USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1279

ALFRED RASO, ET AL.,

Plaintiffs, Appellants,

v.

MARISA LAGO, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Selya, Boudin and Stahl,

Circuit Judges.
______________

____________________

Chester Darling for appellants.

_______________
Saul A. Schapiro with
_________________

whom Nina F. Lempert, Thomas Bhisitk

_________________ _______________

Rosenberg & Schapiro, Merita Hopkins, Corporation Counsel,

_____________________ _______________

Kevin
_____

McDermott
_________

and Amanda P. O'Reilly, Assistant Corporation Counsel, C

__________________

of Boston

Law Department, were

Director

of

the

Boston

Redevelopment

Redevelopment Authority, Thomas

Boston,

Victoria L. Williams,

on briefs for appellees

Authority,

A. Menino, Mayor
Director of

the

Marisa La
the

Bos

of Boston, City
Boston Fair

Hous

Commission, Boston Fair Housing Commission, Sandra Henriquez, Direc

of the Boston Housing Authority and Boston Housing Authority.

Rudolph F. Pierce
___________________

with

whom

Fanikos, Goulston & Storrs, P.C.,

_______ _______________________
and

Krokidas & Bluestein were

_____________________

President
Square

of Keen

as Trustee

of the

on brief

for Robert

and as

Keen Development

Lowell Square Nominee

Affairs, Inc., Lowell

Square

Cooperative Limited

Corp.,

the Low

Reverend Michael
Affairs, Inc.,

Trust, Planning

Square Associates Joint

Partnership,

H. Kuehn,

Trustee of

the Planning Office for Urban

Urban

David
______

Richard M. Bluestein, Paul Holtz

____________________ __________

Development Corp.,

Nominee Trust,

Groden, Director of

Lynne Alix Morrison,

_____________________

Venture, Low

Mark Maloney,

Maloney Properties, Inc., and Maloney Properties, Inc.

Office

President

Susan M. Poswistilo, Assistant United

___________________
Donald K. Stern,
_______________

United States Attorney,

States Attorney, with

was on brief

for Henry

Cisneros, Secretary of the Department of Housing and Urban Developm

and Department of Housing and Urban Development.

____________________

January 27, 1998

____________________

BOUDIN,

Circuit Judge.
_____________

The plaintiffs in this case are

former residents of Boston's Old

relocate when their

urban

them

renewal.

They

West End who were forced to

homes were taken

by eminent domain

claim that Massachusetts

to first preference for tenancy

for

law entitles

of all new residential

units built on the land, and that they are

being denied this

preference in a new development called West End Place because

most

former

West

Enders are

white.

The

district judge

dismissed the complaint, leading to this appeal.

The background facts

are undisputed.

Housing

Boston

Redevelopment Authority ("the BRA"),1 prepared a plan

urban

renewal of

Boston's

neighborhood lying just

approved

displacing

over

forerunner

Old

to

the current

West End,

north of Beacon Hill.

as required under

the BRA ordered

the

1956, the

Boston

for

Authority,

In May

The plan was

Massachusetts law, and

a taking by eminent domain of

three

downtown

thousand

in 1958,

a large area,

households

of

diverse

heritages, but including few African Americans.

The

developer,

BRA executed

lease

agreement

with

private

Charles River Park, Inc. ("Charles River").

Over

the next ten years, Charles

West

End

and

built

River razed buildings in the Old

offices,

condominiums,

and

luxury

____________________

1The

BRA is

Massachusetts
relieve

an entity
to

housing

established

undertake
shortages.

by the

urban renewal
See
___

Collins
_______

Brookline, 325 Mass. 562, 564-66 (1950).

_________

-3-3-

Commonwealth of
projects
v.

and to

Selectmen of
____________

residential

units.

nonresidential or

The

new

buildings

so expensive that

were

very few of

either

the former

West Enders could afford to occupy them.

In 1970, the BRA terminated Charles River as the project

developer

and,

development

1986,

solicited

proposals

for

the

of Lowell Square, located at the intersection of

Lomasney Way and

undeveloped

submitted

in

Staniford Street, the only

section of

by

the

Partnership (the

the Old

Lowell

"developer")

remaining large

West End.

