black family asks you about purchasing a home 
or vacant lot, your referring them to me will be appreciated.



— A-9 —

§3601. Like the 1866 Civil Rights Act, the Fair Housing Title 
is an exercise of congressional power under the thirteenth 
amendment to eliminate the badges and incidents of slavery. 
United States v. Hunter, 459 F.2d 205, 214 (4th Cir. 1972).' 
As the Supreme Court commented in Jpnes v. Mayer Co., 
392 U.S. 409 (1968), construing 42 U.S.C. §1982: ,

[W]hen racial discrimination herds men into ghettos and 
makes their ability to buy property turn on the color of 
their skin, then it too is a relic of slavery, [392 U.S. at 
442-443.]

Thus, the Fair Housing Title of the Civil Rights Act of 1968 
and the 1866 Civil Rights Act together comprehensively spell 
out the right of an individual to rent or purchase housing with­
out suffering discrimination and to obtain federal enforcement 
of that fundamental guarantee. 392 U.S. at 413-17.

Recent cases make clear that the statutes prohibit all forms 
of discrimination, sophisticated as well as simple-minded, and 
thus disparity of treatment between whites and blacks, burden­
some application procedures, and tactics of delay, hinderance, 
and special treatment must receive short shrift from the courts. 
See United States v. Pelzer Realty Company, Inc., 484 F.2d 
438 (5th Cir. 1973); United States v. Youritan Construction 
Company, No. C-71 1163 ACW (N.D. Cal., filed Jfeb. 8, 
1973); Hall v. Freitas, 343 F. Supp. 1099 (N.D. Cal. 1972); 
Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407 (S.D. Ohio
1968) ; Brown v. Lo Duca, 307 F. Supp. 102 (E.D. Wise.
1969) .

Race is an impermissible factor in real estate transactions 
under both 42 U.S.C. § 1982 and 42 U.S.C. § 3604 and “can­
not be brushed aside because it was neither the sole reason 
for discrimination nor the total factor of discrimination.” Smith 
v. Sol. D. Adler Realty, 436 F.2d 344, 349-350 (7th Cir.
1970) . The courts will look beyond the form of a transaction



—  A-10 —

to its substance and proscribe practices which actually or pre- 
dictively result in racial discrimination, irrespective of defend­
ant’s motivation. See United States v. Grooms, 348 F. Supp. 
1130, 1133-1134 (M.D. Fla. 1972); United States v. Real Es­
tate Development Corporation, 347 F.Supp. 776, 782 (N.D. 
Miss. 1972); United States v. Reddock, No. 6541-71-P (S.D. 
Ala., filed Jan. 1, 1972), aff’d, 467 F.2d 897 (5th Cir. 1972).

We think that the concept of the “prima facie case” ap­
plies to discrimination in housing as much as to discrimination 
in other areas of life. Cf. McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 802 (1973). This is not a new principle, but is 
a familiar one in the areas of employment,6 labor relations,7 
and school8 discrimination. Thus, where a Negro buyer meets 
the objective requirements of a real estate developer so that a 
sale would in all likelihood have been consummated were he 
white and where statistics show that all of a substantial num­
ber of lots in the development have been sold only to whites, 
a prima facie inference of discrimination arises as a matter of 
law if his offer to purchase is refused. If the inference is not 
satisfactorily explained away, the fact of discrimination be­
comes established. See Newbern v. Lake Lorelei, Inc., 308 F. 
Supp. 407, 417 (S.D. Ohio 1968).

Here, the defendants admittedly followed a whites-only 
policy in sales of real estate prior to 1965. John Matthews 
testified to a change of heart and a willingness, finally, to com­
ply with the law and the obligations of good citizenship, but

0 See Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 
426 (8th Cir. 1970) (citing cases); Marquez v. Omaha District 
Sales Office, Ford Division, 440 F.2d 1157 (8th Cir. 1971). See 
generally Griggs v. Duke Power Co., 401 U.S. 424 (1971).

' See United States v. Sheet Metal Wkrs. Int. Ass’n, Local U. 36, 
416 F.2d 123, 131 (8th Cir. 1969) (citing cases).

8 See Moore v. Board of Ed. of Chidester Sch. Dist. No. 59, 
Ark., 448 F.2d 709, 711 (8th Cir. 1971) (citing cases).



A-l 1 —

this change of heart was demonstrated only by a self-serving 
office memorandum written in 1970 and entitled, perhaps sig­
nificantly, “Ever Tightening Lakewood Controls As It Affects 
Integration.” Those tightened controls were exercised through' 
approved builders, none of whom were, black and none of 
whom would break the housing segregation barrier by building 
a home for a black family in an all-white neighborhood. The 
Matthews Company made no public announcement of their 
new devotion to integration, and the record shows that no 
black man or woman had ever acquired property in any sub­
division of the Matthews Company up to and including the time 
of trial.

