HOUSING DISCRIMINATION SPRING 2008



HOUSING DISCRIMINATION SPRING 2008

INFORMATION MEMO ON UNIT ONE

TABLE OF CONTENTS

(A) Unit One: Covered Topics & List of Relevant Exam Questions

(B) Marina Point: Additional Problems

(C) Write-Up of Discussion Groups (1/18) (Alphabetical)

(D) Marina Point Problems: Comments and Best Student Answers

(A) Unit One: Covered Topics

& List of Relevant Old Exam Questions

(1) Inclusive & Exclusive Statutes

(a) Marina Point: Questions 2J 3H 3N 3P & Additional Questions Below

(b) Inclusive v. Exclusive Statutes (Policy): Question 2J

(2) Protected Characteristics:

(a) Federal v. State/Local Coverage: General Awareness

(b) Adding Additional Protected Classes (Policy): Questions 2B 2I

(c) Handicap/Disability (incl. Written Assignment I Comments/Model Answers): General Awareness

(3) History: General Awareness

(4) Theories of Statutory Interpretation: General Awareness, Especially re Question 1

(B) Marina Point: Additional Problems

The two problems that follow were short exam questions for Property classes in which I taught Marina Point. If you’d like to do them under exam conditions, give yourself about 10 minutes to read and outline the problem and then twenty minutes to write your answer. You can find comments and the best student answers at the end of this Information Memo.

(1) Discuss whether Loretta’s decision not to rent the apartment to Patrick in the following scenario should be considered “arbitrary” under Marina Point, and therefore a violation of California’s Unruh Act. Loretta is an enthusiastic alumna of Contra Costa College (CCC) in San Carlos, California. When she purchased an apartment complex near the campus, she decided to rent only to CCC students and alumni. Thus, when Patrick revealed that he was a graduate of nearby Whitcomb University, she refused to rent to him even though he had a good job and good references.

(2) Discuss whether Lourdes’s policy in the following scenario should be considered “arbitrary” under Marina Point, and therefore a violation of California’s Unruh Act. Lourdes owns a 50-unit apartment complex in Dickerson, California. Her father was employed by an American car company and was laid off for a substantial period of time when Americans started purchasing foreign-made cars. Thus, Lourdes will only rent to people who drive cars that are either made by American companies or primarily manufactured in the United States.

(C) IN-CLASS DISCUSSION GROUPS 1/18/08 (Alphabetical)

DISCUSSION QUESTIONS 7-14: RESPONSES & COMMENTS

The write-ups below include examples from your class and prior classes as well as some examples and comments of my own. The ideas that came from discussion groups your class are labeled with the alphabetical range of the group in question (e.g., ABO= A-BO; KRM= KR-M; NQ=N-Q). Although you are not required to know details about the Wisconsin and Miami Beach provisions, I think you should read through all of this material because I address a lot of common misconceptions/misreadings.

DQ7: INCLUSIVE v. EXCLUSIVE STATUTES

DQ7. Almost all fair housing statutes, including the federal Fair Housing Act, are structured like the New York City Human Rights Law at issue in Kramarsky in the sense that they provide a list of characteristics that housing providers may not employ in making their decisions. The open-ended approach of California’s Unruh Act is much rarer. What are the strengths and weaknesses of each approach?

A. Benefits of Open-Ended Approach/Drawbacks of Traditional Exclusive List

1. Open-Ended Approach Provides More Flexibility (KRM; NQ)

a. Allows statute to change with new developments in society. (ABO; KRM; NQ)

b. Allows statute to reach situations the legislature did not anticipate but that it likely would have wished to address. (DHAF)

c. Allows case-specific analysis of what characteristics should be protected in particular circumstances. (ABO; RSO)

2. Courts v. Legislature:

a. Courts may be more likely to be willing to address popular forms of prejudice than elected legislators; open-ended approach allows this.

b. Legislature may want courts to have opportunity (or burden) of fleshing out the statute’s meaning.

c. Traditional exclusive list may put too much emphasis on court’s finding the “correct” interpretation of the statutory language, putting more emphasis on “technical” questions like language, grammar and structure and less emphasis on purpose or on justice. (ABO; KRM)

d. Courts can use open-ended approach to protect new characteristics without time & expense of new legislation. (NQ)

3. Tenant Protection

a. Traditional method allows housing providers to exclude people from housing for arbitrary reasons or stereotypes so long as they don’t rely on one of the prohibited characteristics (DHAF; KRM; NQ).

b. Under the open-ended approach, more people will find protection for the characteristics that others are likely to see as problems. (NQ)

B. Benefits of Traditional Exclusive List/Drawbacks of Open-Ended Approach

1. Exclusive list provides more certainty, leading to

a. Less litigation: plaintiffs do not bring suits to see if the relevant characteristic is covered. (ABO; DHAF; KRM; NQ; RSO)

b. Better awareness by landlords and tenants about their rights and responsibilities (ABO; DHAF; KRM; NQ; SPZ)

c. Lawyers finding it easier to counsel clients

d. Judges don’t have to define scope of characteristics they add to list (DHAF)

e. Resources not wasted discussing marginal or absurd categories (KRM)

2. Exclusive List Leaves Control with Legislature; Smaller Role for Courts

a. Judges don’t have discretion or difficulties “interpreting” legislative intent. (ABO)

b. Control by democratically elected body, not unelected judges

c. Ensures coverage for characteristics legislature intended to protect. (SPZ)

3. Exclusive List Intrudes Less on Housing Providers’ Control of Property (NQ; RSO)

C. Other Comments

1. One prior group suggested that the traditional list may itself become illustrative and therefore seen as open-ended. While this is theoretically possible, the exclusive nature of these lists is so well-established that a court is unlikely to interpret a statute as illustrative without very clear instructions from the legislature.

2. This is yet another example of the recurring legal debate about the relative virtues of bright line rules v. flexible standards. You might want to think about which side of this debate seems stronger to you in this context (and why).

DQ8-11: PROTECTED CHARACTERISTICS

DQ8. What is the difference between “family/familial status” and “marital status”? What kinds of discrimination do you think legislative bodies had in mind when they included these characteristics on their lists? Several students this year and in the past this year had a lot of problems with these definitions. The moral is that you need to read more carefully.

A. “Family/Familial Status”

1. Definition/Coverage: “Family/Familial Status” means one or more adults residing with one or more dependent minor children or planning to do so. (DHAF) It does not refer to any possible set of people who set up household together.

a. These protections extend to any traditional or non-traditional family structures that include at least one adult and at least one minor child.. (DHAF)

b. Unlike “marital status,” this characteristic does not include any reference to the nature of any relationships between adults. “Marital status” is not a subset or overlapping category, but a completely separate concept. Familial Status similarly provides no protections for same-sex couples unless they are excluded for living with or intending to live with children.

c. Unlike most of the characteristics listed in the FHA, “Familial Status” does not provide protection for everyone: It violates the statute to discriminate against people with children, but it does not violate the statute to discriminate against people without children. Thus, while it is true that “[i]n some areas they discriminate … to drive out college students and bring in families,”(DHAF), this is not familial status discrimination.

2. Purpose: This characteristic was added to make it easier for families with children to obtain appropriate housing (see problems described in Marina Point). Because of concerns about noise and behavior, many people prefer to live in adults-only space. (ABO). However, people with children need places to live. (DHAF)

a. One group suggested that this category might be designed in part to combat concerns by landlords about having too many individuals residing in a dwelling unit. (ABO). However, landlords still can exclude prospective tenants based on a neutral rule about maximum occupancy unless the tenants can meet the standards for a disparate impact claim.

B. “Marital Status”

1. Definition/Coverage: “Marital Status” usually is defined as being married, single, divorced, widowed or separated. See Miami Beach Code §62-31.

a. Many states and municipalities provide “Marital Status” protection, but the federal gov’t does not (except with regards to mortgages and other consumer credit).

b. Jurisdictions split as to whether this sort of definition prohibits discrimination against unmarried cohabiting couples. See cases on this issue in Unit IV.

c. Problematic Explanations:

• One group suggested that this category “dealt more with the intimacy of the relationship and the legal connection to another individual.” (ABO) This is way too imprecise an explanation of what is covered.

• Some prior groups have suggested that you have to be married to get protection under this category, but that is not so. Every statute I know of explicitly includes being single, separated or divorced in the category. Indeed, these are the types of folks most likely to seek redress under the statutes. There is not a lot of discrimination against married couples.

d. Same-Sex Couples. One group suggested that this category is “likely to prevent discrimination against homosexuals who have a life partner.” (ABO) One prior group suggested this kind of protection would not extend to lesbian and gay folks. In practice, these provisions do not prohibit discrimination because someone is (or is perceived to be) homosexual. However, if a landlord tried to evict a same-sex couple because they had a marriage ceremony (or because they were single), the couple would have a pretty fair argument that they are the victims of “marital status” discrimination.

