signed to segregate or control the residential areas of Negro citizens. Thus, as recently as 1951, a racial zoning ordinance enacted by the city of Birmingham, Ala., was held to be unconstitutional in City of Birmingham v. Monk, 185 F. 2d 859 (5th Cir.), certiorari denied, 341 U.S. 940 (1951).12

The first restrictive covenant case decided by the Supreme Court, Corrigan v. Buckley, 271 U.S. 323 (1926), involved a suit to enjoin the violation of a covenant limiting the occupancy of houses in an area in the District of Columbia to Caucasians. The validity of such private agreements was upheld, but the Court did not consider the question of the validity of judicial enforcement of such agreements. In Shelley v. Kraemer, supra n. 1, the Court finally faced the question of whether the judicial enforcement of racial restrictive covenants by State courts constituted "State action" prohibited by the Fourteenth Amendment. The Court unanimously decided that such enforcement would be a denial of the equal protection of the laws. In Hurd v. Hodge, supra n. 7, which arose in the District of Columbia, the Court held that judicial enforcement of racial restrictive covenants by Federal courts would be contrary to the public policy of the United States and a violation of the above section from the Civil Rights Act of 1870.12a

Following these decisions there remained the question of whether cocovenanters could nevertheless recover damages against a cocovenanter for breach of a restrictive covenant in selling restricted property to non-Caucasians. In Barrows v. Jackson, 346 U.S. 249 (1953), the Supreme Court held that an award of damages in such circumstances would constitute coercion on the part of the State in support of the restrictive covenant, and therefore be a violation of the Fourteenth Amendment.

Except as to racial zoning and restrictive convenants the Supreme Court has not yet spoken authoritatively on the matter of residential segregation and discrimination in the sale or renting of dwelling units in public housing projects or in publicly assisted private housing constructed under Government mortgage insurance on urban renewal programs. Neither the policies and practices of the various Federal

12 Similar ordinances have been declared invalid by the State courts of Georgia, Maryland, North Carolina, Oklahoma, Texas, and Virginia. See Glover v. Atlanta, 148 Ga. 285 (1918); Jackson v. State, 132 Md. 311 (1918); Clinard v. Winston-Salem, 217 N. Car. 119 (1940); Allen v. Oklahoma City, 175 Okla. 421 (1936); Liberty Annex Corp. v. Dallas, 289 S.W. 1067 (1927); Irvine v. Clifton Forge, 124 Va. 781 (1918).

12 In the year preceding these decisions the Truman Committee recommended enactment by the States of laws outlawing restrictive covenants and a renewed court attack on their use. (To Secure These Rights, Report of the President's Committee on Civil Rights, 1947, p. 169.) The Committee's report and files reveal that it considered the restrictive covenant the most critical problem in the housing field.

housing agencies nor the State and local legislation and ordinances designed to outlaw discrimination in private or publicly assisted housing have been reviewed by the Court. Only two cases in the area of public housing have reached the Supreme Court and neither resulted in a decision on the merits.13

In the lower Federal courts, however, there has been considerable litigation involving segregation and discrimination in public housing projects. In two cases racial segregation in these projects has been upheld by district courts,1 relying on the "separate but equal" doctrine. However, in a later suit by the plaintiff in one of these cases the Fifth Circuit Court of Appeals (for the States of Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas) held that if the allegation of racial discrimination could be proven then the plaintiff's rights under the Fifth Amendment would be violated." 15

The Fifth Circuit applied to the field of housing the Supreme Court's statement in the District of Columbia school case that since the Constitution prohibits the States from maintaining racial segregation "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." On the other hand it showed its reluctance to move hastily, or at all, in this area by adding:

Here, we have an extremely important question, undoubtedly affecting a large percentage of the low-cost housing development programs, and ultimately affecting the living standards of a great number of persons, white and colored, who are in urgent need of decent, safe and sanitary dwellings."

In other cases, however, Negroes have already successfully challenged segregated public housing in a number of northern cities.1 Most significantly, the Court of Appeals of the Sixth Circuit, which includes the States of Michigan, Ohio, Kentucky, and Tennessee, has affirmed a district court decision holding segregation in public

13 Housing Authority of the City and County of San Francisco v. Banks, 120 Cal. App. 2d 1, 260 P. 2d 668, cert. denied 347 U.S. 974; Cohen v. Public Housing Administration, 257 F. 2d 73 (5th Cir.) cert. denied, 79 S. Ct. 315 (1959).

