Warth v. Selden Brief Amicus Curiae

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974

No. 73-2024

Robert  Warth , et aL,

Petitioners,

IRA SELDIN, etaL,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW

J. Ha r o l d  Flannery  

Paul  R. D imond 
William E. Caldwell 

Lawyers’ Committee for 
Civil Rights Under Law 

733 - 15th Street, N.W. 
Suite 520
Washington, D.C. 20005 
Attorneys for 
Lawyers’ Committee for 

Civil Rights Under Law

Wahinston, D.C. • THIEL PRESS • (2021 838-4521



/

(i)

TABLE OF CONTENTS

i n t e r e s t  o f  a m i c u s  c u r i a e ........................................................1

STATEMENT OF THE C A S E ................................................................ 3

SUMMARY OF A R G U M E N T ................................................................ 8

ARGUMENT

I. The Non-White and Organizational Petitioners 
have S tated a “ Case or Controversy” under 
Article III; They Therefore have Standing 
Under Title VIII of the Civil Rights Act of
1968 ..........................................................................................  10

A. A “ Case or Controversy” is P r e s e n t .....................10

B. Petitioners’ Allegations State Claims Under
Title VIII of the Civil Rights Act o f  1968;
the Standing Questions Should Therefore
be Decided Under Title V I I I ......................................13

C. Petitioners Have Standing Under Title VIII 
and Trafficante, Which Also Entitles Them 
to Litigate Their Other Federal C la im s ..................14

II. The Post-Civil War Civil Rights Legislation is 
Designed, at a Minimum, to  Eradicate,
Through the Federal Courts, State-Supported
Racial Discrimination Wherever and However
It May Occur; Standing to Sue Under These
Statutes Must be Liberally Conferred Within
The Confines of Article III; Petitioners have
Standing to  Sue Under These S t a t u t e s ........................18

A. 42 U.S.C. §§1981 ,  1982 and 1983, and
28 U.S.C. § §1331 and 1343. Are Broad 
and Inclusive As to Petitioners’ Racial 
Discrimination Claims.................................................... 18

B. Standing of Affected Persons and Organi­
zations to Present S ta tu tory  and Constitu­
tional Claims of Racial Discrimination
Should be Liberally C onfe rred ................................... 23

1. Non-White Petitioners...............................................25



Page
2. Organizational P e t i t io n e rs ......................................28

III. Taxpayer-Standing Issues Need N ot be Decided . . .  30

C O N C L U S IO N ........................................................................................31

TABLE OF CITATIONS
Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 . ( 1 9 7 0 ) .................  20

Aetna Life Insurance Co. v. Haworth, 300 U.S. 229
( 1 9 3 7 ) ...............................................I ' .................................................13

Allee v. Medrano, 94 S. Ct. 2191 (1 9 7 4 ) ................................ 12, 28
Association of  Data Processing Service Organizations,

Inc. v. Camp, 397 U.S. 150 (1970) ................................ 9, 23, 24

Baker .v. Carr, 369 U.S. 186 ( 1 9 6 0 ) ............................................  26

Baker v. F. & F. Investment Corp., 420 F.2d 1191
(7th Cir. 1 9 7 0 ) .................................................................................. 16

Barlow v. Collins, 397 U.S. 159 (1970) .............................  10, 24

Barrows v. Jackson, 346 U.S. 249 ( 1 9 5 3 ) ............... 3, 12, 24, 25

Bell v. H ood, 327 U.S. 678 (1 9 4 6 ) .....................................................7

Blue v. Craig,__ F .2 d ___(4th Cir. Oct. 18, 1 9 7 4 ) ......................  20

Bowers v. Campbell,__ F.2d___ (9th Cir. October
24, 1 9 7 4 ) ............................................................................................. 14

Brown v. Board of Education, 347 U.S. 483 ( 1 9 5 4 ) ............... 11

Buchanan v. Warley, 245 U.S. 60 (1 9 1 7 ) ................................ 19, 24

California Bankers Ass’n v. Shultz, 416 U.S. 21
( 1 9 7 4 ) .................    30

Conley v. Gibson, 335 U.S. 41 ( 1 9 5 7 ) ................................................... 8

Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir.
1970)............................................................................................. : . . 26,

District of Columbia v. Carter, 409' U.S. 418
( 1 9 7 3 ) ................................... ........................................  19, 20, 21, 27

Doe v. Bolton, 410 U.S. 179 (1 9 7 3 ) ............................................... 30

(ii)

Cases, continued:  — —
. Eisenstadt v. Baird, 405 U.S. 438 ( 1 9 7 2 ) ...................................  12

Flast v. Cohen, 392 U.S. 83 ( 1 9 6 8 ) ............................................... 12

Gomillion v. I.ightfoot, 364 U.S. 339 ( I 9 6 0 ) .............................  25

Griffin v. Breckenridge, 403 U.S. 88 (1971).............................  20

Hackett v, McGuire Brothers, Inc., 445 F.2d 442
(3d Cir. 1971)............................................................................... . 14

Hagans v. Lavine, 415 U.S. 528 ( 1 9 7 4 ) .............................  18

Harmon v. Tyler, 273 U.S. 668 ( 1 9 2 7 ) .........................................  25

Hurd v. Hodge, 334 U.S. 24 ( 1 9 4 8 ) ......................................  . . 24

Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1969) .........................................................................  18, 19, 24, 25

Kennedy Park Homes Ass’n v. City of Lackawanna,
318 F. Supp. 669 (W.D.N.Y.), aff’d 436 F.2d 108
(2d Cir. 1970), cert, denied, 401 U.S. 1010 (1971).................13

Linda R. S. v. Richard D., 410 U.S. 614 (1 9 7 3 ) .....................  23

Lynch v. Household Finance Corp., 405 U.S. 614
( 1 9 7 2 ) ................................................................ .................... 19, 20, 22

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312
U.S. 270 ( 1 9 4 1 ) ..............................................................................  13

Mitchum v. Foster, 407 U.S. 225 (1 9 7 2 ) ................................20, 21

NAACP v. Alabama, 357 U.S. 449 ( 1 9 5 8 ) ..................... 10, 28, 29

NAACP v. Button, 371 U.S. 415 ( 1 9 6 3 ) ........................ . . 10, 28

O ’Shea v. Littleton, 414 U.S. 488 ( 1 9 7 4 ) ............ 10, 11, 23, 26

Palmer v. Thompson, 403 U.S. 217 ( 1 9 7 1 ) ................................ 22

Parkview Heights Corp. v. City of  Blackjack, 467
F.2d 1208 (8th Cir. 1 9 7 2 ) ..................................................... 13, 26

Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970) . . . . . . .  2, 15

Shelley v. Kraemer, 334 U.S. 1 ( 1 9 4 8 ) ..........................  . .19, 24

Sierra Club v. Morton, 405 U.S. 727 (1972) . . . .  9, 17, 24, 28

Steffel v. Thompson, 415 U.S. 452 (19 7 4 ) .................  12, 20, 21

Sullivan v. Little Hunting Park, 369 U.S. 229 (1969). . . . 24, 25

Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 
(1974) 12



(iv)

Cases, continued:  Page
Tillman v. Wheaton-Haven Recreation Ass’n Inc., 410

U.S. 431 (1973) ................................................................  18, 19, 24

Trafficante v. Metropolitan Life Ins. Co., 409 U.S.
205 ( 1 9 7 2 ) ....................................................................................... 8, 14

United Farmworkers v. City o f  Delray Beach, 493
F.2d 799 (5th Cir. 1974) . ..............................................................8

United States v. City of Parma, P.H.E.O.H. Rptr.
11 13,616 (N.D. Ohio, Sept. 5, 1973) ................................  13, 16

United States v. Price, 383 U.S. 787 (1966)................................... 3

United States v. SCRAP, 412 U.S. 669
( 1 9 7 3 ) ......................................................................... 4, 9, 17, 24, 28

Village of .Belle Terre v. Borass, 416 U.S. 1 ( 1 9 7 4 ) .................. 12

Williams v. Matthews Co., 499 F.2d 819 (8th Cir.),
cert, denied, 43 U.S.LAV. 3295 and 3296 (1974) . . . .26 , 30

