Revised April 6, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-11083

_______________________

DEBRA WALKER, ET AL,

Plaintiffs,

DEBRA WALKER; JEANETTE WASHINGTON; HAZEL

WILLIAMS; ZELMA LANG; RENITA BROWN; LILLIE THOMPSON,

Plaintiffs-Appellees,

TRACEY SMITH,

Intervenor Plaintiff-Appellee,

versus

MESQUITE TX, CITY OF, ET AL,

Defendants,

DEPARTMENT OF HOUSING & URBAN DEVELOPMENT,

Defendant-Appellee.

********************************

HIGHLANDS OF McKAMY IV AND V COMMUNITY IMPROVEMENT

ASSOCIATION; GINGER LEE; PRESTON HIGHLANDS HOMEOWNERS’

ASSOCIATION, INCORPORATED; DAVID BEER,

Plaintiffs-Appellants,

versus

THE HOUSING AUTHORITY OF THE CITY OF DALLAS,

Defendant-Appellee.

_________________________________________________________________* District Judge of the Western District of Louisiana, sitting by

designation.

1 The two homeowners’ associations are: (1) Highlands of McKamy IV and V

Community Improvement Association and (2) Preston Highlands Homeowners’

Association, Inc.

2

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

March 16, 1999

Before JONES, SMITH, Circuit Judges, and SHAW * , District Judge.

EDITH H. JONES, Circuit Judge:

The Dallas Housing Authority (DHA), the United States

Department of Housing and Urban Development (HUD), and the City of

Dallas were found liab le several years ago for unconstitutional

racial discrimination and segregation within Dallas’s public

housing programs. The primary issue on this appeal is the

constitutionality of the provision of the district court’s most

recent remedial order that directs newly constructed units of

public housing to be loc ated in “predominantly white” Dallas

neighborhoods.

Specifically, this is an appeal from a final judgment in

two actions that were consolidated for trial. In the first action,

two homeowners and their homeowners’ associations (“Homeowners”)

sought declaratory and injunctive relief against DHA’s construction

of two new public housing projects adjacent to their

neighborhoods. 1 The Homeowners challenged the remedial order’s3

provisions for new public housing construction and race-conscious

site selectio n alleging that these were not narrowly tailored to

remedy the vestiges of past discrimination and segregation. In the

second action, the original class plaintiffs, tenants in the public

housing programs, sought declaratory relief that the remedial order

provisions are constitutional. The district court entered judgment

against the Homeowners in the first action and for the class

plaintiffs in the second action. The Homeowners appealed. We

essentially vacate and remand for fur ther consideration by the

district court.

I. BACKGROUND

Part of the convoluted history of this case is concisely

recounted in Walker v. HUD

, 912 F.2d 819, 821-25 (5th Cir. 1990)

[hereinafter Walker IV ]. We will not repeat that history here, but

some impo rtant procedural and substantive gaps in this court’s

prior opinion, which addressed different issues, should be filled

in.

This case began in 1985 and initially resulted in a

consent decree, which was approved by the district court in 1987.

See Walker v. HUD

, 734 F. Supp. 1231, 1247-82 (N.D. Tex. 1989)

[herei nafter W alker I ] (reprinting the district court’s 1987

consent decree and its “Findings of Fact & Conclusions of Law

Approving the Proposed Consent Decree”). The consent decree2 The consent decree defined the plaintiff class as “all black persons

presently or who during the pendency of this Decree become either (a) residents

of a DHA owned or managed project, or (b ) participants in the DHA Section 8

Existing Housing Program.” See Walker I, 734 F. Supp. at 1263.

The plaintiff class wil l be referred to throughout this opinion as the

“Walker plaintiffs.” Deborah Walker is one of the named plaintiffs representing

the class.

3 “Public housing units” refer to housing units owned and operated by DHA.

In contrast, under DHA’s Section 8 certificate and voucher programs, participants

rent housing units from private owners, and their rents are subsidized by DHA.

4 In 1994, of DHA’s approximately 6,400 public housing units, 6,100 were

in minority areas and 300 were in predominantly white areas. An additional 75

units are currently under construction or just completed in a predominantly white

area (Frankford & Marsh project), and the units at issue in this lawsuit would

add another 80 units to predominantly white areas of Dallas.

4 addressed the plaintiff class’s 2 challenge under the Equal

Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983

to the purposeful rac ial discrimination and segregation within

DHA’s public housing programs. The defendants were DHA and HUD.

The City of Dallas was joined as both a defendant to the lawsuit

and a party to the consent decree in 1989. S ee Walker v. HUD

, 734

F. Supp. 1289 (N.D. Tex. 1989) [hereinafter Walker III ]. The

history of public housing in Dallas is a sordid tale of overt and

covert racial discrimination and segregation. S ee generally Walker

III

, 734 F. Supp. at 1293-1312 (recounting in detail the history of

public housing in Dalla s). Virtually all non-elderly public

housing units 3 were constructed in minority areas of Dallas. 4 No

new public housing units were built between 1955 and 1989 at least

in part for fear that they might be located in white areas. Tenant

selection and assignment procedures for public housing units were

crafted and administered to maintain racially segregated projects.5 The West Dallas project was completed in 1955 and contained 3,500 units.

In many ways, it is at the heart of this litigation. It was constructed to solve

the “Negro housing problem.” See Walker III , 734 F. Supp. at 1295. It is the

second largest public housing project in the United States. S ee i d. at 1296

n.21. As of 1983, one-third of its units were so dilapidated as to be

uninhabitable. See id. at 1307. In 1986, rejection rates for available units

in the West Dallas project ranged from 58-60%. S ee id

. at 1308. At that time,

there were 1,583 vacant units of which 1,300 had been boarded up for more than

ten years because of their deteriorated state. S ee id. The 1987 consent decree

was d esigned to alter this concentration of public housing by requiring the

demolition of all but approximately 900 of the West Dallas units, the

reconfiguration and rehabilitation of the remaining units, and the creation of

new public housing opportunities in predominantly white areas of the city and its

suburbs.

5 DHA’s Section 8 housing programs were operated to discourage blacks

from moving into white areas of metropolitan Dallas. S ee id.

Blacks were purposefully segregated for decades into either Section

8 housing in minority areas of Dallas or pr edominantly black

housing projects in minority areas of Dallas.

