Full opinion text
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT GERTNER, District Judge. TABLE OF CONTENTS I. FACTUAL BACKGROUND . CO CO . A. Facts . CO 00 1. The Section 8 Program. CO 00 a. 1980-1995: Federal Preferences. CO CD b. 1995-1998: Administrative Suspension of the Mandatory Preferences ... CO CD ... c. OHWRA: Permanent Repeal of Mandatory Preferences Coupled with Targeting of Extremely Low Income Families (1) 75% Rule. (2) Nondiscrimination. (3) Affirmative Furtherance of Fair Housing. 2. The Defendant PHAs’ Policies. a. The Application Process. b. Formulation of the Waiting Lists: Residency Preferences. 3. The Plaintiffs’ Interaction with the PHAs. B. Procedural History. II. LEGAL ANALYSIS . ^ 05 A. Summary Judgment Standard. ^ 05 B. Causes of Action. ^ 1. The Blessing Test: § 1988, Statutes, and “Rights”. ^ 2. Enforceability of Administrative Regulations and Executive Orders under § 1988. C. Abington and Rockland: Compliance with the 75% Rule . 1. The 75% Rule: Does It Meet the Blessing Standard?. 2. The 75% Rule: Does the Rockland Plan Comply?. D. Disparate Impact (Title VIII/Fair Housing Act) . 1. The Prima Facie Case for Disparate Impact. a. The Preliminary Injunction Tests. (1) The “Four-fifths” Rule. (2) The Comer Test. b. The Summary Judgment Stage. (1) The Track Records of Pre-1998 Residency Preferences .... (2) The Effect of Pre-existing Residency Preferences on Current Participation. lO (3) The Effect of the Preliminary Injunction. O CD (4) The Measure of Delay.. H CD c. Conclusions. H (M CD CD 2. The Prima Facie Case for Disparate Impact: Application Procedures.. ^ CD 3. The “Simple Justification Test”.... CD CD a. Statutory Purpose and Intent. t> CD b. The Broader Statutory Context: Local Needs Harmonized with Civil Rights Enforcement. 00 CD c. Proving More than Just “Residential Preferences Are Allowed” 05 CD 4. Less Discriminatory Alternatives. o t> E. Duty to Affirmatively Fwrther Fair Housing . o t> 1. Does the “Affirmatively Further” Standard Comply with Blessing and Other Procedural Prerequisites?. rH Cr- a. 12 U.S.C. § U87c-l(d)(15) (QHWRA). tH t> b. 12 U.S.C. § 8608(e)(5) (Title VIII) . rH D- (1) The Statute. 71 (2) The Regulations. 75 e. Executive Orders 11063 & 12892. 76 2. Did the PHAs’ Plans Meet the Affirmative Furtherance Requirement. 77 F. Miscellaneous Provisions . 78 1. k2 U.S.C. § 3601(c): Advertising. 78 2. PHAs’ Compliance ivith Section 8 Plans. 79 III. CONCLUSION. 79 This case challenges the administration of Section 8 rental assistance programs by eight Massachusetts suburban public housing authorities (“PHAs”). The plaintiffs are four racial minority, lower-income women residing in Randolph and Brock-ton, the class of similarly situated individuals that they represent, and the Massachusetts Coalition for the Homeless (“MCH”). The communities in which the PHAs are situated are predominantly white, with low percentages of racial minority residents and a low overall rate of poverty. The plaintiffs’ principal challenge is to the use of a preference for local residents in determining a Section 8 applicant’s position on the waiting list, as well as the logistics of the application processes. Suing under 42 U.S.C. § 1983, they maintain that the PHAs’ policies effectively discriminated against minorities by favoring local, predominantly white applicants and violated the PHAs’ duties to target housing to extremely low-income families, and to “affirmatively further” fair housing. Defendants counter on a number of fronts, both procedural and substantive. They claim that recent decisional law casts doubt on the use of § 1983 to enforce the very statutes, regulations, and executive orders plaintiffs cite. Moreover, even if § 1983 is available to enforce these provisions, defendants deny that they have violated any of their legal obligations under them. Rather, they allege that the 1998 Quality Housing and Work Responsibility Act (“QHWRA”) allows them to administer Section 8 housing as they have done, namely with preferences for local residents. The following issues, then, are joined: (1) Can § 1983 be used to enforce the particular statutes, regulations, and orders at issue here? I conclude that § 1983 enforcement is proper here, based on the language of the statutes and their implementing regulations, on the one hand, and § 1983’s unique history and expansive language, on the other. Of all the cases in which § 1983 has been used to enforce state statutes and regulations, few come closer to the statute’s purpose and history since its enactment post Civil War than cases like the instant one — cases that seek to enforce antidiscrimination laws in general, and fair housing provisions in particular. (2) Have the plaintiffs met the standard for summary judgment on the question of whether the law has been violated, particularly given the- 1998 Act’s provisions on local housing preferences? I conclude that — with certain limitations described below — the plaintiffs have proven such violations, notwithstanding the language of the QHWRA. The Act’s reference to “local needs and priorities” does not give the PHAs carte blanche to effect preferences for local residents. Rather, it was intended to encourage local authorities to determine the kind of housing mix that suits local needs, within the framework of the applicable laws. For the following reasons, Langlois et al.’s motion for summary judgment [docket entry # 76] is GRANTED IN PART AND DENIED IN PART, and Abington Housing Authority et al.’s motion for summary judgment [docket entry # 86] is GRANTED IN PART AND DENIED IN PART. I. FACTUAL BACKGROUND A. Facts 1. The Section 8 Program In 1974, Congress established the Section 8 program as a vehicle for providing an adequate supply of housing for low-income families. Housing and Community Development Act of 1974, Pub.L. No. 93-383, tit. II, § 8(a), 88 Stat. 633, 662 (codified at 42 U.S.C. § 1437f). The component of the Section 8 program at issue here has been known variously as the Section 8 Existing Housing Program, the Certificate/Voucher Program, or the Section 8 “Tenant-Based” Program. See 42 U.S.C. § 1437f(o) (2002); Comer v. Cisneros, 37 F.3d 775, 781 (2d Cir.1994). The Program provides subsidies to private landlords. In Massachusetts, about 44,000 Section 8 tenant-based subsidies are administered by about 130 local housing authorities (“PHAs”) and the Massachusetts Department of Housing and Community Development. Under the tenant-based provisions of the Section 8 Program, the United States Department of Housing and Urban Development (“HUD”) enters into annual contracts with PHAs to fund Section 8 vouchers. See 42 U.S.C. § 1437f(o). In connection with this contract, each PHA must submit a plan to HUD describing the administrative details of the Section 8 program and its compliance with federal and state equal housing requirements. 