1

United States Court of Appeals

Fifth Circuit

FILED

March 4, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10946

 

DEBRA WALKER; ET AL

Defendants

DEBRA WALKER; JEANETTE WASHINGTON; HAZEL WILLIAMS; ZELMA

LANG; RENITA BROWN; LILLIE THOMPSON;

Plaintiffs - Appellees

TRACEY SMITH

Intervenor Plaintiff - Appellee

v.

CITY OF MESQUITE, TX; ET AL

Defendants

v.

HIGHLANDS OF MCKAMY IV AND V COMMUNITY IMPROVEMENT

ASSOCIATION; GINGER LEE; PRESTON HIGHLANDS HOMEOWNERS’

ASSOCIATION INC; DAVID BEER;

Appellants

 

HIGHLANDS OF MCKAMY IV AND V COMMUNITY IMPROVEMENT

ASSOCIATION; GINGER LEE; PRESTON HIGHLANDS HOMEOWNERS’

ASSOCIATION INC; DAVID BEER;

Plaintiffs - Appellants

v.

HOUSING AUTHORITY OF THE CITY OF DALLAS

Defendant - Appellee
1For a detailed history of this matter, see our opinions in

Walker v. City of Mesquite, 169 F.3d 973 (5th Cir. 1999), and

Walker v. HUD, 912 F.2d 819 (5th Cir. 1990).

2

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Appeal from the United States District Court

 for the Northern District of Texas

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Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

This case concerns a lawsuit filed by Appellants, residents

of a neighborhood in Dallas, Texas, against the Dallas Housing

Authority (“DHA”), Appellee, to enjoin it from constructing

public housing in their community. The residents allege that

DHA’s decision to build on this particular property (“the

Hillcrest Site”) violates their Fourteenth Amendment equal

protection rights. The district court found no constitutional

violation and permitted the construction to go forward. For the

reasons that follow, we affirm the district court’s ruling.

I. Background

The long saga of this case began in 1985 with a lawsuit

filed on behalf of African-American plaintiffs against DHA.1 It

alleged, inter alia, that DHA engaged in systematic racial

segregation through its construction and maintenance of public

housing in Dallas. In order to settle the claim that it

consciously failed to locate public housing in predominantly

white neighborhoods, DHA agreed to a 1987 consent decree
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integrating Dallas public housing. In 1994, after repeated

breaches of the consent decree, DHA and the plaintiffs in that

case negotiated a remedial order which was then imposed by the

district court.

The remedial order required, inter alia, that DHA construct

public housing in “predominantly white areas” to remedy past

segregation. In compliance with the remedial order, DHA

purchased two such sites in Dallas, the McCallum Site and the

Hillcrest Site. In 1996, homeowners in these areas sued to

enjoin construction, arguing that the remedial order violated

their equal protection rights by requiring public housing in

“predominantly white areas.” The district court denied the

homeowners’ request for an injunction.

The homeowners appealed that decision to this Court in 1999

and we reversed. See Walker, 169 F.3d 973. Specifically, we

held that a race-conscious remedy was not required to ameliorate

segregative policies at DHA and thus the district court’s order

was not narrowly tailored. See id. at 985. Construction on the

Hillcrest and McCallum Sites was enjoined pending the district

court’s revision of the remedial order to comply with this

Court’s opinion. See id. at 988. Significantly, the opinion did

“not preclude the construction or acquisition of additional

public housing if sites [were] selected by means of nonracial

criteria.” Id.
2Appellants ask us to apply a less deferential standard of

review because of the constitutional nature of this case. 

Contrary to Appellants’ assertions, the proper standard of review

for factual findings in equal protection cases like this is clear

error. See Women’s Med. Ctr. of Northwest Houston v. Bell, 248

F.3d 411, 419 (5th Cir. 2001); Theriot v. Parish of Jefferson,

185 F.3d 477, 484 (5th Cir. 1999). Appellants’ contention that,

because the district court largely adopted the proposed findings

of facts submitted by Appellees, we should not use the clear

error standard is similarly unpersuasive. Even if proposed

findings of fact are adopted by the trial court, absent

extraordinary circumstances, this Court continues to review them

for clear error. See Anderson v. Bessemer City, 470 U.S. 564,

4

In 2001, the district court modified the vacated remedial

order to remove all references to the race of residents in areas

in which public housing could be constructed. The only racial

classifications it contained were those prohibiting DHA from

discriminating against African-Americans in its housing policies. 

The order still required DHA to construct some public housing. 

