MEMORANDUM OPINION AND ORDER
SIDNEY A. FITZWATER, Chief Judge.
In this action alleging that defendant Texas Department of Housing and Community Affairs ("TDHCA") perpetuates racial segregation and discrimination through the allocation of Low Income Housing Tax Credits ("LIHTC"), the court must decide whether plaintiff The Inclusive Communities Project, Inc. ("ICP") has standing and whether it has established prima facie cases under the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3604(a) and 3605(a), the Fourteenth Amendment (actionable under 42 U.S.C. § 1983), and 42 U.S.C. § 1982. Concluding that ICP has demonstrated its standing beyond peradventure, has established a prima facie case for each of its claims, and has adduced evidence that would enable a reasonable jury to find in its favor on each of its claims, the court grants ICP's motion for partial summary judgment and denies defendants'
The background facts and procedural history of this case are set out in the court's prior memorandum opinion and order. See Inclusive Cmtys. Project, Inc. v. Tex. Dep't of Hous. & Cmty. Affairs, 2008 WL 5191935, at *1 (N.D.Tex. Dec. 11, 2008) (Fitzwater, C.J.) ("ICP I"). The court therefore adds to ICP I the facts and procedural history pertinent to the court's present decision.
ICP is a Dallas-based non-profit organization that assists low-income persons in finding affordable housing and seeks racial and socioeconomic integration in Dallas housing. In particular, ICP works with African-American families who are eligible for the Dallas Housing Authority's Section 8 Housing Choice Voucher program ("Section 8"). ICP assists Section 8 participants in obtaining apartments in predominately Caucasian,
ICP alleges that TDHCA has disproportionately approved tax credits for low-income housing in minority neighborhoods and has denied applications for non-elderly
ICP moves for partial summary judgment, asking the court to hold that ICP has standing to bring its claims, that it has established a prima facie case of racial discrimination based on a pattern of racial segregation in LIHTC units, and that, under the circumstantial evidence framework of Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), defendants' actions have a greater effect on non-Caucasians than on Caucasians. Defendants move for judgment on the pleadings and for summary judgment, asserting that ICP lacks standing and that it is not entitled to relief on the merits.
The court begins by summarizing the standards under which the parties' motions are to be decided.
Defendants move under Rule 12(c) for judgment on the pleadings. A Rule 12(c) motion "is designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts." Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir.1990) (per curiam) (internal citations omitted). The motion "should be granted only if there is no issue of material fact and if the pleadings show that the moving party is entitled to prevail as a matter of law." Greenberg v. Gen. Mills Fun Grp., Inc., 478 F.2d 254, 256 (5th Cir.1973) (per curiam). The standard for deciding a motion under Rule 12(c) is the same as the one for
ICP and defendants both move for summary judgment. Their summary judgment burdens depend on whether they are moving for summary judgment on a claim for which they will have the burden of proof at trial.
ICP moves for summary judgment on claims for which it will bear the burden of proof at trial. To be entitled to summary judgment, ICP "must establish `beyond peradventure all of the essential elements of the claim[.]'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D.Tex.1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986)). "The court has noted that the `beyond peradventure' standard is `heavy.'" Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D.Tex.2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D.Tex. Aug. 23, 2007) (Fitzwater, J.)).
Defendants move for summary judgment on claims for which they will not bear the burden of proof at trial.
ICP and defendants both bring motions that require that the court decide whether ICP has standing to bring suit. In ICP I the court held that it does. See ICP I, 2008 WL 5191935, at *6, *9 (denying defendants' motion to dismiss ICP's claim for lack of standing). Defendants' Rule 12(c) and summary judgment motions essentially urge the court to reconsider the analysis of ICP I, which the court declines to do. But because ICP now moves for summary judgment establishing that it has standing, the court will decide the question under the summary judgment standard.
