UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1279
ALFRED RASO, ET AL.,
Plaintiffs, Appellants,
v.
MARISA LAGO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Chester Darling for appellants.
Saul A. Schapiro with whom Nina F. Lempert, Thomas Bhisitkul,
Rosenberg & Schapiro, Merita Hopkins, Corporation Counsel, Kevin S.
McDermott and Amanda P. O'Reilly, Assistant Corporation Counsel, City
of Boston Law Department, were on briefs for appellees Marisa Lago,
Director of the Boston Redevelopment Authority, the Boston
Redevelopment Authority, Thomas A. Menino, Mayor of Boston, City of
Boston, Victoria L. Williams, Director of the Boston Fair Housing
Commission, Boston Fair Housing Commission, Sandra Henriquez, Director
of the Boston Housing Authority and Boston Housing Authority.
Rudolph F. Pierce with whom Lynne Alix Morrison, David W.
Fanikos, Goulston & Storrs, P.C., Richard M. Bluestein, Paul Holtzman
and Krokidas & Bluestein were on brief for Robert H. Kuehn, Jr.,
President of Keen Development Corp., and as Trustee of the Lowell
Square Nominee Trust, Keen Development Corp., Reverend Michael F.
Groden, Director of the Planning Office for Urban Affairs, Inc., and
as Trustee of the Lowell Square Nominee Trust, Planning Office for
Urban Affairs, Inc., Lowell Square Associates Joint Venture, Lowell
Square Cooperative Limited Partnership, Mark Maloney, President of
Maloney Properties, Inc., and Maloney Properties, Inc.
Susan M. Poswistilo, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for Henry G.
Cisneros, Secretary of the Department of Housing and Urban Development
and Department of Housing and Urban Development.
January 27, 1998
BOUDIN, Circuit Judge. The plaintiffs in this case are
former residents of Boston's Old West End who were forced to
relocate when their homes were taken by eminent domain for
urban renewal. They claim that Massachusetts law entitles
them to first preference for tenancy of all new residential
units built on the land, and that they are being denied this
preference in a new development called West End Place because
most former West Enders are white. The district judge
dismissed the complaint, leading to this appeal.
The background facts are undisputed. In May 1956, the
Boston Housing Authority, the forerunner to the current
Boston Redevelopment Authority ("the BRA"),1 prepared a plan
for urban renewal of Boston's Old West End, a downtown
neighborhood lying just north of Beacon Hill. The plan was
approved as required under Massachusetts law, and in 1958,
the BRA ordered a taking by eminent domain of a large area,
displacing over three thousand households of diverse
heritages, but including few African Americans.
The BRA executed a lease agreement with a private
developer, Charles River Park, Inc. ("Charles River"). Over
the next ten years, Charles River razed buildings in the Old
West End and built offices, condominiums, and luxury
1The BRA is an entity established by the Commonwealth of
Massachusetts to undertake urban renewal projects and to
relieve housing shortages. See Collins v. Selectmen of
Brookline, 325 Mass. 562, 564-66 (1950).
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residential units. The new buildings were either
nonresidential or so expensive that very few of the former
West Enders could afford to occupy them.
In 1970, the BRA terminated Charles River as the project
developer and, in 1986, solicited proposals for the
development of Lowell Square, located at the intersection of
Lomasney Way and Staniford Street, the only remaining large
undeveloped section of the Old West End. A proposal was
submitted by the Lowell Square Cooperative Limited
Partnership (the "developer") to build a new development
called West End Place at Lowell Square.2
The BRA eventually awarded the developer the
redevelopment contract. One restriction in the agreement
between the BRA and the developer mirrors a provision of
Massachusetts law requiring the BRA to obligate the developer
as follows:
(c) to give preference in the selection of tenants
for dwelling units built in the project area to
families displaced therefrom because of clearance
and renewal activity who desire to live in such
dwelling units and who will be able to pay rents or
prices equal to rents or prices charged other
families for similar or comparable dwelling units
built as a part of the same redevelopment; and
(d) to comply with such other conditions as are
deemed necessary to carry out the purposes of this
chapter, or requirements of federal legislation or
2The partnership later underwent a name change and, in
addition, the complaint names other private entities and
individuals associated with it. For convenience, all are
referred to as "the developer."
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regulations under which loans, grants or
contributions have been made or agreed to be made
to meet a part of the cost of the project.
