Gladstone Realtors v. Village of Bellwood Brief Amicus Curiae

    In The

Bivprmv GJmtrt at %  ImtTft
October Term, 1978

No. 77-1493
Gladstone Realtors, et a l ,

Petitioners, vs. ’
Village of Bellwood, et al.

Robert A. H intze Realtors, et al.,
yg Petitioners,

Village of Bellwood, et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

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

Charles A. Bane 
T homas D. Barr 

Co-Chairmen
Robert A. Murphy 
N orman J. Chachkin  

Staff Attorneys
Lawyers’ Committee for Civil 

R ights U nder Law 
733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amicus Curiae

W i l s o n  - E p e s  P r i n t i n g  C o . ,  i n c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C ,  2 0 0 0 1



TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............... ...............  1

STATEMENT ........ ......... ........ ..... .............. .............. . 3

SUMMARY OF ARGUMENT ............................... .........  4

ARGUMENT ........... .............................. _..... ...................  5

INTRODUCTION ................. ........................................... 5

I. Individual Respondents Have Standing To Sue 
To Enforce Their Rights To Nondiscriminatory 
Access To The Housing Market And To An In­
tegrated Community Within Which To Live  6

A. Respondents’ Allegations of Direct Injury
Flowing From Petitioners’ Conduct Distin­
guish These Cases From Recent Decisions 
Of This Court In Which A Lack Of Stand­
ing To Sue Was Found___________ __ _ 7

B. The Individual Respondents Have Standing 
To Prosecute These Actions Because The 
Fair Housing Act Affords All Persons The 
Right To Equal Treatment By Realtors With­
out Discrimination On The Basis Of Race
Or Color _______ _____________ _______  IX

C. The Individual Respondents Have Standing
Because Petitioners’ Discriminatory Prac­
tices Interfere With Their Right To Live In 
Integrated Communities ____ _____ ______  18

II. The Village Of Bellwood Has Standing To Bring
This Fair Housing Act Litigation...... ................  23

III. Respondents May Brieg Suit Under 42 U.S.C.
§ 3612 Without Exhausting Administrative 
Remedies As Required Under § 3610_____ ____  25

Page

CONCLUSION 30



II

TABLE OF CITATIONS
ss: Page
Burch V. Goodyear Tire & Rubber Co., 420 F.Supp.

82 (D. Md. 1976), aff’d 554 F.2d 633 (4th Cir.
1977) _______    24

City of Louisville V. National Carbide Corp., 81
F.Supp. 177 (W.D.Ky. 1948) ........     24

Clay V. United States, 403 U.S. 698 (1971) .........  17
Doremus V. Board of Education, 342 U.S. 429

(1952)  ........... ....... ........ .................................... 16
EEOC V. Bailey Co., 563 F.2d 439 (6th Cir. 1977), 

cert, denied, 46 U.S.L.W. 355 (Mar. 6, 1978).... 22
Ehlert V. United States, 402 U.S. 99 (1971) ____  17
Evers V. Dwyer, 358 U.S. 202 (1958) ...................  16
Fair Housing Council V. Eastern Bergen County

MLS, 422 F.Supp. 1071 (D.N.J. 1976) _____ 12,19, 21
Gayle V. Browder, 142 F.Supp. 707 (three-judge

D.C. Ala. 1956), aff’d, 352 U.S. 903 (1956) ...... 16
Georgia V. Pennsylvania R.R. Co., 324 U.S. 439

(1945) ________ ___ _____ ________________  24
Grant V. Smith, 574 F.2d 252 (5th Cir. 1978)

(per curiam)  ............................. ........ ..... .........  8
Gray V. Greyhound Lines, East, 545 F.2d 169

(D.C.Cir. 1976) _________      22
Hackett V. McGuire Bros., 445 F.2d 442 (3d Cir.

1971) __________        22
Hawaii V. Standard Oil Co., 405 U.S. 251 (1972).. 24
International Bhd. of Teamsters V. United States,

431 U.S. 324 (1977) .......... ... ........................... . 22
Jones V. Mayer Co., 392 U.S. 409 (1968) _______  3
Jenkins V. McKeithen, 395 U.S. 411 (1969) _____  2
Kelley V. Carr, 442 F.Supp. 346 (W.D. Mich.

1977) ___________    24
Lea V. Cone Mills Corp., 438 F.2d 86 (4th Cir.

1971) ............. ....... ............................................ ____ 22
Linda R.S. V. Richard D., 410 U.S. 614 (1973)___ 9
Linmark Associates V. Township of Willingboro,

431 U.S. 85 (1977) .... ....... ......................... ......19,23-24



I l l

Maine V. M /V  Tamano, 357 F.Supp. 1097 (D.Me.
1973) ______ ____ _____________ ____ _______  24

Meyers V. Pennypack Woods Home Ownership
Ass’n., 559 F.2d 894 (3d Cir. 1977) _________  12, 17

Monell V. Department of Social Services, 46 U.S.
L.W. 4569 (June 6, 1978) _________________  23

Moore V. Townsend, 525 F.2d 482 (7th Cir. 1975)- 
National League of Cities V. Usery, 426 U.S. 833

(1976) ......________________ ______ ___ ___ 12
O’Shea V. Littleton, 414 U.S. 488 (1974) ____ __ 10
Pierson V. Ray, 386 U.S. 547 (1967)__________  16
Schlesinger V. Reservists to Stop the War, 418

U.S. 208 (1974) ____ _____ ___ ___ .____.....______ 10
Sierra Club v. Morion, 405 U.S. 727 (1972) ____  11
Simon V. Eastern Kentucky Welfare Rights Organ­

ization, 426 U.S. 26 (1976) ___ _____ ______ 9,11,21
Smith V. YMCA of Montgomery, 462 F.2d 634

(5th Cir. 1972) ___.... ...... .......... ............ ..............  17
Sullivan V. Little Hunting Park, 396 U.S. 229

(1969) .......... ______..... _____.....___________________  17
TOPIC V. Circle Realty, 532 F.2d 1273 (9th Cir.
1976), cert, denied, 429 U.S. 859 (1976) _______ passim
Trafficante V. Metropolitan Life Ins. Co., 409 U.S.

205 (1972) ______ _______ _____ _________ passim
United States V. Hunter, 459 F.2d 205, (4th Cir.),

cert, denied, 409 U.S. 934 (1972) ___________  15
United States V. Pennypack Woods Home Owner­

ship Ass’n., Civ. No. 76-2557 (E.D.Pa., Novem­
ber 14, 1977), Equal Opp. Hous. 1f 18,017
(P-H) _________________________________  18

United States V. Real Estate One, Inc., 433 F.Supp.
1140 (E.D.Mich. 1977) __ ________ ___ _____.... . 12,13

United States V. Richardson, 418 U.S. 166 (1974) __ 10
United States V. SCRAP, 412 U.S. 669 (1973) 10,11
United States V. Youritan Construction Co., 370 

F.Supp. 643 (N.D.Cal. 1973), modified as to 
relief and aff’d, 509 F.2d 623 (9th Cir. 1975).... 14

Worth- V. Seldin, 422 U.S. 490 (1975) __ ______ passim

TABLE OF CITATIONS—Continued
Page



IV

Waters V, Heublein, Inc., 547 F.2d 466 (9th Cir.
1976), cert, denied, 433 U.S. 915 (1977) _____  22

Welsh V. United States, 398 U.S. 333 (1970) ___  17
Young V. Higbee Co., 324 U.S. 204 (1945) ______ 16
Zuch V. Hussey, 394 F.Supp. 1028 (E.D.Mich.