To determine whether ICP had standing in the context of a motion to dismiss, the court presumed that the allegations of ICP's complaint were true. See ICP I, 2008 WL 5191935, at *3 (citing Garcia v. Boyar & Miller, P.C., 2007 WL
The doctrine of standing "involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To satisfy the requirements of Article III of the Constitution, ICP must show, at an "`irreducible constitutional minimum,'" that it has "suffered `injury in fact,' that the injury is `fairly traceable' to the actions of the defendant[s], and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). The injury in fact, moreover, must be "concrete and . . . actual or imminent, not conjectural or hypothetical," and "the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 & 561 n. 1, 112 S.Ct. 2130 (citations omitted).
Only Article III standing is required to bring a claim under the FHA. See ICP I, 2008 WL 5191935, at *3 (quoting Lincoln v. Case, 340 F.3d 283, 289 (5th Cir.2003) ("The Supreme Court has held that the sole requirement for standing under the FHA is the Article III minima.")). But ICP also asserts claims under 42 U.S.C. §§ 1982 and 1983, for which there are prudential limitations on standing. See ICP I, 2008 WL 5191935, at *6 ("The critical question, however, is whether the prudential rule against asserting the rights of others—inapplicable under the FHA— bars ICP's standing under these statutes."). Under the prudential limitations, "[o]rdinarily, one may not claim standing. . . to vindicate the constitutional rights of some third party." Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (quoting Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953)). In ICP I the court held that precluding ICP from asserting its §§ 1982 and 1983 claims would not serve the purposes of the prudential rule against third-party standing. See ICP I, 2008 WL 5191935, at *7. Because the court is not reconsidering that holding (and the parties do not urge the court to do so), it will only consider at the summary judgment stage whether ICP has established beyond peradventure that it has Article III standing.
To satisfy Article III standing, ICP must first establish injury in fact. In ICP I the court cited Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), in which the Supreme Court held if "[defendants'] steering practices have perceptibly impaired [a fair housing organization's] ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact." Id. at 379, 102 S.Ct. 1114. The Court pointed specifically to the "consequent drain on the organization's resources" as evidence of that injury. Id. ICP seeks to place its clients in Walker Target Area Tracts, see supra note 3, or other high-opportunity (predominately
To establish causation, ICP presents evidence that TDHCA disproportionately denies tax credits to proposed developments in Caucasian neighborhoods, making it more difficult for ICP to find Section 8-participating housing in those areas.
Defendants argue that TDHCA does not solely control the location of low-income housing in Dallas because the developers choose where to locate housing. But this argument misconstrues the nature of ICP's claims. ICP does not complain of the distribution of low-income housing in general; ICP challenges the allegedly discriminatory actions of TDHCA in disproportionately denying tax credits to proposed developments in Caucasian neighborhoods. TDHCA does control the approval or denial of applications actually submitted.
Defendants also point to Jaimes v. Toledo Metropolitan Housing Authority, 758 F.2d 1086 (6th Cir.1985). In Jaimes the court held that plaintiffs (potential low-income housing tenants) could not establish causation sufficient for standing even though they were excluded from Toledo's suburbs, where there was no public housing. See id. at 1096. But in Jaimes the court noted that, even if defendants had sought to build such public housing, it was "still a matter of speculation and conjecture as to whether [ ] third party, non-defendant [suburban town governments] would grant approval for construction of units that plaintiffs could afford, qualify
In the present case, no government agencies other than TDHCA have the authority to grant or deny tax credits. Although TDHCA must follow the mandates of § 42, it has final discretion in allocating tax credits. In addition, ICP presents evidence that proposed developments in Caucasian areas were disproportionately denied tax credits. The direct actions of TDHCA in denying those tax credits, for reasons to be analyzed below, to actual proposed developments distinguishes this case from the more hypothetical injury presented in Jaimes.