The special handling of the efforts of Mr. and Mrs. Williams 
to purchase a lot in Lakewood, in the light of this factual 
background, became nothing more than a “run-around” when 
John Matthews— the sole person having the authority in the 
company to deal with black persons (although other officers and 
employees might deal with white persons)— left the United 
States for an extended tour in the Orient. This undisputed 
evidence establishes a prima facie case of discrimination.

We do not think that the trial judge reached a contrary de­
termination as to these obvious facts of discrimination.9

9 The trial court’s opinion read in part:
The background statistical case for plaintiff is obviously very 

strong, but here we are dealing with a particular series of trans­
actions between plaintiff and his wife and the defendants, and 
unless defendants’ conduct in this instance was at least par­
tially occasioned by racial considerations, plaintiff cannot pre­
vail. The Court is troubled by the fact that defendants did not 
earlier, much earlier, communicate their change of policy and 
attitude toward the integration of their subdivisions to the 
public. And yet, the Court is fully convinced that John Mat­
thews did, as he testified, have a sincere and honest change 
of attitude, like so many other Southern white businessmen 
in the early 1960s, and has been honestly convinced since that 
time that integration is not only legally required but morally



—  A -12 —

Rather, he apparently assumed that subjective good intentions 
could overcome the prima facie showing of discrimination, and 
concluded:

[T]his “personal handling” procedure was not intended, 
or used, as a device to delay integration. In fact the de­
fendants at the time they were first contacted by. plain­
tiff wanted to get the integration started as soon as pos­
sible.

That conclusion is error. A prima facie case of discrimina­
tion resting as it does both on statistical evidence and real evi­
dence cannot be overcome by defendant-Matthews’ platitude 
that “integration is the law of the land and our Board of Di­
rectors feels that integration is morally right.” Statistics, of 
course, are not everything, “but nothing is so emphatic as zero.” 
United States v. Hinds County School Board, 417 F.2d 852, 
858 (5th Cir. 1969), cert, denied, 396 U.S. 1032 (1970). 
When a plaintiff makes a prima facie case of discrimination, as 
here, the burden shifts to the defendant to articulate some ie-

right. And this change in attitude became at that time the new 
business policy of the defendants.

The Court is concerned that John Matthews decided to make 
the integration of Lakewood, as indicated by the February 13, 
1970, memorandum, a “personal” matter, by, hopefully, di­
recting the first black families into existing homes. This ar­
rangement has implications of special handling that ordinarily 
would be unacceptable. If this effort to “direct” black fam­
ilies into existing facilities resulted even indirectly in the refusal 
to sell vacant lots to blacks, then certainly defendants would be 
denying blacks access to Lakewood on an equal basis with 
whites. But such was not the case. Another obvious point: 
if John Matthews, and the evidence seems to so suggest, does 
not in fact have the time to keep in fairly constant contact with 
the day-to-day business of the firm, his attempt to “personally” 
handle the integration of Lakewood could obviously work to 
delay integration. However, the Court finds that this “personal 
handling” procedure was not intended, or used, as a device 
to delay integration. In fact the defendants at the time they 
were first contacted by the plaintiff wanted to get the integra­
tion of Lakewood started as soon as possible.



— A-13 —

gitimate, nondiscrinlinatory reason for the plaintiffs rejection. 
See McDonnell Douglas Corp, v. Green, supra, 411 U.S. at 802,

We need then examine the grounds asserted in the district 
court’s opinion for his conclusion that no unlawful discrimi­
nation existed in this case. The trial court determined that Wil­
liams was in fact offered the opportunity to purchase on terms 
available to all persons. The conclusion, as we understand the 
trial court’s opinion, was premised upon the proposal by 
Matthews to Williams to purchase a lot through an approved 
builder. In this connection the court also ruled that the pro­
cedure of selling to builders only was not adopted because of 
racial considerations nor was it used, or intended to be used, 
as a ruse by which to exclude blacks.

Assuming that the requirements of purchasing only through 
approved builders did not constitute a ruse,10 this procedure 
was fraught with racial overtones and cannot overcome the 
prima facie case of racial discrimination. Here only white 
builders were approved. The Matthews Company had not com­
municated notice of any change of policy regarding its segre­
gation practices to these builders. No white builder had ever 
contracted to build or buy a home for a black person in that 
subdivision. The Williamses had sought and been refused a lot 
through white builders. A black contractor selected by Wil­
liams found himself in limbo, neither accepted, nor rejected 
by the Matthews. The undisputed facts show that under the 
circumstances the alleged procedure of selling lots only to build­
ers carried racial overtones, and such a policy, even though

10 Strong evidence in the record tends to suggest, first, that the 
Matthews Company did not follow a hard and fast rule of selling 
only to builders but in fact advertised and sold individual lots to 
whites, and, second, that this requirement for sale permitted the 
Matthews Company to pretend cooperation with a black buyer while 
in fact giving him the brush-off. It stretches credulity to believe 
that the Matthews Company and its officers did not know that white 
builders would refuse to buy a lot and build a home for a black 
person in the Lakewood subdivision.