1975), aff’d and remanded, 547 F.2d 1168 (6th 
Cir. 1977) (per curiam) __ ______ _________  12

CONSTITUTIONAL PROVISION:

U.S. Const. Art. I l l _________ _______________ passim

STATUTES:

42 U.S.C. § 2000a-2000h-6 ___________________ 22, 27
42 U.S.C. § 3601 et seq. ______  -----------------passim

MISCELLANEOUS:

Brief Amicus Curiae of the Lawyers’ Committee 
for Civil Rights Under Law, Warth V. Seldin,

TABLE OF CITATIONS—Continued
Page

422 U.S. 490 (1975) ________ __ __________  20
24 CFR §§ 105.2(f), 105.12 (1977) ..... ................ . 23
114 Cong. Rec.

4570 (February 28, 1968) _______________  13
4571 (February 28, 1968) ______________  13
5515-17 (March 6, 1968) .... ..................... .......  13
5990 (March 11, 1968) .......................... ........  28
9560 (April 10, 1968) ____ ____________ _ 28
9567-9568 (April 10, 1968)  ........... .......... . 28-29
9609-9612 (April 10, 1968) ..... ................  29



In The

(Emtrt o f %  l i t t M
October T er m , 1978

No. 77-1493

Gladstone  R ealtors, et a l,
Petitioners,

vs.

V illage of B ellwood , et al.

R obert A. H in t z e  R ealtors, et a l,
Petitioners,

vs.

V illage of B ellwood , et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Seventh Circuit

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

Interest of Amicus Curiae *

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President of 
the United States to involve private attorneys throughout 
the country in the national effort to assure civil rights to

* The parties’ letters of consent to the filing- of this brief are being 
filed with the clerk pursuant to Rule 42(2).



2

all Americans. The Committee's membership today in­
cludes former Attorneys General, past Presidents of the 
American Bar Association, former Solicitors General, a 
number of law school deans, and many of the nation’s 
leading lawyers. Through its national office in Washing­
ton, D.C., and its offices in Jackson, Mississippi and eight 
other cities, the Lawyers’ Committee over the past fifteen 
years has enlisted the services of over a thousand mem­
bers of the private bar in addressing the legal problems of 
minorities and the poor in voting, education, employment, 
housing, municipal services, the administration of justice, 
and law enforcement.

The Lawyers’ Committee and its local committees, affili­
ates, and volunteer lawyers have been actively engaged in 
providing legal representation to those seeking relief un­
der federal civil rights legislation. That litigation includes 
cases raising housing discrimination issues similar to 
those presented here. Our interest in this case, however, 
involves the most basic concern of the Lawyers’ Commit­
tee: the right of Americans to have their claims for civil 
rights adjudicated on the merits in federal court.

The instant case is a challenge under the Fair Housing 
Act of 1968 to discriminatory action based on race: the 
alleged limitation or exclusion of minority-race citizens 
from residence in a community by the action of realtors 
and real estate salesmen. The court of appeals has held, 
correctly in our view, that those who are indirectly 
affected and injured by such discrimination, as well as its 
most immediate and direct objects, have “standing” in the 
federal courts to present the challenge. Petitioners urge, 
however, that this Court pronounce a far narrower rule 
limiting effectuation of the rights established by the Con­
gress to only those persons having a fully matured inten­
tion and ability to- purchase realty at the time discrimi­
natory acts directed toward them individually take place. 
A limitation of this sort would cripple our efforts, and



3

those of others, to open to minority Americans housing 
opportunities which until now have been closed to them 
because of their race.

Such a ruling would be inimical to the congressional 
purposes and national policy underlying most, if not all, 
of the substantive and jurisdictional civil rights legisla­
tion, including in particular the 1968 Fair Housing Act. 
The approach to standing under that statute urged by 
petitioners, and adopted by the Ninth Circuit in TOPIC 
V. Circle Realty, 532 F.2d 1273 (9th Cir. ), cert, denied, 
429 U.S. 859 (1976), cannot be harmonized with the 
statutory language, the legislative history, or this Court’s 
past rulings. Because amicus believes that a civil rights 
statute should be given “a sweep as broad as its language” 
and that the federal courts “are not at liberty to seek 
ingenious analytical instruments” 1 for evading congres- 
sionally mandated civil rights jurisdiction, we have a vital 
interest in this case which is broader than that of the 
immediate litigants. The Lawyers’ Committee therefore 
files this brief as friend of the Court urging affirmance, 
but addresses only the critical standing issues under the 
Fair Housing Act.

Statement

The relevant facts are not in dispute. Individual re­
spondents, six residents of Bellwood and one resident of 
adjacent Maywood, Illinois, visited petitioners’ real estate 
sales offices in 1975 to inquire about available housing in 
the area. On these visits, black and white individuals or 
couples represented themselves to have similar interests 
and desires with respect to size, quality and location of 
housing. Respondents found that they were treated dif­
ferently, and shown housing in different areas, depending 
upon the color of their skin. Joined by the Village of 
Bellwood and the Leadership Council for Metropolitan

1 Jones v. Mayer Co., 392 U.S. 409, 437 (1968).



4

Open Communities, the individual respondents then filed 
suits under the Fair Housing Act of 1968, Title VIII of 
the Civil Rights Act of 1968, 42 U.S.C. § 3612, and the 
Civil Rights Act of 1866, 42 U.S.C. § 1982.

The district court dismissed the actions on the ground 
that all plaintiffs lacked standing, although it indicated 
that at least the individual respondents would have had 
standing under § 810 of the Fair Housing Act, 42 U.S.C. 
§ 3610, had they filed administrative complaints with the 
Department of Housing and Urban Development (HUD) 
before commencing suit. On appeal, the Seventh Circuit 
reversed as to the individual respondents and the Village 
of Bellwood.

Summary of Argument

Since, as established below, the individual respondents 
have an enforceable right under the Fair Housing Act of 
1968 to reside in an integrated community whose housing 
market is open to persons without regard to race, they 
have standing under Article III to attack discriminatory 
practices which directly affect this right under Trafficante 
v. Metropolitan, Life Ins. Co., 409 U.S. 205 (1972), even 
though they themselves were not excluded from such com­
munities or were not members of the racial group which 
was subjected to the discriminatory practices.

Moreover, because the petitioners’ alleged racial steer­
ing denied the individual respondents other rights guaran­
teed them by the Fair Housing Act—the right to equal 
treatment by realtors without regard to race or color— 
there is an independent ground for standing under Arti­
cle III which does not implicate the “prudential” standing 
rules restricting litigation of third-party rights.

The Fair Housing Act affords all persons the right to 
equal treatment by realtors without regard to race or 
color in 42 U.S.C. § 3604(a), which prohiibts racial dis­
crimination in negotiating for the sale or rental of hous­



5

ing or “otherwise mak[ing] unavailable or denying]” 
such housing. Thus, respondents, even though they are 
not bona fide offerors, have standing to contest direct 
injuries sustained by them when racial steering precludes 
negotiation for and “otherwise makes unavailable or 
denies” housing because of race or color. The statutory 
language itself, its history and relevant case law estab­
lish that respondents’ reading of the critical language is 
correct.

The 1968 Fair Housing Act, as interpreted by this 
Court in Trafficante, supra, establishes respondents’ right 
to live in an integrated society. Petitioners’ suggestion 
that this right is geographically limited to a single apart­
ment complex cannot withstand reasoned analysis. Thus, 
the court of appeals’ ruling sustaining respondents’ stand­
ing to sue on this basis was correct.