14 Favors v. Randall, 40 F. Supp. 743 (E.D. Pa. 1941); Heyward v. Public Housing Administration, 214 F. 2d 222, (D.C. Cir. 1954).

15 Heyward v. Public Housing Administration, 238 F. 2d 689 (5th Cir. 1956). Following a trial on remand the case was again dismissed, 154 F. Supp. 589 (S.D. Ga. 1957), and the dismissal affirmed sub nom Queen Cohen v. Public Housing Administration, 257 F. 2d 73 (5th Cir. 1958), cert. denied, 79 S. Ct. 315 (1959), on the ground that the plaintiff had not in fact been denied admission to a public housing project on account of her race or color.

16 238 F.2d at 697, 698.

17 Vann v. Toledo Metropolitan Housing Authority, 113 F. Supp. 210 (N.D. Ohio 1953); Davis v. St. Louis Housing Authority, Civil No. 8637, (E.D. Mo. 1955), 1 RRLR No. 2, p. 353; Jones v. City of Hamtramck, 121 F. Supp. 123 (E.D. Mich. 1954); Askew v. Benton Harbor Housing Commission, Civil No. 2512 (W.D. Mich. 1956), 2 RRLR No. 3, p. 611 et seq.

housing unconstitutional.18 The sixth circuit relied on the Supreme Court's decisions in the racial zoning, the restrictive covenant and the school desegregation cases.

The facts in this sixth circuit case show the way in which the issue of discrimination may arise in public housing projects. As of April 1954, according to the stipulation of both parties, there were more than 20 times as many Negro as white families in the eligible pool of applicants for public housing in Detroit, while the vacancies in projects limited to white occupancy were 17 times as many as those in projects limited to Negro occupancy. In holding such segregation illegal the court of appeals indicated that the implementation of desegregation did not necessarily require immediate integration or a reshuffling of residents in the projects; instead, as in the school cases, the local authorities should proceed with due regard to the variety of obstacles and with all deliberate speed.

Undoubtedly, much of the necessity for litigation aimed at segregated public housing in the North and West has in recent years been obviated by (1) the adoption and implementation by local authorities of nondiscriminatory policies in the selection of tenants for public housing projects and (2) by the passage of State laws and city ordinances prohibiting such discrimination.

Urban renewal programs in some cities have been attacked on the ground that, if consummated, they will result in residential segregation or discriminatory practices in the selection of tenants or purchasers. Thus far only two cases have reached the Federal courts. In one case the complaint alleged a "tacit understanding" between the city of Eufaula, Ala., and private developers that new housing in the area to be developed would be sold or leased only to members of the white race and that the schools and parks planned for the area would also be segregated. The suit was dismissed as premature and based only on speculation that the city officials would ignore "the law that is now so clear" requiring "that there can be no governmentally enforced segregation solely because of race or color." 19

There is only one decision by a Federal court involving racial discrimination in the sale of houses under the mortgage insurance programs administered by the Federal Housing Authority and the

18 Detroit Housing Commisison v. Lewis, 226 F. 2d 180 (6th Cir. 1955).

19 Tate v. City of Eufaula, Alabama, 165 F. Supp. 303, 306 (M.D. Alabama, 1958). In the other case, Negro plaintiffs sought to enjoin the City of Gadsden, Ala., and the Gadsden Housing Authority from undertaking and carrying out two urban renewal projects on the ground that the projects were designed to perpetuate a pattern of segregation. Again, the court found no proof that any unlawful discrimination was indicated in the two plans or that the defendants would enforce segregation in carrying them out. Barnes v. City of Gadsden, Alabama, Civil No. 1091 (N.D. Alabama, 1958), (3 RRLR 712).

