Full opinion text
OPINION COHILL, District Judge. Robert Burns’ oft-quoted maxim “the best laid schemes o’ mice and men gang aft a-gley” perhaps best describes the attempts of the defendants, the Housing Authority of the County of Beaver (“Housing Authority”) and the Pennsylvania Human Relations Commission (“Commission”) to design a plan to achieve and maintain integration in the Housing Authority’s low-income, public housing projects. On October 6, 1978, the plaintiffs herein filed a class action challenging both the plan and the Housing Authority’s implementation of that plan. We conducted a six-day non-jury trial and now make the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure. Introduction Two actions, Theresa Burney v. Housing Authority of the County of Beaver, Civil Action Number 78-1137, and Leila Smith v. Housing Authority of the County of Beaver, Civil Action Number 79-999, were consolidated for trial before this court by the late Judge Daniel Snyder. We have divided this opinion into two parts and will separately address each of these cases. Because the evidence presented at trial and counsels’ subsequent arguments focused predominantly on the allegations contained in the Burney complaint, it is that case upon which we focus our primary attention and to which we turn first. I. Theresa Burney v. Housing Authority of the County of Beaver A.) The Parties The named plaintiffs, Theresa Burney, Sileatha Ferguson, Brenda Jackson, Rose Ann Johnson, Stacey Glover, Arlene Goosby, Gia Flannigan, Joann Powell, and Leila Smith are black women, each of whom was an applicant on a waiting list for placement in one of the Housing Authority’s projects at the time that this lawsuit was filed. These named plaintiffs represent a class defined as “all minority low income individuals who have applied for public housing with Defendants and all minority low income individuals who will apply for public housing with Defendants.” Defendant, Housing Authority, is a public housing authority of the Commonwealth of Pennsylvania. It was established in 1940 pursuant to the “Housing Authorities Law” of Pennsylvania, 35 Pa.Stat.Ann. §§ 1541-64 (Purdon 1980), and in accordance with the United States Housing Act of 1937, 42 U.S.C. §§ 1437-40 (Supp. II 1978). The Housing Authority is authorized to build, operate and maintain public housing for the purpose of “providing safe and sanitary dwelling accommodations for persons of low income.... ” 35 Pa.Stat.Ann. § 1542. The Housing Authority currently owns, operates and manages 1,040 low-rent family housing units in sixteen housing projects situated in seven municipalities in Beaver County, Pennsylvania. Defendant, Commission, is the body charged by the Pennsylvania General Assembly with the responsibility for enforcing the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. tit. 43, §§ 951-963 (Purdon 1964). That Act prohibits, inter alia, racial discrimination or segregation in public housing. On June 3, 1981, we granted the Commission’s motion to substitute the name of its Executive Director, Homer C. Floyd, for that of the Commission itself, as a defendant in this case. Defendant, James F. Tress, at all relevant times, was the Executive Director of the Beaver County Housing Authority, and as such, was empowered by law to administer and manage the Housing Authority’s projects. Defendant, John F. Phillips, at all relevant times, was the Chairman of the Beaver County Housing Authority. B.) Background Before outlining plaintiffs’ claims and the many-sided statutory and constitutional arguments of the parties, it is necessary to set forth in some detail the development and implementation of the challenged Consent Order and Decree, as supported by the record before this court. On August 25,1971, the Commission filed a formal complaint against the Housing Authority charging that the Housing Authority had violated, and was continuing to violate, section 5(h)(1) of the Pennsylvania Human Relations Act, 43 P.S.A. § 955(h)(1), by maintaining housing projects that were segregated by the race of the tenant. The complaint resulted from a Commission evaluation of Housing Authority statistics, which revealed significant disparities in racial composition among the projects it operates. After determining that there was probable cause to credit the allegations contained in the complaint, Commission staff attempted to resolve the disputed matters by settlement and conciliation, as mandated by section 9 of the Pennsylvania Human Relations Act, 43 P.S.A. § 959. The result of these efforts was the execution of a Consent Order and Decree [hereinafter referred to as the Consent Order] between the Housing Authority and the Commission on August 20, 1975. On October 26, 1975, the Consent Order was entered into the official record of the Pennsylvania Human Relations Commission as a Final Order. The parties agreed that the Consent Order was to have the full force and effect of a Commission Order and Decree following a public hearing and that it was to be enforceable under section 10 of the Pennsylvania Human Relations Act. The Consent Order was designed to desegregate the Housing Authority’s low income housing projects as quickly as possible without disturbing the tenants already residing therein. This was to be accomplished through the use of a new tenant selection and assignment procedure. The key feature of the procedure is the creation of a target racial balance for each of the Housing Authority’s family projects and the use of an applicant’s race as a preferential determinant in order to reach and maintain that target balance. More specifically, the Consent Order and the Addendum thereto, which contains a detailed implementation plan, establish the following tenant selection and assignment procedure. Beaver County, wherein all of the Housing Authority’s projects are located, is divided into five geographic districts, in each of which is at least one family project. The district divisions and projects are as follows: District I 1) Linmar Terrace 2) Griffith Heights 3) Linmar Terrace Extension 4) Eleanor Roosevelt Site I 5) Eleanor Roosevelt Site 2 (Elderly) 6) Sheffield Towers (Elderly) District II 1) Economy Village 2) Crestview Village 3) J.F. Kennedy 4) Ambridge Towers (Elderly) District III 1) Morado Dwellings 2) Harmony Dwellings 3) Pleasantview Homes 4) Mt. Washington Apts. 5) Brodhead Apts. (Elderly) District IV 1) Brighton Homes 2) J. Edwards Site 1 3) J. Edwards Site 2 (Elderly) 4) Freedom Apts. Site 1 5) Freedom Apts. Site 2 6) T. Bishop Apts. (Elderly) 7) Gordan Camp Site 1 8) Gordan Camp Site 2 (Elderly) 9) Monacatootha Apts. (Elderly) 10) King Beaver Apts. (Elderly) District V 1) Midcrest Homes 2) Corak Towers (Elderly) The Consent Order establishes a target racial balance for all of the family projects, defined as the “percent of the total units owned, operated or managed by the [Housing Authority] that are occupied by Black families.” Addendum to Consent Order, Exhibit “C,” ¶ l.A. Thus, racial imbalance is defined as “a situation where the percentage of Black or White families in a project is greater than the percentage of Black or White families in the total units owned, operated or managed