Willingham v. Morgan, 395 U.S. 402 (1969).......................  3-4, 14

Zwickler v. Koota, 389 U.S. 241 ( 1 9 6 7 ) ..........................  2, 20, 21

Constitution and Statutes:

United States Constitution:

Article III .................................................................................. passim
First A m e n d m e n t .........................................................................3, 28
Ninth A m endm ent .........................................................................  3
Thirteen th  A m e n d m e n t ....................... passim
Fourteenth A m e n d m e n t .......................................................  passim

United States Code:

5 U.S.C. 702. . 
28 U.S.C. 1331 
28 U.S.C. 1343 
28 U.S.C. 1653 
28 U.S.C. 2201 
42 U.S.C. 1981 
42 U.S.C. 1982 
42 U.S.C. 1983 
42 U.S.C. 3601 
42 U.S.C. 3602

................................ 24

. . 3, 9, 20, 21, 22

. . 3, 9, 20, 21, 22

................................ 14

....................................  3
3, 9, 18, 19, 20, 22
3, 9, 18, 19, 20, 22 *
3, 9, 20, 21, 22,-23
................................. 17
............................. 16

Constitution and Statutes, continued:  Pag1'
28 U.S.C. 3604 ..................................................................................  13
28 U.S.C. 3 6 1 0 ................................................. ..  I 4 \ \
28 U.S.C. 3 6 1 2 ............................................................................ ' i 4> 16
28 U.S.C. 3 6 1 5 ................................................................ ... 13
42 U.S.C. 3 6 1 7 ................................................................ ’ ’ ’ ’ ’ ’ 17

Federal Rules of Civil Procedure

Rule 5 4 ( c ) ........................................................................................... 26
Rule 5 7 ..........................................................................................  26

Other Authorities:
M oore’s Federal Practice (2d e d . ) .............................................. 14

M



t

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1974

No. 73-2024

Robert YVartii, ct ai.,
Petitioners,

v.

Ira Seldin, et al„

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE  OF THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW

INTEREST OF AMICUS C U RIAE*

The Lawyers’ Com m ittee for Civil Rights Under Law 
was organized on June  21, 1963 following a conference 
of lawyers called at the White House by President Jo h n  F. 
Kennedy. The C om m ittee’s mission was to help transfer 
the process of decision on m inority  Americans’ claim 
for equal justice from violent repression in the streets

♦Both the petitioners and the respondents have consented to 
the filing of this brief. Copies of their letters have been filed with 
the Clerk.

1



2

to civil hearing on the merits in federal courts. The 
Lawyers’ Com m ittee remains a nonprofit private cor­
poration whose principal purpose is to involve private 
lawyers throughout the country in the struggle to assure 
all citizens of their civil rights through legal process. 
The Board of Trustees of the Comm ittee includes eleven 
past presidents of the American Bar Association, three 
former A ttorneys General, and two former Solicitors 
General.

The Lawyers’ Comm ittee and its local committees, 
affiliates, and volunteer lawyers have been actively en­
gaged in providing legal representation to those seeking 
relief under federal civil rights legislation and the Recon­
struction A m endm ents to the Constitution. Such litiga­
tion includes cases raising housing discrimination issues 
similar to those presented in the complaint in this case. 
See, e.g., Shannon v. HUD , 436 F.2d 809 (3rd Cir. 1970). 
Our interest in this case, however, involves the most 
basic concern of the Lawyers’ Comm ittee: the right of 
minority Americans to have their claims for civil rights 
under federal law adjudicated on the merits in federal 
court. With this Supreme Court, we “ ‘. . . believe that 
wherever the Federal courts sit, human rights under the 
Federal Constitution are always a proper subject for 
adjudication. . . .’ ”

The instant case presents, inter alia, a challenge under 
the Fourteenth  A m endm ent and the post-Civil War civil 
rights acts to discriminatory government action based 
on race: the alleged exclusion of minority-race citizens 
from residence in a com m unity  by the discriminatory 
action of respondent public officials. The court of ap­
peals has held, however, that those who are the objects

1 Zuiickler v. Koota, 389 U.S. 241, 248 (1967).

3

of such alleged government discrimination, as well as 
their representatives who are secondarily affected, do not 
have “ standing” in the federal courts to present the 
challenge. That ruling, in our judgm ent, constitutes an 
unwarranted expansion of this C o u r t’s “rule of self- 
restrain t” 2 which is inimical to the congressional pur­
poses and national policy underlying most, if not all, 
of the substantive and jurisdictional civil rights legisla­
tion. Because amicus believes that the federal courts 
“ are not at liberty to seek ingenious analytical instru­
m ents” 3 for evading congressionally-mandated civil rights 
jurisdiction, we have a vital interest in this case which 
is broader than that of the immediate litigants. The 
Lawyers’ Committee therefore files this brief as friend 
of the Court urging reversal.4

STATEMENT OF THE CASE

Petitioners invoked the jurisdiction of the district 
court under 28 U.S.C. § § 1 3 3 1  and 1343 seeking de­
claratory (28 U.S.C. §2201) and injunctive relief, and 
money damages, for alleged violations of 42 U.S.C. 
§ §  1981, 1982 and 1983, and the First, N inth  and 
Fourteenth  A mendm ents to the Constitution. Reading 
petitioners’ complaints with the liberality required by 
federal practice, and as elaborated by the affidavits filed 
in opposition to respondents’ m otion to dismiss,5 peti-

2Barrows v. Jackson , 346 U.S. 249, 255 (1953).

3United States v. Price, 383 U.S. 787, 801 (1966).
4 We do not, however, take a position on petitioners’ claim of 

standing as taxpayers, as we conclude (part III, infra) that the 
Court need not and should not reach that issue.

5It is, of course, appropriate for this Court to look, as did the 
court of appeals, to the affidavits filed in opposition to respon­
dents’ motion to dismiss. Cf. Willingham v. Morgan, 395 U.S.

[ fo o tn o te  con tinued)



4

tioners charge respondents w ith adopting and m anipu­
lating the residential zoning laws of the town o f  Penfield, 
Monroe C ounty , New York, for the successful purpose 
of excluding racial minorities and the poor from residing 
in the town. The courts below held that none of the 
petitioners have standing to sue .* 7 The status of peti­
tioners is therefore at the heart of this controversy in 
its present posture. We divide petitioners into three cate­
gories.

1. Non-White Petitioners. Petitioners Ortiz, Broad­
nax, Reyes and Sinkler (hereafter “ non-white petitioners” ) 
are non-white persons8 residing in or around the city 
of Rochester, New York who desire to reside in the 
adjacent Town of Penfield through the purchase or rental 
of real property. Three of these petitioners live in ghetto 
conditions in the central city area of Rochester in de­
plorable housing and an otherwise unsuitable environ­
ment. Each petitioner has attem pted , bu t has been un­
able, to secure affordable housing in the town of Pen- 
field. (A. 362-77, 404-21, 422-29, 435-53). In addition, 
in the recent past petitioner Ortiz worked in the town 
of Penfield but, because of his inability to find housing, 
was forced to live over 40 miles from his job  and incur

402, 407 n.3 (1969). Respondents did not move for summary 
judgm ent, nor have they otherwise challenged the complaint and 
affidavit allegations in support of standing. Cf. United States v. 
SCRAP, 412 U.S. 669, 689-90n .l5  (1973).

° Respondents are the Town of Penfield and the respective 
members of its Town Board, Planning Board and Zoning Board.

7The district cou r t’s order of dismissal is unreported  and 
appears at pages 1-4 of Appendix B to the petition  for certiorari t 
(hereafter, “ Pet. A pp.” ). The Second Circuit’s opinion is reported 
at 495 F.2d 1187, and appears in Pet. App. A at 1-16.

XTwo of these petitioners are Negroes, one is Puerto Rican 
and one is of Spanish/Puerto Rican extraction.

