Cohen v. Public Housing Administration Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    I n  THE

(Eimrt nf tty llmtpfr i^iata
October Term 1958 

No................

Q ueen  C o h e n ,

•— v .

Petitioner,

P ublic  H ousing  A d m in istra tio n , et al.,

Respondents.

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

FOR THE FIFTH CIRCUIT

T hurgood M arsh all  
C onstance B ak er  M otley 

10 Columbus Circle 
New York 19, N. Y.

A. T . W alden

28 Butler Street, N. E. 
Atlanta 3, Georgia
Attorneys for Petitioner

Lawyers Press, I nc., 214 William St., N. Y. C. 38; ’Phone: BEekman 3-2300



SUBJECT INDEX
PAGE

Opinions B elow ....................................................................  1

Jurisdiction .............................................................-.........  2

Questions Presented ........................................................  2

Constitutional And Statutory Provisions Involved..... 2

Statement Of The Case.......................................................  3

Reasons Relied On For Allowance Of W rit .....................  9

C o n c l u s io n ............................................................................................. 19

A p p e n d ix ...............................................................................................  20

T able of Cases

Barnes v. City of Gadsden, Alabama (U. S. D. C. N. D.
Ala, 1958), Civil Action No. 1091, 3 Race Relations
Law Reporter 712 (1958) ...........................................-  10

Barrows v. Jackson, 346 U. S. 249 ................................. 9,18
Bolling v. Sharpe, 347 U. S. 497 .....................................  18
Brown v. Board of Education of Topeka, 349 U. S.

294 ..................................................................................  17
Buchanan v. Warley, 245 TJ. S. 60 ................................. 9,18
Bush v. Orleans Parish School Board (E. D. La. 1956),

138 F. Supp. 337, aff’d (5th Cir. 1957), 242 F. 2d 156, 
cert. den. 354 U. S. 921....................................... -........  13

Cohen v. Public Housing Administration (5th Cir.
1958), 257 F. 2d 7 3 ..................................................... -  1,5

County School Board of Arlington Co. Va. v. Thomp­
son (4th Cir. 1958), 252 F. 2d 929 ............................ 13,17



11

Detroit Housing Commission v. Lewis (6th Cir. 1955),
226 F. 2d 180.................................................................. 10

Gibson v. Board of Public Instruction of Dade County 
(5th Cir. 1957), 246 F. 2d 913................................... 13,14

Heyward, et al. v. Housing and Home Finance Agency, 
et al., unreported (U. S. D. C. D. C.), Civil Action
No. 3991-52, decided May 28, 1953 ............................... 3,11

Heyward, et al. v. Public Housing Administration
(D. C. Cir. 1954), 214 F. 2d 222 ................................... 3,11

Heyward, et al. v. Public Housing Administration, et
al. (S. D. Ga. 1955), 135 F. Supp. 217........................4,12

Heyward, et al. v. Public Housing Administration, et
al. (5th Cir. 1956), 238 F. Supp. 689 ......................4,12,13

Heyward, et al. v. Public Housing Administration, et
al. (S. D. Ga. 1957), 154 F. Supp. 589 ........................ 1,4

Housing Authority of City & County of San Francisco 
v. Banks, 120 Cal. App. 2d 1, 260 P. 2d 668, cert. den.
347 U. S. 974 .................... ........................................... .. 10

Hurd v. Hodge, 334 U. S. 2 4 ...........................................9,18

Johnson v. Levitt & Sons, Inc. (E. D. Pa. 1955), 133 F.
Supp. 114 ............................... ...... ................................. 10

Jones v. City of Hamtrainck (S. D. Mich. 1954), 121 F. 
Supp. 123 .......................................................................  10

Ming v. IJorgan, Superior Court, Sacramento County, 
California, No. 97130, decided June 23, 1958, 3 Race 
Relations Law Reporter 693 (1958) .......................... 10

New York State Commission Against Discrimination v. 
Pelham Hall Apartments, 170 N. Y. S. 2d 750 (1958) 10

School Board of City of Charlottesville, Va. v. Allen 
(4th Cir. 1956), 240 F. 2d 59, cert. den. 353 U. S. 910

13,14,17,18

PAGE



Shelley v. Kraemer, 334 U. S. 1 ..................................... 9,18
Sipuel v. Board of Regents, 332 U. S. 631...................... 14

Tate v. City of Enfaula, Alabama (U. S. I). C. M. D.
Ala. 1958), Civil Action No. 1442-N, nnreported, 
decided August 6, 1958 ...............................................10-11

Vann v. Toledo Metropolitan Housing Authority (N. D.
Ohio 1953), 113 F. Supp. 210.... ..................................  10

S t a t u t e s :

Title 28, United States Code, §1254(1) ............................ 2

Title 28, United States Code, §1331.................................  3, 4
Title 28, United States Code, §1343(3) ............................ 3

Title 42, United States Code, §1410(g) ........................2, 4, 6

Title 42, United States Code, §1415(8) ( a ) ................ —-  2, 6
Title 42, United States Code, §1415(8) ( b ) .....— ........... 2, 6

Title 42, United States Code, §1415(8) (c) ....................2, 4, 6

Title 42, United States Code, §1401, et seq...................... 5
Title 42, United States Code, §1402(1) ...........................  2, 6

Title 42, United States Code, §1402(14) .......................... 2

Title 42, United States Code, §1982 .................................  2
Title 42, United States Code, §1983 ..................... - ........ -  2, 4

Oth e r  A u thorities  :

Johnstone, The Federal Urban Renewal Program, 25 
University of Chicago Law Review 301 (1958) .......10,11

I ll
PAGE



I n  t h e

Supreme (tart ni %  United States
October Term 1958 

No................

Q u een  C o h e n ,
Petitioner,

P ublic  H ousing  A d m in istra tio n , et al.,

Respondents.

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

FOR THE FIFTH CIRCUIT

Petitioner prays that a "Writ of Certiorari issue to re­
view the judgment of the United States Court of Appeals 
for the Fifth Circuit,

Opinions Below

The opinion of the United States Court of Appeals for 
the Fifth Circuit is reported. Cohen v. Public Housing Ad­
ministration, et al., 257 F. 2d 73 (1958). The opinion of 
the United States District Court for the Southern District 
of Georgia, Savannah Division, is also reported. Heyward, 
et al. v. Public Housing Administration, et al., 154 F. Supp. 
589 (1957). Copies of these decisions are set forth in 
Appendix A and the printed record.



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to the 
provisions of Title 28, United States Code, §1254(1).

The opinion of the United States Court of Appeals for 
the Fifth Circuit was rendered on June 30th, 1958. Peti­
tion for rehearing was denied on August 11, 1958.

Questions Presented

1. Whether a plaintiff qualified for admission to feder­
ally-aided public housing lacks standing to sue to enjoin 
the policy of limiting certain projects to white and others 
to Negro occupancy, which derives from local application 
of the Public Housing Administration’s racial equity re­
quirement, simply because the court, weighing disputed 
testimony, found that she failed to prove formal applica­
tion to and express exclusion from a particular project?

2. Whether there is any constitutional and/or statutory 
duty on the Public Housing Administration to refrain from 
approving and aiding racially segregated public housing 
projects, and to require that federally-aided public housing 
be made available on a non-discriminatory basis in accord­
ance with the statutory preferences for admission?

Constitutional And Statutory Provisions Involved

This case involves the due process clause of the Fifth 
Amendment to the Constitution of the United States and 
the due process and equal protection clauses of the Four­
teenth Amendment thereto.

In addition, the following sections of Title 42, United 
States Code are involved: 1402(1), (14); 1410(g); 1415(8) 
(a), (b) and ( c ) ; 1982; 1983.



3

Also involved is the Public Housing Administration’s 
regulation requiring racial equity. These statutory provi­
sions and this regulation are set forth in Appendix B.