The Village of Bell wood, too, has standing on several 
different grounds. First, as recognized by the court of 
appeals, the petitioners’ alleged racial steering causes in­
jury to the Village’s resources and tax base. Second, it is 
a “person aggrieved” by discriminatory practices which 
the Fair Housing Act outlaws. Third, at least with re­
spect to injunctive relief, the Village has a form of 
parens patriae standing to end conditions which injure 
its citizens.

ARGUMENT

Introduction

Petitioners here urge on both statutory and constitu­
tional grounds that the district court correctly dismissed 
these actions. They agree with the construction of the 
Fair Housing Act of 1968, 42 U.S.C. §§ 3601 et seq., first 
enunciated in TOPIC V. Circle Realty, 532 F.2d 1273 (9th 
Cir.), cert, denied, 429 U.S. 859 (1976). That interpre­
tation would strictly limit the right to sue under § 3612 
to those parties against whom discriminatory acts are



6

primarily directed—i.e., to minority persons who are pre­
vented from buying or leasing housing—while recognizing 
a broader right to sue under § 3610 (including others 
affected by discriminatory devices) following filing of 
complaints with HUD. Since these actions were originally 
commenced by respondents under § 3612 without following 
the administrative route, that construction of the statute 
would be dispositive.

However, petitioners also argue that whatever the cor­
rect interpretation of the statute, respondents are with­
out standing to sue under Article III of the Constitution. 
We demonstrate first, therefore, that the respondents have 
alleged personal, direct injury resulting from petitioners’ 
conduct sufficient to show the existence of a, “case or con­
troversy” within the federal judicial power; and second, 
that the Fair Housing Act authorizes them to sue for 
redress without exhausting the Act’s alternative adminis­
trative remedy.

I

Individual Respondents Have Standing To Sue To En­
force Their Rights To Nondiscriminatory Access To The 
Housing Market And To An Integrated Community 
Within Which To Live

The individual respondents in these cases have suf­
fered 2 two quite distinct injuries as a result of petition­
ers’ conduct, either of which is sufficient to confer Arti­
cle III standing.3 As persons who sought access to the 
housing market, they were injured by the actions, of the

2 The district court in these cases granted motions for summary 
judgment on the basis of a lack of standing. Under the circum­
stances, the allegations of the complaints must be taken as, true. 
E.g., Jenkins v. McKeithen, 395 U.S. 411 (1969).

3 We deal in Argument III, infra, with the question whether 
the Congress intended that judicial redress of these injuries be 
available under 42 U.S.C. § 3612 without resort to, the administra­
tive complaint process of HUD, see 42 U.S.C. § 3610.



7

petitioners which directly restricted their access on 
grounds of race or color. As citizens of Bellwood and 
its environs, they were injured because petitioners’ ac­
tions directly impeded their right to live in an integrated 
community (in which the housing market is open to all 
without limitation on the basis of race or color).

A. Respondents’ Allegations Of Direct Injury Flowing 
From Petitioners’ Conduct Distinguish These Cases 
From Recent Decisions Of This Court In Which A 
Lack Of Standing To Sue Was Found

This case raises the question not reached in Worth v. 
Seldin, 422 U.S. 490, 513 n.21, 514 (1975)—the extent to 
which the Fair Housing Act of 1968, by creating an 
enforceable right to reside in communities to which ac­
cess is not limited by racial discrimination, permits suits 
to eliminate discriminatory practices to be brought by 
individuals who either were not themselves excluded from 
such communities, or who are not members of the minor­
ity groups sought to be excluded.4 In Trafficante v. 
Metropolitan Life Ins. Co., supra, this Court recognized 
that the Act expanded “standing” to its constitutional 
limits and permitted such suits, at least by residents of 
the same apartment complex in which discrimination was 
alleged to have taken place. Whether residents of the 
same city or metropolitan area alleged to be affected by 
discrimination also have standing was not decided in 
Warth because plaintiffs in that case made no claim 
under the 1968 Act. 422 U.S. at 514. Hence the issue is 
one of first impression here.

4 The court of appeals viewed the Act as authorizing- such suits 
and declared that respondents had standing on this ground. It 
relied on Trafficante, see text supra, in holding that prudential 
standing limitations did not bar respondents from litigating to en­
force the rights of those whom, petitioners allegedly sought to bar 
from residence in Bellwood because of their race or color.



8

The individual respondents also have standing by vir­
tue of their allegations that petitioners denied them other 
rights guaranteed by the Fair Housing Act, See § I-B 
infra. In our view, these allegations do not implicate the 
‘‘prudential” standing rules restricting litigation of third- 
party rights 5 6 and they distinguish this case from Worth 
and other recent decisions of this Court in which various 
plaintiffs were found to lack standing to sue in federal 
court.0

Unlike the plaintiffs in Worth (who had no direct con­
tact with defendant Town of Penfield officials7 whose 
actions allegedly impinged on plaintiffs’ claimed right to 
live in Penfield and on interveners’ claimed right to build 
low- and moderate-income housing in the Town), indi­
vidual respondents in these cases went to the petitioners’ 
offices to seek housing. Their claims of discrimination are 
based on experiences personal to them, not upon the pre­
sumed effect of petitioners’ conduct toward others.8 Thus,

5 See note 5 supra.

6 Amicus primarily argues respondents’ standing on this ground 
(see § I-B infra), which involves recognition of important interests 
secured by the Fair Housing Act but not perceived by the courts 
below or by the Ninth Circuit in TOPIC, supra. Compare Grant v. 
Smith, 574 F .2d 252 (5th Cir. 1978) (per curiam). Contrary to the 
suggestion in Petitioners’ Brief at 41 n.15, respondents have never 
conceded that they suffered no injury by virtue of denial of their 
“right to select housing without regard to race.” Their only admis­
sion was that they did not intend to make bona fide offers to pur­
chase. Compare Petition for Writ of Certiorari, Appendix at 2 n.l 
(opinion of district court). Amicus also supports the rationale of 
the court of appeals. See § I-C and Argument II infra.

7 The exception was the Penfield Better Homes Corporation, but 
this Court found the allegations of the complaint and supporting 
papers insufficient to demonstrate a current, live controversy be­
tween that member of the Housing Council and the Town. 422 IT S 
at 517.

8 I t is doubtless true that in order to make out a case on the 
merits, and to justify particular relief, respondents are likely to 
ask the district court to draw inferences from their personal ex-



9

this matter involves neither an indirect form of discrimi­
nation nor the possibility that the discrimination will 
continue even if the practices which respondents’ suits 
attack are changed. In Warth, the plaintiffs’ allegations

suggest [ed] . . . that their inability to reside in 
Penfield is the consequence of economics of the area 
housing market, rather than of respondents’ assert- 
edly illegal acts.

422 U.S. at 506. Here, on the contrary, the allegation is 
that petitioners engage in racial steering of prospective 
home buyers in and around Beliwood in violation of fed­
eral law, that they practiced such steering directly upon 
respondents when respondents visited their offices, and 
that such steering violates respondents’ right to live in 
communities to which access is not limited by racially 
discriminatory practices. Clearly, if respondents succeed 
in this litigation, judicial relief will end such conduct 
toward them by petitioners.

The personal involvement of the individual respondents 
with petitioners also distinguishes this case from Simon 
V. Eastern Kentucky Welfare Rights Organization, 426 
U.S. 26 (1976). There it w* * * 7 *as alleged that defendants’ 
actions encouraged others to make decisions about the 
provision of free medical care which directly affected 
plaintiffs. See 426 U.S. at 42-44. Here, petitioners’ racial 
steering was aimed at the respondents personally (when 
they visited petitioners’ offices) and directly affected the 
communities in which respondents reside.9

periences—such as the inference that the racial steering to which
they were allegedly subjected is typical of petitioners’ practices.
But that does not detract from respondents’ personal involvement
with the agents of the alleged discrimination, an involvement which
this Court found missing in Warth.

