James v. Valtierra Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae

    I n  th e

^ttptptttr Court rtf tl|r Unttrfr #tutrB
October T erm , 1970

No. 154
R onald J ames, et al.,

Appellants,
—v.—

A nita  V altierea , et al.,
Appellees.

No. 226
V irginia  C. S h a ffer , 

—v.—
A nita  V altierra, et al.,

Appellant,

Appellees.

O N  A P P E A L  FR O M  T H E  U N IT E D  STA TES D IS T R IC T  COU RT 

FO R T H E  N O R T H E R N  D IS T R IC T  O F C A L IFO R N IA

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 
AND BRIEF AMICI CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., AND THE 

NATIONAL OFFICE FOR THE RIGHTS OF 
THE INDIGENT

J ack Greenberg  
J ames M. N abrit, I I I  
M ichael D avidson 
J effry  A . M in tz

10 Columbus Circle, Suite 2030 
New York, New York 10019
Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc. and the National Office 
for the Rights of the Indigent



TABLE OF CONTENTS

Motion for Leave to File Brief Amici Curiae and State­
ment of Interest of the A m ici.....................................1-M

Brief Amici Curiae........................   1

Statement ........................................................................  1

Summary of Argument.....................   4

A rgum ent

I. Article 34 Enshrines in California’s Constitution 
a Discrimination Based on Poverty In Violation 
of the Equal Protection Clause of the Fourteenth 
Amendment ...........................................................  8

A. Article 34 Is .Repugnant to the Equal Protec­
tion Clause Because It Imposes a Special 
Burden on the Poor That Is Not Rationally 
Related to Any Legitimate Governmental Ob­
jective ...............................................................  8

B. Even If There May Be Some Rational Justi­
fication For Article 34, This Justification Does 
Not Rise to the Level of a Compelling State 
Interest in the Measure. Absent Such an In­
terest, Article 34 Is Constitutionally Defective 
Under the Equal Protection Clause ...............  15

II. Article 34 Establishes an Official Racial Classifi­
cation Which Is Arbitrary, Invidious, Discrim­
inatory, and Violative of the Equal Protection 
Clause of the Fourteenth Amendment ................ 21

A. The Scheme of Article 34 Sets up an Official 
Classification Which Unequally Affects Dif­
ferent Racial Groups .......................................  21

PAGE



11

B. The Unequal Burden of Article 34 Is But One
Aspect of a Pervasive Pattern of Racial Dis­
crimination. This Pattern Perpetuates Resi­
dential Segregation and Discriminatorily De­
nies to Minorities a Wide Range of Oppor­
tunities ...................... .......................................  26

C. The Racial Classification Inherent in Article
34 Cannot Be Constitutionally Justified. It 
Should Be Declared Invalid Under Appropri­
ate Equal Protection Standards ...................  31

III. By Effectively Denying to Negroes Access to 
Housing Equal to That Available to White Per­
sons, Article 34 Imposes on Negroes a Badge 
and Incident of Slavery, and Constitutes A De­
nial of the Equal Rights to Purchase, Lease and 
Hold Real Property, Mandated by 42 U.S.C. 
§1982 ......................................................................  33

C o n c lu sio n  ..................................................................    36

T able  of A u t h o r it ie s

Cases:

Alexander v. Holmes, 39 U.S. 19 (1969) ......................... 30
Arrington v. City of Fairfield, 414 F.2d 687 (5th Cir. 

1969) ............................................................................ 18
Arrington v. Massachusetts Bay Transportation Au­

thority, 306 P. Supp. 1355 (D. Mass. 1969) .............. 30

Brown v. Board of Education, 347 U.S. 483 (1954) ..... 19
Buchanan v. Warley, 245 U.S. 60 (1917) .....................  17

PAGE



I l l

Carrington v. Bash, 380 U.S. 89 (1965) .........................  13
Cipriano v. City of Houma, 395 U.S. 701 (1969) ..........  30
City of Redondo Beach v. Taxpayers, Property Owners, 

etc., City of Redondo Beach, 54 Cal.2d 126, 325 P.2d 
170 (1960) ..................................................................  11

Dandridge v. Williams, 397 U.S. 471 (1970) .................  17

Edwards v. California, 314 U.S. 160 (1941) .................  19

Gautreaux v. Chicago Housing Authority, 296 P. Supp.
907 (N.D. 111. 1969) ......................................... .........18, 28

Gomillion v. Ligthtfoot, 364 U.S. 339 (1960) _______ 19, 30
Green v. New Kent County School Board, 391 U.S. 430

(1968)  .......................................................................  30
Griffin v. Illinois, 351 U.S. 12 (1956) .................. .......... 15
Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir.

1970), cert, granted 399 U.S. 926 (1970) ....... .......... 30
Guinn v. United States, 238 U.S. 347 (1915) .................  30

Harper v. Virginia State Board of Elections, 383 U.S.
663 (1966) .................................................. 5,13,15,16,30

Hicks v. Weaver, 302 F. Supp. 619 (E.D. La. 1969) .... 28 
Hobson v. Hansen, 269 P. Supp. 401 (D.D.C. 1967), 

aff’d sub nom. Smuck v. Hobson, 408 F.2d 179 (D.C.
Cir. 1969) ............................................ ............ .........19, 25

Holmes v. Leadbetter, 294 P. Supp. 991 (E.D. Mich.
1968) ..............................................................-.... -....... 18

Housing Authority v. Superior Court, 35 Cal.2d 550,
219 P.2d 457 (1950) ....................................................2,12

Hunter v. Erickson, 393 U.S. 385 (1969) ..........9,10,17, 21,
23, 28, 31, 32

In Re Appeal of Girsh, -----  Pa. ----- , 263 A.2d 395
(1970)

PAGE

17



IV

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) ..7, 17, 28,
33, 34, 35

Kennedy Park Homes Assn. v. City of Lackaivanna,
-----  F. Supp. -----  (W.D.N.Y, Aug. 13, 1970) (ex­
pedited appeal pending, No. 35320, 2nd Cir.) .......... 18, 28

Lee v. Southern Home Sites Cory.,----- F.2d------ (5th
Cir. No. 28167, July 13, 1970) .................................... 28

Lindsley v. National Carbonic Gas Co., 220 IT.S. 61
(1911) ..........................................................................  15

Local 189, United Papermakers and Paperworkers v.
United States, 416 F.2d 980 (5th Cir. 1969) .............. 30

Louisiana v. United States, 380 U.S. 145 (1965) ..........  30
Liucas v. Colorado General Assembly, 377 U.S. 713 

(1964) ..........................................................................  32

McDonald v. Board of Elections, 394 U.S. 802 (1969) .... 15
McGowan v. Maryland, 366 U.S. 420 (1961) .................  15
McLaughlin v. Florida, 379 U.S. 184 (1964) ..............14, 31
Mulkey v. Reitman, 50 Cal. Rptr. 881, 413 P.2d 825 

(1966) ..........................................................................  23

Norwalk CORE v. Norwalk Redevelopment Agency, 395 
F.2d 920 (2nd Cir. 1968) ....................................14,17, 28

Otey v. Common Council of Milwaukee, 281 F. Supp.
264 (E.D. Wise. 1968) .................................................  18

Powelton Civic Home Owners Assn. v. HUD, 284 
F. Supp. 804 (E.D. Pa. 1968) ...................................... 18

Quarles v. Philip Morris, 279 F. Supp. 505 (E.D. Va. 
1968)

PAGE

30



V

Ranjel v. City of Lansing, 293 F. Supp. 301 (W.D. 
Mich. 1968), rev’d Ranjel v. City of Lansing, 417 
F.2d 321 (6th Cir. 1969), cert. den. 397 U.S. 980

PAGE

(1970) ......................................... ......................... 18,25,29
Reitman v. Mulkey, 387 U.S. 369 (1967) .......... 12,17, 22, 28
Rinaldi v. Yeager, 384 U.S. 305 (1969) ......................... 13

Shapiro v. Thompson, 394 U.S. 618 (1969) ....15,16,19, 20, 32
Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................  17
Skinner v. Oklahoma, 316 U.S. 535 (1942) .....................  13
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .... 30 
Southern Alameda Spanish Speaking Organization v.

City of Union City, 424 F.2d 291 (9th Cir. 1970) ...16,18,
25, 29

Spaulding v. Blair, 402 F.2d 862 (4th Cir, 1968) ..........  29

Triangle Improvement Council v. Ritchie,----F.2d-----
(4th Cir. No. 14033, May 14, 1970, reh. denied July 
14, 1970), pet. for cert, pending, O.T. 1970 No. 712 .... 14

Valtierra v. Housing Authority of the City of San Jose,
313 F. Supp. 1 (N.D. Cal. 1970) ................................  3

Westbrook v. Mihaly, 2 C.3d 765, 471 P.2d 487 (1970) 11
Western Addition Community Organisation v. Weaver,

294 F. Supp. 433 (N.D. Cal. 1968) ............................  18
Williams v. Rhodes, 393 U.S. 23 (1968) ......................... 16

Yick Wo v. Hopkins, 118 U.S. 357 (1886) .....................  22

Constitutional and Statutory Provisions:
Calif. Const. Art. 4 §1 ............      11
Calif. Const. Art. 11 §18 ...... ............. ..................... ....11,12
Calif. Const. Art. 34...................................................passim



VI

12 U.S.C. §1701 (t) ....
23 U.S.C. §§101 et seq
42 U.S.C. §1401 ........
42 U.S.C. §1409 ........
42 U.S.C. §1441 ........
42 U.S.C. §1973 ....... .
42 U.S.C. §1982 ....... .