Statement Of The Case

This suit was originally brought in the United States 
District Court for the District of Columbia by the filing of 
a complaint against the Public Housing Administration in 
September 1952 in an attempt to enjoin the expenditure of 
federal funds for the construction of a project on a Negro 
residential site which would be limited to white occupancy. 
The district court dismissed the suit on its merits on the 
ground that separate and equal facilities were being pro­
vided for Negroes. Heyward, et al. v. Housing and Home 
Finance Agency, et al., Civil Action No. 3991-52 unreported 
(copy of opinion of May 8, 1953 set forth in Appendix C).

On appeal to the United States Court of Appeals for the 
District of Columbia Circuit the dismissal was affirmed on 
the ground that the Housing Authority of Savannah, 
Georgia was a conditionally necessary party and plaintiffs 
should therefore bring the suit where both parties could be 
brought before the court. Heyward, et al. v. Public Housing 
Administration, 214 F. 2d 222 (1954).

Suit was thereafter filed in May 1954 in the United States 
District Court for the Southern District of Georgia, Savan­
nah Division, against the Public Housing Administration 
(PHA), its Atlanta Field Office Director, the Housing Au­
thority of Savannah, Georgia (SHA), its members and 
executive director. Jurisdiction was invoked pursuant to 
Title 28, United States Code, §§1331 and 1343(3) (R. 2-3). 
The district court dismissed the complaint on SHA’s motion 
to dismiss and PHA’s motion for summary judgment on 
the ground that separate but equal facilities was still the



4

law applicable to this case and on the ground that PH A is 
not involved in the controversy. Heyward, et al. v. Public 
Housing Administration, et al., 135 F. Supp. 217 (1955).

An appeal was taken from this judgment to the court 
below where it was reversed in part and affirmed in part. 
Heyward, et al. v. Public Housing Administration, et al., 
(5th Cir. 1956) 238 F. 2d 689. Affirmance related only 
to dismissal of the complaint as to the Atlanta Field Office 
Director of PHA. In reversing, the court held that the 
complaint stated a cause of action within the provisions of 
Title 42, United States Code, §1983 and sufficiently alleged 
jurisdiction over PHA under Title 28, United States Code, 
§1331.

After a full trial on the merits, the district court dis­
missed petitioner’s case on the ground that the evidence 
failed to establish that she had made application for admis­
sion to any project and the undisputed testimony shows 
that she was not entitled to a statutory preference for ad­
mission. Title 42, United States Code, §1410(g) or 1415 
(8) (c). Heyward, et al. v. Public Housing Administration, 
et al., 154 F. Supp. 589 (1957).

Upon the second appeal to the court below it affirmed 
dismissal on the ground that since petitioner did not make 
application, she has no standing to sue. It ruled that 1) the 
district court’s pertinent finding that petitioner did not 
make application does not appear to be clearly erroneous 
as required for reversal by Rule 52(a), Federal Rules of 
Civil Procedure, 28 U. S. C. A.; 2) in the absence of any 
attempt to apply, there is no reasonably certain proof that 
petitioner actually desired in some earlier year to become 
a tenant in Fred Wessels Homes; 3) an application by peti­
tioner would not have been a vain act or the yielding to an 
unconstitutional demand.



5

However, the court below then held in the alternative that 
since this case involves voluntary segregation, such segre­
gation is not subject to constitutional attack. It ruled that 
both the pleadings and the proof denied segregation. It 
noted testimony of the executive director of SHA to the 
effect that “ in his opinion actual segregation is essential to 
the success of a program of public housing in Savannah” 
and ruled that,

“ If the people involved think that such is the case and 
if Negroes and whites desire to maintain voluntary 
segregation for their common, good, there is certainly 
no law to prevent such cooperation. Neither the Fifth 
nor the Fourteenth Amendments operates positively to 
command integration of the races, but only negatively 
to forbid governmentally enforced segregation.”

Cohen v. Public Housing Administration, et al., 257 F. 2d 
73, 78 (1958).

This decision was based upon the following facts appear­
ing in the record :

1. The housing program involved in this ease is low rent 
public housing provided for by the United States Housing 
Act of 1937, as amended.1 This is a program whereby the 
federal government, through PHA, and local public housing 
agencies established by law in the several states, enter into 
contracts for the construction, operation and maintenance 
of decent, safe and sanitary dwellings. These dwellings are 
available to only those families who, because of their low 
incomes, are unable to secure decent, safe and sanitary 
private housing at the lowest rates at which such private 
housing is being provided in the locality (R. 85). PHA and 
SHA have entered into contracts for construction, opera­
tion and maintenance of nine such public housing projects 
in the City of Savannah (R. 81).

1 Title 42, United States Code, §1401, et seq.



6

2. The record in this case discloses that petitioner meets 
the income requirements for admission which have been 
established by SHA and approved by PHA.2 (R. 133, 206. 
See Plaintiff’s Exhibit 10, Answer to Interrogatory No. 6.)

3. Petitioner was displaced from her home when a com­
mercial enterprise which had been located on the site of 
Fred Wessels Homes moved its business across the street 
to the site of petitioner’s former residence (R. 204-205). 
When petitioner received a thirty-day notice from her land­
lord to vacate, she went to the office of SHA which is lo­
cated in the Fred Wessels Homes, for the purpose of mak­
ing application for a family unit (R. 131).3 She was advised 
that the Fred Wessels project was not for Negro families 
(R. 133). She was not given a formal application blank. 
She was told to apply at Fellwood Homes, a Negro project 
(R. 133). At that time the buildings were completed but 
unoccupied (R. 135). Appellant desires to live in Fred 
Wessels Homes (R. 139). She is the mother of four chil­
dren, one of whom is in the armed services of the United 
States (R. 133).4 Her husband is employed and earns fifty 
dollars per week (R. 206).

4. The Director-Secretary of SHA insisted that peti­
tioner and other Negroes never applied for admission to 
Fred Wessels Homes. Upon the trial he was asked, “ Q. If 
a negro applied for admission to the Fred Wessels Homes

2 Title 42, United States Code, §§1402(1), 1415(8) (a).
3 Families having the greatest urgency of need are given prefer­

ence for admission by virtue of the provisions of Title 42, United 
States Code, §1415(8) (c). See also Title 42, United States Code, 
§1415(8)(b).

4 Families of servicemen have preference. Title 42, United States 
Code, §1410(g). See Annual Contributions Contract, Part II, Sec­
tions 206, 208, 209, Plaintiff’s Exhibit 1. PHA has the responsibility 
for seeing that the preferences are applied (R. 175).



7

would you put him in there? Is that what you are saying? 
A. No. He would be given consideration, but I don’t know 
what I would do. . . . Q. Are you saying you would admit 
negroes? A. I didn’t say that.” (E. 127)

5. The evidence shows that other Negroes also went into 
the office located in Fred Wessels Homes to apply for hous­
ing. Those who did so were assigned to Fellwood Homes. 
None was considered for admission or assigned to Fred 
Wessels Homes (E. 95-97).

6. Prior to the opening of Fred Wessels Homes for occu­
pancy, SHA publicly announced that this project would be 
for white occupancy (R. 112).

7. There is no central tenant application office in Savan­
nah. Applicants generally apply at the particular projects 
they desire to enter (R. 82). However, the ultimate deter­
mination as to the project in which the applicant family 
will reside remains with SHA (E. 96-97).

8. Limitation of certain projects to Negro occupancy and 
the limitation of others to white occupancy is approved by 
PHA through approval of SHA’s Development Programs 
which must reflect application of PHA’s racial equity re­
quirement (E. 54-55).5 PHA, by its administrative rules 
and regulations, requires that a local program “ reflect 
equitable provision for eligible families of all races deter­
mined on the approximate volume of their respective needs 
for such housing” (Plaintiff’s Exhibit 2, PHA Racial Pol­
icy). The need of the two races is determined primarily by 
the approximate volume of substandard housing occupied 
by each race (E. 91-92). Application of this formula re­

5 The two most recent, Development Programs were sent up to 
this Court in their original form. Plaintiff’s Exhibits 7 and 8. 
These programs designate the racial occupancy of each project.