Square

proposal was

Cooperative

to build

new

Limited

development

called West End Place at Lowell Square.2

The

BRA

redevelopment

eventually

contract.

awarded

the

One restriction

developer

in

the

the agreement

between

the BRA

and

the developer

mirrors a

provision of

Massachusetts law requiring the BRA to obligate the developer

as follows:

(c)

to give preference in the selection of tenants

for dwelling

units built

families displaced
and renewal

in the

project area

therefrom because

activity who

to

of clearance

desire to

live in

such

dwelling units and who will be able to pay rents or

prices

equal

families for

to

rents

or prices

similar or comparable

charged

other

dwelling units

built as a part of the same redevelopment; and

(d) to

comply with

such other

deemed

necessary to carry out the purposes of this

chapter, or requirements of

conditions as

are

federal legislation or

____________________

2The

partnership later

addition,

the

underwent

complaint

individuals associated

names other

with it.

referred to as "the developer."

For

name

change

private

and,

in

entities and

convenience, all

are

-4-4-

regulations

under

which

contributions have been

loans,

grants

made or agreed to

or

be made

to meet a part of the cost of the project.

Mass. Gen. Laws ch. 121B,

The

BRA also required

with former West Enders in

end,

49 (1986).

that the developer

work closely

developing the property.

a number of former West

To that

Enders formed the Old West End

Housing Corporation.

signed a

participation agreement, which stated,

that former West

purchase

This nonprofit entity and the developer

Enders would have

or rental of

inter alia,
__________

first preference in

residential units in

the

West End Place,

subject to applicable local, state, and federal laws.

The

developer sought out numerous sources of financing,

including government funding from

agencies.

In

particular, the federal Department

and Urban Development

for

local, state, and

of Housing

("HUD") funded a grant of $2.5 million

construction, and it

also committed $7

million in rent

subsidies for the low-income units in West End Place.

U.S.C.

1437f (1994).

these funds were

federal

See 42
___

Like most federal housing assistance,

contingent on compliance with

federal fair

housing requirements.

One

such requirement

federal housing funds

to attract

pertinent

See 24 C.F.R.
___

organizations,

developer recipients

must carry out an

minority, as

regulation

is that

1.5, 5.105 (1997).

well as

assurances

of

-5-5-

affirmative program

majority, applicants;

contemplates

of

mailings

to

nondiscrimination,

the

minority

and

like

measures.

Each applicant

"affirmative fair housing

secure its approval by HUD.

In addition,

based

on a

HUD is

finding that

obligations

is

required

The

set forth

marketing plan" on a

See 24 C.F.R.
___

subject to

HUD had

its

HUD form and

200.620 (1997).

a 1991

consent decree

failed to

meet statutory

to ensure that the minority population of Boston

had equal access to public housing.

Kemp, No.
____

to

NAACP, Boston Chapter v.

_____________________

78-850-S (D. Mass. Mar. 8, 1991) (consent decree).

consent

decree

provides

that

all

Boston

area

HUD

affirmative fair housing marketing plans "shall have as their

goal

and measure

of

success the

achievement

of a

racial

composition, in HUD-assisted housing located in neighborhoods

which

are

predominantly

white, which

reflects

composition of the City [of Boston] as a whole."

In

plan,

preparing

the

statutory

its

developer

affirmative

attempted

obligation of a

the racial

Id. at 2.3
___

fair housing

to reconcile

marketing

the

first preference for

explicit

former West

Enders with HUD's consent-decree goal of a tenancy reflecting

the makeup of the City of Boston.

percent

of

Boston's

population,

Minority races made

but

according

to

up 41

HUD's

____________________

3The consent decree ended lengthy litigation,

an

appeal

to

this

integrated housing.

court,

over

HUD's

which included

duties

to

foster

See NAACP, Boston Chapter v. Pierce, 624

___ _____________________
______

F. Supp. 1083 (D. Mass. 1985), vacated and remanded, NAACP v.

____________________ _____
Secretary

of Hous.

& Urban

Dev.,

817 F.2d

149 (1st

Cir.

__________________________________
1987), on remand, NAACP, Boston Chapter v. Kemp, 721 F. Supp.
_________ _____________________
____
361 (D. Mass. 1989).
did

The decree provided that its provisions

not "constitute"

and

should not

be

"construed as"

quota.

-6-6-

estimate, only

HUD

about 2

indicated that it

former

West Enders

as

percent of the

former West

viewed an unqualified

contrary

to

federal

Enders.

preference for

fair

housing

requirements and the consent decree.

The developer, the government agencies, and the Old West

End Housing

The

Corporation submitted

mediator,

Massachusetts,

former

proposed that

the matter to

United

States

former West

to 55 percent of the

and all other

applicants have equal access to

West

mediator's

Corporation did

solution

affirmative fair

was

for

units in West End Place,

The developer and the agencies

End Housing

Attorney

Enders receive

preference as

45 percent.

mediation.

not.

included

the remaining

agreed; the Old

Nevertheless,

in

the

the

developer's

housing marketing plan, which

HUD approved

in 1996.