Mass. Gen. Laws ch. 121B, 49 (1986).
The BRA also required that the developer work closely
with former West Enders in developing the property. To that
end, a number of former West Enders formed the Old West End
Housing Corporation. This nonprofit entity and the developer
signed a participation agreement, which stated, inter alia,
that former West Enders would have first preference in the
purchase or rental of residential units in West End Place,
subject to applicable local, state, and federal laws.
The developer sought out numerous sources of financing,
including government funding from local, state, and federal
agencies. In particular, the federal Department of Housing
and Urban Development ("HUD") funded a grant of $2.5 million
for construction, and it also committed $7 million in rent
subsidies for the low-income units in West End Place. See 42
U.S.C. 1437f (1994). Like most federal housing assistance,
these funds were contingent on compliance with federal fair
housing requirements. See 24 C.F.R. 1.5, 5.105 (1997).
One such requirement is that developer recipients of
federal housing funds must carry out an affirmative program
to attract minority, as well as majority, applicants; the
pertinent regulation contemplates mailings to minority
organizations, assurances of nondiscrimination, and like
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measures. Each applicant is required to set forth its
"affirmative fair housing marketing plan" on a HUD form and
secure its approval by HUD. See 24 C.F.R. 200.620 (1997).
In addition, HUD is subject to a 1991 consent decree
based on a finding that HUD had failed to meet statutory
obligations to ensure that the minority population of Boston
had equal access to public housing. NAACP, Boston Chapter v.
Kemp, No. 78-850-S (D. Mass. Mar. 8, 1991) (consent decree).
The consent decree provides that all Boston area HUD
affirmative fair housing marketing plans "shall have as their
goal and measure of success the achievement of a racial
composition, in HUD-assisted housing located in neighborhoods
which are predominantly white, which reflects the racial
composition of the City [of Boston] as a whole." Id. at 2.3
In preparing its affirmative fair housing marketing
plan, the developer attempted to reconcile the explicit
statutory obligation of a first preference for former West
Enders with HUD's consent-decree goal of a tenancy reflecting
the makeup of the City of Boston. Minority races made up 41
percent of Boston's population, but according to HUD's
3The consent decree ended lengthy litigation, which included
an appeal to this court, over HUD's duties to foster
integrated housing. See NAACP, Boston Chapter v. Pierce, 624
F. Supp. 1083 (D. Mass. 1985), vacated and remanded, NAACP v.
Secretary of Hous. & Urban Dev., 817 F.2d 149 (1st Cir.
1987), on remand, NAACP, Boston Chapter v. Kemp, 721 F. Supp.
361 (D. Mass. 1989). The decree provided that its provisions
did not "constitute" and should not be "construed as" a
quota.
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estimate, only about 2 percent of the former West Enders.
HUD indicated that it viewed an unqualified preference for
former West Enders as contrary to federal fair housing
requirements and the consent decree.
The developer, the government agencies, and the Old West
End Housing Corporation submitted the matter to mediation.
The mediator, a former United States Attorney for
Massachusetts, proposed that former West Enders receive a
preference as to 55 percent of the units in West End Place,
and all other applicants have equal access to the remaining
45 percent. The developer and the agencies agreed; the Old
West End Housing Corporation did not. Nevertheless, the
mediator's solution was included in the developer's
affirmative fair housing marketing plan, which HUD approved
in 1996.
The plan operates as follows. West End Place contains
183 residential units that fall into three rent-based
categories: 58 "low-income" units (subsidized by HUD funds),
48 "moderate-income units," and 77 units to be rented at
market rates. Under the plan, the developer is to give
former West Enders first preference as to 101 of 183 units,
that is, 55 percent of the total. These 101 units are
unevenly distributed over the three rent categories: former
West Enders have a preference as to 19 low-income units (33
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percent), 24 moderate-income units (50 percent), and 58
market-rate units (75 percent).
The tenant selection works by lottery. Each preliminary
application is assigned a random number. The applications
are then separated into two pools: pool A contains
applications from displaced former West Enders and pool B
contains all other applicants. Then, for the low-income
units, the top-ranked applicant from pool A is selected,
followed by the two top-ranked applicants from pool B; this
yields a total of 33 percent pool A applicants (33 percent
former West Enders) in the low-income units. The process is
then repeated until all 58 units are tentatively allocated.