9 Simon is also different from this case because it involves a 
challenge to the tax liability of another. See 426 U.S. at 46 (Stewart, 
J., concurring). See also, Linda R.S. V. Richard. D.. 410 U.S. 614, 
617-18 (1973) (“. . . in the unique context of a challenge to a



10

Petitioners suggest also that the respondents lack stand­
ing because they alleged only a “generalized” or “ab­
stract” injury. E.g., Brief for Petitioners at 43-44. In 
one sense, this is an argument that the rights guaran­
teed by the statute do not extend beyond residents of the 
same apartment house to residents of the same munici­
pality or metropolitan area, see id. at 50-51, and is ad­
dressed in Argument III, infra. In another sense, how­
ever, it represents a misapplication of the principles 
enunciated by this Court in Sehlesinger v. Reservists to 
Stop the War, 418 U.S. 208 (1974), and other cases.* 10 
Those rulings establish that individuals who can allege 
no injury greater than that suffered by all other citizens 
as the result of governmental action lack standing to 
challenge the action in federal court. But an injury is not 
so generalized as to be without the scope of Article III 
simply because it is suffered by a large number of indi­
viduals. United States v. SCRAP, 412 U.S. 669, 687-88 
(1973). The fact that all residents of Bellwood and 
neighboring communities are denied the rights guaran­
teed them by the Fair Housing Act when realtors who 
sell homes in Bellwood practice racial steering in no 
sense reduces or eliminates the injury suffered by each 
resident because of such practices. Id., 412 U.S. at 687.

We thus turn to the statute under which respondents 
filed suit. For it is clear, as demonstrated above, that if 
the Fair Housing Act by its terms creates the substantive 
rights wdiieh respondents here claim, petitioners’ actions 
have invaded those rights, and caused injury to respond­
ents.11 Warth v. Seldin, supra, 422 U.S. at 514.

criminal statute, appellant has failed to allege a sufficient nexus 
between her injury and the government action which she attacks 
to justify judicial intervention”).

10 E.g., O’Shea v. Litttleton, 414 U.S. 488 (1974) ; United States 
V. Richardson, 418 U.S. 166 (1974).

11 Of course, statutes cannot remove the Article III requirement 
of an actual case or controversy. But these suits are brought by



11

B. The Individual Respondents Have Standing To Prose­
cute These Actions Because The Fair Housing Act 
Affords All Persons The Right To Equal Treatment 
By Realtors Without Discrimination On The Basis 
Of Race Or Color

In their complaint, the individual respondents asserted 
that the alleged racial steering to which they were sub­
jected by petitioners denied “their right to select housing 
without regard to race.” Village of Bettwood v. Gladstone 
Realtors, 569 F.2d 1013, 1015 (7th Cir.), cert, granted, 
46 U.S.L.W. 3765 (June 12, 1978). This claim was re­
jected by the district court, and as well by the court of 
appeals, which sustained individual respondents’ standing 
on the ground discussed in § I-C, below. These views are, 
we submit, in error.

In Trafficante v. Metropolitan Life Ins. Co., supra, 409 
U.S. at 211, this Court agreed with then Senator Mon­
dale’s statement that the Fair Housing Act of 1968 was 
intended “to replace the ghettos ‘by truly integrated and 
balanced living patterns.’ 114 Cong. Rec. 3422.” Con­
sistent with this characterization, the statute identifies 
expansively the discriminatory practices which it is in­
tended to outlaw. 42 U.S.C. § 3604(a) makes it unlawful

To refuse to sell or rent after the making of a bona 
fide offer, or to refuse to negotiate for the sale or 
rental of, or otherwise make unavailable or deny, a

plaintiffs whose personal involvement with the defendants satisfies 
that requirement and makes judicial determination of their claims 
possible. The policy behind the Article III requirement which re­
sulted in dismissal in Warth and Simon requires that federal courts 
decide legal issues only in suits brought by parties who can show 
how those issues arise in concrete factual settings. To satisfy the 
standing requirement, the parties must, at the least, allege their 
ability to make such a presentation based on first-hand knowledge 
and experience (personal injury). Compare Sierra Club v. Morton, 
405 U.S. 727, 735 (1972) with United States v. SCRAP, supra, 412 
’U.S. at 685. This prerequisite was met by the plaintiffs in the 
instant cases.



12

dwelling to any person because of race, color, religion 
or national origin.

(emphasis supplied). The italicized terms are very broad 
indeed. The “refusal to negotiate” language is independ­
ent of the limiting words, “after the making of a bona 
fide offer,” 12 13 which appear in the first phrase. Thus, rea­
soning from the very structure of the section, we believe 
that the court of appeals erred in concluding that

. . . plaintiffs’ discovery admissions that no bona fide 
homeseekers are in the case negatived the complaints’ 
allegations that personal rights “to select housing 
without regard to race” are implicated here . . . .

569 F.2d at 1015. The statute confers on individuals the 
right to participate in negotiations for the sale or rental 
of property free from racial discrimination whether or 
not they have a bona fide intention to follow through with 
actual lease or purchase. The practice of racial steering 
constitutes a self-imposed limitation (on the ground of 
race or color) of a realtor’s willingness to negotiate.1-3

12 One court has suggested that it is these words which have 
prompted decisions holding that “testers” have no standing. Meyers 
v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 898 
n.4 (3d Cir. 1977).

13 Racial steering practices uniformly have been held to be within 
the coverage of the Act, though generally on the theory that they 
are included within § 3064(a)’s catchall phrase, “otherwise make un­
available or deny.” E.g., Zuch v. Hussey, 394 F. Supp. 1028, 1047 
(E.D. Mich. 1975), aff’d and remanded, 547 F,2d 1168 (6th Cir. 
1977) (per curiam) ; Fair Housing Council v. Eastern Bergen 
County MLS, 422 F. Supp. 1071 (D.N.J. 1976); United States V. 
Real Estate One, Inc., 433 F. Supp. 1140 (E.D.Mich. 1977). Cf. Moore 
V. Townsend, 525 F.2d 482 (7th Cir. 1975). As Judge Stern said in 
Fair Housing Council, supra, 422 F. Supp. at 1075-76:

The real estate broker and the multiple listing service are 
crucial intermediaries between buyers and sellers of resi­
dential real estate. The complaint fairly pleads that the influence 
of these intermediaries extends far beyond any one meeting 
of the minds between an individual purchaser and an individual 
seller.



13

The three phrases of § 3604(a) are in the disjunctive; 
each applies “to any person” but only the first is re­
stricted by the language, “after the making of a bona fide 
offer.” Thus, construing § 3604(a) broadly to effectuate 
the Congressional purpose “to provide, within constitu­
tional limitations, for fair housing throughout the United 
States,” 42 U.S.C. § 3601, the ban on racial steering 
extends to “testers” and other individuals who may not, 
at any given moment, be planning to make bona fide 
offers for the purchase or lease of particular property.

This reading of the statutory language is confirmed by 
the legislative history. Title VIII of the 1968 Civil Rights 
Act did not appear in the original House of Representa­
tives version. It was added by an amendment on the 
Senate floor introduced by Senator Dirksen. 114 Cong. 
Rec. 4570 (February 28, 1968). However, § 204(a) in 
Senator Dirksen’s amendment omitted the language in 
question and would have made it a discriminatory practice

To refuse to sell or rent, to refuse to negotiate for 
the sale or rental of, or otherwise make unavailable 
or deny, a dwelling to any person because of race, 
color, religion, or national origin.

