Trafficante v. Metropolitan Life Insurance Company Brief Amicus Curiae

    Ik the

Bnpxm ? Court of %  luttrft t̂atro
O ctober T er m , 1971- 

N o. 71— 708

P a u l  J . T rafficante , et al.,

vs.
Petitioners,

M eteopolitak  L ife I nsurance  C o m pan y , et al.,
Respondents.

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack  Greekberg  
J am es M . N abrit , I I I  
Chables S teph en  R alston  
M ic h ael  D avidsok

10 Columbus Circle 
New York, New York 10019

W illiam  B en n ett  T urner 
A lice D an iel  
L ow ell  J ohnston  

12 Geary Street 
San Francisco, California 94108

Attorneys for the N.A.A.C.P. Legal 
Defense and Educational Fund, Inc.



I N D E X

PAGE

Interest of the Amiens ....................................................  1

Argument  ................................................................. —- 2

A. The Injury to Present Tenants Caused By
Their Landlord’s Actions to Prevent the Ra­
cial Integration of Their Community Gives 
Them Standing to Bring This Lawsuit ..........  3

B. Present Residents May be the Only or Most
Effective Adversary Who Can Enforce the 
Fair Housing Laws, and They also Serve the 
Public Interest in Doing So .............................  5

C onclusion  .......................................................................................  9

T able oe A uthobities

Cases:

Association of Data Processing Organizations v. Camp,
397 U.S. 150................................................................... 3

Baker v. Carr, 369 U.S. 186 ............................................  3
Barrows v. Jackson, 346 U.S. 249 ....................................  7
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 .................. 8

Eisenstadt v. Baird,------U.S. ——-, 40 U.S.L.W. 4303 7

Hutchings v. United States Industries, Inc., 428 F.2d 
303 .................................................................................. 8

Jenkins v. United Gas Corp., 400 F.2d 28 8



XI

PAGE

Newmaxi v. Piggie Park Enterprises, Inc., 380 U.S. 400 8

Oatis v. Crown Zellerbach Corp., 398 E.2d 496 ..........  8

Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 8

Sierra Club v. Morton, ------  U.S. ------ , 40 U.S.L.W.
4397 ................................................................................ 4, 8

Trafficante v. Metropolitan Life Insurance Company,
446 F.2d 1158 ...............................................................  2, 3

United States v. West Peachtree Tenth Corporation,
437 F.2d 221 ...............   5

Statutes:

42 U.S.C. §1982 ...............................................................  2, 3
42 U.S.C. §3601 et seq.................................................Passim

Pub. L. 92-261 ...................................................................  7

Other Authorities:

United States Commission on Civil Rights, Racism in 
America ......................................    7



I n  the

Supreme (Heart of tfio Mttxleb t̂atre
O ctober T er m , 1971 

No. 71—708

P a u l  J. T rafficante , et ah.,

vs.
Petitioners,

M etropolitan  L ife  I n surance  C o m pan y , et al.,
Respondents.

BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest o f the Amicus

The NAACP Legal Defense and Educational Fund, Inc. 
is a non-profit corporation formed in 1939 under the laws 
of the State of New York. It is independent of other organ­
izations and supported by public contributions.

The Legal Defense Fund was founded to assist blacks 
who suffer racial injustice to secure basic rights through 
the legal process. We receive many requests for assistance 
from victims of housing discrimination, and litigate or sup­
port numerous cases in state and federal forums to advance 
the goal of “fair housing throughout the United States” 
(42. U.S.C. §3601). Our experiences indicate that adequate 
enforcement of fair housing laws requires a broad defini­
tion of the classes of persons entitled to commence admin­
istrative and judicial proceedings. We believe that the



2

decision of the courts below, denying the right of tenants 
to challenge discriminatory actions of their landlord which 
prevent the meaningful racial integration of the large 
housing development in which they live, misconceives the 
intent of Congress and undermines the promise of fair 
housing made by federal law.

