dissenting.
I must respectfully dissent because I am convinced that the majority has erred in several important respects. First, I do not believe that 42 U.S.C. § 1982 is violated by a municipality’s exercise of its police powers to close a street when race is not a factor in that decision. The closing of West Drive here does not deprive black citizens of their right to hold property free from racial discrimination in the same manner as white citizens. The majority’s extension of § 1982 so as to proscribe the closing of West Drive expands the scope of the statute to an unprecedented extreme and conflicts with the well-established policy of judicial deference to legislative judgment in land use regulation. Indeed, today’s decision illustrates the need for a limiting principle for claims arising under § 1982. To this end I would require a showing of discriminatory intent or purpose to establish a violation of § 1982.
Second, the proper focus of this litigation, as recognized by the district court, is whether a racial minority would be denied the equal protection of the laws by the proposed street closing. I believe the district court was correct in finding that the plaintiffs had failed to demonstrate the discriminatory intent necessary to establish a *407violation of the equal protection clause of the fourteenth amendment. I would accordingly affirm the judgment of the district court.
I
In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186 (1968), the Supreme Court held that the enabling clause of the thirteenth amendment vests Congress with the power to identify “badges of slavery” and pass remedial legislation “necessary and proper” to eliminate them. Id. at 439-40, 88 S.Ct. 2186. In enacting 42 U.S.C. § 1982 Congress found discrimination against blacks in the sale and rental of property to constitute such a “badge of slavery” prohibited by the thirteenth amendment. Id. at 440-41, 88 S.Ct. 2186 § 1982 accordingly outlaws all racial discrimination, public and private, in the sale, rental, or holding of real property.
The majority’s focus in this litigation is whether the right of black citizens residing north of Hein Park to “hold” their property in the same manner as white citizens residing in Hein Park would be violated by the erection of a traffic barrier on a street connecting the two neighborhoods. The majority concludes that the construction of the barrier will adversely affect black property owners north of Hein Park while at the same time benefiting white residents in Hein Park. In this disparate impact the majority discerns a violation § 1982 and the thirteenth amendment.
It is true that the scope of § 1982 is exceptionally broad, reaching all public and private discrimination in activity affecting real and personal property. Jones, 392 U.S. at 437-39, 88 S.Ct. 2186. The statute’s proscription of racial discrimination against a citizen “holding” real property does not, however, preclude the legitimate exercise of a municipality’s police powers. Where, as here, a municipality exercises those powers in a rational manner to achieve permissible goals,1 absent evidence of racial motivation or intent, the right to “hold” property in the manner secured by § 1982 is not violated.
The right to “hold” property is the right to maintain possession while enjoying the privileges and benefits which ownership or occupancy entails in a manner untainted by racial discrimination. That right does not include an inviolate license of universal street access. Rather, street access, falling as it does within the category of land use, is a subject exclusively within the legislative province and subject to regulation in the public interest.2 There is no requirement that legislative decisions regarding land use affect all persons equally. By definition, a street closing will not result in an identical impact upon residents and non-residents.
The closing of West Drive would have a disproportionate impact both racial and geographical in nature. As a result of racial residential segregation in the area, the black neighborhood north of Hein Park will no longer have access to West Drive, while the white Hein Park neighborhood will enjoy the increased solitude and safety accruing from a decrease in traffic. While distinctions based oh race are inherently suspect, distinctions between residents and non-residents of a local neighborhood are not invidious. Arlington County Board v. Richards, 434 U.S. 5, 7, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977).
In light of the deference accorded legislative judgments in matters of land use regulation,3 and because the district court’s find*408ing of an absence of racial motivation is supported by the record, the proposal to close West Drive must be viewed as creating a distinction based upon residency, not upon race. Since distinctions between residents and non-residents are permissible, without proof of racial motivation or intent I cannot conclude that the racially disproportionate impact here is sufficient circumstantial proof of the racial discrimination outlawed by § 1982.