42 U.S.C. §§ 1437c-l(b) (annual plan requirement), 1437c-l(d)(15) (2002) (civil rights certification requirement); 24 C.F.R. §§ 982.53, 982.54; see also 60 Fed. Reg. 34660, 34661 (July 3, 1995). To participate in a Section 8 program, an eligible family may apply to any state PHA. Each PHA maintains a waiting list and then awards subsidies — -in the form of vouchers, as they become available — -to eligible participants on its list. 42 U.S.C. § 1437f(o)(13)(J). Generally, participants may use their vouchers to rent eligible dwelling units anywhere in the state with rents meeting the fair market rent standards set by HUD. 42 U.S.C. § 1437f(r)(l). A Section 8 family conveys its voucher together with the family’s previously determined rent contribution — generally about 30% of its income — to the landlord, who in turn forwards the voucher to the PHA for the remainder of the rent. 42 U.S.C. §§ 1437a(a), 1437f(o)(2)(A)(i). HUD then reimburses the local PHA. 24 C.F.R. § 982.151 (annual contributions contract). The federal administrative requirements for the PHAs have shifted over the past several years. It is the latest change in the federal requirements that the PHAs identify as the basis for the disputed changes they have made in their programs. It is useful to outline that history: a.1980-1995: Federal Preferences From 1980 until 1995, Congress required the PHAs to rank eligible families on their waiting lists according to three statutorily mandated selection preferences (“federal preferences”): (1) families who occupy substandard housing (including the homeless); (2) families who are involuntarily displaced; and (3) families who are paying more than 50% of their family income to rent. 42 U.S.C. §§ 1437d(c)(4) (A) (i), 1437f(o)(3)(B) (repealed October 21,1998). b. 1995-1998: Administrative Suspension of the Mandatory Preferences These mandatory “federal preferences” were suspended from 1995 through 1998 in various HUD Appropriations Acts in which Congress gave PHAs some discretion to set their own admissions preferences. See Pub.L. No. 104-99, § 402(d), 110 Stat. 26, 41 (Jan. 26, 1996); Pub.L. No. 104-204, § 201(c)(2), 110 Stat. 2874, 2893 (Sept. 26, 1996); Pub.L. No. 105-65, § 201(d)(2), 111 Stat. 1344, 1364 (Oct. 27,1997). c. QHWRA: Permanent Repeal of Mandatory Preferences Coupled with Taryetiny of Extremely Low Income Families On October 21, 1998, President Clinton signed the Quality Housing and Work Responsibility Act of 1998 (“QHWRA”), which permanently repealed the Section 8 federal preferences, giving PHAs discretion within certain limits to establish local preferences in their agency plans. Pnb.L. No. 105-276, § 514(b), 112 Stat. 2461, 2547-48 (amending 42 U.S.C. § 1437f(d)(l)(A)) (“[F]or the purpose of selecting families to be assisted, the public housing agency may establish local preferences, consistent with the public housing agency plan submitted under section 5A by the public housing agency .... ”); see also 42 U.S.C. § 1437f(o)(6)(A)(i) (2002) (“Each public housing agency may establish a system for making tenant-based assistance under this subsection available on behalf of eligible families that provides preference for such assistance to eligible families having certain characteristics ....”). The question raised by this litigation is the scope of that discretion. Both the statutory text and the legislative history reflect Congress’ concern that federal over-regulation was impeding the PHAs’ ability to function effectively. Specifically, Congress was concerned that federal preferences did not afford PHAs sufficient flexibility to channel assistance where the local need was greatest. See, e.g., Pub.L. No. 105-276,. § 514(a)(1), 112 Stat. at 2547 (amending 42 U.S.C. § 1437d(c)(4) to require that PHAs develop systems of preferences “based upon local housing needs and priorities”). Congress also felt that removing the federal preferences and allowing preferences based on local needs would ultimately lead to diminished residential segregation by income. See, e.g., Pub.L. No. 105-276, § 502(a)(3), 112 Stat. at 2520 (noting Congress’ finding that “the public housing system is plagued by a series of problems, including the concentration of very poor people in very poor neighborhoods”); id. § 502(b)(3), 112 Stat. at 2521 (articulating a statutory purpose of, inter alia, “facilitating mixed income communities and decreasing concentrations of poverty in public housing”). But the PHA’s flexibility was not without limits. Senator Kerry described the rationale for repealing the previous federal preferences while still retaining the framework for the protection of the most needy applicants: [T]he reform measure permanently repeals Federal preferences, which had the unintended consequence of concentrating poverty in public housing developments. The bill allows PHAs to develop their own preferences, including a preference for working families, but requires that at least 40 percent of all public housing units and 75 percent of all section 8 units that become available each year be provided to people making below 30 percent of area median income. These protections ... will benefit residents at all income levels by facilitating the creation of mixed income developments. The value of mixed income developments cannot be overstated. Working families stabilize communities by offering hope and opportunity in environments of despair. In recognition of this important principle, the reform bill will require housing authorities to develop plans for the economic desegregation of their distressed communities. Each PHA must develop their plan in consultation with its residents, and all plans will be submitted to HUD for approval. 144 Cong. Rec. S11833-02, at S11839 (daily ed. Oct. 8,1998). It is worth noting that nowhere in the legislative history or in the statute itself is there reflected any concern that the previous system disadvantaged local residents, or any desire that the new system should afford them greater priority. In other words, while the statute allows PHAs to develop local preferences, nothing in the statute or legislative history shows any desire of Congress to elevate preferences for local residents over fair housing concerns. There are several significant restrictions on the PHAs’ flexibility: the 75% rule, the guarantee of nondiscrimination and the PHAs’ duty to affirmatively further fair housing. (1) 75% Rule First, in order to maintain protection for the most needy of applicants, the QHWRA includes an admissions-targeting requirement for extremely low-income families (the “75% Rule”): Of the families initially provided tenant-based assistance under section 1437f of this title by a public housing agency in any fiscal year, not less than 75 percent ■ shall be families whose incomes do not exceed 30 percent of the area median income, as determined by the Secretary with adjustments for smaller and larger families; except that the Secretary may establish income ceilings higher or lower than 30 percent of the area median income on the basis of the Secretary’s findings that such variations are necessary because of unusually high or low family incomes. 42 U.S.C. § 1437n(b)(l) (codifying Pub.L. No. 105-276, § 513(a), 112 Stat. at 2545-46 (1998)); 24 C.F.R. § 982.201(b)(2). (2) Nondiscrimination A second set of restrictions ensures that local preferences comport with principles of nondiscrimination. PHAs must certify that their plans comply with civil rights laws, including Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act”), 42 U.S.C. § 3601 et seq. 42 U.S.C. § 1437c-l(d)(15). Within this framework, the QHWRA and its accompanying regulations authorized the PHAs, when compiling their waiting lists for vouchers, to develop their own “system[s] of local preferences for selection of families admitted to the program.” 