The same lottery approach is used for the other two
categories of apartments. For moderate-income units, the
draw ratio is one-to-one (50 percent former West Enders); for
the market-rate units, three-to-one (75 percent former West
Enders). Applicants who have been selected in this process
are then invited to complete a full application and undergo a
more thorough screening process, which can include
verifications of personal references and credit history. The
same process can supply additional applicants if needed.
From August 26 to September 26, 1996, a real estate
manager hired by the developer coordinated community outreach
efforts to stimulate preliminary applications. The manager
also contacted former West Enders as well as the Old West End
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Housing Corporation. The manager eventually received 1,858
timely preliminary applications, 308 of which identified the
applicants as former West Enders. Of the 308 former West
Ender applicants, 12 identified themselves as black, one as
Latino, and 19 did not identify their race.
On September 26, 1996, the individual plaintiffs--four
former West Enders--filed a complaint in the district court
challenging the tenant selection process and the plan on
numerous grounds; they purported to represent former West
Enders as a class. The Old West End Housing Corporation was
also named as a plaintiff. The numerous defendants divide
into four categories: the BRA and its director; HUD and its
Secretary; the City of Boston and various of its officials;
and, finally, the developer and other private parties
associated with the development of West End Place.
On October 21, 1996, the plaintiffs filed an emergency
motion for a preliminary injunction to halt the lottery,
which was later withdrawn when the defendants agreed to let
the former West Enders' representatives monitor the lottery.
In the lottery, which took place on October 29, 1996, two of
the named plaintiffs received rankings in the lottery that
make it unlikely that they will receive units in West End
Place.
The developer and various other defendants moved to
dismiss the complaint, Fed. R. Civ. P. 12(b)(6), and the
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district court heard argument on the motion on November 20,
1996. On January 6, 1997, the district court issued an
opinion dismissing many of the claims with prejudice. Raso
v. Lago, 958 F. Supp. 686 (D. Mass. 1997). After the former
West Enders declined to amend their complaint to allege
discriminatory implementation of the plan--an opportunity
offered by the district court--the district court dismissed
all claims with prejudice and entered judgment for the
defendants on February 11, 1997.
The former West Enders appeal from the dismissal of only
two of the numerous claims they made in the district court:
first, a claim under 42 U.S.C. 1983 that the plan violates
equal protection principles because it comprises a forbidden
racial classification, and second, a claim that section 49
creates a trust that subjects the BRA and developer to a
trustee's fiduciary duties in favor of the former West
Enders. There are also a few references to the Tenth
Amendment and to federal statutes but these references are
not seriously developed in plaintiffs' briefs.
We begin with section 1983, which pertinently provides
that no person may deprive any person of his or her
constitutional rights under color of state law. 42 U.S.C.
1983. The City of Boston and the BRA are both "state
actors," see Monell v. Department of Soc. Servs., 436 U.S.
658, 690 (1978), and the BRA played a central role in
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developing and fostering the plan challenged by plaintiffs.
HUD is a federal entity not subject to section 1983, but its
officials are directly constrained by equal protection
principles.4
In their complaint, the former West Enders allege that
race was a motive for curtailing the statutory preference
otherwise available to them. Specifically, the complaint
cites the defendants' reliance upon the consent decree as
comprising a racial purpose and goal and asserts that, as a
result, the former West Enders were deprived of a benefit--a
statutory preference for all of the apartments--based upon "a
racial classification." In their appeal brief, plaintiffs'
shorthand version is that the preference was curtailed
"because" the former West Enders were predominantly white.
Factual assertions in a complaint are normally accepted
as true for purposes of a motion to dismiss, see, e.g.,
Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997); in
addition, the defendants do not dispute that racial concerns
and the consent decree prompted their effort to cut back upon
the statutory preference. The reason is apparent: the
4The Fifth Amendment's Due Process Clause embodies the core
of the equal protection doctrine, see Bolling v. Sharpe, 347
U.S. 497, 499-500 (1954), and the Secretary of HUD, a named
defendant in this case, is subject to suit for injunctive
relief for violations of the Constitution. See, e.g., Larson
v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-91
(1949); E. Chemerinsky, Federal Jurisdiction 9.1.1, at 451-
52 (1989).
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former West Enders are almost entirely white, and without
some limitation on the preference rights of former West
Enders, HUD would have been funding subsidized apartments
from which minorities were effectively excluded.
