QUESTION IIIA (Answer IIIA or IIIB)
HOUSING DISCRIMINATION SPRING 2008 FINAL EXAM:
QUESTIONS, PROFESSOR’S COMMENTS & BEST STUDENT ANSWERS
Question I
Theobald University is located in the city of Brickenhart. It is a mid-sized private university associated with an Evangelical Christian denomination. All of its on-campus housing is segregated by sex, but it only has room on campus for about three quarters of its undergraduates. The rest of the undergraduates and all of the graduate students (about 800 students a year) must find housing in Brickenhart or its suburbs.
Liz is a Theobald graduate who has religious beliefs conforming to the denomination associated with the university. She owns a five story apartment building near campus. Each floor has twenty large two-bedroom apartments that can house up to four adults in reasonable comfort. Most of her tenants are current Theobald students or recent graduates. Many of the Theobald students prefer to live in sex-segregated housing and the University encourages them to do so when possible. Liz’s own religious beliefs make her more comfortable with sex-segregated housing for Liz to run a completely sex-segregated building.
To try to balance market forces with her own and the students’ interests in sex-segregated space, Liz organized her building as follows: The apartments on the second floor of her building are only available to male residents. The third floor apartments are only available to female residents. To ensure that tenants cannot get around this system, opposite sex overnight guests are forbidden on both the sex-segregated floors. The apartments on the first, fourth and fifth floors are available to anyone. Only apartments on the fourth and fifth floors have views that increase their value.
Most of the time, nearly all the apartments in the building are rented out. As a result, sometimes the only units available for rent are on one of the sex-segregated floors. The men’s floor has been the only one available about as often as the women’s floor. When this happens, Liz puts prospective tenants on a waiting list and offers them an appropriate unit as soon as one becomes available.
A local non-profit fair housing agency sued Liz in federal court, alleging that maintaining sex-segregated floors constitutes unlawful steering in violation of the FHA. The District Court found as facts the information provided above and ruled in favor of Liz.
In its opinion, the court held that sorting tenants by floor was not steering where the sorting did not put any actual limit on the total number of men or the total number of women in the building. It also held that Liz’s system did not violate §3604(a) because both sexes were treated identically. The court expressed confidence that Congress did not intend to forbid benign sex-based segregation consistent with traditional social norms.
The Court of Appeals reversed. It held that, under Chevron, it needed to give deference to HUD’s reasonable determination in 24 CFR §100.70(c)(4) that “Assigning any person … to a particular floor of a building, because of … sex” is unlawful steering. It also held that every time Liz put a set of prospective tenants on the waiting list because one or more of them was the “wrong” sex for a particular apartment she literally violated §3604(a). The court concluded that the FHA contains no exceptions that justify the trial court’s refusal to apply the literal language of §3604.
Liz petitioned for certiorari. The U.S. Supreme Court granted the petition to determine when, if ever, sex-based sorting of tenants within a multi-unit residential building violates the FHA.
Compose drafts of the analysis sections of a majority opinion and of a shorter dissent for the U.S. Supreme Court deciding this question in the context of the facts of this case.
Assume that the facts given are correct and that the plaintiff had standing to bring the claims. Assume Liz did not claim that application of the FHA to her situation would violate the U.S. Constitution.
Question I: Professor’s Comments: This question was an opportunity to show off how well you could work with arguments about when it is appropriate to ignore the literal reading of the statute. There were some very strong answers. The most common problems included failure to stick to the question presented, failure to read the facts carefully, failure to tie policy arguments to the statute, failure to address the arguments raised by the lower court and by the other opinion you wrote, and treating lower court cases like Braunstein and Starrett City as though they were binding on the Supreme Court. Some possible approaches to the problem follow:
(A) Literal Violation: A good place to start is that the conduct here literally violates §3604(a) and falls within no express exemption. Liz sometimes puts applicants on the waiting list because they are the “wrong sex” for an available apartment. You don’t have to discuss whether this falls under the “otherwise make unavailable” language of 3604(a); she is simply refusing to rent or denying housing because of sex. Those of you who argued that putting somebody on a wait list is not a denial were generally not very convincing. First, a specific apartment is denied to the applicant. Second, in cases we read like Starrett City and Asbury, the courts treated putting someone on a wait list or extending the amount of time on the wait list as violations of the statute.
Several students suggested that Liz also violated 3604(d) because she sometimes would tell applicants a sex-segregated apartment was unavailable when she was saving it for people of the correct sex. This is a plausible argument, although I think the provision was designed for owners who really were lying about availability. Here, Liz might have been upfront about what she was doing, which might not really violate §3604(d).
