Waterman, Moore and Feinberg, Circuit Judges.
These cases, brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4), present the issue of whether the five-year durational residency requirement imposed by the New Rochelle Municipal Housing Authority (the Authority) for admission to public housing violates the Equal Protection Clause of the Fourteenth Amendment.
The relevant facts are not complicated.*fn1 The appellant Authority is a public corporation, established by § 407 of the New York Public Housing Law, McKinney's Consol.Laws, c. 44-A. Its function is to build, maintain, and administer public housing facilities in New Rochelle. Funds were borrowed from the State of New York for construction purposes, and the Authority receives a subsidy from both the State and the City of New Rochelle. No funds are received from the federal government. New York law provides the general framework for eligibility requirements for admission to public housing and specifically allows each locality to set its own residence requirements.*fn2 Section 3(a) of the Master Management Resolution of the appellant Authority provides in part:
(a) There shall be admitted to a state aided project only families:
1. One of whose members is a resident of the City of New Rochelle for not less than five continuous years prior to the time of admission * * * or were residents of the City of New Rochelle for not less than five continuous years prior to leaving the City, and left the City due to the housing shortage because they were unable to find quarters in the City * * *
The Authority has interpreted the word "admission" in the above provision to mean "application for admission," so that a family must satisfy the five-year residency requirement before it may obtain a place at the end of the present waiting list of applicants.
The housing provided by the Authority is insufficient to meet the demands of the residents of New Rochelle, and at present there is a waiting list of such length that persons whose applications have already been accepted must wait an estimated three to ten years before an apartment becomes available in a desired size category. Thus, new residents of New Rochelle who desire public housing but do not satisfy the five-year residency requirement may be delayed from eight to fifteen years.
Plaintiff-respondent Earnestine King moved from North Carolina to New Rochelle in the middle of 1965 in order to be with her mother, who was undergoing an operation, and in the hope of obtaining employment. She is presently employed as a typist and, in addition, receives a monthly grant of partial public assistance. Respondent Gertrude Frazier moved to New Rochelle from Yonkers, New York, in June 1968. Respondent Dorothy Green, intervenor in the King case, moved from White Plains, New York, to New Rochelle in the fall of 1967 and is presently receiving public assistance. Respondents all support families, ranging in size from one to five children, and they have continuously resided in New Rochelle since they moved there. Each respondent has on several occasions requested an application for public housing from the Authority; these requests have been refused, or, if an application was obtained, it was denied because the applicants failed to meet the five-year residency requirement.
The court below held that the five-year residency requirement is unconstitutional in light of Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). We agree. In reaching our conclusion, we note the First Circuit's similar conclusion, in an able opinion by Judge Coffin, in Cole v. Housing Authority of City of Newport, 435 F.2d 807 (1 Cir. 1970), affirming 312 F. Supp. 692 (D.R.I.1970), a case which is in all respects indistinguishable from the instant case. Although we reach our result independently of the First Circuit, we adopt that court's analysis on the finer points involved and present in this opinion only the broad fabric of our approach.
In applying the Equal Protection Clause to the classification drawn by the Authority, we first decide the burden which must be met by the Authority in legitimizing the difference. The traditional test requires only that the classification be rationally related to a permissible goal.*fn3 However, if a fundamental personal right is involved, a classification can be upheld only if it furthers a compelling state interest.*fn4 Respondents assert that the residency requirement impinges upon their right to travel which, under Shapiro, supra, 394 U.S. at 634, 89 S. Ct. 1322, is a fundamental personal right. The Authority counters that, because of the lengthy waiting lists involved, there is no deterrence to travel effected by the five-year residency requirement. Without passing on this contention, we do find that the residency requirement penalizes respondents by adding an additional period of as much as five years to the time they must wait for public housing and that this penalty is imposed solely because they have recently exercised their right to travel.*fn5 Hence, "unless shown to be necessary to promote a compelling governmental interest, [the classification] is unconstitutional." Shapiro, supra, at 634, 89 S. Ct. at 1331 (emphasis in original).
The Authority would distinguish Shapiro on several grounds. It is urged first that Shapiro does not apply to intrastate travel and therefore the residency requirement does not affect any fundamental right of respondents Green and Frazier, both of whom moved to New Rochelle from cities within New York State. However, we do not believe that the use of the term "interstate travel" in Shapiro was anything more than a reflection of the state-wide enactments involved in that case. Indeed, the Supreme Court specifically refused to ascribe the source of the right to travel to a particular constitutional provision, 394 U.S. at 630 and n. 8, 89 S. Ct. at 1329 but relied on "our constitutional concepts of personal liberty," 394 U.S. at 629, 89 S. Ct. at 1329. It would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.*fn6 Cf. Valenciano v. Bateman, 323 F. Supp. 600 (D.C.Ariz.). See Kent v. Dulles, 357 U.S. 116, 125-126, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958); Bell v. Maryland, 378 U.S. 226, 255, 84 S. Ct. 1814, 12 L. Ed. 2d 822 (1964) (separate opinion of Douglas, J.); Note, Residence Requirements after Shapiro v. Thompson, 70 Colum.L.Rev. 134, 137-139 (1970).
The Authority also contends that Shapiro, which concerned a divisible commodity (welfare payments), is not applicable where the commodity is physically limited and indivisible as in the case of public housing. But respondents are not seeking immediate accommodations in public housing; they are asking only that they be granted equal treatment with long-term residents in obtaining waiting-list priority. Thus, without passing on the relevance of the distinction urged by the Authority, we find that the actual commodity involved in this case is time, a commodity which is readily divisible. Just as welfare payments may be spread more thinly over a greater number of recipients, so can waiting time be distributed among applicants for public housing.
In analyzing the Authority's rationale for the five-year residency requirement, we find no compelling governmental interest. It is not contended that longterm residents are more needy than short-term residents, nor that public housing will be of more benefit to longterm residents. Indeed, the justification the Authority advances is similar to the justification the Court found unacceptable in Shapiro : that each community should take care of its own first. Indeed, inasmuch as this goal is constitutionally impermissible under Shapiro, the lack of ...