24 C.F.R. § 982.207(a)(1) (2002). Such systems “must be based on local housing heeds and priorities, as determined by the PHA.” Id. § 982.207(a)(2) (2002). At the same time, PHAs are explicitly forbidden to adopt residency requirements, and although the regulations allow them to adopt residency preferences, they may do so 11 only ... in' accordance with non-discrimination and equal opportunity requirements listed at 5.105(a) of this ti-tie.” Id. § 982.207(b)(l)(i) (emphasis added). Significantly, the PHAs are required to specify in their administrative plans that any residency preferences they adopt “will not have the purpose or effect of delaying or otherwise denying admission to the program based on the race, color, ethnic origin, gender, religion, disability, or age of any member of an applicant family.” Id. § 982.207(b)(l)(iii). (3) Affirmative Furtherance of Fair Housing The actions of the PHAs must also take place within the framework of the duty to affirmatively further fair housing, as stated in 42 U.S.C. § 1437c — l(d)(15) (United States Housing Act) and its implementing regulation, 24 C.F.R. § 903.7(o); 42 U.S.C. § 3608(e)(5) (Fair Housing Act), and its implementing regulation, 24 C.F.R. § 982.53(b)-(c); Executive Order 11063, 27 Fed.Reg. 11527 (Nov. 20, 1962) and its implementing regulations, 24 C.F.R. §§ 5.105(a) and 107.21; and Executive Order 12892, 59 Fed.Reg. 2939 (Jan. 17, 1994). 2. The Defendant PHAs’ Policies The defendants in this case are eight public housing authorities located in the suburban South Shore area of Massachusetts. The communities in which the PHAs are situated are predominantly white, with relatively low percentages of racial minority residents (ranging from I.4% to 8.5% minority) and a low overall rate of poverty (ranging from 3.8% to 6.8% of the population in poverty). Langlois, 1998 WL 1029208, at *4 n. 13. By way of comparison, Brockton, Massachusetts, a large neighboring city where named plaintiffs Fabian, Rivera, and Stewart reside, is 22.5% minority, with 13.6% of its population living in poverty. Id. In 1998, after determining that their current Section 8 waiting lists would soon be exhausted, the eight defendant PHAs consulted with each other and decided jointly to open up their waiting lists to new applicants via a new round of lotteries. Id. In so doing, they adopted, inter alia, the following policies and procedures, in which local residents had a priority position. a. The Application Process The eight PHAs, in an effort to generate a high rate of participation in the application process while placing some limit on their respective administrative burdens, all decided that they would require prospective Section 8 applicants to request their applications during the same two-day period. In October 1998, the PHAs issued a public notice stating that applications could be requested from each individual PHA, either in person or over the phone, between 9:30 a.m. and 2:30 p.m. on October 29 and 30, 1998. Id. at *5. The applications were to be returned by hand or postmarked no later than 12:00 noon on November 17, 1998. Each PHA would then hold its separate lottery on December 1,1998, at 1:00 p.m. In addition to the procedures set forth in the public notice, social service agencies and housing advocates were permitted either to telephone each PHA as often as they could and request five applications with each telephone call, or to send an employee to each PHA to pick up as many applications as they needed. Id. at *5. The success of these support organizations varied, depending on their access to manpower, transportation, time, and the happenstance of getting through on the telephone. Id. Moreover, some of the PHAs apparently did permit organizations to fax or mail in a list of applicants’ names, rather than requiring the workers to submit the lists in person. Id. at *5 n. 29. b. Formulation of the Waiting Lists: Residency Preferences The PHAs also adopted a procedure for determining which applicants would make the waiting lists and in what order. The first stage of the process consisted of an individual randomized lottery for each PHA that would determine which applicants would make the respective waiting lists for the available Section 8 vouchers. Id. at *4-5. Once that lottery was complete, the PHAs would then place the selected applicants in order on their Section 8 waiting lists. Significantly, the PHAs gave priority to applicants currently living or working in the community where the PHA was located. Id. at *5. In other words, once it was established who made the waiting list and who did not, local residents on the waiting list moved to the front of the line for receipt of a Section 8 voucher. For some of the PHAs, this residency preference was initiated in 1998; for others, the preference had been in place before, in some cases as early as the 1970s. 3. The Plaintiffs’ Interaction with the PHAs The named plaintiffs in this case — Kelley Langlois, Yasmine Rivera, Lissett Fabian, and Annette Stewart — are all extremely low-income women of color. In 1998, they were either homeless or had severe housing problems. Id. at *6. Lan-glois currently resides in Randolph, MA; Rivera, Fabian, and Stewart reside in Brockton, MA. These four women, along with other members of the class they represent — ie., extremely low-income individuals residing in the Brockton and Boston metropolitan areas — attempted to participate in the defendant PHAs’ lottery systems in October 1998 and encountered various logistical and substantive problems with the PHAs’ procedures. Id. at *6 n. 25. For example, both applicants and housing advocates reported serious difficulties obtaining lottery applications. Relatively few of the applicants own cars — advocates estimate that between 0 and 10% of their clients have cars — and it would have been extremely difficult, if not impossible, to visit all eight PHAs by public transportation within the two-day window allotted for picking up applications. Some housing advocates and social workers with access to cars were able to pick up applications, but not all of them had the resources to drive to all eight PHAs. The telephone option did not altogether alleviate the situation: both applicants and advocates reported that it was often difficult to reach some of the PHAs by phone during the two-day window. Moreover, some advocates claimed that, when they did get through on the phone, they were allowed to request only a certain number of applications during that single telephone call and were directed to call back if they wanted more. In addition, even when those seeking applications were able to get them, the application forms each contained notice of the PHA’s intention to give waiting list priority to those applicants living in its own community. None of the plaintiffs reside in any of the defendant PHAs’ communities, and none of them would have qualified for the residency