by the Housing Authority of the County of Beaver.” Consent Order, Exhibit “B,” ¶ 6. The racial balance in a project is improved “whenever the Black/White ratio of any project moves closer to the Black/White ratio of the population of the entire housing authority... .” Id. The Housing Authority is directed to “equalize the racial balance” in its projects by giving priority in all projects to tenants whose move into a particular project would improve the racial balance of the project. In order to comply with this directive, the Housing Authority is required to process applications of all persons for occupancy of any of its dwelling units in the following manner: initially, the Housing Authority must determine the racial balance in each project. If the percentage of black occupied units in a project is greater than the percentage of black occupied units in all of the Housing Authority’s units, then that project has a black racial imbalance and white applicants have priority for placement in that project. Conversely, if the percentage of black occupied units in a project is less than the percentage of black occupied units in the total units owned, operated and managed by the Housing Authority, then that project has a white racial imbalance and black applicants have priority for placement in that project. The Housing Authority must maintain a list showing the racial balance for each of its projects. When a unit becomes available, the Housing Authority must consult the project classification list to determine the racial balance of the project in which the unit is located, and also must determine the district in which the project is located. The Housing Authority then checks the applications file. Applications for housing are to be filed by district in chronological order by race and unit size requirements. “Depending upon the racial imbalance in the project, an appropriate assignment will be attempted on the basis of the applicant’s race.” Addendum to Consent Order, Exhibit “C,” ¶ III.B.l. The Housing Authority must offer the unit first to applicants in the racial group having priority for assignment in the project in which the vacant unit is located, in chronological order and within income and rent paying feasibility. If the applicant to whom the unit is offered refuses to accept the unit, his name is placed at the bottom of the waiting list. If a unit still remains vacant after offering the available unit to all applicants in the first priority category, then the Housing Authority must go outside of the district in which the unit is located and offer it in chronological order to all other members of the racial group that has priority, who qualify for the unit. Persons who refuse a unit outside of their district will not be placed at the bottom of the waiting list should they refuse. Finally, only after offering the unit to all qualified members of the preferred race in all districts may the Housing Authority offer the vacant unit to a member of the nonpreferred group. The Housing Authority admitted at trial that contrary to the express provisions of the Consent Order, it failed to offer units to members of the preferred race outside of the district in which the unit was located. A similar procedure is to be followed for tenant transfers. In other words, the Housing Authority should allow lateral transfer of tenants if it will further racial integration. In order to allow a transfer, the transfers must bring the existing racial imbalance in both projects involved closer to the projected racial balance target figure. The Consent Order made no provision for what was to transpire once the target goal was reached in any given project. How ever, the Housing Authority developed the practice, implicitly approved by the Commission, of maintaining an equilibrium such that if a target balance was reached, a white family moving out was to be replaced with a white family and a black family moving out was to be replaced with a black family. The only permissible exception to the tenant selection and assignment procedure just outlined is in the case of emergency placements. Should an applicant be in need of housing because of fire, flood, or other natural disaster or act of God, relocation due to eminent domain proceedings, legal condemnation by health or building authorities, or eviction, the Housing Authority may place that applicant in any vacant unit without regard to the effect of such placement on the racial balance of the project in which the unit is located, provided however, that no comparable units are available in any other Housing Authority project in which an emergency placement applicant would improve the racial balance. The Consent Order directs the Housing Authority to send documentation of the basis for any and all emergency placements to the Commission within ten days of the date of placement. Although the Housing Authority officials recorded the basis for each emergency placement in their own records, they failed to send the required documentation to the Commission for any of the emergency placements they made. C.) Plaintiffs’ Claims Plaintiffs brought this action against the Beaver County Housing Authority, James F. Tress, John F. Phillips, and their agents, successors in office, and persons acting under their direction. Plaintiffs allege in their complaint, inter alia, that the tenant selection, assignment and transfer procedure adopted by the Housing Authority in the Consent Order violates the United States Constitution, as well as several federal statutes and a legal duty imposed by state law. A synopsis of the four-count amended complaint follows: 1. Count I alleges a deprivation of plaintiffs’ right to be free from racial discrimination in the making of contracts in violation of the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1976), because of the Housing Authority’s use of race as an absolute preference determinant. 2. Count II alleges a deprivation of plaintiffs’ right to be free from racial discrimination in the leasing of real property in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982 (1976 & Supp. IV 1980), because of the Housing Authority’s use of race as an absolute preference determinant. 3. Count III asserts a denial of due process and equal protection in violation of the Fifth and Fourteenth Amendments of the United States Constitution and section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976 & Supp. IV 1980), because of the Housing Authority’s denying or delaying access to public housing based on an applicant’s race and income. In addition, Count III asserts violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d — 4 (1976), Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3631 (1976 & Supp. IV 1980) and various other federal housing statutes and regulations of the Department of Housing and Urban Development (“HUD”). 