Respondents, Negro tenants in or applicants for public housing
in Chicago, brought separate class actions against the Chicago
Housing Authority (CHA) and the Department of Housing and Urban
Development (HUD), alleging that CHA had deliberately selected
family public housing sites in Chicago to "avoid the placement of
Negro families in white neighborhoods" in violation of federal
statutes and the Fourteenth Amendment, and that HUD had assisted in
that policy by providing financial assistance and other support for
CHA's discriminatory housing projects. The District Court on the
basis of the evidence entered summary judgment against CHA, which
was ordered to take remedial action. The court then granted a
motion to dismiss the HUD action, which meanwhile had been held in
abeyance. The Court of Appeals reversed, having found that HUD had
committed constitutional and statutory violations by sanctioning
and assisting CHA's discriminatory program. The District Court
thereafter consolidated the CHA and HUD cases and, having rejected
respondents' motion to consider metropolitan area relief, adopted
petitioner's proposed order for corrective action in Chicago. The
Court of Appeals reversed and remanded the case "for additional
evidence and for further consideration of the issue of metropolitan
A metropolitan area remedy in this case is not
impermissible as a matter of law. Milliken v. Bradley,
418 U. S. 717
distinguished. Pp. 425 U. S.
(a) A remedial order against HUD affecting its conduct in the
area beyond Chicago's geographic boundaries but within the housing
market relevant to the respondents' housing options is warranted
here because HUD, in contrast to the suburban school districts in
committed violations of the Constitution and
federal statutes. Milliken
imposes no per se
that federal courts lack authority to order corrective action
beyond the municipal boundaries where the violations occurred. Pp.
425 U. S.
Page 425 U. S. 285
(b) The order affecting HUD's conduct beyond Chicago's
boundaries would not impermissibly interfere with local governments
and suburban housing authorities that were not implicated in HUD's
unconstitutional conduct. Under the § 8 Lower-Income Housing
Assistance program of the Housing and Community Development Act of
1974, HUD may contract directly with private owners and developers
to make leased housing units available to eligible lower income
persons, with local governmental units retaining the right to
comment on specific proposals, to reject certain programs that are
inconsistent with their approved housing assistance plans, and to
require that zoning and other land use restrictions be observed by
builders. Pp. 425 U. S.
503 F.2d 930, affirmed.
STEWART, J., delivered the opinion of the Court in which all
Members joined, except STEVENS, J., who took no part in the
consideration or decision of the case. MARSHALL, J., filed a
concurring statement, in which BRENNAN and WHITE, JJ., joined,
p. 425 U. S.
Page 425 U. S. 286
MR. JUSTICE STEWART delivered the opinion of the Court.
The United States Department of Housing and Urban Development
(HUD) has been judicially found to have violated the Fifth
Amendment and the Civil Rights Act of 1964 in connection with the
selection of sites for public housing in the city of Chicago. The
issue before us is whether the remedial order of the federal trial
court may extend beyond Chicago's territorial boundaries.
This extended litigation began in 1966, when the respondents,
six Negro tenants in or applicants for public housing in Chicago,
brought separate actions on behalf of themselves and all other
Negro tenants and applicants similarly situated against the Chicago
Housing Authority (CHA) and HUD. [Footnote 1
] The complaint filed against CHA in the United
States District Court for the Northern District of Illinois alleged
that, between 1950 and 1965, substantially all of the sites for
family public housing selected by CHA and approved by the Chicago
City Council were "at the time of such selection, and are now,"
located "within the areas known as the Negro Ghetto." The
respondents further alleged that CHA deliberately selected the
sites to "avoid the placement of Negro families in white
neighborhoods" in violation of federal statutes and the Fourteenth
Amendment. In a companion suit against HUD, the respondents claimed
that it had "assisted in the carrying on and continues to assist in
the carrying on of a racially discriminatory public housing system
within the City of Chicago" by providing
Page 425 U. S. 287
financial assistance and other support for CHA's discriminatory
housing projects. [Footnote
The District Court stayed the action against HUD pending
resolution of the CHA suit. [Footnote 3
] In February, 1969, the court entered summary
judgment against CHA on the ground that it had violated the
respondents' constitutional rights by selecting public housing
sites and assigning tenants on the basis of race. [Footnote 4
] Gautreaux v. Chicago Housing
Authority, 296 F.
Page 425 U. S. 288
evidence submitted to the District Court established that the
public housing system operated by CHA was racially segregated, with
four overwhelmingly white projects located in white neighborhoods
and with 99 1/2% of the remaining family units located in Negro
neighborhoods and 99% of those units occupied by Negro tenants.
at 910. [Footnote
] In order to prohibit future violations and to remedy the
effects of past unconstitutional practices, the court directed CHA
to build its next 700 family units in predominantly white areas of
Chicago, and thereafter to locate at least 75% of its new family
public housing in predominantly white areas inside Chicago or in
Cook County. Gautreaux v. Chicago Housing
Authority, 304 F.