— A-14 —

neutral on its face, cannot stand if it in its operation serves to 
discriminate on the basis of race. See Griggs v. Duke Power 
Co., 401 U.S. 424 (1971).

The policy adopted by the Matthews Company to sell lots 
only through approved builders served here to discriminate 
against Williams in obtaining a lot. That policy therefore can- 
not stand nor can it excuse the racial discrimination shown in 
this case. See McDonnell Douglas and Griggs, supra.

Finally, the trial court’s suggestion— that any taint of dis­
crimination is avoided in this case because “the practice of 
selling to builders has a demonstrated business reason for its 
retention”— also rests upon a legally unsound basis and must 
be rejected. In order to rely upon a “business necessity” jus­
tification for a business policy which, though fair in form, is 
discriminatory in operation, a defendant must demonstrate the 
absence of any acceptable alternative that will accomplish the 
same business goal with less discrimination. See Wallace v. 
Dehron Corporation, No. 73-1729 (8th Cir., filed Mar. 28, 
1974); United Stales v. St. Louis-San Francisco Railway Co., 
464 F.2d 301, 308 (8th Cir, 1972). Here, of course, a num­
ber of alternatives are available to avoid the racial effect of the 
“builders-only” policy. For example, the Matthews Company 
could sell building lots directly to black persons who indicate 
a willingness to hire an available competent contractor, black 
or white, who will build a home in the subdivision for a black 
person, or Matthews could direct that its approved builders 
make the building lots they buy from Matthews available with­
out discrimination to all persons regardless of race. The appli­
cation of the “business necessity” doctrine offered here, however, 
rests upon pure chimera.11 11

11 The sincere belief on the part of John Matthews, as found by 
the trial court, that applicant Williams would likely seek to upset 
certain covenants and assurances relating to size and costs of con­
struction in the Lakewood development cannot serve as a basis to 
overturn the prima facie case of race discrimination otherwise ap-



—  A -15 —

III

It is surely true that, on a showing of discrimination towards 
himself and other members of his race, a plaintiff may appro­
priately file and prosecute a class action on behalf of himself 
and other members of his race under Fed. R. Civ. P. 23(a). 
See Newbern v. Lake Lorelei, Inc,, 308 F.Supp. 407, 416 (S.D. 
Ohio 1968) (citing cases). Although we do find some evi­
dence in the case which might have justified a class action, the 
court determined that plaintiff has failed to show that other 
black persons have attempted and been denied the right to 
purchase property in Lakewood or other Matthews Company 
subdivisions. This finding afforded an appropriate basis for the 
dismissal of the class action, since one family is not a class 
and the burden is on the plaintiff to justify permitting the suit 
to proceed as a class action. See Cash v. Swifton Land Corpo­
ration, 434 F.2d 569 (6th Cir. 1970); Crim v. Glover, 338 
F.Supp. 823 (S.D. Ohio 1972).

IV

Accordingly, the plaintiff is entitled under 42 U.S.C. §3612 
(c) to the following relief: (1) a declaratory judgment of his 
rights to purchase property in any subdivision developed by

parent in the record. We think it clear that Matthews’ belief rested 
upon subjective assumption, not upon evidence, for the record is 
bare of any showing that Williams intended to cause trouble to the 
developer. Statements of a black attorney, John Walker of Little 
Rock, Arkansas, attacking the legal validity of these covenants and 
assurances were made prior to the time Williams first expressed any 
interest in purchasing a Lakewood lot. Walker’s “legal opinion” can 
in no way reflect upon the good faith of Williams. Even assuming, 
arguendo, that it would be legitimate to refuse to sell property to 
an individual who planned to challenge a developer’s restrictive cov­
enant or bills of assurance, far more evidence than appears in this 
record would be required to establish Williams as a “troublemaker” 
and thus an ineligible land purchaser in the eyes of a reasonable 
real estate developer.



— A-16 —

the Matthews Company; (2) counsel fees on trial and on ap­
peal, see Knight v. Anciello, 453 F,2d 852 (1st Cir. 1972); 
Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir.
1971); (3) court costs; (4) actual damages for the defend­
ant’s failure to sell Williams a lot during the spring of 1970, 
to include such sum as will properly compensate plaintiff for his 
deprivation of civil rights and for humiliation suffered by him, 
see Seaton v. Sky Realty Company, Inc., 491 F.2d 634 (7th 
Cir. 1974); and (5) punitive damages not to exceed S 1,000, 
See generally Smith v. Sol D. Adler Realty Company, 436 F. 
2d 344 (7th Cir. 1971).

We reverse and remand this case for the entry of a judgment 
consistent with this opinion.

Reversed and remanded.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.



—-A-17 —

APPENDIX B

IN THE UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF ARKANSAS 

WESTERN DIVISION

D. C. WILLIAMS, PLAINTIFF,

v. No. LR-70-C-97.