5

substantial com m uting expenses. (A. 366-71). The n on ­
white petitioners allege that they are unable to reside in 
Penfield because of that tow n’s zoning policies and prac­
tices which have the exclusion of non-whites and the poor 
as their purpose and effect. (A. 17-29, 362-64, 404-06, 
422-24, 435-37.

2. Organizational Petitioners. Petitioner Metro-Act 
of Rochester, Inc. (hereafter “M etro-Act” ) is a New 
York nonprofit corporation having its principal office 
in Rochester. Metro-Act was founded in 1965 following 
Rochester’s 1964 “ race riots,” the product of longstand­
ing policies and practices of racial discrimination against 
blacks and o ther minorities in such areas of daily life 
as housing, education, em ploym ent and com m unity  ser­
vices. (A. 181-82). Metro-Act has approximately 350 
members (9% of whom live in Penfield) whose organiza­
tional purposes include seeking open (non-discriminatory) 
housing in suburban areas of Rochester. (A. 183-85). Peti­
tioner has advocated zoning changes to eliminate racial 
and economic barriers and has conducted  formal studies 
of housing needs in the Rochester metropolitan area; it 
has made low- and moderate-income housing proposals 
to various suburban towns, including Penfield; and, in 
particular, prior to the institution of this lawsuit Metro- 
A ct’s housing task force and other of its officers met 
with Penfield’s town leaders on several occasions, cul­
minating in an open housing proposal ' Metro-Act 
which died of frustration. (A. 185-95).

Petitioner Rochester Home Builders As^ vciation, Inc. 
(applicant for intervention in the district court) (here­
after “ Home Builders” ) is a New York nonprofit cor­
poration whose organizational purposes, among others, 
are to act as a nonprofit trade association representing 
persons and companies engaged in the construction and 
development (and ancillary activities) of residential hous-



6

ing in the Monroe County  area, to foster and prom ote 
the housing industry, to prom ote civic development and 
secure even and just taxation, and to p rom ote  and en­
courage the provision of adequate housing for all m em ­
bers of the com m unity. (A. 139-43). Its principal office is 
in Rochester; 110 of its members are engaged in the con­
struction of housing (sale and/or rental); 10% of its 
members have constructed housing in Penfield; and, ex­
cept for government-constructed units, its members are 
responsible for over 80% of the single-family homes and 
90% of the multi-family units constructed in Monroe 
County  in the last 15 years. Petitioner’s members have 
also constructed over 80% of the private housing built 
during the last 15 years in Penfield. (A. 145-47). The a t­
tempts of pe titioner’s members and others to construct 
low- and moderate-income housing in Penfield have been 
frustrated by respondents’ actions, thereby depriving 
pe titioner’s members of substantial business opportunities 
and profits. (A. 154-57). Moreover, respondents have 
threatened to retaliate against Home Builders and its 
members for becoming involved in this litigation. (A. 158- 
59).

Petitioner Housing Council in the Monroe County 
Area, Inc. (added plaintiff in the district court) (here­
after “ Housing Council” ) is a nonprofit corporation hav­
ing its principal office in Rochester. It was organized 
in response to a 1970 study of housing conditions in 
Monroe County  prepared by the Rochester Center for 
Governmental and C om m unity  Research for the Metro­
politan Housing Com m ittee (sponsored jo in tly  by the gov­
ernments of Rochester and Monroe County). (A. 170-71). i 
Petitioner’s purposes, generally, are to provide assistance 
and leadership in combating com m unity  deterioration 
and eliminating racial and economic discrimination and 
prejudice in housing. Housing Council’s membership con­

7

sists of 71 public and private organizations having in ter­
ests in housing; 17 of them are or hope to be involved 
in the development and construction of low- and middle- 
income housing; 1 member, Penfield Better Homes Corp., 
is and has been actively attem pting to develop housing 
in Penfield to meet the demands of low-income persons, 
but has been “ s tym ied” in such efforts by respondents. 
(A. 171-74). Some of Housing Council’s members are local 
government agencies with direct interests in the provi­
sion of low- and middle-income housing; a majority of 
its member groups have memberships composed primarily 
of minority and poor people. (A. 174-75).

3. Taxpayer ̂ Petitioners. Petitioners Warth, Reichert,
Vinkey and Harris are resident-citizen property  owners 
of Rochester who, as a result of respondents’ discrimina­
tory policies and practices, have to pay a disproportionate 
share of real estate taxes to the city of Rochester be­
cause Rochester has to assume more than its fair share 
of tax-abated housing projects to meet the demands of 
low- and moderate-income people in the metropolitan 
area. (A. 3-6, 456-86).

The district court, on respondents’ m otion to dismiss 
or for a more definite statem ent and for an order deny­
ing class action status to the suit, held that (1) all peti­
tioners are w ithout standing to sue, (2) petitioners have 
stated no claims upon which relief can be granted, and 
(3) the suit should not be treated as a class action. 
The court of appeals affirmed on the exclusive ground 
that petitioners lack standing.9

9 Although the district court dismissed the complaint for fail­
ure to state a claim, which constitutes a determination on the 
merits (see Bell v. Hood, 327 U.S. 678, 682 (1946)), the court

[ fo o tn o te  con tinued]



8

SUMMARY OF ARGUMENT

First, this action presents a clear “case or con tro ­
versy” under Article III of the Constitution. Although 
not specifically referred to in their pleadings for either 
jurisdictional or cause-of-action purposes, petitioners’ 
allegations state claims over which the district court has 
jurisdiction under § 8 1 2  of Title VIII of the Civil Rights 
Act of 1968, 42 U.S.C. §3612 . The court of appeals 
erred, therefore, in not deciding the standing questions 
according to- the principles announced in Trafficante v. 
Metropolitan Life Ins. Co., 409 U.S. 205 (1972), under 
which standing is confined only by Article III case-or- 
controversy requisites. The non-white and organizational 
petitioners thus have standing under Title VIII, which 
a lso . entitles them to litigate their other federal claims.

Second, by the post-Civil War civil rights legislation 
Congress also intended to define standing as broadly as is 
constitutionally permissible, particularly for challenges to

of appeals passed only on the standing issues, quite properly 
recognizing that “ [i] t would not be necessary to decide whether 
appellants’ allegations . . . will, ultimately, entitle them to any 
relief, in order to hold that they have [or lack] standing to seek 
it.” Baker v. Carr, 369 U.S. 186, 208 (1962). See also Flast v. 
Cohen, 392 U.S. 83, 99-100 (1968). Our view of the standing 
questions thus requires a remand to the court of appeals for fur­
ther proceedings. It does not seem inappropriate, however, to 
note that, upon any fair reading of the complaints and affidavits 
of record, it cannot now be said tha t “ it appears beyond doubt 
that the plaintiff can prove no set of facts in support of his claim 
which would entitle him to relief.” Conley v. Gibson, 335 U.S. 
41, 45-46 (1957). While all of petitioners’ claims are substantial 
and entitled to determination on their merits, it is the racial dis­
crimination claims “ to which we direct our most careful a t tenT 
tion. For while the law with regard to classifications based on 
wealth may still be in a state o f  flux, it cannot now be doubted 
that under our Constitution, distinctions in treatm ent based on 
race are inherently suspect.” United Farmworkers v. City o f  Delray 
Beach, 493 F.2d 799, 808 (5th Cir. 1974).

9

government-sponsored discrimination. 42 U.S.C. § § 1981, 
1982 and 1983, as well as the civil rights jurisdictional 
grants, 28 U.S.C. § § 1331 and 1343, which are designed 
to keep the promises of the Thirteenth  and Fourteenth  
Amendm ents, thus mandate broad standing rules. This 
Court has recognized as much in a long line of land use 
discrimination cases finding third-party standing.

The standing questions in this case must therefore 
be decided in harm ony with the liberal rules enunciated 
in Trafficante and the Administrative Procedure Act 
cases (e.g., Association o f  Data Processing Service Or­
ganizations, Inc. v. Camp, 397 U.S. 150 (1970) and 
United States v. SCRAP, 412 U.S. 669 (1973)); for the 
civil rights statutes involved here deserve no less respect.

