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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CARMEN THOMPSON, et al. Plaintiffs vs. UNITED STATES DEPT. OF HOUSING AND URBAN DEVELOPMENT, et al. Defendants * * * * * * * * * * * * * * CIVIL ACTION NO. MJG-95-309

MEMORANDUM OF DECISION This case was tried before the Court without a jury. The

Court has heard the evidence, reviewed the exhibits, considered the materials submitted by the parties and had the benefit of the arguments of counsel. As discussed herein, the instant case was brought on behalf of a class consisting of African-American residents of public housing units in Baltimore City claiming discrimination based on their race. Plaintiffs asserted, against Defendants1, a plethora

of claims based upon a broad a range of legal theories.

Plaintiffs sued two sets of Defendants referred to as Local Defendants and Federal Defendants. Local Defendants are the current, and predecessors to, the Housing Authority of Baltimore City ("HABC"), the Executive Director of HABC, and the Mayor and City Council of the City of Baltimore. Federal Defendants are the current, and predecessors to, the United States Department of Housing and Urban Development ("HUD") and the Secretary of HUD (the "Secretary").

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Defendants, in response, presented just as wide a variety of procedural and substantive defenses. At trial, the parties presented weeks of evidence pertaining to racial relations and public housing in Baltimore from the post-Civil War era through the beginning of the Twenty-First Century, with the principal focus upon events since the 1954 Supreme Court decision in Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483 (1954) ("Brown I"). Accordingly, the instant decision must address a vast quantity of evidence spanning more than a half century of governmental action and/or inaction in light of a comprehensive set of claims and defenses presented by the respective parties. The Court now issues this Memorandum of Decision as its findings of fact and conclusions of law in compliance with Rule 52(a) of the Federal Rules of Civil Procedure.

I.

INTRODUCTION A. Background2

This is provided only as a "broad brush" introductory summary and is not intended to be comprehensive or precise. A more extensive rendition of the historical background is provided throughout the body of the decision and in supplemental findings in Section V thereof. 2

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As the largest municipality in Maryland, a former slave state with a post emancipation policy of racial discrimination, Baltimore City historically had de jure racial segregation and a tradition of voluntary ethnic segregation as well.3 Certainly,

other cities below the Mason-Dixon line, including Washington, D.C., practiced racial segregation and the racial discrimination in Maryland did not rise to the point that it did in certain states.4 Nevertheless, in 1954 there was, to a large extent, a

recognizable "ghetto" within which lived essentially no Whites and virtually all of the Black residents of Baltimore City. Moreover, to the limited extent that there were Black residents of the counties in the Baltimore Region, the racial segregation there was, if different at all, even more pronounced. In Baltimore City, until 1954, there were two separate school systems and there were, for all practical purposes, two separate downtowns. Whites frequented the large department

stores, shops, theaters and restaurants of White Downtown in the

For example, by the 1950's there were concentrated communities of Italian-Americans in and around "Little Italy," Polish-Americans in the Patterson Park area, Greek-Americans in "Greektown" around the east side of Eastern Avenue, GermanAmericans in Northeast Baltimore, Jewish-Americans in Northwest Baltimore, Chinese-Americans in a small "Chinatown" etc. For example, in some states public drinking fountains were labeled by race and streetcars and buses had White and "Colored" seating areas. 3
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Howard Street area.

Blacks, while not legally excluded from the

Howard Street stores were typically made less than welcome5 and were unable to utilize eating facilities or theaters. The result

was that a separate Black Downtown developed in the Pennsylvania Avenue area. In the private sector there was open racial discrimination. Barry Levinson's motion picture "Liberty Heights," set in 1950's Baltimore, shocked some modern Americans with its display of the sign that, for many years, was posted prominently outside a public swimming pool on Falls Road6 stating: "NO JEWS, DOGS OR COLOREDS ALLOWED." In 1954, the leaders of then de jure segregated Baltimore City - a municipality with a population (majority White)

approaching one million - had to consider what to do in light of the 1954 Supreme Court Brown I decision holding the maintenance of racially segregated schools to violate the Constitution. As

particularly pertinent to the instant case, the City officials

For example, Blacks were not given the privilege regularly afforded Whites to try on clothes in the store or return any that were bought. A Baltimore street that, for many years, was the well recognized de facto border between the religiously (but not racially) integrated Mount Washington neighborhood and "restricted" Roland Park with its residential covenants barring residents of either the "Negro" or "Hebrew" races. 4
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responsible for public housing decisions had to choose a course of action. They could have (as did the leadership in other

segregated cities) decided to delay desegregation of public housing until such time as the Courts made it pellucid, beyond debate, that the principle that "separate but equal" public facilities were unconstitutional extended beyond the classroom. However, to their credit, they took the opposite approach. Within a few months of the Brown I decision, HABC (the Housing Authority of Baltimore City) decided to desegregate its low-income housing units and took prompt action to carry out its decision. The prompt desegrative action, although

contemporaneously considered precipitous by some who would have preferred a leisurely pace of change in racial relations, was acclaimed by those who sought progress in the civil rights area. Indeed, HABC was chosen to receive the 1955 Sidney Hollander Foundation Award for "its success in bringing White and Colored families together in the same projects." During the four decades following Brown I, major demographic changes affected the housing patterns in Baltimore City and the surrounding counties. The City lost many industrial jobs and

experienced a major population decline as residents, primarily White and above average in affluence, moved to the counties while