2. Purposes

a. Protect divorced, widowed, separated and single women from stereotypes about ability to pay. (DHAF)

b. Protect single and divorced individuals from stereotypes about swinging lifestyle and lack of responsibility. (ABO; DHAF; KRM)

C. Relationship to “Single Family Homes” in Residential Zoning and as Exception to Housing Discrimination Statutes:

1. Zoning and “Single-Family Homes”: Many jurisdictions have zoning restricting certain areas to “single-family homes.” These usually contain definitions of “family, ” often similar to the provision at issue in City of Edmonds. One group suggested that the marital status or family status provisions might affect these definitions. (KRM). This is very unlikely to be true. The definitions of family found in the statutes you have only apply for the purposes of interpreting those statutes and do not replace definitions of family found in zoning ordinances. The zoning definitions of family almost invariably favor adults living with dependent children over groups of adults living without children, and so don’t violate “family status” provisions. It is possible that a zoning definition might run afoul of the “marital status” provision, but usually they treat married and unmarried couples alike.

2. “Single-Family House” Exception (§3603(b)(1)): One group noted that Wisconsin treats this issue differently from the federal statute. (DHAF) However, as should be apparent after Unit V, this is unrelated to the family status/marital status discussion. Rather, the federal statute exempts some sales of “single family houses” from the requirements of §3604 (a) (b) (d) (e) (f). Wisconsin says that such sales are too big a part of the housing market to exempt.

DQ9. Federal age discrimination provisions generally protect people over 40 from discrimination, e.g., in employment. What is different about the approach taken to age discrimination in housing by Wisconsin and by Miami Beach? What are some pros and cons of using the latter approach in a housing context?

A. Federal Statutes v. Miami Beach/Wisconsin: The federal provisions (which do not apply to housing) are only violated if an employer makes a decision because a current or potential employee is over 40.. Wisconsin and Miami Beach prohibit discrimination based on any age 18 or over. Thus, you can violate these statutes by dissing the young for being too young as well as the middle-aged or elderly for being too old. . (HAGKO; KRM). Some further elaboration:

• One group argued that under the Miami Beach provision, housing providers “cannot prevent young people from living there regardless of economic status.” (RSO) This is incorrect. The provisions only prevent exclusion because of age.

• Note that Miami Beach/Wisconsin reasonably set the lower limit at 18. People below that age cannot enter enforceable contracts and their right to access to housing is covered by the familial status provisions.

• As in the past, because of the slightly ambiguous wording of the question, some groups focused on possible differences between Wisconsin and Miami Beach. (ABO; DHAF; SPZ) I don’t think the slight differences in wording have any significant substantive ramification with one exception. Wisconsin has an exemption from the age discrimination rules for housing for older persons and Miami Beach does not. (SPZ).

B. Arguments in Favor of the Broader (M.B. & Wisc.) Definition:

1. Protects a broader range of people. (HAGKO) Note that if you make an argument like this on an exam question, you should flesh it out more. Explain why there might be discrimination against 18-40 year olds and why it would be a good idea to provide a legal remedy for it.

2. Protecting younger folks may help bring about communities more integrated on the basis of age. (RSO) We “don’t want to restrict young people from certain neighborhoods which might provide a better living environment, just [as] we would not want to relegate the elderly to poor neighborhoods.” (KRM). This is clever idea, although it’s always hard to guess how much impact on integration this kind of statute will have.

3. 40 years old seems an arbitrary number in the context of housing discrimination. People are likely to have more income and be more stable at 40 and are more likely to pay on time and be more reserved. (DHAF) It seems unlikely that a lot of discrimination will be associated with turning 40. (I think this is a strong argument). However, to the extent there is discrimination against this group, it would seem to be particularly harmful. (DHAF).

4. Age is a relatively arbitrary/stereotypical/unfair way to assess a housing provider’s legitimate interests in solvency, stability, reliability, etc. (DHAF; KRM) Certainly there are wealthy mature 22-year olds and insolvent untrustworthy 50-year olds, although age probably is a better gauge for the landlord’s interests than race or religion. However, as one group noted, “Landlords would want to discriminate against the young for being rowdy and loud, the stereotype of college students, and against the elderly for needing special accommodation for elder people.” (DHAF)

C. Arguments Against the Broader Definition:

1. More people will be able to sue; more frivolous suits. (HAGKO) Again, this could use more explanation. Any time you add a cause of action this is true. Why might this be a particularly problematic example? E.g., you might believe that a lot of young folks legitimately denied apartments by landlords because of their financial circumstances or lack of credit history might claim age discrimination and the social burdens of these suits would outweigh the benefits of challenging a few cases of real discrimination.

2. This might prevent over-55 housing developments which look out for the interests of elderly people. Good point, although the statutes tend to create exceptions for specialized housing for seniors.

3. Elderly people tend to be subjected to discrimination due to age more often than younger people. I tend to agree with one of the earlier points that this is much less true in housing than in employment. Until folks become quite elderly, they are likely to bee seen as more reliable and less likely to cause trouble.

4. The consequences may fall on the landlords. (HAGKO). The stereotypes may have some basis in fact. (KRM) If landlords have to rent to 18-year olds who may not be as responsible or able to meet the rent requirements, they will have to deal with it. “Putting a 21 yr. old in an apt instead of a 50 yr. old [possibly] increases the risk of damage to the property and the chance of upsetting/bothering other tenants.” (HAGKO). This is a solid point, although the landlords in Wisconsin and Miami Beach retain the right to use financial criteria and references to screen folks and to use security deposits to deter trouble as long as they use the same standards for young and old alike.

DQ10. Are there characteristics protected by one or more jurisdictions that you were surprised to see? Are there were characteristics you were surprised not to see? Are there definitions you found particularly well-drafted? Particularly poorly drafted?

A. Surprised to See:

1. Students from This Year and Prior Years Have Mentioned the Following:

• Ancestry (Wisc.)

• Familial Status (U.S.; Wisc.; M.B.)

• Lawful Source of Income (Wisc.) (KRM; RSO)

• Marital status (Wisc.; M.B.)

• Pregnancy (part of Familial Status in U.S.; Wisc.) (RSO)

• Sexual Orientation (Wisc. M.B.) (HAGKO; NQ; RSO)

2. One prior group commented, “It is great to see that marital and familial status are protected …. The mother of one person in our discussion group was discriminated against for not having a ‘man in the house.’ [Note that this could be sex discrimination as well]. Members of the group [stated] that, in many neighborhoods, landlords are concerned with whether a family is nuclear or not…. Thus, we are presently surprised to see that nontraditional families are protected.”

3. Some prior groups had comments and questions about “lawful source of income”:

a. This characteristic “seems to protect a person from discrimination for their source of income, but not necessarily for the amount of income. This seems like an important distinction to ensure a landlord that a tenant would be able to pay the required costs.” This is an important point. A court is likely to read the statute to mean that, assuming that the amount of income is similar and equally steady, housing providers cannot favor one occupation over another or favor a job over a trust fund (or vice versa). However, a court is unlikely to rule that the statute is violated because the housing provider favors people with higher paying jobs.

b. One group wondered whether this provision would protect a student who technically is unemployed but receives “income” from student loans or from family. I think it may depend on how certain the student is of receiving the income flow. I suspect a court would accept the argument that the landlord can legitimately favor sources that pay more regularly or with a higher degree of certainty because of decreased credit risk. However, where student loans are approved for the rental period or where the family money comes from a trust fund or court-ordered support payments, the landlord presumably has no reason to treat these differently than other reliable sources of income.

c. One prior group asked the following questions: “Wisconsin specifically protects lawful source of income, while Miami Beach does not include that, does this have to be explicit? What about drug dealers? Does that mean in Miami Beach you do not need a lawful source of income?” These questions misunderstand the role “lawful source of income” is playing in the statute. Wisconsin is not requiring that you have a lawful source of income to obtain housing. Instead, it is prohibiting housing providers from treating renters and buyers differently based on the particular job they have or based on non-employment sources of income. Using the word “lawful” here makes clear that the housing provider can lawfully exclude people because their income source is unlawful.

Outside of California and the Unruh Act, the general rule is that housing providers can reject applicants for any reason not listed by anti-discrimination statutes. Thus, in Miami Beach, landlords can exclude drug dealers and other criminals, but they also can exclude lawyers or doctors or advertising executives if they so desire.

4. One group was surprised to see Wisconsin make explicit in its statement of purpose (§106.50(1)) that it viewed the Open Housing statute as “an exercise of the police powers of the state for the protection of the welfare, health, peace, dignity and human rights of the people of this state.” (DHAF). Although not really related to the issue of protected characteristic, this may be interesting for those of you taking Con Law I exams. Note that it is quite common for legislatures to expressly indicate where they believe they derive the authority for particular enactments. Should their authority later be challenged, these statements provide a starting point for a court to assess whether the statutes are valid.

B. Surprised Not to See:

1. Categories found in Some Statutes:

• Age (U.S.)

• Ethnicity (All Three): (DHAF) Probably Covered by a Combination of Race, Color, National Origin, and Ancestry.

