United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 4, 2005
Charles R. Fulbruge III
No. 04-10946 Clerk
DEBRA WALKER; ET AL
Defendants
DEBRA WALKER; JEANETTE WASHINGTON; HAZEL WILLIAMS; ZELMA
LANG; RENITA BROWN; LILLIE THOMPSON;
Plaintiffs - Appellees
TRACEY SMITH
Intervenor Plaintiff - Appellee
v.
CITY OF MESQUITE, TX; ET AL
Defendants
v.
HIGHLANDS OF MCKAMY IV AND V COMMUNITY IMPROVEMENT
ASSOCIATION; GINGER LEE; PRESTON HIGHLANDS HOMEOWNERS’
ASSOCIATION INC; DAVID BEER;
Appellants
HIGHLANDS OF MCKAMY IV AND V COMMUNITY IMPROVEMENT
ASSOCIATION; GINGER LEE; PRESTON HIGHLANDS HOMEOWNERS’
ASSOCIATION INC; DAVID BEER;
Plaintiffs - Appellants
v.
HOUSING AUTHORITY OF THE CITY OF DALLAS
Defendant - Appellee
1
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Appeal from the United States District Court
for the Northern District of Texas
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Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
This case concerns a lawsuit filed by Appellants, residents
of a neighborhood in Dallas, Texas, against the Dallas Housing
Authority (“DHA”), Appellee, to enjoin it from constructing
public housing in their community. The residents allege that
DHA’s decision to build on this particular property (“the
Hillcrest Site”) violates their Fourteenth Amendment equal
protection rights. The district court found no constitutional
violation and permitted the construction to go forward. For the
reasons that follow, we affirm the district court’s ruling.
I. Background
The long saga of this case began in 1985 with a lawsuit
filed on behalf of African-American plaintiffs against DHA.1 It
alleged, inter alia, that DHA engaged in systematic racial
segregation through its construction and maintenance of public
housing in Dallas. In order to settle the claim that it
consciously failed to locate public housing in predominantly
white neighborhoods, DHA agreed to a 1987 consent decree
1
For a detailed history of this matter, see our opinions in
Walker v. City of Mesquite, 169 F.3d 973 (5th Cir. 1999), and
Walker v. HUD, 912 F.2d 819 (5th Cir. 1990).
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integrating Dallas public housing. In 1994, after repeated
breaches of the consent decree, DHA and the plaintiffs in that
case negotiated a remedial order which was then imposed by the
district court.
The remedial order required, inter alia, that DHA construct
public housing in “predominantly white areas” to remedy past
segregation. In compliance with the remedial order, DHA
purchased two such sites in Dallas, the McCallum Site and the
Hillcrest Site. In 1996, homeowners in these areas sued to
enjoin construction, arguing that the remedial order violated
their equal protection rights by requiring public housing in
“predominantly white areas.” The district court denied the
homeowners’ request for an injunction.
The homeowners appealed that decision to this Court in 1999
and we reversed. See Walker, 169 F.3d 973. Specifically, we
held that a race-conscious remedy was not required to ameliorate
segregative policies at DHA and thus the district court’s order
was not narrowly tailored. See id. at 985. Construction on the
Hillcrest and McCallum Sites was enjoined pending the district
court’s revision of the remedial order to comply with this
Court’s opinion. See id. at 988. Significantly, the opinion did
“not preclude the construction or acquisition of additional
public housing if sites [were] selected by means of nonracial
criteria.” Id.
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In 2001, the district court modified the vacated remedial
order to remove all references to the race of residents in areas
in which public housing could be constructed. The only racial
classifications it contained were those prohibiting DHA from
discriminating against African-Americans in its housing policies.
The order still required DHA to construct some public housing.
DHA subsequently filed a motion to allow it to build on the
Hillcrest Site. Appellants again objected on equal protection
grounds and, in December 2003, the district court held a hearing
on the motion. On May 18, 2004, the district court entered its
findings of fact and conclusions of law, granting DHA’s motion
for approval of Hillcrest as a public housing site. It dismissed
with prejudice Appellants’ suit the following month. This appeal
followed.
II. Discussion
We review the district court’s findings of fact for clear
error and its conclusions of law de novo.2 Ayers v. Thompson,
2
Appellants ask us to apply a less deferential standard of
review because of the constitutional nature of this case.