The plan operates as follows.

West End Place

contains

183

residential

units

that

fall

into

three

rent-based

categories: 58 "low-income" units (subsidized by HUD

48

"moderate-income units,"

market

rates.

Under the

former West Enders

that

is,

plan,

units

to be

the developer

first preference as to 101

55 percent

of

unevenly distributed over

West Enders have

and 77

the total.

These

funds),

rented at

is to

of 183 units,

101

units are

the three rent categories:

a preference as to 19

-7-7-

give

former

low-income units (33

percent),

24

moderate-income

units (50

percent),

and

58

market-rate units (75 percent).

The tenant selection works by lottery.

application

are

then

is assigned a

separated

applications from

contains

units,

random number.

two

displaced former

all other

applicants.

the top-ranked

followed by the two

yields a

into

total of 33

Each preliminary

pools:

The applications

pool

West Enders

Then,

applicant from

for the

pool

contains

and pool

low-income

A is

selected,

top-ranked applicants from pool

percent pool A applicants

B; this

(33 percent

former West Enders) in the

low-income units.

The process is

then repeated until all 58 units are tentatively allocated.

The

categories

same lottery

approach is

of apartments.

For

used for

the other

two

moderate-income units,

the

draw ratio is one-to-one (50 percent former West Enders); for

the market-rate units,

Enders).

three-to-one (75 percent former

Applicants who

have been selected in this

West

process

are then invited to complete a full application and undergo a

more

thorough

screening

process,

which

can

include

verifications of personal references and credit history.

The

same process can supply additional applicants if needed.

From

August 26

to September

26, 1996,

a real

estate

manager hired by the developer coordinated community outreach

efforts

to stimulate preliminary

applications.

The manager

also contacted former West Enders as well as the Old West End

-8-8-

Housing Corporation.

The manager eventually

received 1,858

timely preliminary applications, 308 of

which identified the

applicants as

the 308

former West

Enders.

Of

former West

Ender applicants, 12

identified themselves as black,

one as

Latino, and 19 did not identify their race.

On September 26,

1996, the individual

former West Enders--filed

challenging

numerous

grounds;

Enders as a

also named

the tenant

a complaint in the

selection process

they purported

class.

The numerous

the plan

on

former West

defendants divide

the BRA and its director;

of Boston and various

and,

developer

the

and

to represent

Secretary; the City

finally,

district court

The Old West End Housing Corporation was

as a plaintiff.

into four categories:

plaintiffs--four

and

other

HUD and its

of its officials;

private

parties

associated with the development of West End Place.

On October 21,

1996, the plaintiffs filed

an emergency

motion

for a

preliminary injunction

which was later withdrawn

the

to

halt the

lottery,

when the defendants agreed

former West Enders' representatives monitor the lottery.

In the lottery, which took place on October 29, 1996,

the

to let

named plaintiffs received

make it

unlikely that

rankings in the

they will receive

two of

lottery that

units in

West End

Place.

The developer

dismiss the

and

complaint,

various other

Fed. R.

-9-9-

defendants

Civ. P.

moved

12(b)(6), and

to

the

district court heard

1996.

On

argument on the motion on

January 6,

opinion dismissing

1997,

the district

court issued

many of the claims with

prejudice.

v. Lago, 958 F. Supp. 686 (D. Mass. 1997).

____

West

Enders

declined

discriminatory

offered by

all

to amend

implementation

their

of the

After

plan--an

prejudice

and

defendants on February 11, 1997.

entered

an

Raso
____

the former

complaint

the district court--the district

claims with

November 20,

to allege

opportunity

court dismissed

judgment

for

the

The former West Enders appeal from the dismissal of only

two of the

numerous claims they made in

first, a claim under 42 U.S.C.

equal protection

racial

1983 that the plan

a trust

violates

principles because it comprises a forbidden

classification, and second,

creates

the district court:

that subjects

trustee's

fiduciary duties

Enders.

There are

Amendment

and to federal

also

in

a claim that

the BRA

favor

few

section 49

and developer

of

the

former

West

the

Tenth

references to

statutes but these

to a

references are

not seriously developed in plaintiffs' briefs.

We begin with section

that

no

person

may

1983, which pertinently

deprive

any

person

constitutional rights under color of

1983.

The

City of

Boston

and the

of

state law.