, 738-739. [Footnote
] In addition, CHA was ordered to modify its tenant assignment
and site selection procedures and to use its best efforts to
increase the supply of dwelling units as rapidly as possible in
conformity with the judgment. Id.
Page 425 U. S. 289
The District Court then turned to the action against HUD. In
September, 1970, it granted HUD's motion to dismiss the complaint
for lack of jurisdiction and failure to state a claim on which
relief could be granted. The United States Court of Appeals for the
Seventh Circuit reversed, and ordered the District Court to enter
summary judgment for the respondents, holding that HUD had violated
both the Fifth Amendment and § 601 of the Civil Rights Act of 1964,
78 Stat. 252, 42 U.S.C. § 2000d, by knowingly sanctioning and
assisting CHA's racially discriminatory public housing program.
Gautreaux v. Romney,
448 F.2d 731, 739-740. [Footnote 7
On remand, the trial court addressed the difficult problem of
providing an effective remedy for the racially segregated public
housing system that had been created by the unconstitutional
conduct of CHA and HUD. [Footnote
Page 425 U. S. 290
The court granted the respondents' motion to consolidate the CHA
and HUD cases and ordered the parties to formulate "a comprehensive
plan to remedy the past effects of unconstitutional site selection
procedures." The order directed the parties to "provide the Court
with as broad a range of alternatives as seem . . . feasible,"
including "alternatives which are not confined in their scope to
the geographic boundary of the City of Chicago." After
consideration of the plans submitted by the parties and the
evidence adduced in their support, the court denied the
respondents' motion to consider metropolitan area relief and
adopted the petitioner's
Page 425 U. S. 291
proposed order requiring HUD to use its best efforts to assist
CHA in increasing the supply of dwelling units and enjoining HUD
from funding family public housing programs in Chicago that were
inconsistent with the previous judgment entered against CHA. The
court found that metropolitan area relief was unwarranted because
"the wrongs were committed within the limits of Chicago and solely
against residents of the City" and there were no allegations that
"CHA and HUD discriminated or fostered racial discrimination in the
suburbs." On appeal, the Court of Appeals for the Seventh Circuit,
with one judge dissenting, reversed and remanded the case for
"the adoption of a comprehensive metropolitan area plan that
will not only disestablish the segregated public housing system in
the City of Chicago . . . but will increase the supply of dwelling
units as rapidly as possible."
503 F.2d 930, 939. Shortly before the Court of Appeals announced
its decision, this Court, in Milliken v. Bradley,
418 U. S. 717
reversed a judgment of the Court of Appeals for the Sixth Circuit
that had approved a plan requiring the consolidation of 54 school
districts in the Detroit metropolitan area to remedy racial
discrimination in the operation of the Detroit public schools.
"to hold that the relief sought
there would be an impractical and unreasonable overresponse to a
violation limited to one school district," the Court of Appeals
concluded that the Milliken
decision did not bar a remedy
extending beyond the limits of Chicago in the present case because
of the equitable and administrative distinctions between a
metropolitan public housing plan and the consolidation of numerous
local school districts. 503 F.2d at 935-936. In addition, the
appellate court found that, in contrast to Milliken,
was evidence of suburban discrimination and
Page 425 U. S. 292
of the likelihood that there had been an "extra-city impact" of
the petitioner's "intra-city discrimination." Id.
936-937, 939-940. The appellate court's determination that a remedy
extending beyond the city limits was both "necessary and equitable"
rested in part on the agreement of the parties and the expert
witnesses that "the metropolitan area is a single relevant locality
for low rent housing purposes and that a city-only remedy will not
at 936-937. HUD subsequently sought review in
this Court of the permissibility in light of Milliken
"inter-district relief for discrimination in public housing in the
absence of a finding of an inter-district violation." [Footnote 9
] We granted certiorari to
consider this important question. 421 U.S. 962.
In Milliken v. Bradley, supra,
this Court considered
the proper scope of a federal court's equity decree in the context
of a school desegregation case. The respondents in that case had
brought an action alleging that the Detroit public school system
was segregated on the basis of race as the result of official
conduct and sought an order establishing "a unitary, nonracial
school system.'" 418 U.S. at 418 U. S. 723.
After finding that constitutional violations committed by the
Detroit School Board and state officials had contributed to racial
segregation in the Detroit schools, the trial court had proceeded
to the formulation of a remedy. Although there had been neither
proof of unconstitutional actions on the part of neighboring school
districts nor a demonstration that the Detroit violations had
produced significant segregative effects in those districts, the
Page 425 U. S.
a desegregation panel and ordered it to prepare a remedial
plan consolidating the Detroit school system and 53 independent
suburban school districts. Id. at 733-734. [Footnote 10] The Court of Appeals for the
Sixth Circuit affirmed the desegregation order on the ground that,
in view of the racial composition of the Detroit school system, the
only feasible remedy required "the crossing of the boundary lines
between the Detroit School District and adjacent or nearby school
districts." 484 F.2d 215, 249. This Court reversed the Court of
Appeals, holding that the multidistrict remedy contemplated by the
desegregation order was an erroneous exercise of the equitable
authority of the federal courts.