• Occupation (U.S.; M.B.)

• Political Affiliation (All Three; protected in Washington state) (KRM)

• Sexual Orientation (U.S.) (DHAF). Note that repeated attempts to enact federal gay rights statutes have never come close to succeeding.

• Transgender in definition of sexual orientation or sex (Wisc.; M.B.) (HAGKO)

2. Categories Not Found in Statutes (As Far As I Know) Note that these categories probably are protected by Marina Point. :

• Appearance

• Level of Education (KRM)

• Membership in Organizations (KRM)

3. One prior group noted surprise that “handicap” was not included in 42 U.S.C. §3604 (a) & (b). However, people with disabilities get equivalent protections in §3604(f)(1) & (2).

C. Comments on Definitions and Drafting: A number of groups commented on definitions that really were about conduct or about the scope of the statutes than about characteristics. I included these here for lack of a better alternative, but note where the comments stray from the focus of the question.

1. Federal Statutes:

• “Same Rights as White Citizens” (§1982): Several groups noted (here and in response to DQs 12 and 13) that this phrase does not clearly delineate the kinds of claims that can be brought. (ABO; BRC; NQ; SPZ) It might be read to be open-ended like Marina Point. (BRC; NQ) As we discussed in class, this is certainly vague, but Congress probably only intended to cover race discrimination. We now have caselaw covered in Unit IV delineating what kinds of claims are covered.

• One group noted that a number of terms related to ethnicity (race, color, national origin in 3604 and Miami Beach plus “ancestry” in Wisconsin) seem redundant, but that the overlap ensures more specificity and a way to cover all bases (for instance, discrimination against Italians, but not Whites). (KRM)

• “Familial Status”: One prior group expressed surprise that a family can be composed of single individual, especially since a “person” can be more than one individual. (SPZ) However, the statute only gives familial status protection if the individual is living with (or is about to be living with) a child.

• “Handicap”: One group liked the definition provided here (and by Wisconsin for “disability”). (SPZ) *** One group this year expressed concern that key elements of the definition (“major life activity” “impairment”) were themselves undefined. (KRM) The regulations take care of this problem to a large extent. *** One prior group expressed surprise that “handicap” does not include “current, illegal use of or addiction to a controlled substance…” This was a condition of moderate and conservative support in Congress; many legislators did not want the protections of the FHA extended to current drug addicts. Note, however, that present alcoholics are not excluded.

• One group found the discussion about the number of houses in §3603 to be confusing (scope, not characteristic). (RSO) Well, yes.

2. Wisconsin Statutes:

• “Age” is “not well-defined.” (DHAF). The sentence is awkward, but I think the sense is clear: anyone 18 and over can raise an age discrimination claim.

• “Discrimination” (conduct, not characteristic) “is well drafted. Lays out exactly the practices they are seeking to prevent,” (DHAF) and “set[s] forth specific and exact meanings.” (SPZ)

• “Dwelling” (scope, not characteristic) is “ambiguous--could a box that a homeless person sleeps in be considered a dwelling?” (SPZ) Note that the federal statute is similar on this point. Note also that this ambiguity only matters if someone is ejecting the homeless person because of one of the protected characteristics, which seems unlikely.

• “Family Status” One group thought the definition was “very broad.” (RSO) However, I think it just lays out with specificity several examples of what the federal definition almost certainly includes anyway.

• “Relative”: One group was surprised to see this definition at all. (HAGKO) One prior group was surprised how far-removed some of the relationships seemed to be. However, the word is used in the statute in two places, both of which suggest a broad definition would be useful. First, in the definition of “family status”, it indicates which minor children can live with you (if you are not their legal guardian) while still remaining in the protected category. Second, it is part of the definition of “interested party,” which will determine who has standing to raise claims for someone else.

• Some prior groups complained that the following terms had no definition at all:

o “Lawful source of income”

o “Marital status”

3. Miami Beach Ordinances: On prior group thought that the Miami Beach Code was particularly well drafted and was surprised to see that it was the only code to define marital status. Note that it would be helpful to include more explanation of why you thought it well-drafted. This is particularly true of Miami Beach, which includes some ideas I like, but has never impressed me as particularly well-crafted. Some particular concerns with Miami Beach:

• “Disability” (note that unlike U.S. and Wisc., excludes “having a record of” or “being regarded as” having a disability). However, two groups this year thought this definition well-drafted (HAGKO; KRM), presumably because it includes more developed definitions of, e.g., “major life activities” than the other statutes. However, much of the information found in the Miami Beach statute is found in (and probably taken from) the federal regulations.

• “Family”: Very loose definition; can live with boyfriend/girlfriend and it would be considered “family.” (HAGKO) While this is correct, it seems to have no legal consequence, because the term is not used again in the statute (which constitutes terrible drafting)

• “Familial Status” (note that unlike U.S. and Wisc., excludes pregnant women and people in the process of adopting or otherwise obtaining custody))

• “Discriminatory practice” (conduct, not characteristic) One group thought the definition was “very vague.” (SPZ) The Code probably intends it to mean those practices made unlawful by this statute, but it doesn’t say that. A related problem is it is not clear where the term is used again except in §62-89, in which it appears to be partially redefined.

• MB “Red-line” is undefined. (conduct, not characteristic) (See DQ13(c) below for an explanation)

DQ11. Are there any drawbacks to adding more characteristics to these lists? Can you formulate a set of factors for determining which characteristics should be protected? This is a very extensive write up of this question because it has been given as a written assignment in past years.

A. Commonly Mentioned Drawbacks to Adding More Characteristics:

1. Arguments About Limited Material Resources

a. Increased Litigation: Adding characteristics is likely to yield more litigation. People who believe they are excluded for the newly included reasons will have a cause of action where they didn’t before. (SPZ) More lawsuits raises costs to landlords and therefore probably increases the price of housing some. It also requires additional resources from the judicial system, which everybody must pay for either in the form of taxes or longer delays. These may be prices we are willing to accept to prevent exclusion from housing, but if the new protected characteristics are not the source of much exclusion from housing, the cost of inclusion may be viewed as too high.

b. Enforcement Resources: Adding characteristics means that agencies that often have fixed budgets will have to process more claims with the same resources. That might mean that they give less attention to forms of discrimination we consider more vital to address. Some groups have made a related argument that, as the statute gets longer, it becomes less usable. (HAGKO) While I think this may be true to some extent with regard to enforcement agencies, you should keep in mind that this isn’t the tax code. Adding four or five new characteristics to a relatively concise provision like §3604 is not going to make the statute too complex for non-specialists to handle or too difficult for courts to sort out..

c. Less Convincing Material Resource Arguments:

i) Prior groups have argued that having more categories would increase the number of fraudulent claims. I am not convinced that having more claims to bring will have this result. If someone wants to bring a fraudulent claim, they have lots of categories to play with now. Some of the concern about fraudulent claims assumed that including more characteristics increases the number of potential plaintiffs. (HAGKO) This assumption seemed to be based on a continuing misapprehension that the statutes only protect members of minority groups. Everybody has a race, a sex, a religion, a national origin, and a color. Everybody can bring suits claiming discrimination on the basis of one of these categories. Thus, including new characteristics doesn’t increase the number of potential plaintiffs because everybody already is a potential plaintiff.

ii) One group this year suggested that adding categories can increase uncertainty as to the scope of coverage and presumably raise costs to parties and to the legal system. (DHAF). However, I think this is unlikely to be a significant problem. If the legislature adds some explicit categories to an exhaustive list, very little is left uncertain. On the other hand, a court noting additional coverage in an open-ended statute does not make the open-ended provision more uncertain than it already was. A related point is that adding categories to an open-ended statute like the Unruh Act may encourage the courts to start viewing the lists as exhaustive rather than illustrative. (RSO; SPZ). While this is possible, so few statutes are open-ended that I don’t think it is a major concern.

2. Symbolic Arguments

a. Dilution: Opponents of adding additional categories sometimes base their concerns on an understanding that the anti-discrimination laws constitute a dramatic announcement that the people have decided that certain forms of historically systematic, serious, and stigmatizing discrimination are wrong. The symbolic effect of this important public statement may be as important to achieving equality as the enforcement of the statutes.