BRA

are

his

provides

or

her

42 U.S.C.

both "state

actors," see Monell

___ ______

658,

690

v. Department of Soc. Servs., 436

__________________________

(1978), and

the

BRA

played

a central

role

U.S.

in

-10-10-

developing and

HUD is a federal

fostering the plan challenged

by plaintiffs.

entity not subject to section 1983, but its

officials

are

directly

constrained

by

equal

protection

principles.4

In their complaint,

race was

a motive

the former West Enders

for curtailing

otherwise

available to

cites the

defendants' reliance

comprising a racial

result,

them.

the statutory

Specifically, the

upon the

allege that

preference

complaint

consent decree

purpose and goal and asserts

as

that, as a

the former West Enders were deprived of a benefit--a

statutory preference for all of the apartments--based upon "a

racial classification."

shorthand

version

is

In their appeal

that

the

brief, plaintiffs'

preference

was

curtailed

"because" the former West Enders were predominantly white.

Factual assertions in a

as

true for

purposes of

complaint are normally accepted

motion to

dismiss, see,

e.g.,

__________

Berner
______

v. Delahanty,
_________

addition,

129 F.3d

20, 25

(1st Cir.

1997); in

the defendants do not dispute that racial concerns

and the consent decree prompted their effort to cut back upon

the

statutory preference.

The reason

is

apparent:

the

____________________

4The Fifth Amendment's

Due Process Clause embodies

of the equal protection doctrine,

U.S. 497, 499-500
defendant in

see Bolling v. Sharpe, 347

___ _______
______

(1954), and the Secretary of

this case, is

subject to

v. Domestic & Foreign Commerce Corp.,

__________________________________

injunctive

See, e.g., Larson

_________ ______

337 U.S. 682,

(1949); E. Chemerinsky, Federal Jurisdiction

____________________

-11-11-

HUD, a named

suit for

relief for violations of the Constitution.

52 (1989).

the core

689-91

9.1.1, at 451-

former West

some

Enders are

limitation

Enders, HUD

on

would

almost entirely

the preference

have been

white, and

rights

of

without

former West

funding subsidized

apartments

from which minorities were effectively excluded.

HUD apparently thought

the

consent decree and

fair housing.

that this outcome

would violate

its statutory obligation

See 42 U.S.C.
___

3601-3619

to promote

(1994); 24 C.F.R.

200.600-200.640 (1997).

the consent decree

did

or not, its

HUD may have

and the federal

preference

statute, but whether

purpose to increase
_______

for apartments in West End

is evident.

misunderstood both

it

minority opportunities

Place by curtailing the statutory

To

this end,

it appears

that HUD

simply declined to authorize funding unless and until some of

the apartments were

made available to applicants

other than

former West Enders.

This undenied racial motive distinguishes

those

others

zoning law

actor denies

plaintiffs

involving

facially

neutral

or employee qualification

any

racial

are mistaken

purpose

or

in treating

the case from

actions--like

test--where the

concern.5

"racial

state

But

motive" as

the

synonym

for

constitutional

violation.

Every

____________________

5See, e.g., Village of Arlington Heights v.

__________ _______________________________

Metropolitan
____________

Hous. Dev. Corp., 429 U.S.

_________________

252, 270-71 (1977)

(upholding a

refusal

to allow construction

dwelling

to rezone property

of multi-

buildings); Washington v. Davis, 426 U.S. 229, 247__________

_____

48 (1976) (upholding

a police department literacy

excluded mostly black applicants).

-12-12-

exam that

antidiscrimination

and every

reflect

statute aimed

enforcement measure

enactments

concern with

or actions

at racial

taken under

race.

unlawful

That

discrimination,

such a

does not

statute,

make

or automatically

such

"suspect"

under the Equal Protection Clause.

It is

hostility to

quite true

a racial

that government

group can be

e.g., Yick Wo v. Hopkins,

____ ________
_______

there is no

allegation whatever

plausible.

condemned out

118 U.S. 356, 373-74

defendants were hostile to whites.

be remotely

action taken out

in the

of

of hand,

(1886), but

complaint that

the

Nor would any such motive

Benign intentions

do not

immunize

government action, but they substantially narrow the inquiry.

The primary test is that any government action--regardless of

benign intent--is suspect

of

"racial

classification

interest and

if it has been taken

classification";

must

narrow

be

in

justified

tailoring.

by

on the basis

such

cases,

compelling

the

state

See Adarand Constructors,

___ ______________________

Inc. v. Pena, 515 U.S. 200, 235 (1995).