Defendants point to this sentence in ICP I: "Because no facts alleged suggest the existence of any independent, race-neutral reasons why TDHCA would disproportionately deny tax credit applications for proposed developments in Caucasian neighborhoods, it is fair and not merely speculative to trace this imbalance to the alleged consideration of race." ICP I, 2008 WL 5191935, at *5. Defendants argue that § 42's stated preference for development in low-income areas is a race-neutral explanation for the disproportionate denial of tax credit applications of proposed developments in predominately Caucasian neighborhoods. They assert that this race-neutral reason indicates that ICP cannot prove causation. But defendants' race-neutral explanation, and whether it is pretextual, goes to the merits of ICP's claim, not to standing. ICP has demonstrated beyond peradventure that TDHCA's approval or denial of tax credits to developers directly affects the distribution of low-income housing in Dallas, which injures ICP. The court holds that ICP has established the element of causation.
The third element is whether the injury to ICP will likely be redressed by a favorable decision. As discussed in ICP I, the broad equitable remedies available to this court would redress the alleged injury. See ICP I, 2008 WL 5191935, at *6. The court need not address any further evidence because its analysis in ICP I is sufficient.
Accordingly, the court holds ICP has established standing beyond peradventure, and it grants ICP summary judgment in this respect. The court denies defendants' Rule 12(c) motion and motion for summary judgment to the extent they seek dismissal based on ICP's alleged lack of standing.
The court now turns to ICP's contention in its motion for partial summary judgment that it has established prima facie cases of discrimination under the FHA, § 1982, and § 1983.
As a threshold matter, the court notes that, in some instances, the existence of a prima facie case is not relevant. See Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607 (5th Cir.2007) ("Because this case was fully tried on the merits, the McDonnell Douglas burden-shifting framework drops from the case. . . . [T]he sufficiency of the prima facie case as such is no longer relevant." (internal quotation marks and citations omitted)); Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 575 (5th Cir.2004) (noting that while prima facie
The court first turns to ICP's FHA claim. The FHA prohibits discrimination in the provision of housing. See 42 U.S.C. §§ 3604(a) and 3605(a).
ICP maintains in its motion for partial summary judgment that it has established beyond peradventure a prima facie case of racial discrimination under the FHA. To establish a prima facie case of discriminatory impact (also referred to as discriminatory effect), ICP must show "adverse impact on a particular minority group" or "harm to the community generally by the perpetuation of segregation." Huntington Branch, 844 F.2d at 937; see also Arbor Bend, 2005 WL 548104, at *12. ICP need not show that TDHCA acted with discriminatory intent or motive. See Arbor Bend, 2005 WL 548104, at *12. ICP's prima facie burden is not a heavy one.
ICP has established that its clients are African-Americans, members of a protected class, who rely on government assistance with housing, and that TDHCA has disproportionately approved tax credits for non-elderly developments in minority neighborhoods and, conversely, has disproportionately denied tax credits for non-elderly housing in predominately Caucasian neighborhoods. According to ICP's evidence, from 1999-2008, TDHCA approved tax credits for 49.7%
This evidence establishes that TDHCA disproportionately approves applications for non-elderly LIHTC units in minority neighborhoods, leading to a concentration of such units in these areas. This concentration increases the burden on ICP as it seeks to place African-American Section 8 clients in LIHTC housing in predominately Caucasian neighborhoods. Other courts have held that actions that cause disproportionate harm to African-Americans and produce a segregative impact on the entire community create a strong prima facie case. See, e.g., Huntington Branch, 844 F.2d at 938 (holding that failure to re-zone Caucasian neighborhood for LIHTC apartments perpetuated segregation and had adverse impact on Section 8 participants who were disproportionately minorities); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1288 (7th Cir. 1977) (same); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1219-20 (2d Cir.1987) (holding that city perpetuated racial segregation in housing, in violation of FHA, where 96.6% of subsidized housing was in areas with 40% or greater minority population); see also Dews v. Town of Sunnyvale, 109 F.Supp.2d 526, 565-68 (N.D.Tex.2000) (Buchmeyer, C.J.). Because ICP has adduced evidence that is uncontested, it has established beyond peradventure its prima facie case of discrimination under the FHA.