8

suited in the present determination that equitable provision 
for Negro families in Savannah requires that they be pro­
vided with approximately 75% of the total number of fam­
ily units and that equitable provision for white families 
requires that they be provided with approximately 25% of 
the total number of family units (E. 106-107). However, 
Negroes presently occupy only 42.7% of the existing units 
and whites, because of the addition of the two former PHA 
owned defense housing projects to the public housing sup­
ply, presently occupy 57.3% of the existing units (R. 104). 
The Development Programs, when approved by PHA, be­
come a part of the contracts between PHA and SHA (R. 
178).

9. Once a determination is made as to the approximate 
per cent of the total number of units to be occupied by 
Negro and white families, PHA would object to a deviation 
from these percentages by SHA (R. 181). The Director- 
Secretary of SHA viewed the admission of Negroes to Fred 
Wessels Homes as resulting in a violation of PHA’s racial 
equity requirement (R. 121-122).

10. The most recently completed project in Savannah is 
Fred Wessels Homes which opened for occupancy in 1954 
(R. 188). This project has been built on a site located ap­
proximately seven blocks from the main business area of 
Savannah (R. 114). It contains 250 family units at a cost 
of approximately $2,800,000 (R. 113). Prior to construction 
of this project, the site was occupied by 250 Negro families 
and 70 white families (R. 102-103). This project has been 
limited to white occupancy (R. 103).

11. Petitioner did not join this suit as a named plaintiff 
until action was instituted against both PHA and SHA in 
Savannah (R. 137-138). When suit was filed in the District 
of Columbia the action was brought by 13 named plaintiffs



9

on behalf of themselves and others similarly situated. Fred 
Wessels Homes had not yet been constructed and the site 
occupants had not yet been displaced. When suit was re- 
instituted about two years later in Savannah, after the 
decision of the Court of Appeals for the District of Colum­
bia, only 4 of the original plaintiffs were named again as 
plaintiffs. These 4 were joined by 14 new plaintiff's suing 
on behalf of themselves and others similarly situated (R. 
1, 7). By this time, Fred Wessels Homes had opened for 
white occupancy (R. 188); 250 Negro families, including 
15 plaintiffs, had already been displaced and relocated (R. 
102-103, 116-118, 126). However, the majority of the dis­
placed Negro families had found housing on their own, had 
not accepted relocation assistance from SHA and had not 
accepted segregated Negro public housing (R. 88-89).

12. This case did not come to trial until 3 years after it 
had been instituted in Savannah. On the trial petitioner 
was asked over and over again by SHA’s counsel why she 
wanted to live in Fred Wessels Homes and whether she 
really wanted to live there. Her answers clearly indicate a 
genuine desire to live there. She has lived in the area all 
her life (R. 139-140).

Reasons Relied On For Allowance Of Writ

I. The Public Importance Of This Case.

This case reveals that despite decisions of this Court 
voiding legislative and judicial enforcement of residential 
racial segregation, Buchanan v. Warley, 245 U. S. 60; Shel­
ley v. Kraemer, 334 H. S. 1; Hurd v. Hodge, 334 U. S. 24; 
Barrows v. Jackson, 346 H. S. 249, the executive arm of 
the federal government, through an agency concerned with 
the provision of housing, has continued to approve, par­
ticipate in, and to finance the construction, operation and



10

maintenance of racially segregated housing developments. 
The Public Housing Administration has not only approved, 
participated in, and financed racially segregated public 
housing developments in the southern states but has done 
so in northern states as well. See e.g. Detroit Housing 
Commission v. Lewis (6th Cir. 1955), 226 F. 2d 180; Hous­
ing Authority of City & County of San Francisco v. Banks, 
120 Cal. App. 2d 1, 260 P. 2d 668, cert. den. 347 U. S. 
974; Jones v. City of Hamtramck (S. D. Mich. 1954), 121 
F. Supp. 123; Vann v. Toledo Metropolitan Housing Au­
thority (N. D. Ohio 1953), 113 F. Supp. 210.

PHA is only one of several federal housing agencies 
concerned with the provision of housing. The Federal 
Housing Administration and the Veterans’ Administration 
are also concerned with the provision of housing through 
the federal government’s mortgage insurance programs. 
These agencies are likewise involved in the development of 
racially segregated housing communities. See e.g., John­
son v. Levitt & Sons, Inc. (E. II. Pa. 1955), 131 F. Supp. 
114; New York State Commission Against Discrimination 
v. Pelham Hall Apartments, Inc., 170 N. Y. S. 2d 750 (1958); 
Ming v. Horgan, Superior Court, Sacramento County, 
California, June 23, 1958, No. 97130, 3 Race Relations Law 
Reporter 693 (1958).

In addition to PHA, FHA and VA, it now appears that 
the Urban Renewal Administration, the federal govern­
ment’s newest agency concerned with the provision of 
housing and the renewal of whole cities is now involved in 
the redevelopment of racially segregated housing communi­
ties. See Johnstone, The Federal Urban Renewal Program, 
25 University of Chicago Law Rev. 301, at 337-341 (1958). 
See, e.g., Barnes v. City of Gadsden, Alabama (U. S. D. C. 
N. D. Ala. 1958), Civ. No, 1091, 3 Race Relations Law Re­
porter 712 (1958); Tate v. City of Eufaula, Alabama (U. S.



11

D. C. M. D. Ala. 1958), Civil Action No. 1442-N, unreported, 
decided August 6, 1958.

The phenomenal growth and influence of federal agencies 
concerned with the provision of housing since the early 
1930’s makes manifest the role of the federal administrator 
in the housing market.6 Public housing, mortgaged insured 
housing, and urban renewal housing, where segregated 
throughout the United States, is supported by federal 
funds, powers and credits. Federal administrators have, 
therefore, become primary agents in the extension of segre­
gated living.

Whether there is any constitutional and/or statutory 
duty on the Public Housing Administration to refrain 
from approving, participating in, and financing racially 
segregated public housing projects and to require that 
federally-aided public housing be made available on a non- 
discriminatory basis in accordance with the statutory 
preferences for admission is an important question of fed­
eral law which has not been, but should be, settled by this 
Court.

When the instant case was before the United States Dis­
trict Court for the District of Columbia, Heyward, et al. 
v. Housing and Home Finance Agency, et al. (unreported, 
Civil No. 3991-52, opinion of May 8, 1953 in Appendix C), 
that court held that the federal government could provide 
public facilities on a separate but equal basis.

When an appeal was taken to the Court of Appeals for 
the District of Columbia, Heyward et al. v. Public Housing 
Administration, 214 F. 2d 222 (1954), that court did not 
rule upon the merits as the district court had but, never­
theless, did point out in its opinion that the PHA had ap­

6 Johnstone, The Federal Urban Renewal Program, 25 Univ. of 
Chicago Law Review. 301 (1958).



12

proved racial segregation in public housing in Savannah, 
Georgia.

When suit was then instituted in Savannah against both 
PHA and SHA, the district court there held that the sepa­
rate but equal doctrine applied to this case and dismissed 
the complaint, Heyward, et al. v. Public Housing Adminis­
tration, et al., 135 F. Supp. 217 (1955).