(B) Ways to Get Around Literal Argument: Below are four approaches to get around the literal argument. They overlap to some extent and you could have used more than one in sequence or in combination. Several students also argued that L should be able to do what she wants with her own property. That might be a reasonable policy argument in another context, but the whole point of the FHA is that the owner can’t do whatever she wants if what she wants is to discriminate because of a protected characteristic.
(1) Both Sexes Treated Alike (Braunstein): You could support this argument made by the trial court by noting that there is no evidence of any negative effect on either sex as a group, that there is no stigma here, that the building as a whole wasn’t segregated, etc. You might want to argue that this is a rule that can be used for sex but not race and then defend that it’s OK to treat the characteristics differently (see below).
(2) Benign Discrimination: Lower court cases have approved “benign discrimination” in some circumstances. E.g., Starrett City; South-Suburban; Bangerter. You might argue that L’s policy falls within this category. While it is not serving a vital FHA policy like integration or protecting the safety of persons with disabilities, the policy is trying to satisfy a demand for sex-segregated housing by the tenants in question and arguably serves their interests in privacy and safety. Although it probably wouldn’t meet the Starrett City test (unlimited duration; not addressing history of segregation or imbalance), you can distinguish Starrett City because neither sex is systematically disadvantaged and, as the trial court noted, there is no ceiling quota for the building.
(3) Congressional Intent: The trial court argued that Congress could not have intended to make Liz’s policy unlawful. This is a classic Speluncean Explorers kind of argument. In addition to arguments from those readings, you might have discussed the following related points:
• Sex-segregated facilities are common and are not seen to violate sex discrimination provisions. E.g., presumably a condo complex could have sex-segregated changing facilities by its pool. The second model does a nice job with this argument.
• Sex is different from race (and some of the other protected characteristics), because there generally is no stigma attached to sex segregation and because there are legitimate reasons like privacy and safety for preferring single sex living space. You could note in response that the safety and privacy arguments are considerably stronger in the context of roommates than here (where people are living in separate apartments).
• Sorting people onto different (roughly equal) floors within one building doesn’t cause the sorts of harms usually associated with steering. No group is systematically disadvantaged and, with the residents integrated on most floors and sharing elevators, etc., this doesn’t seem like the sort of “segregation” that we usually worry about.
(4) Protecting Religion: Although religion was clearly a part of this problem, you had to use it carefully to make it legally relevant. Some thoughts on appropriate and inappropriate ways to include religion in the problem:
(a) Constitutional Claims (X): You should not have discussed the Free Exercise Clause. The problem explicitly said that Liz did not claim that application of the FHA to her situation violated her First Amendment rights. I also told you I wasn’t going to test constitutional doctrine on the exam. Many of you discussed the test from Swanner anyway, which was particularly egregious, since that case involved the Alaska Constitution, which of course would not trump the federal FHA.
(b) §3607 Religious Exemption (X): I not explicitly instruct you not to discuss this exemption because I thought it so obviously did not apply that I optimistically believed there was no need to warn you off it. Briefly, Liz is a private landlord, not a religious organization; there is no evidence that she is a non-profit or non-commercial entity; she is not favoring members of her own religion, but instead making decisions on the basis of sex; there is no evidence she raised the claim; and it is not mentioned as part of the question the Supreme Court agreed to address.
(c) Religion as a Policy Argument (√): You can usefully use the religious interest as a policy argument supporting a decision to not read the statute literally. The argument is most effective if you focus on the religious interests of the tenants. Liz herself may share their religious beliefs, but (unlike the landlords in Smith and Swanner) she is not trying to force anyone else to adhere to her views. Instead, she is providing a space for some of her tenants to live according to their beliefs. You can support any of the other arguments in this section by saying something like, “We especially see no need to adhere to a literal reading of the statute where to do so would deprive some of the tenants of a housing choice that they believe is religiously mandated. We should always try to avoid interpreting a statute in a way that might raise constitutional concerns.”
(C) Harms Flowing from Liz’s Policy: To support the literal argument and to counter some of the responses, you usefully could try to identify specific harms that might arise if Liz and others like her could continue using her policy. Here are several possibilities:
1. Individuals Are Harmed: Even if men and women collectively are treated the same, any time an individual doesn’t get a dwelling because of one of the protected characteristics, it is the kind of harm the FHA seeks to prevent.
2. Possible Effects: A few students cleverly argued that, although there was no evidence here of harmful effects on men or women as a group, there might be in other cases. For example, you might have a situation like Braunstein itself where the demographics were skewed toward one sex. In addition, sex-segregated floors might lead to unequal provision of services (as may have happened after the Starrett City decision). For example, the landlord might decide, in keeping with common sex stereotypes, that the male floor needed less frequent cleaning or less fancy carpeting. Obviously, you could address these problems when they arose, but you could also say that adhering to the literal language of the statute in the first place is simpler.