THE MATTHEWS CO., a corporation; JOHN 
P. MATTHEWS, individually and as Presi­
dent and/or Owner of The Matthews Co.; 
and JAMES MATTHEWS, individually and 
as Manager or Agent of The Matthews Co.,

DEFENDANTS.

MEMORANDUM AND ORDER 

(Filed September 20, 1973)

Plaintiff has brought an individual and class action under the 
Civil Rights Act of April 9, 1966, 14 Stat. 27, as amended; 42 
U.S.C. § § 1981, 1982; 6812 of the Fair Housing Act of April 
11, 1968, 82 Stat. 81, 42 U.S.C. § 3612, and the Thirteenth 
Amendment.

Plaintiff D. C. Williams, a black resident of North Little 
Rock, Arkansas, alleges that he was denied by defendants the 
right to purchase real property because of his race. Plaintiff 
prays for a declaratory judgment, injunctive relief and mone­
tary damages and for a reasonable attorney’s fee. This case 
was tried to the court on July 14, 1972.

Defendant Matthews Company holds in trust a number of 
tracts of land in the Greater Little Rock metropolitan area.



— A-18 —

John Matthews is Chairman of the Board and, at all pertinent 
times, was the dominant figure in this family business; his son 
James is President; and his son Charles is a Vice President of 
the Matthews Company.

The residentially developed area involved in this suit is known 
as “Lakewood”. It consisted, at the time of suit, of approxi­
mately two thousand single-family house lots and one apart­
ment building. No blacks owned lots in Lakewood as of the 
date of the filing of the complaint herein in 1970. John Mat­
thews testified that there was a policy of exclusion of black 
families from these subdivisions until approximately nine years 
ago when this policy was reconsidered and completely changed.

The Matthews Company is the present result of a “chipping” 
off and division of a part of the holdings of Justin Matthews, 
Sr., by defendant John Matthews and other members of the 
Matthews family. On January 1, 1955, John Matthews re­
ceived approximately one-fourth of his father’s vast land hold­
ings. John Matthews testified at trial that when his father 
began developing subdivisions in this area a major concern 
was to develop large areas and maintain enough control to as­
sure the orderly growth of desirable neighborhoods containing 
structures which complemented each other. Various methods 
were used without much success until the present plan was im­
plemented in 1969.1

On December 29, 1969, shortly after John and James Mat­
thews returned from a meeting of the Urban Land Institute in 
Baltimore, James Matthews addressed the following letter to 
Clyde C. McConnell, a builder with whom Matthews Company 
had frequently dealt:

“This letter is being sent to all of our builder-customers.
“Beginning December 29, 1969 Matthews Company is

1 The various methods included price restrictions, square footage 
requirements, and architectural control.



— A-19 —

adopting a policy of selling lots only to approved Lake- 
wood builders. The purpose of this is two-fold:

“ 1. In the past we have had some unhappy experiences 
with builders who returned lots after holding them 
for extended periods of time and thus taking an un­
fair advantage of our policy of low down payments.

“2. Our experience with individuals has been they will 
hold lots in an undeveloped stage for an extended 
period thus causing gaps in the orderly development 
of the subdivision.

“Thanking you for past business and hoping this new 
policy meets with your approval.”

John Matthews testified, and the Court finds, that this practice 
of selling lots only to a limited number of builders, and not to 
individuals, is widespread among land developers across the 
country and that Matthews was sold on the idea at the meeting 
of the Urban Land Institute. It is clear from the evidence that 
the decision to adopt this practice was not related to racial con­
siderations. Mr. Matthews stated that, since December 29, 
1969, the Matthews Company has not sold lots to individuals 
and that no signs advertising the company’s lots for sale have 
been posted, although a few older signs remained posted due 
to simple negligence on the part of company employees in tail­
ing to remove all of them. Plaintiff contends that sales to indi­
viduals have been made since December 29. 1969, and intro­
duced a number of warranty deeds executed after December 
29, 1969, running from the Matthews Company to individuals 
who were not “approved” builders. Each deed contains a clause 
which reads: “This deed is executed in fulfillment of a contract 
of sale of the property described herein. . . . ” Defendants 
contend that each “contract” referred to in the deeds was be­
tween Matthews Company and an “approved” builder. The 
facts clearly support the defendants in this regard even though



—  A-20 —

it is easy to understand how the deed records raised plaintiff’s 
suspicions.

Defendants did not maintain a formal list of “approved”- 
builders and neither John nor James Matthews could give a 
complete list of those builders who had been approved. No 
black builders have been approved, but there is no evidence 
that any applied prior to this lawsuit. John Matthews testified 
that a builder is approved on the basis of his credit rating, past 
work, and general reputation.