Indeed, today’s decision represents an unfortunate overreading of section 1982. The majority’s willingness to characterize the proposed street closing as a violation of § 1982 demonstrates the need for a limiting principle for actions brought under this section. The section 1982 screening mechanism, as in actions proceeding directly under the fourteenth amendment, should be a requirement of a showing of discriminatory intent.
Although the district court did not analyze the case under § 1982 and the thirteenth amendment, the majority faults the district judge for placing “too high a threshold upon the requirements of Section 1982 and, underlying it, the Thirteenth Amendment.” The district court, however, did no more than follow the directions issued by this court in remanding the case:
To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to in itself violate equal protection or, alternatively, to command an inference of racial motivation.
Greene v. City of Memphis, 535 F.2d 976, 979 (6th Cir. 1976) (emphasis added).
The majority dismisses this instruction as dictum and does not address the question of whether cases brought under § 1982 — like cases brought directly under the fourteenth amendment — always require proof of discriminatory intent. I believe that we are required to follow the explicit instructions of our prior decision regarding the components of a § 1982 claim, and would therefore require a showing of discriminatory intent to establish a violation of section 1982.
Interpreting section 1982 to require discriminatory intent is consistent with the Supreme Court’s admonition in Jones that Congress intended section 1 of the Civil Rights Act of 1866—the source of § 1982— “to prohibit a 11 racially motivated deprivations of the rights enumerated in the statute .. . .” 392 U.S. at 426, 88 S.Ct. at 2196 (emphasis added). Section 2 of the 1866 Act reinforces the requirement of racial intent by imposing sanctions upon anyone who, under color of law, deprives another of the rights protected by section 1 “by reason of his color or race.” 14 Stat. 27.
The legislative history of § 1982 also indicates that it should parallel the fourteenth amendment’s standard of proof. Although the 1866 Act, the forerunner of § 1982, is generally regarded as a “Thirteenth Amendment statute,” see Jones, 392 U.S. at 422, 437-38, 88 S.Ct. 2186, it has also been found to rely on the fourteenth amendment. The fourteenth amendment was enacted, in part, to eliminate doubts about the constitutionality of the 1866 Act. Id. at 436, 88 S.Ct. 2186. It is not unreasonable to conclude that the standards for establishing a prima facie case of discrimination under § 1982 and the equal protection clause of the fourteenth amendment should be the case: there must be proof of discriminatory intent.
Finally, an observation made by the Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), is relevant here. The court was concerned about the problems that could be generated if the fourteenth amendment was violated by a mere showing of disparate racial impact:
A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more *409than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.
Given that rule, such consequences would perhaps be likely to follow. However, in our view, extension of the rule beyond those areas where it is already applicable by reason of statute, such as in the field of public employment, should await legislative prescription.
426 U.S. at 248, 96 S.Ct. at 2051-2052 (footnote omitted).
Section 1982, extending as it does to the expansive realm of both public and private action involving property, might well precipitate many of these same consequences if proof of discriminatory intent is not required. For these reasons, I cannot agree that the facts and circumstances of this case establish a violation of 42 U.S.C. § 1982.
II
The district court based its decision in favor of the City of Memphis on the plaintiffs’ failure to establish the requirements of a prima facie case under the equal protection clause of the fourteenth . amendment. The district court found that the closing of West Drive would have a “disproportionate impact on certain black citizens,” but there was not “sufficient proof or racially discriminatory intent or purpose on the part of the city officials to establish a constitutional violation.” Moreover, the district court did not believe that the disparate impact was so stark that an intent of racial discrimination could be inferred. I conclude that the district court’s findings of fact and conclusions of law are neither clearly erroneous, F.R.Civ.P. 52(a), nor incorrect as a matter of law.