DHA subsequently filed a motion to allow it to build on the

Hillcrest Site. Appellants again objected on equal protection

grounds and, in December 2003, the district court held a hearing

on the motion. On May 18, 2004, the district court entered its

findings of fact and conclusions of law, granting DHA’s motion

for approval of Hillcrest as a public housing site. It dismissed

with prejudice Appellants’ suit the following month. This appeal

followed.

II. Discussion

We review the district court’s findings of fact for clear

error and its conclusions of law de novo.

2 Ayers v. Thompson,
572 (1985); Marine Shale Processors Inc. v. EPA, 81 F.3d 1371,

1386 (5th Cir. 1996).

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358 F.3d 356, 368 (5th Cir. 2004). “A factual finding is not

clearly erroneous as long as it is plausible in the light of the

record read as a whole.” United States v. Cluck, 143 F.3d 174,

180 (5th Cir. 1998).

Appellants claim that DHA’s decision to construct public

housing on the Hillcrest Site violates their equal protection

rights under the Fourteenth Amendment. For cases like this,

where the challenged governmental action is facially raceneutral, “[p]roof of racially discriminatory intent or purpose is

required to show a violation of the Equal Protection Clause.” 

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265

(1977). Accord Washington v. Davis, 426 U.S. 229, 240 (1976)

(stating that “the invidious quality of a law claimed to be

racially discriminatory must ultimately be traced to a racially

discriminatory purpose”). “Once racial discrimination is shown

to have been a ‘substantial’ or ‘motivating’ factor,” the burden

shifts to those supporting the governmental action to show that

the same course would have been pursued absent the

discrimination. Hunter v. Underwood, 471 U.S. 222, 228 (1985).

The district court found, inter alia: “DHA’s present

intention to build public housing on the Hillcrest Site is not

based on any racial consideration”; “An intent to discriminate on
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the basis of race is not a substantial or motivating factor in

DHA’s present intention to build public housing on the Hillcrest

Site, and, in fact, was not a factor at all”; “The Hillcrest Site

meets HUD’s and the court’s requirements and is the best site

available in the entire city”; and “DHA would have decided to

build public housing on the Hillcrest Site absent the

‘predominantly white area’ requirement.” Additionally, it

concluded that DHA’s decision is not “traceable” to the prior

impermissible race-conscious selection criteria. In short, the

district court found that DHA did not consider race when deciding

to build on the Hillcrest Site in 2001, and, regardless of any

past improper considerations, DHA still would have built on the

site because it is such an ideal location for public housing. 

Appellants fail to show that the district court’s conclusions are

clearly erroneous. Although the parties contest specific factual

matters, the record, taken as a whole, does show that the

district court’s findings of fact are plausible. Thus, we find

no constitutional violation.

Appellants also argue that DHA’s actions relating to the

Hillcrest Site run afoul of the Fourteenth Amendment because its

site selection can be traced to its prior unconstitutional

activity. They contend that, regardless of DHA’s current

intentions, the decision to build public housing on the Hillcrest

Site is unconstitutional as a matter of law. They base their
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argument on the Supreme Court’s ruling in United States v.

Fordice. 505 U.S. 717 (1992).

The Fordice Court found that Mississippi had not “met its

affirmative duty to dismantle its prior dual university system.” 

Id. at 728. Rather, the state university system continued to

maintain separate institutions, each largely restricted to a

single race, through “practices traceable to its prior de jure

dual system.” Id. Such government-fostered, educational

segregation runs afoul of Brown v. Board of Education, 347 U.S.

483 (1954), and its progeny. Id. at 727-28. Specifically, the

Supreme Court concluded that a state like Mississippi, which had

maintained a de jure dual higher education system, “does not

discharge its constitutional obligations until it eradicates

policies and practices traceable to its prior de jure dual system

that continue to foster segregation.” Id. at 728. “If the State

perpetuates policies and practices traceable to its prior system

that continue to have segregative effects . . . and such policies

are without sound educational justification and can be

practicably eliminated, the State has not satisfied its burden of

proving that it has dismantled its prior system.” Id. at 731. 

Appellants seek to analogize to Fordice by characterizing DHA’s

retention of and subsequent decision to develop Hillcrest as a

“racially neutral” policy “animated by a discriminatory purpose.” 

Id. at 731-32.
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It is clear to us that DHA’s current plan to build on the

Hillcrest Site cannot be reasonably characterized as a

continuation of an unconstitutional policy or practice such as

that described in Fordice.

For the foregoing reasons, we AFFIRM the district court’s

decision.