4. Count IV asserts a pendent state claim for a violation of section 5(h) of the Pennsylvania Human Relations Act, Pa.Stat. Ann. tit. 43, §§ 951-63 (Purdon 1964). The plaintiffs seek both declaratory and injunctive relief: a declaration that the present tenant selection and waiting list procedures violate the various aforementioned laws and an injunction restraining the defendants from using race or income as absolute selection criteria. Plaintiffs also seek a court award of attorneys’ fees in accordance with 42 U.S.C. § 1988. On July 24, 1979, the Pennsylvania Human Relations Commission filed a motion to intervene as a defendant pursuant to Fed. R.Civ.P. 24(a). The Commission sought to protect its “interest in preserving a race conscious remedy for amelioration of the segregative housing patterns found in Defendant Authority’s projects.” IntervenorDefendant’s Pretrial Statement at 4. On August 15, 1979, we granted the Commission’s motion and added it as a defendant in the case. During the course of the trial, several disputes surfaced concerning the meaning of certain provisions of the Consent Order. The major disagreement between the parties to that Order involves the provisions relating to the target racial balance that was established for each of the Housing Authority’s family projects. The Housing Authority contends that the Consent Order establishes a fixed target racial balance of 33% in minority occupied units. The Human Relations Commission, on the other hand, maintains that the Consent Order establishes a fluctuating target racial balance; the black/white ratio of each project must be annually recalculated and the target racial balance must be adjusted accordingly in order to reflect the changes in black/white demand for housing. That there is room for divergent interpretations of the target racial balance system becomes clear when one reads the Consent Order. On the one hand, paragraph 12 of Exhibit B provides that “[t]he Respondent shall initially and annually calculate the Black/White ratio for the total housing authority operated units and the Black/White ratio for each separate project to determine the existence of racial imbalance and the directions of such imbalance in each project.” On the other hand, paragraph l.A. of Exhibit C establishes a target racial balance of 33%. The Commission asserts that the 33% figure reflected the initial calculation, but that pursuant to Exhibit A, that figure was to be adjusted each year following the annual recalculation. The Housing Authority claims that it intended for the goal to be fixed at 33% and understood the Commission to be in accord" because the Commission never indicated to the Housing Authority that its use of a 33% figure each year was incorrect, despite the fact that the Authority sent its figures to the Commission annually and despite the fact that Commission staff had conducted compliance/monitoring sessions at the Authority’s office. In Fox v. HUD, 680 F.2d 315 (3d Cir.1982), the Third Circuit set forth the rules that a district court must follow in dealing with a controversy over the implementation of a consent decree. “[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.” Id. at 319, quoting United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). This rule is consistent with ordinary rules of contract construction that resort to extrinsic evidence is permissible only when the instrument itself is ambiguous. Thus, a district court first must determine whether the consent decree requires extrinsic evidence in aid of its interpretation. If extrinsic evidence is admitted, the ambiguity in the consent order must be treated as a question of fact to be resolved by the fact finder, except where the evidence and resulting inferences are uncontroverted. Fox v. HUD, 680 F.2d at 319. We believe that it is unnecessary for us to discern what the parties intended with respect to the target racial balance, or indeed, whether there was ever even a “meeting of the minds,” because we conclude, for reasons set forth below, that the tenant selection and assignment plan that the defendants established is constitutionally and statutorily infirm regardless of whether the target racial balance is a fixed or a fluctuating percentage. Furthermore, because we strike down the plan, we need not resolve the other disagreements between the defendants concerning some of the less central provisions of the Consent Order. Before proceeding to the merits of the case, the following chart, representing the changes in the racial composition of the Housing Authority’s projects since the inception of the new tenant selection and assignment plan, provides a useful background. As the chart reflects, significant changes in racial composition have occurred in the defendant’s projects, particularly, whether or not by coincidence, after the plaintiffs filed this suit in 1978. District/Project_1975 1976 1977 1978 1979 1980 1981 District I_% Black Family Occupied_ Linmar Terrace (F)__31% 31% 34% 38% 33% 32% 32% Griffith Heights (F)_100 100 100 100 100 100 92 Linmar Terrace Extension 38_45_49_49_49_42_41 E. Roosevelt Apts. (F)_35_40_23 (F& 46_22(F& 37_33 E. Roosevelt Apts. (E)_17_17_E) 11_E) 21_— Sheffield Towers (E)_17_T?_16_15_15_13_— District II_ Economy Village (F)_7_7_8_8_10_24_29 Crestview Village (F)_12 12 10 15 16 28 33 J. F. Kennedy Apts. (F) 16_16_15_16_18_15_15 Ambridge Towers (E)_2_2_2_2_2_2_— District III_ Morado Dwellings (F)_26_15_18_20_18_27_31 Harmony Dwellings (F)_98_98_98_98_98_94_90 Pleasantview Homes (F) 11_15_20_22_23_32_27 Mt. Wash. Apts. (F)_75 72 80 77 80 77 77 Brodhead Apts. (E)_0_0_1_0_1_2 ' — District IV___ Brighton Homes (F)_29_31_31_29_31_31_31_ J. Edwards (F)_18 27 12(F& 31 12(F& 32 32 J. Edwards (E)_3_0_E) 0_E) 0_— Freedom Apts. (F)_17_43_40 (F& 43__25 (F& 40_43 District/Projeet_1975 1976 1977 1978 1979 1980 1981 District I_% Black Family Occupied_ Freedom Apts. (E)_7_10_E) 6_E) 3_— T. Bishop Apts. (E)_3_2_3_3_3_3_— Gordon Camp Site 1 (F) 33 33 15(F& 26 16(F& 37 33 Gordon Camp Site 2 (E)_3_6_E) 6_E) 7_— Monacatootha Apts. (E)_0_0_0_0_0_0_— King Beaver Apts. (E)_3_3_3_3_3_3_— District V_ Midcrest Homes (F)_57 50 48 50 55 52 43 Corak Towers (E)_28_26_28_26_26_24_ I.) Constitutional and Statutory Adequacy of the Defendants’ Tenant Selection and Assignment Plan This court has the unique perspective of sitting in review on a plan that was devised seven years ago and measuring its continuing vitality under constitutional and statutory standards that have undergone considerable change and refinement during the intervening seven years. The plaintiffs have advanced several separate legal theories which they claim establish liability against all of the defendants under the facts of this case. The heart of plaintiffs' action, however, is in their claims under the equal protection clause of the fourteenth amendment and under Title VIII of the Civil Rights Act of 1968. Although plaintiffs’ claims under the various Civil Rights Statutes, 42 U.S.C. §§ 1981, 1982, and 2000d are certainly alternative and independent bases for relief, see, e.g., Marable v. H. Walker & Associates, 644 F.2d 390, 395 n. 16 (5th Cir.1981) (section 1982); Wheatley Heights Neighborhood Coalition v. Jenna Resales Co., 447 F.Supp. 838, 844 (E.D.N.Y.1978) (section 1981), they do not add materially to plaintiffs’ contentions in the circumstances of this case. See id. at 843-44. Accordingly, we will limit our discussion hereinafter to plaintiffs’ Title VIII and equal protection clause claims. We turn first to plaintiffs’ constitutional challenge to the consent order. 