Other Authorities:
Black, The Supreme Court 1966 Term, Foreward: 

“State Action,” Equal Protection, and California’s

PAGE

Proposition 14, 81 H arv. L. R ev . 69 (1967) ..............10,12
B u il d in g  t h e  A m er ic a n  C it y , R epo r t  oe t h e  N a­
tio n a l  C o m m issio n  on  U rban  P roblem s (D ouglas 
C o m m is s io n ) (1968) ..................................... 3-M, 9,19, 25

R eport  of t h e  N a tio n a l  A dvisory C o m m issio n  on  C iv il

D isorders ( K e e n e r  C o m m .) (Bantam Ed. 1968) ...... 3-M,
19, 25, 26

R epo rt  on  H o u sin g  in  Ca l ifo r n ia , Governor’s Advisory 
Commission on Housing in California (1963) ..........  10

Sager, Tight Little Islands: Exclusionary Zoning, 
Equal Protection, and the Indigent, 21 S t a n . L. R ev .
767 (1968) ............................... , ...................................  28

Proposed Amendments to Constitution, Propositions 
and Proposed Laws, Together with Arguments (to 
be submitted to the Electors of the State of California 
at the General Election Tuesday, November 3, 1964) 23

........... 18
..........  13
.........18, 34
............. 12
.........18, 34
........... 30
.7, 33, 34, 35



I n  t h e

^upratte (Emtrt of %
October T erm , 1970

No. 154
R onald J a m es , et al.,

A n ita  V altierra , et al.,

No. 226
V ir g in ia  C. S h a f f e r , 

— v .—

Appellants,

Appellees.

Appellant,

A n ita  V altierra , et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND STATEMENT OF INTEREST OF THE AMICI

Movants NAACP Legal Defense and Educational Fund, 
Inc., and the National Office for the Rights of the Indigent 
respectfully move the Court for permission to file the 
attached brief amici curiae, for the following reasons. The 
reasons assigned also disclose the interest of the amici.

(1) Movant NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation, incorporated un­
der the laws of the State of New York in 1939. It was 
formed to assist Negroes to secure their constitutional

1-M



2-M

rights by the prosecution of lawsuits. Its charter declares 
that its purposes include rendering legal aid gratuitously 
to Negroes suffering injustice by reason of race who are 
unable, on account of poverty, to employ legal counsel on 
their own behalf. The charter was approved by a New 
York court, authorizing the organization to serve as a 
legal aid society. The NAACP Legal Defense and Edu­
cational Fund, Inc. (LDF), is independent of other organ­
izations and is supported by contributions from the public. 
For many years its attorneys have represented parties in 
this Court and the lower courts, and it has participated 
as amicus curiae in this Court and other courts, in cases 
involving many facets of the law.

(2) A central purpose of the Fund is the legal eradica­
tion of practices in our society that bear with discrimina­
tory harshness upon Negroes and upon the poor, deprived, 
and friendless, who too often are Negroes. In order more 
effectively to achieve this purpose, the LDF in 1965 estab­
lished as a separate corporation movant National Office 
for the Eights of the Indigent (NORI). This organization, 
whose income is provided initially by a grant from the 
Ford Foundation, has among its objectives the provision 
of legal representation to the poor in individual cases and 
the presentation to appellate courts of arguments for 
changes and developments in legal doctrine which unjustly 
affect the poor. Thus NORI is engaging in legal research 
and litigation (by providing counsel for parties, as amicus 
curiae, or co-counsel with legal aid organizations) in cases 
in which rules of law may be established or interpreted 
to provide greater protection for the indigent.

(3) In carrying out this program to establish the legal 
rights of Negroes and of the poor, LDF and NORI attor­
neys have handled numerous cases involving public and 
private housing, particularly ones challenging the denial 
of housing opportunities to those groups as a result of both



3-M

private and public discriminatory conduct. E.g., Thorpe v. 
Housing Authority, 386 U.S. 670 (public housing); Wil­
liams v. Schaffer, 385 U.S. 1037 (summary eviction of indi­
gent tenant); Triangle Improvement Council v. Ritchie,
-----  F.2d ------ (4th Cir. No. 14033, May 14, 1970, reh.
denied, July 14, 1970) pet. for cert, pending, O.T. 1970, No. 
712 (displacement of poor blacks by federally assisted high­
way) ; Ranjel v. City of Lansing, 417 F.2d 321 (6th Cir. 
1969), cert, denied, 25 L.Ed.2d 390 (referendum denying 
zoning change to permit low cost housing); Arrington v. 
City of Fairfield, 414 F.2d 687 (5th Cir. 1969) (displace­
ment of poor blacks by publicly aided construction); Ken­
nedy Park Homes Association v. City of Lackaivanna, —— 
F. Supp. -----  (W.D.N.Y. August 13, 1970), appeal pend­
ing, No. 35320, 2d Cir. (refusal by city to permit develop­
ment of low cost, black owned subdivision); Western Ad­
dition Community Organization v. Weaver, 294 F. Supp. 
433 (N.D. Cal. 1968) (Urban renewal).

(4) It has become increasingly clear in recent years, if 
it was not so before, that the denial of opportunities for 
decent housing to the poor and particularly to members 
of minority groups is a major contributing factor to social 
unrest, see R epo rt  op t h e  N atio n a l  A dvisory C o m m issio n  
on  C iv il  D isorders ( K e r n e r  C o m m issio n ) 266-274; 467-482 
(Bantam Ed. 1968), and that it has a multiplier effect in 
restricting the availability of educational, employment and 
other opportunities. It is likewise manifest that the pri­
vate sector of the economy is unable to meet the needs of 
the poor for housing, and that the public sector has woe­
fully failed to meet even the goals set in legislation. 42 
U.S.C. §§1401, 1441; 12 U.S.C. §1701 ( t ) ; B u il d in g  t h e  
A m er ic a n  C it y , R eport  of t h e  N atio n a l  C o m m issio n  on  
U rban  P ro blem s  (D ouglas C o m m is s io n ) , passim. Part of 
the reason for this failure is found in local requirements, 
such as the provision of the California Constitution chal­



4-M

lenged in this case, which set up harriers to the construc­
tion of low cost housing. Perhaps reflecting “the self- 
righteous opposition often expressed toward subsidized 
housing for the poor,” id. at 66, these requirements place 
burdens on the efforts of the poor to obtain decent housing 
which do not exist for those who are able to afford the cost 
of private housing. Article 34 of the California Constitu­
tion is particularly onerous, and has contributed to the 
fact that California has a much lower per capita avail- 
abilty of public housing than other comparable states.

(5) The amici believe that the attached brief will assist 
the Court by placing the California provision at issue here 
in a national perspective. We submit that it helps demon­
strate that restrictions such as this have a racially dis­
criminatory effect, which works to undo much of what this 
Court and the Congress have done to guarantee equal 
rights and equal opportunity.

(6) The individual appellees and the appellee Housing 
Authority of San Jose have consented to the filing of this 
brief amici curiae. This motion is filed because counsel for 
each of the appellants has refused consent.

W h e r e f o r e , movants pray that the attached brief amici 
curiae be permitted to be filed with the Court.

Respectfully submitted,

J ack  G reen berg  
J am es  M . N abrit , III 
M ic h a e l  D avidson 
J e f f r y  A. M in t z

10 Columbus Circle, Suite 2030 
New York, New York 10019
Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc. and the National Office 
for the Rights of the Indigent



In t h e

( t a r t  n f  t l j r  l m t r i »  :

O ctober  T e r m , 1970

No. 154
R onald  J a m es , et al.,

Appellants,

A n ita  V altierra , et al.,
Appellees.

No. 226
V ir g in ia  C. S h a f f e r , 

— v.—
Appellant,

A n ita  V altierra , et al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF AMICI CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., 

AND THE NATIONAL OFFICE FOR THE 
RIGHTS OF THE INDIGENT

Statement

This action challenges the validity, under federal con­
stitutional standards, of Article 34 of the Constitution of



2

the State of California.1 That provision requires that be­
fore any low rent housing- project can be built in any 
municipality, the project must be approved by the voters 
of the “city, town or county” at a general or special elec­
tion, specifically defining “low rent housing project” as one 
“financed in whole or in part” by federal or state subsidies, 
and further defining “persons of low income,” those to be 
served by such projects, as those who, as determined by 
public housing authority standards, “lack the amount of 
income which is necessary . . .  to enable them, without 
financial assistance, to live in decent, safe and sanitary 
dwellings, without overcrowding.” It became a part of the 
state constitution in 1950, as a result of a state-wide ref­
erendum, purportedly in response to the decision of the 
California Supreme Court in Housing Authority v. Supe­
rior Court, 35 Cal.2d 550, 219 P.2d 457 (1950), which held 
that decisions by a local housing authority to build public 
low-rent housing were administrative and not legislative de­
cisions, and thus not subject to review by subsequent refer­
endum, as, for example, would be an enactment by a city 
council.2

Two separate actions were filed in the district court—one 
by residents of the city of San Jose against the housing 
authority3 and city council of that city,4 as well as the

1 The full text of Article 34 appears at pp. 2-4 of the brief of 
appellant Shaffer in No. 226, and at pp. 7-9 of the brief of appel­
lants James, et al., in No. 154.

2 As discussed in Part I of the argument, infra, Article 34 over­
shoots the possible need of filling the referendum gap created by 
that decision, in that it requires a prior referendum, rather than 
simply authorizing a subsequent one.

3 The Housing Authority of San Jose has not appealed and ap­
pears in this Court as an appellee. It has filed a brief in support 
of the individual appellees, challenging the validity of Article 34.