Adding other characteristics to the list, so the argument goes, undercuts this symbolic effect. Discrimination on the basis of eye color may be irrational, but it is not widespread and is unlikely to limit anyone’s housing options seriously. Moreover, out culture does not contain stigmatizing stereotypes about green-eyed folks that would be furthered by allowing this kind of exclusion. Including this less serious form of discrimination on the “lists” makes the public statements made by the statutes less meaningful and may tend to mask the seriousness of the harm done by discrimination on the basis of universal categories like race and religion. This is similar to objections some African-Americans and Jewish people raise to overuse of analogies to slavery or the Holocaust respectively. One former student used the clever term “anesthetize” to capture the essence of this concern.

b. Elevation: Opponents also may object to the inclusion of a particular characteristic because they believe that people should be able to exclude others on the basis of that characteristic. Thus, they worry not so much that expanding the list will diminish the symbolic meaning of those characteristics already on the list, but that inclusion inappropriately will elevate the symbolic status of the added characteristic. This argument often is made regarding the inclusion of “marital status” or “sexual orientation,” because many people believe that housing providers should be allowed to exclude cohabiting heterosexual couples or lesbians and gay men. A related idea is that elevating new characteristics to protected status unduly infringes on housing providers’ right to exclude. (RSO)

B. Factors for Determining Which Characteristics Should be Protected. In the past, I have given the students a list of those “universal characteristics” that are protected by almost all jurisdictions as a way to think about this part of the question. The list includes race, color, national origin, sex. religion and handicap. Here are some factors which people frequently see as relevant:

1. History of Discrimination/Oppression/Exclusion: This has been the most commonly discussed principle. It has played an important role in the selection of the universal characteristics. A possible question is whether history is as important as present exclusion or discrimination. In other words, if a group experienced exclusion in the past but generally does not experience it now, does the group really need protection? And if a group is experiencing discrimination now, why should it matter whether they also faced it in 1900 or 1950? (cf. prior group: minorities prone to discrimination who aren’t capable of protecting themselves.)

2. Present Stereotyping/Exclusion: This principle also has been chosen frequently. Interestingly, prior students have disagreed as to whether particular groups currently faced discrimination. You probably would need to find some recent social science data to confirm present discrimination before invoking this principle in support of inclusion of a new characteristic.

3. Relevance to Housing Decision: Many prior students have argued that particular characteristics should be protected because they were irrelevant to the legitimate interests of the housing provider. Consistent with this idea, one group this year said the housing provider should select residents based on effects on other residents and on the value of the property. (HAGKO). Another group said the statutes should protect against “arbitrary” discrimination (DHAF), which probably means discrimination unrelated to those legitimate interests. However, you need to recognize that people often dispute “relevance.” For example:

• Familial Status: Marina Point calls the exclusion of children “arbitrary,” but families with children almost certainly create more noise and damage than households without children. Even if this is not true, lots of people do not want to live with children, so their presence may reduce the market rent.

• Occupation: Similarly, an apartment complex or condominium association may think that the choice between a plumber and a lawyer (both of whom make $100,000 a year) will affect their ability to maintain their upscale marketing image.

• Lifestyle: You may believe, as one group said, “Lifestyle choices should not be something [for which] you are discriminated against.” (DHAF). Of course, “lifestyle” is awfully vague. Most people would not have a problem excluding a person whose “lifestyle” consists of spending much more than they earn and then embezzling money to make up the difference. More importantly, landlords with certain strong religious beliefs will consider it very relevant to determine whether their property is going to be used by tenants to commit forbidden sexual acts.

4. Immutability: (RSO) insightfully noted that the “statutes seem to presume characteristics as inherited or static.” I think they do contain some presumption that the protected characteristics won’t change. This is part of a general tendency to equate protection with immutability. People commonly say that it is unfair to punish somebody for something they can’t help.

I have a bias against this principle, because I think it is frequently invoked without much thought. However, I don’t think many people really believe in a strong version of the principle. For example, few people would say all landlords have a duty not to discriminate against people who commit acts of violence or burn things down due to mental disabilities beyond their control. Similarly, few people are likely to believe that landlords can’t discriminate against people who cannot get jobs that pay enough to afford the rent due to immutable physical or mental conditions. On the other hand, most people think religion ought to be protected, even though it is completely mutable.

Relying on immutability also creates a number of troublesome cases. Family status and marital status are usually the result of choices people make during adulthood. You usually had some say in whether you became a parent or got married or divorced or separated. Yet each of these conditions once entered into is very difficult to undo; should people really have to get rid of their children or divorce their spouse to get housing? If your answer is no, than your real concern may be something beside mutability.

Finally, should you be able to discriminate against people who have a physical disabilities caused by their own drunk driving or skydiving or smoking? After all, in a very real sense, the conditions of these folks are their own fault. Should we treat their condition as immutable just because they can’t undo one very bad decision they made? In that way, they are very much like somebody with one criminal conviction. If you think the two cases are different, then again mutability might not be the right principle.

5. “Discrete and Insular Minorities.” A prior group suggested this very small Constitutional category that doesn’t include many commonly protected characteristics. E.g., women in our society mostly are “discrete” (= easily identifiable as a separate group), but mostly are not “insular,” (= likely to be separated from the rest of society (it literally means, “like an island.”)) Religious minorities may be insular, but generally are not discrete. It also bears repeating that generally speaking, the statutes use the characteristics to protect majority and minority alike (the exceptions being “familial status” and “handicap.”

C. Some Information About Prior Years’ Discussions of Whether Particular Characteristics Belong on the List

1. Family Status: First, many students have been unaware that the FHA already includes this characteristic. It was added in 1988. The reason I haven’t included it as a “universal” characteristic is that it is not part of other federal anti-discrimination statutes.

Congress’s decision to protect people living with children represents a balancing of interests. Many people without children prefer to live in places where children are not present. In addition, families with children almost certainly cause disproportionate noise and damage. On the other hand, when Congress amended the FHA in 1988, it found widespread evidence that people with children had difficulty finding places to live. In addition, due to stereotyping, housing providers may attribute more damage and noise to families with children than they in fact are likely to cause.

2. Marital Status: I have seen evidence of some discrimination against single people, especially men, based on stereotypes of partying and instability. I also have seen evidence of discrimination against divorced and separated women, out of a (statistically justified) concern about their ability to collect alimony and child support payments. Some cases (a few of which we read) involve discrimination against cohabiting couples, usually for religious reasons. It is difficult to know how widespread this type of exclusion is.

3. Political Affiliation: This is protected in Washington state. Although whether someone is a Republican or Democrat is probably irrelevant to the housing decision, there is little evidence that there is very much discrimination of this kind. Few cases would survive a test that the housing provider knew the affiliation of the applicant before the rejection. Thus, it may not make sense to include it.

4. Legal Means of Employment: A few states have provisions that protect some version of this category. The idea seems to be that you shouldn’t be able to distinguish two people with similar finances based on what they do for a living. I suspect this arises most often in the context of homeowner’s associations screening residents. Some class consciousness may cause well-paid craftspeople or skilled laborers to be treated differently from, e.g., less well-paid English teachers. Its hard to say how widespread this problem is. The category again raises the difficulty with immutability. Obviously your job is a mutable choice, but why should you have to change jobs to get an apartment?

5. Physical Appearance: People who society characterizes as “fat” or “ugly” probably face some discrimination in housing as in other areas of life. People stereotype fat people as lazy or slovenly. Landlords may believe that other tenants won’t want a very ugly neighbor. You might want to distinguish between those aspects of appearance that are harder to control (height, facial features, acne, etc.) from those that are easier to control (hair style, make-up, tattoos, facial hair). This distinction might create problems with things like weight, which is easier to control for some folks than for others.

6. Sexual Orientation: Most of you were convinced that this characteristic should be included. Although I generally agree, I am less sure about some of the underlying reasons than you were collectively. First, immutability is unclear. People can control some of their behavior, such as who they live with. Second, I don’t think there is strong evidence of widespread discrimination in housing on this basis either presently or historically. Indeed, in some circumstances stereotypes about neat gay men who will fix the place up will be helpful in finding housing. Finally, as noted above, some religious folks think the category is very relevant.

D. Rhetorical Traps: “Equal Treatment,” the FHA, and the Constitution:

1. Equal Treatment: Good Discrimination v. Bad Discrimination. Many prior students have said certain characteristics should be included because of people’s right to “equal treatment” regarding housing. Without more elaboration, these statements are substanceless rhetoric. Read broadly, these statements suggest that all people have the same right to housing they want. I doubt that is what you mean.

Most people believe that landlords should be able to exclude people with unstable sources of income, with felony convictions, with extremely poor housekeeping habits, etc. These exclusions are forms of “discrimination”: they represent the exercise of generalizations to distinguish people. However, they are legal and probably should be. This, a very broad “right to equal treatment” in housing is inappropriate.

Instead, I suspect that your references to “equal treatment” were a brief way of saying that a person should have a right to be treated the same as others despite the characteristic you are discussing. If so, you are simply stating the point that you are trying to prove. To turn the statements from rhetoric into argument, you need to add points defending the proposition that the characteristic in question should not be treated like inadequate funds or arson, which are valid justifications for exclusion. Remember that the pre-statutory background rule was that housing providers have absolute control over to whom they sell or rent their property. In that context, you have to justify the inclusion of new characteristics in the statutes; there is no presumptive requirement of equal treatment.