____
____

Despite

the use

the complaint

into

play.

of the "racial

alleges no facts
_____

See Shaw
___ ____

1194, 1216 (1st

that would bring

that label

v. Digital Equipment Corp.,

________________________

Cir. 1996).

governmental standard,

classification" label,

The

82 F.3d

term normally refers to

preferentially favorable to

or another, for the distribution of benefits.

one race

E.g., Adarand,
____ _______

515 U.S. at 226-27; City of Richmond v.

________________

J.A. Croson Co., 488

_______________

-13-13-

U.S. 469, 493 (1989) (plurality opinion).

Yet under the plan

adopted in this case, the apartments freed from the statutory

preference are made available to all applicants regardless of

___

race.

West

End Place

apartments

subsidies.

made

was

built with

especially

federal

desirable

It might not seem remarkable

help and

through

its

federal

that the government

should insist, as a condition of this investment, that a fair

number

of the

apartments

should

be

application by tenants of all races.

to find

show

any case where

effectively

open

Nor have we been

the government has been

to

able

required to

a compelling interest, or narrow tailoring of remedies,

for a

condition framed

so as to

secure equal
_____

treatment of

applicants regardless of race.

Language in a few Supreme Court decisions could be taken

to

mean that

any
___

action

constitutionally suspect.

in which

race

plays

a role

However, the governmental

is

actions

in

those

cases

provocative.

fundamentally

different

and

more

In Adarand, the statute gave special incentives

_______

to government

The

were

contractors to hire

redistricting

cases

minority subcontractors.6

concern

state

voting

districts

____________________

6See Adarand, 515 U.S.

___ _______

at 205-06; see also Croson,

________ ______

488 U.S.

at 493-94; Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 279______

____________________
80

(1986)

(plurality

Constitutional Law
__________________

opinion);

R.

Rotunda

&

J.

Nowak,

18.10(a)(1) (2d ed. 1992 & Supp. 1997).

-14-14-

designed to

concentrate minority

voters and

effectively to

reserve seats for minority candidates.7

Taken by itself, HUD's action in this case is almost the

opposite of the

racial preferences that the

questionable in Adarand
_______

and the redistricting cases.

the government's condition

the

apartments--which

automatically been

Court viewed as

Here,

on federal funds was that some of

otherwise

would

occupied by whites--be made

have

almost

available to

all applicants on a race-blind basis.

We cannot view this as

a "racial classification[]" reserving benefits for

a favored

race, Adarand, 515 U.S. at 235, or as "an effort to segregate

_______

the races," Shaw, 509 U.S. at 642-43.

____

Several

other equal

protection arguments

made

by the

former West Enders need no lengthy discussion, either because

they have

they

been essentially

abandoned on

are clearly unpersuasive.

the former West Enders'

appeal or

because

The former category includes

attack on HUD requirements that

the

apartments be publicized in minority communities;8 the latter

includes

the attempt to charge HUD with treating the consent

____________________

7See Bush
___ ____

v. Vera, 116
____

S. Ct. 1941, 1955

(1996) (plurality

opinion); Miller
______

v. Johnson,
_______

515 U.S.

900, 906-09

(1995);

Shaw v. Reno, 509 U.S. 630, 635-36 (1993).

____
____

8HUD's
majority

regulations
and
___

require

minority

affirmative

communities,

outreach
see
___

24

in

both

C.F.R.

200.620(a); and in any case outreach efforts are not the real
source

of the plaintiffs' problem--rather, it is the partial

loss of their preference.

The defendants are no less guilty

of muddling the issue in their pretense that outreach efforts

are all that are involved in this case.

-15-15-

decree's numerical

belied

"goal" as

if it were

a quota--a

notion

by the substantial preference retained for the former

West Enders.

The

for

story, however, is not quite over.

HUD to

insist

effectively be open

if HUD

planned

beneficiaries

we

think,

that the

apartments it

to all races; it would

to impose

It is one thing

subsidizes must

be quite another

this requirement

only where

of the statutory preference were white.

would be

classification" and

government

would need

action based

to be

on

the

That,

a "racial

narrowly tailored

to

serve a compelling government interest.

The difficulty

hoc
___

is that we

administrative action.

are dealing here with

Accepting

the

truth

an ad
__

of

the

complaint's factual allegations, HUD's actions were

not by any

general, racially skewed policy

prompted

toward statutory

preferences but by the peculiar interplay of Boston's consent

decree, the Massachusetts statute, and the

makeups of the Boston population and

What HUD

would

unknown, but

consent decree

do

it is

in

some

the former West Enders.

other,

certainly not

hypothetical

case

precluded, either

or anything else, from

preferences that exclude whites.

respective racial

is

by the

challenging statutory

Cf. Otero v. New York City

___ _____
_____________

Hous. Auth., 484 F.2d 1122, 1125 (2d Cir. 1973).