4 The Mayor and all but one member of the City Council of San 
Jose appear as appellants in No. 154. One member of the Council, 
Virginia C. Shaffer, is separately represented, and is the appellant 
in No. 226.



3

United States Department of Housing and Urban Develop­
ment,5 6 and one by residents of San Mateo County against 
the housing authority of that County.6 The two cases were 
consolidated for all purposes by the district court, and are 
therefore joined in this appeal. The plaintiff-appellees are 
all poor persons who live in deteriorated housing in the 
two municipalities, and with few exceptions, they have been 
certified by the respective housing authorities as eligible 
for public housing. As a result of the shortage of public 
housing, which they contend is in large measure a result 
of the operation of Article 34,7 they have not been placed 
in such housing.8

Ruling on motions for summary judgment filed by the 
plaintiffs in both actions, the three-judge district court 
held that Article 34 is invalid as a denial of equal protec­
tion, in that it constitutes an impermissible classification 
on the basis of wealth and further that, since the “low- 
income projects . . . will be predominantly occupied by 
Negroes or other minority groups” (App. p. 174), “the 
law’s impact falls on minorities” (App. p. 175), creating a 
classification on the basis of race. Valtierra v. Bousing 
Authority of the City of San Jose, 313 F. Supp. 1 (N.D. 
Cal. 1970) (App. pp. 168-179). This appeal, under 28 U.S.C. 
§1253, followed.

5 The federal defendants were dismissed on their motion by the 
district court. App. pp. 171-2. That action is not questioned in 
this appeal.

6 The San Mateo defendants chose to stand mute in the district 
court and do not appear in this appeal.

7 In both areas, recent public housing proposals have been de­
feated in the referenda required by Article 34. App. pp. 28-29 
(San Jose) ; App. pp. 118-121 (San Mateo).

8 The affidavits of the plaintiffs, describing their present circum­
stance and their efforts to obtain public or other decent housing 
appear at App. pp. 14-20 (San Jose) and App. pp. 104-110 (San 
Mateo).



4

Summary of Argument

I
A. Article 34 on its face creates a classification on the 

basis of wealth. It requires the approval of the voters in 
a prior referendum before any subsidized housing for “per­
sons of low income” can be built, but creates no such bar­
rier to the housing needs of persons whose income enables 
them to purchase housing in the private market. More­
over, no other provision of California law imposes a simi­
lar obstacle on other than persons of low income, although 
various types of financial assistance are provided to as­
sist the more affluent to obtain housing.

Article 34 serves no legitimate state interest. Assuming, 
arguendo, that the residents of a municipality have an 
interest in reviewing decisions which affect the develop­
ment of their community, this interest could be satisfied 
by providing for subsequent referendum review of deci­
sions to build public housing, initiated, when desired, by 
the opponents of the project, rather than prior referendum 
approval, which must be initiated in every case by its 
proponents. This would place public housing on a par 
with, for example, zoning changes which may benefit pri­
vate housing for the wealthy, and which is subject to such 
review. Similarly, the state policy in favor of referenda 
and local democracy would be satisfied by providing for 
the possibility of subsequent review by the voters of pub­
lic housing decisions.

The state policy requiring prior approval of legislative 
decisions which incur major long-term indebtedness is not 
relevant to public housing, as substantially all of the capi­
tal costs are met by federal subsidies. Article 34 also re­
sults in an impermissible distinction between federally 
subsidized public housing which benefits the poor and



5

housing assistance provided to the more wealthy, as well 
as other public projects which receive substantial federal 
assistance, such as highways, and which are not burdened 
even with the availability of subsequent popular review.

B. Even if there were some legitimate state interest 
served by Article 34, it is not a “compelling state interest” 
such as is required to justify a classification on the basis 
of wealth. This Court has held that “lines drawn on the 
basis of wealth or property . . . are traditionally dis­
favored.” Harper v. Virginia State Board of Elections, 
383 U.S. 663, 668 (1966). Where such classifications are 
found, a higher standard of justification is required than 
where typical, non-discriminatory state economic regula­
tions are involved. Housing is a matter of vital importance 
to all and particularly to those who lack the income to 
obtain it in the private market. A burden placed on the 
availability of decent housing to the poor results in the 
deprivation of other fundamental rights, and thus has an 
effect beyond its immediate impact. No “compelling state 
interest” supports the burden on the poor which Article 34 
creates.

II
A. While Article 34 on its face creates a classification 

only on the basis of wealth, it is well established that courts 
may look beyond to the actual effect of a challenged provi­
sion to determine its ultimate effect. The fact that an 
enactment is racially neutral does not bar a determination 
that its impact falls on minorities. The history of Article 
34 strongly suggests a racially discriminatory motivation 
for its enactment. However, even in the absence of such 
motivation, the effect remains a relevant area of inquiry.

The record in this case demonstrates, and the opinion 
below, in harmony with decisions in similar cases, holds



6

that an enactment which discriminates against the poor 
has an inordinate impact on racial minorities, in this con­
text, blacks and Mexican-Americans, because of the strong 
correlation between minority group status and poverty.

B. The racially discriminatory effect of Article 34 re­
inforces other discriminatory devices and serves to perpetu­
ate segregation. It is particularly severe, because the denial 
of housing opportunities effectively restricts minority 
group members from access to other opportunities. Ar­
ticle 34 is an example of numerous public and private 
devices which promote discrimination in housing. The ref­
erendum procedure, highly desirable in most circumstances 
in a democracy, has frequently been misused for such pur­
poses. In areas other than housing, subtle, facially neutral 
devices have been used commonly to discriminate against 
racial minorities, but have been invalidated by the courts. 
A like analysis applied to this case will reveal, as it did to 
the lower court, that Article 34 is discriminatory.

C. Since it has an inordinate impact on racial minorities, 
Article 34 is inherently suspect, and must overcome an 
extremely heavy burden of justification. No such showing 
exists here, for the reasons discussed in Part I, supra. Ad­
ditionally, the fact that Article 34 was originally adopted by 
a state-wide majority vote and requires in its operation 
a decision by a local majority is irrelevant to its validity, 
since the majority may not act to limit the constitutional 
rights of minorities. Article 34 denies to racial minorities 
equal protection of the laws.



7

Tlie direct effect of Article 34 of placing a special burden 
on the access of the poor to decent housing, and the inci­
dental effect, resulting from the correlation between race 
and poverty, of restricting the availability of housing to 
racial minorities has a combined result of denying to many 
Negro Americans in California access to housing equal to 
that of whites. This result constitutes, as to them, the im­
position of a badge or incident of slavery, prohibited by 
the Thirteenth Amendment, and constitutes a violation of 
the mandate of 42 U.S.C. § 1982, as interpreted by this 
Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).

III



8

ARGUMENT

I.

Article 34  Enshrines in California’s Constitution a 
Discrimination Based on Poverty In Violation of the 
Equal Protection Clause of the Fourteenth Amendment.

Article 34 establishes a formidable obstacle to the con­
struction of federally aided public housing within the 
means of poor people, in the absence of any analogous 
provision with respect to other housing or to other fed­
erally aided public benefit programs. In so doing Article 34 
operates arbitrarily, irrationally, and invidiously to deny 
poor people the equal protection of the laws.

A. Article 34  Is Repugnant to the Equal Protection  
Clause Because It Im poses a Special Burden on the 
Poor That Is Not Rationally Related to Any Legiti­
m ate Governm ental Objective.

According to its own terms, Article 34 applies exclu­
sively to low rent housing projects. It defines a low rent 
housing project as “any development composed of urban 
or rural dwellings, apartments, or other living accommoda­
tions for persons of low income”, Calif. Const. Art. 34 §1 
(emphasis added). By further definition, these are persons 
who “lack the amount of income which is necessary . . .  to 
enable them, without financial assistance, to live in decent, 
safe, and sanitary dwellings, without overcrowding.” Ibid. 
This language is explicit: it singles out for special gov­
ernmental treatment only such housing as would benefit 
persons unable to provide adequate housing for themselves 
without public assistance.

On its face Article 34 openly differentiates between the 
poor and all other people. The impact of a restrictive 
classification falls on those who would benefit from the



9

programs hampered, cf. Hunter v. Erickson, 393 TT.S. 385, 
391 (1969). In this ease low income persons stand pri­
marily to benefit. "Wealthy persons need little or no assist­
ance in finding housing. Cf. Hunter v. Erickson, supra at 
391, where this Court noted, “the majority needs no 
protection against discrimination.” As appellant Shaffer 
somewhat misleadingly notes, “Directing legislation as to 
the problem of poverty is not classification on the basis of 
poverty.” Brief of Appellant Shaffer in No. 226 at 44. 
But Article 34 is not a legislative enactment to deal with 
“the problem of poverty.” It erects a barrier against leg­
islative programs that provide for the housing needs of 
the poor.

The fact that California has, with limited exceptions, not 
yet chosen to provide public assistance for any housing 
other than low income housing9 is irrelevant. California

9 Even this analysis ignores the participation of Californians in 
federally-financed programs to assist moderate-income housing in 
the form of private homes, such as the Federal Housing Adminis­
tration (FHA), Veteran’s Administration (VA), and Federal Na­
tional Mortgage Association (FNMA) programs.

Such programs have been of major importance in increasing the 
housing supply available to moderate and upper income groups. 
See, e.g., Building the Amebican Citt , Report op the National 
Commission on Urban P roblems (T he Douglas Commission), at 
66 (1968) :

The Nation has made a phenomenal record over the last two 
decades in building housing for the middle and affluent classes 
. . . Government policy has provided significant incentives 
and help through mortgage guarantees, secondary credit facil­
ities, and Federal income tax deductions for interest payments 
and local property taxes. . . .