1. Equal Protection Claim Under the defendants’ tenant selection and assignment plan, as discussed earlier, an applicant’s race is the key factor in his selection and placement. When a project is racially imbalanced, as that term is defined in the consent order, an applicant, will be placed into a vacant unit only if his placement will improve the racial balance in that project. Once the target balance is reached in a particular project, an applicant will be placed into a vacant unit there only if his race is the same as that of the vacating tenant. Thus, the defendants’ plan plainly entails explicit use of racial classifications. It is now well-settled that the United States Constitution is not colorblind in the absolute sense that all racial classifications are per se invalid. See United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). Nevertheless, the introduction of numerical formulas allocating limited public housing facilities on the basis of race necessarily raises substantial and troubling constitutional concerns. This case requires us to decide whether the use of racial criteria, in the context presented, is a constitutionally permissible means for achieving a legitimate objective and does not violate the equal protection clause of the fourteenth amendment. “In the history of [the Supreme] Court and this country, few questions have been more divisive than those arising from governmental action taken on the basis of race.” Id. at 516, 100 S.Ct. at 2794 (Powell, J., concurring). We begin our equal protection analysis by noting that the defendants do not dispute that decisions based on race by state housing authorities and state administrative agencies are reviewable under the fourteenth amendment. See Avery v. Midland County, 390 U.S. 474, 479-80, 88 S.Ct. 1114, 1117-18, 20 L.Ed.2d 45 (1968) (equal protection clause reaches exercise of state power however manifested, whether exercised directly or through subdivisions of state). Nor do the parties disagree as to the appropriate level of judicial review to which we should subject defendants’ tenant selection and assignment plan. “It is well-settled that state actions which restrict fundamental rights or which distinguish between individuals solely on the basis of race are regarded as inherently suspect and subject to strict judicial scrutiny.” Bakke, 438 U.S. at 291, 98 S.Ct. at 2748 (opinion of Powell, J.), 357, 98 S.Ct. at 2782 (Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part) (hereinafter cited as joint separate opinion); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). No fundamental right is involved in this case. See Schmidt v. Boston Housing Auth., 505 F.Supp. 988, 996 (D.Mass.1981) (“[T]here is no federally protected right to low income public housing.”); Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir.1974). Rather, it is the government’s denial of a benefit solely on the basis of race that triggers strict scrutiny analysis. Defendants here do not argue, as have some defendants, that a less exacting standard of review is called for because of the allegedly “benign” nature of its plan. In any event, we regard any state action involving purposeful racial discrimination, however benign, against members of a minority group, as requiring analysis under the strict scrutiny standard. Cf. Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 717 (2d Cir.1979) (“Whatever the appropriate standard of review for so-called benign race-conscious activity, compare [Bakke ], 438 U.S. at 299, 98 S.Ct. at 2752 (opinion of Mr. Justice Powell) with id. at 356-62, 98 S.Ct. at 2781-82 (dissenting opinion of Mr. Justice Brennan, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun), we believe that the most exacting form of review is called for when a plan arguably burdens or stigmatizes individual members of a minority group even if the plan benefits other members of the same group.” The disagreement among the parties stems from the divergent results they reach after applying strict scrutiny analysis to the plan at issue. Plaintiffs argue that the plan cannot survive that analysis. They maintain that the defendants’ policies and practices constitute an impermissible intentional discrimination against black applicants to public housing projects because .pursuant to the defendants’ plan, an otherwise qualified applicant (i.e., one who is entitled to placement based on nonracial criteria such as date of application and family size) can be denied access to one of the defendant’s projects solely on the basis of race, in order to maintain the defendants’ racial quota percentages. These black applicants who are denied access to housing are not offered alternative placements. Plaintiffs recognize that recent Supreme Court decisions have allowed race-conscious action by governmental and private entities, but argue that the actions challenged in those cases are distinguishable from those in the case at bar. Finally, to the extent that the defendants argue that integrated housing benefits blacks and whites alike, plaintiffs point out that the fourteenth amendment protects individual rights and, therefore, precludes discrimination against individual blacks in order to benefit either the racial group as a whole or society as a whole. The Housing Authority, on the other hand, argues that its use of racial classifications fully comports with equal protection constitutional law. The Housing Authority maintains that it has a compelling state interest in promoting and maintaining integrated housing in its projects, and that absent a quota restricting the percentage of black families permitted to reside in each of its projects, “tipping” would occur leading to the complete resegregation of the projects. In addition, the Housing Authority argues that it lacks the requisite discriminatory intent for a finding of an equal protection violation. The position of the Pennsylvania Human Relations Commission falls somewhere in between. The Commission contends that the race-conscious tenant selection plan was constitutional when it was adopted in 1975. Nonetheless, the Commission asserts that it “is not wedded to continued use of the race-conscious assignment procedures set up under the Consent Order” and, in fact, “recommends the abolition of all tenant assignment policies which on their face or by their application may exclude black applicants from projects.. .. ” Pennsylvania Human Relations Commission Post-Trial Brief at 10, 13. In other words, the Commission now recommends the abolition of the very plan that it helped to create. Our task, therefore, is to apply the strict scrutiny test to the defendants’ plan in order to determine its constitutionality. Under the strict scrutiny test, “a government practice ... which contains ‘suspect classifications’ ... can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available.” Bakke, 438 U.S. at 357, 98 S.Ct. at 2782 (joint separate opinion). See San Antonio Independent School District v. Rodriguez, 411 U.S. at 16-17, 93 S.Ct. at 1287-1288; Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Traditionally, courts have deemed the government interest in not burdening racial minorities