___________

The

plaintiffs have alleged

would reveal

no facts that,

any secret discriminatory

if proven,

standard, pattern of

-16-16-

past practice,

or motive

beyond the one

HUD has

admitted,

namely HUD's concern that the preference in this instance, if

unmodified,

subject

Plaintiffs

HUD

would

restrict

to

sanctions

simply think

condemn HUD'saction.

that

the

apartments

under

this

the

purpose

to whites

consent

is

and

decree.

enough

to

Forthe reasons already given,we do not.

We turn now to plaintiffs' second and

appeal that Mass.

of creating

a trust for

urban renewal."

demonstrated

the

Gen. Laws ch. 121B,

"has the effect

the benefit of people

displaced by

The district court ruled that

there was no

legislative intent to

trust argument

reason.

49,

distinct claim on

failed

for

See 958 F. Supp. at 700

___

create a trust

further

more

and that

technical

(citing New Eng. Trust Co.

__________________

v. Sanger, 337 Mass. 342, 348 (1958)).

______

On appeal, plaintiffs

devote five pages of their brief to discussing the requisites

for trust creation under Massachusetts law.

Whether or not Massachusetts law created a trust for the

former West Enders appears to us to

we assume arguendo

be beside the point.

that the former West Enders

If

are entitled

________

to,

and can

section

enforce, whatever

49, subject always

trust concept

is nothing

remedy for enforcing

may provide.

priority

is provided

to superseding federal

more than

a possible

be answered, before

are even pertinent, is the extent of those rights.

-17-17-

law, the

alternative

any unpreempted rights that

The question to

under

section 49

remedies

By

its terms

section

former

residents,

displaced

qualifies this priority

comply

with

regulations

49(c)

and

creates

subsection

priority

(d)

by also obligating the

"requirements

of

federal

defendants'

arguably

developer to

legislation

or

under which loans, grants, or contributions have

been made or agreed to be made to meet a part of

the project."

for

Mass.

Gen.

Laws ch.

121B,

the cost of

49(d).

The

position, adopted by the district court, is that

such federal requirements--as a matter of Massachusetts law--

qualify

the

statutory

priority.

Plaintiffs

have

not

challenged this ruling on appeal.

The plaintiffs

might have

argued

that the

limitation

adopted

here is

legislation

not

or

itself

regulations"

proposal that HUD

"requirement"

but

is

has chosen to bless.

merely

of

"federal

developer

Possibly, plaintiffs

thought that this arguable distinction did not matter because

federal administrative

regulation,

might

measure, even

override

state

Supremacy Clause--assuming always

measure.

This

is by no

if

not statute

legislation

that it was

under

or

the

an authorized

means clear, but arguments

on this

point have not been made and need not be pursued.

In the district court, it appears that plaintiffs' trust

argument may have been advanced

different

in

primarily as an adjunct to a

constitutional claim, namely a claim that the plan

question impaired a property interest without due process

-18-18-

or

just compensation.

The alleged trust,

in this context,

would be a way of expressing a claimed property interest.

It

is not obvious why a trust interest would be more entitled to

this status than section 49's simple expression of a priority

in favor of former tenants.

In all events, whether called a trust or something else,

any

property interest created

subject to section

49(d).

not

by section 49(c)

49's own explicit reservation

As already noted,

is arguably

in section

the plaintiffs on this appeal have

challenged the district court ruling that subsection (d)

qualifies subsection (c) and also embraces the disputed plan.

Taking

these

district court

rulings

trust

argument adds

nothing to

which

itself has not itself been

the

as unchallenged,

due process

the

argument,

renewed in the plaintiffs'

briefs in this court.

This

those

is a case

ousted

from

that stirs conflicting

their West

renewal" many years ago

End

sympathies, for

neighborhood

no less than for

by "urban

minorities wrongly

denied fair

properly

housing opportunities

sought to

decide this

in Boston.

appeal

But we

based upon

Supreme

Court precedent, as best we can discern it, recognizing

the

case

is a

developing law.

difficult

and unusual

one on

the

that

edge of

Affirmed.
________

Dissent follows.
_______________

-19-19-

have

Stahl, Circuit Judge, dissenting in part.

Stahl, Circuit Judge, dissenting in part.
_____________

for

me considerable appeal

plaintiffs'

equal

in the majority's

protection

claims.