preference. Notice of the PHAs’ residency preferences discouraged many potential applicants from bothering to apply at all. On October 30, 1998, the plaintiffs’ counsel wrote to the Executive Directors of the eight PHAs to express their concerns about the application procedures and to suggest that the procedures might violate state and federal fair housing and antidis-crimination laws. This lawsuit followed. B. Procedural History The case at bar was filed on November 16, 1998. The complaint, as later amended on December 1, 1998, originally listed five counts for relief. However, at the present time, only three counts remain: Count I (violation of federal Fair Housing Act, 42 U.S.C. § 3608(e)(5); QHWRA § 511(a); Executive Order 11063, 27 Fed.Reg. 11527 (Nov. 20, 1962); and Executive Order 12892, 59 Fed.Reg. 2939 (Jan. 20, 1994)), Count II (violation of various provisions of QHWRA), and Count IV (42 U.S.C. § 1983). Three days after filing suit, on November 19, 1998, the plaintiffs moved for class certification and for a temporary restraining order (“TRO”) allowing the defendant PHAs to proceed with the randomized housing lotteries scheduled for December 1, but prohibiting any other action, including ordering the waiting list according to the residency preference or distributing any available Section 8 certificates. This Court issued the requested TRO on November 30, 1998, pending resolution of the plaintiffs’ motion for preliminary injunction. After examining the data on the outcome of the December 1 lotteries, I issued findings of fact on December 16. The facts suggested to me that a preliminary injunction was warranted, based on the likelihood that the procedures of Abington and Rockland PHAs, if fully implemented, would violate the 75% Rule and that the proposed residency preference in Avon, Holbrook and Middleborough, if implemented, would, work a discriminatory disparate impact on minority applicants. A preliminary injunction issued on December 30,1998, by which, inter alia, (1) the Abington and Rockland PHAs were enjoined from distributing any of their available Section 8 certificates to applicants on their December 1 waiting lists according to their residency preference policies until they presented this Court with a specific plan to ensure compliance with the 75% Rule; (2) the Avon, Holbrook, and Middlebor-ough PHAs were enjoined from distributing any of their available Section 8 certificates to applicants on their December 1 waiting lists according to their residency preference policies; (3) the Abington, Avon,. Holbrook, Mid-dleborough, and Rockland PHAs were ordered to begin distribution of their Section 8 certificates, as they became available, to applicants on their December 1 waiting lists according to their randomized ranking scheme, i.e., without residential preferences; (4) all of the defendant PHAs were permitted to begin immediate distribution of available Section 8 certificates to the households on their pre-existing waiting lists; and (5) the Bridgewater, Halifax, and Pembroke PHAs were ordered to report to the Court after they exhausted their pre-exist-ing waiting lists, and prior to any distribution of certificates to applicants on their December 1 waiting lists. The defendants appealed the entry of the preliminary injunction to the First Circuit on February 10, 1999. On March 27, 2000, the First Circuit affirmed the preliminary injunction enjoining Abington and Rockland from distributing Section 8 vouchers to their December 1 lists because of lack of compliance with the 75% Rule. Langlois v. Abington Housing Auth., 207 F.3d 43, 52 (1st Cir.2000). The First Circuit also affirmed the injunction against the Avon, Holbrook, and Middleborough PHAs, which had been based on a finding that there was a likelihood of success on the merits of plaintiffs’ disparate-impact claim, although the First Circuit parted company with this Court on its legal analysis. Id. On the disparate impact issue, the First Circuit held that the Fair Housing Act prohibits “actions that have an unjustified disparate racial impact.” Id. at 49. However, while the First Circuit left undisturbed the trial court’s conclusion that the defendants’ plans had a disparate impact on the plaintiffs, that finding served only to create a prima facie case of a Fair Housing Act violation. The next stage of the analysis dealt with whether the demonstrated disparate impact was “justified by a legitimate and substantial goal of the measure in question.” Id. at 50-51. Insofar as the trial court’s rationale for granting the preliminary injunction appeared to rest on “balancing” the merits of that goal against the magnitude of the disparate impact, the First Circuit rejected that approach, observing that a “balancing” role for the district court would violate separation of powers vis-h-vis Congress and is “in tension with the course taken by the Supreme Court and Congress under Title VII where a standard of justification is constructed and applied.” Id. at 51. Nevertheless, the First Circuit ordered that within 90 days the injunction was either to be vacated or “reinstituted based upon the grounds not yet considered by the district court.” Id. at 52. Those grounds consisted of alleged violations of the duty to “affirmatively further fair housing,” under 42 U.S.C. § 1437c-l(d)(15); 24 C.F.R. § 982.53(b)-(c); 24 C.F.R. § 903.7(o); and Executive Orders 11063 and 12892, which had not been addressed in the preliminary injunction proceedings. The plaintiffs filed their motion for summary judgment on September 8, 2000; the defendants cross-moved for summary judgment on October 24, 2000. The first motion hearing was held on November 28, 2000. On June 4, 2001, the Court requested supplemental briefing from the parties, in light of recent developments in the law on § 1983 enforcement, and a second motion hearing was held on June 7, 2002. II LEGAL ANALYSIS A. Summary Judgment Standard Summary judgment is warranted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In assessing a motion for summary judgment, I am required to view the facts in the record in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor. Thomas v. Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir.1999); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Causes of Action The plaintiffs’ legal claims stem from two alleged “wrongs”: the PHAs’ proposed implementation of residency preferences and the logistics of the lottery application process. At this stage of the litigation, all of the plaintiffs’ remaining claims are brought under the jurisdictional umbrella of 42 U.S.C. § 1983. In other words, the plaintiffs allege no implied l'ight of action for each of their legal claims; rather, they sue under § 1983, claiming deprivations of rights secured by the respective federal laws allegedly violated by defendants. Those rights fall into five basic categories: (1) With regard to the Abington and Rockland PHAs, violation of the 75% Rule, as stated in 42 U.S.C. § 1437n(b)(l) (QHWRA) and 24 C.F.R. § 982.201(b)(2); (2) With regard to Avon, Holbrook and Middleborough, violations of the duty to affirmatively further fair housing, as stated in 42 U.S.C. § 1437c-l(d)(15) (United States Housing Act) and its implementing regulation, 24 C.F.R. § 903.7(o); 42 U.S.C. § 3608(e)(5) (Fair Housing Act) and its implementing regulation, 24 C.F.R. § 982.53(b)-(c); Executive Order 11063, 27 Fed.Reg. 11527 (Nov. 20, 1962), and its implementing regulations, 24 C.F.R. §§ 5.105(a) and 107.21; and Executive Order 12892, 59 Fed.Reg. 2939 (Jan. 17, 1994); (3) With regard to Avon, Holbrook and Middleborough, utilization of policies that have a discriminatory disparate impact on minority applicants and/or violate other civil rights laws, in violation of 42 U.S.C. § 3604(a)-(b) (Fair Housing Act) and 24 C.F.R. § 982.207(b); (4) With regard to all of the PHAs, discriminatory advertising with respect to the sale or rental of a dwelling, as prohibited in 42 U.S.C. § 3604(c) (Fair Housing Act); and (5) With regard to all of the PHAs, violation of HUD regulations at 24 C.F.R. §§ 982.54, 982.204(a)-(b), for the PHAs’ failures to comply with their own Section 8 administrative plans and to maintain waiting lists including racial and other data. Before launching into the merits of each of these claims, defendants raise an important threshold question, namely, which of the federal laws cited by the plaintiffs may support claims for relief under § 1983. In this regard, defendants suggest that the ground may have shifted under the plaintiffs since they initially brought their claim. Recent case law, they argue, has substantially narrowed the scope of § 1983, particularly for statutory and administrative claims. I will proceed as follows: First, I will set forth the standards for assessing the viability of a cause of action under § 1983. Then I will address each category of the plaintiffs’ claims in turn, first whether the statutory, regulatory, and other provisions at issue meet the standard for creating rights cognizable under § 1983, and if so, the merits of those claims. 1. The Blessing Test: § 1983, Statutes, and “Rights” In Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), the Supreme Court set forth its interpretation of the scope of § 1983. It reaffirmed the fact that § 1983 “safeguards certain rights conferred by federal statutes,” and accordingly, that § 1983 suits may be premised on deprivations of such rights. Id. at 340, 117 S.Ct. 1353 (citing Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980)). At the same time, the Blessing court stressed that the § 1983 remedy is available for violations of federal rights, not just of federal statutes per se. Id. at 340, 117 S.Ct. 1353. Rights enforceable under § 1983 center on the needs of particular people, thereby reflecting “individual entitlements” as opposed to yardsticks for measuring “systemwide performance.” Id. at 343, 117 S.Ct. 1353 (emphases in original); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 2274, 153 L.Ed.2d 309 (2002). The Blessing court, extrapolating from its earlier case law, outlined a three-factor test for determining when a federal statute gives rise to such a right: First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than prec-atory, terms. Id. at 340-41, 117 S.Ct. 1353 (citations omitted); see also, e.g., Visiting Nurse Ass’n of North Shore, Inc. v. Bullen, 98 F.3d 997, 1002-03 (1st Cir.1996). Significantly, the inquiry was whether the statute created a federal right. It was not whether Congress intended to create a right enforceable through § 1983. Section 1983 by itself announced Congress’ intention to provide a remedy for state violations of rights. As this Court noted in Furtick v. Medford Housing Auth., 963 F.Supp. 64 (D.Mass.1997): “Congress is presumed to legislate against the background of section 1983 and thus to contemplate private enforcement of the relevant statute against state and municipal actors absent fairly discernible congressional intent to the contrary.” Id. at 71 n. 18; see also Henry Paul Monaghan, Federal Statutory Review Under Section 1983 and the APA, 91 Colum. L.Rev. 233, 249 (1991). A plaintiffs successful showing that a federal statute creates a cognizable individual right raises “only a rebuttable presumption that the right is enforceable under § 1983.” Id. at 341, 117 S.Ct. 1353. At that point, the burden of proof shifts to the defendant to show that Congress “specifically foreclosed a remedy under § 1983.” Id. at 341, 117 S.Ct. 1353 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n. 9, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)) (internal quotation marks omitted). Congressional foreclosure may be either explicit—written into the statute itself—or implicit, when the reviewing court identifies a “comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Id. (citing Livadas v. Bradshaw, 512 U.S. 107, 133, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994)). The burden of showing an implicit rejection of § 1983 remedies by dint of a “comprehensive enforcement scheme” is a substantial one. As one scholar notes, the “[i]mplied preemption of a section 1983 remedy on the basis of the assertedly comprehensive nature of the remedial scheme created by the federal legislation is not favored.” Monaghan, supra, at 247. The mere availability of some administrative mechanism to protect the plaintiffs interest is not enough to foreclose recourse to § 1983. E.g., id. at 347, 117 S.Ct. 1353 (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989)); Wright v. City of Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 427-28, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (“[T]he existence of a state administrative remedy does not ordinarily foreclose resort to § 1983.”). Rather, the administrative scheme must be both federal and “sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at 346, 117 S.Ct. 1353 (quoting Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 521, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990)) (alterations in original) (internal quotation marks omitted). It should be noted that the Blessing inquiry is a different “rights-creating” inquiry than the one undertaken by the Supreme Court in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In Sandoval, the “rights-creating language” that the Court found absent from § 602 of Title VI referred to a private right of action flowing directly from the statute. Id. at 288-89, 121 S.Ct. 1511. If courts imply a right of action from a statute, when Congress itself provided no explicit remedies, separation of powers concerns are arguably raised. Court implementation of § 1983, in contrast, does not trigger the same level of concern for the separation of powers. Section 1983 is a statute of considerable breadth, passed by Congress after the Civil War to provide judicial remedies for state violations of federal law and, in particular, to provide federal remedies for discrimination against racial minorities: It is plain that Congress intended to create new enforcement mechanisms to redress state violations of federal law. The experience following the Civil War called for a dramatic expansion in the role of the national government, including the federal courts, in regulating the conduct of the states. It is no doubt true that Congress was primarily concerned with providing a remedy for constitutional violations and unlawful invasions of rights protected by civil rights laws. But it is consistent with the historical evidence to understand the underlying purposes as more general than that, reaching all violations of federal law. Cass R. Sunstein, Section 1983 and the Private Enforcement of Federal Law, 49 U. Chi. L.Rev. 394, 408-09 (1982). As I describe below, the statutes at issue in this case, especially those concerned with housing discrimination, fit squarely within the language of § 1983, its purpose, and its historical mission. 