The 1987 consent decree r equired the demolition of

approximately 2,600 units of public h ousing in DHA’s West Dallas

project, a publ ic housing development located in a predominantly

black area of the city and referred to by this court as “one of

Dallas’s worst slums.” 5 W alker IV

, 912 F.2d at 821. These units

were to be replaced on a one-for-one basis with additional public

housing units and Section 8 certificates and vouchers. S ee id. at

822. The decree also required that one hundred newly constructed

replacement units be built in a predominantly white area of Dallas,

t hat a nondiscriminatory tenant selection and assignment plan be

implemented, and that a Section 8 mobility plan be established to6 The Section 8 mobility program was designed to educate landlords about

the Section 8 program and to assist Section 8 participants in locating Section

8 housing in non-minority areas of Dallas. Specifically, the program was to

include landlord recruitment, exceptions to HUD’s “fair market value” rent caps

on Section 8 vouchers and certificates, Title VIII enforcement actions, and child

care and transportation services. The program was also to provide neighborhood

specific information on crime rates, job training and employment opportunities,

day care, medical facilities, neighborhood shopping, transportation, social

services, objective indicators of school quality such as TAAS test results, and

“environmental hazards or other conditions inimical to family life.”

7 The value of a Section 8 voucher or certificate is capped by HUD at the

“fair market rent.” This cap, however, can be increased by special application

to HUD.

6 assist black families joining the Section 8 program in finding

housing in white areas of Dallas. 6

DHA repeatedly violated the 1987 consent decree. First,

it resisted the construction of the 100 units of new public housing

in a predominantly white area. S ee Walker I

, 734 F. Supp. at 1243-

45. Site selection for and construction of the 100 units was

eventually completed, but only by court order. S ee id. Second,

DHA violated the tenant selection and assignment and mobility

provisions of the decree. S ee id

. at 1235-42. DHA failed to

establish and fund the required Section 8 mobility program, failed

to timely obtain fair market exception rents, 7 delayed implementing

a nondiscriminatory tenant selection and assignment program, failed

to include in Section 8 housing information a full list of all

Section 8 units available in non-minority areas, and failed to use

all of the Section 8 certificates and vouchers allocated by HUD to

DHA. See id

.8 These 2,807 units have already been funded by HUD. The 2,807 units are

made up of 774 new public housing units and 2,033 Section 8 certificates and

vouchers. Specifically, the replacement units consist of (i) the 100 units

constructed pursuant to court order from the 1987 consent decree, (ii) 1,335

Section 8 certificates and vouchers previously funded by HUD, (ii i) 339 new

public housing units allocated to DHA in 1990 and 1991 as part of the proposed

2,000 unit West Dallas project, (iv) 335 new public housing units allocated under

HOPE VI in 1994 as replacement units for West Dallas, and (v) 698 additional

Section 8 vouchers promised by HUD. Therefore, there are 674 new units of public

housing currently funded but not under construction. Eighty of these units are

specifically at issue in this case.

7

In March 1992, the district court vacat ed the 1987

consent decree on the grounds that its terms were not implemented

and that the vestiges of purposeful segregation persisted.

Subsequently, the district court granted the Walk er plaintiffs’

uncontested motion for summary judgment on the issue of liability.

In September 1994, the district court held a trial on the issue of

a remedy. The district court entered its remedial order affecting

DHA in February 1995 and its remedial order affecting HUD in April

1996.

The remedial order affecting DHA requires DHA (1) to

demolis h at least 2,630 units of its West Dallas project, (2) to

develop 2,807 replacement units for the demol ished West Dallas

units through both new construction and Section 8 vouchers and

certificates, 8 (3) to develop, either throu gh construction or

acquisition, an ad ditional 3,205 new units of public housing in

predominantly white areas of metropolitan Dallas in which the

poverty rate does not exceed 13%, and (4) to develop all new public

housing units in predominantly white areas until there are as many9 The source of this final detail of the district court’s remedial order

is unclear. The written order itself is confusing. Paragraph A.3 requires that

all of the 3,205 new units be built in predominantly white areas.

In slight contrast, the district court reiterates throughout his oral and

written opinions that all of the 674 new units of public housing ( i.e.

, the ones

currently funded by HUD but not under construction) “and any other allocated in

the future, must be develo p ed in predominantly white areas until there are

approximately as many non-elderly public housing units in those areas as in

minority areas.” 10/6/97 Written Opinion, at 22. The district court goes on to

say, “The race conscious site selection remedy is limited. It applies only until

there is a comparable number of public housing units in wh ite and minority

areas.” I d

. at 22-23; see also 8/25/97 Or al Opinion, at 22 (“Again, the 674

units must be placed in white non-minority areas until there are as many public

housing units in white areas as in minority areas.”).

10 To date, no plan for the use of Section 8 certificates or vouchers has

been submitted to the district court. However, HUD states in its brief to this

court that it “expects to meet this obligation by providing funding for Section

8 certificates and vouchers for all of the 3,205 units, at a rate of 320 units

per year for 10 years. Thus, it is likely that the only public housing units

developed under the Remedial Orders will be the 774 units already allocated by

HUD and designated as replacement units under paragraph A.1 of the HUD Remedial

Order and paragraph A.2 of the DHA Remedial Order.”

11 The district court authorized that 200 of the replacement units may be

used in the reconfiguration and revitalization of the West Dallas project.

12 The 75 units either under construction or completed are at DHA’s

Frankford & Marsh site.

8 units in predominantly white areas as there are in minority areas. 9

A “predominantly white area” is defined as less than 37% Hispanic,

black, or other minor ity. The required 3,205 new units may be

satisfied by the use of Section 8 certificates or vouchers, but

only after court approval. 10 The construction costs for 674 of the

2,807 new replacement units have been previously allocated to DHA

by HUD, 11 although only 75 of the se units are currently under

construction or completed. 12

The Homeowners filed this suit against DHA and HUD to

enjoin the construction of two new 40-unit public housing projects13 One site is at the intersection of McCallum and Meandering Way, and the

other site is at the intersection of Hillcrest and Highway 190.

14 These opinions will hereinafter be cited respectively as: 8/25/97 Oral

Opinion, 9/18/97 Final Judgment, and 10/6/97 Written Opinion.

9 on sites adjacent to their neighborhoods. 13 The Homeowners allege

that the remedy of new construction is not narrowly tailored

because it requires that the new units be constructed in

predominantly white areas. The Homeowners do not contest either

the remedial order’s poverty site-selection cri terion or HUD’s

site-selection standards set forth in 24 C.F.R. § 941.202.

In response to the Homeowners’ action, the Walker

plaintiff s sought declaratory relief that the remedial order was

constitutional. The Homeowners’ request for an injunction and the

Walker plaintiffs’ declaratory judgment action were tried together

in October 1996. The district court denied the Homeowners’

injunctive reli ef and granted the Walker plaintiffs declaratory

relief. The district court gave an oral opinion on August 25,

1997, entered final judgment on September 18, 1997, and issued its

written opinion on October 6, 1997. 14

II. STANDING

As an initial matter, DHA and HUD challenge the

Homeowners' standing to bring their suit. The burden of

establishing standing rests with the party seeking to invoke

federal jurisdiction ( i.e.