114 Cong. Rec. 4571 (February 28, 1968). The words 
“after the making of a bona fide offer or” were added 
subsequently, as the result of an amendment suggested 
by Senator Allott and accepted by the bill’s Floor Man­
ager, Senator Mondale. 114 Cong. Rec. 5515-16 (March 
6, 1968).

When his amendment was brought up for discussion 
(cloture having been invoked on the bill), Senator Allott 
was very specific about its reach and effect. He stated 
that it

. . . applies to sale or rental—the first four words 
only of line 7.
It will be noted that the latter part of paragraph (a) 
is not conditioned upon a bona fide offer, because the



14

amendment as offered concludes with the word “or” 
rather than “and.”

114 Cong . R ec . 5515 (Mar. 6, 1968). On this basis, the 
amendment was accepted by Senator Mondale and incor­
porated into the bill. Id. at 5516-17.w

In addition, 42 U.S.C. § 8604(b) prohibits discrimina­
tion because of race or color

against any person in the terms, conditions of sale 
or rental of a dwelling, or in the1 provision of services 
or facilities in connection therewith . . .

(emphasis supplied). Just as requiring more onerous 
application procedures for blacks can be viewed as dis­
crimination in the terms or conditions of sale or rental, 
cf. United States v. Youritan Constr. Co., 370 F. Supp. 
643, 648 (N.D. Cal. 1973), modified as to relief and aff’d, 
509 F.2d 623 (9th Cir. 1975) (holding such conduct to be 
within “otherwise make unavailable or deny” language 
of § 3604(a)), so may racial steering practices be inter­
preted to be within the prohibitions of this subsection, 
which bars these prohibited practices from being applied 
to “any person.” 14

14 There was no discussion of this language in the House, which 
passed the Senate version of the bill without change. Ironically, 
petitioners’ extended discussion of the statutory history of the 
“bona fide offer” language of § 204(a) in Brief for Petitioner at 
31-33 underscores the position of Amicus: only with respect to 
allegations that an owner or lessor “refusefd] to sell or rent” must 
a bona fide offer be shown. Senators Allott, Mondale and Cooper 
were sensitive to potential harassment of real estate owners and 
lessors “when the person offering to rent or to buy had no intention 
of renting or buying.” Remarks of Sen. Cooper, quoted in Brief for 
Petitioner at 33. Where, as here, a violation of the statutory pro­
hibition against “refus[ing'] to negotiate” or “otherwise mak[ing] 
unavailable or deny ling]” housing is alleged, the statute reasonably 
does not require a bona fide offer since, of course, there is seldom 
occasion for an offer when the other party “refusefs] to negotiate” 
or “otherwise make[s] unavailable or den[ies]” housing on the basis 
of race. Similarly, an offer would be unlikely if there are illegal 
false representations that a “dwelling is not available for inspection, 
sale or rental”.



15

Finally, 1 3604(d) makes it illegal
To represent to any person because of race, color, 
religion, or national origin that any dwelling is not 
available for inspection, sale, or rental when such 
dwelling is in fact so available.

Racial steering constitutes an implicit, if not a verbal, 
representation about the availability of housing. Hence it 
can be considered within the reach of this subsection. 
Compare United States v. Hunter, 459 F.2d 205, 215 
(4th Cir.), cert, denied, 409 U.S. 934 (1972) (implicitly 
discriminatory advertising; § 3604(c)) ; United States v. 
Real Estate One, Inc., supra n.13 (racial steering effect 
of assignment of black and white employees by realty 
firm).

Thus, we submit, the Fair Housing Act creates sub­
stantive rights of nondiscriminatory access to the hous­
ing market in favor of any person, not just persons who 
make “bona fide offers” to purchase or lease property. 
The issue here presented was recently determined by the 
Court of Appeals for the Fifth Circuit in Grant v. Smith, 
574 F.2d 252, 255 (1978) {per curiam), where the 
Court said:

Both section 1981 and section 1982, as they apply 
here, relate to protection of minority rights to con­
tract for, to purchase, and to lease real property. In 
a similar vein, section 3604(b) protects the right to 
buy or rent without racial distinctions. The plain­
tiffs’ good faith or lack of it would be pertinent to 
the claims asserted under these statutory provisions. 
The same is not true, however, as to the claims as­
serted under sections 3604(a) and (d) which pro­
hibit the refusal to negotiate about or allow inspec­
tion of a dwelling because of race. Both negotiation 
and inspection involve aspects of real estate dealing 
which often, precede the formation of any intent to 
buy or rent on the part of a prospective customer. 
To require a bona fide offer in such circumstances



16

could render these protective provisions of section 
3601* meaningless, [emphasis supplied]

The rights protected under the Fair Housing Act may 
be enforced by individuals whose attempts to exercise 
them are motivated by a desire to “test” compliance with 
the law, as well as by individuals with diverse other 
motivations. This Court has never questioned the stand­
ing of “testers.” In Evers V. Dwyer, 358 U.S. 202, 203 
(1958), the district court had dismissed a challenge to 
Tennessee’s mandatory public transportation segregation 
law because the- plaintiff “had ridden a bus in Memphis 
on only one occasion and had ‘boarded the bus for the 
purpose of instituting this litigation.’ ” Reversing unani­
mously, this Court said {id. at 204) :

We do not believe that appellant, in order to demon­
strate the existence of an “actual controversy” over 
the validity of the statute here challenged, was bound 
to continue to ride the Memphis buses at the risk of 
arrest if he refused to seat himself in the space in 
such vehicles assigned to colored passengers. A resi­
dent of a municipality who cannot use transportation 
facilities therein without being subjected by statute 
to special disabilities necessarily has, we think, a 
substantial, immediate, and real interest in the valid­
ity of the statute which imposes the disability. See 
Gayle v. Browder, 352 U.S. 903, affirming the- deci­
sion of a three-judge District Court (Ala.) reported 
at 142 F. Supp. 707. That the appellant may have 
boarded this particular bus for the purpose of insti­
tuting this litigation is not significant. See Young 
V. Higbee Co., 324 U.S. 204, 214; Dor emus v. Board 
of Education, 342 U.S. 429, 434, 435.

The same principle was applied in Pierson v. Ray, 386 
U.S. 547, 558 (1967), where the Court said of out-of- 
state demonstrators:

The petitioners had the right to use the waiting room 
of the Jackson bus terminal, and their deliberate



17

exercise of that right in a peaceful, orderly, and 
inoffensive manner does not disqualify them from 
seeking damages under i§ 1983.

Accord, Smith v. YMCA of Montgomery, 462 F.2d 634, 
645-46 (5th Cir. 1972); Meyers v. Pennypack Woods 
Home Ownership Ass’n, supra n.12, 559 F.2d at 898.

Furthermore, the doctrine that “bona fide intention to 
lease or purchase” is a necessary element of an individ­
ual’s standing to challenge racial steering practices which 
violate the Fair Housing Act, is simply unworkable. It 
invites useless expenditure of time, energy and resources 
on factual questions which have little relationship to the 
purposes of the Act, in order to determine the subjective 
intentions of plaintiffs. In these cases, for example, peti­
tioners’ discovery focused on the individual respondents’ 
motivations rather than on the issue of discrimination. 
The distinction also is overbroad and invites the sort of 
niggardly interpretation of remedial statutes which the 
Court has refused to countenance. See, e.g., Trafficante 
v. Metropolitan Life Ins. Co., supra; Sullivan v. Little 
Hunting Park, 396 U.S. 229 (1969). If respondents can­
not sue to redress steering because they did not intend 
actually to purchase, what of couples lacking positive 
resolve to relocate who may spend a Sunday afternoon 
looking at available housing with real estate agents? If 
shown property sufficiently attractive to them, an inten­
tion to purchase might rapidly mature. Cf. Ehlert v. 
United States, 402 U.S. 99, 103-04 (1971) (late crystalli­
zation of conscientious objection) ; Clay v. United States, 
403 U.S. 698, 702 (1971), id. at 710 (Harlan, J., con­
curring in the result) (same); Welsh v. United States, 
398 U.S. 333, 336 (1970) (opinion of Black, J.) (same).