3. Mixed-Sex Groups: A handful of students noticed a crucial point I missed when I drafted the problem: If you wish to live together with one or more persons of the opposite sex, Liz would exclude you from both the sex-segregated floors. This doesn’t necessarily mean that a court would strike down the policy, but the case would certainly look more compelling if brought by a heterosexual married couple or by a single mother with a male child.
4. Many People Don’t Want Sex-Segregated Floors: Quite a number of you made this argument, but I’m not sure how significant it is. For one thing, there is no shortage of housing that is not segregated by sex. For another, L is not forcing anyone to live in sex-segregated floors if they don’t want to. Obviously, there are enough people who desire (or do not mind) this way of living, that Liz’s building is generally full.
(D) Chevron Analysis: The question invited you to show off your facility with Chevron analysis and you lost credit if you didn’t at least try to explain how you’d get around Chevron on the side supporting Liz. This was a difficult task because the HUD regulation appears to be consistent with either a literal reading of the statute or a slightly broad reading that furthers the purposes of the FHA.
1. Ways Around Chevron
a. HUD Regulation Doesn’t Cover This Situation: Perhaps the easiest way to get around Chevron is to argue that the regulation relied on by the trial court does not in fact address the policy at issue here. Several of you cleverly argued that the language of the reg (“Assigning any person … to a particular floor of a building…”) doesn’t apply, because Liz did not “assign” people to the sex-segregated floors, but allowed them to select those floors if they wanted them. Note that this isn’t a foolproof argument; she arguably does assign people collectively to particular floors and might assign you to a different floor if you asked for a room on the “wrong” floor.
A more subtle version of this argument is to say that there is really no evidence that HUD considered the specific conduct at issue here, so absent a definitive interpretation by HUD, there’s no reason to give deference.
b. Congress Really Intended Not to Cover This Situation: The Chevron materials we read did not really address a situation where the regulation might seem to be a reasonable interpretation of the statute as written, but the court is nonetheless convinced that Congress did not intend the result reached by the agency. Presumably, if a court is convinced that the statute has a different meaning, it would not give deference to the agency. I gave credit for arguments of this type, particularly if you made a good case regarding Congressional intent. Both model answers make arguments of this type.
2. Common Problems
a. Statute v. Regulation: Many of you didn’t recognize that 24 CFR §100.70(c)(4) is a HUD regulation (not a statute) interpreting the relevant statute, §3604(a).
b. Consistency with Literal Argument: If you argue in one of your opinions that L’s conduct literally violates §3604(a), then, to be consistent, you must argue that the HUD interpretation is simply correct under the first step of the Chevron analysis. There is no need to give deference because there is no statutory ambiguity.
c. Meaning of Deference: In this context, if the court gives deference to the agency, declaring its interpretation is “reasonable” does not require that the interpretation be the best or only one, but just that it is one of a range of plausible interpretations. A number of students incorrectly suggested the interpretation was unreasonable because, for example, they identified some policy reasons opposing the interpretation.
Question I: Student Answer #1: This is a terrific answer. The student handles the substantive arguments very well and does a really nice job using language carefully, particularly in ways that indicate a good understanding of the Supreme Court’s role in a case like this.
Majority: As the Court of Appeals correctly noted, Liz's policy literally violates 3604(a). This is so because “but for" the sex of the applicant, housing would otherwise be made available to many who are forced to endure the inconvenience of a wait list. Most apartments in L's building are usually rented out, and Liz's policy of sex-segregation quite literally “makes unavailable" and “denies" housing units to qualified applicants because of sex. Moreover, Liz's policy of steering applicants towards particular floors also literally violates 3604(d), because it represents that a dwelling is not available, when such a dwelling is in fact available - just on a different floor.
In interpreting statutes, this Court should first look to the language, because the language represents the law as enacted by the legislature - the deal as it was struck on the floor of Congress. This Court should follow statutory language literally as written, unless doing so would lead to an "absurd" result, or there is a clear ambiguity present. We feel that striking down a policy of patronizing discrimination, whose effects are felt by denying housing on the basis of sex, works no absurdities. Even so, we will indulge in briefly examining Congressional intent on this issue, which we feel clearly supports our interpretation of the FHA.
Congress enacted the FHA in order to help end segregation and make housing available to all US citizens, regardless of membership in classes enumerated by the FHA. The trial court argued that "Congress did not intend to forbid benign sex segregation consistent w/ trad. social norms." Yet this makes no sense to us. If the intent of Congress was to maintain “trad. social norms", why would Congress bother in inserting sex into the FHA, thus giving men and women equal access to housing? Perhaps an analogy to race may be appropriate. Would this Court uphold a policy consisting of “Whites only" and “Blacks only" housing, even if Whites and Blacks were technically treated identically? Because the purpose of the FHA was to discourage and break pernicious patterns of housing segregation, such a policy would clearly be unlawful under the scope of the Act. In order to combat this form of discrimination—which may make housing technically available, albeit in different areas to different groups—lower courts have correctly held that this behavior, dubbed “steering,” violates 3604(a) and (d) by preserving and encouraging patterns of segregation.