Veterans' Administration. In this case, the Court held that while the Federal Government guaranteed loans under conditions requiring approval of architectural and development plans, these did not serve to "make the Government of the United States the builder or developer of the Levittown project." The Court added that, "Neither the FHA nor the VA has been charged by Congress with the duty of preventing discrimination in the sales of housing project properties." 20

This summary shows that Federal decisional law in the field of discrimination in housing is in a state of flux." Recently, a California Superior Court held that in view of the Federal Housing Administration's degree of involvement in the planning and inspection of private housing projects and the insuring of mortgages, there was sufficient governmental action to give a Negro plaintiff a constitutional right not to be discriminated against in the sale of homes by the realestate agents and builders. The court approved the plaintiff's argument that "when one dips one's hand into the Federal Treasury, a little democracy necessarily clings to whatever is withdrawn." The defendants did not appeal.22

Whether the Supreme Court or any Federal court will go this far in applying the principle of equal protection in the housing field cannot now be known. What the Supreme Court will do about segregation in public housing must also remain uncertain until it finally deals with such cases on their merits. But the clear trend of lower court opinion is that such action by governmental authorities is unconstitutional.

The most difficult legal question is whether the Government's participation in private housing, through public assistance in the clearance and sale of land under urban renewal or the provision of Government loan insurance, thereby extends the protection of the Constitution into this field. As shown on page 462ff. it is in large part governmental aid which makes possible the construction by private developers of large projects that become new communities, if not

20 Johnson v. Levitt & Sons, 131 F. Supp. 114, 116 (E.D. Pa. 1955). See also Dorsey v. Stuyvesant Town Corporation, 299 N.Y. 512, 87 N.E. 2d 541 (1949), cert. denied 339 U.S. 981 (1950). The Truman Committee recommended that Congress make just such a charge. Mentioning specifically public education, public housing, and public health services, the Committee recommended that Congress make all forms of Federal assistance to public or private agencies for any purpose conditional on the absence of discrimination and segregation based on race, color, creed, or national origin. (To Secure These Rights, Report of the President's Committee on Civil Rights, 1947, p. 166.)

21 See Note, 107 U. of Penn. L.R. 515 (1959).

Ming v. Horgan, No. 97130, Superior Ct., County of Sacramento, Cal. (1958), 3 RRLR 693, 697. Contra, see Dorsey v. Stuyvesant, supra, n. 20. This decision by the New York Court of Appeals was invalidated by the enactment of city and State legislation prohibiting discrimination in all publicly assisted housing.

towns. The Supreme Court has said that "when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself." 23

There is another way of approaching this problem. Aside from the possibility that courts will, as a matter of law, require nondiscrimination by such private builders and developers, should the Federal Government, either by act of Congress or by Executive order, establish nondiscrimination as a condition for the receipt of Federal aid in housing? The President has by Executive order established equal opportunity and equal treatment as a condition of Government contracts.24 But whether the principle of nondiscrimination should thus by congressional or executive action be extended into the field of housing is a matter of policy not of law.

2. PROGRAMS AND POLICIES OF FEDERAL AGENCIES

Housing and Home Finance Agency (HHFA)

In 1947 the Housing and Home Finance Agency was established to provide a single permanent agency responsible for the principal housing programs and functions of the Federal Government. The primary function of the Agency is the general supervision and coordination of its constituents: the Federal Housing Administration, the Public Housing Administration, the Urban Renewal Administration, and the Community Facilities Administration. The Administrator of the HHFA, Mr. Norman Mason, is also the Chairman of the National Voluntary Mortgage Credit Extension Committee and of the Board of Directors of the Federal National Mortgage Association. He also is directly responsible for approving the "workable programs" of communities seeking the assistance of the Urban Renewal Administration.

These programs will be discussed in separate sections. However, it is the HHFA which deals with the Federal housing programs as a whole. It is the responsibility of the HHFA to assess the housing needs of the Nation and to recommend what further should be done

American Communications Ass'n v. Douds, 339 U.S. 382 at 401 (1950). See also, Steele v. Louisville & Nashville RR., 323 U.S. 192, 208-209 (1944).

24 In Executive Order 10479 of Aug. 13, 1953, establishing the Government Contracts Committee, President Eisenhower declared that "it is the policy of the United States Government to promote equal employment opportunity for all qualified persons employed or seeking employment on Government contracts because such persons are entitled to fair and equitable treatment in all aspects of employment on work paid for from public funds." It reaffirmed existing Executive orders that "require the Government contracting agencies to include in their contracts a provision obligating the Government contractor not to discriminate against any employee or applicant for employment because of race, creed, color, or national origin". See Executive Order 10308 of Dec. 5, 1951 (16 F.R. 12303) in which President Truman established the Committee on Government Contract Compliance and Executive Order 10557 of Sept. 3, 1954.