Defendants’ practice is to send to the approved builders a 
list of lots to be offered by the company. A few days later a 
dinner meeting with the builders is held and all lots being offered 
are sold at that dinner meeting. The practice has been a success 
and the defendants have had no' trouble in disposing of the lots 
in this manner or in maintaining quality standards for construc­
tion in the subdivision.

The plaintiff and his wife decided at some point in 1969 that 
their present home was too small and that they would investi­
gate the possibility of purchasing a new home. The investiga­
tion led to Lakewood and in March of 1970 the Williamses 
identified several lots in the area in which they were interested 
Mrs. Williams copied down four lot numbers from signs posted 
on the lots.2

On March 17, 1970, Mr. and Mrs. Williams visited Mr. James 
Matthews at his office. When they informed James Matthews 
of their desire to make an offer on one of the lots previously 
listed, James Matthews indicated that these lots were available 
but that he would have to talk with his father and would contact 
them later in the week. James Matthews called the Williamses

2 The lots listed by Mrs. Williams were: Lot 13, Block 62, 
Bunker Hill Drive; Lot 21, Block 63, Cornwallis Drive; Lot 22, 
Block 63, Cornwallis Drive; and Lot 23, Heritage Park.



—  A-21 —

on March 18 and advised them that the company had not sold 
to individuals since 1969; that they should get a builder to pur­
chase for them or they could purchase an existing house; and 
that the Matthewses would give them the name of some approved 
builders. Mrs. Williams testified that James Matthews also stated 
that the Williamses could come to Lakewood “without Johnny 
and suggested that they could even purchase the villa owned by 
James’ mother for $60,000. (The name, “Johnny”, apparently 
refers to the Williamses’ attorney, John W. Walker. The ap­
parent reason for these statements by James Matthews will be­
come clearer as the facts of this case are developed further, 
infra, ) He indicated at the end of the conversation that he would 
contact the Williamses later in the week. The Williamses un­
successfully attempted to contact James Matthews several times 
after the March 18 conversation but did reach him on April 24. 
He again informed them that he could not sell them a lot and 
that he did not know whether, at this point, the plaintiff’s 
builder could buy a lot for them because he had to wait until 
his father, John Matthews, returned in June. James Matthews 
also asked the Williamses if they had a lawyer and received a 
negative response. The Williamses had no further conversations 
with agents of the Matthews Company between April 24, 1970, 
and the date of the filing of this suit on April 29, 1970.

Between the March 18 and April 24 conversations the Wil­
liamses contacted two white builders who declined to purchase 
a lot for them. Their testimony is that one of the builders stated 
he could not build for blacks because he would go out of busi­
ness, and the other builder indicated that if the Williamses pur­
chased the lot themselves he would then build for them. After 
these two contacts with white builders and before the April 24 
conversation with James Matthews, the Williamses contacted Joe 
Anderson, a black builder, who later attempted without success 
to purchase a lot for them in Lakewood.

It is unclear whether Joe Anderson, the builder the Wil­
liamses had secured, visited James Matthews or any of the de­



— A-22 —

fendants before the filing of this lawsuit. James Matthews 
indicated on deposition that Anderson’s “application was re­
jected because the Matthewses did not believe he initiated con­
tact in good faith but, rather, that his purpose was to instigate- 
this litigation. John Matthews testified,, however, that Joe 
Anderson had not been rejected, but also that he did not talk 
to Mr. Anderson after this suit was filed on the advice of counsel. 
He also indicated that Joe Anderson probably would meet the 
standards set for approved builders and that he would be de­
lighted to talk to him “after this lawsuit is settled.” He stated 
that he is the only person who can approve or reject Joe Ander­
son because he (John Matthews) is handling all problems inci­
dent to the integration of Lakewood.

From February 7 through March 13, 1970, John Matthews 
and John Walker, attorney for the plaintiff, engaged in a num­
ber of conversations concerning the integration of Lakewood 
and other matters. John Walker at that time also informed John 
Matthews that it was his opinion that the Matthews Company 
“bill of assurance” was not valid and that, in his view, if an 
individual purchased a lot he could leave the lot vacant or put 
up a $5,000 house even though the house on the adjacent lot 
might be worth $150,000. The Court is convinced that Mr. 
John Matthews reasonably believed that Mr. Walker represented 
the plaintiff and believed that his conversations with Mr. John 
Walker were related to the plaintiff’s overtures and that Mr. 
Walker was using what appeared to be threats to destroy Lake- 
wood as a means to convince Mr. Matthews to use his political 
influence with the city officials of North Little Rock in connec­
tion with an entirely unrelated matter.3 On March 25, 1970,

s The Court is not suggesting that Mr. Walker intended to put any 
improper pressure upon Mr. Matthews. It appears that Mr. Walker 
was attempting to obtain political assistance in furtherance of proj­
ects to aid the black and the poor of North Little Rock. However, 
the juxtaposition of the issues relating to the plaintiff with these 
broader, essentially independent, issues clearly left Mr. Matthews 
with the assumption, even if erroneous, that plaintiff was not sincere



— A-23 —

John Matthews reduced to writing his view of, and reaction to, 
these conversations in the following memorandum:

“John Walker visited our office on February 6, 1970 
accompanied by an older black man. Walker talked with 
Eunice Kumpe and asked to see Mr. Matthews.

