dissenting:
In my view, the district court erred in ordering the reopening of the application process, because (1) maintaining an application process was not part of the settlement agreement, (2) defendants can easily comply with the terms of the settlement without accepting new applications, and (3) the goal of the agreement was to attain particular racial occupancy quotas and not, as the majority suggests, “to dissipate the atmosphere of discrimination * * * and to encourage minorities to apply for housing.”
The majority’s decision undermines the value of consent decrees as a means of resolving discrimination cases. If defendants cannot rely on the agreements they carefully negotiate, why should they settle at all? The parties in this case hammered out the terms of the settlement agreement over two lengthy intervals, both of which were closely supervised by Judge Carter. After the agreement was drafted, Judge Carter issued a notice of settlement and hearing to all class members. If plaintiffs had any objections to the terms of the agreement, they should have raised them at the June 10, 1988, hearing. When Judge Carter endorsed the settlement, however, he specifically noted that there were “no objections to the substance of the settlement.”
If plaintiffs had wanted the application process to remain open for the duration of the settlement period, they could have sought to make it explicit in the agreement. As it stands, the agreement contains detailed provisions regarding the allocation of apartments according to racial background, but no requirement that defendants continue to accept applications until 1995.
The only mention of an application process is the following:
Nothing contained herein shall prevent the Cooperative from continuing to implement existing application rules or procedures, or adopting new application rules or procedures, that are lawful, do not violate any of the terms and conditions of this Stipulation and are applied uniformly to all applicants regardless of race or ethnicity * * *.
This provision clearly allows defendants to change the process, which is exactly what they did. Their new policy of not accepting applications applies uniformly to all, regardless of race or ethnicity, and violates neither the law nor any of the terms of the agreement. It is undisputed that defendants can easily meet all of the stipulation’s requirements without accepting new applications, because the present list contains nearly four times as many active Puerto Rican, other Hispanic, and Black applicants as could fore-seeably be allocated over the remaining period covered by the settlement. In November 1991, the defendants had a pool of 849 minority applicants from which to fill approximately 225 foreseeable spots until 1995, when the agreement ends.
Defendants have not violated the agreement in any way. The majority insists that the agreement “requires that the cooperative apartments encourage minority applications,” but this is not the case. All that the agreement requires is that the defendants meet certain racial occupancy quotas until 1995. The fact that those discouraged from applying were originally included as a subclass “suggest[ed]” to the majority that “a primary intent of the settlement agreement was to encourage and allow these people to apply for the apartments.” However, the settlement agreement and decree operate as much to curtail the subclass’s interests as they do to advance them. The only purpose properly attributable to the agreement is that it was made to settle a disputed claim against the defendants of racial discrimination. Once that agreement was approved by the court, it became final and binding on all parties, no matter how it cut.
The majority refers to an “atmosphere of discrimination”, while at the same time *1270recognizing that there is no evidence in the record to support a finding of discrimination. All prior findings were “bargained out” by the parties in the district court, and the agreement specifically provides that the defendants admit no liability or violations of law. By stating that the defendants had previously “discourag[ed] minority applicants from applying for apartments,” the majority inserts its own appellate factfinding into the case and deprives defendants of the benefit of their bargain.
The settlement agreement, signed by the parties and approved by the court, should be honored by, and enforced against, all its parties. Defendants are holding up their end of the bargain as it was written; the district court should not be permitted to add a new term to the agreement favoring one subclass of plaintiffs.
I respectfully dissent.