That these dangers are not entirely speculative is illus­
trated by the recent case of Meyers v. Pennypack Woods 
Home Ownership Ass’n, supra n.12. In that action 
brought under both the Fair Housing Act and 42 U.S.C.



18

§ 1982, the district court inferred, from the fact of the 
plaintiffs’ residence, that he was “a ‘tester’ rather than a 
bona fide applicant for Pennypack housing,” 559 F.2d at 
897, and denied relief. The court of appeals interpreted 
this as a dismissal for lack of standing, id. at 898, and 
reversed.15 Although the Third Circuit found it unneces­
sary to review the lower court’s “finding of fact” on the 
subject, the history of the case suggests the mischief 
which results from the “bona, fide intention” doctrine.16

C. The Individual Respondents Have Standing Because 
Petitioners’ Discriminatory Practices Interfere With 
Their Right To Live In Integrated Communities

The court of appeals held that these suits should have 
been permitted to proceed to trial on the merits; that 
individual respondents had standing to sue to enjoin 
petitioners’ racially discriminatory practices as residents 
of municipalities affected by those practices. It reasoned 
from the decision in Trafficante, supra, that the 1968 
Fair Housing Act established respondents’ right to “the 
social and professional benefits of living in an integrated 
society,” a right which provided respondents with stand­
ing to challenge petitioners’ racial steering of potential 
home buyers in the towns where respondents lived.17 This

15 Because the court of appeals concluded that plaintiff’s Fair 
Housing Act claim was time-barred, 559 F.2d at 899, its holding 
with respect to standing applies technically only to the claim 
under § 1982. However, the logic of its ruling clearly holds as well 
for Fair Housing Act cases.

16 It is worthy of note in this regard that some of the practices 
attacked by plaintiff Meyers were eventually altered, but only as, the 
result of a consent decree in another suit under the 1968 Act com­
menced by the United States. See United States v. Pennypack Woods 
Home Ownership Ass’n, Civ. No. 76-2557 (E.D. Pa., November 14 
1977), EQUAL OPP. HOUS. ff 18,017 (P-H).

17 Six of the individual respondents are residents of Bellwood; 
they alleged that white potential home purchasers were steered by 
petitioners away from Bellwood to other suburbs or to only certain



19

ruling was manifestly correct and should be affirmed. 
While the right to enjoy the benefits of interracial asso­
ciations granted by the Fair Housing Act may not be so 
compelling as to overcome the limitations of the First 
Amendment, see Linmark Associates v. Township of 
Willing boro, 431 U.S. 85, 94-95 (1977) (citing Traffic 
cante), it is surely an adequate basis for respondents’ 
standing to sue under the Act.

Petitioners argue, however, that this substantive right 
has a geographical limitation—that, in the words of 
another court,

. . .  an apartment complex housing eight thousand 
two hundred tenants is, from an Article III point of 
view, different from a county with a population of 
over nine hundred thousand.

Fair Housing Council v. Eastern Bergen County MLS, 
supra n.13, 422 F. Supp. at 1080-81. We suggest that in 
the context of these challenges to racial steering practices, 
the difference does not affect the standing of the re­
spondents.

Respondents here have much firmer standing under the 
Fair Housing Act than would the plaintiffs in Warth v. 
Seldin, supra, had they raised the statutory issue.18 That 
challenge to the Town of Penfield’s housing ordinances in­
volved residents (members of Metro-Act) who could have 
claimed that the effect of the Town’s zoning scheme was 
to deny them the benefits of interracial associations. See

areas within Bellwood. See Brief for Respondents in Opposition, at 
3-4. The other respondent resides in Maywood—a suburb of Chicago 
adjacent to Bellwood. The racial steering alleged obviously affects 
the Bellwood residents. It is equally true that such steering (even 
if whites are encouraged to settle in Maywood) affects the remain­
ing respondent’s right to reside in an integrated community (May- 
wood) free from manipulation of its real estate market on the basis 
of race or color.

18 See pp. 7-9, supra.



2 0

Brief Amicus Curiae of the Lawyers’ Committee for Civil 
Rights Under Law, IVarth v. Seldin, swpra, at 16. But 
whether that interest of the Town’s residents was affected 
would depend upon whether, in the absence of the zoning 
ordinances, minority citizens could reasonably be expected 
to reside in Penfield. These were precisely the sort of 
allegations which this Court found to be missing from the 
complaint, and to be fatal to the standing of the non­
resident plaintiffs on the non-Title VIII claims in Worth. 
See 422 U.S. at 504-07. Here, to the contrary, the direct 
impact of petitioners’ racial steering practices on the 
residential composition of Bellwood is evident: potential 
white home buyers who contact these firms will be pre­
vented by petitioners’ actions from even considering relo­
cation in the Village and contributing to the preservation 
of its integrated character.

In TOPIC v. Circle Realty, supra, 532 F.2d at 1275, 
the Court suggested In dictum that residents of a metro­
politan area lacked standing to challenge the racial steer­
ing practices of realtors under the Fair Housing Act 
because

[i]t is quite possible that, even absent the defend­
ants’ discriminatory practices, Carson and Torrance 
would still be segregated communities.

This comment misconceives the nature of the inquiry. At 
best, it suggests that the plaintiffs’ claim to standing in 
that suit would have been viewed more sympathetically 
by the court of appeals had all, rather than merely some, 
realty firms operating in the Los Angeles vicinity been 
made defendants. But the fact that an injunction against 
continued steering by some realtors will not by its terms 
end steering by others does not weaken the actual con­
troversy between the named realtors and those living in 
the areas within which steering takes place. It is entirely 
different from the inability of a court—through an in­
junction requiring alteration of regulations of the Internal



21

Revenue Service—to compel hospitals to increase free 
care, Simon v. Eastern Kentucky V/elfare Rights Organi­
zation, supra, or of a court:—through an injunction re­
quiring a change in a town’s zoning plan—to compel the 
construction by third parties of low- and moderate-income 
housing within that town, Worth v. Seldin, supra.

Petitioners’ claim, that the connection between residen­
tial segregation in the Bellwood area and their steering 
practices is attenuated and speculative, is best answered, 
we think, by Judge Stern in Fair Housing Council v. 
Eastern Bergen County MLS, supra, 422 F. Supp. at 
1081:

The alleged discriminatory housing practices and the 
effects of those practices would, if true, cause greater 
injury to the residents of Bergen County than the 
harm alluded to by the residents of the Traffic ante 
housing complex. The fact that the alleged injury 
affects a large number of people in a large geo­
graphic area does not serve to attenuate it. On the 
contrary, it makes the harm more severe. Residents 
of an all white housing complex may need only to 
look to the next residential facility for the interracial 
associations they desire. If the allegations here are 
true, residents of Bergen County may have to go to 
an entirely different neighborhood or community. 
Similarly, a completely white building is less of a 
“ghetto” than a completely white neighborhood or 
community. That the cordon sanitaire has been 
drawn around an entire community rather than a 
single apartment complex does not render it lawful. 
This Court therefore holds that the residents of 
predominantly white neighborhoods have alleged in­
jury in fact sufficient to confer standing to sue for 
violation of the Fair Housing Act, and respectfully 
declines to follow the contrary result suggested in 
TOPIC on appeal. The foregoing analysis applies 
equally with respect to residents of predominantly 
black neighborhoods or communities. These plaintiffs 
also have alleged the requisite injury in fact.