Although the Milliken
opinion discussed the many
practical problems that would be encountered in the consolidation
of numerous school districts by judicial decree, the Court's
decision rejecting the metropolitan area desegregation order was
actually based on fundamental limitations on the remedial powers of
the federal courts to restructure the operation of local and state
governmental entities. That power is not plenary. It "may be
exercised only on the basis of a constitutional violation.'"
418 U.S. at 418 U. S. 738,
quoting Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1,
402 U. S. 16.
See Rizzo v. Goode, 423 U. S. 362,
423 U. S. 377.
Once a constitutional violation is found, a federal court is
Page 425 U. S. 294
tailor "the scope of the remedy" to fit "the nature and extent
of the constitutional violation." 418 U.S. at 418 U. S. 744
at 402 U. S. 16
there was no finding of unconstitutional action
on the part of the suburban school officials and no demonstration
that the violations committed in the operation of the Detroit
school system had had any significant segregative effects in the
418 U.S. at 418 U. S. 745
418 U. S. 748
The desegregation order in Milliken
consolidation of local school districts in the Detroit metropolitan
area thus constituted direct federal judicial interference with
local governmental entities without the necessary predicate of a
constitutional violation by those entities or of the identification
within them of any significant segregative effects resulting from
the Detroit school officials' unconstitutional conduct. Under these
circumstances, the Court held that the inter-district decree was
impermissible because it was not commensurate with the
constitutional violation to be repaired.
Since the Milliken
decision was based on basic
limitations on the exercise of the equity power of the federal
courts, and not on a balancing of particular considerations
presented by school desegregation cases, it is apparent that the
Court of Appeals erred in finding Milliken
that ground to this public housing case. [Footnote 11
Page 425 U. S. 295
The school desegregation context of the Milliken
is nonetheless important to an understanding of its discussion of
the limitations on the exercise of federal judicial power. As the
Court noted, school district lines cannot be "casually ignored or
treated as a mere administrative convenience," because they
separate independent governmental entities responsible for the
operation of autonomous
Page 425 U. S. 296
public school systems. 418 U.S. at 418 U. S.
-743. The Court's holding that there had to be an
inter-district violation or effect before a federal court could
order the crossing of district boundary lines reflected the
substantive impact of a consolidation remedy on separate and
independent school districts. [Footnote 12
] The District Court's desegregation order in
was held to be an impermissible remedy not
because it envisioned relief against a wrongdoer extending beyond
the city in which the violation occurred, but because it
contemplated a judicial decree restructuring the operation of local
governmental entities that were not implicated in any
The question presented in this case concerns only the authority
of the District Court to order HUD to take remedial action outside
the city limits of Chicago. HUD does not dispute the Court of
Appeals' determination that it violated the Fifth Amendment and §
601 of the Civil Rights Act of 1964 by knowingly funding CHA's
racially discriminatory family public housing program, nor does it
question the appropriateness of a remedial order designed to
alleviate the effects of past segregative practices by requiring
that public housing be developed in areas that will afford
respondents an opportunity to reside in desegregated neighborhoods.
But HUD contends that the Milliken
decision bars a remedy
Page 425 U. S. 297
its conduct beyond the boundaries of Chicago for two reasons.
First, it asserts that such a remedial order would constitute the
grant of relief incommensurate with the constitutional violation to
be repaired. And second, it claims that a decree regulating HUD's
conduct beyond Chicago's boundaries would inevitably have the
effect of "consolidat[ing] for remedial purposes" governmental
units not implicated in HUD's and CHA's violations. We address each
of these arguments in turn.
We reject the contention that, since HUD's constitutional and
statutory violations were committed in Chicago, Milliken
precludes an order against HUD that will affect its conduct in the
greater metropolitan area. The critical distinction between HUD and
the suburban school districts in Milliken
is that HUD has
been found to have violated the Constitution. That violation
provided the necessary predicate for the entry of a remedial order
against HUD and, indeed, imposed a duty on the District Court to
grant appropriate relief. See
418 U.S. at 418 U. S. 744
Our prior decisions counsel that, in the event of a constitutional
violation, "all reasonable methods be available to formulate an
effective remedy," North Carolina State Board of Education v.
Swann, 402 U. S. 43
402 U. S. 46
and that every effort should be made by a federal court to employ
those methods "to achieve the greatest possible degree of [relief],
taking into account the practicalities of the situation." Davis
v. School Comm'rs of Mobile County, 402 U. S.