The Legal Defense Fund was permitted to participate 
as amicus curiae in the court below. All parties have con­
sented to our filing a brief amicus curiae in this Court, and 
their letters of consent have been lodged Avith the Clerk.

A rg u m e n t

The issue in this case is the decision of the United States 
Court of Appeals for the Ninth Circuit, 446 F.2d 1158, that 
present residents of the Parkmerced housing development 
in San Francisco, California, lack standing to challenge 
racially discriminatory practices of their landlord which 
have created an almost totally segregated white commu­
nity. There are two reasons why this judgment should be 
reversed and petitioners allowed to complain that their 
landlord has violated the Fair Housing Act of 1968, 42 
U.S.C. §§3601-19, and the Civil Rights Act of 1866, 42 U.S.C. 
§1982. The first is that Parkmerced’s discrimination has 
injured them by preventing the racial integration of the 
community in which they live, and this injury entitles 
them to standing. The second is that in addition to seek­
ing a remedy for their own injury, petitioners advance the 
interests of both blacks who have been denied apartments 
in Parkmerced and the public which has a vital stake in 
the enforcement of fair housing laws. The force of neither 
reason is diminished by the Attorney General’s power to 
bring “pattern or practice” suits, 42 U.S.C. §3613, to en­
force the Fair Housing* Act of 1968.



3

A. The injury to Present Tenants Caused By Their Land­
lord’s Actions to Prevent the Racial Integration of 
Their Community Gives Them Standing to Bring 
This Lawsuit.

The Fair Housing Act of 1968 describes a person who 
has the right to invoke the administrative process of 
investigation and conciliation, and then follow it by a 
judicial action if conciliation fails, as “any person who 
claims to have been injured by a discriminatory housing 
practice” or a “person aggrieved” . 42 U.S.C. 3610(a) and 
(d).1 The Civil Eights Act of 1866 contains no definition 
of the persons entitled to enforce it. Standing to enforce 
the 1866 Act is limited only by the “cases” and “contro­
versies” requirements of Article III of the Constitution, 
which this Court interprets to require a “personal stake in 
the outcome of the controversy,” Balter v. Carr, 369 U.S. 
186, 204, and the further requirement that the “interest 
sought to be protected by the complainant is arguably 
within the zone of interests to be protected or regulated by 
the statute or constitutional guarantee in question,” As­
sociation of Data Processing Organizations v. Camp, 397 
U.S. 150, 153. Under both new and old fair housing acts 
complainants must be allowed to prove their allegations 
if they properly claim “injury” or a “personal stake” , and 
an “interest” related to the objective of fair housing.

Petitioners’ claimed injury2 is as serious and funda­
mental as any in our society. It is a claim that segrega­
tion diminishes the well-being of the majority just as it 
victimizes minorities. No less than “aesthetic and environ­
mental well-being,” the opportunity of racial groups to live

1 Presumably the same standard applies to enforcement actions 
under 42 U.S.C. §3612.

2 As it was obligated to do on a motion to dismiss, the Court of 
Appeals accepted petitioners’ allegations of injury and discrimina­
tion as true. 446 F.2d at 1162, fn. 8.



4

together is an “important ingredient of the quality of life 
in our society . . . deserving of legal protection through
the judicial process.” Sierra Club v. Morton} —-  U .S .---- ,
40 U.S.L.W. 4397, 4400. Moreover, the residents of Park- 
merced claim they are “among the injured.” Ibid. They 
assert a “personal stake” in a community where the com­
mon experiences of blacks and whites allow both an alterna­
tive to the mutually degrading experience of enforced 
segregation. They claim that the segregation of their 
community has resulted from systematic racial discrimi­
nation by their landlord.3

Not only is their injury serious, and their stake per­
sonal, but the interest of petitioners in residential inte­
gration is clearly central to the purpose of the fair housing 
laws. These laws protect the rights of minorities seeking 
housing from discriminatory refusals, conditions, advertis­
ing, and misrepresentations, 42 U.S.C. §36Q4(a-d), and in 
that way enable the creation of racially integrated neigh­
borhoods. They also protect the right of majority and 
minority alike to live in already integrated neighborhoods 
by prohibiting “blockbusting,” 42 U.S.C. §3604(e), the 
real estate practice of causing the re-segregation of inte­
grated neighborhoods. They establish a national policy 
which is no less than “fair housing throughout the United 
States.” 42 U.S.C. §3601.