Upon the first appeal to the court below, Heyward, et al. 
v. Public Housing Administration, et al., 238 F. 2d 689 
(1956), it ruled that “ the complaint sets forth allegations 
which, if proven, would show a failure on the part of PHA 
to comply with the . . . statutory tenant selection policy, 
and this would constitute a violation of plaintiffs’ rights 
to due process under the Fifth Amendment” (at 697). That 
court also ruled that “at the time this action was filed the 
regulations of PHA required that any local program for 
the development of low-rent housing reflect equitable pro­
vision for eligible families of all races, but did not require 
that housing be made available on a non-segregated or non- 
discriminatory basis” (emphasis ours) (at 697). In addi­
tion to these rulings, the court said: ‘While it is true that 
PHA has not been charged by Congress with the duty of 
preventing discrimination in the leasing of housing project 
units, what these plaintiffs are saying in effect is that the 
federal agency is charged with that duty under the Fifth 
Amendment, and that that duty should be forced upon PHA 
by the courts through the medium of injunctive process” 
(at 696).

II. The Court Below Has Decided This Case In Conflict With 
Applicable Decisions Of This Court And Applicable Princi­
ples Established By Decisions Of This Court.

A. In the court below petitioner assigned as error the 
district court’s finding that she had not applied. She also 
contended that prior application is not a prerequisite to



13

the maintenance of this suit since her case is, that, although 
eligible for admission, she is not “permitted to make appli­
cation for any project limited to white occupancy.” Hey­
ward, et al. v. Public Housing Administration, et al. (5th 
Cir. 1956), 238 F. 2d 689, 698. Petitioner contends that 
a policy of segregation says, in effect, that she may not 
apply for a white project—that she may only apply for, 
would only be considered for admission to, and would 
only be assigned to, a Negro project, as occurred in the 
case of other Negroes who applied at Fred Wessels Homes 
(R. 95-96). Petitioner contends that since segregation is 
the announced policy (R. 112) application for admission 
to a particular white project, prior to reversal of this 
policy or a court injunction enjoining enforcement of the 
policy, would be a vain act, and equity does not require 
the doing of a vain act as a condition of relief. In so 
contending she relied upon the Fourth Circuit’s ruling in 
School Board of City of Charlottesville, Va. v. Allen (4th 
Cir. 1956), 240 F. 2d 59, cert. den. 353 U. S. 910, which 
was followed by the court below, itself, in Gibson v. Board 
of Public Instruction of Dade County (5th Cir. 1957), 
246 F. 2d 913. See, also, Bush v. Orleans Parish School 
Board (E. D. La. 1956), 138 F. Supp. 337, aff’d (5th Cir. 
1957), 242 F. 2d 156, 162, cert. den. 354 U. S. 921 and 
County School Board of Arlington County, Va. v. Thomp­
son (4th Cir. 1958), 252 F. 2d 929.

In the Charlottesville case the Fourth Circuit ruled:
Defendants argue, in this connection (Pupil Place­

ment Law), that plaintiffs have not shown themselves 
entitled to injunctive relief because they have not in­
dividually applied for admission to any particular 
school and been denied. The answer is that in view 
of the announced policy of the respective school boards 
any such application to a school other than a segre­



14

gated school maintained for Colored people would 
have been futile; and equity does not require the doing 
of a vain thing as a condition of relief (at 63-64).

The court below sought to distinguish the instant case 
from the Charlottesville case and the Gibson case on two 
grounds: 1) in each of those cases the plaintiffs had placed 
themselves on record as desiring practically the same 
relief as that sought from the court and 2) in each of 
the cases relied on by petitioner it was admitted that dis­
criminatory segregation of the races was being enforced 
by the defendant Board, while, . . .  in the present case, 
in both the pleadings and the proof, governmentally en­
forced segregation is denied.

If bringing the instant case in 1954 and pressing it 
over a period of more than four years does not place 
petitioner on record as desiring to be considered for ad­
mission and as desiring to be admitted to public housing 
without discrimination against her solely because of her 
race and color, then petitioner submits that she can con­
ceive of no more pointed way of putting herself on record 
as being opposed to racial segregation in public housing. 
This Court long ago overruled the contention that a Negro 
who seeks equal protection of the law must first make a 
prior demand upon the state for such equal protection 
and give the state an opportunity to act upon such demand 
before bringing suit. Sipuel- v. Board of Regents, 332 
U. S. 631.

Not only was the court below in error in stating cate­
gorically that the pleadings denied segregation but it was 
likewise in error in stating that the proof failed to estab­
lish governmentally enforced segregation. In their answer 
the defendant SHA denied on the one hand that segre­
gation was being enforced and yet, on the other hand,



15

removed all doubt on this question by the following para­
graphs set forth therein:

“ (a) The white citizens of the United States and the 
State of Georgia are protected under the Constitution 
of the United States in their rights to life, liberty, 
and the pursuit of happiness. To compel the white 
race to live with, affiliate with, and integrate with the 
Negro race in their private lives contrary to their 
wishes, desires, beliefs, customs and traditions, is a 
denial of their rights under the Fourteenth Amendment 
to the Constitution of the United States and an in­
vasion of their right to privacy. The right of white 
tenants of Fred Wessels Homes and other projects 
of the Housing Authority not to be compelled to live 
with or among the Negro race, and not to affiliate and 
integrate with them is a valuable and inalienable right, 
and the violation of these rights will cause them great 
mental, psychological and physical distress, injury and 
hurt. The destruction and abrogation of these rights 
is a violation of both the Fifth and Fourteenth Amend­
ments to the Constitution and laws of the United States 
(E. 28).

(b) The policy of separating the white from the 
colored race in the public housing projects, adopted 
by the Housing Authority of Savannah, is not based 
solely because of the fact that the colored race are 
Negroes, but is largely done in order to preserve the 
peace and good order of the community. The State 
of Georgia and the City of Savannah, Georgia, each 
has a paramount duty under the police power to so 
regulate its citizens as to prevent disorder and violence, 
and to preserve the peace, good order and dignity of 
the community. Furthermore, the separation of the 
races—that is, the white people from the Negroes by



16

the Housing Authority of Savannah is based largely 
on the local situation with reference to the residences 
of the white people and the Negroes in Savannah. 
The Negroes are assigned to houses located in districts 
in which they live and which are predominantly oc­
cupied by Negroes, and the white people are assigned 
to units of projects located in the districts where white 
people predominantly reside.7 The policy of the Hous­
ing Authority of Savannah is now and has been to 
treat the white race and the colored race separately 
but equally,—that is to say to afford each equal but 
separate facilities (R. 28-29).

(c) Experience has shown that the indiscriminate 
mixing of the white and colored races,—that is to say, 
white people and Negroes in residential districts leads 
to frequent and violent disturbances and riots, and 
such policy leads to a great disturbance of the peace, 
the good order and tranquility of the community, and 
often results in violence and riots; and for this reason 
the separation of the races—that is to say—the white 
people from the Negroes in residential units erected or 
to be erected by the Housing Authority of Savannah, 
is required and is necessary (R. 29).

(d) The white tenants of Fred Wessels Homes and 
other projects of the Housing Authority of Savannah 
have a valuable property right and interest in the 
housing units they occupy in the several projects and 
in the written leases therefor with the Housing Au­
thority of Savannah, and these valuable property rights 
are protected by the Due Process of Law Clause of the 
Fifth Amendment to the Constitution of the United

7 It should be noted that the record clearly discloses that the site 
on which the white Fred Wessels Homes project was erected was 
occupied by 250 Negro families and 70 white families (R. 102-103).



17

States which provides that no property of a citizen 
shall be taken or destroyed except under due process 
of law. The occupancy by Negroes of units in these 
projects assigned to and occupied by white tenants 
will immediately destroy and take away the valuable 
property rights of the white tenants in their respective 
units, and this without their ever having their day in 
Court” (R. 30).