The extent to which Government policy has subsidized the 
private homeowner is not generally recognized or acknowl­
edged. . . . This generous but generally unacknowledged Fed­
eral subsidy to the affluent or middle-class homeowner needs 
to be emphasized in view of the self-righteous opposition often 
expressed toward subsidized housing for the poor. . . .

In contrast to its truly amazing record in housing construc­
tion for the upper half of America’s income groups, the Na­
tion has made an inexcusably inadequate record in building



1 0

could legislatively decide to provide such assistance, with­
out encountering any constitutional restrictions on its 
actions like those encumbering low income housing. The 
discrimination lies in the establishment of two different 
legislative processes: one, more arduous, for measures 
that would particularly benefit a disfavored minority 
group; and the other, more routine, for measures of bene­
fit to the majority. Cf. Hunter v. Erickson, supra at 390 ; 
Black, The Supreme Court 1966 Term, Foreward: “State 
A ctionE qua l Protection, and California’s Proposition 14, 
81 H arv. L. R ev . 69, 75-76 (1 9 6 7 ). Article 34 offends pre­
cisely because it singles out the poor with the effect and 
for the apparent purpose of reducing the already limited 
housing opportunities available to them. Article 34 lends 
the weight of constitutional restriction to all the other 
forces and handicaps that the poor must contend with in 
their efforts to achieve the minimum of human dignity.

We submit that the District Court below properly held 
Article 34 an “unequal imposition of burdens upon groups 
that are not rationally differentiable in light of any legiti­
mate state legislative objective.” Appendix, p. 173. An 
examination of the interests and objectives asserted by 
appellants should lead this Court to agree that the dis­
crimination embodied in Article 34 is not rationally re­
lated to any of these interests.

Appellants contend in justification of Article 34 that it 
merely reasserts California’s strong policy in favor of 
referenda and local democracy. This contention distorts

or upgrading housing for the poor to provide them with decent, 
standard housing at rents they can afford, [footnote omitted.]

Moderate and upper-income Californians participate in these 
programs on a vast scale. See Repoet on H ousing in California, 
Governor’s Advisory Commission on Housing in California (1963), 
especially the Appendix. California has imposed no legislative 
restrictions of any kind on participation in these federal programs.



1 1

both the substance of California’s referendum policy and 
the nature of Article 34, as a brief description of the 
Article’s history will indicate. California’s general con­
stitutional reservation of referendum powers to the people 
secures the popular option “to so adopt or reject any Act, 
or section or part of any Act, passed by the Legislature,” 
and extends to local review of local legislative actions. 
Calif. Const. Art. 4 § 1. Nothing in this language requires 
or permits the imposition of a prior referendum require­
ment. I t simply reserves to the people the power to ap­
prove, alter, or amend legislative actions already taken.

With particular reference to local bond issues, appellants 
also assert that California policy requires prior approval 
of any local action incurring indebtedness, Brief of Appel­
lant Shaffer in No. 226 at 33-34. This constitutional policy 
is allegedly embodied in Calif. Const Art 11 § 18, providing 
that no locality shall incur indebtedness or liability in 
excess of its annual revenue without voter approval Yet 
as the extensive discussion of Art 11 § 18 in Westbrook v. 
Mihaly, 2 Cal. 3d 765, 471 P.2d 487 (1970) indicates, this 
restriction is meant to apply only to actions requiring the 
locality itself to make expenditures and assume bonded 
debt.10 It should not apply to programs under the Federal 
Housing Acts of 1937 and 1949, because there the federal 
agency guarantees and assumes the costs of housing

10 Section 18 establishes “pay as you go” as “a cardinal rule of 
municipal finance,” applicable to “projects necessitating long-term 
expenditures,” Westbrook v. Mihaly, supra at 776-77, 471 P. 2d at 
494. One case interpreting the purpose of the section found that 
it was to avoid a situation “whereby the holders of an issue of 
bonds could . . . force an uneonsented-to increase in the taxes of, 
or foreclosure on the general assets and property of the issuing 
public corporation.” City of Redondo Beach v. Taxpayers, Prop­
erty Owners, etc., City of Redondo Beach, 54 Cal. 2d 126, 131, 325 
P. 2d 170 (I960); Westbrook v. Mihaly, supra at 777 n. 16, 471 
P. 2d at 494 n. 16.



1 2

development.11 Under these programs the municipality is 
merely an intermediary between the funding agency and 
the bondholders. The programs involve no current expen­
ditures or affirmative financial obligations for the munici­
pality. They are in effect federal and state projects 
administered locally.

For this reason, the California Supreme Court in 
Housing Authority v. Superior Court, 35 Cal. 2d 550, 219 
P.2d 457 (1950) held that such local housing authorities’ 
acts were “executive and administrative” rather than 
“legislative,” and therefore not subject to the referendum 
provisions of the California Constitution. Id. at 461, 462. 
Article 34 was enacted shortly after this decision, evidently 
in response to it. Appellant Shaffer now contends that 
Article 34 does no more than close the “loophole” left by 
the Housing Authority decision, Brief of Appellant Shaffer 
in No. 226 at 18, 33-34. This argument is unpersuasive 
on two grounds. First, there was in fact no “loophole,” 
since as shoAvn above the Art. 11 §18 prior referendum 
requirement was never intended to apply to this situation. 
Article 34 was in fact a substantially new enactment. 
Second, even if any loophole had existed, Article 34 does 
much more than “close the loophole” left by the decision. 
The Housing Authority case could have been overruled, 
had that been the sole object, by an amendment permitting 
subsequent referendum review of decisions to build low 
rent housing. But Article 34 went beyond such overruling 
of the decision to impose an additional requirement Cf. 
Reitman v. Mulkey, 387 U.S. 369, 376-377 (1967); Black, 
The Supreme Court 1966 Term, Foreivard: “State Action,”

11 The Federal government guarantees all such bonds issued and 
reimburses the local authority for payments on principal and 
interest. 42 U.S.C. §1409. There can thus be no possibility of 
impairment of the municipality’s fiscal integrity by these bonds.



13

Equal Protection, and California’s Proposition 14, supra, 
at 77. Article 34 requires the so called full measure of 
“local democracy” only for approval of the projects which 
affect the housing aspirations of the poor. Whereas a 
subsequent referendum requirement might arguably bring 
decisions to build public low rent housing into procedural 
conformity with all other legislative programs, the prior 
referendum requirement singles out programs which benefit 
the poor. Such a classification on grounds of poverty is 
irrational because poverty is unrelated to the objective of 
democracy, Harper v. Virginia State Board of Elections, 
383 U.S. 663 (1966), and therefore violates the Equal 
Protection Clause, Rinaldi v. Yeager, 384 U.S. 305, 309 
(1966); Skinner v. Oklahoma, 316 U.S. 535, 542 (1942); 
Carrington v. Rash, 380 U.S. 89, 96 (1965).

Even if low cost housing projects did involve local 
expenditures (and therefore arguably fall within the scope 
of the California policy favoring prior referenda on long­
term fiscal undertakings), Article 34 would be offensive to 
equal protection principles. Only low income housing is 
subject to its requirement. No similar burden is placed 
on other state legislative actions assisted by federal funds 
even where such projects, like low income housing, take 
property off local tax rolls.12 As the Court below stated,

The vice in this case is that Article XXXIV makes 
it more difficult for state agencies acting on behalf 
of the poor and the minorities to get federal assistance

12 Appellant Shaffer professes not to see the “likeness in any 
rational aspect” between such projects and low-income housing. 
Brief of Appellant Shaffer in No. 226 at 46. Yet, to take but one 
example, federally-funded highway construction under the Federal- 
Aid Highway Act of 1956, as Amended, 23 IJ.S.C. §§101 et seq., 
also takes large tracts of local land off tax rolls and may impose 
heavy future obligations on the municipality by encouraging new 
residential, industrial, and commercial developments requiring util­
ity improvements and municipal services.



14

for housing than for state agencies acting on behalf 
of other groups to receive financial federal assis­
tance. . . . Some common examples, inter alia,, are: 
highways, urban renewal, hospitals, colleges and uni­
versities, secondary schools, law enforcement assis­
tance, and model cities. (Appendix p. 177.)

It is irrational and impermissible to limit the application 
of the policy to low income housing, while all other projects 
which might involve similar local fiscal obligations are not 
so disfavored. A valid classification must be reasonable 
in light of its purpose, McLaughlin v. Florida, 379 U.S. 184, 
191 (1964). This classification is eminently unreasonable 
and hence repugnant to the Equal Protection Clause.

The analogy between housing projects and the other 
federally assisted projects just mentioned also serves to 
discredit the “non-fiscal” justifications of the prior refer­
endum requirement. These purported justifications are 
“sociological,” “psychological,” and aesthetic, see Brief 
of Appellant Shaffer in No. 226 at 19, 36-38. Yet highways, 
schools and renewal projects, like low income housing, 
involve displacement and relocation, affect housing pat­
terns, and have substantial social consequences for the 
locality.13 Nevertheless these programs are not equally sub­
ject to prior referendum approval. It would appear that the 
principal support for Article 34 derives less from concern 
for the sociological aspects of urban development, than 
from unwillingness to allow low rent housing residents 
into the locality.

We do not here contend that any referendum provisions, 
as for example the possibility of subsequent popular dis­

13 Cf. Norwalk CORE v. Norwalk Redevelopment Agency, 395 
P. 2d 920 (2nd Cir. 1968); Triangle Improvement Council v.
Ritchie,----- - P. 2 d -----  (4th Cir. No. 14033, May 14, 1970, reh.
denied July 14, 1970), pet. for cert, pending, O.T. 1970 No. 712.