HUD apparently thought that this outcome would violate
the consent decree and its statutory obligation to promote
fair housing. See 42 U.S.C. 3601-3619 (1994); 24 C.F.R.
200.600-200.640 (1997). HUD may have misunderstood both
the consent decree and the federal statute, but whether it
did or not, its purpose to increase minority opportunities
for apartments in West End Place by curtailing the statutory
preference is evident. To this end, it appears that HUD
simply declined to authorize funding unless and until some of
the apartments were made available to applicants other than
former West Enders.
This undenied racial motive distinguishes the case from
those others involving facially neutral actions--like a
zoning law or employee qualification test--where the state
actor denies any racial purpose or concern.5 But the
plaintiffs are mistaken in treating "racial motive" as a
synonym for a constitutional violation. Every
5See, e.g., Village of Arlington Heights v. Metropolitan
Hous. Dev. Corp., 429 U.S. 252, 270-71 (1977) (upholding a
refusal to rezone property to allow construction of multi-
dwelling buildings); Washington v. Davis, 426 U.S. 229, 247-
48 (1976) (upholding a police department literacy exam that
excluded mostly black applicants).
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antidiscrimination statute aimed at racial discrimination,
and every enforcement measure taken under such a statute,
reflect a concern with race. That does not make such
enactments or actions unlawful or automatically "suspect"
under the Equal Protection Clause.
It is quite true that government action taken out of
hostility to a racial group can be condemned out of hand,
e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886), but
there is no allegation whatever in the complaint that the
defendants were hostile to whites. Nor would any such motive
be remotely plausible. Benign intentions do not immunize
government action, but they substantially narrow the inquiry.
The primary test is that any government action--regardless of
benign intent--is suspect if it has been taken on the basis
of a "racial classification"; in such cases, the
classification must be justified by a compelling state
interest and narrow tailoring. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 235 (1995).
Despite the use of the "racial classification" label,
the complaint alleges no facts that would bring that label
into play. See Shaw v. Digital Equipment Corp., 82 F.3d
1194, 1216 (1st Cir. 1996). The term normally refers to a
governmental standard, preferentially favorable to one race
or another, for the distribution of benefits. E.g., Adarand,
515 U.S. at 226-27; City of Richmond v. J.A. Croson Co., 488
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U.S. 469, 493 (1989) (plurality opinion). Yet under the plan
adopted in this case, the apartments freed from the statutory
preference are made available to all applicants regardless of
race.
West End Place was built with federal help and its
apartments made especially desirable through federal
subsidies. It might not seem remarkable that the government
should insist, as a condition of this investment, that a fair
number of the apartments should be effectively open to
application by tenants of all races. Nor have we been able
to find any case where the government has been required to
show a compelling interest, or narrow tailoring of remedies,
for a condition framed so as to secure equal treatment of
applicants regardless of race.
Language in a few Supreme Court decisions could be taken
to mean that any action in which race plays a role is
constitutionally suspect. However, the governmental actions
in those cases were fundamentally different and more
provocative. In Adarand, the statute gave special incentives
to government contractors to hire minority subcontractors.6
The redistricting cases concern state voting districts
6See Adarand, 515 U.S. at 205-06; see also Croson, 488 U.S.
at 493-94; Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 279-
80 (1986) (plurality opinion); R. Rotunda & J. Nowak,
Constitutional Law 18.10(a)(1) (2d ed. 1992 & Supp. 1997).
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designed to concentrate minority voters and effectively to
reserve seats for minority candidates.7
Taken by itself, HUD's action in this case is almost the
opposite of the racial preferences that the Court viewed as
questionable in Adarand and the redistricting cases. Here,
the government's condition on federal funds was that some of
the apartments--which otherwise would have almost
automatically been occupied by whites--be made available to
all applicants on a race-blind basis. We cannot view this as
a "racial classification[]" reserving benefits for a favored
race, Adarand, 515 U.S. at 235, or as "an effort to segregate
the races," Shaw, 509 U.S. at 642-43.