2. Enforceability of Administrative Regulations and Executive Orders under § 1983 Enforcement of administrative regulations and executive orders directly under § 1983, the defendants suggest, does raise separation of powers concerns not unlike those raised in Sandoval. While there is some ferment in this area, existing Supreme Court law suggests a broad rule for § 1983 enforceability of regulations: Where an administrative regulation is validly issued pursuant to a congressional delegation of authority and carries the force of law, it may serve as the premise for a § 1983 suit so long as the regulation itself meets the Blessing criteria. Other case law suggests a narrower view: Only statutes confer rights under § 1983; regulations can provide an interpretation of the statute, to which deference is due. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). While the difference between the two is less than clear, as I describe below, plaintiffs succeed under either test. The broad view is suggested in Wright v. City of Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). Wright involved a challenge by tenants of low income housing projects who claimed that utility overcharges violated the Brooke Amendment to the United States Housing Act of 1937, 42 U.S.C. § 1437(a). The Brooke Amendment imposed a ceiling for rents charged to tenants of low income housing projects; their rent had to be a specified percentage of their income. Id. at 420, 107 S.Ct. 766. In the Act’s implementing regulations, the Department of Housing and Urban Development (“HUD”) defined the statutory term “rent” as including sums for reasonable utility costs. Id. at 420-21 & nn. 3-4, 107 S.Ct. 766 (quoting 24 C.F.R. § 860.403 (1982) and citing 24 C.F.R. § 865.470 (1983)). Arguing from both the statute and the regulations, the tenants claimed that the housing authority had exceeded the statutory ceiling by overbilling them for utilities. The Court agreed. Id. at 430, 107 S.Ct. 766. The Court found that the statute met the first and third prongs of Blessing, that the Brooke Amendment imposed a rent ceiling intended to benefit the plaintiffs, and that it was a binding obligation on the states. Further, using language found in the narrow test, the court concluded that HUD’s regulations comprised an interpretation of the term “rent” that was entitled to deference. Id. With respect to the second prong of the Blessing test, however— whether the regulations were too amorphous and thus, beyond the competence of the Court to enforce — the Court’s language was broad. It suggested that the regulations may be an independent source of rights under § 1983 so long as they have the “force of law.” Id. at 431-32, 107 S.Ct. 766. Justice O’Connor dissented, arguing for the narrow approach — that Congress had conferred § 1983 rights only under the statute and not under the regulations. While deference was due to the agency’s interpretation of those rights through its regulations, the regulations were not independently actionable. The broader view— that “any regulation adopted within the purview of the statute creates rights enforceable in federal court,” she suggested, was “troubling indeed.” Id. at 437-38, 107 S.Ct. 766 (O’Connor, J., dissenting) (emphasis in original). Three years later, in Wilder v. Va. Hospital Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), the Wright holding was reaffirmed. Without much analysis, however, the Court characterized its earlier holding in Wright as suggesting that “the [statute] and its implementing regulations did create rights enforceable under § 1983.” Id. at 511, 110 S.Ct. 2510. Likewise, ten years later, in his dissent in Alexander v. Sandoval, Justice Stevens characterized Sandoval’s denial of relief on respondents’ direct cause of action under Title VI as “something of a sport” because “[l]itigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference § 1983 to obtain relief.” 532 U.S. at 299-300, 121 S.Ct. 1511 (Stevens, J., dissenting); see also Guardians Ass’n v. Civil Serv. Comm’n of New York, 463 U.S. 582, 638, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (Stevens, J., dissenting) (“[I]t is clear that the § 1983 remedy is intended to redress the deprivation of rights secured by all valid federal laws, including statutes and regulations having the force of law.”). The lower federal courts have split on the meaning of this case law. The Sixth Circuit, and the Ninth Circuit, together with district courts in Michigan, California, and Florida, have followed the broader rule. See, e.g., LosChiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994) (“As federal regulations have the force of law, they likewise may create enforceable rights”); see also Buckley v. City of Redding, California, 66 F.3d 188, 192 (9th Cir.1995), Hill v. San Francisco Housing Auth., 207 F.Supp.2d 1021, 1027 (N.D.Cal. 2002), White v. Engler, 188 F.Supp.2d 730, 745 (E.D.Mich.2001). Other courts (this circuit and this Court not among them) have taken the view suggested by Justice O’Connor’s dissent in Wright — that regulations may help define the scope of the statutory right created by Congress, but they do not independently create rights. See S. Camden Citizens in Action v. New Jersey Dep’t of Envtl. Protection, 274 F.3d 771, 790-91 (3d Cir.2001) (finding that environmental disparate-impact regulations adopted pursuant to Title VI of Civil Rights Act of 1964 § 602, 42 U.S.C. § 2000d-l, do not create rights enforceable under § 1983 because the right only appears in the regulation, not in the statute). See also Harris v. James, 127 F.3d 993, 1009 (11th Cir.1997); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir.1987); Ceaser v. Pataki, No. 98 CIV.8532(LMM), 2002 WL 472271, at *3 (S.D.N.Y. Mar.26, 2002). I find the broader view — also endorsed by the dissenting judge in South Camden, 274 F.8d at 797-98 (McKee, J., dissenting) — to be more consonant with Supreme Court doctrine, the academic commentary and significantly, the fundamental purpose of § 1983. On its face, § 1983’s broad language encompasses regulations. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983 (emphasis added). While the plain meaning of “laws” is broad, the statutory text, as the Blessing court noted, incorporates the limitation that recourse to § 1983 is available only to redress the “deprivation of rights, privileges, or immunities” secured by the “laws” in question. The sticking point appears to be the source of the right in question. The Third, Fourth, and Eleventh Circuits, as well as the dissenters in Wright, are troubled by the idea that a § 1983 suit could vindicate “rights” stemming not directly from Congress but from an agency’s regulation. These courts have to be saying more than the truism that no action will lie to assert a right conferred by an agency acting outside its statutory authority. Rather, they must be suggesting that regulations that derive from broad delegations of congressional authority rather than narrow grants of authority are somehow too far removed from congressional action to meaningfully permit § 1983 enforcement. But the lodestar under Blessing is congressional intent to confer rights. To say that such rights, contained in valid regulations issued pursuant to narrow congressional delegations, are enforceable, but that the same rights contained in valid regulations enacted pursuant to broad delegations are not, poses a distinction that exists nowhere in the language, the doctrine, the rationale or the history of § 1983. Moreover, the effect of such a distinction is quite paradoxical: The more latitude Congress expressly intended to allow the agency, the fewer § 1983 “rights” that agency may validly create through its regulations. In any event, the distinction between the broad and narrow tests is beside the point here. The statutes at issue already contain the requisite “rights-creating” language. They meet the Blessing test, both in letter and spirit. Under those circumstances, it should make little difference whether Congress specifies the right even further in the statutory text or charges the agency to do so via regulations. Moreover, two of the three claims involve statutory provisions concerned with discrimination — redressing illegal discrimination on the one hand, affirmatively furthering fair housing on the other. They are precisely the kinds of rights with which § 1983, passed immediately after the Civil War, was uniquely concerned. They are phrased in mandatory not preca-tory terms. And antidiscrimination provisions are hardly beyond the competence of courts to administer. Courts have been the place where such rights have been enforced for decades. To the extent the fair housing statutes delegate details of enforcement to regulation, the regulations implementing these statutes are not materially different from court decisions implementing like statutes in other areas concerned with diserimination. Thus, however one characterizes the test — broadly as the Wright majority did, or more narrowly, as in the Wright dissent, the result is the same. The regulations here are either independent sources of rights because they have the force of law, or they represent HUD’s authoritative interpretations of the statutory antidiscrimination rights, or they flowed from a statutory scheme that itself met the Blessing standard. C. Abington and Rockland: Compliance with the 75% Rule 1. The 75% Rule: Does It Meet the Blessing Standard? The QHWRA’s “75% Rule” resides in the statute, 42 U.S.C. § 1437n(b)(l), which provides: Of the families initially provided tenant-based assistance under section 1487f of this title by a public housing agency in any fiscal year, not less than 75 percent shall be families whose incomes do not exceed 30 percent of the area median income, as determined by the Secretary with adjustments for smaller and larger families .... A straightforward application of Blessing to this provision recognizes that a private action under § 1983 to enforce the 75% Rule is appropriate. The statute is crafted to ensure that a designated class of families—those described in HUD regulations as “extremely low income families”—comprises at least three quarters of the total number of families awarded assistance by a given PHA. The named plaintiffs all fit this classification, and the plaintiff class is precisely tailored to include only those individuals “with incomes at or below 30% of area median income.” There is no doubt that Congress intended the 75% Rule to benefit the plaintiffs; the 75% Rule therefore passes the first component of the Blessing test. Nor is the right so “vague and amorphous” that a court cannot enforce it. The statute gives an explicit directive to PHAs: make sure that 75% of the families awarded aid are at a certain level of income. The preliminary injunction issued against the Abington and Rockland PHAs in this case is demonstrative of this provision’s enforceability in the courts. The available data showed that the wait-lists, as configured by Abington and Rockland, threatened to violate the 75% Rule. Langlois, 1998 WL 1029207, at *3-4. An order followed to ensure their compliance. Finally, Congress took pains to phrase the 75% Rule “in mandatory, rather than precatory, terms.” 42 U.S.C. § 1437n(b)(l) (“[N]ot less than 75 percent shall be families whose income exceeds 30 percent_” (emphasis added)). 2. The 75% Rule: Does the Rock-land Plan Comply? As mentioned above, on April 4, 1999, the defendants submitted to this Court the “specific plan” that the Rockland and Ab-ington Housing Authorities proposed to ensure compliance with the 75% Rule. The proposed amendment to both PHAs’ administrative plans is as follows: Of the families initially provided tenant based assistance under section 8 by the [Rockland/Abington] Housing Authority in any fiscal year, not less than 75% shall be families whose incomes do not exceed 30% of the area median income as determined by the Secretary. The local preference policy is subordinate to this provision, and admissions to the program will be monitored to assure compliance. Abington has chosen to cease administration of Section 8. This analysis applies to Rockland only. The plaintiffs respond that the proposed amendment is not at all “specific”; rather, it is just a statement of intended compliance without any details as to how compliance will take place. The First Circuit, in affirming the preliminary injunction against the Abington and Rockland PHAs, left it to this Court to resolve whether the amendment constitutes compliance with the 75% Rule. Langlois, 207 F.3d at 48-49. I agree with the plaintiffs that the proposed amendment is essentially more of a promise of compliance than a plan for compliance. The amendment is not at all specific as to what statistical and procedural mechanisms the Abington and Rockland PHAs would use to ensure compliance. At the same time, however, a given PHA’s compliance with the 75% Rule does not strike me as requiring a particularly complex assessment. As I observed in my Memorandum and Order of December 30, 1998, the plaintiffs in this case were easily able to assess projected compliance by (1) counting the number of extremely low-income households due to receive Section 8 certificates and (2) assessing what percentage of those households would in fact receive certificates under the system in place at a given PHA. Langlois, 1998 WL 1029207, at *3-4. What the Rockland PHA’s amendment appears to mean is that the 75% Rule will function as a backstop in formulation of the waiting lists, and that it will take precedence over any system of local preferences—as the law in fact requires. At this point, however, I am willing to give the Rockland PHA the benefit of the doubt. Rockland is now on more than adequate notice as to what compliance means; there is little to gain from hamstringing it further