, 402 U. S. 37
the Court observed in Swann v. Charlotte-Mecklenburg Board of
"Once a right and a violation have been shown, the scope of a
district court's equitable powers to remedy past wrongs is broad,
for breadth and flexibility are inherent in equitable
402 U.S. at 402 U. S. 15
Page 425 U. S. 298
Nothing in the Milliken
decision suggests a per
rule that federal courts lack authority to order parties
found to have violated the Constitution to undertake remedial
efforts beyond the municipal boundaries of the city where the
violation occurred. [Footnote
] As we noted in 425 U. S.
the District Court's proposed remedy in
was impermissible because of the limits on the
federal judicial power to interfere with the operation of state
political entities that were not implicated in unconstitutional
conduct. Here, unlike the desegregation remedy found erroneous in
a judicial order directing relief beyond the
boundary lines of Chicago will not necessarily entail coercion of
uninvolved governmental units, because both CHA and HUD have the
authority to operate outside the Chicago city limits. [Footnote 14
Page 425 U. S. 299
In this case, it is entirely appropriate and consistent with
to order CHA and HUD to attempt to create housing
alternatives for the respondents in the Chicago suburbs. Here, the
wrong committed by HUD confined the respondents to segregated
public housing. The relevant geographic area for purposes of the
respondents' housing options is the Chicago housing market, not the
Chicago city limits. That HUD recognizes this reality is evident in
its administration of federal housing assistance programs through
"housing market areas" encompassing "the geographic area within
which all dwelling units . . .' are in competition with one another
as alternatives for the users of housing." Department of Housing
and Urban Development, FHA Techniques of Housing Market Analysis 8
(Jan.1970), quoting the Institute for Urban Land Use and Housing
Studies, Housing Market Analysis: A Study of Theory and Methods, c.
2 (1953). The housing market area "usually extends beyond the city
limits," and, in the larger markets, "may extend into several
adjoining counties." FHA Techniques of Housing Market Analysis,
supra at 12. [Footnote
15] An order against HUD and CHA regulating their conduct in
the greater metropolitan area will
Page 425 U. S. 300
do no more than take into account HUD's expert determination of
the area relevant to the respondents' housing opportunities, and
will thus be wholly commensurate with the "nature and extent of the
constitutional violation." 418 U.S. at 418 U. S. 744
To foreclose such relief solely because HUD's constitutional
violation took place within the city limits of Chicago would
principled limitation on the exercise
of federal judicial authority into an arbitrary and mechanical
shield for those found to have engaged in unconstitutional
The more substantial question under Milliken
an order against HUD affecting its conduct beyond Chicago's
boundaries would impermissibly interfere with local governments and
suburban housing authorities that have not been implicated in HUD's
unconstitutional conduct. In examining this issue, it is important
to note that the Court of Appeals' decision did not endorse or even
discuss "any specific metropolitan plan," but instead left the
formulation of the remedial plan to the District Court on remand.
503 F.2d at 936. On rehearing, the Court of Appeals characterized
its remand order as one calling
"for additional evidence and for further consideration of the
issue of metropolitan area relief in light of this opinion and that
of the Supreme Court in Milliken v. Bradley.
at 940. In the current posture of the case, HUD's
contention that any remand for consideration of a metropolitan area
order would be impermissible as a matter of law must necessarily be
based on its claim at oral argument
"that court-ordered metropolitan relief in this case, no matter
how gently it's gone about, no matter how it's framed, is bound to
require HUD to ignore the safeguards of local autonomy and local
and therefore to violate the limitations on federal judicial
Page 425 U. S. 301
established in Milliken.
In addressing this contention,
we are not called upon, in other words, to evaluate the validity of
any specific order, since no such order has yet been
HUD's position, we think, underestimates the ability of a
federal court to formulate a decree that will grant the respondents
the constitutional relief to which they may be entitled without
overstepping the limits of judicial power established in the
case. HUD's discretion regarding the selection of
housing proposals to assist with funding as well as its authority
under a recent statute to contract for low-income housing directly
with private owners and developers can clearly be directed toward
providing relief to the respondents in the greater Chicago
metropolitan area without preempting the power of local governments
by undercutting the role of those governments in the federal
housing assistance scheme.
An order directing HUD to use its discretion under the various
federal housing programs to foster projects located in white areas
of the Chicago housing market would be consistent with and
supportive of well established federal housing policy. [Footnote 16
] Title VI of the Civil
Rights Act of 1964 prohibits racial discrimination in federally
assisted programs including, of course, public housing programs.
] Based upon
this statutory prohibition, HUD in 1967 issued site-approval rules
Page 425 U. S. 302
housing designed to avoid racial segregation and expand the
opportunities of minority group members "to locate outside areas of
[minority] concentration." Department of Housing and Urban
Development, Low-Rent Housing Manual, § 205.1, � 4g (Feb.1967
rev.). Title VIII of the Civil Rights Act of 1968 expressly
directed the Secretary of HUD to "administer the programs and
activities relating to housing and urban development in a manner
affirmatively to further" the Act's fair housing policy. 82 Stat.