Several other equal protection arguments made by the
former West Enders need no lengthy discussion, either because
they have been essentially abandoned on appeal or because
they are clearly unpersuasive. The former category includes
the former West Enders' attack on HUD requirements that the
apartments be publicized in minority communities;8 the latter
includes the attempt to charge HUD with treating the consent
7See Bush v. Vera, 116 S. Ct. 1941, 1955 (1996) (plurality
opinion); Miller v. Johnson, 515 U.S. 900, 906-09 (1995);
Shaw v. Reno, 509 U.S. 630, 635-36 (1993).
8HUD's regulations require affirmative outreach in both
majority and minority communities, see 24 C.F.R.
200.620(a); and in any case outreach efforts are not the real
source of the plaintiffs' problem--rather, it is the partial
loss of their preference. The defendants are no less guilty
of muddling the issue in their pretense that outreach efforts
are all that are involved in this case.
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decree's numerical "goal" as if it were a quota--a notion
belied by the substantial preference retained for the former
West Enders.
The story, however, is not quite over. It is one thing
for HUD to insist that the apartments it subsidizes must
effectively be open to all races; it would be quite another
if HUD planned to impose this requirement only where the
beneficiaries of the statutory preference were white. That,
we think, would be government action based on a "racial
classification" and would need to be narrowly tailored to
serve a compelling government interest.
The difficulty is that we are dealing here with an ad
hoc administrative action. Accepting the truth of the
complaint's factual allegations, HUD's actions were prompted
not by any general, racially skewed policy toward statutory
preferences but by the peculiar interplay of Boston's consent
decree, the Massachusetts statute, and the respective racial
makeups of the Boston population and the former West Enders.
What HUD would do in some other, hypothetical case is
unknown, but it is certainly not precluded, either by the
consent decree or anything else, from challenging statutory
preferences that exclude whites. Cf. Otero v. New York City
Hous. Auth., 484 F.2d 1122, 1125 (2d Cir. 1973).
The plaintiffs have alleged no facts that, if proven,
would reveal any secret discriminatory standard, pattern of
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past practice, or motive beyond the one HUD has admitted,
namely HUD's concern that the preference in this instance, if
unmodified, would restrict the apartments to whites and
subject HUD to sanctions under the consent decree.
Plaintiffs simply think that this purpose is enough to
condemn HUD'saction. Forthe reasons already given,we do not.
We turn now to plaintiffs' second and distinct claim on
appeal that Mass. Gen. Laws ch. 121B, 49, "has the effect
of creating a trust for the benefit of people displaced by
urban renewal." The district court ruled that there was no
demonstrated legislative intent to create a trust and that
the trust argument failed for a further more technical
reason. See 958 F. Supp. at 700 (citing New Eng. Trust Co.
v. Sanger, 337 Mass. 342, 348 (1958)). On appeal, plaintiffs
devote five pages of their brief to discussing the requisites
for trust creation under Massachusetts law.
Whether or not Massachusetts law created a trust for the
former West Enders appears to us to be beside the point. If
we assume arguendo that the former West Enders are entitled
to, and can enforce, whatever priority is provided under
section 49, subject always to superseding federal law, the
trust concept is nothing more than a possible alternative
remedy for enforcing any unpreempted rights that section 49
may provide. The question to be answered, before remedies
are even pertinent, is the extent of those rights.
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By its terms section 49(c) creates a priority for
displaced former residents, and subsection (d) arguably
qualifies this priority by also obligating the developer to
comply with "requirements of federal legislation or
regulations under which loans, grants, or contributions have
been made or agreed to be made to meet a part of the cost of
the project." Mass. Gen. Laws ch. 121B, 49(d). The
defendants' position, adopted by the district court, is that
such federal requirements--as a matter of Massachusetts law--
qualify the statutory priority. Plaintiffs have not
challenged this ruling on appeal.
The plaintiffs might have argued that the limitation
adopted here is not itself a "requirement" of "federal
legislation or regulations" but is merely a developer
proposal that HUD has chosen to bless. Possibly, plaintiffs
thought that this arguable distinction did not matter because
a federal administrative measure, even if not statute or
regulation, might override state legislation under the
Supremacy Clause--assuming always that it was an authorized
measure. This is by no means clear, but arguments on this
point have not been made and need not be pursued.
In the district court, it appears that plaintiffs' trust
argument may have been advanced primarily as an adjunct to a
different constitutional claim, namely a claim that the plan
in question impaired a property interest without due process
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or just compensation. The alleged trust, in this context,
would be a way of expressing a claimed property interest. It
is not obvious why a trust interest would be more entitled to
this status than section 49's simple expression of a priority
in favor of former tenants.