15

approval, is necessarily invalid. We do not attack “demo­
cracy” but only the discriminatory application of the 
referendum requirement. We submit that the poverty- 
based discrimination of Article 34 must be struck down 
as an arbitrary and invidious classification lacking any 
rational relationship to legitimate governmental ends. 
Shapiro v. Thompson, 394 U.S. 618 (1969); Harper v. 
Virginia State Board of Elections, supra; Griffin v. Illinois, 
351 U.S. 12 (1956).

B. Even If There May Be Som e Rational Justification  
For Article 34, This Justification Does Not Rise to 
the Level of a Com pelling State Interest in the 
Measure. Absent Such an Interest, Article 34  Is 
Constitutionally Defective Under the Equal P ro­
tection Clause.

Even if there were some rational relationship between 
Article 34’s classification and a proper governmental goal, 
the Article would still violate the Equal Protection Clause. 
It certainly does not further any “compelling” or “over­
riding” state interest. Only such an interest should justify 
official wealth-based discriminations.

As this Court has held, “Lines drawn on the basis of 
wealth or property, like those of race [citation], are tra­
ditionally disfavored,” Harper v. Virginia State Board of 
Elections, supra, at 668; McDonald v. Board of Elections, 
394 U.S. 802 (1969). Consequently, this Court has in many 
instances involving wealth-related classifications declined 
to adhere to the equal protection standard traditionally 
applied in review of state economic or social regulations, 
Lindsley v. National Carbonic Gas Co., 220 U.S. 61 (1911) ; 
McGowan v. Maryland, 366 U.S. 420 (1961). It should not 
apply any such traditional standard here.

When the discrimination cuts against the welfare of the 
poor, a more demanding standard comes into play, par­



16

ticularly when an important interest is thereby jeopardized. 
Thus, this Court in Harper v. Virginia State Board of 
Elections, supra, stated that “where fundamental rights 
and liberties are asserted under the Equal Protection 
Clause, classifications which might invade or restrain them 
must be closely scrutinized and carefully confined,” 383 
TT.S. at 670. See also Shapiro v. Thompson, supra, at 633, 
638; cf. Williams v. Rhodes, 393 U.S. 23, 32 (1968). Judi­
cial review in such cases requires that the State demon­
strate a “compelling interest” in its scheme, for mere 
rationality or some conceivable justification will not suffice 
to offset the important interest of the individuals adversely 
affected by the classification. Shapiro v. Thompson, supra, 
at 638.

For example, in Southern Alameda Spanish Speaking 
Organisation v. City of Union City, 424 F.2d 291 (9th 
Cir. 1970), the court found that the effect of a municipal 
zoning referendum was “to deny decent housing and an 
integrated environment to low income residents,” 424 F.2d 
at 295. Observing that the municipality “may well” have 
an affirmative duty to deal with the housing needs of the 
poor, the court stated:

Surely, if the environmental benefits of land use 
planning are to be enjoyed by a city and the quality 
of life of its residents is accordingly to be improved, 
the poor cannot be excluded from enjoyment of the 
benefits. Given the recognized importance of equal 
opportunities in housing, it may well be, as a matter 
of law, that it is the responsibility of a city and its 
planning officials to see that the city’s plan as initiated 
or as it develops accommodates the needs of its low 
income families, who usually—if not always—are mem­
bers of minority groups. 424 F.2d at 295-296. [foot­
notes omitted]



17

The court applied a much more rigorous standard of 
scrutiny than the traditional standard urged by appel­
lants.14

Appellants’ assertion that the case of Dandridge v. 
Williams, 397 U.S. 471 (1970) requires another standard 
is not well taken. That case fell squarely within the arena 
of economic measures as to which this Court has always 
allowed the states great latitude. Dandridge dealt with a 
state public welfare assistance program, and in particular 
with the “difficult responsibility of allocating limited public 
welfare funds among the myriad of potential recipients,” 
397 U.S. 471, 25 L, Ed. 2d 491, 503 (1970). Here, the provi­
sion challenged does not significantly assist the state in 
regulating its finances. Article 34 restricts the development 
of housing that would not impose obligatory expenditures 
on the state or its subdivisions, but would be substantially 
financed by the federal government.15

Housing is a fundamental interest which must be pro­
tected from discriminatory state action not firmly grounded 
on a complelling state interest. This Court has long shown 
concern for the problems confronting those who are handi­
capped in their search for decent housing. Buchanan v. 
Warley, 245 U.S. 60 (1917); Shelley v. Kraemer, 334 U.S. 
1 (1948); Reitman v. Mulkey, supra; Jones v. Alfred H. 
Mayer Co., 392 U.S. 409 (1968); Hunter v. Erickson, 
supra.16 As a result of discriminatory practices and laws

14 Cf. In re Appeal of Girsh, ----- P a .------ ■, 263 A.2d 395 (1970),
holding that a municipal zoning ordinance which made no provi­
sion for multiple-dwellings within the town was unconstitutional 
as it had the effect of totally excluding those who, for economic 
or other reasons, would prefer to live in apartments.

16 See pp. 11-12, supra.
16 Discriminatory deprivation of housing has also in recent years 

been the subject matter of a substantial and increasing volume of 
litigation before the lower federal courts. See, for example, Nor-



1 8

like Article 34, the housing crisis affects the poor as a 
group, as it also affects racial minorities.17

Congress has over a period of years repeatedly declared 
its concern for the inability of the poor to find adequate 
housing. The Housing Act of 1949 states:

“The Congress declares that the general welfare and 
security of the Nation and the health and living stan­
dards of its people require . . . governmental assistance 
. . .  to provide adequate housing for urban and rural 
non-farm families with incomes so low that they are not 
being decently housed in new or existing housing.” 42 
U.S.C. §1441.

In the Housing and Urban Development Act of 1968 Con­
gress affirms the goal of §1441 but then finds “that this 
goal has not been fully realized for many of the Nation’s 
lower income families; that this is a matter of grave na­
tional concern,” 12 U.S.C. §1701 (t). And by 42 U.S.C. 
§1401, first enacted in 1937, “It is declared to be the policy 
of the United States . . .  to remedy the unsafe and unsani­
tary housing conditions and the acute shortage of decent, 
safe, and sanitary dwellings for families of low income.”

walk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 
(2nd Cir., 1968) ; Southern Alameda Spanish Speaking Organiza­
tion v. City of Union City, 424 F. 2d 291 (9th Cir. 1970); Ranjel 
v. City of Lansing, 417 F. 2d 321 (6th Cir. 1969), cert den., 397 
U.S. 980 (1970); Arrington v. City of Fairfield, 414 F. 2d 687 
(5th Cir. 1969) ; Powelton Civic Home Owners Assn. v. HUD, 284 
F. Supp. 808 (E.D. Pa. 1968) ; Kennedy Park Homes Assn. v.
City of Lackawanna, -----  F. Supp. ------  (W.D.N.Y. Aug. 13,
1970) (expedited appeal pending, No. 35320, 2nd Cir.) ; Cautreaux 
v. Chicago Housing Authority, 296 F. Supp. 907 (N.D. 111. 1969) ; 
Otey v. Common Council of Milwaukee, 281 F. Supp. 264 (E.D. 
Wise. 1968) ; Holmes v. Leadbetter, 294 F. Supp. 991 (E.D. Mich. 
1968); Western Addition Community Organization v. Weaver, 294 
F. Supp. 433 (N.D. Cal. 1968).

17 The relationship of racial discrimination is more fully dis­
cussed in parts II and III of this Argument, infra.



19

Adequate housing within the means of poor people is 
also the key to enjoyment of other fundamental rights. 
The restriction of public housing programs, particularly 
when private low rent housing is disappearing through 
destruction, (often by governmental action18) and increas­
ing costs,19 excludes low income persons from local electoral 
participation, cf. Gomillion v. Lightfoot, 364 IT.S. 339 
(1960), and reduces the right to travel and to locate oneself 
freely, Edwards v. California, 314 U.S. 160 (1941), Shapiro 
v. Thompson, supra, to a limited right of passage. Freedom 
of “in-migration,” including immediate availability of wel­
fare support for indigents, is constitutionally protected, 
Shapiro v. Thompson, supra, at 631, but this freedom is 
hollow indeed where discriminatory local regulations effec­
tively prevent indigents from finding housing in areas to 
which they wish to migrate. Access to equal educational 
opportunities, Brown v. Board of Education, 347 U.S. 483, 
493 (1954), depends significantly on residence.20 Access to 
housing is also essential to equal job opportunities for low 
income workers, particularly as the pattern of job dispersal 
into newer areas continues, if they are not to be prevented 
from following their jobs and freely competing for new 
ones. R eport of t h e  N ational A dvisory C ommission  on 
C ivil  D isorders (K eener  Com m issio n ) 392-393 (Bantam 
Ed. 1968). If the poor are denied housing in the very

is “Furthermore, over the last decades, Government action 
through urban renewal, highway programs, demolitions on public 
housing sites, code enforcement, and other programs has destroyed 
more housing for the poor than government at all levels has built 
for them.” B uilding  t h e  A m erican  City , supra, at 67.

19 See, e.g., Affidavit of Franklin Miles Lockfeld, App. pp. 59, 
60-61.

20 The discriminatory determination of educational opportunity 
by socio-economic patterns was a basis for detailed comment and a 
ground for the decision in Hobson v. Hansen, 269 F. Supp. 401, 
513 (D.D.C. 1967), aff’d sub nom. Smuck v. Hobson, 408 F. 2d 175 
(D.C. Cir. 1969).