Indeed, neither court below held that the injury alleged 
by petitioners lacked significance or that the interest as­
serted was unprotected by the fair housing laws. Their 
argument appears to be that the Pair Housing Act of 1968 
entrusts the responsibility of protecting the public in­

3 Whether residents of the greater community are entitled to sue 
is not involved here. This case concerns tenants having a direct 
relationship with a discriminating landlord in a dispute which 
affects their immediate neighborhood.



5

terest in fair housing and creating integrated communi­
ties exclusively to the Attorney General. This argument 
seriously misconstrues the enforcement powers of the 
Attorney General.

The Fair Housing Act authorizes the Attorney General 
to bring actions to enjoin a “pattern or practice” of dis­
crimination or when a denial of fair housing rights 
“raises an issue of general public importance.” 42 U.S.C. 
§3613. This has been interpreted to mean that he may 
not litigate an “ ‘isolated or accidental or peculiar event’ ” , 
United States v. West Peachtree Tenth Corporation, 437 
F.2d 221, 227 (5th Cir. 1971). However, nothing in the 
language or history of the Act suggests that this limitation 
on the Attorney General’s power should operate to exclude 
injured private parties from complaining about discrimina­
tory patterns and practices or raise issues of general public 
importance. The limitations on the power of the Attorney 
General are far better read as an effort to conserve and 
focus the Attorney General’s limited resources to enforce 
the fair housing laws than read as an indication that Con­
gress intended to limit the right of aggrieved persons to 
seek private enforcement of these laws. It is simply con­
trary to the national fair housing policy to judicially create 
a limitation on enforcement where no such limitation exists 
in the laws Congress enacted.

B. Present Residents May be the Only or Most Effective 
Adversary W ho Can Enforce the Fair Housing Laws, 
and They also Serve the Public Interest in Doing So.

In addition to their own direct interests as residents of 
Parkmerced, petitioners’ complaint serves the interests of 
blacks who have been discriminated against at Parkmerced 
as well as the public interest in the enforcement of the fair 
housing laws.



6

In deciding this case, the Court should take account of the 
realities of discrimination in the housing’ market. The ex­
perience of amicus has shown that few persons discrimina- 
torily denied housing will actually pursue the legal remedies 
available to them. Many victims of housing discrimination 
may not even be aware of the fact that they were rejected 
for racial reasons. Most landlords adeptly find plausible 
non-racial excuses to hide discriminatory refusals and pro­
tect themselves from lawsuits. Our experience with a sub­
stantial number of fair housing complaints demonstrates 
that black applicants are daily turned away from “white” 
housing on the landlord’s representation that:

“ The apartment we advertised was rented just an hour 
ago;” or

“ The only vacancy we have is an apartment renting for 
$50 a month more than that;” or

“I’m sorry, but we don’t accept tenants with pets (chil­
dren) (large families) (etc.);” or

“You’ll have to fill out an application with a letter of 
reference from your employer (a local bank) (your 
former landlord) (a present tenant) (etc.).”

Yet the applicants often have no way of knowing whether 
these representations are true or whether they are subter­
fuges for discouraging the applicant and denying fair 
housing. In the experience of amicus only a relative hand­
ful of fair housing cases can be successfully litigated with­
out advance preparation, the assistance of a fair housing 
committee, white and black “testers,” and the ability to 
spend the time, effort and expense of pressing a complaint 
through administrative agencies or the courts. Most appli­
cants for housing are obviously not prepared for all this. 
The consequence is that many landlords discriminate with 
little fear of being caught. However, there are occasions



7

when the landlord’s tenants enjoy a vantage point which 
enables them to know that racial exclusion is practiced,4 * 
They may know when apartments are actually available, 
and when terms are discriminatorily varied for blacks. In 
these situations the tenants of a discriminating landlord 
may be “the only effective adversary” to challenge racially 
exclusive practices, cf. Barrows v. Jackson, 346 U.S. 249,
259, Eisenstadt v. Baird,------U .S .------- , 40 U.S.L.W. 4303,
4305, and it would further the national fair housing policy 
to allow them to assume that burden.