The dissent notes that since “sex" segregation in housing is certainly not synonymous with racial segregation in housing, “steering" on the basis of sex should be allowed, where such conduct might be held unlawful if done on the basis of race. The structure of 3604, we feel, disposes of this argument. In adding "sex" to the list of protected characteristics, Congress inserted it right alongside race, religion and national origin in the statute, suggesting that Congress intended us to view sex discrimination as synonymous with race discrimination in housing, or at least not carve out non-statutory exemptions to the Act where we would not be able to do so for race. This can be contrasted with Congress' treatment of handicap, which, though included in 3604(c), received its own section in 3604(f). We note that handicap-based discrimination contains its own set of issues, which may justify treating it differently from other forms of discrimination. Congress recognized this by including a unique section for handicap claims, where sex is inserted right alongside race. [MAF: Very nice use of structure of statute.]
In Trafficante, we held that the FHA is to be broadly construed. Exemptions (as a corollary) should be very narrow. By allowing this form of literal discrimination, we would be doing injustice to this maxim, and carving out a broad exemption to the Act which has no grounding in statutory language. In addition, we would shroud the Act in ambiguity, suggesting that - perhaps - steering and segregation of this form may be acceptable when it comes to familial status as well. We feel that this confusion is too heavy a price to pay, and is unacceptable, given the sweeping intent of Congress to make housing available for all. We further note that treating men and women differently for housing purposes implicates hopelessly outdated forms of patronizing - as mentioned by at least one lower court in Reece - which insults grown adults' ability to make their own choices when it comes to housing.
Finally, we note that HUD effectively held Liz's policy to be explicitly unlawful in its regulation 100.70(c)(4). We feel that this interpretation is reasonable on the first prong of the Chevron analysis: the literal language of 3604(a) and (d), and the policies underlying the FHA (as outlined above), suggest that Congress did indeed speak on this precise issue, and made the answer clear. Yet even were we to indulge in supposing that Congressional meaning is not clear, we feel that HUD's interpretation is coherent and reasonable, given the broad interpretation the FHA should be subject to. We note that we must give an agency like HUD deference in considering its interpretations of Congressional statutes. Accordingly, we AFFIRM the Court of Appeals, holding that Liz's policy is unlawful, as violative of 3604(a) and (d).
Dissent: The majority today incorrectly holds that benign, non-invidious and consensual living arrangements which feature different living spaces for different sexes are violative of 3604 (a) and (d). We begin by noting that at least one lower court, in Braunstein, held that a policy which made the availability of 2-bedroom apartments turn on whether a child was the same sex as the parent did not violate the FHA, even though this policy, in the words of the majority, made housing unavailable to applicants “but for" the sex of the parent (and child). The court in Braunstein, quoting a Title VII case, aptly noted that "sex discrimination results when the opportunities ... offered to one gender are less valuable ... than those offered to the other." Here, the facts suggest no qualitative difference between living on the 2d floor and living on the 3d floor. Nothing about the housing suggests that apartments available to females are any different, or less valuable, than those available to males. In addition, the men's floor is available about as often as the women's floor, so there is no practical difference in access which might make the policy violative of the FHA on a disparate impact theory.
Moreover, we note that this form of sex-sorting was largely self-imposed, and did not involve the form of "outdated patronizing" referred to by the majority. Indeed, because most of Liz's tenants are current Theobald students or graduates, many students PREFER sex-segregated housing, and the University encourages this preference, Liz's policy is merely a response to the demands of the market, rather than a form of patronizing. We note that were the University to expand its on-campus housing, most students seeking housing w/ Liz would reside in sex-segregated housing anyway. We also note that Liz only offers 2 floors which are segregated by sex, to meet the demand of her tenants. Those wishing to reside in a co-ed environment are free to rent an apartment on other floors of Liz's building.
Moreover, nothing in the facts suggests Liz makes any efforts to "steer" applicants towards a given floor. Presumably, applicants are free to make their own decision about where to reside (be it on the sex-segregated, or co-ed floors). Nothing in these facts suggests that Liz herself actually pushes females to the female-only, or males to the male-only floor. We feel that this behavior does not constitute a "refusal to rent", since qualified applicants are free to receive housing on co-ed flooring, assuming space is available. We also note that out of 5 floors, only 2 happen to be sex-sorted, whereas 3 are available to any applicant.