Thus, the non-white petitioners, who claim in essence 
that they are excluded from residing in the Town of 
Penfield and are confined to a state-imposed ghetto for 
which respondent state officers and instrumentalities 
bear partial responsibility, have clearly alleged “ injury 
in fact.” And, just as clearly, their claims fall within 
the “ zone of interests” protected by the relevant statutes 
and constitutional provisions. Failure to accord standing 
to these petitioners would result in a degree-of-discrimina- 
tion test for standing which would immunize from jud i­
cial review those modes of discrimination which are 
most successful.

Similarly, the organizational petitioners also have 
standing, although their injury is secondary and accrues 
primarily through their members. While their standing 
should be established by this C ourt’s decisions in 
Sierra Club v. Morton, 405 U.S. 727 (1972) and United 
States v. SCRAP, supra, their standing is m andated, as 
it will frequently be in cases of this nature, by the prin-



10

ciplcs of NAACP v. Button, 371 U.S. 415, 428-29 
(1963) and NAACP v. Alabama, 357 U.S. 449, 458-60 
(1958).

Finally, litigation of the claims of the non-white 
and organizational petitioners will effectively vindicate 
the claims and interests of the taxpayer petitioners.
It is therefore unnecessary to  decide w hether the latter 
have standing, in the context of this case, to sue as tax­
payers.

ARGUMENT

I.
THE NON-WHITE AND ORGANIZATIONAL PETITION­
ERS HAVE STATED A “CASE OR CO NTROVERSY”
UNDER ARTICLE III; THEY THEREFORE HAVE STAND­
ING UNDER TITLE VIII OF THE CIVIL RIGHTS ACT
OF 1968.

A. A “ Case or Controversy” Is Present.

The threshold inquiry, as in all of this C o u r t’s stand­
ing decisions, is w hether the non-white and organizational 
petitioners “ have the personal stake and interest that 
impart the concrete adverseness required by Article III.” 
Barlow v. Collins, 397 U.S. 159, 164 (1970). As to the 
non-white petitioners, the court of appeals, relying on . 
this C o u r t’s decision in O'Shea v. Littleton, 414 U.S. 
488 (1974), found their “ personal connection” with 
the allegations of wrongful conduct on the part of 
respondents “ too abstract, conjectural, and hypothetical 
to establish an Article III case or controversy.” (Pet. 
App. A at 12). That conclusion misunderstands the rec­
ord and misapplies O ’Shea. *

Aside from the obvious distinction that O ’Shea in­
volved requests for injunctive relief against the conduct

11

of judicial officers in criminal proceedings (and the 
additional justiciability and equity-jurisprudence issues 
thereby raised),10 the critical difference is that none of 
the plaintiffs in O ’Shea was “ identified as having h im ­
self suffered any injury in the manner specified.” 414 
U.S. at 495. That is, none of them had been subjected 
to the alleged discriminatory bond-setting, sentencing 
and jury-paym ent practices. In the instant case, by con­
trast, it is charged that respondents have excluded hous­
ing for low-income people from Penfield for the purposes 
of racial and economic discrimination. The non-white 
petitioners, who are also poor, allege that they have 
sought but been unable to find housing within their 
means in Penfield because o f  respondents’ discrimina­
tory policies and practices. The result, they allege, is 
confinement to a ghetto environment w'ithout access 
to decent jobs, decent housing, adequate education for 
their children and recreational facilities. They allege 
more than the mere stigma of racial discrimination, 
although we should think that that would be enough. 
Cf. Brown v. Board o f  Education, 347 U.S. 483, 494 
(1954). Manifestly, these petitioners allege that they 
themselves have “ suffered . . . injury in the manner spe­
cified.”

The court of appeals, while frequently fusing case-or- 
controversy and standing considerations, did not ex­
pressly hold that the organizational petitioners had failed 
to meet Article III requirements. We think it clear, in 
any event, tha t these petitioners have stated a “ case or

10 The Court noted that its “ reluctance to interfere with the 
normal operation of state administration of its criminal laws in 
the manner sought by respondents strenghtens the conclusion that 
the allegations in this complaint are too insubstantial to warrant 
federal adjudication of the merits of respondents’ claim.” 414 
U.S. at 498-99.



12

controversy .” They allege that respondents’ conduct has 
frustrated their respective organizational purposes; that 
all or some o f  their members have been directly affected 
in the same m anner as the non-white petitioners; and 
tha t some of their members have been secondarily af­
fected by the loss of business opportunities a ttendant 

'u p o n  respondents’ frustration of construction and de­
velopment of lower-income housing. As will be elaborated 
further in later parts of this b r ie f . discussing organiza­
tional standing (see Parts IC and II B 2, infra), these 
petitioners m eet Article III requirements. Cf. Alice v. 
Medrano, 92 S. Ct. 2191, 22 0 2 n .l3  (1974); id. at 2207 
(Burger, C. J . ,  concurring and dissenting).

In sum, for present purposes, the non-white and or­
ganizational petitioners have alleged “ [ t ]h e  im portant 
[Article III] ingredient . . . [of] governmental activity 
directly affecting, and continuing to affect, the behavior 
of citizens in our society.” Super Tire Engineering Co. v. 
McCorkle, 416 U.S. 115, 126 (1974). They have suffi­
cient interest in challenging the s ta tu te ’s validity [as 
well as its application] to satisfy the ‘case or controversy’ 
requirement of Article III of the C onstitu tion .” Eisenstadt 
v. Baird, 405 U.S. 438, 444 (1972). Their claims are 
“presented in an adversary con tex t and in a form his­
torically viewed as capable of judicial resolution.” Flast v: 
Cohen, 392 U.S. 83, 101 (1968).11 See generally, Village 
o f Belle Terre v. Borass, 416 U.S. 1 (1974); Steffe l v. 
Thompson, 415 U.S. 452 (1974); Flast v. Cohen, supra, * *

^ B e c a u se  “ standing” rules are designed to insure the case-or- 
controversy strictures of Article III (Barrows v. Jackson, 346 U.S.
249 (1953)), it necessarily follows that if a petitioner has standing,^ 
he has met Article III requirements. Hence, our discussions of 
standing, as such, which follow will provide additional support 
for the conclusion in tex t  that petitioners’ claims constitute a 
case and controversy.

13

392 U.S. at 94-101; Maryland Casualty Co. v. Pacific 
Coal & Oil Co., 312 U.S. 270, 273 (1941); Aetna Life  
Ins. Co. v. Haworth, 300 U.S. 229, 240-41 (1937).

B. Petitioners’ Allegations State Claims Under 
Title VIII of the Civil Rights Act of 1968; the 
Standing Questions Should Therefore be Decided 
Under Title VIII.

Section 804 of the Civil Rights Act of 1968 makes it 
unlawful, inter alia, “ to refuse to negotiate for the sale 
or rental of, or otherwise make unavailable or deny, 
a dwelling to any person because of race, color . . .  or 
national origin” and “ [ t ]o  discriminate against any 
person in the terms, conditions, or privileges of sale 
or rental of a dwelling, or in the provision of services 
or facilities in connection therewith, because of race, 
color . . .  or national origin.” 42 U.S.C. § § 3604(a) and 
(b) (emphasis added). In addition, §815  provides that

any law of a State, a political subdivision, or other 
such jurisdiction that purports to require or permit 
any action that would be a discriminatory housing 
practice under this subchapter shall to that extent 
be invalid.

42 U.S.C. §3615 . Petitioners’ allegations in the instant 
c a s e - th a t  respondents, for the purpose of excluding n o n ­
whites, have refused to make available lower-income 
housing in the- town of Penfield—thus state colorable 
claims under Title VIII. See, e.g., Parkview Heights 
Corp. v. City o f  Blackjack, 467 F.2d 1208 (8th Cir. 
1972); Kennedy Park Homes A ss’n v. City o f  Lackawanna, 
318 F.Supp. 669 (W.D.N.Y.), a f f ’d, 436 F.2d 108 (2d 
Cir. 1970), cert, denied, 401 U.S. 1010 (1971); United 
States v. City o f  Parma, P.H.E.O.H. Rptr. H 13,616



14

(N.D. Ohio Sept. 5, 1973). The district court has juris­
diction o f  these claims under § 8 1 2 , 42 U.S.C. §3612 .