2 0

areas of most vigorous economic and demographic growth, 
such as Santa Clara and San Mateo Counties, they will 
remain excluded from the benefits of economic growth.

The State’s justification for its discrimination between 
low rent housing and all other housing projects, therefore, 
must reflect a “compelling state interest,” Shapiro v. Thomp­
son, supra at 634, 638. Where “less drastic means are 
available” to assure the governmental objective, “it is un­
reasonable to accomplish this objective by the blunderbuss 
method.” Id. at 637. As discussed supra21 the State’s inter­
est in Article 34 fails even to satisfy criteria of rationality 
or plausibility. California could have carried out its policy 
favoring referenda without placing a special burden on 
the poor, by permitting low income housing projects to 
be submitted to subsequent referendum. Instead California 
chose to encumber low income housing with the special 
onerous requirement of prior referendum approval. As 
against the vital constitutional interest in protecting the 
poor minority against injury from unequal treatment with 
regard to its most important interests, the State’s alleged 
justifications for Article 34 merit no greater deference than 
was accorded to them by the Court below. The District 
Court’s summary dismissal of these justifications was 
proper, and its holding that Article 34 violates the Equal 
Protection clause was correct.

21 Pp. 10-14.



2 1

II.

Article 34  Establishes an Official Racial Classification 
Which Is Arbitrary, Invidious, Discriminatory, and Vio­
lative of the Equal Protection Clause of the Fourteenth 
Amendment.

Article 34 effectively classifies people on a racial basis 
for different governmental treatment, even though the 
words of the Article are not explicitly racial. This violates 
the right of the racial minority to the equal protection of 
the laws.

A. The Scheme of Article 34 Sets up an Official Classi­
fication W hich Unequally Affects Different Racial 
Groups.

The case at bar closely resembles Hunter v. Erickson, 
393 U.S. 385 (1969), in which this Court invalidated an 
amendment to the Akron, Ohio, City Charter requiring 
prior referendum approval for any local legislative action 
relating to discrimination in housing. The present case 
is indistinguishable from Hunter but for the fact that by 
its terms, the discrimination is based on wealth rather than 
on race, religion, or ancestry. However, the racially dis­
criminatory effect of Article 34 can be clearly demonstrated 
by examining its impact.

This Court in Hunter expressly looked behind the Charter 
amendment’s terms to weigh its inevitable effect:

. . . although the law on its face treats Negro and 
white, Jew and gentile, in an identical manner, the 
reality is that the law’s impact falls on the minority. 
The majority needs no protection against discrimina­
tion and if it did, a referendum might be bothersome 
but no more than that. . . . §137 places special burdens



2 2

on racial minorities within the governmental process.
393 U.S. at 391. (emphasis added)

The court below relied on the quoted passage in finding 
that “here, as in the Hunter case, the impact of the law 
falls upon minorities.” Appendix pp. 175, 176. Article 34, 
like the Hunter measure, is neutral on its face with regard 
to race. But here as in the previous case it is principally 
one group—the racial minority-—which actually feels the 
burden of the measure. Hunter commands the invalidation 
of an enactment which has racially discriminatory effects, 
without requiring a showing of discriminatory motivation 
for the enactment. We submit that this Court should affirm 
the District Court’s proper application of that recently an­
nounced constitutional mandate.

Neither this Court nor California itself is a stranger to 
attempts to cloak discriminatory legislation in superficially 
neutral terms. In Reitman v. Mulkey, 387 U.S. 369 (1967), 
this Court found both discriminatory purpose and effect, 
and held the state constitution’s guarantee of the freedom 
to sell property invalid as a substantial state involvement 
in private discrimination. 387 U.S. at 378. The message of 
Reitman is clear: superficially non-discriminatory statu­
tory language will be disregarded where the full facts indi­
cate that the statute visits hardship on a racial minority. 
Cf. Tick Wo v. Hopkins, 118 U.S. 357, 374 (1886).

As a California constitutional amendment adopted by 
initiative and limiting equal housing opportunities, Propo­
sition 10—the electoral version of Article 34—strongly re­
sembles Proposition 14, the measure invalidated by this 
Court in Reitman. The arguments advanced by official 
proponents of Proposition 14 sounded themes of “the right 
to sell or rent [the owner’s] property as he chooses”, as­
sured by means of a measure that “will require the state 
to stay neutral,” and urged the electorate to “vote for free­



23

dom.” 22 The California court characterized such arguments 
as an invitation to racial discrimination thinly disguised 
“by the ingenuity of those who would seek to conceal it 
by subtleties and claims of neutrality,” Mulkey v. Reitman, 
50 Cal. Eptr. 881, 890, 413 P.2d 825 (1966). The official 
arguments in favor of Proposition 10 are strikingly similar. 
That measure’s advocates advanced it as “neither for nor 
against public housing,” but as a means to “restore to the 
citizens . . . the right to decide whether public housing is 
needed or wanted,” and invoked the mantle of “the demo­
cratic process of government.” Appendix at 50, 51, 52. 
Here as in the case of Proposition 14, this Court should 
look beyond the proponents’ professed concern for “self- 
determination.” The benefits of the alleged “self-deter­
mination” and “democratic process” embodied in Article 
34 are available only to the majority, at the expense of a 
racial minority oppressed thereby.

The inference of discriminatory motivation is not, how­
ever, essential to showing that Article 34 sets up an un­
constitutional scheme. As the Court below properly held, 
“Certainly, Hunter does not demand a showing of improper 
motivation.” Appendix p. 177. Once Article 34’s dis­
criminatory effect is exposed, Hunter clearly controls and 
Article 34 must fall on equal protection grounds. Since 
measures designed to benefit the poor are of substantial 
and particular importance to racial minorities, obstacles 
to the construction of low-income housing particularly 
affect these minorities. As a consequence Article 34 detri­
mentally affects blacks and Mexican-Americans far more 
severely than whites.

22 Proposed Amendments to Constitution, Propositions and Pro­
posed Laws, Together With Arguments. (To be submitted to the 
Electors of the State of California at the General Election Tuesday, 
November 3, 1964.)



24

Article 34 by its terms discriminates on tbe basis of 
wealth. The court below found the evidence of the correla­
tion between poverty and race so convincing that it entered 
summary judgment in part on the ground that wealth-based 
discrimination amounted to racial discrimination.23

Beyond the existence of the race-poverty correlation in 
Santa Clara and San Mateo Counties lies the pattern, 
widely noticed in recent years, of a similar correlation 
across the nation. The National Commission on Urban

23 The District Court noted in its Opinion:
“That minority groups comprise “the poor” is increasingly 

clear. In his affidavit, Mr. Franklin Lockfeld, Senior Planner 
for the Santa Clara County Planning Department stated: 
‘The low-income areas are closely related to the areas of con­
centration of minority residents and high income areas are 
closely related to the nearly all white sections of the commu­
nity. . . .  In 1960, only 5% of the units occupied by white- 
non-Mexican-Americans were in dilapidated or deteriorated 
condition, while 23% of the units occupied by Mexican-Ameri­
cans and 20% of the units occupied by non-whites were in 
dilapidated or deteriorated condition. Minorities were thus 
over represented in the less than standard housing by greater 
than four to one, and occupied nearly one-third of the de­
teriorating and dilapidated housing in the County in I960.’ ” 
App. p. 176 n. 2.

See also Affidavit of Dovie Ruth Wylie, Planner with the San 
Mateo County Planning Commission, expressing the informed opin­
ion that there is a strong relationship between minority racial 
status and poverty in San Mateo County. App. p. 147-148. This 
view was uncontradicted below.

And see Declaration of Attorney Andrew H. Field, President of 
Fair Housing Council in San Mateo County: “ . . . discrimination 
in housing in San Mateo County on the basis of race and ethnic 
background prevails throughout the housing industry. . . . The 
major method by which laws against open discrimination are 
evaded is by making most housing in San Mateo County eco­
nomically beyond the means of most members of racial minority 
groups.” App. p. 132-133.



25

Problems (Douglas Commission) summarized the situation 
in blunt terms:

Most important, poverty families in substandard hous­
ing have a high correlation with race. If you are poor 
and nonwhite and rent, the chances are three out of 
four that you live in substandard housing. B uilding  
t h e  A merican C ity , Report of the National Commis­
sion on Urban Problems (1968), p. 10.24 *

Other studies have also concluded that the poor tend to 
be members of a racial minority, and vice versa. The 
National Advisory Commission on Civil Disorders (Kerner 
Commission) traced the same statistical correlations. 
R eport oe th e  N ational A dvisory Commission  on C ivil  
D isorders (Bantam Ed. 1968), p. 258. Federal courts have 
frequently taken note of this correlation.26 In light of the 
wide recognition conferred upon the race-poverty corre­
spondence, it would appear undeniable that measures

24 The Commission also notes, “ . . . the incidence of poverty 
is much higher among non-whites than among whites. In 1967, 
41 per cent of the non-white population was poor, compared with
12% of the white population. Non whites thus constitute a far 
larger share of the poverty population (31%) than of the American 
population as a whole (12%). Moreover, the non white propor­
tion of the poverty population has been increasing, slowly but 
steadily.” Id. p. 45.

26 See, e.g., Southern Alameda Spanish Speaking Organization 
v. City of TJnion City, 424 F. 2d 291, 296: “ . . . low-income 
families, who usually—if not always—are members of minority 
groups.”

Hobson v. Hansen, 269 F. Supp. 401, aff’d sub nom. Smuck v. 
Hobson, 408 F. 2d 175: “ . . . for a majority of District schools 
and school children race and economics are intertwined: when one 
talks of poverty or low income levels one inevitably talks mostly 
about the Negro.” 269 F. Supp. at 454.