, the Homeowners). S ee United States v.

Hays

, 515 U.S. 737, 743, 115 S. Ct. 2431, 2435 (1995); Lujan v.15 “If this were an appeal from a judgment granting the defendants’

motion to dismiss for lack of standing, we would be required to accept as true

all of the ma terial allegations of the complaint. However, because we are

reviewing a final judgment based upon a fully developed record, we must evaluate

standing from all materials of record.” P ollard v. Cockrell

, 578 F.2d 1002, 1006

(5th Cir. 1978) (internal citations and quotations omitted).

10 Defenders of Wildlife

, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136

(1992). In a case that has proceeded to final judgment, the

factual allegations supporting standing (if controverted) must be

supported adequately by the evidence adduced at trial. See Hays

,

515 U.S. at 743, 115 S. Ct. at 2435; Lujan

, 504 U.S. at 561, 112 S.

Ct. at 2137; Gladstone Realtors v. Village of Bellwood

, 441 U.S.

91, 115 n.31, 99 S. Ct. 1601, 1616 n.31 (1979); see also C HARLES A LAN

W RIGHT ET AL

., 13A F EDERAL P RACTICE & P ROCEDURE § 3531.15, at 105 (2d ed.

1984). 15

The irreducible constitutional minimum of standing is

composed of three elements:

First, the plaintiff must have suffered an

“injury in fact”--an invasion of a legally

protected interest which is (a) concrete and

particularized, and (b) actual or imminent,

not conjectural or hypothetical. Second,

there must be a causal connection between the

i njury and the conduct complained of . . . .

Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed

by a favorable decision.

Hays

, 515 U.S. at 742-43, 115 S. Ct. at 2435 (quoting Lujan

, 504

U.S. at 560-61, 112 S. Ct. at 2136) (internal citation and

quotations omitted). In applying these constitutional standing16 A “generalized grievance” is a harm “shared in substantially equal

measure by all or a large class of citizens.” Warth v. Seldin

, 422 U.S. 490,

499, 95 S. Ct. 2197, 2205 (1975). “The prudential principle barring adjudication

of ‘generalized grievances’ is closely related to the constitutional requirement

of personal ‘injury in fact,’ and the policies under lying both are similar.”

Apache Bend Apartments, Ltd. v. United States , 987 F.2d 1174, 1176 (5th Cir.

1993) (en banc).

11 requirements, the Court has adopted a prudenti al principle that

bars the adjudication of “generalized grievances” against allegedly

illegal g overnment conduct. 1 6 S ee id

. In the equal protection

context, this prudential principle means that standing exists only

for those persons who are personally denied equal treatment by the

challenged discrim inatory conduct. S ee id

. (citing Allen v.

Wright

, 468 U.S. 737, 755, 104 S. Ct. 3315, 3326 (1984)); see also

Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc.

, 454 U.S. 464, 489 n.26, 102 S. Ct. 752,

768 n.26 (1982) (rejecting the proposition that every citizen has

“standing to challenge every af firmative-action program on the

basis of a personal right to a government that does not deny equal

protection of the laws”).

DHA and HUD principally contend that the Homeowners lack

standing because they allege an injury that is conjectural and a

generalized grievance. The essence of the Homeowners’ complaint is

twofold: (1) they have been purposefully discri minated against

because of the ir race ( i .e.

, they were intentionally singled out

because of their race to accommodate two new public housing12

projects adjacent to their neighbor hoods), and (2) this decision

has inflicted or threatens to inflict specific injury including

decreased property values, increased crime and population density,

env ironmental problems, and diminished aesthetic values of the

neighborhood because DHA will fail to operate and maintain the two

projects properly. The remedial order’s explicit racial

classificat ion alone is sufficient to confer standing on these

particular homeowners. In Allen v. Wright

, 104 S. Ct. 3315 (1984),

the Supreme Court wrote regarding the “stigmatizing injury” caused

by racial discrimination that “[t]here can be no doubt that this

sort of non-economic injury is one of the most serious consequences

of discriminatory government action and is sufficient in some

circumstances to support standing.” I d

. at 755, 104 S. Ct. at

3326. The Court continued, “Our cases make clear, however, that

such injury accords a basis for standing only to ‘those persons who

are personally denied equal treatment’ by the challenged

discriminatory conduct. I d .; see also City of Richmond v. J.A.

Croson

, 488 U.S. 469, 493, 109 S. Ct. 706, 721 (1989) (“To whatever

racial group these citizens belong, their ‘personal rights’ to be

treated with equal dignity and respect are implicated by a rigid

rule erecting race as the sole criterion in an a spect of public

decisionmaking.”).13 Under the remedial order, DHA selecte d the homeowners’

neighborhood because they are white and they live in an area of

Dallas that is at least 63% white. The remedial order also

requires that new units not be located in areas where the poverty

rate exceeds 13%. Thus, these homeowners’ “whiteness” is one of

two contr olling elements which identified the specific sites

adjacent to their neighbo r hoods for new public housing

construction. When a homeowner’s neighborhood adjoins a proposed

public housing project whose site was determined by a raceconscious standard, he has standing to sue because of the explicit

racial classification. C f. Hays

, 515 U.S. at 744-45, 115 S. Ct. at

2436 (“Where a plaintiff resides in a racially gerr ymandered

district, however, the plaintiff has been denied equal treatment

because of the legislature’s reliance on racial criteria, and

therefore has standing to challenge the legislature’s action.”).

DHA and HUD cite three cases to support their contention

that the Homeowners’ injury is a generalized grievance lacking the

specificity and particularity necessary to confer standing. Each

case is easily distinguishable from the case at hand. In W arth v.

Seldin , 422 U.S. 490, 504-07, 95 S. Ct. 2197, 2208-09 (1975), the

p laintiffs alleged that an adjacent town’s zoning ordinan ces

effectively excluded low and moderate income persons from living in

the town, but they could not demonstrate that the ordinances14

specifically precluded them from living in the adjacent town. In

Apache Bend Apartments v. United States , 515 F.2d 1174, 1177 (5th

Cir. 1993), the plaintiff-taxpayers were not seeking to litigate

their own tax liability, but the tax liability of taxpayers who

were not before the court. And in H ays

, 515 U.S. at 744-45, 115 S.

Ct. at 2436, the plaintiffs were denied standing to challenge a

reapportionment plan because they did not live in the district that

was the focus of thei r claim. In contrast to these three cases,

the Homeowners live in neighborhoods next door to the proposed new

40-unit housing projects, and the locatio n of these projects was

selected specifically because of the homeowners’ race.