85, 42 U.S.C. § 3608(d)(5).
Among the steps taken by HUD to discharge its statutory duty to
promote fair housing was the adoption of project selection criteria
for use in "eliminating clearly unacceptable proposals and
assigning priorities in funding to assure that the best proposals
are funded first." HUD Evaluation of Rent Supplement Projects and
Low-Rent Housing Assistance Applications, 37 Fed.Reg. 203 (1972).
In structuring the minority housing opportunity component of the
project selection criteria, HUD attempted "to assure that building
in minority areas goes forward only after there truly exist housing
opportunities for minorities elsewhere" in the housing market, and
to avoid encouraging projects located in substantially racially
mixed areas. Id.
at 204. See
24 CFR § 200.710
(1975). See generally
Maxwell, HUD's Project Selection
Criteria -- A Cure for "Impermissible Color Blindness"?, 48 Notre
Dame Law. 92 (1972). [Footnote
] More recently, in
Page 425 U. S. 303
the Housing and Community Development Act of 1974, Congress
emphasized the importance of locating housing so as to promote
greater choice of housing opportunities and to avoid undue
concentrations of lower income persons. See
88 Stat. 633,
42 U.S.C. §§ 5301(c)(6), 5304(a)(4)(A), (C)(ii) (1970 ed., Supp.
IV); H.R.Rep. No. 93-1114, p. 8 (1974).
A remedial plan designed to insure that HUD will utilize its
funding and administrative powers in a manner consistent with
affording relief to the respondents need not abrogate the role of
local governmental units in the federal housing-assistance
programs. Under the major housing programs in existence at the time
the District Court entered its remedial order pertaining to HUD,
local housing authorities and municipal governments had to make
application for funds or approve the use of funds in the locality
before HUD could make housing assistance money available.
42 U.S.C. §§ 1415(7)(b), 1421b(a)(2). An order
directed solely to HUD would not force unwilling localities to
apply for assistance under these programs, but would merely
reinforce the regulations guiding HUD's determination of which of
the locally authorized projects to assist with federal funds.
The Housing and Community Development Act of 1974, amending the
United States Housing Act of 1937, 88 Stat. 653, 42 U.S.C. § 1437
(1970 ed., Supp. IV), significantly enlarged HUD's
role in the creation of housing opportunities. Under the § 8
Lower-Income Housing Assistance program, which has largely replaced
the older federal low-income housing programs, [Footnote 19
Page 425 U. S. 304
may contract directly with private owners to make leased housing
units available to eligible lower income persons. [Footnote 20
] As HUD has acknowledged in
this case, "local governmental approval is no longer explicitly
required as a condition of the program's applicability to a
locality." Brief for Petitioner 33-34. Regulations governing the §
8 program permit HUD to select "the geographic area or areas in
which the housing is to be constructed," 24 CFR § 880.203(b)
(1975), and direct that sites be chosen to
"promote greater choice of housing opportunities and avoid undue
concentration of assisted persons in areas containing a high
proportion of low-income persons."
§§ 880.112(d), 883.209(a)(3). See
§§ 880.112(b), (c),
883.209(a)(2), (b)(2). In most cases, the Act grants the unit of
local government in which the assistance is to be provided the
right to comment on the application and, in certain specified
circumstances, to preclude the Secretary of HUD from approving the
42 U.S.C. §§ 1439(a)-(c) (1970 ed., Supp.
IV). [Footnote 21
Page 425 U. S. 305
Use of the § 8 program to expand low income housing
opportunities outside areas of minority concentration would not
have a coercive effect on suburban municipalities. For under the
program, the local governmental units retain the right to comment
on specific assistance proposals, to reject certain proposals that
are inconsistent with their approved housing assistance plans, and
to require that zoning and other land use restrictions be adhered
to by builders.
In sum, there is no basis for the petitioner's claim that
court-ordered metropolitan area relief in this case would be
impermissible as a matter of law under the Milliken
decision. In contrast to the desegregation order in that case, a
metropolitan area relief order directed to HUD would not
consolidate or in any way restructure local
Page 425 U. S. 306
governmental units. The remedial decree would neither force
suburban governments to submit public housing proposals to HUD nor
displace the rights and powers accorded local government entities
under federal or state housing statutes or existing land use laws.
The order would have the same effect on the suburban governments as
a discretionary decision by HUD to use its statutory powers to
provide the respondents with alternatives to the racially
segregated Chicago public housing system created by CHA and
Since we conclude that a metropolitan area remedy in this case
is not impermissible as a matter of law, we affirm the judgment of
the Court of Appeals remanding the case to the District Court "for
additional evidence and for further consideration of the issue of
metropolitan area relief." 503 F.2d at 940. Our determination that
the District Court has the authority to direct HUD to engage in
remedial efforts in the metropolitan area outside the city limits
of Chicago should not be interpreted as requiring a metropolitan
area order. The nature and scope of the remedial decree to be
entered on remand is a matter for the District Court in the
exercise of its equitable discretion, after affording the parties
an opportunity to present their views.