Banjel v. City of Lansing, 293 F. Supp. 301 (W.D. Mich. 1968), 
rev’d on other grounds, 417 F. 2d 231 (6th Cir. 1969), found “a 
strong relationship between race and poverty,” 293 F. Supp. at 303.



2 6

burdensome to the poor cut with special cruelty at blacks, 
Mexican-Americans, and other minorities. Article 34 is 
such a measure. We submit that the findings of the District 
Court, which was particularly familiar with these localities, 
of a racially discriminatory effect, were wholly proper.

B. The Unequal Burden of Article 34 Is B ut One Aspect 
of a Pervasive Pattern of Racial Discrim ination. This 
Pattern Perpetuates Residential Segregation and Dis- 
crim inatorily Denies to M inorities a W ide Range of 
O pportunities.

The racial effects of Article 34 with respect to low rent 
housing cannot be adequately considered apart from the 
broader patterns of racial discrimination in housing 
throughout California and across the nation. Article 34 
is yet another example of the numerous ways in which 
blacks, Mexican-Americans, and other minority groups are 
denied equal opportunities in housing. Considered in this 
light, each discriminatory device (whether by design or 
otherwise) contributes significantly to the advancing evil 
which this lawsuit seeks in small part to redress: a society 
presently segregated and becoming ever more so.26 More 
specifically, the effect of each discriminatory device for 
blacks and other minorities is to limit their mobility, to 
restrict their employment, educational and recreational 
opportunities, and to increase the cost and decrease the 
quality of the housing that remains open to them. Each 
discriminatory device reinforces the effectiveness of every 
other discriminatory device. Their impact on black and 
minority persons is cumulative and devastating.

26 See Report of the National Advisory Commission on Civil 
D isorders (K erner Commission) (Bantam Ed. 1968), p. 1.



27

The racial prejudices that fueled the Proposition 14 
(former Art, 1 §26, Calif. Const.) campaign27 have left a 
bitter legacy in California and contributed to the “tax­
payers’ revolt” as regards public housing and other pro­
jects widely perceived as of special benefit to minorities. 
This “revolt” has made prior referendum approval for 
any such project extremely difficult to secure. (See Brief 
of Appellant Shaffer in No. 226 at 32, n. 20). Although the 
open bias exhibited while Proposition 14 was in effect28 has 
largely ended, these discriminatory practices have again 
became covert. Blacks and other minorities in California 
consequently cannot compete on an equal basis for housing

27 See Affidavits in Support of Motion for Summary Judgment, 
App. pp. 125-136.

28 See, for example, Affidavit of Elaine Eisenberg, Member of 
San Mateo County Human Relations Commission, Appendix pp. 
125-126 :

“. . . After Proposition 14 was passed, . . . attempts were made 
to find housing for black families.

“Common reactions from realtors and homeowners in the 
County was ‘wouldn’t they be happier with their own people,’ 
‘I will show you where blacks can rent—in black ghetto areas,’ 
‘I personally have no bias, but my neighbors would object,’ 
‘my other tenants would move out,’ or flat ‘no’s.’ These dis­
criminatory attitudes were and still are widespread through­
out the County.

“The emphasis was always on finding houses and apartments 
to rent, because minority persons did not have enough money 
to buy homes. . . .

“There has been no real change in attitude, even now with 
Proposition 14 off the books. . . .

“When Proposition 14 was in effect, I received many threat­
ening calls from persons who did not want equal opportunity 
in housing, and blacks received flat denials when they at­
tempted to find houses; while this overt prejudice is not as 
apparent today, the underlying discrimination is. The prac­
tices are more subtle, and evasive, but the result is the same. 
. . . The desire to keep blacks with money out of white 
neighborhoods is even stronger when the blacks are persons 
of low income. The housing problem today is critical.” (Em­
phasis added)

This affidavit was uncontradicted.



2 8

in the private market. Cf. Norwalk CORE v. Norwalk Re­
development Agency, 395 F.2d 920, 931. For many of them, 
low income public housing represents their only hope for 
decent, safe and sanitary housing.29

Nor is California unique for the pervasiveness of its 
housing discrimination. Across the land “real estate brok­
ers and mortgage lenders are largely dedicated to the main­
tenance of segregated communities.” Reitman v. Mulkey, 
supra, at 381 [Douglas, J., concurring]. Restrictive “neu­
tral” zoning ordinances exclude minority groups. See, 
e.g., Sager, Tight Little Islands: Exclusionary Zoning, 
Equal Protection, and the Indigent, 21 S tax . L. R ev. 767 
(1968). Discriminatory private marketing practices, Jones 
v. Alfred H. Mayer Co., 392 U.S. 409 (1968); Lee v. Southern
Home Sites Corp., -----  F.2d ——- (5th Cir. No. 28167,
July 13, 1970) are widespread. Public agencies have been 
found to perpetuate segregation in administration of site 
location in public housing projects, Gautreaux v. Chicago 
Housing Authority, 296 F. Supp. 907 (N.D. 111. 1969); Hicks 
v. Weaver, 302 F. Supp. 619 (E.D. La, 1969), in relocating 
displacees, Norwalk CORE v. Norwalk Redevelopment 
Agency, supra; and in misuse of regulatory procedures to 
prevent the construction of housing for blacks, Kennedy
Park Homes Association v. City of Lackawanna, -----  F.
Supp. —— (W.D.N.Y. August 13, 1970) (expedited appeal 
pending, No. 35320, 2nd Cir.).

One final variety of devices that effectively perpetuate 
residential segregation attempts to conceal the discrimina­
tory object behind a “democratic” referendum. See Hunter 
v. Erickson, supra, and Reitman v. Mulkey, supra, invali­
dating respectively the use and the product of such refer­
enda. The lower court cases upholding the use of referenda,

29 See Affidavit of William G-. Weman, Executive Director of the 
Housing Authority of San Mateo County, Appendix pp. 122-124.



29

on which Appellant Shaffer heavily relies,80 are all dis­
tinguishable. In Ranjel v. City of Lansing, 417 F.2d 321 
(6th Cir. 1969), cert. den. 397 U.S. 980 (1970), the Sixth 
Circuit reversed a District Court decree enjoining such a. 
referendum. The Ranjel situation differs fundamentally 
from the case at bar in that the proposed referendum there 
was a subsequent referendum in review of a legislative 
decision relating to a zoning change which would permit 
a low rent development. In Southern Alameda Spanish 
Speaking Organisation v. City of Union City, 424 F.2d 291 
(1970), the Ninth Circuit refused to nullify the result of a 
referendum cancelling a similar zoning change. But as in 
Ranjel, the referendum in question was of the ordinary 
type, subsequent to the legislative action reviewed. In a 
third case, Spaulding v. Rlair, 403 F.2d 862 (1968), the 
Fourth Circuit refused to bar the submission of a state 
open housing enactment to the electorate for approval or 
rejection by referendum. Here again, the constitutional 
challenge was directed at a subsequent referendum, which 
was a mere repealer, not a bar to subsequent action, as in 
Hunter, Reitman and this case. The Fourth Circuit merely 
held that fair housing legislation was subject to the same 
review by referendum as all other state legislation, and 
was at pains to point out that the Maryland referendum 
had no future effect, 403 F. 2d at 864. The gravamen of 
appellee’s position here is that Article 34 does have pros­
pective effect, and that it applies an extraordinary require­
ment of prior review which does not (unlike the Maryland 
provision) apply generally to other legislation. In none 
of these three cases did the referendum force future housing 
measures to run a special gauntlet.

The cases just discussed do indicate how widely the 
referendum device has been used to exclude blacks and 30

30 Brief of Appellant Shaffer in No. 226 at 58-60.



30

other minorities from predominantly white areas like San 
Mateo and Santa Clara Counties. To a great extent, 
then, measures like Article 34 which raise insuperable 
obstacles to low rent housing are in effect integral parts 
of a nationwide housing pattern (not everywhere inten­
tionally contrived) that perpetuates residential segrega­
tion by race.

The analogy between the housing area and other im­
portant fields is instructive. There, too, legislation and 
constitutional litigation have all hut eliminated the gross 
forms of open discrimination by race. But in those fields, 
as in housing, a whole range of devices superficially neutral 
hut covertly discriminatory has been developed as a result 
of resourceful manipulation and the “accidental” workings 
of economic realities.81

81 “Freedom of choice” school enrollment plans, Green v. New 
Kent County School Board, 391 U.S. 430 (1968) ; and dual school 
systems within “desegregated” districts, Alexander v. Holmes, 396 
U.S. 19 (1969), are among those devices to resist school integra­
tion which have been recently struck down. In the voting rights 
area, grandfather clauses fell long ago, Guinn v. United States, 
238 U.S. 347 (1915); but more recent and subtler devices never 
cease coming to light, including stringent and discriminatorily 
applied literacy tests, South Carolina v. Katzenbach, 383 U.S. 301 
(1966); Louisiana, v. United States, 380 U.S. 145 (1965), cf. Vot­
ing Eights Act of 1965 (42 U.S.C. §1973), Voting Eights Act 
Amendments of 1970 (42 U.S.C. §§1973b et seq.) ; poll tax and 
other property requirements, Harper v. Virginia State Board of 
Elections, 383 U.S. 663 (1966), Cipriano v. City of Houma, 395 
U.S. 701 (1969), and political gerrymanders, Gomillion v. Light- 
foot, 364 U.S. 339 (1960). Discriminatory denials of equal employ­
ment opportunity have been recognized and enjoined on statutory 
grounds where the denials resulted from the application of super­
ficially neutral seniority systems, Local 189, United Papermakers 
and Paperworkers v. United States, 416 F. 2d 980 (5th Cir. 1969), 
Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968), 
or test and diploma requirements, Arrington v. Massachusetts Bay 
Transportation Authority, 306 F. Supp. 1355 (D. Mass. 1969), 
contra Griggs v. Duke Power Co., 420 F. 2d 1225 (4th Cir. 1970), 
cert, granted 399 U.S. 926 (1970).