The court turns next to ICP's intentional discrimination claim brought under 42 U.S.C. §§ 1982 and 1983. ICP may use direct or circumstantial evidence to establish its prima facie case of intentional discrimination under §§ 1982 and 1983. See Vill. of Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555. ICP has presented no direct evidence of discrimination, so the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies. See Arbor Bend, 2005 WL 548104, at *6.
ICP moves for summary judgment establishing its prima facie case of discrimination
Section 1982 "prohibits `all racial discrimination, private as well as public,' with respect to property rights." Evans v. Tubbe, 657 F.2d 661, 663 n. 2 (5th Cir. Unit A Sept.1981) (quoting Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968)). "To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Moore v. Dallas Indep. Sch. Dist., 557 F.Supp.2d 755, 761 (N.D.Tex.2008) (Fitzwater, C.J.) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994)), aff'd, 370 Fed.Appx. 455 (5th Cir. 2010). ICP alleges that defendants have violated the Equal Protection Clause of the Fourteenth Amendment, which prohibits intentional racial segregation in government-assisted housing. See, e.g., Banks v. Dallas Hous. Auth., 119 F.Supp.2d 636, 638 n. 3 (N.D.Tex.2000) (Kaplan, J.).
To prove claims under § 1982 and the Equal Protection Clause, ICP must demonstrate discriminatory intent, not merely discriminatory effect. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (quoting Vill. of Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555 ("Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.")); see also Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir.1986) (noting that although FHA claim requires only showing of discriminatory effect, § 1982 claim requires finding of intentional racial discrimination); Dews, 109 F.Supp.2d at 570 ("In contrast to claims brought under the [FHA], plaintiffs suing under §§ 1981, 1982, 1983 and 2000d must prove discriminatory intent.").
ICP need only present enough evidence to give rise to an inference of discrimination. See Kennedy v. City of Zanesville, 505 F.Supp.2d 456, 493 (S.D.Ohio 2007). The prima facie case is not inflexible, and the specific facts required to be proved may vary depending on the factual situation. See id. at 493-94. "It is relatively easy ... for a plaintiff to establish a prima facie case[.]
ICP has presented enough evidence to give rise to an inference that TDHCA discriminated on the basis of race.
First, ICP has presented statistical and comparative evidence that may give rise to an inference of discriminatory intent. ICP alleges that TDHCA is more likely to approve LIHTC developments in Caucasian neighborhoods if the likely tenants are Caucasian. ICP highlights the fact that, in Caucasian neighborhoods, elderly LIHTC housing is approved more often than non-elderly LIHTC housing, and elderly residents are more likely to be Caucasian. According to TDHCA data, from 1999 to 2008, TDHCA approved tax credits for 70.2% of the proposed elderly units in 90% or greater Caucasian census tracts. TDHCA approved just 37.4% of proposed non-elderly units in the same tracts.
ICP also presents evidence of a suspect sequence of events, and that TDHCA employs a subjective decisionmaking process. ICP relies on evidence that, from 1991-1993, TDHCA considered as one of its LIHTC selection criteria whether a development would provide desegregated housing opportunities. In 1994, TDHCA eliminated this criterion despite the concern about segregation in Dallas housing widely noted at the time due to the contemporaneous Dallas housing desegregation case. See Walker v. City of Mesquite, No. 3:85-CV-1210-R (N.D. Tex. Filed June 25, 1985) (Buchmeyer, C.J.). ICP suggests that the "repeal" of TDHCA's written desegregation preference in favor of TDHCA's discretion is related directly to TDHCA's intentional discrimination. P. Oct. 22, 2009 Br. 18.
For direct evidence of intent, ICP relies on contemporary statements made by TDHCA officials in board meetings as indications that race influenced defendants' actions. For example, at a February 2003 board meeting, TDHCA board member Shadrick Bogany ("Bogany") stated: "I'm tired of [these projects] being put in minority communities all the time."
The court holds that ICP has presented enough evidence to establish beyond peradventure an inference of discriminatory intent. The court thus grants ICP summary judgment as to its prima facie case under §§ 1982 and 1983.