The judgment of the Court of Appeals remanding this case to the
District Court is affirmed, but further proceedings in the District
Court are to be consistent with this opinion.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
The original complaint named the Housing Assistance
Administration, then a corporate agency of HUD, as the defendant.
Although the petitioner in this case is the current Secretary of
HUD, this opinion uses the terms "petitioner" and "HUD"
The complaint sought to enjoin HUD from providing funds for 17
projects that had been proposed by CHA in 1965 and 1966 and from
making available to CHA any other financial assistance to be used
in connection with the racially discriminatory aspects of the
Chicago public housing system. In addition, the respondents
requested that they be granted "such other and further relief as
the Court may deem just and equitable."
Before the stay of the action against HUD, the District Court
had certified the plaintiff class in the CHA action and had
rejected CHA's motion to dismiss or for summary judgment on the
counts of the complaint alleging that CHA had intentionally
selected public housing sites to avoid desegregating housing
patterns. 265 F.
CHA admitted that it had followed a policy of informally
clearing proposed family public housing sites with the alderman in
whose ward the proposed site was located and of eliminating each
site opposed by the alderman. 296 F.
, 910, 913. This procedure had resulted in the
rejection of 99 1/2% of the units proposed for sites in white areas
which had been initially selected as suitable for public housing by
With regard to tenant assignments, the court found that CHA had
established a racial quota to restrict the number of Negro families
residing in the four CHA family public housing projects located in
white areas in Chicago. The projects, all built prior to 1944, had
Negro tenant populations of 7%, 6%, 4%, and 1% despite the fact
that Negroes composed about 90% of the tenants of CHA family
housing units and a similar percentage of the waiting list. A CHA
official testified that, until 1968, the four projects located in
white areas were listed on the Authority's tenant-selection form as
suitable for white families only. Id.
In July, 1968, CHA had in operation or development 54 family
housing projects with a total of 30,848 units. Statistics submitted
to the District Court established that, aside from the four
overwhelmingly white projects discussed in n
92% of all of CHA's family housing
units were located in neighborhoods that were at least 75% Negro,
and that two-thirds of the units were situated in areas with more
than 95% Negro residents. Id.
The District Court's remedial decree divided Cook County into a
"General Public Housing Area" and a "Limited Public Housing Area."
The "Limited Public Housing Area" consisted of the area within
census tracts having a 30% or more nonwhite population or within
one mile of the boundary of any such census tract. The remainder of
Cook County was included in the "General Public Housing Area." 304
F. Supp. at 737. Following the commencement of construction of at
least 700 family units in the General Public Housing Area of the
city of Chicago, CHA was permitted by the terms of the order to
locate up to one-third of its General Public Housing Area units in
the portion of Cook County outside of Chicago. See id.
The Court of Appeals found that
"HUD retained a large amount of discretion to approve or reject
both site selection and tenant assignment procedures of the local
and that the Secretary had exercised those powers "in a manner
which perpetuated a racially discriminatory housing system in
Chicago." 448 F.2d at 739. Although the appellate court stated that
it was "fully sympathetic" with the "very real dilemma'"
presented by the need for public housing in Chicago, it ruled that
the demand for housing did not justify "the Secretary's past
actions [which] constituted racially discriminatory conduct in
their own right." Ibid.
The court's July, 1969, order directing CHA to use its best
efforts to increase public housing opportunities in white areas as
rapidly as possible had not resulted in the submission of a single
housing site to the Chicago City Council. A subsequent order
directing the submission of sites for 1,500 units by September 20,
1970, had eventually prompted CHA to submit proposed sites in the
spring of 1971, but inaction by the City Council had held up the
approval of the sites required for their development. See
Gautreaux v. Romney, 332 F.
The District Court subsequently took additional measures in an
attempt to implement the remedial orders entered against CHA. In
May, 1971, the city of Chicago and HUD agreed to a letter of intent
that provided that the city would process sites suitable for use by
CHA to permit the Authority to commence acquisition of sites for
1,700 units in accordance with a specified timetable. HUD then
released certain Model Cities funds on the condition that the City
Council and CHA continue to show progress toward meeting the goals
set forth in the May letter. After the city fell far behind
schedule, the District Court granted the respondents' request for
an injunction directing HUD to withhold $26 million in Model Cities
funds until the city remedied its existing deficit under the
timetable. See id.
at 368-370. The Court of Appeals
reversed the injunction, holding that the District Court had abused
its discretion in ordering funding cut off. 457 F.2d 124.