Although petitioners do no t explicitly refer to Title 
VIII as a basis for jurisdiction, the court of appeals 
should have nevertheless decided the standing issues— 
which, if not technically jurisdictional in nature, have 
clear jurisdictional overtones—under Title VIII and this 
C o u r t’s decision in Trafficante v. Metropolitan Life Ins. 
Co., 409 U.S. 205 (1972). To have done otherwise was 
to adhere .to “ wholly ou tm oded technical pleading
rules. . . .” Bowers v. Campbell, ----- F .2 d --------n.2 (9th
Cir. O ctober 24, 1974) (cause of action stated under 42 
U.S.C. § 1981 although the statu te  was no t cited in the 
pleadings). We therefore urge this Court to treat peti­
tioners’ pleadings and affidavits as making colorable Title 
VIII claims. See Willingham v. Morgan, 395 U.S. 402, 
407n.3 (1969); 28 U.S.C. § 1653 .12

C. Petitioners Have Standing Under Title VIII and 
Trafficante, Which Also Entitles Them  to  Litigate 
Their O ther Federal Claims.
In Trifficante v. Metropolitan Life Ins. Co., supra, 

this Court held that the Title VIII definition of “ person 
aggrieved” (§ 801(a), 42 U.S.C. § 3610(a)) showed a 
congressional in tention to define standing as broadly 
as is perm itted  by Article III of the Constitution. 
409 U.S. at 209 (quoting H ackett v. McGuire Brothers, 
Inc., 445 F.2d 442, 446 (3d Cir. 1971)). The Court re­
jected a lower court holding tha t allowed standing only 
by persons who are the objects of discriminatory housing

12 28 U.S.C. § 1653 provides:- “ Defective allegations of juris­
diction may be amended, upon terms, in the trial or appellate 
courts .’’ See generally, 7B M oore’s Federal Practice § 1653 (2d ed. 
1973); 3 M oore’s Federal Practice 115.08 [2] (2d ed. 1972).

15

practices,” and held that white tenants of a housing com ­
plex have standing to challenge their landlord’s racially 
discriminatory policies and practices. The Court found 
“ injury in fact” from “ the loss of im portant benefits 
from interracial associations.” 409 U.S. at 210. Noting 

/  that “ the language of the Act is broad and inclusive”
(id. at 209), and that Congress’ intent was “ to replace 

^ the ghettos ‘by truely integrated and balanced living
patterns.’ 114 Cong. Rec. 3422” {id. at 211), the Court 
emphasized the role of “ private attorneys general”

in protecting not only those against whom a dis­
crimination is directed but also those whose com ­
plaint is that the manner of managing a housing 
project affects “ the very quality of their daily lives.”

Id. (quoting from Shannon v. HUD, 436 F.2d 809, 818 
(3d Cir. 1970)).

The instant case is much easier, at least as to the 
non-white petitioners, for even under a narrow con­
struction of Title VIII they are among “ those against 
whom a discrimination is directed . . . ” and their “ in­
jury in fact” is even greater and much more concrete 
than “ the loss of im portant benefits from interracial 
associations.” The injury which these petitioners allege 
is, in fact, more ominous than the impairment of “ the 
very quality of their daily lives”—it is, in a very real 
sense, their and their children’s lives which are at s tak e .^

 ̂ The organizational petitioners are also “persons ag­
grieved” who have standing under Title VIII and Traf- 

/  ficante , 13 14 Congress defined “ person” broadly to include

13One of the petitioners, for example, keeps the bedroom light 
on all night to prevent the rats and mice from biting her children. 
(A. 411-12).

^Ju risd ic t ion  in Trafficante, where the federal civil action was 
preceded by a complaint to the Secretary of IIUD under 42 U.S.C.

[ fo o tn o te  c o n tinued]



16

one or more individuals, corporations, partnerships, 
associations, labor organizations, legal represen­
tatives, m utual companies, joint-stock companies, 
trusts, un incorporated organizations, trustees, 
trustees in bankruptcy , receivers, and fiduciaries.

42 U.S.C. § 3602(d). This definition appears to be all- 
inclusive (see United States v. City o f  Parma, P.H.E.O.H. 
Rptr. 1)13,616 (N.D. Ohio Sept. 5, 1973)) and these 
petitioners have alleged injury in fact just as surely as 
those in Trafficante who claimed the loss of associational 
benefits.

It appears to be immaterial w hether petitioner Metro- 
Act, as ^  “ private a ttorney general,” is deemed to have 
standing because its members who live in Penfield are 
“ aggrieved” by the deprivation of “ interracial associa­
tions,” or whether it is “ aggrieved” by the fact tha t some 
of its non-Penfield members who seek housing in Pen- 
field are the objects of respondents’ discriminatory activi­
ties.15 And it would also seem that Congress’ inclusion 
of a broad range of non-individuals in the definition of 
“ person ,” coupled with M etro-Act’s vital interest in open 
housing and the refusal of Penfield to consider a Metro-

§36 10(a), was based on 42 U.S.C. § 3610(d); whereas jurisdiction 
in the instant case is based on 42 U.S.C. §3612, since no adminis­
trative complaint was filed. The allegations here, which are con­
cerned with an ongoing course of discriminatory conduct [cf. 
Baker v. F. & F. Investm ent Corp., 420 F.2d 1191, 1200 (7th 
Cir. 1970)), are clearly timely filed under §3612 . The absence of 
any reference in § 3612(a) to the party  who may sue, merely 
serves to dem onstrate  that the “ person aggrieved” definition of 
§ 3 6 10(a) applies to §3612 cases as well.

15 The court of appeals considered Trafficante  in connection 
with Metro-Act, bu t held it inapplicable. (Pet. App. A. at 13). 
The court also denied representative standing to Metro-Act because 
of its earlier determination that non-white petitioners lack standing.
(Pet. App. A. at 12).

17

Act low-income housing proposal, are sufficient to give 
Metro-Act “ person aggrieved” standing under the broad 
provisions of Title VIII. Cf. Sierra Club v. M orton, 405 
U.S. 727 (1972); United States v. SCRAP, 412 U.S. 
669 (1973). Petitioners Home Builders and Housing 
Council are on even stronger ground, as some of their 
members have suffered actual economic loss.

Most conclusive on the Title VIII standing status of 
all three organizational petitioners, however, is Con­
gress’ explicit intent to encourage all “persons,” including 
corporations, associations, and the like, to become 
private-attorney-general participants in converting the 
statu tory  promises into reality—i.e., “ to provide, within 
constitutional limitations, for fair housing throughout 
the United S tates.” § 8 0 1 , 42 U.S.C. §3601 . The or­
ganizational petitioners are so acting; therefore, by 
s ta tu tory  definition as “ persons” who are pro tec ted  by 
Title VIII, they have standing to sue thereunder.16

In view of petitioners’ standing under Title VIII, the 
need for this Court to determine independently their 
standing to present the o ther federal s ta tu tory  and con-

1 c
Furthermore, as added encouragement to such participation, 

Congress in §817 has made it unlawful “ to coerce, intimidate, 
threaten, or interfere with any person . . .  on account of his 
having aided or encouraged any other person in the exercise or 
enjoyment of, any right guaranteed or p rotected  b y ” Title VIII. 
42 U.S.C. §3617 . .The organizational petitioners, through their 
various efforts to construct housing in Penfield for lower-income 
individuals and to get Penfield to modify its policies, have “ aided 
or encouraged” non-white petitioners and others in the a ttem pted  
exercise of rights secured by Title VIII. In addition, petitioner 
Home Builders alleges tha t Penfield officials have threatened retal­
iatory action against it and its members for becoming involved in 
this litigation. This petitioner has thus stated a basis for juris­
diction directly under §817: “ This section may be enforced by 
appropriate civil action .”