Contrary to Appellants’ assertions, the proper standard of review
for factual findings in equal protection cases like this is clear
error. See Women’s Med. Ctr. of Northwest Houston v. Bell, 248
F.3d 411, 419 (5th Cir. 2001); Theriot v. Parish of Jefferson,
185 F.3d 477, 484 (5th Cir. 1999). Appellants’ contention that,
because the district court largely adopted the proposed findings
of facts submitted by Appellees, we should not use the clear
error standard is similarly unpersuasive. Even if proposed
findings of fact are adopted by the trial court, absent
extraordinary circumstances, this Court continues to review them
for clear error. See Anderson v. Bessemer City, 470 U.S. 564,
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358 F.3d 356, 368 (5th Cir. 2004). “A factual finding is not
clearly erroneous as long as it is plausible in the light of the
record read as a whole.” United States v. Cluck, 143 F.3d 174,
180 (5th Cir. 1998).
Appellants claim that DHA’s decision to construct public
housing on the Hillcrest Site violates their equal protection
rights under the Fourteenth Amendment. For cases like this,
where the challenged governmental action is facially race-
neutral, “[p]roof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.”
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265
(1977). Accord Washington v. Davis, 426 U.S. 229, 240 (1976)
(stating that “the invidious quality of a law claimed to be
racially discriminatory must ultimately be traced to a racially
discriminatory purpose”). “Once racial discrimination is shown
to have been a ‘substantial’ or ‘motivating’ factor,” the burden
shifts to those supporting the governmental action to show that
the same course would have been pursued absent the
discrimination. Hunter v. Underwood, 471 U.S. 222, 228 (1985).
The district court found, inter alia: “DHA’s present
intention to build public housing on the Hillcrest Site is not
based on any racial consideration”; “An intent to discriminate on
572 (1985); Marine Shale Processors Inc. v. EPA, 81 F.3d 1371,
1386 (5th Cir. 1996).
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the basis of race is not a substantial or motivating factor in
DHA’s present intention to build public housing on the Hillcrest
Site, and, in fact, was not a factor at all”; “The Hillcrest Site
meets HUD’s and the court’s requirements and is the best site
available in the entire city”; and “DHA would have decided to
build public housing on the Hillcrest Site absent the
‘predominantly white area’ requirement.” Additionally, it
concluded that DHA’s decision is not “traceable” to the prior
impermissible race-conscious selection criteria. In short, the
district court found that DHA did not consider race when deciding
to build on the Hillcrest Site in 2001, and, regardless of any
past improper considerations, DHA still would have built on the
site because it is such an ideal location for public housing.
Appellants fail to show that the district court’s conclusions are
clearly erroneous. Although the parties contest specific factual
matters, the record, taken as a whole, does show that the
district court’s findings of fact are plausible. Thus, we find
no constitutional violation.
Appellants also argue that DHA’s actions relating to the
Hillcrest Site run afoul of the Fourteenth Amendment because its
site selection can be traced to its prior unconstitutional
activity. They contend that, regardless of DHA’s current
intentions, the decision to build public housing on the Hillcrest
Site is unconstitutional as a matter of law. They base their
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argument on the Supreme Court’s ruling in United States v.
Fordice. 505 U.S. 717 (1992).
The Fordice Court found that Mississippi had not “met its
affirmative duty to dismantle its prior dual university system.”
Id. at 728. Rather, the state university system continued to
maintain separate institutions, each largely restricted to a
single race, through “practices traceable to its prior de jure
dual system.” Id. Such government-fostered, educational
segregation runs afoul of Brown v. Board of Education, 347 U.S.
483 (1954), and its progeny. Id. at 727-28. Specifically, the
Supreme Court concluded that a state like Mississippi, which had
maintained a de jure dual higher education system, “does not
discharge its constitutional obligations until it eradicates
policies and practices traceable to its prior de jure dual system
that continue to foster segregation.” Id. at 728. “If the State
perpetuates policies and practices traceable to its prior system
that continue to have segregative effects . . . and such policies
are without sound educational justification and can be
practicably eliminated, the State has not satisfied its burden of
proving that it has dismantled its prior system.” Id. at 731.
Appellants seek to analogize to Fordice by characterizing DHA’s
retention of and subsequent decision to develop Hillcrest as a
“racially neutral” policy “animated by a discriminatory purpose.”
Id. at 731-32.
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It is clear to us that DHA’s current plan to build on the
Hillcrest Site cannot be reasonably characterized as a
continuation of an unconstitutional policy or practice such as
that described in Fordice.
For the foregoing reasons, we AFFIRM the district court’s
decision.
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