In general, the racial classification of the homeowners

is an inju ry in and of itself. S ee Shaw v. Reno

, 509 U.S. 630,

643, 113 S. Ct. 2816, 2824 (1993) (“Classifications of c itizens

s olely on the basis of race are by their very nature odious to a

free people whos e institutions are founded upon the doctrine of

equality. They threaten to stigmatize individuals by reason of

their membership in a racial group and to incite racial hostility."

(internal citations omitted)). But the Homeowners also allege that

constructing two ne w 40-unit public housing projects adjacent to

their neighborhoods will cause a decline in their property values

and other problems involving crime, traffic and diminished

ae sthetic values. Relying on the district court’s fact finding17 S ee Alschuler v. HUD

, 686 F.2d 472, 476-77 (7th Cir. 1982); South East

Lake View Neighbors v. HUD

, 685 F.2d 1027, 1034-35 (7th Cir. 1982); Society Hill

Civic Ass’n v. Harris , 632 F.2d 1045, 1054 (3d Cir. 1980).

18 As a subsidiary matter, DHA contends that the Homeowners lack standing

because their alleged injury would not be redressed by the invalidation of the

remedial order’s requirement that public housing be built only in "predominantly

w hite areas." In other words, DHA argues that it could have selected the two

sites in question even without the race-conscious site selection criterion.

DHA applies the wrong legal standard. The test is whether DHA w ould

have selected these two sites absent the race-conscious criterion, not whether

it could have selected the sites. S ee Warth, 422 U.S. at 504, 95 S. Ct. at 2208

(fra ming the standing question as whether, absent the challenged zoning

ordinances that allegedly excluded low-income persons from living in the town of

Penfield, there was a substantial probability that the plaintiff would have been

able to obtain such housing). There is no evidence in the record that DHA would

have chosen the two sites in question absent the race-conscious criterion, and

the Walker plaintiffs admit in their brief to this court that "[t]he record is

clear that DHA would not have chosen the sites absent the court order."

15 that th e Homeowners have not suffered such an economic injury

caused by the new public housing projects, HUD and DHA challenge

whether the Homeowners have in fact suffered a decrease in property

values. Despite this finding, we cannot conclude, having reviewed

the record, that the Homeowners did not put forth adequate evidence

at trial to confer standing upon them. The district court did not

hold that the Homeowners lack standing, as he was well aware of the

potential for neighborhood disruption traceable to improperly

managed public housing projects. HUD and DHA cite no cases in

which standing has been denied to homeowners who assert ed their

quality of life and property values would be diminished by a nextdoor public housing or other HUD project. The caselaw is to the

contrary. 17

In sum, the Homeowners alleged and sufficiently proved

facts that were adequate to support standing to sue. 18 The injuryAdditionally, HUD argues that the Homeowners are challenging the wrong

part of the remedial order by contesting the 3,205 additional unit s of public

housing that must be built in predominantly white areas. It is quite clear from

the record, however, that the Homeowners have properly challenged the two 40-unit

projects, which were selected on a race-conscious basis to be built next to their

neighborhoods. Obviously, these two projects are part of a larger remedial

scheme that is affected by this court’s opinion herein.

16 they assert is not too abstract or conjectural. The line of

causation between the alleged unconstit utional conduct and the

injury is not attenuated. And the prospect of obtaining relief

from the injury as a result of a favorable ruling is not

speculative.

III. HOMEOWNERS’ EQUAL PROTECTION CLAIM

The district court held that the Homeowners failed to

allege an equal protection violation. The Homeowners challenge

this conclusion.

A. Lack of a Similarly Situated Group

The district court, citing Samaad v. City of Dallas

, 940

F.2d 925 (5th Cir. 1991), found that the Homeowners failed to show

an equal protect ion violation because they did not identify a

similarly situated set of black persons who have been treated

bett er. See id . at 941 n.31 This requirement, however, applies

only to equal protection claims involving facially neutral

go vernment actions, where it is necessary to establish that the

government is distinguishing or classifying persons on the basis of

race. S ee id. at 941. Explicit racial classifications, in17

contrast, establish unequal treatment by their very nature. S ee

Shaw

, 509 U.S. at 642, 113 S. Ct. at 2824 (“Laws that explicitly

distinguish between individuals on racial grounds fall within the

core of [the Equal Protection Clause’s] prohi bition.”). Because

the Homeowners challenge an explicit racial classification within

the district court’s remedial order, they have properly alleged an

equal protection violation.

The distr ict court also suggested that the Homeowners

failed to demonstrate an equal protection violation because “[t]he

impact [of the new construction], if any, on the Homeowners will be

considerably less than [the] impact of the existing DHA public

housing projects on the property owners in the black neighborhoods

with existing pro jects.” The district court’s reasoning is

incorrect: racial classifications are not acceptable simply because

they are perceived to have little impact. Any explicit racial

classification, regardless of the burdens or benefits it s imposes,

is suspect and subject to stri ct scrutiny. S ee Adarand

Constructors, Inc. v. Pena

, 515 U.S. 200, 227, 115 S. Ct. 2097,

2113 (1995) (“[A]ll racia l classifications, imposed by whatever

federal, state, or local government actor, must be analyzed by a

reviewing court under strict scrutiny.”); Powers v. Ohio

, 499 U.S.

400, 4 10, 111 S. Ct. 1364, 1370 (1991) (“It is axiomatic that18

racial classifications do not become legitimate on the assumption

that all persons suffer them in equal degree.”).

B. Intent to Discriminate

The district court held that the Homeowners failed to

prove an equal protection violation because there is no intent to

treat whites worse than similarly situated blacks. Once again, the

district court is incorrect. An explicit racial classification

does not requir e any inquiry into “intent” in order to allege an

equal protection violation. S ee Shaw

, 509 U.S. at 642, 113 S. Ct.

at 2824 (“No inquiry into legislative purpose is necessary when the

racial clas sification appears on the face of the statute.”).

“Express racial classifications are immediately suspect because,

‘[a]bsent searching judicial inquiry

. . ., there is simply no way

of determining whether classifications are ‘benign’ or ‘remedial’

and what classifications are in fact motivated by illegitimate

notions of racial inferiority or simple racial politics.’” I d. at

642-43, 113 S. Ct. at 2824 (quoting Croson

, 488 U.S. at 493, 109 S.

Ct. at 721).

The district court’s skepticism of the Homeowners’ right

to pursue an equal protection claim was unfounded, so we proceed to

address the merits of their claim.19 S ee 8/25/97 Oral Opinion, at 5 (“From the very beginning the primar y

purpose that DHA had was to prevent blacks from moving into white areas of the

city and the suburbs. That is not true of DHA today . . . .”).