“Mrs. Kumpe asked which one, and Walker replied, ‘The 
young Mr. Matthews.’

“Mrs. Kumpe, thinking he was speaking of Charles began 
to refer him to Charles’ place of business. Walker then 
informed Mrs. Kumpe he was interested in purchasing a 
lot in Lakewood and would like to talk with one of the 
Matthews in this real estate office. Mrs. Kumpe then in­
formed Mr. Walker that both John and James Matthews 
were out of the office and asked if one of them could call 
him after they returned.

“Mr. Walker left his card and remarked, ‘Will they call?’

“Mrs. Kumpe assured him they would whereupon Mr. 
Walker said, ‘We mean business, etc.’

“I returned Mr, Walker’s telephone call the following 
day as requested and a series of telephone conversations 
have followed. The last one was on Friday, March 13 
from 5:05 to 6:00 P. M.

“The topic of conversation in each of these telephone 
conversations has included my contention that John Walker 
seems not seriously trying to move a black family into 
Lakewood but rather is apparently attempting to harass or

in seeking to build in Lakewood but was simply being used to bring 
pressure upon him to obtain his assistance on the unrelated matter. 
Even if the defendants unreasonably put such interpretation upon 
said events, they would be entitled to prevail. But here, under all 
of the circumstances revealed in the evidence, that interpretation 
cannot be said to have been unreasonable.



— A-24 —

frighten us with the prospect of Lakewood integration, his 
sole purpose apparently being to get us to use our influence 
with Mayor Laman to stall a proposed apartment project 
near the Glenview Subdivision where John Walker’s clients,- 
Mr. and Mrs. Donnie Williams live.

“Walker admits he is fighting Mayor Laman and would 
appreciate help from any source in keeping this apart­
ment project from lowering property values in the Glen­
view Subdivision. My position has been that where resi­
dents of detached single family homes often think nearby 
apartments will lower their property values, we do not 
agree with this contention. Otherwise, we would not have 
built Lakewood House and would not now be planning 
garden and townhouse apartments in the Lakewood Sub­
division. We do not think the proposed apartment project 
will lower property values in the black Glenview Subdi­
vision. We find it extremely difficult to believe that At­
torney John Walker sincerely wants to move Mr. and Mrs. 
Donnie Williams into Lakewood via the tactics he is using. 
We feel that Walker is a capable lawyer and if he were 
serious about moving a black family into Lakewood he 
would have already done so without harassment of build­
ers, Realtors, and the Matthews Company.

“We further feel that Walker’s effort to force us to sell 
the W'illiams a vacant lot on low terms is not sincere. The 
reason is that Mr. Walker understands perfectly why we 
do not sell vacant lots to individuals or unapproved build­
ers. (A case in point is the largest builder of homes in 
Indian Hills who wished to buy three Lakewood lots last 
year but was refused.)

“When I explain to John Walker in our long conversa­
tions that I find it difficult to believe he seriously wants to 
integrate Lakewood, Walker occasionally asks if I am 
calling him a liar. As we go through this ordeal again and



— A-25 —

again I get the idea that it is Walker who is calling me a 
liar, when I assure him we have no objection to his inte­
grating Lakewood.

“In our last conversation of March 13, which was after 
hours with our files not available, I explained this fact to 
John Walker and also the fact that my eldest son and wife, 
and daughter had just driven in from Mexico and were 
now having a highball in our apartment waiting for me to 
join them. The fact that I had guests waiting was men­
tioned several times but John Walker insisted that I hang 
on the telephone with him. This seemed proof that John 
Walker’s tactics were merely harassment.

“In mentioning that he wanted his clients to buy a Heri­
tage Park lot at a cost of $10,000 or $11,000, Walker 
advised me that he could accomplish the construction of a 
$5000 house on a Heritage Park lot despite the fact that 
other homes in this area are valued at $75,000 or more. I 
agreed that Walker might be clever enough to accomplish 
this and explained to him that his own argument seemed 
all the proof needed to convince anyone why we could not, 
in good conscience, sell any individual or unapproved 
builder a vacant lot.

“On this same night of the 13th, John Walker cailed 
Charles Matthews, apparently to harass Charles by telling 
him that I had called him a liar.

“The next morning, Mr. Kaplin, John Walker’s Jewish 
law partner called me to explain why he did not think my 
suggestion of his buying a finished house then selling it to 
the Donnie Williams was practical because he was known 
as a law partner of John Walker.

“I explained to Mr. Kaplin this was not my suggestion 
but John Walker’s. I reminded Mr. Kaplin that I was not 
a lawyer but that he and Mr. Walker had the reputation of 
most capable attorneys.