at this point. Should it turn out that, despite the amendment to its administrative plan, the Rockland PHA still fails to comply with the 75% Rule, the plaintiffs are free to come back to court and seek an injunction requiring them to do so. D. Disparate Impact (Title VIIIJFair Housing Act) In relevant part, 42 U.S.C. § 3604 (Title VIII/Fair Housing Act) provides: As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful— (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin. There is no question that the Fair Housing Act meets the Blessing framework. As I have explained, § 1983 was passed after the Civil War as part of Congress’s effort to give racial minorities ammunition to fight state-sponsored and private discrimination. Application of Blessing confirms what the history of § 1983 suggests: (1) the Fair Housing Act was enacted to protect racial minorities, (2) courts are well-positioned to enforce norms against discrimination and have done so for decades, and (3) Title VIII’s prohibition of discrimination—and the PHAs’ obligation to comply with them—are nondiscretionary. Moreover, there is no question that Fair Housing Act claims may rest on a disparate impact theory of discrimination. Langlois, 207 F.3d at 49; see also cases cited supra note 25. The First Circuit held that once a plaintiff establishes a prima facie case of disparate impact, the question then becomes only whether the disparate impact is “justified by a legitimate and. substantial goal of the measure in question”—the. “simple justification test,” id. at 51—and whether there is no less discriminatory means by which the defendant can meet that objective, Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 936 (2d Cir.), aff'd, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988); see also Langlois, 207 F.3d at 50 n. 6 (inviting the parties to review the question of less discriminatory alternatives on remand). 1. The Prima Facie Case for Disparate Impact: Residency Preferences As the First Circuit observed in the appeal of the preliminary injunction in this case, the “Supreme Court has said that no single test controls in measuring disparate impact.” Langlois, 207 F.3d at 50 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n. 3, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)). It is my task, then, to review each PHA’s residency preference against the several tests that are before me. It is important, however, to put this analysis, in context. As a simple matter of logic, the residency preference of every one of the defendant PHAs raises concerns. All of the communities in this ease have significantly lower percentages of minority residents than their urban neighbors; all of them have fewer minority residents per capita than the state average. It follows logically, then, that any policy that facially favors the residents of these communities will disproportionately favor whites over minorities in the long run. But the law requires proof of a substantial disparate impact. Fudge v. City of Providence Fire Dep’t, 766 F.2d 650, 657-58 (1st Cir.1985). The various tests for disparate impact that the plaintiffs propose (the defendants themselves propose none) yield a variety of conclusions; occasionally a PHA’s residency preference passes a particular test, sometimes there is insufficient data to apply a given test to a PHA. No single methodology is airtight, as the defendants hasten to point out, and I will address the imperfections of each test below. Nevertheless, I want to keep my eye on the context: Predominantly white suburban communities have enacted a Section 8 preference to bring their own residents to the front of the line for housing vouchers. That there loill be a disparate impact over time seems clear. The question is the extent of that impact and whether it meets the applicable legal standards. a. The Preliminary Injunction Tests In this Court’s Memorandum and Order of December 30, 1998, I applied, at the plaintiffs’ urging, two different standards for proving disparate impact on minority applicants: the Equal Employment Opportunity Commission’s “four-fifths rule” and the Comer standard. Langlois, 1998 WL 1029207, at *5-6. My focus at that time was on the 1998 wait lists and minority prospects for selection in the coming year. (1) The “Four-fifths” Rule The four-fifths rule provides that “a selection rate for any race, sex, or ethnic group which is less than four-fifths (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact ....” 29 C.F.R. § 1607.4(D). A typical application of the EEOC test would find fault if, say, 13% of white applicants were given employment as against 4% of black applicants (4% being less than four fifths of 13%). See Fudge, 766 F.2d at 658 n. 10 (applying the test in this manner, but noting that small sample size makes the comparison of percentages less reliable). The EEOC test is particularly effective in employment cases where an applicant pool is ascertainable. In our case, however, it is not. The waiting lists generated by the 1998 lotteries do not necessarily reflect all qualified applicants. There is evidence that notice of the residency preference discouraged members of the plaintiff class from applying for the defendant PHAs’ vouchers. The plaintiffs point to additional barriers to application — for example, the time constraints, the PHAs’ requirements that applications be retrieved in person or by phone. Obviously, it is not possible to account for the number of thwarted or deterred potential applicants with any statistical certainty. Cf. U.S. v. City of Warren, Michigan, 138 F.3d 1083, 1092 (6th Cir.1998) (holding that the plaintiffs “inability to isolate the specific reason for the dearth of black applicants was not fatal to its claim” that recruiting practices worked a disparate impact against qualified minority applicants for employment). In addition, at the preliminary injunction stage, the variation of the four-fifths rule that I applied did not compare the selection rate of minorities to the selection rate of whites, as the EEOC test suggests. Instead I compared the percentage of minority applicants selected with the residency preference scheme to the percentage of minorities selected without the preference in place. Thus, if a particular PHA’s selection rate for minority applicants with the residency preference in place was less than four fifths of its selection rate for minorities without the preference, the PHA would fail the EEOC test. Langlois, 1998 WL 1029207, at *6. At that time, I found that the Avon (25% selection rate with the preference versus 38% without), Holbrook (0% with the preference versus 33% without), and Middle-borough (40% with the preference versus 57% without) PHAs failed the four-fifths rule. The plaintiffs submitted 'further evidence suggesting a disparate impact for Rockland (47% with the preference versus 73% without), but because I had already identified the QHWRA’s 75% Rule as a sufficient ground to suspend Rockland’s preference, id. at *4, *5 n. 21, I reserved ruling against Rockland on the disparate impact issue. Abington passed the four-fifths test (54% with the preference versus 63% without). The Bridgewater, Halifax, and Pembroke PHA