18

stitutional claims is eliminated. All of petitioners’ claims 
arise out of the same factual context and constitu te a 
single case, sec Hagans v. Lavine, 415 U.S. 528 (1974). 
If they have standing to litigate one of their sta tu tory  
claims, judicial econom y and fairness mandate trial of 
the entire case.

Should the Court nevertheless decide to reach the 
question left open in Trafficante (409 U.S. at 209n.8), 
we present the following alternative argument.

II.

THE POST-CIVIL WAR CIVIL RIGHTS LEGISLATION 
IS DESIGNED, AT A MINIMUM, TO ERADICATE, 
THROUGH THE FEDERAL COURTS, STATE-SUPPORTED 
RACIAL DISCRIMINATION WHEREVER AND HOWEVER 
IT MAY OCCUR; STANDING TO SUE UNDER THESE 
STATUTES MUST BE LIBERALLY CONFERRED WITHIN 
THE CONFINES OF ARTICLE III; PETITIONERS HAVE 
STANDING TO SUE UNDER THESE STATUTES.

A. 42 U.S.C. § §  1981, 1982 and 1983, and 
28 U.S.C. § § 1331 and 1343, are Broad and Inclu­
sive as to Petitioners’ Racial Discrimination Claims.

42 U.S.C. § § 1981 and 1982 have their origins in § 1 
of the Civil Rights Act of 1866 (enacted pursuant to 
the Thirteenth  A m endm ent), which “was cast in sweeping- 
term s.” Jones v. A lfred H. Mayer Co., 392 U.S. 409, 
422 (1968). See also Tillman v. Wheaton-Haven Recrea­
tion A ssn , Inc., 410 U.S. 4 3 1 ,4 3 9 n . l l (1 9 7 3 ) .  § § 1 9 8 1  
and 1982 guarantee to all persons and citizens “ the 
same right in every state and territory to ,” among other 
things, “ 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 
p roperty ,” and “ to inherit, purchase, lease, sell, hold

19

and convey real and personal p roperty ,” “as is enjoyed 
by white citizens.” The intended breadth of these statutes 
is revealed by the legislative history of the 1866 Civil 
Rights Act which is catalogued in this C o u r t’s opinion 
in Jones v. A lfred H. Mayer Co., supra, holding that 
“ § 1982 bars all racial discrimination, private as well as 
public, in the sale or rental of housing. . . .” 392 U.S. at 
413. § 1 of the 1866 Civil Rights Act “was meant to 
prohibit all racially motivated deprivations of the rights 
enum erated in the statute. . . .” Id. at 426. And, al­
though “ its language was far broader than would have 
been necessary to strike down discriminatory s tatu tes” 
{Id. at 426-427), § 1982 was also intended to deal with 
“ the existence of laws virtually prohibiting Negroes from 
owning or renting property  in certain towns. . . .” Id. 
at 4 2 8 .17 It was designed to secure “ the right to acquire 
p roperty” {Id. at 4 32 ) ,18 * * and its guarantees are violated 
“when racial discrimination herds men into ghettos and 
makes their ability to buy property  turn on the color 
of their skin. . . .” Id. at 442-43. It promises “ the right 
to live wherever a white man can live” {Id. at 443), and 
its application is universal. District o f  Columbia v. Carter,
409 U.S. 418, 422 (1973). § 1981, having the same 
origins, has a similar sweep. Tillman v. Wheaton-Haven 
Recreation A ss’n, supra, 410 U.S. at 440-41.

*7The Court observed that “ opponents of the bill [1868 Act] 
charged that it would not only regulate state laws but would 
directly ‘determine the persons who [would] enjoy . . . property  
within the States,’ threatening the ability of white citizens ‘to 
determine who [would] be members of [their] communit[ies] . . 
. . ’ ” 392 U.S. at 433.

18 • >Accord, Tillman v. Wheaton-Haven Recreation A ss ’n, supra,
410 U.S. at 537; Lynch v. Household Finance Corp., 405 U.S. 
538, 544 (1972). The Fourteenth Am endment also protects, 
against state action, “ the rights to acquire, enjoy, own and dispose 
of p roperty .” Shelley v. Kraemer, 334 U.S. 1, 10 (1948); Buchanan 
v. Warley, 245 U.S. 60, 74 (1917).



20

Jurisdiction to enforce the provisions of § § 1981 and 
1982 is broadly conferred upon the district courts; they 
are m andated to entertain civil actions “ authorized by 
law to be com menced by any person” suffering depriva­
tions.19

Similarly, 42 U.S.C. § 1983 and its jurisdictional coun­
terpart, 28 U.S.C. § 1343(3), initially passed pursuant 
to the Fourteen th  A m endm ent in the post-Civil War era 
as part of § 1 of the Civil Rights; Act of 1871, while 
limited by the “ state ac t ion” concept,20 is also to be 
accorded a sweep as broad as its language. With particular 
relevance to the instant case, this Court has concluded, . 
in Lynch v. Household Financo Corp., 405 U.S. 538,
543 (19?2);, that

the Congress that enacted the predecessor of § § 1983 
and 1343(3) seems clearly to have intended to 
provide a federal judicial forum for the redress of 
wrongful deprivations of property  by persons acting 
under color of state law.

See generally, S te ffe l v. Thompson, 415 U.S. 452 (1974); 
District o f  Columbia v. Carter, supra; Alitchum v. Fos­
ter, 407 U.S. 225 (1972); Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970); Zwickler v. Koota, 389 U.S. 241
(1967); Blue v. Craig,_____ F . 2 d _____ (4th Cir. 1974).
Cf. Griffin v. Breckenridge, 403 U.S. 88 (1971).

1928 U.S.C. §1343 and subsections (3) and (4), 28 U.S.C.
§ 1331(a) also confers jurisdiction for claims under § § 1981 and 
1982, a l though 'a  jurisdictional am ount (§10,000) must be pleaded, 
as it is in the instant case.

20
And even this limitation recognizes that “ settled practices 

of state officials may, by imposing sanctions or withholding bene­
fits, transform private predilections into compulsory rules of  beha-* 
vior no less than legislative pronouncem ents .” Adickes v. S.H. * 
Kress & Co., 398 U.S. 144, 168 (1970).

21

42 U.S.C. § 1983 authorizes “ the party injured” to 
institute “ an action at law, suit in equity, or o ther proper 
proceeding for redress” against “ [e jvery  person who 
under color of [state law, custom or usage] . . . subjects, 
or causes to be subjected, any citizen of the United 
States or o ther person within the jurisdiction thereof to 
the deprivation of any rights, privileges, or immunities 
secured by the Constitution and laws. . .” The section
authorizes actions against state officers to secure the 
Fourteenth  A m endm ent right to acquire and enjoy 
property free of discrimination (see n.18, supra). § 1983 
and its jurisdictional twin, 28 U.S.C. § 1343(3), were 
the p roduct of “ [a] pervasive sense of nationalism” 21 
and were part of the post-Civil War “congressional in­
vestiture of the .federal judiciary with enormously in­
creased powers.” 22

This vast broadening of federal court jurisdiction came 
to a head with passage of the Act of March 3, 1875 (now 
28 U.S.C. § 1331),23 whereby

Congress conferred upon the lower federal courts,
for but the second time in their nearly century-old
history, general federal-question jurisdiction subject

21 Steffe l v. Thompson, supra, 415 U.S. at 463.

22Zwickler v. Koota, supra, 389 U.S. at 246. See also Dis­
trict o f  Columbia v. Carter, supra, 409 U.S. at 427. § § 1983 and 
1343(3) were “ m odeled” after § 2 of the Civil Rights Act of 1866. 
M itchum v. Foster, supra, 407 U.S. at 238; Lynch  v. Household  
Finance Corp., supra, 405 U.S. at 545n.9.

23 28 U.S.C. § 1331(a) gives the district courts jurisdiction of 
“all civil actions” arising “ under the Constitution, laws, or treaties 
of the United States,” where the value of the controversy, exclusive 
of interest or costs, is greater than $10,000. Petitioners’ racial 
discrimination claims in the instant case “ arise under” the Four­
teenth Amendment, and they have alleged the requisite jurisdic­
tional amount.