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the City population diminished and became more than majority (and later about two-thirds) African-American. Although historically segregated housing patterns continued to predominate in Baltimore, fair housing laws and court decisions, which made racially based residential covenants unenforceable, resulted in more racially diverse neighborhoods. By the 1990's there was essentially no area of Baltimore City effectively off limits to residents by virtue of their race or religion. Of course, the City did not become racially Many of those whose economic condition permitted a

homogenized.

choice of places to live, chose to live in areas in which their race or ethnic group was in the majority. While many African-Americans who succeeded economically chose to live in majority Black neighborhoods, others, particularly those in public housing, did not have any realistic opportunity to live in a mixed race environment absent desgregative action by governmental entities. Baltimore City's

well-intentioned efforts at slum clearance and urban renewal improved the physical environment of many communities and the living conditions of some public housing residents but did little to promote racial integration of City neighborhoods. Over time, the public housing projects became virtually allBlack. Essentially no Whites moved into the formerly segregated 6

all-Black projects while the formerly all-White projects, over time, became first predominantly, and later virtually entirely, African-American also. Moreover, because established

neighborhoods tended to fight the development of additional family public housing in their communities, after the construction of Hollander Ridge in the 1970's little additional family public housing was added to the City's supply other than scattered site units. By 1990, it was generally recognized that the high-rise family public housing projects were dangerous and inappropriate places for families. One of the beneficial results of the

instant case was a Consent Decree whereby, pursuant to an agreed Court Order, the high-rise projects were demolished. Nevertheless, there have not been significant opportunities for African-American residents of Baltimore City public housing to reside in racially mixed, rather than predominantly AfricanAmerican, areas. In the instant case, Plaintiffs contend that since 1954 the leadership of Baltimore City, during the mayoral administrations of DeAlesandro, Jr. ("Old Tommy"), Grady, Goodman, McKeldin (second administration),7 D'Alesandro, III ("Young Tommy"),

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McKeldin served as mayor in 1943-47 and 1963-67. 7

Schaeffer, Burns and Schmoke, engaged in a pattern and practice of discrimination against Blacks in regard to public housing. Plaintiffs further claim that, during the Schmoke administration, Defendants intentionally engaged in racial discrimination in violation of the United States Constitution and failed to take required action to ameliorate the effects of past race based discrimination in regard to public housing.

B. Summary of Decision8 Plaintiffs filed the instant case on January 31, 1995 asserting Constitutional and statutory claims. The case is, of

course, governed by statutes of limitations that restrict the time period for which a claim may be asserted. The period for

which claims may be asserted against Local Defendants is three years and against Federal Defendants is six years. This means

that, as to Local Defendants, a claim is time barred unless it is based upon an actionable wrong committed during the three year

This summary is no more, and no less, than an intentionally superficial overview of the decision rendered herein. It is not comprehensive and, by no means does it precisely set forth the bases for the conclusions reached. While included to provide the reader with a general idea of the contents prior to reading the entire several hundred page document, it is not a part of the decision itself. The decision is contained in Sections II, III, IV and V and, to the extent of evidentiary rulings, in Section I.C. 8

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period from January 31, 1992 to the date of filing.

For Federal

Defendants, a claim is time barred unless it is based upon an actionable wrong committed during the six year period from January 31, 1989 to the date of filing. For convenience the term

"Open Period" is used to refer to the period for which limitations are open, recognizing that it is a three year period for Local Defendants and a six year period for Federal Defendants. While the Open Period stretches back to no earlier than January 31, 1989, it is necessary to consider evidence relating to events of earlier years. asserted two types of claims: 1. Claims for alleged "active" wrongs committed during the Open Period, and Claims for failure, during the Open Period, to take required action to ameliorate the effects of past wrongful racial discrimination. This results because Plaintiffs have

2.

