have a secular purpose, the court can find no justification
for applying a different rule to the Hasidim. The court
concludes that there was a secular purpose in selling Site 4
to the Academy to service inhabitants of Area I.
Plaintiffs say that the "cumulative effect" over the years
of purchases by Hasidic interests in Area I for non-religious
as well as religious uses "will inexorably lead to the
establishment of a religiously and racially exclusive Hasidic
enclave." But this hardly addresses that question of whether
the sale of Site 4 had the requisite secular purpose.
The court will discuss the contention of "cumulative effect"
in its treatment of plaintiffs' arguments under the Equal
Protection and Due Process clauses of the Fourteenth
Plaintiffs' contention that the sale of Site 4 to the
Academy has the primary effect of advancing Hasidic Judaism is
partly based on the premise that the City "handed over" the
property to the Academy, citing cases involving grants to
religious organizations. The premise is faulty. The Academy
purchased the land at market value. The City did not expend
public funds to accommodate the desires of a religious sect or
to promote a tenet of a sect's religious doctrine. The Academy
has received no greater benefit than any other individual or
organization with sufficient funds to purchase land from the
City at market value. See Ellis v. City of Grand Rapids,
257 F. Supp. 564 (W.D.Mich. 1966); 64th Street Residences v. City of
New York, 4 N.Y.2d 268, 174 N.Y.S.2d 1, 150 N.E.2d 396 (Ct.
App. 1958). Cf. Parents' Ass'n of P.S. 16 v. Quinones,
803 F.2d 1235 (2d Cir. 1986); Bollenbach v. Monroe-Woodbury Cent. Sch.
Dist., 659 F. Supp. 1450 (S.D.N.Y. 1987).
Plaintiffs say that the plan to build a synagogue, yeshiva,
and faculty housing "and the agreements surrounding that plan"
foster "excessive governmental entanglement" with religion.
Insofar as the assertion is that the administration of the
so-called cross subsidy fund agreement causes excessive
religious entanglement with government, the court does not
consider the contention. This suit has not put in issue under
the First Amendment either the validity of that agreement or
the manner in which expenditures from the fund have been made
to create low income housing.
One of the present three leaders of plaintiff Housing
Committee asked at the Community Board hearing in 1984 that
the proceeds from the sale in Site 4 be placed in the
cross-subsidy fund. If plaintiffs wish either to set aside the
agreement and require the deposit of those funds in the City's
general account or to revise the procedure for determining the
housing projects to receive funds, they are free to bring
action to achieve those ends.
Plaintiffs suggest that there will be "excessive
entanglement" because the sale of Site 4 to the Academy will
have the effect of "continuing political strife" over aid to
religion. See Committee for Public Education & Religious
Liberty v. Nyquist, 413 U.S. 756, 794, 93 S.Ct. 2955, 2976, 37
L.Ed.2d 948 (1973); Meek v. Pittenger, 421 U.S. 349, 372, 95
S.Ct. 1753, 1766, 44 L.Ed.2d 217 (1975).
The cited cases concerned the validity of continuing aid to
church related schools. No doubt for years there has been
recurrent if not continual political strife between the
Hasidic and Hispanic communities in Williamsburg. Much as this
court might wish otherwise, there seems to be no lively
prospect that anything this court decides will end or even
mitigate that strife.
However that may be, the concept of "entanglement" in
violation of the First Amendment has to do with continuing
involvement of government with religious organizations. The
completed sale of Site 4 does not constitute an on-going
relationship between the City and the Academy. That there is
now political opposition to allowing the Academy to develop
the property for the announced purposes for which it was
conveyed in 1980 and 1988 is not enough to show excessive
entanglement violative of the First Amendment. Cf Lynch v.
Donnelly, 465 U.S. 668, 684, 104 S.Ct. 1355, 1365, 79 L.Ed.2d
DUE PROCESS AND EQUAL PROTECTION
Plaintiffs contend that in selling Site 4 to the Academy the
City acted with an "invidious discriminatory purpose" and
"engaged in intentional discrimination" against Latino and
African-American residents of the Williamsburg neighborhood
and in favor of the Hasidim, in violation of the Due Process
and Equal Protection clauses of the Fourteenth Amendment.
See Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 265-67, 97 S.Ct. 555, 563-64,
50 L.Ed.2d 450 (1977); United States v. Yonkers, 624 F. Supp. 1276
(S.D.N.Y. 1985), aff'd, 837 F.2d 1181, 1221-22 (2d Cir.),
cert. den., 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922
There is no admissible direct evidence that the City
decision makers had such an intent. The court does not
consider inadmissable hearsay and rumors.
Plaintiffs' main argument is that because City officials
were aware of the segregationist tendencies of the all-white
Hasidic community the court should infer that the City acted
with discriminatory intent in selling the land.
The Hasidim do segregate themselves to a certain extent
through an adherence to religious and dietary laws and the use
of a language not shared with many others. For example, while
Academy officials stated at trial that a nonJewish child could
attend a yeshiva of the Academy, such attendance is at best
unlikely because classes are taught in Yiddish and all
students must obey the sect's rules of conduct. Similarly,
while the Academy has suggested it would offer use of the
yeshiva dining area as a catering hall for other community
members, the Academy's requirement that users observe the
dietary laws makes non-Jewish use improbable.
City officials were doubtless aware of the practices of the
Hasidim. Their distinctive customs of the Hasidim are apparent
to those who work with them and perhaps to a large degree are
a matter of public knowledge in the City.
The Supreme Court has made a distinction between the
awareness of an official of the discriminatory effect of a
decision and the intent of an official to discriminate. In
Personnel Administrator v. Feeney, 442 U.S. 256, 99 S.Ct. 2282,
60 L.Ed.2d 870 (1979), the Supreme Court held that in order to
find discriminatory purpose, the court must conclude that "the
decisionmaker selected or reaffirmed a particular course of
action at least in part 'because of,' not merely 'in spite of,'
its adverse effects upon an identifiable group." 442 U.S. at
279, 99 S.Ct. at 2296. To succeed plaintiffs must show that the
City officials sold the property to the Hasidim because they
would segregate themselves from non-Hasidim.
A plaintiff may, of course, establish discriminatory intent
through circumstantial evidence. The Arlington Heights case
directs courts to undertake "a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available." 429 U.S. at 266, 97 S.Ct. at 564. Relevant factors
include (1) the degree of any discriminatory effect of the
action, (2) its historical background, (3) the sequence of
events that led to the action, (4) the presence or absence of
departures from normal procedures or substantive criteria, and
(5) the legislative or administrative history of the action.
429 U.S. at 267-68, 97 S.Ct. at 564-65. United States v.
Yonkers Board of Education, supra; United States v. City of
Parma, Ohio, 494 F. Supp. 1049, 1054 (N.D.Ohio 1980). Whatever
discriminatory effect the City's actions have had, they have
not created the Hasidic enclave that plaintiffs envisage. The
majority of housing units in Area I are integrated, as the
figures cited above show.
It is true that those parcels designated for development at
market rate housing have been sold at appraised value to
whites and primarily to Hasidim. Also, the parcels set aside
for institutional use have largely been sold at market rates,
one of them at auction, to the Hasidic community. To that
extent, given the Hasidic doctrine and practices, there may
well be some segregative result.
But in considering whether the court should draw an
inference of discriminatory purpose from this effect, the
court must consider the alternatives available to the
decisionmaker. See Personnel Administrator v. Feeney, supra,
442 U.S. at 283, 99 S.Ct. at 2298 (Marshall, J. dissenting);
Clients' Council v. Pierce, 711 F.2d 1406, 1409 (8th Cir.
1983); see also Note, Discriminatory Purpose and
Disproportionate Impact: An Assessment after Feeney, 79
Colum.L.Rev. 1376, 1394, 1411 (1980). If the City had no
reasonable alternative in complying with the Urban Renewal
plan, the court may not fairly infer a hidden motive to favor
Hasidim and discriminate against Hispanics and Blacks.
No minority group developer or non-Hasidic organization was
found or came forward with alternative proposals for
development of the market-rate housing and institutional
parcels the Academy bought. The Development Department did not
bar non-Hasidim from making proposals.