The court now turns to the remaining parts of defendants' Rule 12(c) motion and motion for summary judgment.
In their Rule 12(c) motion and motion for summary judgment, defendants request that the court hold that there is no genuine issue of material fact that their actions serve a compelling government interest, as required for ICP's FHA claim,
The court considers first defendants' motion for summary judgment as to ICP's FHA claim. Because ICP has established its prima facie case of discriminatory impact under the FHA, the burden shifts to defendants to prove that TDHCA's actions were in furtherance of a compelling government interest. See AHF Cmty. Dev., LLC v. City of Dallas, 633 F.Supp.2d 287, 304 (N.D.Tex.2009) (Fitzwater, C.J.); see also Arbor Bend, 2005 WL 548104, at *12; Huntington Branch, 844 F.2d at 939. This interest must be bona fide and legitimate, and there must be no less discriminatory alternatives. See Huntington Branch, 844 F.2d at 939 (holding that "[t]he McDonnell Douglas test, however, is an intent-based standard for disparate treatment cases inapposite to the disparate impact claim asserted here. No circuit, in an impact case, has required plaintiffs to prove that defendants' justifications were pretextual.").
Defendants concede for purposes of their summary judgment motion that ICP has established a prima facie case, and they maintain that their actions further a compelling government interest. Defendants argue that the concentration of LIHTC developments in inner-city areas serves a compelling government interest; that 26 U.S.C. § 42, the statute that establishes low-income housing tax credits, compels defendants to locate developments in the most impoverished areas; that it is impossible for defendants to comply with § 42 and achieve ICP's request that 50% of LIHTC developments be located in the suburbs; and that to the extent they conflict, § 42 controls over the FHA and § 1982.
To determine whether defendants' justification rises to the level of a compelling government interest, the court will consider "(1) whether [TDHCA's actions] in fact further the governmental interest asserted; (2) whether the public interest served by [TDHCA's actions] is
Defendants have failed to establish that TDHCA cannot comply with § 42 in a way that has less discriminatory impact on the community. They offer as their justification TDHCA's compliance with § 42(m)(1)(B)(ii), which provides that a qualified allocation plan gives preference to projects serving lowest-income tenants and projects that are located in qualified census tracts (areas designated by HUD as low-income). Defendants have failed to establish without genuine dispute that TDHCA cannot comply with both § 42 and the FHA. Defendants in fact acknowledge that there is no conflict between § 42 and the FHA. The court therefore denies defendants' motion for summary judgment as to ICP's FHA claim. See, e.g., Huntington Branch, 844 F.2d at 941 (holding that defendant town violated the FHA, reversing district court, and entering judgment for plaintiff NAACP).
The court now considers defendants' motion for summary judgment as to ICP's §§ 1982 and 1983 claims. Because ICP has established its prima facie case of discriminatory effect under McDonnell Douglas, the burden shifts to defendants to articulate a legitimate, nondiscriminatory reason for their actions. See St. Mary's Honor Ctr., 509 U.S. at 506-07, 113 S.Ct. 2742 (addressing racial discrimination claim under Title VII). Defendants' burden is one of production, not proof, and involves no credibility assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir.2003) (age discrimination case). "It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant[s], `[t]he ultimate burden of persuading the trier of fact that the defendant[s] intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr., 509 U.S. at 507, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089)
Once defendants have produced a nondiscriminatory reason, the burden shifts back to ICP to prove that defendants' proffered reason is pretextual, which is circumstantial evidence of discrimination. See West, 330 F.3d at 385 ("It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." (internal quotation marks omitted)); St. Mary's Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742 (Title VII case) (holding that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.... But the [appellate court's] holding that rejection of the defendant's proffered reasons compels judgment for the plaintiff" is incorrect). "[P]laintiffs must present evidence that would allow a rational factfinder to make a reasonable inference that race was a determinative reason for the housing decision." Jim Sowell Constr. Co. v. City of Coppell, 61 F.Supp.2d 542, 546 (N.D.Tex.1999) (Fitzwater, J.) (citing Simms, 83 F.3d at 1556). But the Supreme Court has held that "discrimination may well be the most likely alternative explanation" for defendants' actions once the plaintiff offers evidence that defendants' reason is pretextual. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097 ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."); see also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 223 (5th Cir. 2000). The Court cautioned, however, that there are instances where although plaintiff has established a prima facie case of discrimination and offered evidence that defendants' justification is false, no rational factfinder could conclude that defendants' actions were discriminatory. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097.
