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BURNEY v. HOUSING AUTH. OF BEAVER

August 20, 1982

THERESA BURNEY, SILEATHA FERGUSON, BRENDA JACKSON, ROSE ANN JOHNSON, and STACEY GLOVER, individually and on behalf of all others similarly situated, and ARLENE GOOSBY; GIA FLANNIGAN, JOANN POWELL and LEILA SMITH, Plaintiffs
v.
HOUSING AUTHORITY OF THE COUNTY OF BEAVER, JAMES F. TRESS, individually and in his capacity as Executive Director of the Housing Authority of the County of Beaver, JOHN F. PHILLIPS, individually and as Chairman of the Board of Commissioners of the Housing Authority of the County of Beaver, Their Agents, Successors in Office, and Persons acting under their direction, and HOMER C. FLOYD, Executive Director, Pennsylvania Human Relations Commission, Defendants



The opinion of the court was delivered by: COHILL

 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, 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 *fn1" and the use of an applicant's race as a preferential determinant in order to reach and maintain that target balance.

 District I

 1) Linmar Terrace

 2) Griffith Heights

 3) Linmar Terrace ...


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