19 IV. NARROW TAILORING

The primary issue on appeal is whether the remedial

order’s requirement that new public housin g units be built or

acquired in “predominantly white areas” is narrowly tai lored to

remedy the vestiges of past discrimination and segregation within

Dallas’s public housing programs. No party suggests on appeal that

the racial steering, which for so many years was a part of Dallas’s

public housing programs, has not been effectively eradicated. 19

Rather, the parties’ dispute cent ers on the district court’s

efforts to rectify the effects of the now-past discriminatory

practices of DHA, HUD, and the City of Da llas. In short, is it

constitutional in this case to implement a race-con scious site

selection criterion for newly built or acquired public housing?

Any race-conscious remedial measure receives strict

scrutiny under the Equal Protection Clause. S ee Adarand

, 515 U.S.

at 227, 115 S. Ct. at 2113; Black Fire Fighters Ass’n v. Dallas

, 19

F.3d 992, 995 (5th Cir. 1994) [hereinafter BFFA ]. This is true no

matter which race is burdened or benefitted by the racial

classification in question. See Adarand , 515 U.S. at 224, 115 S.

Ct. at 2111 (citing Croson

, 488 U. S. at 494, 109 S. Ct. at 722).

Strict scrutiny requires that a racial classification be (1)20

justified by a compelling government interest and (2) nar rowly

tailored to further that interest. See Adarand , 515 U.S. at 227,

115 S. Ct. at 2113. The Homeowners do not contest that there

exists a compelling government interest in this case. Therefore,

our inquir y focuses on whether the remedial order is narrowly

tailored.

In a s sessing whether a remedy is narrowly tailored,

courts are to assess five factors: (1) the necessity for relief,

(2) the efficacy of alternative remedies, (3) the flexibility and

duration of relief, (4) the relationship of the numerical goals to

the relevant market, and (5) the impact of the relief on the rights

of third parties. S ee U nited States v. Paradise , 480 U.S. 149,

171, 107 S. Ct. 1053, 1066 (1987); BFFA

, 1 9 F.3d at 995

. B efore

examining these factors, however, we must address the standard of

review.

When a district court’s race-conscious remedial measure

is challenged as not being narrowly tailored, the party defending

the remedial measure bears the burden of producing evidence that

the remedial measure is constitutional. S ee Wygant v. Jackson Bd.

of Educ.

, 476 U.S. 267, 277-78, 106 S. Ct. 1842, 1848-49; Aiken v.

City of Memphis

, 37 F.3d 1155, 1162 (6th Cir. 1994); see also Raso

v. Lago , 135 F.3d 11, 20 (1st Cir. 1998) (Stahl, J., dissenting).

The party challenging the remedial measur e, of course, bears the21

ultimate burden of demonstrating that the racial classification is

unconstitutional. See id.

In general, we review a district cour t’s legal

conclusions de novo and its findings of fact for clear error.

However, “if the trial court bases its findings upon a mistaken

impression of applicable legal principles, the reviewing court is

not bound by the clearly erroneous standard.” Inwood Labs., Inc.

v. Ives Labs, Inc. , 456 U.S. 844, 855 n.15, 102 S. Ct. 2182, 2189

n.15 (1982); see also United States v. Bentley-Smith

, 2 F.3d 1368,

1373 (5th Cir. 1993).

In the case at hand, the district court placed the burden

of prod uction, as well as the ultimate burden of proof, on the

Homeowners. Because he improperly placed the burden of production,

we are not bound by the clearly erroneous standard in reviewing his

findings of fact. Nonetheless, although more rigorous review may

be in order, we will d eferentially examine the district court’s

findings because this is a complicated case in which the district

cou rt has a decade’s worth of experience with Dallas’s public

housing programs.

Race-conscious remedies must be narrowly tailored to

eliminate the effects of past discrimination as well as bar like

discrimination in the future. S ee Paradise

, 480 U.S. at 172-75,

107 S. Ct. at 1067-68; id

. at 183, 107 S.Ct. at 1073 (citing22

Louisiana v. United States , 380 U.S. 145, 154, 85 S. Ct. 817, 822

(1965)). “Racial classifications are simply too pernicious to

permit any but the most exact connection between justification and

classification.” A darand

, 515 U.S. at 229, 115 S. Ct. at 2113

(quoting Fullilove v. Klutznick

, 448 U.S. 448, 537, 100 S. Ct.

2758, 2805 (1980) (Stevens, J., dissenting)). This means that a

race-conscious remedy must be framed to address the exact effects

and harms of the discrimination at issue. S ee Wygant

, 476 U.S. at

280, 106 S. Ct. at 1850.

In application, arriving at an exact fit between harm and

r emedy requires consideration of whether a race-neutral or less

restrictive remedy could be used. S ee Adarand

, 515 U.S. at 237-38,

115 S. Ct. at 2118; Wygant

, 476 U.S. at 280 n.6, 106 S. Ct. at 1850

n.6. This is because a race-conscious remedy should be the remedy

of last resort. S ee Alexander v. Estepp

, 95 F.3d 312, 316 (4th

Cir . 1996) (“[E]xplicit racial preferences, if available at all,

must be only a ‘last resort’ option.”). A “race-conscious remedy

will no t be deemed narrowly tailored until less sweeping

alternatives——particularly race neutral ones——have been considered20 It is true that in H il ls v. Gautreaux , the Supreme Court did not

disapprove a remedial o rder which, to end discrimination in public housing,

required housing to be built in nonblack neighborhoods of Chicago. S ee 425 U.S.

284, 296, 96 S.Ct. 1538, 1546 (1976). But the Court did not consider the

propriety of t hat remedy as opposed to a non-race conscious remedy like a

vigorous Section 8 program. The only disputed issue in that case was whether the

remedy could extend beyond the city limits of Chicago. Further, H ills predates

significant changes that have occurred both in HUD’s approach to public housing

and in the scrutiny afforded race-conscious remedies. H ills does not mandate

either the construction of new public housing or race-conscious site selection.

We must review the application of the Paradise factors, which the district court

correctly understood to frame the issues here.

23 and tried. ” Williams v. Babbitt , 115 F.3d 657, 666 (9th Cir.

1997). 20

The first two Paradise f actors are the necessity for

relief and efficacy of alternative remedies. These weigh against

race-conscious site sel ection for two reasons. First, Section 8

housing vouchers have not been given a fa ir try to prove their

p otential to desegregate. Second, other criteria than a racial

standard will ensure the desegregated construction or acquisition

of any new public housing. See infra , text at n.31.