As for the proof in this case, the record is clear that a 
policy of racial segregation is being enforced not only by 
the state agency but by the federal agency also (R. 121-122, 
181). As a matter of fact, the court below, in its own 
opinion, points out that “Mr. Stillwell’s testimony has been 
noted (footnote 7, supra) to the effect that in his opinion 
actual segregation is essential to the success of a program 
of public housing in Savannah.” 8 But even more important 
is the fact that the federal agency representative who testi­
fied finally conceded that PHA would object if the SHA 
departed from PHA’s racial equity requirement (R. 181) 
application of which results in the limitation of certain 
units to white and other units to Negro occupancy (R. 106- 
107).

As pointed out by the Fourth Circuit in the Thompson 
case, supra, which was a companion case with the Char­
lottesville case at 240 F. 2d 59, the theory of the segrega­
tion cases is often misunderstood. A plaintiff sues to en­
join the segregation policy, not for admission to a particu­
lar public facility. Assignment to a particular public facility 
is left to the public agency involved. If injunction enjoin­
ing the policy is disobeyed, only then may admission to a 
specific facility be ordered. Brown v. Board of Education 
of Topeka, 349 U. S. 294.

8 Mr. Stillwell is the Director-Secretary of the Savannah Housing 
Authority.



18

B. After making invalid distinctions between the Char­
lottesville and other cases cited above, the court below held 
alternatively that since this case involves voluntary segrega­
tion, the proof failing to establish governmentallv enforced 
segregation, such segregation is not constitutionally vulner­
able. It noted the testimony of the Director-Secretary of 
SHA that “ actual segregation is essential to the success 
of a program of public housing in Savannah.” Noting this, 
it then proceeded to rule that, “ If the people involved think 
that such is the case and if Negroes and whites desire to 
maintain voluntary segregation for their common good, 
there is certainly no law to prevent such cooperation. 
Neither the Fifth nor the Fourteenth Amendments operates 
positively to command integration of the races, but only 
negatively to forbid governmentally enforced segregation” 
(at 78).

But governmentally enforced racial segregation was con­
clusively alleged and proved here, not “voluntary” segrega­
tion. Because of this, the court below was bound to enjoin 
the segregation. Such an injunction is required by applica­
tion to this case of principles firmly established by this 
Court in Bolling v. Sharpe, 347 U. S. 497; Buchanan v. 
Warley, supra; Shelley v. Kraemer, supra; Hurd v. Hodge, 
supra and Barrows v. Jackson, supra.



19

CONCLUSION

For the foregoing reasons, petitioner prays that a 
writ of certiorari issue to review the judgment of the 
court helow.

Respectfully submitted,

T httrgood M arsh all  
10 Columbus Circle 
New York 19, N. Y.

C onstance B ak er  M otley 
10 Columbus Circle 
New York 19, N. Y.

A. T. W alden

28 Butler Street, N. E. 
Atlanta 3, Georgia

Attorneys for Petitioner



20

INDEX TO APPENDIX
PAGE

A ppen d ix  A—
Opinion of Court of Appeals, Fifth Circuit........... 21

Judgment of Court of Appeals...............................  31

Order Denying Rehearing .......................................  32

A ppen d ix  B—
Regulations, Statutes and Constitutional Provi­

sions Involved .................... .................-....... -.........  33
HHFA PITA Low-Rent Housing Manual 

(February 21, 1951) Section 102.1 Racial 
Policy ..............................................................  33

Title 42, United States Code, §1402(1) and 
(14) ...........................-....... -.............................  33

Title 42, United States Code, §1410(g) ......... 34
Title 42, United States Code, §1415(8) (a), (b) 

and (c) ............................................................ 36
Title 42, United States Code, §1982 ..................  37
Title 42, United States Code, §1983 ..................  37
Fifth Amendment to Constitution of United 

States................................................................ 38
Fourteenth Amendment to Constitution of 

United States ................................................. 38

A ppen d ix  C—

Opinion of United States District Court, District 
of Columbia, filed May 8, 1953 .............................  39



21

APPENDIX A

Opinion of Court of Appeals, Fifth Circuit

I n  th e

UNITED STATES COURT OF APPEALS 

F ob t h e  F if t h  C ibouit

No. 16866

Q ueen  C o h e n , 

versus
Appellant,

P u blic  H ousing  A d m in istbation , et al.,
Appellees.

APPEAL FBOM THE UNITED STATES DISTRICT COURT FOB THE 

SOUTHERN DISTRICT OF GEORGIA.

(June 30, 1958.)

B e f o r e  :
R ives, B row n  and  W isdom ,

Circuit Judges.

R ives, Circuit Judge:
The complaint was originally brought by eighteen Negro 

residents of Savannah, Georgia for an injunction, declara­
tory judgment and money damages on account of racial



22

segregation in public bousing in that City, allegedly en­
forced by the Public Housing Administration (hereinafter 
called P.H.A.) and the Housing Authority of Savannah 
(hereinafter called S.H.A.). Earlier orders of the district 
court dismissing the action1 were affirmed in part and re­
versed in part and remanded.2

After remand, but prior to the commencement of trial, 
seventeen parties plaintiff voluntarily withdrew,3 leav­
ing the appellant, Queen Cohen, as the sole plaintiff. At 
the conclusion of the trial, the district court found as 
a fact, inter alia, that “ Queen Cohen never made an 
application for admission in the Fred Wessels Homes or 
any other public housing project in Savannah.”

The appellant’s first specification of error is that:

“ The trial court erred in dismissing appellant’s suit, 
after a full trial on the merits, on the ground that 
appellant failed to prove that she had ever made ap­
plication for admission to Fred Wessels Homes.”

The complaint alleged that: “ Each of the plaintiffs has 
been denied admission to Fred Wessels Homes solely be­
cause of race and color.” In their answer, the defendants 
denied “ that these defendants have determined upon and 
presently enforce an administrative policy of racial segre­
gation in public housing in the City of Savannah, Georgia,” 
and denied the allegation that “ Each of the plaintiffs has 
been denied admission to Fred Wessels Homes solely be­

1 Heyward v. Public Housing Administration, S. D. Ga. 1955, 
135 P. Supp. 217.

2 Heyward v. Public Housing Administration, 5th Gir. 1956, 
238 P. 2d 689.

3 Mr. Stillwell, Secretary and Executive Director of S.H.A., 
testified upon the trial that none of those seventeen had ever 
applied for admission to Fred Wessels Homes; that fifteen of them 
had applied for and been admitted to another project, Pell wood 
Homes; and that two had never applied for any kind of housing.



23

cause of race or color.” The evidence showed that P.H.A. 
was operating under its regulation quoted in full in our 
former opinion,4 which requires that:

“ Programs for the development of low-rent housing, 
in order to be eligible for PHA assistance, must re­
flect equitable provisions for eligible families of all 
races determined on the approximate volume of their 
respective needs for such housing.” (PHA Housing 
Manual, Section 102.1)

Its policies and practices were more fully described in the 
testimony of Mr. Silverman, its Assistant Commissioner for 
Management, quoted in the margin.5

4 Heyward v. Public Housing Administration, 5th Cir. 1956, 
238 F. 2d 689, at p. 697.

5 “ Q. Now, what are the policies and practices of the Public 
Housing Administration with respect to racial occupancy of low- 
rent housing projects?

“A. It is the policy of the Public Housing Administration to 
assure that equitable treatment is afforded to all eligible families 
in a locality, and that all eligible families who are admitted to 
housing projects by housing authorities are treated equally with 
respect to income limits or rents to be charged and other conditions 
of occupanys (sic).

“ Q. What is the policy and position of the Public Housing 
Administration with respect to low-rent housing projects in 
Savannah or elsewhere as to whether or not they are operated 
by the Local Authority on a segregated or non-segregated basis?

“A. We have not required Housing Authorities to either segre­
gate or non-segregate in housing projects. We have required that 
the housing program in every locality be available to all segments 
of the eligible low income families in that locality. We have not 
prescribed the precise fashion in which the Housing Authority shall 
extend that equality of treatment to the residents of the locality.

“ Q. Is that policy based on your interpretation of the require­
ments and policies of the Housing Act itself ?