There is

resolution of

The

governmental

conduct these claims challenge involves a patently good faith

and facially reasonable

interests

the

racial

protections

of two historic

and

of

losers in Boston's

ethnic minorities

the

federal fair housing

ethnically

effort to accommodate

entitled

consent decree

laws, and

diverse, lower middle

in

housing wars:

to

NAACP
_____

the former

the competing

invoke the

v.

Kemp and
____

West Enders,

class group which,

an

in the

name of "urban renewal," was forced from its neighborhood and

could not afford to return.

Nonetheless,

I cannot

join

the

portion

of

the

majority opinion that affirms the district court's pleadings-

based

dismissal of

agree with the

like the

majority that

present one

ante at 19, I do
____

withdraws

race

furthers a

protection claims.

While I

reverse discrimination

are "on the

edge of

class of citizens

the government

because of the

of the

class, courts

are to

the government's

conduct so as

to ensure

compelling governmental interest and

tailored to advance that interest.

claims

developing law,"

think it settled that, when

benefits from a

or ethnicity

strictly

the equal

scrutinize

that it

is narrowly

See Adarand Constructors,

___ _____________________

Inc. v. Pena, 515

____
____

that follow,

U.S. 200, 226-227 (1995).

I believe plaintiffs'

For the reasons

complaint fairly alleges

-20-20-

such a withdrawal of benefits.

at

this

stage

of

And I do not

the litigation,

conclude

withdrawal of benefits passes strict scrutiny.

see how we can,

that

such

The

defendants

order to

complaint

curtailed

comply with

See ante at 11.

___ ____

is

alleges

plaintiffs'

that

the

statutory

the consent decree

governmental

preference

in NAACP
_____

Because the purpose of that

in

v. Kemp.
____

consent decree

"the achievement of a racial composition, in HUD-assisted

housing

located

in

white, which reflects

Boston as a

neighborhoods

which are

predominantly

the racial composition of the

whole," id. at 6,
___

City of

a reasonable inference to

be

drawn from plaintiffs' complaint, see Aybar v. Crispin-Reyes,

___ _____
_____________

118 F.3d 10, 13 (1st Cir. 1997) (reasonable inferences are to

be drawn

in favor of

the party opposing

12(b)(6)

motion), is

that

defendants

a Fed. R.

acted

as

Civ. P.

they

did

because the putative plaintiff class was predominantly white.

The

fact that defendants

ante
____

at 11,

only

"do not dispute"

underscores

our

this accusation,

obligation

to

subject

defendants' conduct to strict scrutiny, see Adarand, 515 U.S.

___ _______

at 224

demand

("[A]ny person,

that

Constitution

any

justify

of whatever race,

governmental

any racial

actor

has the

right to

subject

to

classification

the

subjecting

that person to unequal treatment under the strictest judicial

scrutiny.").

-21-21-

The

strict

See
___

a contrary

conclusion--that

scrutiny does not apply--because it regards the facts

plaintiffs

claims

majority reaches

have pleaded in support of their equal protection

insufficient to

ante at
____

principle

of

describe a

13-16 (holding

Adarand).
_______

majority emphasizes

In

"racial classification."

that this

reaching

case is

its

the effect of curtailing

______

outside the

conclusion, the

the preference

on

non-parties to

apartments

available

this litigation,

freed

from

the

to all applicants
___

see ante at
___ ____

13 ("[T]he

statutory preference

are

regardless of race."),

made

and the

defendants' intent in enacting the curtailment, see id. at 14

______
___ ___

("It might

insist .

not seem

. . that a fair number

effectively open to

The majority

defendants

remarkable that

the government

of the apartments should be

application by tenants of

also reads

should

the complaint

all races.").

to allege only

that

acted as they did because plaintiffs are racially

identifiable; it does not

read the complaint to allege

defendants

did because plaintiffs

acted as they

that

are white.

Id. at 15.
___

Taking

this last

point first,

simply disagree

with the majority's reading of the complaint.

does not

plaintiffs

allege that

are

the preference

racially

monolithic;

The

was curtailed

it alleges

complaint

because

that

preference was curtailed because of the consent decree.

the

And,

as I have stated, because the consent decree operates only in

-22-22-

favor of racial

and ethnic minorities, it could

to require curtailment

Enders

were

evaluating

must

16:

predominantly

Thus,

12(b)(6)

the complaint

the

necessary to trigger

the former West

for

purposes of

motion, I

believe we

allegation the

majority

strict scrutiny, see

___

ante at
____

that defendants would not have acted as they did had the

plaintiff class

F.3d at 13;

been predominantly of color.

see also Conley

___ ____ ______

(1957) (Fed. R. Civ. P.

to

black.

defendants' Rule

read into

believes

of the preference if

not be read

set

forth

specific

v. Gibson, 355
______

See Aybar, 118

___ _____

U.S. 41,

47-48

8(a)(2) does not require a complaint

facts

allegation of discrimination).

in

support

of

general

Even

if the

majority has

complaint, I believe plaintiffs'

properly

construed the

equal protection claims are

sufficient to withstand a Rule 12(b)(6) motion and to trigger

strict scrutiny.