The majority suggests that sex should be treated similarly as race for FHA purposes. We feel this distorts congressional purpose in enacting the Act. The FHA was enacted largely to combat race-based segregation and discrimination. Clearly, there is no history of invidious sex-based housing discrimination in this country, like there is for race. The majority is incorrect in noting that sex and race are treated exactly the same in the statute. We note that in the religious exemption to the FHA, Congress noted that if a religion bases membership on "race, color, or national origin", it does not qualify for the exemption. This suggests that race has a higher position on the pantheon of values protected by the FHA than sex, and should be treated with greater care than benign efforts to make people comfortable by sorting housing on the basis of sex. [This is a terrific argument.]
We note that HUD will allow roommate ads to specify a preference for sex, even though this literally violates 3604(c). In addition, almost every public building in this country, including this courtroom, has bathroom facilities segregated on the basis of sex (where such segregation would be impermissible on the basis of race). Because of these differences, sex-based sorting of this sort should be permitted. Because Congress primarily passed the FHA to prohibit race-based discrimination and segregation, HUD's strict interpretation of sex-based steering as violative of the FHA misses the point of the statute, and should be overruled.
Question I: Student Answer #2: This is not quite as strong as the first model, but I liked the use of existing sex-segregated housing to pinpoint Congressional intent and to defeat Chevron.
Majority: We have been asked to determine when, if ever, sex-based sorting of tenants w/in a multi-unit residential building violates the FHA. While we agree that steering practices may violate the FHA and perpetuate discrimination and segregation, we hold that such steering practices might be deemed lawful if the housing provider has sincere religious convictions or if there is another compelling purpose. Because of the invidious nature of discrimination and segregation in any form, however we will not allow such steering practices if there is a commercial nature involved.
Chevron Analysis: Step 1: We must first look to the plain meaning of section 3604(a), which makes it unlawful to “refuse to sell or rent…refuse to negotiate…or otherwise make unavailable…on the basis of sex.” Legislative history confirms that the goal of the FHA was to eliminate segregation and promote integration; however the bill was passed mostly in the context of race.
We also note that Congress was aware of sex-discrimination in housing (i.e., convents & monasteries, religious schools like Theobald, and sex-segregated dorms) and did not explicitly outlaw such discriminating practices. Indeed since 1974 when sex was added to the FHA, such practices have continued. We emphasize, however that such discrimination is done where housing is not offered commercially.
While we should give a generous construction to the FHA based on the importance of its non-discrimination policies (see Trafficante), we are loathe to outlaw all “steering”-type practices because of the longstanding practice of sex-segregation in housing as outlined above. The dissent notes that such practices are exempted by 3607, but this is only for religious organizations.. We feel that 3604(a) mandates should be left slightly open to allow for legitimate, rational, non-commercial steering such as in dorms. We also encourage Congress to amend the FHA to make the status of such practices clear.
Step 2: The lower courts, seeing ambiguity in the plain meaning of the stature, sought to apply the HUD interpretation of the statute to discern its meaning. 24 CFR 100.070(c)(4) deems it unlawful under 3604(a) to “assign a person to a particular floor at a building…because of … sex.” We note that, in light of the FHA’s policy of antidiscrimination and promotion of integration, this seems on first glance to be a reasonable interpretation. However, it ignores the history of segregation based on sex in convents, monasteries, religious schools and dorms. We note that, under Chevron, deference should be given to the agency interpretation. However, the interpretation ignores long-standing policies by non-commercial institutions.
The interpretation also ignores the fact that there is less stigma with respect to sex segregation. We segregate based on the sex of all the time, bathrooms & showers being prime examples. Again we are loathe to change a policy where the stigma with respect to other classes—race, handicap and familial statutes primarily–is much stronger. Also, there are compelling policy reasons to allow this. For example; religious institutions may discriminate based on sex (as above) and we may be able to reduce the risk of sexual assault against women through segregated floors. We also note that there was no disparate treatment – both males & females treated alike here – thus no violation per Braunstein.
In sum, because HUD’s interpretation of 3604 does not take into account that the primary concern of Congress was race segregation and discrimination; that Congress was aware of sex segregation policies in housing, but did not explicitly outlaw such policies; and that there is less stigma with respect to sex discrimination, we feel 100.170(c)(4) should not be read to flatly prohibit sex-based steering.
We limit our holding only to non-commercial housing – we do not wish to commercialize such discrimination, but we wish to preserve religious & moral freedom. We reverse, and remand with instructions to determine if Liz operates commercial or non-commercial housing. If commercial in nature, Liz’s policy will be held to violate 3604(a)
Dissent: I disagree with the majority, and would affirm the judgment of the court of Appeals. The majority plainly misunderstands the law. 3604(a) clearly prohibits sex-based steering practices. There is no commercial or non-commercial distinction at issue.