In all events, whether called a trust or something else,
any property interest created by section 49(c) is arguably
subject to section 49's own explicit reservation in section
49(d). As already noted, the plaintiffs on this appeal have
not challenged the district court ruling that subsection (d)
qualifies subsection (c) and also embraces the disputed plan.
Taking these district court rulings as unchallenged, the
trust argument adds nothing to the due process argument,
which itself has not itself been renewed in the plaintiffs'
briefs in this court.
This is a case that stirs conflicting sympathies, for
those ousted from their West End neighborhood by "urban
renewal" many years ago no less than for minorities wrongly
denied fair housing opportunities in Boston. But we have
properly sought to decide this appeal based upon Supreme
Court precedent, as best we can discern it, recognizing that
the case is a difficult and unusual one on the edge of
developing law. Affirmed.
Dissent follows.
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Stahl, Circuit Judge, dissenting in part. There is
Stahl, Circuit Judge, dissenting in part.
for me considerable appeal in the majority's resolution of
plaintiffs' equal protection claims. The governmental
conduct these claims challenge involves a patently good faith
and facially reasonable effort to accommodate the competing
interests of two historic losers in Boston's housing wars:
the racial and ethnic minorities entitled to invoke the
protections of the consent decree in NAACP v. Kemp and
federal fair housing laws, and the former West Enders, an
ethnically diverse, lower middle class group which, in the
name of "urban renewal," was forced from its neighborhood and
could not afford to return.
Nonetheless, I cannot join the portion of the
majority opinion that affirms the district court's pleadings-
based dismissal of the equal protection claims. While I
agree with the majority that reverse discrimination claims
like the present one are "on the edge of developing law,"
ante at 19, I do think it settled that, when the government
withdraws benefits from a class of citizens because of the
race or ethnicity of the class, courts are to scrutinize
strictly the government's conduct so as to ensure that it
furthers a compelling governmental interest and is narrowly
tailored to advance that interest. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 226-227 (1995). For the reasons
that follow, I believe plaintiffs' complaint fairly alleges
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such a withdrawal of benefits. And I do not see how we can,
at this stage of the litigation, conclude that such a
withdrawal of benefits passes strict scrutiny.
The complaint alleges that the governmental
defendants curtailed plaintiffs' statutory preference in
order to comply with the consent decree in NAACP v. Kemp.
See ante at 11. Because the purpose of that consent decree
is "the achievement of a racial composition, in HUD-assisted
housing located in neighborhoods which are predominantly
white, which reflects the racial composition of the City of
Boston as a whole," id. at 6, a reasonable inference to be
drawn from plaintiffs' complaint, see Aybar v. Crispin-Reyes,
118 F.3d 10, 13 (1st Cir. 1997) (reasonable inferences are to
be drawn in favor of the party opposing a Fed. R. Civ. P.
12(b)(6) motion), is that defendants acted as they did
because the putative plaintiff class was predominantly white.
The fact that defendants "do not dispute" this accusation,
ante at 11, only underscores our obligation to subject
defendants' conduct to strict scrutiny, see Adarand, 515 U.S.
at 224 ("[A]ny person, of whatever race, has the right to
demand that any governmental actor subject to the
Constitution justify any racial classification subjecting
that person to unequal treatment under the strictest judicial
scrutiny.").
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The majority reaches a contrary conclusion--that
strict scrutiny does not apply--because it regards the facts
plaintiffs have pleaded in support of their equal protection
claims insufficient to describe a "racial classification."
See ante at 13-16 (holding that this case is outside the
principle of Adarand). In reaching its conclusion, the
majority emphasizes the effect of curtailing the preference
on non-parties to this litigation, see ante at 13 ("[T]he
apartments freed from the statutory preference are made
available to all applicants regardless of race."), and the
defendants' intent in enacting the curtailment, see id. at 14
("It might not seem remarkable that the government should
insist . . . that a fair number of the apartments should be
effectively open to application by tenants of all races.").
The majority also reads the complaint to allege only that
defendants acted as they did because plaintiffs are racially
identifiable; it does not read the complaint to allege that
defendants acted as they did because plaintiffs are white.
Id. at 15.