Court

has

subordinates

In

the redistricting

emphasized

race

that

cases, the

government

neutral considerations

constitutionally suspect:

in

509

Shaw[v. Reno,
____
____

U.S. 630

(1993)]

action

to

racial purpose is

Supreme

which

an overriding

"We recognized

that, outside

the

districting context, statutes are

subject to strict scrutiny

under the Equal Protection Clause

not just when they contain

express racial classifications,

but also

when, though

race

neutral on their face, they are motivated by a racial purpose

or

object."

Miller v.
______

Johnson, 515
_______

U.S. 900,

913 (1995)

-23-23-

(affirming

the

invalidation,

principles,

of a

Georgia

designed to increase

in

Georgia)

whether

under

the number of majority

will

protection

congressional redistricting

(citation omitted).

the Court

equal

press this

It

plan

black districts

remains to

principle to

be

seen

its outer

limit

and

strictly

which, though

scrutinize

even

predominantly motivated

would not appear

governmental

by a

conduct

racial purpose,

to burden any person because of

his or her

race--e.g., a public university's efforts at recruiting fully

____

qualified applicants of

color for its first year

class.

apparent

But it

seems

that defendants'

law school

lack

hostility towards whites in particular, cf. ante at 13,

___ ____

not

shield

their

conduct--which

has

burdened

of

does

plaintiffs

because they are, as a group, racially identifiable--from the

most searching

913.

judicial inquiry.

See
___

Miller, 515 U.S.

______

This leads to a final point.

at

think the majority runs afoul of Adarand in concentrating its

_______

focus so heavily on both defendants' intent and the effect of

defendants' actions on non-parties to this case.

The Supreme

Court has squarely rejected the argument that classifications

motivated

by

"benign"

scrutinized strictly.

though this

conduct at

considerations

See
___

Adarand, 515 U.S.

_______

case does appear

issue is more

from whites than

should

unique in that

a withdrawal of a

a giving of special benefits

-24-24-

not

at 226.

be

And

the government

special benefit

to members of

minority groups,9 the

the

clear import of Adarand is

_______

plaintiff's "personal right

________

laws," 515 U.S. at 227,

that it is

to equal protection

of the

and not some non-party's interest in

competing for that which would be the plaintiff's but for his

or her race, that is constitutionally safeguarded.

evaluating the constitutionality

must not

look to its

others;

we

respect

to plaintiffs.

conduct has

must

had

of defendants' conduct,

effect and motivation with

look at

its

Thus, in

effect

and

we

respect to

motivation with

And here, quite clearly, defendants'

the effect

of

depriving plaintiffs

of

benefit

and was

prompted by

the fact

that plaintiffs

are

mostly white.

Because

strictly

scrutinized, their

equal

protection

should

have been

conduct

defendants'

was

governmental

claim

conduct

motion

narrowly

interest.

See
___

been

produce

tailored

to

have

to dismiss

should have

required to

should

Adarand,
_______

plaintiffs'

denied

and they

evidence that

advance

515

been

their

compelling

U.S.

at

227

(reciting the components of the strict scrutiny inquiry); see

___

also Aiken
____ _____

v. City of Memphis, 37
_______________

1994) ("When, as

F.3d 1155, 1163 (6th cir.

here, a race-based affirmative

action plan

is subjected to strict scrutiny, the party defending the plan

____________________

9It is important to note that there is no indication that the

benefit
given to

originally

given (i.e.,

plaintiffs because

rather, the

preference

the

full

preference) was

they were predominantly

was given

because

white;

plaintiffs

were

ousted from their homes.

-25-25-

bears the

burden

constitutional.").

of producing

Plaintiffs

evidence

that the

should then have been

plan

is

put to

the burden of proving the unconstitutionality

conduct.

See Aiken, 37
___ _____

of defendants'

F.3d at 1162 ("The party challenging

[a racially-preferential] plan retains the ultimate burden of

proving its unconstitutionality.").

majority

has

reached

respectfully dissent.

different

To the extent

conclusion,

that the

most

-26-26-