2. The “Right” to Housing and the Constitution: Some prior students suggested that the U.S. Constitution guarantees a “right” to housing or to equal treatment in housing. That is only true in a very narrow set of cases. First, the Supreme Court has held that there is no “fundamental right to housing” guaranteed by the Constitution. Thus, you have to rely on one of the forms of inequality discussed below to make a constitutional claim. Second, the Constitution only applies to government entities, not to private housing providers. As regards private providers of housing, the Constitution says nothing. It neither forbids private discrimination nor requires the states or the federal government to pass anti-discrimination laws.

Even with regard to government actors, the Constitution only prohibits intentional discrimination. In addition, it always leaves the government some leeway to regulate, at least for compelling reasons. Moreover, the Court only applies heightened scrutiny to a narrow set of characteristics. The resulting modes of analysis would likely be:

Strict Scrutiny for race, color, national origin, religion, political affiliation, and discrimination against married people.

Intermediate Scrutiny for sex

Rational Basis Scrutiny for disability, legal means of employment, physical appearance and discrimination against unmarried people.

Unclear for sexual orientation (might eventually get heightened scrutiny) and family status (probably some right to arrange living situation to include children).

3. The Constitution and the FHA: Suspect Classifications and Prohibited Characteristics: Some prior students relied on all of the characteristics for adopting Heightened Scrutiny under the 14th Amendment. I’m not certain the tests should be the same. In the case of the Constitution, our goal is to use the judiciary to protect unpopular folks from the whims of the majority. Here, we are reenacting a statute focused on housing. Some people might get targeted by the majority in many circumstances but not in housing (e.g., minority political parties). Others might have a lot of political clout, but still have trouble getting housing (e.g., people with children). Thus, you would need to defend using the criteria for heightened scrutiny to determine characteristics to be protected by statute.

DQS 12-14: PROHIBITED CONDUCT

DQ12. 42 U.S.C. §1982 and 42 U.S.C. §3604, the two most important federal housing discrimination statutes, use different language to describe the conduct they prohibit. Can you identify conduct that is prohibited by each but not by the other?

A. Conduct Covered by §1982 but not the FHA

1. Transactions involving personal property. (NQ; SPZ)

2. Transactions involving non-residential real property (commercial, agricultural, etc.)

3. Transactions that fall under the FHA’s exceptions for single-family homes and rooming houses

4. As two groups cleverly noted, the FHA lists specific conduct that is not allowed, but §1982 instead grants or ensures open-ended rights “… to inherit, purchase, lease, sell, hold, and convey real and personal property.” (ABO; DHAF) Thus, the more general language of §1982 may leave room for a court to hold that it covers other instances of conduct not listed specifically in the FHA. (ABO; BRC; HAGKO)

B. Conduct Covered by the FHA but not §1982

1. Advertising; Expressly addressed by §3604(c); might not be covered by §1982. (ABO; NQ; SPZ)

2. Blockbusting: Expressly addressed by §3604(e); probably not covered by §1982, since nobody is being denied the right to lease or purchase. (Prior Groups).

3. Refusal to Negotiate: Expressly addressed by §3604(a); probably covered by §1982 under right to lease or purchase, but not explicit. (ABO; RSO). §3604

4. Refusal to Sell or Rent After the Making of a Bona Fide Offer: Expressly addressed by §3604(a) (BRC). The bona fide offer requirement probably would be read into §1982 in the following way: A housing provider who refused to negotiate because she genuinely believed the offer wasn’t genuine shouldn’t be held liable under §1982 because the refusal wasn’t because of race. One group wondered if the “bona fide offer” language would prevent testers from making claims because, by definition, they are not making genuine offers. (BRC) However, a housing provider who provides testers with different terms or conditions or misrepresents the availability of a dwelling on the basis of one of the protected characteristics violates §3604(b) or (d) regardless of the presence of a bona fide offer.

5. Claims by Non-Citizens: Excluded by the language of §1982; presumably included in §3604. (ABO)

6. Conduct Related to Handicap (Reasonable Accommodations & Modifications; Physical Access): Expressly addressed by §3604(f); not covered by §1982. (NQ; RSO)

7. §1982 has been limited by the courts to race discrimination; the FHA protects a number of other characteristics. (BRC; DHAF; NQ; SPZ) Given the way the questions were laid out, this response is really not about “prohibited conduct” as much as “protected characteristics.”

DQ13. Which of the various provisions enumerating specific examples of prohibited conduct most strongly provoked the follow responses in you :

A. “They shouldn’t prohibit that!”:

1. Generally:

a. A couple of groups indicated that nothing provoked this response. (BRC; NQ)

b. “The government shouldn't interfere with the rights of the individual to sell their property. People are going to do what they want regardless of the statute, the government shouldn't get involved. There are always going to be new ways to discriminate.” (Prior Year). This sums up some commonly held views that are obviously in conflict with the policies underlying these statutes. One quick point: if you focus on a “right” to sell your property, you raise the question of whether other folks have a “right” to purchase property of their choice that they can afford to buy.

2. Federal Statutes

a. 42 USC §1982: “We aren't necessarily thrilled about the language used in 1982.  It appears that the framers of this legislation sought to  ‘equalize’ rights pertaining to the acquisition and ownership of property.  However, it may have been more useful, and certainly more tactful to simply say that ‘[a]ll citizens of the U.S. shall have the same rights in every State and Terr. to purchase, lease, sell, hold, and convey real and personal property.’  We assume that the ‘as enjoyed by White citizens’ language was used to explicate the notion that the white citizen at the time was the model, or the bar for which the standard is set.”  (Prior Year). The language you object to was intended to clarify (however awkwardly) that the statute prohibited race-based discrimination. The difficulty with your formulation is that it doesn’t explain under what circumstances one can invoke the statute (can a landlord evict you to provide housing for her friends; can a landlord evict you for a drug possession conviction off the premises; can a landlord choose one tenant over another on the basis of income, etc.).

b. 42 U.S.C. §3604 (c): It is unlawful “to make, print, or publish…any notice, statement or advertisement, with respect to the … rental of a dwelling that indicates any preference…based on sex [or] familial status …” One prior group was concerned that a woman who advertises that she “lives on her own and wants to rent a room out in [her] home but only wants single females” might be violating this provision with regard to sex or familial status. They wanted to know if the situation would be handled by the exemptions in §3603(b).

An advertisement indicating a preference for women over men literally violates §3604(c). However, as we discussed in class, HUD has indicated they would not prosecute this kind of claim where the advertised housing involves sharing a house or apartment, but that would not shield the advertiser in the unlikely event of a private lawsuit.

An advertisement expressing a preference for single people does not violate the federal statute. “Familial status” refers to the presence of children not to being married or single. Marital status discrimination is unlawful in many states and municipalities and so the advertisement might violate provisions in those jurisdictions.

The §3603(b) exemptions don’t help here because, by their terms, they apply to other parts of §3604, but not to §3604(c). Thus, it is not unlawful to choose your roommate based on gender, but it is (technically) unlawful to advertise that you intend to do so.

c.. 42 U.S.C. §3604(e): One prior group found it understandable that blockbusting or inducing panic sales should be unlawful, but thought it important to preserve the owner’s ability “to sell his land if he so desires because the neighborhood is changing.” The federal statute does not prohibit making panic sales or choosing to get rid of your land because of the changing character of the neighborhood (so long as you don’t discriminate as to the potential buyer). Note that the broader Miami Beach blockbusting provisions might be read to treat a panic seller as part of a blockbusting conspiracy.

d. 42 U.S.C. §3604 (f): One prior group expressed concern that “any person associated with that buyer or renter” (§3604(f)(1)(C)) seemed very broad, and wanted to know if the owner has to accommodate “for any imaginable person that may hypothetically one day come visit that buyer or renter?” This concern probably would be addressed by the requirement in subsections (3)(A) & (B) that the requested accommodation or modification “be necessary to afford such person equal opportunity to use and enjoy a dwelling.” If the third party is hypothetical, a court is not likely to view the accommodation as necessary. On the other hand, the inclusion of (1)(C) probably means that:

• Tenants at their own expense can widen a door or install a ramp so that, e.g., a parent in a wheelchair can visit them.

• Landlords who have sufficient notice may have to allow tenants’ guests with mobility impairments access to parking spaces close to the building

• Landlords cannot evict a tenant for having as a guest a person with HIV

One prior group thought that landlords in older buildings should not be required to make apartments accessible if that would entail “much alteration.” Note that the accessibility requirements related to construction (§3604(f)(3)(C)) only apply to new buildings. The duty to accommodate and the duty to allow modification at the tenant’s expense do apply to older buildings, However, both duties incorporate a “reasonableness” requirement, which allows landlords to argue that the cost of the proposed changes is disproportionate to any benefit received.

e. 42 U.S.C. §3607(b)(1) (SPZ) read this provision to say “that a landowner can’t discriminate based on the number of people you would want to live in a house. We think the landlord should have right to control how many people can live there.” This misreads what this exception does. First, a decision to exclude prospective tenants because of the number who would be sharing the rented dwelling would not constitute intentional discrimination in violation of §3604. Second, although a landlord’s policy about the permissible number of occupants might be subject to a disparate impact or reasonable accommodations claim, this provision will protect landlords whose policies simply implement a reasonable government occupancy limitation. Finally, even where landlords have occupancy limits stricter than those the government imposes, courts will not interfere with them under either disparate impact or reasonable accommodations analysis if there are strong reasons supporting them (e.g., sewage or parking capacity).