22

only to a jurisdictional-amount requirement, see 
28 U.S.C. §1331 . With this latter enactm ent, the 
lower federal courts “ ceased to be restricted tr ibu­
nals of fair dealing between citizens of different 
states and became the primary and powerful reliances 
for vindicating every right given by the C onstitu­
tion, the laws, and treaties of the United S tates.” 
Frankfurter & Landis, The Business of the Sup reme 
Court 65 (1928) (emphasis added).

S ta ff el v. Thompson, supra, 415 U.S. at 464. See also 
Zwickler i>. Koota, supra, 389 U.S. at 246-47. The Court 
has noted  “ that a broad grant of jurisdiction was in­
tended” {id. at n.8), and that the statute “ has been 
regarded as the ‘culmination of a movement . . .  to 
strengthen the Federal Government against the states.’ ” 
Lynch v. Household Finance Corp.,. supra, 405 U.S. at 
548 n .14 .24 * * *

Collectively and individually, therefore, 42 U.S.C. 
§ §  1981, 1982, 1983 and 28 U.S.C. § §  1331, 1343, as 
consistently construed by this Court and as confirmed 
by history, confer broad civil rights and seek to open 
the federal courthouse door virtually as wide as Article 
III permits. In particular, the legislation is designed to 
insure “ the rights of Negroes to attack state-sanctioned 
segregation through the peaceful channels of the judicial 
process.” Palmer v. Thompson, 403 U.S. 217, 268 (1971) 
(White, J . ,  dissenting on other grounds).

24 The court stated in Lynch  (405 U.S. at 548) (emphasis 
added):

The 1875 Act giving the federal courts power to hear 
suits arising under Art. Ill , §2 of the Constitution was, • t 
like the Act of 1871, an expansion  of national au thor­
ity over matters that, before the Civil War, had been 
left to the States. . . . The Act, therefore, is “ clearly . . .
part  of, rather than an exception to, the trend of 
Legislation which preceded it .”

23

B. Standing of Affected Persons and Organiza­
tions to  Present S ta tu tory  and Constitutional Claims 
of Racial Discrimination Should be Liberally Con­
ferred.

As the Court observed in Linda R.S. v. Richard D., 
410 U.S. 614, 617n.3 (1973) and repeated in O'Shea v. 
Littleton, 414 U.S. 488, 493n.2 (1974):

Congress may enact statutes creating legal rights, 
the invasion of which creates standing, even though 
no injury would exist w ithout the statute. See, e.g., 
Trafficantc v. Metropolitan Life Ins. Co., 409 U.S. 
205, 212 (1972) (White, J . ,  concurring); Hardin v. 
K entucky Utilities Co., 390 U.S. 1, 6 (1968).

See also Association o f  Data Processing Service Organiza­
tions, Inc. v. Camp, 397 U.S. 150, 154 (1970). Congress 
cannot, of course, exceed the limitations of Article III, 
but where the Court has read congressional purpose as 
intending to provide broadly for judicial review, it has 
liberally accorded standing to those alleging some actual

As the Court stated in O'Shea (414 U.S. at 493-94n.2):
But such statutes do not purport to bestow the right 
to sue in the absence of any indication that invasion 
of the statutory right has occured or is likely to occur.
42 U.S.C. § 1983, in particular, provides for liability 
to the “ party injured” in an action at law, suit in 
equity, or other proper proceeding for redress. Per­
force, the constitutional requirement of an actual case 
or controversy remains. Respondents still must show- 
actual or threatened injury of some kind to establish 
standing in the constitutional sense.

We do not of course, suggest that §1983 or any of the other 
statutes under discussion permit the Court to ignore the case-or- 
controversy requirement.



24

or potential “ injury in fact” and making claims “ arguably 
within the zone o f  interests to be protected or regulated 
by the statute or constitutional guarantee in question.” 
Id. at 152 and 153. Accordingly, the Court has generously 
defined standing under Title VIII of the Civil Rights Act 
of 1968 (see part IC, supra). And it has given broad 
standing status to those seeking judicial review of federal 
agency action under § 10 of the Administrative Procedure 
Act, 5 U.S.C. § 702. United States v. SCRAP, 412 U.S. 
669 (1973); Barlow v. Collins, 397 U.S. 159 (1970); 
Association o f  Data Processing Service Organizations, 
Inc. v. Camp, 397 U.S. 150 (1970). Cf. Sierra Club v. 
Morton, 405 U.S. 727 (1972).

As dem onstrated  above in Part IIA, the civil rights 
legislation under which petitioners are proceeding re­
flects this N a tion ’s longstanding, albeit tortured and un­
realized, com m itm ent to racial equality in all aspects 
of daily life. More im portan t for present purposes, the 
legislation is a com m and to the federal judiciary to hear 
and dispose of civil rights claims on their merits. The 
interests asserted by petitioners here are surely as im­
portan t as those concerns which received this C ourt’s 
respect in SCRAP, Barlow, Data Processing and Sierra 
Club. The C o u r t’s own decisions are proof of that. 
Tillman v. Wheaton-IIaven Recreation Ass ’n, supra; Sulli­
van v. L ittle Hunting Park, 396 U.S. 229 (1969); Jones v. 
Alfred H. Mayer Co., supra; Barrows v. Jackson, 346 U.S. 
249 (1953); Hurd v. Hodge, 334 U.S. 24 (1948); Shelley 
v. Kraemer, 334 U.S. 1 (1948); Buchanan v. Warlcy, 
245 U.S. 60 (1917). The right to acquire, enjoy and dis­
pose of property  w ithout discrimination based on race 
has been deemed of such importance, in fact, tha t in each* 
of the last-cited cases, except Jones and Shelley, persons 
other than those who were the objects of discrimination

25

were allowed to assert the right. The right has been 
treated, as it must again be, as param ount. “ [R] ule[s] 
of practice,” such as standing (Barrows v. Jackson, supra, 
346 U.S. at 257), must accommodate.

1. Non-White Petitioners

Non-White petitioners effectively allege that respond­
ents, by policy and practice, have created “ a device 
functionally comparable to a racially restrictive con- 
venant . . .” 26 which “ herds men into ghettos and makes 
their ability to buy property  turn on the color of their 
skin. . . .” 27 They allege not that respondents have only 
zoned certain residential areas within Penfield for whites 
only (cf. Buchanan v. War ley, supra), or that they have 
merely imposed a majority-consent requirement on resi­
dence by non-whites. Cf. Harmon v. Tyler, 273 U.S. 
668 (1927). Their claim is that respondents have effec­
tively zoned the entire Town of Penfield for white-only 
occupancy (cf. Gomillion v. Lightfoot, 364 U.S. 339 
(I960)) ,  thereby excluding petitioners and confining them 
to the economic, social and human degradation of the 
ghetto.

The court of appeals overlooks the essence of these 
allegations, criticizes petitioners for not having “ any 
interest in land within the town or any connection with 
any plan to construct housing for them within the tow n” 
(Pet. App.A at 8), and, incredibly, concludes that peti­
tioners “ indicate no benefit which a judgm ent favorable 
to them would p roduce.” (Pet. App.A at 10).28 Seem-

28Sullivan v. Little Hunring Park, supra, 396 U.S. at 236.

^ J o n e s  v. A lfred H. Mayer Co., supra, 392 U.S. at 443.

^8This latter conclusion was reached, in part, through the 
court of appeals’ construction of the prayer for relief contained 
in petitioners’ complaint (Pet. App. A at 11), overlooking the

[ fo o tn o te  c o n tin u ed ]



26

ingly contrary  decisions29 were distinguished on the 
ground that the disputes in those cases focused “ on a 
particular project [which] assures ‘concrete adverseness.’ ” 
(Pet. App.A at 9 and 10).