The Homeowners argue that Section 8 alone is capable of

remedying the effects of past discrimination in Dalla s’s public

housing programs, and they contend that Section 8 has not been

given a fair try. They also point out, and the district court

agrees, that Section 8 is more cost-efficient than new construction

and is preferred by the majority of p ublic housing program

participants. Section 8 is more flexible than fixed public housing

because the participants may decide where and in what type facility21 S ee 10/30/96 Testimony of Ann Lott, Direct or of DHA’s Section 8

Mobility Program (agreeing that most of the effor ts to improve DHA’s mobility

program have been within the preceding two years) ; 8/7/96 Deposition of Lott

(explaining new procedures within DHA’s mobility program that were implemented

in the prior year, including a marketing campaign for prospective landlords, a

landlord newsletter, and private briefings for landlords on t he Section 8

program). B ut see 10/30/96 Testimony of Lori Moon, President & CEO of DHA

(stating that DHA’s mobility efforts have been in effect since 1989).

22 It is unclear from the record whether HUD has granted DHA a 120% fair

market exception rent across-the-board for all Section 8 housing in predominantly

white areas. It is also unclear whether DHA could be granted fair market rent

e xceptions higher than 120%. Evidence in the record shows that a 160% fair

market exception rent would significantly increase the availability of Section

8 housing in predominantly white areas. Prior to implementing a race-conscious

remedy, it would seem advisable to ensure (1) that rent exceptions above 120% are

foreclosed, as they offer the potential to break-down a significant barrier to

an even more effective Section 8 program, or (2) that 120% fair market exception

rents have been fully implemented and tried, if that is the statutory maximum.

24 to reside. As a result, virtually all available Section 8 vouchers

have been snapped up in Dallas.

Unfortunately, however, numerous programs that would

encourage an d assist black families to use Section 8 in

predominantly white areas had been in effect or fully operational

for only a short time before trial on the Homeowners’ case. For

instance, the record indicates that DHA’s mobility program had been

operating as originally proposed by the Walker plaintiffs and the

district court since only approximately 1994. 21 In addition,

exceptions to the “fair market rent” caps on Section 8 vouchers and

c ertificates have been slow in coming. 2 2 It also appears that

potential Section 8 landlords may now be paid “signing bonuses” for

accepting Section 8 tenants. These are but three examples of

numerous “helping -hands” that may be employed to promote the23 Another example would be the vigorous enforcement of state and federal

laws prohibiting racial discrimination by private Section 8 landlords.

25 success of Section 8 as a desegregation tool. 23 While the history

and timing of their implementation by DHA and HUD in this case are

not perfectly clear, it is evident from the record that they were

not programs of long-standing before trial. If Section 8, combined

with such assistance programs, is an effective desegregation tool,

then Section 8 is superior to a race-conscious remedy in that it

allows market forces and person al preferences rather than racial

criteria to guide the homemaking decision.

The district court found, agreeing wi th the Walker

plaintiffs, DHA, and HUD, that Section 8 needed to be combined with

new construction or acquisition in predominantly white areas in

order to remedy the effects of past discrimination. Adopting the

Walker plaintiffs’ proposed findings of fact and conclusions of law

in toto

, the court concluded that Section 8 alone was an inadequate

remedy for several reasons: there are not enough Section 8 units in

pred ominantly white areas; among the available units there is a

lack of three and four bedroom units; rents in predominantly white

areas are too high to be covered even by Section 8’ s fair market

exception ren ts; landlords do not want to participate in the

Section 8 program; and Section 8 participants become frustrated in

looking for housing in predomi nantly white areas and settle for

housing in minority areas. The court also found that rental24 The Walker plaintiffs state that in 1987 there were 66 Section 8 black

families living in predominantly white areas, which amounte d to approximately

2.4% of all black families in DHA’s Section 8 program.

25 According to testimony in the record, this amounted to approximately

21% of all black families in DHA’s Section 8 program.

26 According to testimony in the record, this amounted to approximately

24-25% of all black families in DHA’s Section 8 program.

26 contract requirements in predominantly white areas contain

provisions that are difficult for Section 8 families to meet ( e.g.

,

high security deposits, requirement of having held a job for the

past year, etc .). We neither accept nor attempt to reject these

factual findings. Rather, there is one overarching factual finding

b y the district court——which is uncontested by all parties——that

transcends the parties’ objections to Section 8 as a remedial

measure.

In 1987, when the district court first found DHA in

violation of its original consent decree, a negligible number of

black families in DHA’s Section 8 programs lived in predominantly

white areas. 24 In contrast, in September 1994, approximately 1,050

Section 8 black families lived in predominantly white areas. 25 And

in the fall of 1996, there were approximately 1,335 Section 8 black

families in predominantly white areas. 2 6 These numbers show that

in the two year period between 1994 and 1996, the number of Section

8 black families living in predominantly white areas increased by

285, or 27%. And it was during this same time period that DHA’s

Section 8 mobility program was getting fully underway. The program27 In I n re Birmingham Reverse Discrimination Employment Litigation

, nonblack employees of the Birmingham Fire Rescue Service (BFRS) challenged a 1981

consent decree entered into by the City of Birmingham that required, inter alia

, that 50% of all promotions to the rank of BFRS lieutenant would be filled by

qualified blacks ( i.e.

, for every two promotions to lieutenant, one must be

filled by a black candidate). See id.

The 11th Circuit noted that between 1978 and 1981, BFRS significantly

increased its total number of black employees from 8 to 42, which represented a

shift in the black percentage of BFRS’s workforce from 1.89% to 9.3%. See id.

This was achieved without the use of a race-conscious remedy. S ee id

. The court

stated that “there is strong evidence in the record of this case that the City

had implemented effective alternatives to race-based quotas to remedy its prior

discriminatory behavior.” I d

. “While the district court correctly concluded

that, when the decree was entered, no black had as yet become a fire lieutenant,

we believe that, given the City’s progress at the entry-level, alternative

measures designed to increase black representation in the fire lieutenant ranks

were feasible.” I d. The court proceeded to list the non-race-based remedies

that the plaintiffs proposed regarding promotion to BFRS lieutenant. S ee id. at

1546-47. It then concluded, “Considering the efficacy of the alternative

remedies, the relief provi ded in the decree cannot be reconciled with the

requirement that a government’s use of race must be narrowly tailored.” I d

. at

1547.

27 currently in place, which the distr ict court has not criticized,

essentially became fully o perational around 1994. Based on the

relative success of DHA in moving blacks into predominantly white

areas via its Section 8 program between 1994 and 1996, the Walker

plaintiffs, HUD, and DHA have produced insufficient evidence to

show that the district court’s race-conscious site selection

criterion is necessary to remedy the effects of past

discrimination. C f. In re Birmingham Revers e Discrimination

Employment Litig.

