(concurring).
Judge Sprecher holds the City Council to be a “joint participant” in active racial discrimination earlier practiced by the CHA. Like Judge Pell, I cannot agree. The trial judge made no finding of joint participation. He can hardly be blamed; the plaintiffs made no mention of active joint participation at trial, and the record contains little, if any, support for a finding of discrimination by the City Council. Nor may reliance be placed on the findings made by the trial judge before the Council was made a party to this suit by supplemental complaint. The Council was not in privity with CHA, and I do not understand plaintiffs so to contend. See Rule 65(d), F.R.Civ.P. Finally, the plaintiffs do not raise a theory of joint participation on this appeal. Their legal theory of liability requires no connection of the Council with CHA and no finding of active discrimination on the part of the Council. I concur for that reason.
It is today well established that the failure of a municipality to alleviate racial imbalance in housing may be as grievous a violation of the equal protection clause as is direct action by a public body to advance discrimination among the races.1 2In both situations courts have saddled an offending party with the burden of demonstrating that a compelling governmental interest underlay the omission or commission, once a discriminatory effect thereof is shown inferentially or statistically by the complaining party.2
In this case, the inaction of the City Council had the effect of denying to plaintiffs the relief granted them when the district court first heard the cause.3 The Council by its delay perpetuated a racially unbalanced distribution of public housing in the City of Chicago.4 And it did- so without apparent reason; the district judge found, and I agree, that the Council had shown no “supervening necessity ... or indeed [made] any showing of any necessity or reason at all” for its failure to pass on CHA site submittals.5 Not even a rational basis was advanced by the Council for its neglect, much less a compelling governmental interest. The Council is liable, then, for its delay. The only question remaining is one of remedy.
Other than his objection to Judge Sprecher’s finding of “active participant” status for the City Council, Judge Pell appears to object to the form of remedy granted by the district judge. He would prefer, I think, a mandate directing the City Council to pass upon CHA submittals rather than the extant order requiring CHA to ignore Ill.Rev. Stat., ch. 67½, § 9 (1971), termed the “easier route” by Judge Pell. In sup*217port, he notes that the City Council is concerned with and retains control of city-wide planning and the zoning power, as well as the authority to control CHA by withholding funds or by cooperative agreement. 42 U.S.C. §§ 1411(f), 1415(7) (1964). He points out, in addition, that the instant order might give pause to bond counsel, who approach the task of approving bond issues with “hypertechnieal scrutiny.”
I am not persuaded by these objections. The fact that the City Council retains considerable control over construction by CHA vitiates the argument advanced by the Council that it .is somehow deprived of its important discretion to locate public housing with due regard to factors such as population density, environmental control and the provision of public services. Though it may indeed be true that the order at issue “will solve no problems,” as the CHA contends, it is also possible that the City, by reason of the district court’s order, will move speedily in all areas to assure a balanced placement of badly needed public housing. In any event, the Council has not yet moved to limit the CHA by exercise of its powers under federal law, and no order directed to those functions would now be appropriate. As the progress of litigation in the school desegregation cases has taught, remedy of discriminatory conditions is necessarily a step-by-step proposition. That further injunctive relief may be needed in this matter at some later date is no reason to deny the relief presently sought. As to the supposed recalcitrance of bond counsel, I find this too speculative to justify a denial of relief at this time. If the problem turns out to be one of insurmountable magnitude, the district court retains jurisdiction to modify its decree.
. Banks v. Perk, 341 F.Supp. 1175, 1182 (N.D.Ohio 1972) ; Sisters of Prov. v. City of Evanston, 335 F.Supp. 396, 403-405 (N.D.Ill.1971) ; Kennedy Park Homes Ass’n v. City of Lackawanna, 318 F.Supp. 669, 696-697 (W.D.N.Y.1970), aff’d 436 F.2d 108 (2d Cir. 1970) ; see Crow v. Brown, 332 F.Supp. 382, 390-391 (N.D. Ga.1971), aff’d 457 F.2d 788 (5th Cir. 1972) ; of Davis v. School District, City of Pontiac, Inc., 309 F.Supp. 734, 741-742 (E.D.Mich.1970).
. Grow v. Brown, 332 F.Supp. 382, 391 (N.D.Ga.1971), aff’d 457 F.2d 788 (5th Cir. 1972) ; Kennedy Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir. 1970) ; of Banks v. Perk, 341 F.Supp. 1175 (N.D.Ohio 1971) ; Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill.1969).
. Finding H, Gautreaux v. City of Chicago, (N.D.Ill., April 10, 1972).
. Cases such as Grow or Kennedy Park Homes, note 2, supra, differ factually in that the acts and omissions of the enjoined governmental entity were the direct cause of racially imbalanced housing conditions. As I have noted, the same cannot be said of the City Council on the record as it stands. If this is a distinction, however, it is one far too subtle to make a difference. The CHA is guilty of creating the imbalance; the City Council is guilty of maintaining it without justification and in derogation of a court decree aimed at rectifying the problem.
. Finding G, Gautreaux v. City of Chicago, (N.D.Ill., April 10, 1972).