Between July, 1971, and April, 1972, the City Council failed to
conduct any hearings with respect to acquisition of property for
housing sites, and did not approve land acquisition for any sites.
Gautreaux v. Chicago Housing Authority, 342 F.
, 829. Following the filing of a supplemental
complaint naming the mayor and the members of the City Council as
defendants, the District Court found that their inaction had
prevented CHA from providing relief in conformity with the court's
prior orders. In a further effort to effectuate relief, the court
ruled that the provision of Illinois law requiring City Council
approval of land acquisition by CHA "shall not be applicable to
CHA's actions . . . taken for the purpose of providing Dwelling
at 830. The Court of Appeals upheld this
decision. Gautreaux v. City of Chicago,
480 F.2d 210.
Although CHA participated in the proceeding before the Court of
Appeals, it did not seek review of that court's decision, and has
not participated in the proceedings in this Court.
Although the trial court's desegregation order in
did not direct the adoption of a specific
metropolitan area plan, it did contain detailed guidelines for the
panel appointed to draft the desegregation plan. 345 F.
(ED Mich.). The framework for the plan called for the
division of the designated 54-school-district desegregation area
into 15 clusters, each containing a part of the Detroit school
system and two or more suburban districts. Within this framework,
the court charged the panel with the responsibility for devising a
plan that would produce the maximum actual desegregation.
at 918, 928-929. See
418 U.S. at 418 U. S.
The Court of Appeals interpreted the Milliken
as limited to a determination that, in view of the administrative
complexities of school district consolidation and the deeply rooted
tradition of local control of public schools, the balance of
equitable factors weighed against metropolitan area school
desegregation remedies. See
503 F.2d at 935-936. But the
Court's decision in Milliken
was premised on a controlling
principle governing the permissible scope of federal judicial
power, a principle not limited to a school desegregation context.
418 U.S. at 418 U. S.
In addition, the Court of Appeals surmised that either an
inter-district violation or an inter-district segregative effect
may have been present in this case. There is no support provided
for either conclusion. The sole basis of the appellate court's
discussion of alleged suburban discrimination was the respondents'
Exhibit 11 illustrating the location of 12 public housing projects
within the portion of the Chicago Urbanized Area outside the city
limits of Chicago. That exhibit showed that 11 of the 12 projects
were located in areas that, at the time of the hearing in November,
1972, were within one mile of the boundary of a census tract with
less than a 70% white population. The exhibit was offered to
illustrate the scarcity of integrated public housing opportunities
for the plaintiff class and for lower income white families and to
indicate why the respondents did not "expect cooperation from the
suburban areas" in providing housing alternatives in predominately
white areas. In discussing the data underlying the exhibit, counsel
for the respondents in the trial court expressly attempted to avoid
the "possible misconception" that he was then asserting that the
suburban municipalities and housing authorities were "guilty of any
discrimination or wrongdoing." In view of the purpose for which the
exhibit was offered and the District Court's determination that
"the wrongs were committed within the limits of Chicago," it is
apparent that the Court of Appeals was mistaken in supposing that
the exhibit constitutes evidence of suburban discrimination
justifying metropolitan area relief.
In its brief opinion on rehearing, the Court of Appeals asserted
that "it is reasonable to conclude from the record" that the
"may well have fostered racial paranoia and encouraged the
'white flight' phenomenon which has exacerbated the problems of
503 F.2d at 939-940. The Court of Appeals' speculation about the
effects of the discriminatory site selection in Chicago is contrary
both to expert testimony in the record and the conclusions of the
District Court. Such unsupported speculation falls far short of the
demonstration of a "significant segregative effect in another
district" discussed in the Milliken
418 U.S. at 418 U. S.
The Court in Milliken
required either a showing of an
inter-district violation or a significant segregative effect
"[b]efore the boundaries of separate and autonomous school
districts may be set aside by consolidating the separate units for
remedial purposes." Id.
at 418 U. S. 744
In its amicus
memorandum in Milliken,
States argued that an inter-district remedy in that case would
require "the restructuring of state or local government entities"
and result in "judicial interference with state prerogatives
concerning the organization of local governments."
Although the State of Michigan had been found to have committed
Constitutional violations contributing to racial segregation in the
Detroit schools, 418 U.S. at 418 U. S.
-735, n. 16, the Court in Milliken
that the inter-district order was a wrongful exercise of judicial
power because prior cases had established that such violations are
to be dealt with in terms of "an established geographic and
administrative school system," id.
at 418 U. S. 746
and because the State's educational structure vested substantial
independent control over school affairs in the local school
districts. See id.
at 418 U. S.