Chevron Step 1: The plain meaning of the statute makes it unlawful “to refuse to rent or sell…or to otherwise make unavailable …on the basis of … sex.” Clearly, this steering practice makes housing unavailable on the basis of sex. Further, per Trafficante, we should read the statute broadly to effectuate Congressional intent- i.e. to eliminate discrimination & segregation in housing. If Congress wanted to make non-commercial steering lawful, they should have written in into the statute.
Step 2: If the statute is ambiguous, we look to the agency interpretation, giving deference to the agency interpretation. 24 CFR 100.070(c)(4) clearly advances Congressional policy & statutory mandate (i.e. eliminating discrimination) and there is no compelling reason that the agency is wrong. There is no non-commercial exception in the statute.
We should be loathe to limit housing opportunities based on sex, whether commercial or non-commercial. Sex discrimination is historically suspect (see women’s suffrage movement, sex discrimination in employment). Sex-segregation does create a stigma, and it limits housing opportunities for both male and females. There are other ways to address safety issues.
Absent a statutory exemption, we must read the statute broadly per Trafficante. If public opinion on the issue were to change, Congress can create an exception. We, as the court, must protect statutory rights.
QUESTION II
You work at the U.S. House of Representatives on the staff of Rep. Constant Waffle, a moderate from central Missouri. One of his colleagues, Rep. Rhea Alice Tate (R-Virginia.), wants to amend the FHA to clarify the operation of §3603(b)(1). Specifically, she wants to make clear that:
• A single condominium unit can count as a “single-family house” even if it is located in a building that contains multiple dwelling units.
• A real estate agent or broker or a person who owns one or more multi-unit housing complexes can claim the exemption if they otherwise meet the requirements of §3603(b)(1).
Rep. Tate has proposed, as an amendment to the FHA, the following three subparagraphs to be added to the end of §3603(b)(1):
(C) For purposes of this section, a single-family house shall include a dwelling unit intended to house a single family that is part of a structure with other dwelling units as long as the owner doesn't own multiple units in that building.
(D) For purposes of the Fourth Proviso above, a real estate broker, agent or salesman who owns a single-family house does not violate subparagraph (A) by using their professional knowledge and skills.
(E) This exception can be invoked without regard to the number of multi-unit buildings they own if the owner otherwise conforms to all of the other requirements listed here.
Compose a draft of a memo for your boss assessing the proposed amendment. The memo should include:
- Technical Critique including identification of technical drafting problems with the amendment as written and identification and explanation of possible changes to address these problems (if Rep. Waffle decides to support the substance of the amendment); and
- Substantive Critique including discussion of the pros and cons of the substance of the amendment and identification and explanation of possible substantive changes to improve the amendment.
Question II: Professor’s Comments: This question turned out to be a very good test both of how well you understood the single-family house (SFH) exemption and of how well you could read statutory language. Your answers displayed a very wide quality range. The models are both very good, as were quite a few other answers. However, many of you had a lot of problems (yielding the irritable scrawled comments you may find on your tests). The comments below begin with a fairly extensive discussion of general concerns, then turn to points specifically related to each of the three parts in turn.
A. General/Overall Concerns
1. Misunderstanding Proposed Provisions: The single most common problem was not understanding what one or more of the provisions was trying to do. Often, part of the problem was not understanding how the SFH exception operates and how it has been interpreted; this is just a question of insufficient study. However, many students misread one or more of the provisions. You needed to read more carefully and keep in mind the drafter’s stated goals (particularly that she was trying to resolve existing ambiguities not to change anything significant). To help you see what I was trying to do here, I have described the purpose and operation of each part in detail below.
2. Understanding the Relationship to the Rest of the FHA
a. Structural Terminology: The FHA consistently employs a standard set of terms to describe its parts:
• 3603 is a section
• 3603(b) is a subsection
• 3603(b)(1) is a paragraph
• 3603(b)(1)(A) is a subparagraph.
I expected you to know these terms from your own work with the statute and from our discussing them in class. E.g., the references in the draft amendment to section and subparagraph were not vague.
b. Language & Structure of §3603: Parts of many answers suggested that their authors were not very familiar with §3603 or how the amendments would interact with the existing language. For example, the new provisions were designed to be part of §3603(1)(a), but several students suggested that they were independent exemptions. Some other common concerns:
• In §3603(b)(1), subparagraphs (A) and (B) are part of the fourth proviso, so that calling the new provisions C-D-E inappropriately included them within that proviso.
• The amendment has no effect on §3603(b)(2) because that provision does not refer to SFHs or to people “in the business.”
• The amendment does not conflict with §3603(c); that subsection defines people in the business but says nothing about whether they can use the SFH exemption for themselves.
• The word “intended” in Part C that many of you objected to as vague was taken from §3603(b)(2).
• The language in Part E that refers to “a real estate broker, agent or salesman" is taken directly from subparagraph (A).
