Integration as a two-way street.

• Author: Sing, James J.
• Position: Case Note

Raso v. Lago, 135 F.3d 11 (1st Cir. 1998)

It was a judge's nightmare in every respect: two racial groups, both the victims of serious yet incomparable injustices, pitted against one another in litigation. This was precisely the unpleasant scenario facing the First Circuit in Raso v. Lago,(1) a case that inspired "conflicting sympathies" for white former tenants of a Boston neighborhood ousted by "urban renewal" on the one hand and racial minorities wrongly denied fair housing opportunities on the other.(2)In the end, the First Circuit ruled that the defendant housing agencies did not violate the constitutional rights of a class of white plaintiffs when they curtailed the plaintiffs' preferential status as displaced former tenants in a housing draw.

This Case Note argues that although the court correctly determined that the defendants' housing plan did not involve the use of a forbidden racial classification, its constitutional analysis confounds the criteria for triggering the strict scrutiny standard and results in undesirable implications for future policy. Rather than relying on the consent decree and fashioning an outcome-determinative justification of the denial of preference, the court should have focused on the broader integrative objectives of the Fair Housing Act (FHA)(3) in order to show the constitutionality of the defendants' action.(4) Reading the housing plan in accordance with the goals of the FHA would have provided more convincing support for the panel's contention that the intervention would be compelled in any racially imbalanced housing environment, thereby insulating the housing plan against strict scrutiny.

I

Title VIII of the Civil Rights Act of 1968, commonly known as the Fair Housing Act, was aimed at both eliminating housing discrimination and promoting housing integration. Although it has been nearly thirty years since he passage of the Act, much of the housing in this country's large urban cities remains deeply segregated.(5) In Boston, as a result of litigation brought by the NAACP,(6) a federal district court ruled that the Department of Housing and Urban Development (HUD)(7) failed to ensure minorities equal access to public housing and entered a consent decree providing remedial guidelines to HUD for the enforcement of Title VIII. The consent decree stipulates that all Boston HUD housing marketing plans targeting white neighborhoods "shall have as their goal and measure of success" the achievement of a racial composition that "reflects the racial composition of the City [of Boston] as a whole.(8)

Recently, HUD's activities again were subjected to judicial scrutiny--this time, ironically, as a result of the department's attempts to implement an integrative housing measure. In Boston's Old West Side, an urban renewal plan resulted in the displacement of more than three thousand mostly white former residents of the neighborhood. Pursuant to Massachusetts law,(9) the developer who was selected to complete the project signed a participation agreement with a group of former West Enders promising displaced families first preference in the purchase of residential units in the new West End Place. HUD initially funded a substantial grant to the developer, but in light of the overwhelmingly white tenancy that would have resulted from the preferential system, HUD subsequently indicated that it viewed the participation agreement as contrary to both federal fair housing requirements and the consent decree. After rejecting a system of limited preference for displaced families proposed by a mediator, the plaintiffs sued in federal district court, alleging, inter alia, that the arbitration compromise violated their equal protection rights. The district court dismissed all complaints pursuant to the defendants' motion to dismiss.

Judge Boudin, writing for the First Circuit panel, upheld the constitutionality of the curtailment of preference. He reasoned that because (a) the West End apartments were made available to all applicants regardless of race, and (b) the consent decree did not foreclose future HUD challenges to housing plans that exclude whites, the defendants' action did not trigger strict scrutiny. As a threshold matter, Judge Boudin noted that Adarand Constructors v. Pena(10) does not require that...