, 20 F.3d 1525, 1545-47 (11th Cir. 1994); 27 see

also BFFA

, 19 F.3d at 995 (“The broad skip promotion remedy in the

decree is difficult to justify when the knowledge to narrow it

seems readily available.”). Section 8, a race-neutral remedial

measure, is increasingly successful at moving black families into28 S ee 10/30/96 Testimony of Ann Lott, Director of DHA’s Sect ion 8

Mobility Program, at III-43 (stating that DHA is able to use virtually every

Section 8 voucher or certificate funded by HUD); see id. at III-65 (stating that

DHA could put to use an additional 1,500 Section 8 vouchers).

29 S ee id. at III-67 (stating that the mobility program could use more

counselors).

30 S ee id

. at III-57 (stating that higher fair market excep tion rents

would assist in obtaining more Section 8 housing in predominantly white areas).

28 white areas, and the record indicat es that it could be even more

successful with, for example, increased funding for both more

vouchers and the mobility program, 28 more mobility counselors, 29 and

higher fair market exception rents. 30 When Section 8 has evidenced

such promis ing results, options such as these should be explored

and teste d before adopting a race-conscious remedy as a last

resort.

Ad d itionally, it is unnecessary to employ the raceconscious site selection criterion ordered by the court even if new

construction or acquisition of public housing occurs. The district

court may proceed with new construction as part of his remedial

plan, but he may not do so using a race-conscious site selection

criterion. Of course, other criteria may be employed to guide site

selection for new construction. See United States v. Yonkers Bd.

of Educ

. , 837 F.2d 1181, 1184, 1236-37 (2d Cir. 1987) (using a

geographic al site selection criterion for public housing). The

district court has already mandated that all new sites be in areas31 It is suggested in brief that this criterion essentially restricts the

areas available for new construction to predominantly white areas.

32 Moreover, the district court referred throughout his 8/25/97 Oral

Opinion and 10/6/97 Written Opinion to the dang e r of losing the funds already

allocated to new construction because they could not be transferred to the

Section 8 program. This may be true. Nonetheless, it does not justify the use

of a race-conscious site selection criterion.

33 S ee Billish v. City of Chicago , 989 F.2d 890, 893 (7th Cir. 1993) ( en

banc ); Wessmann v. Gittens

, 160 F.3d 79 0, 808 (1st Cir. 1998) (“ C roson

, in

particular, leaves no doubt that only solid evidence will justify allowing raceconscious action. . .”); id. (“Our dissenting brother’s valiant effort to read

into Croson a broad discretion for government entities purporting to ameliorate

past discrimination strikes us as wishful thinking.”).

29 where the poverty rate does not exceed 13%. 31 The district court’s

concern that if it does not attach a race-conscious site selection

criterion to new construction, then the new units will end up in

minority areas and, as a consequence, Dallas’s public housing

projects will almost all remain in minority areas, is unfounded. 32

In deciding that Section 8 and nonracial site selection

criteria should be implemented before a racial stand ard, we are

mindful of the “r espect owed a district judge’s judgment that

specified relief is essential to cure a violation of the Fourteenth

Amendment.” P aradise

, 480 U.S. at 183, 107 S. Ct. at 1073.

Nonetheless, a district court’s broa d equitable powers remain

constrained by the boundaries of narrow tailoring. 33 The recent

success of Section 8 and the availability of viable nonracial, nondiscriminatory site selection criteria, combined with the factors

discussed in the following paragraphs, demonst rate that the30

remedial order’s race-conscious site selection criterion is not

narrowly tailored.

First, DHA, HUD, and the City of Dallas are all

cooperating defendants. That is to say, DHA, HUD, and the City of

Dallas no longer discriminate against black families in DHA’s

public housing programs, and

-- by all accounts in th e record --

all three defendants are active participants in crafting and

implement ing remedial measures to eliminate the vestiges of past

discrimination. In contrast, the Supreme Court approved a raceconscious remedy in Paradise in large part because earlier, less

restrictive remedies had proven ineffecti ve since the defendant

continually resisted their implementation and stonewalled in

deve l oping acceptable procedures for the advancement of black

troopers within the Alabama Department of Public Saf ety. S ee

Paradise

, 480 U.S. at 162-65, 107 S. Ct. at 1062-63 (describing the

Department’s continuing failure to comply with the parties’ consent

decrees); id

. at 170-71, 176-77, 107 S. Ct. at 1066, 1069; see also

BFFA

, 19 F.3d at 996 (finding a race-conscious r emedial measure

unnecessary, in part, because the defendant was a willing party to

the settlement of the lawsuit). Where, as here, the defendants

have begun making race-neutral, good faith, and effective efforts

to remedy the wrongs of the past, a race-conscious remedy should

only be a last resort.34 S ee, e.g.

, 8/25/97 Oral Opinion, at 28 (“Even if this money [for new

publi c housing construction] could be reprogrammed for Section 8, there would

still be a need for the use of public housing in the desegregation plan. Section

8, although the preferred method, is not the only metho d. Indeed, there are

members of this class who made it evident, abundantly clear to this Court, that

they did not trust Section 8, they would not use Section 8, and they should not

be forced to use Section 8.”); id

. at 33 (“I recognized then, as I do now, that

although Section 8 certificates and vouchers may be the preferred method for most

people, for many people there are risks in Section 8 that not all class members

w ould want to take. I declined to force those risks upon unwilling class

members.”).

31

Second, the district court, in his 8/25/97 Oral Opinion,

made references to the necessity of a race-conscious site selection

criteri on because some participants in DHA’s public housing

programs do not want and should not be forced to use Section 8. 34

While some may find it difficult to use Section 8, a race-conscious

remedial measure is not justif ied by certain class members’

objections to looking for housing on their own versus their being

offered a unit owned and operated by DHA. A race-conscious remedy

is justified, after race-neutral remedies have been considered and

found wanting, if it is the only effective means by which to remedy

the effects of past discrimination. It is by this standard alone

that the district court must assess his remedial orders. As

applied to the facts of this case, the district court’s concern

seems parti cularly irrelevant as only 474 new units in

predominantly whit e areas are currently funded, and those units

must be filled by Section 8 families who participate in DHA’s35 DHA’s Family Self-Sufficiency Program is a voluntary program that

requires participants to, for in s tance, be employed or attend school. The

participants sign a five-year contract with DHA in which they agree to abide by

the progr am’s regulations. In essence, the program is designed to make its

participants self-sufficient by providing them with “upward mobility type

assistance.” 8/7/96 Deposition of Lori Moon, President & CEO of DHA, at 110.