22

In Trafficante, this Court approvingly citecl a decision 
of the Third Circuit in an employment discrimination 
action under Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §§ 2000e et seq., to support its conclusion that 
standing to sue under the 1968 Act- is as broad as Arti­
cle III permits, 409 U.S. at 209, citing Hackett v. 
McGuire Bros., 445 F.2d 442 (3d Cir. 1971).19 20 Similarly, 
in this case the Court should look to Title VII decisions 
which have permitted claims of racial discrimination to be 
raised by those who are harmed indirectly by discrimina­
tion in the workplace, but are not members of the race 
discriminated against, EEOC v. Bailey Co., 563 F.2d 439, 
452-53 (6th Cir. 1977), cert, denied, 46 U.S.L.W. 3555 
(Mar. 6, 1978) ; Waters v. Heublein, Inc., 547 F.2d 466 
(9th Cir. 1976), cert, denied, 433 U.S. 915 (1977), or are 
not direct victims of the particular form of discrimination 
attacked in the suit, Gray v. Greyhound Lines, East, 545 
F.2d 169 (D.C. Cir. 1976) ; Lea v. Cone Mills Corp., 438 
F.2d 86 (4th Cir. 1971).®°

In the instant cases, the individual respondents are just 
as “aggrieved,” see Trafficante, supra, 409 U.S. at 212 
(White, J., concurring) by manipulation of the residen­
tial composition of their living environment at the hands 
of petitioners as were the Trafficante plaintiffs by such 
manipulation at the hands of those who managed the 
apartment complex in which they lived. Thus we believe 
the court of appeals’ ruling sustaining their standing to 
sue on this basis was sound.

19 42 U.S.C. § 2000e-5(b) permits a Title VII suit to be filed 
“by or on behalf of a person claiming to be aggrieved.” The “person 
aggrieved” language also appears in Title VIII, 42 U.S.C. § 3610.

20 Of course, the precise harm suffered by plaintiffs may affect 
the precise type of relief to which they are entitled. Lea V. Cone 
Mills Corp., supra; cf. International Bhd. of Teamsters v. United 
States, 431 U.S. 324, 356-357 (1977). But so long as plaintiffs suffer 
some injury, they have standing to sue.



23

II
The Village Of Bellwood Has Standing To Bring This
Fair Housing Act Litigation

In their complaints, respondents averred that the peti­
tioners steered potential white home buyers to areas 
other than the Village of Bellwood because in recent 
years the black population of that suburb has increased, 
and also that steering of clients within the village was 
practiced. The Village itself joined as a plaintiff in this 
litigation, and its standing was recognized by the court 
of appeals on the basis of the injury to the Village’s re­
sources and tax base (without determining whether it 
would also have standing as the representative of its 
citizenry). 569 F.2d at 1017. Amicus agrees with this 
result, and urges this Court also to recognize the Village’s 
standing on any or all of several grounds.

First, if we are correct in our interpretation of 42 
U.S.C. § 3612, see Argument III infra, then the scope of 
standing under that section is as broad as that under 
§ 3610, and extends to anyone who could file a complaint 
with the Secretary of HUD, i.e., to any “person ag­
grieved” by one or more of the discriminatory practices 
wdiich the Fair Housing Act outlaws. See Trafficante v. 
Metropolitan Life Ins. Co., supra, 409 U.S. at 212 (White, 
J., concurring). Clearly, HUD would accept a complaint 
of racial steering filed by the Village of Belhvood. See 
24 C.F.R. §§ 105.2(f), 105.12 (1977). And there seems 
no more reason to exclude governmental units from the 
term “person aggrieved” than there was to exclude such 
units from the term “person” in Monell v. Department of 
Social Services, 46 U.S.L.W. 4569 (June 6, 1978)—par­
ticularly since the word does not even appear in § 3612, 
but only in § 3610. Enlisting the nation’s municipalities 
in the effort to end residential apartheid—the goal of the 
Fair Housing Act—can hardly be viewed as inconsistent 
with Congress’ intent in passing the statute. Cf. Linmark



24

Associates, Inc. v. Township of Willingboro, supra, 431 
U.S. at 97.

Second, at least where injunctive relief is at issue, a 
municipality ought to be recognized to possess a form of 
parens patriae standing to seek an end to conditions which 
injure its citizens, see Hawaii v. Standard Oil Co., 405 
U.S. 251 (1972) ; Georgia v. Pennsylvania R.R. Co., 324 
U.S. 439 (1945) ; Kelley v. Carr, 442 F. Supp. 346, 356-57 
(W.D. Mich. 1977); Burch v. Goodyear Tire & Rubber 
Co., 420 F. Supp. 82, 85-90 (D. Md. 1976), aff’d 554 
F.2d 633 (4th Cir. 1977) (injury to general economy of 
state) ; Maine v. M jV Tamano, 357 F. Supp. 1097 (D. Me. 
1973), similar to its standing to bring suit to enjoin a 
public nuisance, e.g., City of Louisville V. National Car­
bide Corp., 81 F. Supp, 177 (W.D. Ky. 1948).

Third, the Court of Appeals was plainly correct in its 
view that the racial steering allegedly practiced by peti­
tioners causes real, tangible harm to governmental en­
tities such as the Village of Bellwood. Although they are 
creatures of the States, and can in general exercise only 
such powers as are specifically delegated to them, munici­
palities are formed to further specific societal goals, to 
provide services and protection to their citizenry, and to 
administer responsibilities delegated to or imposed upon 
them by the States. Cf. National League of Cities v. 
Usery, 426 U.S. 833 (1976). Panic selling, manipulation 
of the housing market, and the decline in real estate 
values which can and often does accompany racial steer­
ing constitutes a serious threat to these vital interests of 
municipalities sufficient to afford them standing under 
the Fair Housing Act to seek elimination of such dis­
criminatory practices.

On any or all of these grounds, the judgment below 
should be affirmed with respect to the Village of Bellwood.



25

III
Respondents May Bring Suit Under 42 U.S.C. § 3612 
Without Exhausting Administrative Remedies As Re­
quired Under § 3610

Petitioners here, and the Ninth Circuit in TOPIC v. 
Circle Realty, supra, have constructed an interesting and 
superficially appealing argument which distinguishes be­
tween those persons who may bring Fair Housing Act 
suits under 42 U.S.C. §§ 3610 and 3612, respectively. 
The difficulty with that argument, however, is that it is 
flatly inconsistent with the statutory language and lacks 
the support of even a minute shred of legislative history.

As this Court detailed in Trafficante, supra, § 3610 
establishes an administrative remedy commenced by the 
filing of a complaint with HUD. 409 U.S. at 208. It also 
allows the complaining party to bring a civil action if the 
complaint is not administratively resolved within 30 days. 
Id. at 207 n.4, 209. In Trafficante HUD had accepted, 
but was unable to resolve within 30 days, a complaint 
filed by residents of the Parkmerced apartment complex 
who alleged that they were denied the benefits of inter­
racial associations because of racial discrimination prac­
ticed by the management of the complex. Id. at 207-08. 
This Court held that these § 3610 complainants had stand­
ing to file suit to enforce the Fair Housing Act. The 
Court did not explicitly address § 3612, the Trafficante 
plaintiff’s other claimed jurisdictional base. Id, at 212.