“A. Yes. It is based upon our construction of the United States 
Housing Act and particularly the 1949 Housing Act Amendment. 
The very act which created the preferences that have been dis­
cussed here, the preferences extended to displaced families, when 
it was being considered in the Congress, in the Senate, a motion 
was made to attach a non-segregated requirement to the statute.



24

The Housing Authority of Savannah operated, or had 
under construction, 2170 dwelling units of which 1120 were 
designated for negro occupancy and 1050 for white. The 
project known as Fred Wessels Homes was intended for 
white occupancy, but Mr. Stillwell, the Secretary and Execu­
tive Director of S.H.A., denied in his testimony that negroes 
had ever been refused admission to that project.6 At the

That was defeated. It is our view that that action was Congres­
sional recognition of the fact that local practices vary in the 
United States, and that some Loeal Authorities did maintain 
separate projects by race and other integrated, but the failure to 
enact a specific congressional prohibition against it was recognition 
that a variety of practices might prevail.

“ Q. With respect to the low-rent housing program throughout 
the country, that is, those projects to which PHA gives financial 
assistance to what extent has there been integrated occupancy as 
to those projects?

“A. As of December 31st, last, which is the last statistical tabu­
lation we have, on 445 projects, approximately, containing some 
163,000 dwelling units, representing about 43 percent of the entire 
program, were operated on an integrated basis.

“ Q. Would there be any objection on the part of the Public 
Housing Administration if the Savannah Housing Authority, or 
any other Local Authority, were to determine to operate a low-rent 
housing project on integrated basis?

“A. None whatsoever.”
On cross-examination, Mr. Silverman testified:
“ Q. Now, I believe you stated that your Agency interpreted the 

defeat of the anti-discrimination with respect to the Public Housing 
bill as an authorization from Congress that you and your Agency 
might approve segregation or integration in any particular Local 
Authority, or any particular locality that a Housing Authority 
might want to practice in public housing. Is that right ?

“A. Mrs. Motley, I don’t mean to quibble with you, but we 
didn’t recognize it as that kind of an authorization. We recognized 
it as Congressional recognition of the fact that practices varied 
among the various localities in the country with respect to the 
low-rent housing.”

6 “ Q. Well, were you taking applications from negroes for the 
Fred Wessels Homes at anytime?

“A. For occupancy in there?
“ Q- Yes.
“ A. No. I have never been asked to do so. We have never had 

an application from a negro for occupancy in any white project



25

same time, Mr. Stillwell candidly admitted that Ms hope for 
success of a program of public housing for people unable 
to pay the cost of decent and adequate private housing lay 
in the maintenance of actual segregation.* I * * * * * 7

and by the same token we have never had an application from a 
white man to go into a negro project. We have never had that to 
come up.

“ Q. I f  a negro applied for admission to the Fred Wessels Homes 
would you put him in there ? Is that what you are saying ?

“A. No. He would be given consideration, but I don’t know what
I would do.

“ Q. You wouldn’t put him in there, would you?
“A. I don’t know what I would do. I have never had the ques­

tion to come up.
“ Q. You know that this case is concerning your refusal to admit 

negroes to the Fred Wessels Homes?
“A. Yes, but we have never refused to take them in there.”
7 “A. Well, as you know, our white projects are predominately 

(sic) occupied by what is generally known as ‘Georgia Crackers’, 
and you know that he would never consent to occupy a home adja­
cent to or mixed up with the colored families. Consequently, it 
would mean that the white projects would eventually be over­
whelmingly negro, if not a 100 percent negro, and the average 
income of the negro is less than the average income of the white 
population of that same caliber, and consequently the average rent 
per unit would be much less and it is a question in my mind 
whether the rents would maintain the property and pay off its 
debts.

“ Q. In other words, do I understand you to say that if colored 
people were allowed to come into the white units the white people 
would move out?

“A. That’s right.
“ Q. And there would not be sufficient eligible colored people to 

occupy the units sufficient to pay the amount due on the debt of 
that particular property. Is that right ?

“A. Yes, and when I say that I mean sufficient eligible of the 
higher groups of rents. We have to have a certain percentage of 
tenants who pay a minimum rent of $15.00 and graduate on up 
so as to average down to enough to meet the expenses plus the 
subsistive to retire the principal and interest on the notes and 
bonds as they mature, and with this lessened income I question 
whether there would be enough to meet all the obligations.

“ Q. And there could be a default, in your payments?
“A. Yes, that’s right, the bonds, and another thing it would 

break down the racial equity.



The appellant did not claim that she had filed any written 
application. Her testimony was that she went to make her 
application “ around 1952, during the time I had to move,” 
that the building of the Fred Wessels Homes had then been 
completed, but “ It was empty and I didn’t know who was 
going to take it, white or colored, and so I went to apply 
for one.” She testified that she went to the office of the Fred 
Wessels Project.8 Mr. Stillwell, the Secretary and Execu­
tive Director of S.H.A., and Millard Williams, an employee 
of S.H.A. from 1951 to 1955, were brought into the court­
room for purposes of identification. The appellant was un­
able to identify either of them as the one with whom she 
had talked.9

Appellant testified that her cousin, Susie Parker, had ac­
companied her when she went to make her application. 
When Susie Parker came to testify, she positively identified 
Millard Williams as the one with whom the conversation 
took place.

In rebuttal, both Stillwell and Williams denied having had 
any such conversation, or ever having seen the appellant

“ Q. Explain what yon mean by breaking down the racial equity?
“A. Well, that’s the point that Miss Motley has been trying to 

bring out, that if it was turned into all colored then the white 
eligible tenants would be deprived of their occupancy of the white 
projects and we would default in our contract with the PHA 
because we did not maintain a racial equity.”

8 “When I went into the office I met a clerk boy, and so I told 
him that I wanted to apply for a house there. He took me upstairs. 
When I got upstairs he showed me a room and in that room were 
two white ladies, and so I asked them could I put in for a house 
there. She took me to another office where there was a white man 
sitting there. The white woman told me to explain it to this man, 
and so I explained to him, I said, T came to put in for a house.’ 
He said, ‘Negroes are not allowed here. Go to Fellwood.’ That was 
his remarks to me and so I turned around and walked out.”

8 “ Q. It was this man here ? Is that him ?
“A. I wouldn’t say, but he was a slender built man. I only saw 

him once and then for about three minutes.”



27

or her cousin prior to the trial. Mr. Stillwell testified fur­
ther that the Fred Wessels Homes had not even been built 
in 1952, that there were then no buildings on the site.

Stillwell and Williams denied that there had been any 
application or attempt to apply for admission to Fred Wes­
sels Homes specifically on the part of any one of the eighteen 
original plaintiffs, and generally on the part of any other 
negro. None of the seventeen other original plaintiffs testi­
fied in rebuttal, nor was any reason given for their failure 
to testify.

The district court had the advantage of seeing and hear­
ing the witnesses, while this Court may only read their 
testimony. Upon the present record, it is an understatement 
to say that the pertinent fact-finding by the district court 
does not appear to be clearly erroneous Rule 52(a), Federal 
Rules of Civil Procedure.

That, however, is not the end of this case, for appellant 
next contends that she was not required to prove that she 
applied for or was denied such admission because equity 
does not require the doing of a vain act. Appellant argues 
that similar acts have been held to be vain in cases involving 
governmentally enforced racial segregation, citing School 
Board of City of Charlottesville, Va. v. Allen, 4th Cir. 1956, 
240 F. 2d. 59, and Gibson v. Board of Public Instruction of 
Dade County, 5th Cir. 1957, 246 F. 2d. 913.