3. Wisconsin Statutes

a) §106.50(2)(a): It is unlawful to discriminate “by refusing to … contract to construct housing.” One prior group thought this was “problematic if [the] builder does not have experience” and thought it “sometimes [would be] a burden to a builder.”

For characteristics other than disability, it’s not clear to me why this is a problem. All the provision does is prohibit a builder from refusing to do business with a prospective client because of the client’s race (or religion or sex etc.). Most people today have some idea that they are not allowed to make business decisions for these reasons, so even an inexperienced builder shouldn’t be surprised by this law.

Regarding disability, this is a more interesting question. Should a builder be allowed to refuse a job constructing a house that would require accessible features with which the builder may have no experience and/or which might slow down or complicate the construction project? You might read the statute to say “no”; such a refusal would not be because of the disability but rather because of the complexity of the project (like refusing to build for Donald Trump because he wants a waterfall in every room). On the other hand, to the extent that one purpose of the statute is to assure that people with disabilities can get accessible housing, you could sensibly read it to require that builders accept these contracts and learn the necessary skills.

Note that to the extent the group is worried about the burdens borne by builders who have already agreed to build covered multifamily homes, the duty to make these homes accessible is elsewhere in the statute. Moreover, these burdens are part of the federal statute as well so they should come as no surprise to the builders. You might think of the accessibility requirements in new buildings as similar to local building codes; requirements that make building more expensive but do not greatly harm builders because all of them must comply and none can (legally) gain a price advantage by cutting corners.

b) §106.50(2)(b): “exacting different or more stringent price, terms or conditions for the sale, lease, financing, or rental of housing.” (SPZ) expressed concern that the statute should “take into consideration that [the] market may be [the] driving force to sell rather than discrimination. The losing party may not have bid high enough to obtain the property but may claim discrimination.” In theory, this concern is met because the plaintiff would need to prove intent to discriminate because of one of the protected characteristics. A fact-finder would likely find plausible a defendant’s claim that they accepted the highest bid in order to get the most money.

4. Miami Beach Ordinance §62-88(5) says that you cannot refuse to lend money for the acquisition of housing, whether or not it is covered by mortgage. “We think people should have the right to refuse funding.” (SPZ) Again, the ordinance only bans such refusals if made because of one of the protected characteristics. The ordinance doesn’t prohibit refusing to lend money because of insufficient income or weak credit.

B. “I’m pleasantly surprised to see this provision.”

1. Advertising: (42 U.S.C. §3604(c); Wisc. Stat. §106.50(2)(d); Miami Beach Code §62-88(6)): “We discussed an advertisement that described an area that would be racist and dangerous for a certain group to be in the advertisement.  The most likely result would be that no one of the group targeted would try to move into the area.  The seller or renter could then claim I did not discriminate against any race, no one from that race even tried to rent here.  Of course they didn't try to rent there because your advertisement let them know how they would be treated in that area.” (BRC) 

2. Blockbusting (42 U.S.C. §3604(e); Wisc. Stat. §106.50(2m); Miami Beach Code §62-88 (a) (9) (10 & (11)): We “had no idea it existed, pleasantly surprised to see that it's being remedied.” (Prior Group)

3. Differential Pricing (Wisc. Stat. §106.50(2)(b)): Prohibiting charging different prices because of protected characteristics. One prior student thought this provision was “very important …, because she could imagine a situation where a landlord would agree to rent to a person of a certain protected characteristic … only by charging them a higher rate.” Thus, “the statute does not only protect a person’s right to property but also that they be fairly charged for it.” 42 U.S.C. §3604(b) and M.B. Code §62-88(a)(2) also cover differential pricing.

4. Interference (42 U.S.C. §3617; Wisc. Stat. §106.50(2)(j); Miami Beach Code §62-89): All including language like “retaliation” “coercion,” “interference” “intimidation”: One prior group thought it was interesting that it was apparent enough that this sort of behavior goes on and that it was enough of a problem that it needed to be provided for.

5. Provisions Related to “Disability” or “Handicap”: . 42 U.S.C. §3604(f)(3); Wisc. Stat. §106.50(2r)(b); Miami Beach Code §62-88(b)

a) General Level of Detail: in all three statutes (prior group) and in Wisconsin in particular (NQ). Note that §3604(f), if read in conjunction with the regulations, probably does everything the Wisconsin statute does.

b) Coverage of People Associated with Residents: (U.S. & Wisc.): (ABO; RSO) “This expands the scope of the act significantly to those affected by discrimination of a third party.” (ABO)

c) Reasonable Accommodations & Modifications (U.S. & Wisc.) Reasonable modifications at the owner’s expense must be permitted where necessary to afford the person “full enjoyment” of the housing. (ABO) By contrast, reasonable accommodations by the landlord are required where necessary to afford the person “equal opportunity to use and enjoy” the housing. One prior group correctly noted that “full enjoyment” suggests a broader set of rights when the tenant is paying for alterations herself, which seems a sensible result. (ABO) was pleased to see Wisconsin’s specific reference to seeing eye dogs. Note that the federal regulations also make clear that animals required for health purposes should be allowed despite no pet rules.

6. Exceptions for Religious Organizations (42 U.S.C. §3607(a); Miami Beach Code 62-57 & 62-112(a):

a. One group said they were “pleased to see that religious organization could not be discriminated against.” (RSO) This may mischaracterize what these provisions do, which is allow the religious organizations to discriminate based on religion or sexual orientation without violating the statutes.

b. “Religious groups have an exception which states that they may discriminate based on religion, but earlier in that statute it says that you may not discriminate based on religion.” (SPZ) The nature of exemptions is that they allow a limited set of defendants to do what most people are not allowed to do.

c. One prior group was surprised by Miami Beach Section 62-57 regarding Religious Organizations being exempt from sexual orientation claims. This kind of provision is quite common in local and state anti-discrimination laws that address sexual orientation. Arguably, this represents a reasonable compromise to protect the religious freedom of institutions that may have genuine religious objections to being forced to hire or rent to openly lesbian and gay folks. Moreover, these provisions often are politically necessary for passage of the underlying law. Without them, the Roman Catholic church in particular is more likely to mobilize its considerable political resources to oppose the gay rights provision.

C. “I have no idea what this provision is attempting to do.”

1. Federal Provisions

a. 42 USC §1982 “§1982 is very vague.” (prior group). True, although I think the idea was to cover any kind of property transaction.

b. 42 U.S.C. §3604(a): (Prior group) What is a “bona fide offer”? “Bona fide” means “good faith” in Latin. In this context, it means that a housing provider’s refusal to sell or rent is only unlawful if the housing seeker makes a genuine offer. Presumably, the language is designed to protect housing providers if circumstances suggest the offer to rent or purchase is facetious, a joke, or unbelievable.

c. 42 U.S.C. §3604(e):. (ABO) This provision is aimed at blockbusting, which we discussed in Unit III. One group asked if the language “for profit” limits the reach of this subsection. (RSO) As we noted in class, trying to encourage white flight or similar neighborhoods turnover probably is not prohibited unless you are trying to make money off the sales.

2. Wisconsin Statutes

a. Wisc. Stat. §106.50(2)(j): (ABO) This interference provision like its federal counterpart (42 U.S.C. §3617) is a catchall provision to address situations other than the transactions between actual or prospective residents and housing providers. Among the things that have been covered are firing employees for failing to discriminate and harassment or actual violence by neighbors trying to scare off actual or prospective residents with unwanted characteristics.

b. Wisc. Stat. §106.50(1) (referencing “single family residences.”) (RSO). See discussion above under DQ8 Part C.

3. Miami Beach Code

a. §62-88(a)(7): “Red-line” (NQ) Red-lining is refusing to lend money or provide insurance to homeowners in an entire neighborhood, usually on account of racial composition. The term comes from the practice of drawing red lines on maps to indicate undesirable neighborhoods. Red-lining appears to be the target of the whole provision, but “because of its location” may encompass other acts as well.

b. §62-88(a)(8): Makes it unlawful “[t]o offer, solicit, accept or use a listing of any housing accommodation for sale, purchase, rental or lease with the understanding that a person may be subjected to discrimination in connection with such sale, purchase, rental, lease, or the furnishing of facilities or services in connection therewith.” This is pretty ambiguous in some respects. “Some of the group felt what was being forbidden was the ability for someone to obtain property after being told that discrimination was taking place against the person.  However, the rest of us read the statute to prevent a person from ‘passing the buck’ or stating I knew they were discriminating at the real estate agent I used, but ‘I didn't discriminate.’” (BRC). Given where the provision appears on the list (between red-lining and blockbusting), I think it was intended to address behavior by real estate agents/brokers, who are forbidden from participating in any transaction where they understand the seller or landlord is going to discriminate. As your comments suggest, it might be read to apply to someone who purchased a house knowing the seller discriminated against someone else.

c. §62-88(13): Interference with a mediator. (SPZ). A portion of the Code you don’t have indicates that complaints made to the city can be referred to a mediator for resolution. Thus, the statute prohibits interference with that mediator attempting to perform this role.