Accordingly, the substantive focus of the case is on alleged wrongdoing by virtue of (1) positive discriminatory actions during the Open Period and (2) pre-Open Period discrimination for which the effects continued into the Open Period and were not then adequately addressed. The Mayor of Baltimore City during the entire Open Period was Kurt Schmoke. One set of Plaintiffs' claims is based upon

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the allegation that the Schmoke administration and Federal Defendants intentionally discriminated against Plaintiffs because of their race. The other set of Plaintiffs' claims is that

during past mayoral administrations Defendants had intentionally discriminated in housing based upon race, that during the Schmoke administration there remained vestiges of that prior discrimination, and that during the Schmoke administration Defendants did not take required affirmative action to ameliorate the effects of that past discrimination. It is undisputed that prior to the 1954 Brown I decision Federal and City administrations had intentionally discriminated against African-American residents of public housing due to their race. Accordingly, it would be possible for Plaintiffs to

establish a viable claim even if they could not prove deliberate racial discrimination during the Schmoke administration. The Court finds that, with one possible exception, Plaintiffs have not proven intentional racial discrimination in public housing on the part of Local or Federal Defendants during the Schmoke administration. Moreover, subject to the same

exception, Plaintiffs have not proven that Defendants, during the Schmoke administration, violated a duty to take affirmative action to ameliorate the effects of prior intentional race based discrimination. 10

The Court further finds that Plaintiffs have not prevailed on their statutory claims against Local Defendants. The Court

finds, however, that Plaintiffs have proven a statutory claim, and possibly a Constitutional claim as well, against Federal Defendants. It is with respect to HUD, and its failure

adequately to consider a regional approach to desgregation of public housing, that the Court finds liability. Section 3608(e)(5) of the Fair Housing Act requires Federal Defendants to "administer [housing] programs... in a manner affirmatively to further the policies of [the Act]." These policies include the provision of housing free from discrimination. Geographic considerations, economic limitations, population shifts, etc. have rendered it impossible to effect a meaningful degree of desegregation of public housing by redistributing the public housing population of Baltimore City within the City limits. Baltimore City should not be viewed as an island

reservation for use as a container for all of the poor of a contiguous region including Anne Arundel, Baltimore, Carroll, Harford and Howard Counties. Baltimore City contains only In 1940,

approximately 30% of the Baltimore Region's households.

19 percent of the population of Baltimore City was AfricanAmerican. By 2000, the population of Baltimore City was 64 11

percent African-American, while the population of the rest of the Baltimore Region was 15 percent Black. In light of HUD's statutory duties and the fact that its jurisdiction and ability to exert practical leverage extend throughout the Baltimore Region, it was, and continues to be unreasonable for the agency not to consider housing programs that include the placement of a more than insubstantial portion of the Plaintiff class in non-impacted areas outside the Baltimore City limits. The Court finds an approach of regionalization to be integral to desegregation in the Baltimore Region and that regionalization was an important alternative course of action available to Federal Defendants. By the term "regionalization"

the Court refers to policies whereby the effects of past segregation in Baltimore City public housing may be ameliorated by providing housing opportunities to the Plaintiff class beyond the boundaries of Baltimore City. It remains to be seen, in

further proceedings, whether HUD's failure adequately to consider regionalization policies was motivated by an intent to discriminate based upon race, a willingness to bow to political pressure, oversight, neglect and/or other causes. In sum, the Court finds that HUD failed to consider regionally-oriented desegregation and integration policies, 12

despite the fact that Baltimore City is contiguous to, and linked by public transportation and roads to, Baltimore and Anne Arundel Counties and in close proximity to the other counties in the Baltimore Region. In effectively wearing blinders that limited

their vision beyond Baltimore City, Federal Defendants, at best, abused their discretion and failed to meet their obligations under the Fair Housing Act to promote fair housing affirmatively. It is high time that HUD live up to its statutory mandate to consider the effect of its policies on the racial and socioeconomic composition of the surrounding area and thus consider regional approaches to promoting fair housing opportunities for African-American public housing residents in the Baltimore Region. This Court finds it no longer appropriate for HUD, as an

institution with national jurisdiction, essentially to limit its consideration of desgregative programs for the Baltimore Region to methods of rearranging Baltimore's public housing residents within the Baltimore City limits. The case shall proceed to the remedial phase. The Court

shall hear evidence regarding the appropriate action to take to insure that HUD shall, in the future, adequately consider a regional approach to the desegregation of public housing in the Baltimore Region.

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C.

Evidentiary Principles

In view of the nature of the case, the parties presented a variety of expert opinion witnesses whose testimony was the subject of objections from opposing counsel. In lieu of lengthy

hearings - prior to or during trial - regarding the admissibility of expert witness evidence, the Court essentially permitted the parties to present all proffered expert witness testimony and provided guidelines regarding the manner in which such testimony would be considered. Accordingly, the direct examination of each expert witness was presented in the form of a written report with an hour or so of direct testimony to summarize and highlight the report. was, of course, full cross-examination permitted. The Court has, in the decisional process, followed the guidelines stated prior to trial. Accordingly, in the evaluation There

of expert witness testimony, the Court has been guided by the following principles: 1. Statements of legal principles, concepts, statutory and precedent interpretations, etc. are considered to be expressions of the witness' premises on which any admissible opinions may be based. Statements of "facts" by expert witnesses do not constitute evidence of the "facts" but, rather, are articulations of the bases for the expert's opinions under Rule 703 of the Federal Rules of Evidence. 14

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a.

E.g., Plaintiffs' witness stated, "After Brown, not a single family public housing project was sited in a white residential neighborhood." [Written Direct] Test. of john a. powell [sic]

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