—  A-26 —

“Mr. Kaplin then said that Walker had told him I wanted 
to accomplish nothing but merely wanted to take up John 
Walker’s time in talking.

“I told Mr. Kaplin he must have misunderstood Mr. 
John Walker because Walker had closed our last conversa­
tion with the statement that he would come to our office 
for at least two hours as requested in order to give me an 
opportunity to explain to him our problems in producing 
a highly controlled suburban development where harmony 
and real estate values would be maintained for black and 
white residents, how our experience had proven to us that 
we could not safely sell a vacant lot to anyone unless there 
was a definite agreement that an approved builder would 
build a home in the immediate future which would not 
lower the value of its neighborhood because of substandard 
design or construction.

“Mr. Kaplin said that he would talk with John Walker 
and have John Walker call me. I have heard nothing to 
date.

“In the meanwhile, the black couple, Mr. and Mrs. Wil­
liams, had a long visit with James one afternoon in which 
they said John Walker was not their attorney and made 
other statements which they seemed to refute in a subse­
quent telephone conversation. The Williams were to call 
James back again the following day but he has not heard 
from them since.

“If Walker should call me before I leave town on April 
10, I will make an appointment to meet with him at 3:00 
some afternoon several days hence, then I will call Charles 
so that if Walker actually shows up as he failed to do on 
the one appointment we had previously, Charles would be 
a witness when Walker and I discussed the following ques­
tions:



—  A-27 —

“1. 'Who called who a liar?

“2. Kaplin’s statement that Walker said 1 merely 
wanted to talk?

“3. The Donnie Williams’ contention that they seri­
ously wanted to integrate Lakewood, only to appar­
ently refute their previous statements when they 
realized we would do nothing to stop them?

“4, John Walker’s feud with Mayor Laman and his 
admitted desire to get people to use their influence to 
stop Laman from allowing the apartment project to 
be built near the black Glenview Subdivision?

“If John Walker does come in or call after I leave town, 
it would seem proper for James and/or Charles to ask 
Walker to postpone his campaign of harassment, or what­
ever it may be, until my return. The reason is that I have 
asked that calls from John Walker and other black at­
torneys be referred to me so that one official only of our 
company be involved in this particular matter.

“John Walker has assumed the initiative in drawing me 
into this affair without explaining his intention. I still do 
not understand just what it is that Walker wishes to ac­
complish.

“If our company is ever to learn why John Walker will 
not let us work with him to accomplish his goal, it would 
seem better for everyone that Walker talk with the same 
company official each time. June will be here soon and I 
will be back in the office.”

John Matthews left for the Orient shortly thereafter and returned 
in June.4

4 Plaintiff’s attorney vigorously questioned Mr. John Matthews’ 
interpretation of those conversations on cross-examination.



— A-28 —

John Matthews had, prior to the defendants’ first contact with 
the plaintiff, circulated to Eunice Kumpe, H. B. Stubblefield, 
James Matthews and Charles Matthews the following memo­
randum, dated February 13, 1970, discussing generally the 
integration of Lakewood:

“As discussed, the longer we develop residential com­
munities, the more we realize, that more effort on the part 
of the developer and tighter controls on development seem 
the only way to achieve pleasant places to live where prop­
erty values will continue to increase over the years.

“Cost and square footage restrictions are virtually use­
less, Plan approval seems the best route but if builders or 
owners do not want to improve neighborhoods, then plan 
approval accomplishes little. Thus, we have returned to 
the regulation that lots will be sold only to approved build­
ers or to individuals who agree to immediate construction 
by approved builders.

“All the above has already been discussed with you and 
all officials of our Company in great detail.

“As to the integration of Lakewood, our Company real­
izes that integration is the law of the land and our Board 
of Directors feels that integration is morally right. Thus, 
we realize that integration of Lakewood is inevitable and 
we welcome black residents, the sooner the better.

“On the other hand, we realize that all-white commu­
nities, like Lakewood, are extremely sensitive and that 
great care is necessary if integration is to be accomplished 
smoothly and without unpleasant incident.

“We also realize that some black people are becoming 
more militant in their frustration and may wish to cause 
all the excitement, publicity, harassment, etc. possible, 
which we feel would be such poor poficy for the Negroes



—  A-29 —

and so disruptive to the welfare of this or any other sub­
division that, we feel we have a most serious obligation to 
the community of Lakewood to make every effort to ac­
complish integration quietly without hurting anyone, black 
or white, and without lowering Lakewood property values.

“To accomplish this, our Board of Directors has re­
quested me to make a personal case of the first black 
families who move to Lakewood. Our hope is that these 
black families can quietly move into an existing home with 
the least possible fanfare or publicity.

“Whenever any black family asks you about purchasing 
a home or vacant lot, your referring them to me will be 
appreciated.”