DQ14. Pick one example of similar conduct that is addressed in two different jurisdictions using different language and try to identify at least one situation in which the difference in language might yield a different outcome.

A. Wisconsin v. Miami Beach

1. Scope of Statute: The Wisconsin Statute you have is limited to housing, whereas the Miami Beach statute includes employment and public accommodations. (KRM). Wisconsin, like the federal government, addresses employment and public accommodations in separate statutes.

2. Advertising: Wisc. Stat. §106.50(2)(d) v. M.B. Code §62-88(a)(6): The Miami Beach provision lists many more specific forms of conduct, some of which probably would not be covered by Wisconsin’s much simpler language. Wisconsin’s provision also will require more litigation to flesh out its meaning. (ABO).

3. Blockbusting: Wisc. Stat. §106.50(2m) v. Miami Beach Code §62-88(a)(9)-(11): Several groups from prior years and (RSO) noted differences in language between these anti-blockbusting provisions:

a. Wisc but not M.B.: “entry into the neighborhood of a person of a particular economic class…” This provides an additional basis for a blockbusting claim: “Did you see that there are working class people moving in to the neighborhood?” One group wanted to know if this phrase would cover lawyers. I don’t think “lawyers” necessarily conveys strong information about economic class, but since Wisconsin prohibits blockbusting on the basis of “lawful source of income,” telling people that lawyers are moving onto the block in order to get them to sell their property would seem to be unlawful.

b. Wisc but not M.B.: “deterioration in the character of the area concerned.” (RSO). One prior group saw this phrase as more general than the three that are included in both statutes and provided an interesting example: “The absence of this more general provision could result in making certain conduct intended to induce sales acceptable in Miami Beach and not in Wisconsin. For instance, a situation where an agent/seller induced or attempted to induce persons in a predominantly Hispanic neighborhood to sell or rent housing by making representations that the neighborhood was becoming increasingly “white” and would therefore take away from the Latin culture characteristic to the area, would be prohibited by the Wisconsin statute and not that of Miami Beach.” This seems correct, although I think the intent might have been simply cover general statements like “The neighborhood is going downhill because ….”

c. M.B. but not Wisc.: “to induce directly or indirectly or attempt to induce directly or indirectly [panic sales]” and “to conspire with others to commit acts [ intended to cause panic sales]. Two prior groups noted these differences and argued that they leave more room for someone in Wisconsin to argue what they did was not prohibited. (RSO) similarly argued that because Wisconsin gave more specific information on what was forbidden, it left more room for someone to argue the language did not apply.

4. Definition of “Disability”: Wisc. Stat. §106.50(1m)(g) v. M.B. Code §62-31: Wisconsin specifically states that current use of a controlled substance is not considered a handicap unless a person is in a supervised drug rehabilitation program. Miami Beach contains no such limitation, so unless it exists elsewhere in the Miami Beach Code, presumably current users can claim their addiction as a disability. (ABO)

5. Definitions of “Family” & “Family/Familial Status”: Wisc. Stat. §106.50(1m) (j) & (k) v. Miami Beach Code §62-31: (NQ) wondered if the differences in the definitions might change who could live in a neighborhood zoned for “single-family housing.” They wouldn’t affect the zoning. These definitions are for the purposes of these statutes only (See Wisconsin: “In this section…” and Miami Beach : “when used in this article…”) and generally would not be applied to language in other ordinances.

6. Lease Renewal: Wisc. Stat. §106.50(2)(f) v. Miami Beach Code §62-88(a)(1): Wisconsin expressly prohibits refusing to renew a lease because of one of the protected characteristics. Miami Beach covers refusal to rent or lease and eviction, but does not specifically mention failure to renew. (SPZ). While this is true, I am pretty convinced that Miami Beach would construe a discriminatory failure to renew a lease either as a “refusal to rent” or as an “eviction.”

B. Federal Statutes

1. Federal Statutes v. Wisconsin/Miami Beach Generally

a. Some prior groups apparently believed that you could not use federal statutes to answer this question because both Wisconsin and Miami Beach are part of the United States and are therefore not ”different jurisdictions.” However, when comparing caselaw or statutes on similar topics, lawyers commonly will talk about differences between federal law and state or local law as occurring in “different jurisdictions.”

b. One prior group said, “Both state/local statutes were more comprehensive, explanatory, and inclusive than the Federal statute, which our group found dismaying and bizarre.” This is partly because it is easier to get local consensus on adding characteristics or conduct to the statute. Also, I deliberately give you two examples that go well beyond the federal statutes and not the many state provisions that merely copy the FHA.

c. 42 U.S.C. §3604(a) (“bona fide offer”): This language (discussed above as part of DQ13C) is not present in either Wisconsin or Miami Beach. (BRC). As noted above, I don’t think it is important language. A housing provider who genuinely believes an offer to be bogus can reject it without violating the statutes. And a housing provider who refuses to sell or provides different information because of one of the protected characteristics violates some part of §3604 even if there is no genuine offer on the table.

2. Federal Statutes v. Wisconsin

a. Advertising: 42 U.S.C. §3604(c) v. Wisc. Stat. §106.50(2)(d) : Like the Miami Beach Code, the federal provision lists many more specific forms of conduct, some of which probably would not be covered by Wisconsin’s much simpler language. (BRC) That group also wondered if the federal statute governed a discriminatory ad that was “made” but never distributed or published. That would seem to be what the provision literally says, although you might argue that if the ordinary reader never sees it, there’s no violation. Yu also could handle this concern by limiting the remedy.

b. Blockbusting: 42 U.S.C.§3604(e) v. Wisc. Stat. §106.50(2m): The federal statute limits this type of claim to transactions induced “for profit.” Wisconsin doesn’t have that limitation (RSO), so would presumably cover acts by hysterical neighbors as well as those by brokers. Wisconsin provides more detail as to the type of statements that might be problematic (RSO), but a similar list exists in the federal regulations.

3. Federal Statutes v. Other Federal Provisions: One group stated, “§3604© specifically discusses advertising and print while §100.70 says that you can’t communicate in a discriminatory manner. This should include print, but is really broad so it will apply to communications that §3604 will not.” (SPZ) There are a couple of problems with this response:

• §100.70 is a federal regulation interpreting §3604 and so is not from a different jurisdiction as the question requires.

• The passage about “communicating” in §100.70 is defining steering; the regulation discussing advertising is §100.75

 

(D) Marina Point Additional Problems:

Comments & Best Student Answers

Marina Point Problem 1: Comments: Here, I was looking for a discussion of whether discrimination against all who didn't attend CCC was the sort of discrimination covered by the Unruh Act. Your answers should have followed the form of the discussion we had in class about the scope of that statute (and the discussion of whether conduct fit into a category that was part of Assignment II : What type of discrimination does the statute cover? Can you characterize this activity as fitting into that category? The strongest answers focused on her general policy rather than any perceived problem with either Patrick or Whicomb grads (use of the word "thus" means this) and made arguments both for and against Loretta. The many discussions of Kramansky or other state/federal anti-discrimination statutes were not responsive to the question. Several of you suggested that Marina Point was distinguishable because it involved eviction and not entry. However, neither the statute nor the case make that distinction. Several also suggested that an apartment complex is not a business establishment. However, the court applied the statute to an apartment complex in Marina Point, so that argument won't fly as the question is framed. The first model answer is a little better than the second.

Marina Point Problem 1: Student Answer #1: Marina held that the legislative intent was to prohibit all arbitrary discrimination. The list included did not restrict, it merely illustrated the protected class of people. In that case, families with children were not listed in the Act and the court held that the Landlord could not refuse to renew lease because family had baby even though the Act did not include them as a protected class. Court in making its decision interpreted the meaning of the statute through legislative intent. The Act was meant, as Court noted, to prevent discrimination based on stereotypes. Basically, acting on presumptions and not giving people chances to prove you wrong, in a sense. In this case, Loretta refused Patrick the apartment, it seems obvious she did so based on her prior intentions to sell only to CCC students given her bias & preference to the school.

Arbitrary? It appears from the facts Loretta's actions are arbitrary and stereotypical perhaps. Are Whitcomb University students stereotyped some way? Are the school's rival? Her only interest as a Landlord mainly should be that he can pay the rent since most landlords buy and run apartment buildings for profit. (Questionable perhaps here since she bought near campus & enthusiastic; maybe just as a way to be close to CCC students?) Court is going to question why a landlord would reject a tenant who can pay and has good references.