Taking this last point first, I simply disagree
with the majority's reading of the complaint. The complaint
does not allege that the preference was curtailed because
plaintiffs are racially monolithic; it alleges that the
preference was curtailed because of the consent decree. And,
as I have stated, because the consent decree operates only in
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favor of racial and ethnic minorities, it could not be read
to require curtailment of the preference if the former West
Enders were predominantly black. Thus, for purposes of
evaluating defendants' Rule 12(b)(6) motion, I believe we
must read into the complaint the allegation the majority
believes necessary to trigger strict scrutiny, see ante at
16: that defendants would not have acted as they did had the
plaintiff class been predominantly of color. See Aybar, 118
F.3d at 13; see also Conley v. Gibson, 355 U.S. 41, 47-48
(1957) (Fed. R. Civ. P. 8(a)(2) does not require a complaint
to set forth specific facts in support of a general
allegation of discrimination).
Even if the majority has properly construed the
complaint, I believe plaintiffs' equal protection claims are
sufficient to withstand a Rule 12(b)(6) motion and to trigger
strict scrutiny. In the redistricting cases, the Supreme
Court has emphasized that government action which
subordinates race neutral considerations to an overriding
racial purpose is constitutionally suspect: "We recognized
in Shaw[v. Reno, 509 U.S. 630 (1993)] that, outside the
districting context, statutes are subject to strict scrutiny
under the Equal Protection Clause not just when they contain
express racial classifications, but also when, though race
neutral on their face, they are motivated by a racial purpose
or object." Miller v. Johnson, 515 U.S. 900, 913 (1995)
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(affirming the invalidation, under equal protection
principles, of a Georgia congressional redistricting plan
designed to increase the number of majority black districts
in Georgia) (citation omitted). It remains to be seen
whether the Court will press this principle to its outer
limit and strictly scrutinize even governmental conduct
which, though predominantly motivated by a racial purpose,
would not appear to burden any person because of his or her
race--e.g., a public university's efforts at recruiting fully
qualified applicants of color for its first year law school
class. But it seems apparent that defendants' lack of
hostility towards whites in particular, cf. ante at 13, does
not shield their conduct--which has burdened plaintiffs
because they are, as a group, racially identifiable--from the
most searching judicial inquiry. See Miller, 515 U.S. at
913. This leads to a final point. I
think the majority runs afoul of Adarand in concentrating its
focus so heavily on both defendants' intent and the effect of
defendants' actions on non-parties to this case. The Supreme
Court has squarely rejected the argument that classifications
motivated by "benign" considerations should not be
scrutinized strictly. See Adarand, 515 U.S. at 226. And
though this case does appear unique in that the government
conduct at issue is more a withdrawal of a special benefit
from whites than a giving of special benefits to members of
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minority groups,9 the clear import of Adarand is that it is
the plaintiff's "personal right to equal protection of the
laws," 515 U.S. at 227, and not some non-party's interest in
competing for that which would be the plaintiff's but for his
or her race, that is constitutionally safeguarded. Thus, in
evaluating the constitutionality of defendants' conduct, we
must not look to its effect and motivation with respect to
others; we must look at its effect and motivation with
respect to plaintiffs. And here, quite clearly, defendants'
conduct has had the effect of depriving plaintiffs of a
benefit and was prompted by the fact that plaintiffs are
mostly white.
Because defendants' conduct should have been
strictly scrutinized, their motion to dismiss plaintiffs'
equal protection claim should have been denied and they
should have been required to produce evidence that their
conduct was narrowly tailored to advance a compelling
governmental interest. See Adarand, 515 U.S. at 227
(reciting the components of the strict scrutiny inquiry); see
also Aiken v. City of Memphis, 37 F.3d 1155, 1163 (6th cir.
1994) ("When, as here, a race-based affirmative action plan
is subjected to strict scrutiny, the party defending the plan
9It is important to note that there is no indication that the
benefit originally given (i.e., the full preference) was
given to plaintiffs because they were predominantly white;
rather, the preference was given because plaintiffs were
ousted from their homes.
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bears the burden of producing evidence that the plan is
constitutional."). Plaintiffs should then have been put to
the burden of proving the unconstitutionality of defendants'
conduct. See Aiken, 37 F.3d at 1162 ("The party challenging
[a racially-preferential] plan retains the ultimate burden of
proving its unconstitutionality."). To the extent that the
majority has reached a different conclusion, I most
respectfully dissent.
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