We are aware of no decision of this Court which would 
define “ concrete adverseness” in terms of the possibility 

* that someone is actually prepared to pour a foundation 
as soon as the way is judicially cleared. We simply do 
not com prehend how the vindication of Thirteenth  and 
Fourteenth  A m endm ent constitutional and statutory 
rights can be made to turn upon the availability of 
builders or developers or real estate brokers. For one 
thing, the-racism under attack may be so pervasive that 
such third parties are unwilling, for whatever reasons, 
to enter the fray. See, e.g.,. Williams v. M atthews Co., 
499 F.2d 819 (8th Cir.), cert, denied, 43 U.S.L.W. 3295 
and 3296 (1974). Even less, then, do we see how  the vic­
tims of discrimination can be required to have a “ con­
nection” with such frequently-unavailable persons and 
corporations, or how an “ interest in land” can be pre­
requisite to the right to challenge race-based denials of 
such an interest.

relief requested in the proposed complaint-in-intervention of peti­
tioner Home Builders (see A. 160-63). This inquiry, in our view, is 
inappropriate insofar as it relates to the standing issues (see Baker 
v. Carr, supra, 392 U.S. at 208), although it may have its place, 
in other contexts, in connection with other concerns of equity 
jurisprudence. See O ’Shea v. L ittleton, supra, 414 U.S. at 499-504. 
But even if the inquiry were appropriate, the court  of appeals’ 
approach is too  wooden. By the very nature of justice, federal 
courts of equity are neither bound  by the exten t of, nor confined 
to, the particular relief requested at the pleading stage. See  Rule 
54(c), Fed. R. Civ. P.; cf. Rule 57, Fed. R. Civ. P.

oq  *
E.g., Park View Heights C-orp. v. City o f  Black Jack, 467 

F.2d 1208 (8th Cir. 1972); Dailey v. City o f  Lawton,  425 F.2d 
1037 (10th Cir. 1970).

27

In any event, the record here is replete with allegations 
that various persons and organizations have a ttem pted  
and are prepared to construct housing in Penficld within 
petitioners’ means. Petitioners allege that they have sought 
and continue to desire such housing, which has been 
denied to them because of illegal discrimination. No 
decision of this Court to date deprives them of the right 
to have such claims adjudicated on the merits. Only by 
“ ‘seek[ing] ingenious analytical instrum ents’ to avoid 
giving . . . congressional e n a c tm e n ts ]  the broad scope 
[their] language and origins may require” 30 can such 
a result now be reached. More ominously, such a result, 
by denying standing to the objects of discrimination, 
would encourage suburban radial discrimination to perfect 
itself in the com forting hope that no t even third parties 
will bo ther with the steps necessary for standing to sue.

The court below thus erects a wholly new and regres­
sive degree-of-discrimination test for standing which cir­
cumvents the jurisdictional mandates of Congress and 
serves no policy embodied in Article III. If  the court of 
appeals has its way, only those individuals who have been 
wrongly excluded from a particular construction project 
actually under consideration by a suburban jurisdiction 
have standing to challenge their exclusion — and then 
only if they have some sort of “ connection” with the 
project. Such a test invites municipalities to discriminate 
totally, to refuse even to consider alternative courses of 
conduct; for such a test permits judicial review only of 
certain isolated acts of discrimination while foreclosing 
judicial review of more effective discriminatory patterns 
and practices. Much discrimination results in little stan­
ding. The Rule of Law is turned on its head.

30 District o f  Columbia v. Carter, supra, 409 U.S. at 432.



28

2. Organizational Petitioners

As we read Sierra Club v. Morton  and United States v. 
SCRAP, the organizational petitioners quite clearly have 
both  individual and representative standing, a conten­
tion which no doub t will be thoroughly briefed by the 
parties. The burden of our argument here is that these 
petitioners should be accorded standing on the more 
traditional grounds31 of NAACP v. Button, 371 U.S. 
415, 428-29 (1963) and NAACP v._ Alabama, 357 U.S. 
449, 458-60 (1958): as advocates and implementers of 
national housing policies which are embodied in the 
Constitution and federal laws, and as representatives of 
their members who may no t otherwise be able to  p ro­
tect their own rights.

The court of appeals rejected such standing because 
it found the “ special circumstances” present in the NAACP  
cases absent here. Although we do not perceive any 
meaningful differences between the standing of a union 
to assert the First A m endm ent rights of its members 
(Allee v. Medrano, 94 S. Ct. 2191, 22 0 2 n .l3  (1974); id. 
at 2207 (Burger, C.J., concurring and dissenting)) and 
that of organizational petitioners to assert the Thirteenth 
and Fourteenth  A m endm ent constitutional and statu­
tory rights of their members, these kinds of cases do 
present “ special circumstances” (if that is indeed the 
rule). The status o f  these petitioners is no t unlike that 
of the NAACP in Button:

31 <We say “ on the more traditional grounds” in order to take 
into account any distinctions which the presence of the Adminis­
trative Procedure Act in Sierra Club and SC R A P  might be thought 
to present in connection with organizational standing questions. * 
We do n o t  see any such distinctions, however, and our view that 
the civil rights enactm ents involved here call for equally broad 
standing rules applies to organizations as well as to individuals.

29

litigation is no t a technique of resolving private 
differences; it is a means for achieving the lawful 
objectives of equality of trea tm ent by all govern­
ment . . .  for the members of the Negro com m unity  
in this country. It is thus a form of political ex­
pression. Groups which find themselves unable to 
achieve their objectives through the ballot fre­
quently turn to the courts.

371 U.S. at 430. Some of the petitioners’ motives may be 
only indirectly related to minority rights, and their in­
terests may be substantively broader and, at the same 
time, geographically smaller in scope, but, having failed 
in their political efforts to make Penfield more receptive 
to housing for minority-race persons, they should not 
have found the courthouse door locked. We do not argue 
that Button  is a perfect analogy, bu t  the Thirteenth  and 
Fourteenth  A m endm ent rights which these petitioners 
either advocate or seek to implement should be given 
equivalent status. Therefore, “ [w ]e  think p e t i t io n e rs ]  
may assert this right on [their] own behalf, because, 
though a corporation, [they are] directly engaged in 
those activities, claimed to be constitutionally protected, 
which . . . [respondents’ activities] would curtail.” Id. 
at 428.

In addition, they should be recognized as representa­
tives of their members whose constitutional rights “ could 
not [or may not] be effectively vindicated except through 
an appropriate representative before the C ourt.” NAACP 
v. Alabama, supra, 357 U.S. at 459. The court of appeals 
could see “ no reason why Penfield Better Homes cannot 
assert its own rights as well as or better than Housing 
Council” (Pet. App.A at 15). But that view of the record 
overlooks Home Builders’ allegations that it has received 
threats of retaliation against it and its members. More­



t

over, it places no strain on the imagination to envision 
the reluctance of individual builders to propose housing 
for minorities in white suburbia. See, e.g., Williams v. 
M atthews Co., 499 F.2d 819 (8th Cir.), cert, denied, 
43 U.S.L.W. 3295 and 3296 (1974). Such reluctance 
may dissipate, in some situations, under the protective 
umbrella of a multi-member organization. In light of 
these realities, representative organizations such as these 
petitioners should be allowed to join in or initiate chal­
lenges to  alleged racially exclusionary zoning practices, 
so that their members might have the Law’s protection 
while they seek to secure its goals.

30

THE TAXPAYER-STANDING ISSUES NEED NOT BE 
; DECIDED

If the non-white and organizational petitioners (or 
either) are found to have standing, litigation of their 
claims on the merits will necessarily serve to protect all 
interests asserted by the taxpayer petitioners. In such 
circumstances the Court has frequently declined to decide 
difficult standing questions. See, e.g., California Bankers 
A ssn  a. Shultz, 416 U.S. 21, 44-45 (1974 );Doe v. Bolton,
410 U.S. 179, 189 (1973). Such a result should obtain 
here.

*

31

CONCLUSION

The judgm ent below should be reversed and the case 
remanded to the court of appeals for further appro­
priate proceedings.

Respectfully submitted,

J. H a r o l d  F l a n n e r y  

P a u l  R. D im o n d  

Wil l ia m  E. C a l d w e l l  

Lawyers’ Committee for 
Civil Rights Under Law 

733 - 15th Street, N.W. 
Suite 520
Washington, D.C. 20005 
Attorneys for  
Lawyers’ Committee fo r  

Civil Rights Under Law