Defendants offer a nondiscriminatory reason for their actions by pointing to the statute establishing low-income housing tax credits, 26 U.S.C. § 42.
The court now turns to the third step and holds that ICP has presented sufficient evidence that defendants' proffered reason is pretextual to require a trial. See, e.g., Britt, 978 F.2d at 1450 (age discrimination case) ("In the context of summary judgment ..., the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext."). The following examples are illustrative.
First, ICP has produced evidence that only 34% of all LIHTC units are in qualified census tracts, and that only 39.8% of all LIHTC units in qualified census tracts received the 130% bonus. Under TDHCA's QAP, applications are awarded points if they meet desirable selection criteria, and can receive over 200 points. See 10 Tex. Admin. Code § 50.9. A proposed location in a qualified census tract earns an application just one point, equal to the bonus given to developments with a gazebo. See 10 Tex. Admin. Code §§ 50.9(i)(25) and (h)(4)(A)(ii)(III). Thus ICP has presented evidence that TDHCA's primary justification, that its actions are required by § 42, is relevant to only 34% of TDHCA's developments.
Second, ICP points again to the evidence of discriminatory intent discussed supra at § IV(F). Circumstantial evidence of discriminatory intent allows a jury to make a reasonable inference that race was a determinative reason for the housing decision. See Vill. of Arlington Heights, 429 U.S. at 266-68, 97 S.Ct. 555; Jim Sowell Constr. Co., 61 F.Supp.2d at 546-47 (listing non-exhaustive guiding factors, including (1) the discriminatory effect of the official action, (2) the historical background of the decision, (3) the specific sequence of events leading up to the challenged decision, (4) departures from the normal procedure, (5) departures from the normal substantive factors, and (6) the legislative or administrative history of the decision). ICP has presented evidence of the discriminatory effect of TDHCA's tax credit allocation. ICP has also produced minutes from TDHCA board meetings in which tax credits for minority-area developments were approved even though the areas had a high concentration of low-income housing developments and despite some board members' objections.
Considering all of this evidence together, the court holds that ICP has raised a genuine issue of material fact as to the pretextual nature of defendants' proffered
* * *
ICP's October 2, 2009 motion for partial summary judgment is granted. Defendants' October 2, 2009 motion for judgment on the pleadings and their October 2, 2009 motion for summary judgment are denied. ICP's November 9, 2009 motion for leave to file supplemental appendix is denied as moot.
But in Dews Chief Judge Buchmeyer held that the defendant town's justifications for its zoning plan, which had a discriminatory effect, were not bona fide, legitimate, or the least discriminatory means of accomplishing zoning objectives. Dews, 109 F.Supp.2d at 568-69. The defendant maintained that its "one-unit-per-acre" zoning was necessary to protect public health and comply with regional obligations of environmental protection, transportation, air quality, and agricultural protection. See id. Chief Judge Buchmeyer found that this justification was pretextual and that less discriminatory zoning plans were available. See id. He held that the plaintiff had established liability under the FHA. See id. at 569.
First, ICP alleges violations of statutes and of the Fourteenth Amendment. Second, the FHA, § 1982, and § 42 are not in direct tension, and it is not clear that TDHCA could not comply with the three statutes. Nothing in § 42 requires that entities like TDHCA act in a discriminatory manner or in violation of the FHA or § 1982. "The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Therefore, the jury must decide whether defendants' actions violated the FHA, § 1982, and § 1983, even if they demonstrate that TDHCA followed § 42.