so important that virtually no competing government interests have been found sufficient to justify race-conscious action. Thus, before courts recently began to consider so-called “benign” race-conscious actions, application of strict scrutiny analysis to a racial classification almost always led to its invalidation. The only exceptions were the now famous Japanese imprisonment cases during World War II. See Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). These results led one constitutional scholar to characterize the strict scrutiny test as “strict in theory and fatal in fact.” Gunther, The Supreme Court, 1971 Term — Forward: in Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972). In an equal protection challenge, application of a level of judicial scrutiny should amount to more than an idle invocation of a slogan. We recognize that the use of racial classifications, even in the context of “benign” discrimination, calls for the most exacting form of judicial review. However, because an integration maintenance plan seeks the desirable goal of residential integration through potentially burdensome restrictions on black entry into low income housing projects, we believe that the plan should be reviewed under a standard that combines the most exacting level of scrutiny with the possibility that a compelling interest may be found. Thus, our review in the instant case will be strict and searching, not fatal in fact, merely because of its application. See Bakke, 438 U.S. at 362, 98 S.Ct. at 2784 (joint separate opinion). Guided by these principles, we are ready to examine the merits of the arguments advanced by plaintiffs in support of their contention that the Housing Authority’s tenant selection and assignment plan violates the fourteenth amendment to the United States Constitution, and the merits of defendants’ arguments to the contrary. We must address at the outset the Housing Authority’s argument that the plaintiffs have failed to make out a claim for relief under the equal protection clause of the fourteenth amendment because the Housing Authority was acting to promote integration in its projects and therefore lacked the discriminatory intent required for a finding of an equal protection violation. We don’t believe the Housing Authority correctly perceives the nature of the equal protection intent requirement. The Housing Authority is correct in its assertion that “purposeful discrimination is the ‘condition that offends the Constitution,’ ” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979) (citation omitted), because the “central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). “Thus, when facially neutral [action] is subjected to equal protection attack, an inquiry into intent is necessary, to determine whether the [action] in some sense was designed to accord disparate treatment on the basis of racial considerations.” Washington v. Seattle School District No. 1, -U.S.-,-, 102 S.Ct. 3187, 3199, 73 L.Ed.2d 896 (U.S.1982). See also Bakke, 438 U.S. at 289 n. 27, 98 S.Ct. at 2747 n. 27 (opinion of Powell, J.) (“This is not a situation in which the classification is on its face racially neutral, but has a disproportionate racial impact. In that situation, plaintiff must establish an intent to discriminate. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 562-63, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1972).”) In contrast to the Arlington Heights and Washington v. Davis cases, both of which involved challenges to classification facially unrelated to race, the plan at issue here involves a purposeful, acknowledged use of racial criteria. “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. at 272, 99 S.Ct. at 2292 (emphasis added). Cf. Bakke, 438 U.S. at 289 n. 27, 98 S.Ct. at 2747 n. 27 (J. Powell distinguished the situations in Arlington Heights and Washington v. Davis from Bakke because “the University’s special admissions program involvefd] a purposeful, acknowledged use of racial criteria.”) In two cases dealing with mandatory school busing, the Supreme Court recently reaffirmed that traditional strict scrutiny principles apply to situations in which the defendant employs a classification based on race. See Crawford v. Board of Education of Los Angeles,-U.S. -,-, 102 S.Ct. 3211, 3217, 73 L.Ed.2d 948 (U.S.1982) (“[i]f Proposition I employed a racial classification it would be unconstitutional unless necessary to further a compelling state interest.”); Washington v. Seattle School District No. 1,-U.S. at-, 102 S.Ct. at 3199. Given that the explicit use of racial discrimination, whether or not undertaken for benign purposes, triggers strict scrutiny analysis, we are now ready to apply that analysis to the plan before us. In response to plaintiffs’ equal protection challenge, the Housing Authority asserts that it has a compelling interest in promoting and maintaining integrated housing in its low-income housing projects. Defendant argues that its use of a tenant selection and assignment plan that includes a maximum quota limiting the percentage of black occupied units in each of its projects is necessary in order to prevent the occurrence of a sociological phenomenon known as “tipping.” The tipping principle suggests that white families will abandon and avoid a particular neighborhood after the black percentage of the population exceeds a certain point, usually assumed to be somewhere between twenty-five and fifty percent black. See generally Goering, Neighborhood Tipping and Racial Transition: A Review of Social Science Evidence, 44 Am. Inst, of Planners J. 68 (1978); Ackerman, Integration for Subsidized Housing and the Question of Racial Occupancy Controls, 26 Stan.L.Rev. 245, 251-60 (1974). For all practical purposes, once the tipping dynamic runs its course, a neighborhood loses its integrated character and becomes predominantly black. A racial access quota establishes an upper limit on the percentage of blacks permitted to reside in a particular project, a limit set just short of the tipping point. The Housing Authority maintains that the use of a racial access quota will effectively prevent resegregation by keeping the number of blacks just below the point at which white exodus from and/or white refusal to reside in particular projects is expected to occur. The Supreme Court has expressly recognized the importance to a community of promoting stable, racially integrated housing, because “substantial benefits flow to both whites and blacks from interracial association ... . ” Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 94-95, 97 S.Ct. 1614, 1619-20, 52 L.Ed.2d 155 (1977). The gains from using “benign” housing discrimination in order to promote integration are tempered, however, by two types of injuries that are inflicted upon blacks. First, a quota device necessarily infringes on the interests of those black individuals denied access to a particular project solely because of their race. Second, blacks may be stigmatized by the implication of inferiority that accompanies government policies restricting minority access. Integration maintenance, with its express purpose to limit the percentage of black residents, may be explained only as a recognition of the reality of white flight, a phenomenon based on white prejudice. Consequently, some black individuals may perceive benign quotas as statements by the white majority of the undesirability of blacks. One court has observed, however, in the context of a school desegregation case, that “[although white fears about the admission of minority students are ugly, those fears cannot be disregarded without imperiling integration across an entire system.” Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 720 (2d Cir.1979). But the two harms just outlined are especially troubling because they are inflicted upon individual members of a historically disadvantaged minority. “It is settled beyond question that the ‘rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.’ ” Bakke, 438 U.S. at 289, 98 S.Ct. at 2747 (opinion of Powell, J.), quoting Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948). This personal rights view of the fourteenth amendment, i.e., that the fourteenth amendment guarantees the right not to be treated differently on the basis of race, is necessarily implicated whenever a racial access housing quota is used. The question raised by the Housing Authority’s use of its integration maintenance plan, therefore, is whether an individual black may be made to suffer exclusion in an effort to prevent resegregation of the system. In other words, is the Housing Authority’s effort to promote a more lasting integration in its public housing projects a sufficiently compelling purpose to justify excluding some minority housing applicants from units to which they would otherwise have access were it not for the defendants’ race-conscious tenant selection and assignment plan? “The constitutional issue thus posed is not unfamiliar in a democratic society. The greatest good for the greatest number is a concept deeply embedded in our history.” Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 708 at 719. In support of its tenant selection and assignment plan, defendants point out that several courts have held that under some circumstances blacks may be required to bear burdens in order to advance a societal interest. In one line of cases, the affirmative action, public school cases, courts have approved of the use of student assignments based on race as a means of achieving or preserving school integration. Defendants point, for example, to the case of Johnson v. Board of Education of Chicago, 604 F.2d 504 (7th Cir.1979). In that case, the plaintiffs challenged as unconstitutional a desegregation plan voluntarily adopted by the Board of Education of the City of Chicago. Under the challenged plan, separate quotas for the enrollment of blacks and whites were set as ceilings on the number of white children and the number of black children who could be admitted to these two schools. According to the Board of Education, the purpose of the quotas was to curb a trend of decreasing white enrollment and increasing black enrollment in those schools which might eventually result in “tipping” them into two predominantly black, segregated schools. Because the quotas for enrollment of blacks were set at a lower percentage level than that at which black students ordinarily would have applied and been admitted, the effect of the quotas was to exclude some blacks from admission to these schools. The quotas applicable to white students did not have this effect. In response to the plaintiffs’ challenge, the district court upheld the Board of Education’s plan. The United States Court of Appeals for the Seventh Circuit affirmed. The circuit court noted that the record was uncontroverted that prior to the implementation of the plans, the attendance areas for the two high schools were rapidly changing in residential occupancy from white to black and there was a trend in enrollments toward segregated student bodies. The court concluded that the Board of Education could properly consider “the unpleasant realities of demographic change and the phenomenon of ‘white flight’.... ” 604 F.2d at 516. The court found that the state interest in promoting integration at the two schools and communities while at the same time affording all students residing in those attendance areas a viable opportunity to attend high school in an integrated setting to be compelling and that the use of racial quotas was necessary to achieve that state interest. Similarly, in Parent Association of Andrew Jackson School v. Ambach, 598 F.2d at 705, the court approved in principle a voluntary desegregation plan that, to quiet white fears that neighborhood schools would tip, placed a 50% maximum quota on the number of black students attending any formerly white school. The importance of providing most students with the opportunity for school integration justified the use of maximum racial quotas that limited the access of some black students to racially mixed schools. We note as an initial matter that since the time that the parties submitted their post trial briefs in connection with this case, the Supreme Court has vacated the judgment of the court of appeals and remanded the case to the district court. Johnson v. Board of Education of Chicago, - U.S. -, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982). Therefore, the Johnson opinion, upon which defendant relies, contains no precedential value. In any event, we note that there is a key distinction between the use of racial access quotas in the context of school desegregation cases and their use here that is fatal to any analogy. In the school desegregation cases, in spite of the fact that black choices are limited because of race, no black person is totally denied access to a government benefit because of race. For example, the plan at issue in Johnson provided bus transportation to primarily white or integrated high schools for those students who were not admitted to other high schools because of the quota system. Similarly, in Jackson, every black student was able to attend some school, albeit not necessarily an integrated school. In the case at bar, a person who is denied access to a particular vacant housing unit because he is black is not, at that time, offered alternative housing. As long as housing alternatives are not provided, the constitutional personal rights problem is not avoided. The other case upon which the Housing Authority relies is Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973). In that case, the Second Circuit found that the value of residential integration outweighed the costs of limited access and stigma resulting from government efforts to control white flight, and approved in principle a housing authority plan that imposed a maximum quota on minority occupancy of a public housing development in order to prevent tipping. The plaintiffs, predominantly non-white persons who had been relocated from the site of a new public housing project and the surrounding urban renewal area, challenged the Housing Authority’s assignment practices which denied these households first choice for the units in the public housing project erected on the site where they had formerly lived. The Housing Authority had committed most of the apartments to white renters in disregard of its own administrative