Raso v. Lago

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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