-744. In Milliken,
a consolidation order
directed against the State would of necessity have abrogated the
rights and powers of the suburban school districts under Michigan
law. See id.
at 418 U. S. 742
n. 20. Here, by contrast, a metropolitan area remedy involving HUD
need not displace the rights and powers accorded suburban
governmental entities under federal or state law. See
Illinois statutes permit a city housing authority to exercise
its powers within an "area of operation" defined to include the
territorial boundary of the city and all of the area within three
miles beyond the city boundary that is not located within the
boundaries of another city, village, or incorporated town. In
addition, the housing authority may act outside its area of
operation by contract with another housing authority or with a
state public body not within the area of operation of another
housing authority. Ill.Rev.Stat. c. 67 1/2, §§ 17(b), 27c
Although the state officials in Milliken
authority to operate across school district lines, the exercise of
that authority to effectuate the court's desegregation order would
have eliminated numerous independent school districts, or at least
have displaced important powers granted those uninvolved
governmental entities under state law. See n
In principal markets such as Chicago, the Standard Metropolitan
Statistical Area is coterminous with the housing market area.
Department of Housing and Urban Development, FHA
Techniques of Housing Market Analysis 13 (Jan.1970); Department of
Housing and Urban Development, Urban Housing Market Analysis 5
In the District Court, HUD filed an appendix detailing the
various federal programs designed to secure better housing
opportunities for low-income families and represented that
"the Department will continue to use its best efforts in review
and approval of housing programs for Chicago which address the
needs of low income families."
It was this statutory prohibition that HUD was held to have
violated by its funding of CHA's housing projects. See
F.2d at 740.
A HUD study of the implementation of the project selection
criteria revealed that the actual operation of the minority housing
opportunity criterion depends on the definition of "area of
minority concentration" and "racially mixed" area employed by each
field office. The meaning of those terms, which are not defined in
the applicable regulations, 24 CFR § 200.710 (1975), varied among
field offices and within the jurisdiction of particular field
offices. Department of Housing and Urban Development,
Implementation of HUD Project Selection Criteria for Subsidized
Housing: An Evaluation 116-117 (Dec. 1972).
In fiscal year 1975, new contract commitments under the § 8
program were approximately $10.7 billion, as compared to total
estimated new contract commitments of approximately $16.35 billion
for all federally subsidized housing programs. The comparable
figures for fiscal year 1976 indicate that $22.725 billion of a
total of $24.8 billion in new contract commitments are to be made
under the § 8 program. See
Hearings on Department of
Housing and Urban Development -- Independent Agencies
Appropriations for 1976, before a Subcommittee of the House
Committee on Appropriations, 94th Cong., 1st Sess., pt. 5, pp.
85-86 (1975). See also id.
at 119 (testimony of HUD
Under the § 8 program, HUD contracts to make payments to local
public housing agencies or to private owners of housing units to
make up the difference between a fair market rent for the area and
the amount contributed by the low-income tenant. The eligible
tenant family pays between 15% and 25% of its gross income for
42 U.S.C. § 1437f (1970 ed., Supp. IV).
If the local unit of government in which the proposed assistance
is to be provided does not have an approved housing assistance
plan, the Secretary of HUD is directed by statute to give the local
governmental entity 30 days to comment on the proposal, after which
time the Secretary may approve the project unless he determines
that there is not a need for the assistance. 42 U.S.C. § 1439(c)
(1970 ed., Supp. IV). In areas covered by an approved plan, the
local governmental entity is afforded a 30-day period in which to
object to the project on the ground that it is inconsistent with
the municipality's approved housing assistance plan. If such an
objection is filed, the Secretary may nonetheless approve the
application if he determines that the proposal is consistent with
the housing assistance plan. § 1439(a). The local comment and
objection procedures do not apply to applications for assistance
involving 12 or fewer units in a single project or development. §
The ability of local governments to block proposed § 8 projects
thus depends on the size of the proposed project and the provisions
of the approved housing assistance plans. Under the 1974 Act, the
housing assistance plan must assess the needs of lower income
persons residing in or expected to reside in the community, and
must indicate the general locations of proposed housing for lower
income persons selected in accordance with the statutory objective
of "promoting greater choice of housing opportunities and avoiding
undue concentrations of assisted persons." 42 U.S.C. §§
5304(a)(4)(A), (C)(ii) (1970 ed., Supp. IV). See
No. 93-1114, p. 8 (1974). See also City of Hartford v.
Hills, 408 F.
(Conn.1976). In view of these requirements of the
Act, the location of subsidized housing in predominantly white
areas of suburban municipalities may well be consistent with the
communities' housing assistance plans.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE WHITE join, concurring.
I dissented in Milliken v. Bradley, 418 U.
Page 425 U. S. 307
(1974), and I continue to believe that the Court's decision in
that case unduly limited the federal courts' broad equitable power
to provide effective remedies for official segregation. In this
case, the Court distinguishes Milliken
and paves the way
for a remedial decree directing the Department of Housing and Urban
Development to utilize its full statutory power to foster housing
projects in white areas of the greater Chicago metropolitan area. I
join the Court's opinion except insofar as it appears to reaffirm
the decision in Milliken.