regulation and its own prior representation to the plaintiffs that they would have first priority for those apartments. The plaintiffs sued the Housing Authority and HUD to prevent the rental of those units until all those displaced households had been accommodated, and to compel HUD to ensure that the Housing Authority would follow its regulations. The Otero defendants alleged that the racial balance of the community was at a precarious point. They asserted that the effect of adherence to the Housing Authority’s regulation would be to create a nonwhite “pocket ghetto” that would operate as a racial “tipping factor” causing white residents to take flight and leading eventually to the resegregation of the community. The district court held that although the Housing Authority was under a constitutional and statutory duty to foster and maintain racial integration, this duty could not as a matter of law be given effect where to do so would be to deprive a nonwhite minority of low cost public housing that would otherwise be assigned to him under the Authority’s regulation. The Second Circuit reversed. The circuit court held that the Housing Authority’s affirmative obligation to foster racial integration under Title VIII could be considered paramount in a situation where tipping was imminent even if this entailed the immediate denial of particular housing to minorities. In discussing the Housing Authority’s affirmative duty under Title VIII, the Second Circuit said that Congress’ desire in providing fair housing .. . was to stem the spread of urban ghettos and to promote open, integrated housing, even though the effect in some instances might be to prevent some members of a racial minority from residing in publicly assisted housing in a particular location. The affirmative duty to consider the impact of publicly assisted housing programs on racial concentration and to act affirmatively to promote the policy of fair, integrated housing is not to be put aside whenever racial minorities are willing to accept segregated housing. 484 F.2d at 1134. On the basis of this interpretation, the court held that the Housing Authority could limit the number of apartments to be made available to minority group members where it could show that “such action [was] essential to promote a racially balanced community and to avoid concentrated racial pockets that [would] result in a segregated community.” Id. at 1140. The circuit court agreed with the district court that the Housing Authority had both a constitutional and a statutory duty to act affirmatively to achieve integration in housing. Id. at 1133. Accordingly the circuit court declared that the Housing Authority was “obligated to take affirmative steps to promote racial integration even though this may in some instances not operate to the immediate advantage of some non-white persons.” Id. at 1125. The Second Circuit based its decision primarily on its perception of the affirmative duties imposed on HUD,' and through HUD upon local housing authorities, pursuant to Title VIII. The court provided little constitutional analysis or consideration of the constitutional implications of its decision, and therefore provides us with little constitutional guidance. First, there is no precedent for the court’s conclusion that the government has a constitutionally prescribed affirmative action obligation to achieve integration in public housing. In the field of public education, another area in which the government provides a service which involves serious integration issues, the Supreme Court has made clear that there is no affirmative duty to integrate schools in the absence of a finding of unconstitutional segregation. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971); Dayton Board of Education v. Brinkman, 433 U.S. 406, 417, 97 S.Ct. 2766, 2774, 53 L.Ed.2d 851 (1977). “[E]ven where desegregation is ordered because of a constitutional violation, the Court has never held that racial balance itself is a constitutional requirement. And even where there have been segregated schools, once desegregation has been accomplished no further constitutional duty exists upon school boards or States to maintain integration.” Washington v. Seattle School District No. 1,-U.S. at-, 102 S.Ct. at 3205 (Powell, J., dissenting). See also Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). Second, we don’t believe that the Otero opinion adequately addresses the constitutional personal rights issue raised by restrictions on minority access to subsidized housing. The court disposes of any personal rights question by merely asserting that the duty to integrate is not a “one-way street” and that some nonwhite persons may have to suffer disadvantages from the implementation of an integration ceiling. 484 F.2d at 1125. The defendants finally rely on recent Supreme Court decisions addressing race-conscious actions by governmental and private entities to support their use of a race-conscious tenant selection and assignment plan that includes a racial access quota. In three decisions within the past several years, the Supreme Court has focused on constitutional and statutory claims by white persons who were denied benefits afforded minorities in the interest of redressing past discrimination. In the first of these, Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), a white applicant to a state medical school brought suit challenging the school’s refusal to admit him despite the fact that he had academic qualifications that were superior to those of several minority students who were admitted through a special admissions program that reserved sixteen percent of the openings in each class for minorities. Justice Powell, in an opinion announcing the judgment of the Court, stated that Title VI of the Civil Rights Act of 1964 proscribed only those racial classifications that would violate the equal protection clause. Id. at 287, 98 S.Ct. at 2746. Applying the equal protection doctrine to the university’s racial quota system, Justice Powell held it unconstitutional, emphasizing its severe infringement on personal rights. Id. at 320, 98 S.Ct. at 2763. Justice Powell drew a distinction between the Davis quota and the busing of children from a neighborhood school to a comparable school in another neighborhood to effectuate a desegregation decree. He found that [Bakke’s] position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for [Bakke] to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission and may have deprived him altogether of a medical education. 