3. Technical Critique: Other Common Problems
a. Describe Concerns with Specificity: If you claim that a provision is “vague” or “confusing” or “wordy” or “too long,” you need to defend your claim with specificity. Otherwise, it just looks like you can’t read very well.
b. Distinguish Between “Ambiguity” and Substantive Concerns: “Ambiguity” means that a term has more than one possible meaning. However, students frequently referred to a word as “ambiguous” when I think they really meant that they just didn’t like what the provision used the term to accomplish. For example, several students said that “a dwelling unit … that is part of a structure with other dwelling units…” was “ambiguous” because it wasn’t clear whether it covered, e.g., a mobile home park or other complex that contained multiple detached single-family units. I think it very unlikely that anyone would refer to a mobile home park as “a structure;” it contains many structures. The problem is not ambiguity, but a substantive concern that there is no reason to treat multi-unit buildings differently from multi-unit complexes.
c. Thoroughness of Technical Critique: To get the most points out of this section of your answer:
• Explain the changes you make to the language of the provisions;
• Try to fix any concerns you identify;
• Do the technical critique even on provisions you are going to recommend dropping for substantive reasons. (It is rarely sensible to make a choice on an exam that seems to allow you to avoid doing something the professor clearly wants you to do).
4. Substantive Critique: Other Common Problems
a. Thoroughness of Substantive Critique: Ideally, you should give me both pros and cons for each of the provisions you are given. Also ideally these should include multiple ways of thinking about the problem: housing policy, politics, administrative costs, economic efficiency, etc.
b. Awareness of Legislative Role: Understanding which tools are used for which jobs is an important part of being a lawyer. When you assess a proposed statutory amendment from a legislator’s perspective, some of the arguments/tools we used in the course are not applicable/helpful. Common problems:
- You cannot argue that the amendment is inconsistent with the current language or the intent of the FHA. If Congress adopts the amendment, there’ll be new language and new intent. You can argue that the amendment seems inconsistent with the purposes behind the existing statute, and so might be bad policy.
- Professor Blatt’s analysis rests on an assessment of how particular statutory language was adopted. Since the proposed amendments here haven’t been adopted, you cannot know now which of his communities will be most implicated.
- You are not a court engaged in construing or interpreting existing statutory language, you instead are deciding what the language should be. Thus, you cannot use canons of construction like “construe exemptions narrowly” to argue that the proposal is bad because it’s too broad. You can argue that, given a particular canon, courts are likely to interpret the language a particular way, which you might or might not see as bad.
c. Purpose of FHA v. Purpose of §3603(b): Exemptions, almost by definition, have purposes quite different from those of the underlying statute. The purposes of §3603(b) clearly are not (like the FHA in general) to prevent discrimination and segregation, but to protect privacy and associational interests of smallholders and, perhaps, to limit the administrative costs of litigating discrimination that is on a very small scale. I would have liked to see more discussion of how the amendments fit into the purposes of the exemption as opposed to the purposes of the FHA. The second model does this well with regard to Part E.
B. Specific Comments on Part (C)
1. Intent/Operation: Does “single-family house” (SFH) mean (literally) only those dwellings in which the building contains exactly one residential unit? The cases provide no definitive answer at present.[1] Rep. Tate wants to make clear that condominium units are SFHs even though often there is more than one to a building. The language she drafted is not limited to condos but would also govern units in co-ops, duplexes, and other multi-unit residential buildings where different people can own different units. If you own one of these units, the amendment would (i) allow you to claim the exemption when you sell or rent it (if you meet the other requirements); and (ii) force you to count the unit as one of your SFHs when determining if you have more than three.
Many of you had trouble with the “as long as” clause at the end. Because Rep. Tate drafted this provision as a definition of SFH, the effect of that clause is that, where you own more than one unit in the same building, you cannot count any of those units as SFHs.[2] Again, this means both that you can’t claim the exemption for those units and that they don’t count against you for the purpose of counting to three. Without this clause, anyone who owned a building with four or more units would have at least 4 SFHs and could not invoke the exemption at all. Thus, it would seem that Rep. Tate put the clause in to further her stated goal of allowing people who own multi-unit buildings to still employ the exemption for up to 3 SFHs.
2. Technical Critique: The two model answers hit most of the genuine concerns. One recurring concern that left me very skeptical was the desire to define “single family.” The point here was simply to define a single residential living unit, not to limit in any way who could live there. Perhaps the language chosen could be improved, but adding the definition is likely just to cause unanticipated problems. Some legitimate concerns not mentioned in the models:
- “House” is used both as a noun and a verb.
- The initial “For the purposes of this section” is probably unnecessary. The statute doesn’t use the term “SFH” anywhere else.
- “Dwelling unit” may be confusing. “Dwelling” is defined in §3602 to mean both single-family and multi-family residences and “portion[s] thereof.” §3603(b)(2) uses “rooms or units” instead.