Recent Supreme Court decisions mandate that to establish that a governmental defendant has deprived plaintiffs of constitutional rights guaranteed by the fourteenth amendment, something more than a disproportionate discriminatory impact must be shown. Proof of a racially discriminatory intent or purpose is also required to show a violation of the equal protection clause. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239-45, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The recent opinion of Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), provides a functional definition of “intent”:
“Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. See United Jewish Organizations v. Carey, 430 U.S. 144, 179 [, 97 S.Ct. 996, 51 L.Ed.2d 229] (concurring opinion). It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.
Id. 442 at 279, 99 S.Ct. at 2296 (footnote omitted).
Applying the Supreme Court’s elaboration in Feeney of the Washington v. Davis and Arlington Heights impact-plus test, the district court’s conclusions are, if anything, reinforced. The record contains not even a scintilla of evidence indicating that the Memphis City Council approved the proposal to close West Drive “because of” the adverse effects the black citizens north of Hein Park might experience.
The absence of evidence of discriminatory intent does not, however, signal the end of the inquiry. Under the applicable Arlington Heights criteria, “invidious discriminatory purpose” can be inferred or detected through an inquiry which weighs a number of factors. Proof of discriminatory intent does not pose an insurmountable obstacle because Arlington Heights liberalized the probative value of various kinds of circumstantial evidence relevant in an inquiry into motive.
The first Arlington Heights factor — disparate impact — is present here. As I indi*410cated, the disparate impact of the closing of West Drive is both racial and geographical in nature. I believe that the district court was correct in concluding that this disparity does not constitute a stark pattern of discrimination from which racial intent can be inferred. It is clear that disparate impact, standing alone, will only infrequently suffice to establish an equal protection violation. Washington v. Davis, 426 U.S. at 242, 96 S.Ct. 2040; Arlington Heights, 429 U.S. at 265-66, 97 S.Ct. 555. Absent a stark pattern of discrimination from which intent may be inferred, further inquiry is necessary.
The second evidentiary source bearing on intent is the historical background of the decision. Particularly relevant here would be a “series of official actions taken for invidious purposes.” Arlington Heights, 429 U.S. at 267, 97 S.Ct. at 564. Upon careful examination, the background of the decision to close West Drive appears untainted by any invidious action. The legislative machinery was set in motion by the submission of an appropriate application to the Planning Commission. The Commission processed the application and in time, the City Council voted to approve the closing. In sum, the “background” of this decision fails to reveal racial intent. And the same result is reached in considering the third factor specified in Arlington Heights — the specific sequence of events leading to the challenged decision.
The district Court’s opinion does not record any instances of departures from normal procedural sequences or any “substantive” departures from normal decisionmak-ing (the fourth and fifth Arlington Heights factors). To the contrary, the decision to approve the closing of West Drive is consistent with the approvals granted other applications to close streets and alleys. It is true that the West Drive application is the first attempt to close a street in the nature of West Drive. Yet I cannot subscribe to the view that the initial attempt to utilize procedures prescribed by law for closing a street, without more, constitutes circumstantial proof of racial bias.
Where, as here, the applicable Arlington Heights “evidentiary sources” for a gleaning of official intent fail to reveal direct and circumstantial proof of discriminatory intent, an inference of invidious purpose cannot be drawn. I do not find from the record before me that in closing the street the City infringed upon constitutional rights, nor do I find that the City acted with malice or intent to discriminate because of race. Therefore, I would affirm the district court’s decision that the fourteenth amendment has not been violated.
. The stated objectives of the application to close West Drive were: 1) to reduce the flow of traffic; 2) to enhance safety for children who walk to school; and 3) to reduce traffic pollution in the residential area such as noise and Utter. The legitimacy of these goals is well established. See Arlington County Board v. Richards, 434 U.S. 5, 7, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977).
. Although matters of land use are within a municipality’s police powers, the wide latitude in classifying and limiting property uses is always “[s]ubject to specified constitutional limitations.” Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954).
. See Arlington County Board v. Richards, 434 U.S. 5, 98 S.Ct. 24, 54 L.Ed.2d 4 (1977); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).