The Court finds that Mr. and Mrs. Williams did in good faith 
attempt to purchase a lot in Lakewood with the intention of 
building a home valued between $30,000 and $40,000. The 
crucial question for the Court, however, is whether the refusal 
by defendants to sell a lot directly to the Williamses was moti­
vated in any part by racial considerations.

The background statistical case for plaintiff is obviously very 
strong, but here we are dealing with a particular series of trans­
actions between plaintiff and his wife and the defendants, and 
unless defendants’ conduct in this instance was at least partially 
occasioned by racial considerations, plaintiff cannot prevail. The 
Court is troubled by the fact that defendants did not earlier, 
much earlier, communicate their change of policy and attitude 
toward the integration of their subdivisions to the public. And 
yet the Court is fully convinced that John Matthews did, as he 
testified, have a sincere and honest change of attitude, like so 
many other Southern white businessmen in the early 1960s, and 
has been honestly convinced since that time that integration is 
not only legally required but morally right. And this change



—  A-30 —

in attitude became at that time the new business policy of the 
defendants.

The Court is concerned that John Matthews decided to make 
the integration of Lakewood, as indicated by the February 13, 
1970 memorandum, a “personal” matter, by, hopefully, direct­
ing the first black families into existing homes. This arrange­
ment has implications of special handling that ordinarily would 
be unacceptable. If this effort to “direct” black families into 
existing facilities resulted even indirectly in the refusal to sell 
vacant lots to blacks, then certainly defendants would be deny­
ing blacks access to Lakewood on an equal basis with whites. 
But such was not the ease. Another obvious point; if John 
Matthews, and the evidence seems to so suggest, does not in 
fact have the time to keep in fairly constant contact with the 
day-to-day business of the firm, his attempt to “personally 
handle the integration of Lakewood could obviously work to 
delay integration. However, the Court finds that this personal 
handling” procedure was not intended, or used, as a device to 
delay integration. In fact the defendants at the time they were 
first contacted by the plaintiff wanted to get the integration of 
Lakewood started as soon as possible.

Were it not for the conflict between John Matthews and plain­
tiff’s attorney, John Walker, the Court would have more diffi­
culty with the case. On the other hand, "were it not for this con­
flict, and the misunderstandings engendered, the parties would 
most probably have come to a satisfactory understanding.

The Court is convinced that defendants had a reasonable 
fear of a challenge to their company’s bill of assurance and to 
the legitimate plans for the orderly development of the sub­
division because of the conversations between John Matthews 
and John Walker, and is further convinced that the defendants 
would have just as readily, and in the same manner, responded 
to such a challenge by any white person. That fear— perhaps



—  A-31 —

founded on erroneous assumptions in this instance— was never­
theless real and reasonable and rendered plaintiff “colorless” 
in the eyes of the defendant.

The Court finds and concludes that plaintiff was not denied 
the right to purchase real property because of his race. Further­
more, it is not clear that the plaintiff was ever actually denied 
the right to purchase for any reason/’ He was in fact offered 
the opportunity to purchase on terms available to all persons. 
The procedure of selling to builders only was not adopted be­
cause of racial considerations and was not used, or intended to 
be used, as a ruse by which to exclude blacks. There is no evi­
dence of any conspiracy or any collusion between the defend­
ants and their approved builders aimed at excluding, or dis­
criminating against, blacks.

The plaintiff’s individual claim will therefore be dismissed.

The Court must also dismiss the class action allegations in 
this suit. Plaintiff urges the Court to accept a presumption taken 
from the employment area, Griggs v. Duke Power Co., 401 
U.S. 424 (1970), “. . . that where a practice [there testing, here 
the use of sales to builders only] has the natural tendency to 
disproportionately disqualify blacks, otherwise qualified, for 
housing— the practice must fall unless there is a strong, proven, 
demonstrative, business reason for its retention.” The Court is 
impressed with this argument and its application to the class 
action aspects of this case. However, plaintiff has not shown 
that any member of the alleged class except the individual plain­
tiff has attempted to purchase property in Lakewood or other 
subdivisions developed by the Matthews Company. Without

6 If for no other reason the case probably should have been dis­
missed as premature since there was never a refusal to deal with the 
plaintiff; rather alternatives were broached in good faith, and the de­
lays, under the circumstances, were reasonable and could not be con­
sidered tantamount to a denial or a refusal to deal with the plaintiff.



— A-32 —

such a showing this action cannot proceed as a class action. 
See, Newbern v. Lake Lorelei, Inc., 308 F. Supp. 407 (S.D. 
Ohio, 1968); Crim v. Glover, 338 F. Supp. 823 (S.D, Ohio,
1972). Furthermore, the defendants have here demonstrated that 
their practice of selling to builders has a demonstrated business 
reason for its retention, so the Griggs rationale simply does not 
apply.

It is ordered that the individual and class action claims of 
plaintiff be, and they are hereby, dismissed.

Dated this 20th day of September, 1973.

GARNETT THOMAS EISELE 
United States District Judge



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