School Board of City of Charlottesville, Va. v. Allen, 
supra, involved actions in behalf of Negro school children 
to enjoin School Boards from enforcing racial segregation. 
Applications had been made to the Boards to take action 
toward abolishing the requirement of segregation in the 
schools, and no action had been taken. The Boards con­
tended that, before the plaintiffs would be entitled to in­
junctive relief, they must have individually applied for and 
been denied admission to a particular school. The Fourth 
Circuit, speaking through the late Chief Judge Parker, 
said:



“ * * * The answer is that in view of the announced 
policy of the respective school boards any such applica­
tion to a school other than a segregated school main­
tained for Colored people would have been futile; and 
equity does not require the doing of a vain thing as a 
condition of relief.”

School Board of City of Charlottesville, Va. v. Allen, 
supra, 240 F. 2d. at pp. 63, 64.

The situation was almost identical in Gibson v. Board 
of Public Instruction of Dade County, supra. The plaintiffs 
had petitioned the Board of Public Instruction to abolish 
racial segregation in the public schools as soon as practi­
cable, and the Board had refused. Relying upon and quoting 
from Chief Judge Parker’s opinion in the City of Charlottes­
ville Case, supra, this Court held that: “Under the circum­
stances alleged, it was not necessary for the plaintiffs to 
make application for admission to a particular school.” 
246 F. 2d. at p. 914.

At least two material distinctions exist between those 
cases and the present case: First, in each of those cases 
the plaintiffs had placed themselves on record as desir­
ing practically the same relief as that sought from the court, 
Here, in the absence of any attempt to apply for admis­
sion to the Fred Wessels Homes, there is no reasonably 
certain proof that the appellant actually desired in some 
earlier year, say 1952, to become a tenant in that public 
housing. Testimony, years after the critical event, as to 
what one’s intentions were cannot take the place of acts 
done at that time. Secondly, in each of the cases relied 
on, it was admitted that discriminatory segregation of 
the races was being enforced by the defendant Board, 
while, as has already been indicated, in the present case, 
in both the pleadings and the proof, governmentally en­
forced segregation is denied.



29

In her reply brief, the appellant cites a third case in 
support of her contention that she was not required to prove 
that she applied for or was denied admission to the public 
housing project, Staub v. City of Baxley, 1958, 355 U. S. 
313. The pertinent holding in that case was thus expressed:

“ The first of the nonfederal grounds relied on by 
appellee, and upon which the decision of the Court 
of Appeals rests, is that appellant lacked standing to 
attack the constitutionality of the ordinance because 
she made no attempt to secure a permit under it. This 
is not an adequate nonfederal ground of decision. The 
decisions of this Court have uniformly held that the 
failure to apply for a license under an ordinance 
which on its face violates the Constitution does not 
preclude review' in this Court of a judgment of convic­
tion under such an ordinance. Smith v. Cahoon, 283 
U. S. 553, 562; Lovell v. Griffin, 303 U. S. 444, 452. ‘The 
Constitution can hardly be thought to deny one sub­
jected to the restraints of such an ordinance the right 
to attack its constitutionality, because he has not yielded 
to its demands.’ Jones v. Opelika, 316 U. S. 584, 602, 
dissenting opinion, adopted per curiam on rehearing, 
319 U. S. 103, 104.”

Staub v. City of Baxley, supra, 355 IT. S. at p. 319.
Clearly, that decision is not applicable here, for in that 

case the appellant had a legal right to engage in the oc­
cupation regardless of the ordinance, vdiile here a tenant 
could not be admitted to a housing project without having 
made an application. No one could reasonably contend that 
by applying for admission to a public housing project the 
appellant would be yielding to any unconstitutional demand.

We conclude that the appellant-plaintiff has no standing 
to maintain this action when she has not been denied admis­
sion to a public housing project on account of her race or



30

color. That is the very gist of her claim. Absent such 
standing, there is no justiciable claim or controversy.10

Mr. Stillwell’s testimony has been noted (footnote 7, 
supra) to the effect that in his opinion actual segregation 
is essential to the success of a program of public housing in 
Savannah. If the people involved think that such is the case 
and if Negroes and whites desire to maintain voluntary 
segregation for their common good, there is certainly no 
law to prevent such cooperation. Neither the Fifth nor the 
Fourteenth Amendment operates positively to command in­
tegration of the races but only negatively to forbid govern- 
mentally enforced segregation.11

The judgment of dismissal is
A f f i r m e d .

10 Associated Industries v. Iekes, 2nd Cir. 1943, 134 F. 2d 694, 
700.

11 Cf Avery v. Wichita Falls Independent School District, 5th 
Cir. 1957, 241 F. 2d 230, 233; Rippy v. Borders, 5th Cir. 1957, 
250 F. 2d 690, 692.



31

Judgment of Court of Appeals

Extract from the Minutes of June 30, 1958 
No. 16,866

Q u een  C o h en , 

versus

P u blic  H ousing  A d m in istra tio n , et al.

This cause came on to be heard on the transcript of the 
record from the United States District Court for the South­
ern District of Georgia, and was argued by counsel;

On consideration whereof, It is now here ordered and ad­
judged by this Court that the judgment of the said District 
Court in this cause be, and the same is hereby, affirmed;

It is further ordered and adjudged that the appellant, 
Queen Cohen, be condemned to pay the Costs of this cause 
in this Court for which execution may be issued out of the 
said District Court.



32

Order Denying Rehearing

Extract from the Minutes of August 11, 1958 
No. 16,866

Qu een  C o h en , 

versus

P u blic  H ousing  A d m in istra tio n , et al.

It is ordered by the Court that the petition for rehearing 
filed in this cause be, and the same is hereby, denied.



33

APPENDIX B

Regulations, Statutes And Constitutional 
Provisions Involved

HHFA
PHA
2-21-51 L ow -R e n t  H ousing  M an u al  102.1

Racial Policy

The following general statement of racial policy shall be 
applicable to all low-rent housing projects developed and 
operated under the United States Housing Act of 1937, as 
amended:
1. Programs for the development of low-rent housing, in 

order to be eligible for PHA assistance, must reflect 
equitable provision for eligible families of all races 
determined on the approximate volume and urgency of 
their respective needs for such housing.

2. While the selection of tenants and the assigning of dwell­
ing units are primarily matters for local determination, 
urgency of need and the preferences prescribed in the 
Housing Act of 1949 are the basic statutory standards 
for the selection of tenants.

Title 42, United States Code, §1402:
(1) Low-rent housing. The term ‘low-rent housing’ 

means decent, safe, and sanitary dwellings within the 
financial reach of families of low income, and developed 
and administered to promote serviceability, efficiency, 
economy, and stability, and embraces all necessary ap­
purtenances thereto. The dwellings in low-rent hous­
ing as defined in this Act [§1401 et seq. of this title] 
shall be available solely for families whose net annual 
income at the time of admission, less exemption of $100



34

for each minor member of the family other than the 
head of the family and his spouse, does not exceed 
five times the annual rental (including the value or 
cost to them of water, electricity, gas, other heating 
and cooking fuels, and other utilities) of the dwellings 
to be furnished such families. For the sole purpose of 
determining eligibility for continued occupancy, a pub­
lic housing agency may allow, from the net income of 
any family, an exemption for each minor member of 
the family (other than the head of the family and 
his spouse) of either (a) $100, or (b) all or any part 
of the annual income of such minor. For the purposes 
of this subsection, a minor shall mean a person less 
than 21 years of age.

(14) Veteran. The term ‘veteran’ shall mean a per­
son who has served in the active military or naval 
service of the United States at any time (i) on or 
after September 16, 1940, and prior to July 26, 1947, 
(ii) on or after April 6, 1917, and prior to November 
11, 1918, or (iii) on or after June 27, 1950, and prior 
to such date thereafter as shall be determined by the 
President, and who shall have been discharged or re­
leased therefrom under conditions other than dishonor­
able. The term ‘serviceman’ shall mean a person in 
the active military or naval service of the United 
States who has served therein at any time (i) on or 
after September 16, 1940, and prior to July 26, 1947, 
(ii) on or after April 6, 1917, and prior to November 
11, 1918, or (iii) on or after June 27, 1950, and prior 
to such date thereafter as shall be determined by the 
President.