Just as petitioners’ efforts advance the interest of minor­
ity group members who have been victimized by dis­
crimination, they correspondingly advance the public in­
terest in enforcement of fair housing laws. In doing so 
petitioners fill a void in the capability of public agencies 
to enforce these laws. The administrative mechanism es­
tablished by the Fair Housing Act of 1968 can only make 
a minimal contribution to realizing the national policy of 
fair housing. Under the 1968 Act, the Department of 
Housing and Urban Development may receive, investigate, 
and attempt to conciliate complaints, but it has no cease 
and desist powers or other coercive means of enforcing 
the laws. See 42 U.S.C. §3610(a).6 “ [T]he limited size of

4 Of course, many black people are aware of pervasive race 
prejudice in some areas and do not even apply for housing and 
subject themselves to the humiliation of a refusal. A report of 
the United States Commission on Civil Rights states that

“Many minority group members no longer even try to find homes 
in all-white areas because they fear they will ‘get the run­
around’ or receive hostile treatment from at least some neigh­
bors. So the pattern or exclusion is continued— in spite of 
recent laws and court decisions to the contrary.” Racism in 
America, (U.S. Gov’t. Printing Office, January 1970).

6 The Department of Housing and Urban Development still lacks 
the power to go to court recently granted to the Equal Employment 
Opportunity Commission. See Equal Employment Opportunity 
Act of 1972, Pub. L. 92-261.



8

the Attorney General’s staff for civil rights enforcement,” 6 
in comparison to the enormity of the task of assuring “fair 
housing throughout the United States” (42 U.S.C. §3601, 
emphasis added), renders it impossible to rely on the 
Attorney General to undertake all the public enforcement 
which is necessary to make the national fair housing policy 
a reality. Without private actions the public interest in 
fair housing enforcement would be poorly served.

This Court and lower courts recognize that the primary 
burden of enforcing anti-discrimination laws must fall on 
private litigants, acting in effect as “private attorney 
general.” Newman v. Piggie Park Enterprises, Inc., 390 
U.S. 400, 402; Hutchings v. United States Industries, Inc., 
428 F.2d 303, 310 (5th Cir. 1970); Bowe v. Colgate-Palm~ 
olive Go., 416 F.2d 711, 719-20 (7th Cir. 1969); Pettivay v. 
American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 
1969) ; Jenkins v. United Gas Corp., 400 F.2d 28, 32-33 (5th 
Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 
499 (5th Cir. 1968). This is consistent with the general 
proposition that once a person has properly invoked re­
view “that person may argue the public interest in sup­
port of his claim.” Sierra Club v. Morton, —-— U .S .------ ,
40 U.S.L.W. at 4400. Private persons affected by unlawful 
discrimination should not be required to depend on the 
Attorney General to decide whether to commit scarce gov­
ernment resources to a particular case. They must be per­
mitted to protect their own interests and, in so doing, ad­
vance the interest of both racial minorities and the public 
in fair housing.

6 Memorandum of the United States in Support of Petition for 
Certiorari, p.4.



9

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

J ack  G reenberg 
J am es M. R abbit , III 
Charles S teph en  R alston 
M ic h ael  D avidson

10 Columbus Circle
New York, New York 10019

W illiam  B en n ett  T ijeneb 
A lice  D an iel  
L owell  J ohn ston  

12 Geary Street 
San. Francisco, California 94108

Attorneys for Amicus Curiae



ME1LEN PRESS IN C . —  N . Y. C . «ig§g5> 219