36 As noted previously, HUD states in its brief to this court that it

intends to fulfill its entire obligation regarding the 3,205 additional units

with Section 8 vouchers or certificates.

32 Family Self-Sufficiency Program. 35 That is, they will be filled by

the “cream-of-the-crop” from DHA’s waiting lists. Thus, those who

in all probability need public housing units the least (because

they would be successful Section 8 participants) will be directed

to the new units, while those for whom the district court expresses

concern will be left with Section 8. DHA’s rationale for filling

the new units with participants in its self-sufficiency program is

commendable, but it throws askew part of the district court’s

reasoning regarding the remedial need for new construction in

addition to Section 8.

Third, it remains unclear why there is an absolute

remedial necessity to build 474 new units of public housing using

a racial classification when (1) 2,033 (or 72%) of the remedial

order’s 2,807 replacement units will be Section 8 and (2) DHA and

HUD may submit a plan to use Section 8 f or all of the 3,205

additional units of public housing to be built in predominantly

whi te areas. 3 6 In sum, out of a total of 6,012 units within the

remedial order, only 474 (or 8%) must—— assuming an acceptable33

Section 8 plan is submitted for the 3,205 additional units——be new

const ruction in predominantly white areas. If Section 8 can

effectively satisfy the district court’s remedial goal regarding

5,628 units, it is baffling to assume that it cannot do so for an

additional 474 units.

DHA, HUD, and the City of Dallas offer two responses to

this criticism. First, they argue that 474 units is a tiny

proportion of the overall number of units contemplated by the

remedial order; the deference due a district court in fashioning a

remedial order should protect such a small element of the overall

remedial plan. This would be correct if the 474 units were not

attached to a r acial classification which requires that they be

built in predominantly white areas. Racial classifications, even

small ones, receive strict scrutiny. Second, they contend that if

the 474 units already funded by HUD are not built in white areas,

they will either not be built at all or will be built in minority

areas which will only further the racial segregation of DHA’s

public housing projec ts. As discussed previously, the district

court may entertain any number of site selection criteria regarding

n ew public housing units, except for race. No one suggests that

the 474 units should not be built, only that requiring that they be

built using a race-consci ous site selection criterion is not

narrowly tailored.37 The third P a radise factor considers the flexibility and duration of

relief. On balance, that factor is neutral in this case.

34 The fourth Paradise factor, the relationship of numerical

goals to the relevant markets, also cuts against the race-conscious

site-selecti on criterion in the remedial order. 3 7 The district

court’s r emedial goal is to have half of the families in DHA’s

public housing programs (either public housing units or Section 8)

in predominantl y white areas of Dallas and half in “minority

areas”. The justification for this goal is that Dallas’s

population is approximately half white and half “minority” and,

therefore, public housing should be divided accordingly. This goal

is overly broad. This suit was brought by black plaintiffs on

behalf of a class of black plaintiffs. There is no suggestion that

the suit ever expanded to include all minorities or that any

liab ility of the public agencies to other minorities could be

found. The court’s definition of a “predominantly white”

neighborhood, with 63% white population, is also based on the idea

that public housing may not be placed in neighborhoods with higher

concentrations of Hispanics. There is no evidence in the record to

support the court’s arbitrary definition of a predominantly white

neighborhood. The emphasis should instead be directed toward

placing public housing participants in neighborhoods of their

cho i ce through a vigorous Section 8 program, non-black38 According to the Walker plaintiffs’ brief, at 11: “There are 113 county

census tracts with 63% or greater non-Hispanic white population, 95 of which have

a poverty population less than the county average. There are an additional 20

tracts with a non-Hispanic white population between 50% and 63%. Only seven of

these tracts have a poverty rate less than the county’s. There are an additional

16 tracts with a poverty population below the county average but the non-Hispanic

white population is less than 50%.”

35 neighborhoods, census tracts in which no public housing currently

exists, or non-poor neighborhoods. 38

The fifth Paradise factor is the imp act of a raciallyconscious site selection criterion on the rights of third parties.

Among all the groups affected by Dallas public housing, only these

Homeowners have maintained that they would be injured by the

racially-based site selection process that occurred here. Despite

the court’s hav ing purportedly found against them on this issue,

the totality of th e remedial order is far more ambivalent. The

district court ordered stringent criteria for the design and upkeep

of the projects and for tenant selection here and in another

“predominantly white” neighborhood (the Frankford & Marsh site, see

supra

, n.12), and he called for the partic ipation of neighboring

community members, like these Homeowners, in planning the projects.

The court showed considerable sensitivity to the fact that public

housing has in t he past been disgracefully neglected in Dallas.

The resulting remedial order thus cuts both ways with respect to

the Homeowners’ rights. On one hand, it attempts to placate their36

fears of deterioration in their neighborhoods. On the other hand,

it lends credibility to those fears.

Because there are promising, non-racially discriminatory

ways to continue desegregating public housing in Dallas, the

provisio n of the court’s remedial order calling for the

construction or acquisition of units of public housing in

“predominantly white” areas is unconstitutional. Under the balance

of the Parad ise f actors, the criterion is not narrowly tailored,

and it is premature to utilize such a last-resort measure. We must

vacate and remand this portion of the remedial order for further

consideration.

In so doing, we emphasize several points. First,

increased reliance on Section 8 d emands that the public agencies

implement a vigorous mobility plan that serves the relocation needs

and concerns of black fa milies, reaches out to white landlords,

affords adequate fair market rent exceptions, and combats illegal

private d iscrimination. Second, this opinion does not deal with

the remedial order’s nondiscriminatory tenant selection and

assignment provisions, which are not challenged by the Homeowners.

Third, this opinion does not preclude the construction or

acquisition of additional public housing if sites are selected by

means of nonracial criteria. But we also recognize that Section 8

is overwhelmingly preferred by public housing familie s, that it

all ows market forces and personal preferences to control the37

homemaking decision, and that it has not proven ineffective at

desegregating Dallas’s public housing programs when combined with

a vigorous mobility program. As applied to the facts of this case,

the district court erred in employing a race-conscious remedy

before utilizing race-neutral alternatives.

V. CONCLUSION

For the foregoing reasons, the district court’s remedial

order is VACATED to the extent indicated and the case is REMANDED

for further proceedings; the declaratory judgment awarded to the

Wa lker plaintiffs is R EVERSED ; and this court’s stay of

construction at the sites adjacent to the Homeowners’ subdivisions

shall be ENFORCED until the district court holds additional

hearings and enters a remedial order revised in accordance with the

foregoing opinion.

Remedial order VACATED and REMANDED ; declaratory judgment

for W alker plaintiffs R EVERSED ; stay ENFORCED pending entry of

revised remedial order.