This omission led the Ninth Circuit in TOPIC to con­
struct a novel distinction between § 3610 and 3612. The 
latter states simply:

The rights granted by section 803, 804, 805, and 806 
[§§ 3603, 3604, 3605, and 3606] may be enforced by 
civil actions in appropriate United States district 
courts without regard to the amount in controversy 
and in appropriate State or local courts of general 
jurisdiction. . . .



26

Notably, there is no language restricting access to the 
judicial process to enforce the provisions of the Act. Yet 
the history of the 1968 legislation demonstrates that when 
Congress desired to construct such limitations, it did so 
explicitly. See pp. 13-14, supra (amendment of Sen. 
Allott). Moreover, as we have explicated at some length 
above (§I-B, pp. 11-18), § 804 of the Act (42 U.S.C. 
§ 3604) is broad in its coverage and protects the rights of 
any person; only the right to consummate a transaction 
for the purchase or rental of property requires that the 
person have a bona fide intention to buy or lease. It 
would be extremely anomalous, then, to construe § 3612 
more narrowly than § 3610.21

Petitioners and the Ninth Circuit can support their 
interpretation of the statute only by assuming that Con­
gress could not have intended to have “established an 
administrative remedy and authorized plaintiffs, at their 
discretion, to bypass it.” Village of Bellwood v. Gladstone 
Realtors, supra, 569 F.2d at 1020. Such an interpreta­
tion, petitioners assert, would ignore “a cardinal rule of 
statutory construction: that the sections of a statute must 
be construed ‘in connection with every other . . . section 
so as to produce a harmonious whole.’ 2A C. Sands, 
Sutherland Statutory Construction [sic] § 46.05, p. 56 
(4th ed. 1973).” Brief for Petitioners at 19. On this 
assumption, petitioners develop a set of theories about a 
supposed Congressional preference for the administrative 
remedy under § 3610 which would be inconsistent with

21 Petitioners’ suggestion that the language of § 3612 is nar­
rower than that of § 3610 (Petitioners’ Brief at 22-29) simply de­
fies reasoned analysis. The two portions of the law use entirely 
different phraseology and the mere absence of the words “person 
aggrieved” from a section which allows “ [any] rights granted” 
under the law to be enforced “by civil actions” signifies absolutely 
nothing. The language of § 3612 just as much as that of § 3610 
indicates an intention to define standing as broadly as the Constitu­
tion permits.



27

immediate recourse to the judicial process under § 3612. 
Id. at 20-21.

These arguments are properly addressed to the Con­
gress itself in connection with reconsideration of the Act. 
They are out of place here because they simply do not 
reflect the reality of the statute which has already been 
enacted. There is nothing “inharmonious” about the 
granting of alternative administrative and judicial reme­
dies under §§ 3610 and 3612. Indeed, Congress left to the 
determination of the courts in individual cases the ques­
tion whether the administrative process should be favored, 
by stating in § 3612 a proviso:

That the court shall continue such civil case brought 
pursuant to this section or section 810(d) [i§ 3610] 
from time to time before bringing it to trial if the 
court believes that the conciliation efforts of the Sec­
retary or a State or local agency are likely to result 
in satisfactory settlement of the discriminatory hous­
ing practice complained of in the complaint made to 
the Secretary or to the local or State agency and 
which practice forms the basis for the action in 
court; . . . .

Under the explicit provisions of § 3612, therefore, a court 
may continue an action filed under that section to per­
mit conciliation efforts by a local or State agency even 
though no complaint has been made to HUD. And the 
Congress failed to include in this section either a require­
ment of mandatory pre-filing with the Secretary of HUD 
or of mandatory reference to HUD by the district courts,®

Although petitioners hypothesize a conflict between the 
holding below and the intention of the Congress, they 
point to no indications in the legislative history of the 
statute demonstrating that hypothetical Congressional

22 Compare 42 U.S.C. § 2000e-5(f) (Title VII employment dis­
crimination suit may be brought only after filing charge with 
EEOC; no provision parallel to §3612 in Title VII).



28

purpose. To the contrary, the legislative history demon­
strates conclusively that the administrative and judicial 
remedies were to be independent alternatives (except as 
provided in § 3612’s conditional clause, quoted above). 
The Senate, in which chamber the bill’s fair housing pro­
visions originated (see p. 13, supra), in fact distrusted 
an exclusively administrative remedy and wished to as­
sure access to the courts. After the final version of the 
bill was passed, Senator Hruska expressed the sentiment 
forcefully:

The improvements in this bill are many. For exam­
ple, in its original provisions, the housing measure 
bypassed our judicial system. It would have settled 
all disputes in this field, including the validity of title 
to real estate, through administrative processes with 
no effective rights of appeal—a concept which I hope 
will never again intrude itself upon this body.

114 Cong . R ec . 5990 (March 11, 1968). When the bill 
reached the House, its proponents and opponents alike 
viewed §§ 810 and 812 as creating alternative remedial 
tools. Judiciary Committee Chairman Celler provided a 
summary of the bill’s major provisions, in the course of 
which he stated, 114 Cong . R ec . 9560 (April 10, 1968) :

Enforcement: HR 2516 provides three methods of 
obtaining compliance: administration conciliation, 
private suits, and suits by the Attorney General for 
a pattern or practice of discrimination.

Private civil actions: In addition to administrative 
remedies, the bill authorizes immediate civil suits by 
private persons within 180 days after the alleged 
discriminatory housing practice occurred. . . .

Representative Cramer opposed acceptance of the Senate 
version in toto, and presented a list of reasons why the 
bill in his view should have been sent to a Conference 
Committee, 114 Cong . Rec. 9567 (April 10, 1968). One 
of these was as follows, id. at 9568:



29

(9) Open Housing as drafted in the Senate is un­
workable in that it is implemented on the Federal 
level only through HUD with powers only to per­
suade, conciliate and regulate. The only other rem­
edy is through civil action in U.S. or State courts 
[then describing provision for award of attorneys’ 
fees to plaintiffs only] . . . .

Minority Leader Ford pointed to a Judiciary Committee 
staff memo comparing the bill originally passed by the 
House and the Senate substitute, id. at 9609, including 
this description, id. at 9612:

Section 812 states what is apparently an alternative 
to the conciliation-then-litigation approach above 
stated: an aggrieved person within 180 days after 
the alleged discriminatory practice occurred, may, 
without complaining to HUD, file an action in the 
appropriate U.S. district court.

No disagreement with these conclusions was ever voiced, 
and as noted earlier, the House passed the Senate version 
of the bill without change.

The Ninth Circuit’s elaboration of different functions 
for civil actions brought under §§ 3610 and 3612 (resting 
on the need for emergency relief), 532 F.2d at 1376, rep­
resents little more than that court’s views on a policy 
issue which has been settled by the Congress. Because the 
language and legislative history of the 1968 Fair Housing 
Act establish §§ 3610 and 3612 as truly independent and 
alternative remedial approaches to compliance with the 
Act, it is improper for the federal courts to place addi­
tional limits upon the right to sue under § 3612. Appro­
priate judicial restraint and respect for Congress’ author­
ity was exercised by the court of appeals in the instant 
matter and by the numerous other courts which have 
refused to follow TOPIC. See Brief for Respondents in 
Opposition, at 16. The result they reached should be 
affirmed and this Court should specifically disapprove the 
TOPIC construction.



30

Conclusion
For the foregoing reasons, amicus respectfully submits 

that the judgment below should be affirmed.

Charles A. Bane 
T homas D. Barr 

Co-Chairmen
Robert A. Murphy 
N orman J. Ch achk in  

Staff Attorneys
Lawyers’ Committee for Civil 

R ights U nder Law 
733 15th Street, N.W. 
Washington, D.C. 20005

Attorneys for Amicus Curiae