438 U.S. at 300 n. 39, 98 S.Ct. at 2753 n. 39 (opinion of Powell, J.) The Brennan-group opinion, including Justices Brennan, White, Marshall, and Blackmun, concurred in Justice Powell’s judgment that Title Vi’s prohibitions are coextensive with the equal protection clause, but differed on the substantive interpretation of the appropriate constitutional principles to be applied. They opined that strict scrutiny analysis is appropriate only when the chosen classification burdens a minority possessing “traditional indicia of suspectness,” such as a history of unequal treatment, and would apply a less exacting standard of review to benign remedial discrimination against whites, requiring only that the program be substantially related to the achievement of an important government objective. Id. at 356-62, 98 S.Ct. at 2781-84. Justice Stevens, joined by Justices Burger, Stewart, and Rehnquist, interpreted Title VI as prohibiting the Davis quota program, making it unnecessary to consider the constitutional issues. Id. at 412, 98 S.Ct. at 2810 (Stevens, J., concurring in part and dissenting in part). One year after the Bakke decision, the Supreme Court once again faced the question of the legality of a quota system. In United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Supreme Court approved a voluntary affirmative action plan, jointly established by an employer and a union, which allocated at least 50% of the openings in in-plant craft training programs for black employees. Plaintiff, a white male, had instituted a Title VII action protesting his exclusion from the training program in favor of black employees with less seniority. The Supreme Court defined the issue narrowly: “The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the [instant] plan.” Id. at 200, 99 S.Ct. at 2725 (emphasis in original). A majority of the Court found that although the language of Title VII appeared to proscribe the conduct engaged in by the employer and union, it was never intended to prohibit private and voluntary affirmative action aimed at correcting traditional segregation. Id. at 203-209, 99 S.Ct. at 2726-2730. In reaching its decision, the Court found salient the following features of the plan: that it did not unnecessarily trammel the interests of white workers, that it did not create an absolute bar to the advancement of white workers, and that the plan was temporary and was not intended to maintain racial balance, but rather would end as soon as the percentage of black skilled craft workers approximated the percentage of blacks in the local labor force. Id. at 208-209, 99 S.Ct. at 2729-2730. The third case, Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d’ 902 (1980), involved a challenge- to the Public Works Employment Act of 1977’s directive that ten percent of federal funds appropriated for local public works be reserved for contracts with minority controlled businesses. Chief Justice Burger, joined by Justices White and Powell, held the set-aside provision constitutional. Finding that Congress had before it abundant evidence of the lack of effective participation by minorities in public contracting, the Chief Justice first concluded that the legislation’s remedial objectives were within the power of Congress. He then carefully examined the means Congress chose to assist minority contractors to assure that the program was “narrowly tailored to the achievement of that goal.” Id. at 480, 100 S.Ct. at 2775. Justice Marshall, joined by Justices Brennan and Blackmun, also approved the measure. They applied the analysis that Justice Marshall articulated in Bakke, i.e., that racial classifications disadvantaging nonminority groups in order to remedy present effects of past discrimination against minorities are to be upheld if they are substantially related to the achievement of those remedial objectives. Id. at 519, 100 S.Ct. at 2795. Justice Powell issued a separate concurring opinion that applied the analysis set forth in his Bakke opinion. He reasoned that Congress had made sufficient findings of past discrimination in the construction industry to support a compelling government interest in redressing that discrimination. With respect to the means employed to achieve that interest, Justice Powell concluded that Congress is endowed with a measure of discretion in choosing a remedy, as long as the relief chosen is “equitable and reasonably necessary to the redress of identified discrimination.” Id. at 510, 100 S.Ct. at 2791. He found that the ten percent set-aside provision was a prompt method of offering much needed experience to minority firms, temporary in nature, closely related to the percentage of minority contractors, and relatively limited in effect on third parties. Consequently, he voted to uphold the provision. These three Supreme Court cases do little to advance defendants’ cause. There are significant distinctions between the plan at issue here and those challenged in Bakke, Weber, and Fullilove. Each of those cases involved the validity of a “floor” or “access” quota in order to increase or ensure minority enrollment or participation. In contrast, the instant case involves the use of a “ceiling” or “integration” quota, which is used to limit minority enrollment and participation. There are troubling aspects of ceiling quotas that do not arise in the context of access quotas. First, whereas the affirmative action plans in Bakke, Weber, and Fullilove achieved their goals by infringing to some extent on the interests of white persons, the integration maintenance plan at issue here infringes on the interests of substantial numbers of black individuals. Justice Brennan viewed “benign quotas” only as those that prefer individual minorities at the expense of whites in order to compensate for societal discrimination. Bakke, 438 U.S. at 361-62, 98 S.Ct. at 2784 (joint separate opinion). Second, to the extent that any of the Justices have stated or implied that racial preferences and exclusion are permissible, they have done so only where those preferences and exclusions serve remedial purposes after a finding by a governmental body (competent to make such a finding) that prior discrimination existed. To the extent that the defendants’ tenant selection and assignment plan acts as a floor to increase minority access to predominantly white housing projects, it serves a remedial purpose. However, when it operates as a ceiling quota for integration maintenance purposes, it has gone beyond its remedial purpose. In Weber, the Supreme Court emphasized the fact that the affirmative action plan at issue there was “a temporary measure; it [was] not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.” 443 U.S. at 208, 99 S.Ct. at 2729. And, as noted earlier, the Supreme Court has made clear that at least in the school systems, racial balance is not constitutionally required and once desegregation has been accomplished, the government has no further duty to maintain integration. Washington v. Seattle School District No. 1,-U.S. at-, 102 S.Ct. at 3205. Thus, the various Supreme Court decisions approving of the use of remedial quotas to ensure minority participation are not compelling precedent for the Housing Authority’s use of a ceiling quota that would have the effect of limiting minority participation. In addition, the Supreme Court decisions upon which defendants rely, in fact, contain a good deal of dicta indicating that the Court might not be sympathetic to the use of benign ceiling quotas. For example, both the Powell and Brennan-group opinions in Bakke suggest that the Constitution would not permit an affirmative action program that places a burden on an individual in order to advance the societal interests of that person’s ethnic or racial group. 438 U.S. at 298, 361, 98 S.Ct. at 2752, 2784. Justice Powell, emphasizing the personal or individual nature of consti