31

The relationship between housing and such opportunities 
as education, local voting rights, and employment is 
significant. Full enjoyment of equality in these crucial 
fields depends to a large extent on the availability of ap­
propriate housing. This Court has previously invalidated 
racially discriminatory measures cloaked in the robes of 
democratic procedures and falsely “neutral” regulatory 
measures. The Court should in this case invalidate Article 
34’s discrimination against equal access to housing.

C. The Racial Classification Inherent in Article 34  Cannot 
Be Constitutionally Justified. It Should Be Declared  
Invalid Under A ppropriate Equal Protection Stan­
dards.

A governmental classification which works to the dis­
advantage of a racial minority is subject to an effectively 
insuperable burden of justification. Because historically the 
central purpose of the Fourteenth Amendment is to protect 
racial minorities, McLaughlin v. Florida, 379 U.S. 184, 
192 (1964), an official racial classification “even though 
enacted pursuant to a valid state interest, . . . .  will be up­
held only if it is necessary, and not merely rationally re­
lated to the accomplishment of a permissible state policy.” 
Id. at 196 (emphasis added). This Court reiterated the 
principles governing such cases in invalidating Akron’s 
very similar referendum requirement in Hunter v. 
Erickson:

Because the core of the Fourteenth Amendment is the 
prevention of meaningful and unjustified official dis­
tinctions based on race, Slaughter-House Cases, 16 
Wall 36, 71 (1873); Strauder v. West Virginia, 100 
U.S. 339, 344-345 (1880); McLaughlin v. Florida, 379 
U.S. 184, 192 (1964); Loving v. Virginia, 388 U.S. 1, 10 
(1967), racial classifications are “constitutionally sus­
pect,” Bolling v. Sharpe, 347 U.S. 497, 499 (1954), and



32

subject to the “most rigid scrutiny,” Korematsu v. 
United States, 323 TT.S. 214, 216 (1944). They “bear 
a far heavier burden of justification” than other 
classifications, McLaughlin v. Florida, 379 U.S. 184, 
194 (1964). Hunter v. Erickson, 393 U.S. at 392.

In fact, once the racial classification has been found, no 
state action has ever been found to meet this extraordinary 
burden of justification.

Certainly California has presented no “compelling state 
interest” sufficient to justify the racial distinction worked 
by Article 34. Yet only such an interest could support 
the measure’s constitutionality. Shapiro v. Thompson, 394 
U.S. 618, 633-634 (concurring opinion of Justice Stewart) 
and 659 (dissenting opinion of Justice Harlan). The mere 
fact that the Article was adopted by popular referendum 
is no basis for finding it valid. “A citizen’s constitutional 
rights can hardly be infringed simply because a majority 
of the people choose that it be,” Lucas v. Colorado General 
Assembly, 377 U.S. 713, 736-737 (1964). Lucas struck down 
an attempt, by means of popular vote adopting a state 
constitutional amendment, to validate an apportionment 
scheme which would have violated federal constitutional 
standards. Surely the right to be free from state supported 
racial discrimination is no less fully protected than the 
right to an undiluted vote. Nor can Article 34 be justified 
because it submits all future questions to popular decision. 
As this Court stated in Hunter v. Erickson, “The sover­
eignty of the people is itself subject to those constitutional 
limitations which have been duly adopted and remain un­
repealed.” 393 U.S. at 392.

We have already presented our reasons for contending 
that California has no rational or reasonable interest in



33

the poverty-based scheme of Article 34.32 We submit that 
these same reasons apply even more forcefully to show 
that there was no adequate justification for this scheme’s 
racially discriminatory effects. In the absence of sufficient 
justification, Article 34 invidiously denies to minorities the 
Equal Protection of the laws guaranteed by the Fourteenth 
Amendment, and should be declared unconstitutional.

III.

By Effectively Denying to Negroes Access to Housing 
Equal to That Available to White Persons, Article 34  
Imposes on Negroes a Badge and Incident of Slavery, 
and Constitutes A Denial of the Equal Right to Purchase, 
Lease and Hold Real Property, Mandated by 42 U.S.C. 
§1982.

On its face, Article 34 creates a classification on the basis 
of wealth. It places a burden on the availability of subsi­
dized low rent housing—the only type of decent housing 
which many poor persons can afford—while placing no simi­
lar limitation on those whose income permits them to pur­
chase housing in the private market.33 Further, the close 
correlation between proverty and minority group status 
results in Article 34 having a racially discriminatory im­
pact. This results in denying to Negroes equal opportunity 
to “lease . . . real . . . property,” 42 U.S.C. §1982, and in 
“herd[ing] men into ghettos, . . .  a relic of slavery,” Jones 
v. Alfred H. Mayer Co., 392 U.S. 409, 442, in violation of 
the Thirteenth Amendment.

32 See Part I, supra.
33 This is true although private housing is often likewise subsi­

dized, in a less obvious manner, by federal housing programs. 
See N. 9, supra.



34

We do not contend that section 1982 or the Thirteenth 
Amendment compel government to provide funds to poor 
Blacks to enable them to purchase any home which a white 
man, however wealthy, may purchase. However, given the 
fact that Congress has determined that it is necessary to 
provide low rent housing for the poor, 42 U.S.C. §§1401, 
1441, which, as was found by the district court, “will be 
predominantly occupied by Negroes or other minority 
groups” App. p. 174, the question becomes whether the 
state can grant to the white majority the right to exclude 
such housing, and the persons who will live in it, from their 
communities, consistent with the Thirteenth Amendment.

In Jones v. Alfred H. Mayer Co., supra, this Court, 
declared:

[Tjhis Court recognized long ago that, whatever else 
they may have encompassed, the badges and incidents 
of slavery—its “burdens and disabilities”—included 
restraints upon “those fundamental rights which are 
the essence of civil freedom, namely, the same right 
. . .  to inherit, purchase, lease, sell and convey property 
as is enjoyed by white citizens.” Civil Rights Cases, 
109 U.S. 3, 22. Just as the Black Codes, enacted after 
the Civil War to restrict the free exercise of those 
rights, were substitutes for the slave system, so the 
exclusion of Negroes from white communities became a 
substitute for the Black Codes. And when racial dis­
crimination 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 441-443 
(footnote omitted).

Under the facade of encouraging local democracy, through 
referendum, Article 34 permits precisely what the op­
ponents of the Thirteenth Amendment and the statutes 
enacted under it contended it would prohibit. It gives white



35

citizens, who constitute the majority of the communities 
here involved, the ability “to determine who [would] be 
members of [their] communitfies] . . . 34

It requires little investigation or understanding to see 
the vote against public low rent housing for what it is—a 
vote to keep blacks out of the community, or at least to keep 
them in the deteriorating ghetto housing to which the 
private housing market restricts them. The court below 
had no difficulty reaching the conclusion that the impact of 
Article 34 “falls upon minorities.” App. p. 176, esp. N. 2. 
That housing discrimination limits the ability of poor 
blacks, and even those with sufficient income, to find decent 
housing, is clear in San Mateo and Santa Clara Counties,35 36 
as it is nationwide.86

A private housing developer is barred by Section 1982 
from refusing to sell to Negroes because the majority of 
his white purchasers do not want Negro neighbors. Jones 
v. Alfred H. Mayer Co., supra. Here the majority speaks 
through the ballot, rather than by an agent, but its message 
is the same. If the Thirteenth Amendment and section 
1982 do not extend to prohibit this, then their words are 
written in sand.

At the very least, the freedom that Congress is em­
powered to secure under the Thirteenth Amendment 
includes the freedom to buy whatever a white man can 
buy, the right to live wherever a white man can live. 
If Congress cannot say that being a free man means 
at least this much, then the Thirteenth Amendment 
made a promise the Nation cannot keep.37

34 Cong. Globe, 39th Cong., 1st Sess., 498; quoted in Jones v. 
Alfred H. Mayer Co., supra at 433.

35 See NN. 23, 28, supra.
36 See N. 24, supra, and accompanying text.
37 Id. at 443.



36

CONCLUSION

The Court should hold that Article 34 of the California 
Constitution is unconstitutional as a denial of equal pro­
tection to the poor and to members of racial minorities, 
and as an encouragement of private discrimination and a 
denial of equal opportunity for Negroes to secure decent 
housing. The decision below should be affirmed.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, I I I  
M ichael  D avidson 
J effry  A. M in tz

10 Columbus Circle, Suite 2030 
New York, New York 10019
Attorneys for the NAACP Legal 
Defense and Educational Fund, 
Inc. and the National Office 
for the Rights of the Indigent*

* In recent years, it has become common for law students and 
recent law school graduates to assist in public interest legal work, 
and the custom has developed of recognizing the efforts of those 
who are not yet admitted to the bar. In keeping with this custom, 
counsel for the amici acknowledge with appreciation the able as­
sistance in the preparation of this brief of Morris J. Bailer, 
Harvard Law School Class of 1970, a Reginald Heber Smith fellow 
assigned to the National Office for the Rights of the Indigent.



MEILEN PRESS IN C. —  N. Y. C. =«81§^» 2)9