Protected Class? In Marina Point Act it was extended to include (or said to be inclusive of) family with children. The court may have been more apt to do that in that vulnerable case since family with children can: 1) Suffer systematic discrimination, 2) have a tough time—shortage of cheap housing. Does it make much sense to do the same for Whitcomb Students? Loretta would argue that Patrick is not as vulnerable to systematic discrimination as a family with children. He could easily go to the next apartment complex. However, should court adopt that standard? Unruh appears to have 2 prongs (1) no arbitrary, but (2) Marina indicates family with children = vulnerable class. Therefore, it depends on whether court reads the statute more narrowly this time to hold no arbitrary or vulnerable classes. However, the major holding was no arbitrary discrimination—so if the court reads broadly—Loretta might not be able to refuse Patrick.

Marina Point Problem 1: Student Answer #2: Calif's Unruh Act prohibits discrimination based on sex, race, color, religion, ancestry, national origin, or business establishment. The court in Marina Point interpreted this list to be illustrative and not restrictive. The court claimed that the act was intended to prohibit all arbitrary discrimination. While landlords could still enforce exclusionary policies, they must be based on individual grounds, not generalized predictions about the conduct of a particular class.

Loretta could claim that she is refusing to rent to Patrick not for any arbitrary reason, but because she wishes to aid fellow CCC alumni in finding housing. She is not concerned with what group Patrick belongs to and is not making any predictions about his behavior due to his long hair. She simply wishes to rent to CCC students and alumni. The policy behind this is that the apartment is hers and as long as she is not discriminating against a class of individuals, she should be allowed to rent to only certain people. Presumably she would rent to a CCC student regardless of their belonging to one of the categories described by the Unruh Act.

Patrick, on the other hand, could assert that it was discrimination because he was not being rented the apartment because of something inherent in him, not his job, references, or ability to be a good tenant. He could claim that Marina Point chose to interpret the Unruh Act the way it did for a reason, and that reason was to prevent this very thing. He could claim that Loretta's rule of renting only to CCC students is completely arbitrary. There are strong policy reasons to not allow this. Apartments are scarce in many areas. By a university they are usually more scarce. Loretta's policy only adds to the scarcity by not allowing many potential tenants to get her apartment. Tenants should be judged by things they can control like their ability to pay the rent not whether they belong to arbitrary categories that they can neither foresee nor control.

Marina Point Problem 2: Comments

(a) What I Was Looking For: Your application of Marina Point (MP) to L’s policy should have used the major arguments from the case to assess L’s policy excluding owners of foreign cars (FCs). In particular, I was looking for variations on the following three points:

• MP seems to forbid landlords from using stereotypes and generalizations to select tenants. Here, L’s policy seems to be based on prospective tenants’ specific behavior: purchasing FCs. Nothing in the problem suggests she stereotypes people who buy FCs as likely to default or engage in antisocial behavior. On the other hand, you might argue that she is assuming that people who buy FCs are anti-American or anti-labor, which is a kind of stereotype.

• MP talks of “legitimate business interests” of the landlord, so can be read to require that landlords exclude tenants only for reasons related to their commercial interest in the property. Purchasing FCs seems unrelated to a tenant’s tendencies to default or engage in antisocial behavior, so it is arguably arbitrary.

• MP expresses concern that, absent protection, people with children will be unable to finding adequate housing. You have no reason to believe that L’s policy is common, so it is unlikely to have any effect on the ability of people with FCs to be housed. On the other hand, as some of you suggested, if Dickerson is a very small town, perhaps exclusion from 50 units could be significant.

In addition, several of you discussed whether purchasing FCs was similar to characteristics already protected in the Unruh Act. Although MP does not engage in this type of analysis, it is a common form of statutory interpretation, and a court would consider these arguments. Here, the most common argument was that the listed characteristics are largely beyond people’s control (sex, race, national origin, color). Similarly, once people become parents, they cannot easily change their condition by giving up their children. By contrast, it is relatively easy to trade in a car and people change cars much more frequently than they change parental status or religion.

In the end, although none of your answers explicitly focused on this, the question boiled down to whether a landlord should be allowed under MP to exercise an idiosyncratic bias that has little to do with her commercial interests but is also unlikely to be shared widely so as to prevent the target group from getting housing at all.

(b) Common Problems:

(i) One-Sided Answers: Slightly over half the people who did the short answers seemed to recognize valid arguments only for one position on this question. Interestingly, those who were certain that there was one clear answer here split roughly evenly as to what that answer was. As my analysis above and both the models demonstrate, there were significant arguments available for either position. Arguing just one side significantly limited the number of points you received.

(ii) Discussing Other Statutes: The question asked you to apply MP and the Unruh Act. You lost both points and time if you engaged in non-responsive discussion of Kramarsky (which interprets a New York City ordinance) or of the federal FHA.

(iii) Thin/Conclusory Arguments: Many of you ran through one or more of your arguments very quickly. I rewarded answers that developed their arguments more. Compare:

Buying FCs seems unrelated to being a good tenant.

Buying FCs seems unrelated to being a good tenant. FCs come in a wide price range (from Yugo to Ferrari), so not a good indicator of ability to pay. Because FCs so different from each other (Saab marketed very differently from Porsche), no reason to believe buying FCs in general demonstrates inability to get along with others or other social concerns of residential landlords.

(iv) Misreading MP: Common mistakes in interpreting the case included:

• Arguing that L could generalize relevant criteria from FC ownership (e.g., FCs tend to be higher priced, so maybe less ability to pay because of high payments). However, MP specifically forbids landlords from generalizing about all tenants in a class even if the generalization tends to be true. Moreover these generalizations seem less likely to be true than the ones about children rejected in MP itself.

• Arguing that, to be protected, the disfavored characteristic must be like those listed in the statute. Although such similarity would certainly strengthen your case, the court does not require it in MP.

• Arguing that arbitrariness depends on the size of the excluded group. The case doesn’t say that and a court is unlikely to accept that kind of rule. MP itself protects people with children (a very large group), but the statute also protects small religious and ethnic groups like Quakers and Macedonians.

(c) Model Answers: Both model answers see all three arguments suggested by MP and make well-fleshed out arguments on both sides of the question. Both also raise the important issue of the tenant’s control over the characteristic.

Marina Point Problem 2: Student Answer #1: Under the Unruh Act (UA), the Cal. courts decided that even though a landlord’s choosing of tenants met the criteria set in the statute, it was not enough because the statute is not exclusive but only sets a framework to work with. The idea of “arbitrary” was developed because landlords were discriminating in other ways by specific classes. In Marina, the court suggested that the Landlord might be able to not rent to a noisy family with children, but not to ALL families with children. Similarly here, because Landlord is not saying how X type of car is affecting the other tenants, it could be found arbitrary. For example, the Landlord could maybe say, “I do not like cars that are larger than X because they do not fit in the our parking lot.” Another reason this might be arbitrary is that it is very personal to the Landlord and has no effect on the business. Even if Landlord argues that by not renting to people with American-type cars then people would start buying them, and so Landlord has some economic advantage, it is very small and has no practical effect.

Alternatively, it could be found to be not arbitrary. After all, the reasoning behind Marina was that by not renting to families with children, the Landlord there was increasing the shortage of family housing. I can’t seem to find a place for that rationale here. There is no shortage of housing for people with Japanese cars that I know of! Another reason why this could be not arbitrary is that unlike the families, car owners can choose not to buy X type of car, but a family cannot choose not to have the child that they already have with them. It seems that the policy for all anti-discrimination acts is to stop landlords from discriminating against tenants because of something tenants have no control of: age, color, nationality and religion to a certain degree. Here that rationale doesn’t see to fit that much. Because you can exchange your car and that would be it.

Marina Point Problem 2: Student Answer #2: The court in Marina Point found that the list of protected classes was illustrative, not restricted to those particular classes. In doing so the court looked toward the legislature’s intent and established that the intent was to prevent arbitrary discrimination period. Subsequently the CA leg even amended the Unruh Act and did not change the act to go against or infringe on the courts interpretation, thereby approving by acquiescence.

Lourdes’s restriction, while having a personal origin, her father’s layoff, is still linked to the individuals and a choice they made. L is not discriminating against the individuals because of something they cannot control. They made a decision to purchase non-American or non-primarily-manufactured-in US cars. The individuals would argue that it was not always a conscious choice. Maybe they were given them or were unaware of where the parts were made.

The illustrative nature of the interpretation can support the position that one cannot discriminate against someone only for something related to their inability to pay or other tenant-related issues. The safest example is when a child produces an unreasonable environment in an apartment complex. L’s restriction does not relate to her position as LL or the TNs ability to be a good TN, in this sense it is about personal taste and therefore arbitrary.

Marina Point expressed a concern for housing options available to families with children. Their concern especially given the boom of restricted housing communities, a retirement community for example, was valid and is not present in the facts at hand. The worry that people with non-American made cars will never find a place to live is a far cry from children with no homes. However perhaps a group of those objected to could ban together and say the bad economy is affecting everyone and the sentiment regarding American bought products is so strong they are now stigmatized.

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