Title 42, United States Code, §1410(g ) :

(g) Veterans’ preference. Every contract made pur­
suant to this Act [§1401 et seq. of this title] for annual



35

contributions for any low-rent housing project shall 
require that the public housing agency, as among low- 
income families which are eligible applicants for occu­
pancy in dwellings of given sizes and at specified 
rents, shall extend the following preferences in the 
selection of tenants:

First, to families which are to be displaced by any 
low-rent housing project or by any public slum-clear­
ance, redevelopment or urban renewal project, or 
through action of a public body or court, either through 
the enforcement of housing standards or through the 
demolition, closing, or improvement of dwelling units, 
or which were so displaced within three years prior 
to making application to such public housing agency 
for admission to any low-rent housing: Provided, That 
as among such projects or actions the public housing 
agency may from time to time extend a prior prefer­
ence or preferences: And Provided further, That, as 
among families within any such preference group such 
families first preference shall be given to families of 
disabled veterans whose disability has been determined 
by the Veterans’ Administration to be service-con­
nected, and second preference shall be given to fami­
lies of deceased veterans and servicemen whose death 
has been determined by the Veterans’ Administration 
to be service-connected, and third preference shall be 
given to families of other veterans and servicemen;

Second, to families of other veterans and service­
men and as among such families first preference shall 
be given to families of disabled veterans whose dis­
ability has been determined by the Veterans’ Admin­
istration to be service-connected, and second prefer­
ence shall be given to families of deceased veterans 
and servicemen whose death has been determined by 
the Veterans’ Administration to be service-connected.



36

Title 42, United States Code, §1415:

(8) Every contract made pursuant to this Act [§1401 
et seq. of this title] for annual contributions for any 
low-rent housing project initiated after March 1, 1949, 
shall provide that—

(a) the public housing agency shall fix maximum 
income limits for the admission and for the continued 
occupancy of families in such housing, that such maxi­
mum income limits and all revisions thereof shall be 
subject to the prior approval of the Authority [Public 
Housing Administration], and that the Authority 
[Public Housing Administration] may require the pub­
lic housing agency to review and to revise such maxi­
mum income limits if the Authority [Public Housing 
Administration] determines that changed conditions 
in the locality make such revisions necessary in achiev­
ing the purposes of this Act [§1401 et seq. of this title];

(b) a duly authorized official of the public housing 
agency involved shall make periodic written statements 
to the Authority [Public Housing Administration] that 
an investigation has been made of each family ad­
mitted to the low-rent housing project involved during 
the period covered thereby, and that, on the basis of 
the report of said investigation, he has found that 
each such family at the time of its admission (i) had 
a net family income not exceeding the maximum in­
come limits theretofore fixed by the public housing 
agency (and approved by the Authority [Public Hous­
ing Administration]) for admission of families of low 
income to such housing; and (ii) lived in an unsafe, 
insanitary, or overcrowded dwelling, or was to be dis­
placed by any low-rent housing project or by any 
public slum-clearance, redevelopment or urban renewal 
project, or through action of a public body or court,



37

either through the enforcement of housing standards 
or through the demolition, closing or improvement of 
a dwelling unit or units, or actually was without hous­
ing, or was about to be without housing as a result of 
a court order of eviction, due to causes other than the 
fault of the tenant: Provided, That the requirement in 
(ii) shall not be applicable in the case of the family of 
any veteran or serviceman (or of any deceased veteran 
or serviceman) where application for admission to such 
housing is made not later than March 1, 1959.

(c) in the selection of tenants (i) the public housing 
agency shall not discriminate against families, other­
wise eligible for admission to such housing, because 
their incomes are derived in whole or in part from 
public assistance and (ii) in initially selecting fami­
lies for admission to dwellings of given sizes and at 
specified rents the public housing agency shall (subject 
to the preferences prescribed in subsection 10 (g) of 
this Act [§1410(g) of this title]) give preference to 
families having the most urgent housing needs, and 
thereafter, in selecting families for admission to such 
dwellings, shall give due consideration the urgency of 
the families’ housing needs; and . . .

Title 42, United States Code, §1982:

1982. Property rights of citizens.—All citizens of 
the United States shall have the same right, in every 
State and Territory, as is enjoyed by white citizens 
thereof to inherit, purchase, lease, sell, hold, and con­
vey real and personal property.

Title 42, United States Code, §1983:

1983. Civil action for deprivation of rights.—Every 
person who, under color of any statute, ordinance,



38

regulation, custom or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the 
United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall 
be liable to the party injured in an action at law, suit 
in equity, or other proper proceeding for redress.

Constitution of the United States:
Amendment 5—Due Process Clause

“ No person shall be . . . deprived of life, liberty, or 
property, without due process of law . . . ”

Amendment 14, §1—Due Process and Equal Protection 
Clauses:

“ * * * nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.”



39

APPENDIX C

Opinion o f United States District Court, District 
o f Columbia, Filed May 8, 1953

I n  th e

UNITED STATES DISTRICT COURT 
F ob th e  D isteict  of C olum bia  

Civil Action No. 3991—52 

(Filed May 8, 1953)

H eyw ard , et al.,
Plaintiffs,

—v.—

H ousing  and H ome F in an ce  A gency , et al.,

Defendants.

The Court: This is an action to restrain the Commis­
sioner of the Public Housing Administration from advanc­
ing any funds under the United States Housing Act of 1937, 
as amended, and otherwise participating, in the construc­
tion and operation of certain housing projects in the City 
of Savannah, Georgia.

These projects are being constructed and will be operated 
by local authorities with the aid of Federal Funds.

The basis of the action is that it has been officially an­
nounced that the project referred to in the complaint will 
be open only to white residents. The plaintiffs are people 
of the colored race who contend that such a limitation is a 
violation of their Constitutional rights.



40

The Court has grave doubt whether this action lies in 
the light of the doctrine enunciated in the case of Massa­
chusetts v. Mellon, 262 U. S. 447, but assuming, arguendo, 
that the action may be maintained, the Court is of the 
opinion that no violation of law or Constitutional rights 
on the part of the defendants has been shown.

It appears from the affidavit submitted in support of the 
defendants’ motion for a summary judgment that there 
are several projects that have been or are being constructed 
in the City of Savannah under the Housing Act, some of 
which are limited to white residents and others to colored 
residents, and that a greater number of accommodations 
has been set aside for colored residents. In other words, 
we have no situation here where colored people are being de­
prived of opportunities or accommodations furnished by 
the Federal Government that are accorded to people of the 
white rice. Accommodations are being accorded to people 
of both races.

Under the so-called “ separate but equal” doctrine, which 
is still the law under the Supreme Court decisions, it is 
entirely proper and does not constitute a violation of Con­
stitutional rights for the Federal Government to require 
people of the white and colored races to use separate facili­
ties, provided equal facilities are furnished to each.

There is another aspect of this matter which the Court 
considers of importance. The Congress has conferred dis­
cretionary authority on the administrative agency to de­
termine for what projects Federal funds shall be used. 
There are very few limitations in the statute on the power 
of the administrator, and there is no limitation as to racial 
segregation.

The Congress has a right to appropriate money for such 
purposes as it chooses under the General Welfare clause 
of Article I, Section 8, of the Constitution. It has a right 
to appropriate money for purpose “A ” but not for pur­
pose “ B,” so long as purpose “A ” is a public purpose.



41

Under the circumstances, the Court is of the opinion 
that the plaintiffs have no cause of action and the defen­
dants’ motion for summary judgment is granted.

(Thereupon, the above entitled matter was concluded.)

A lexander  H oltzoff , 
District Judge.



'