- You might say “its owner” rather than “the owner” to make the reference absolutely clear.
3. Substantive Critique:
a. Units in Multi-Unit Buildings as SFHs: The first model answer has a nice layout of the most significant pros and cons on this. Many students talked about this provision “broadening” or “narrowing” the exemption, often forgetting that it would have two effects that pull in opposite directions. First, it would allow some people to claim the exemption for single units in duplexes and condo buildings, which it was not clear they could do before. This broadens the exemption. On the other hand, some people who owned fewer than four SFHs under the old definition will now have four or more and will no longer be able to use the exemption, thus narrowing it. My guess is that the first group of people is a lot bigger than the second, so that the overall effect would be broadening (which could be a pro or a con depending on your politics).
b. Can’t Use if Own More Than One in Same Building: Many students argued without much analysis to just jettison this part of the provision. If you lost this clause without making some other adjustment, that would prevent anyone with a multi-unit building from using the SFH exemption at all, which contradicts what Rep. Tate was trying to do with Part E. Aside from this, the major pros and cons of this clause involve counting issues:
• Many students argued that it made no sense to treat someone with one unit in each of three buildings differently from someone with one unit in one building and two in another.
• As written, it means that if you own both units of a duplex, you can’t claim either as an SFH. This seems a little strange if you own no more than 1 other SFH. Note that, if you live in one unit of a duplex and own the other, you should be able to use the Mrs. Murphy exemption for that unit.
• Several students argued that it did not make sense to treat someone with 3 SFH plus a 15-unit building better than someone with 4 SFH. This relates to the pro/cons for Part E.
C. Specific Comments on Part (D)
1. Intent/Operation: Currently, subparagraph (A) says that people cannot invoke the exemption if they “use in any manner … the sales and rental facilities or sales and rental services” of anyone in the business or their employees. The provision does not explicitly say that nobody in the business can use the exemption, but, as we noted in class, you could argue that any time real estate professionals sell or rent a residence, they are “using” their own “services.”
Rep. Tate’s amendment would clarify that this “using yourself” reading of subparagraph (A) is incorrect and that people in the business are not barred from invoking the exemption for SFHs they own merely because of their occupation. As most students pointed out, to fulfill Rep. Tate’s stated purpose, the amendment needs to be changed to make clear that it applies only to SFHs real estate professionals own themselves. Because, by its terms, this provision only affects subparagraph (A), all the other requirements for invoking the exemption would still apply, including subparagraph (B)’s limit on discriminatory advertising.
The inclusion of the “professional knowledge and skills” language would seem to be a way to try to limit the ways that real estate professionals could take advantage of their occupation. I was thinking that it might be a way to capture the distinction made in Babin allowing real estate professionals to use whatever is in their heads (knowledge and skills), but not allowing them to use databases and listings and other supplies from their businesses. However, a number of students, including both models, worried that “knowledge and skills” might include all these things. Obviously, there may be better ways to draft language to draw this line. For example, some students added language specifically excluding databases, etc. Others used language like, “are not precluded from claiming this exemption solely on the basis of their job.”
2. Technical Critique: Some legitimate concerns not mentioned in the models:
• The word “above” is unnecessary; there’s only one “fourth proviso.”
• Need to make clear that this is only intended to apply to their selling or renting an SFH they own themselves.
• To better focus on the question that has been in dispute, rather than saying “does not violate,” might say “does not use his own services.”
• Replace “a SFH” with “SFHs” to clarify no intent to limit application to one SFH.
3. Substantive Critique: The models include most of the key arguments, although (as noted above) they both assume that “professional knowledge and skills” includes more than just what’s in your head. A couple of additional points:
• A couple of students cleverly argued that, if real estate professionals can discriminate re their own SFHs, it might lead to straw transactions so they can do so for clients as well. This potential harm is probably minimal because of the numerical limits on the number of transactions you can claim.
• The first model argues as a “pro” that it is too hard to distinguish/police skills/knowledge from more tangible tools, so there is no point in drawing the line. If you believed that the provision was trying to draw that line, you might argue this as a “con.”
D. Specific Comments on Part (E)
1. Intent/Operation: This provision addresses another aspect of the ambiguity targeted by subparagraph (D). You currently can read subparagraph (A) together with the elaborate definition of “Business of selling or renting dwellings” in 3604(c) to mean that you can never invoke the SFH exemption if you own a multi-unit residential building. Rep. Tate says she doesn’t want ownership of those buildings to preclude their owners from invoking the exemption.
Many students believed that this provision created a gaping loophole, taking thousands of dwellings outside the protection of the FHA. However, unlike provision (C), this provision does not alter the definition of SFH, nor does it say that the multi-unit buildings themselves are eligible for the exemption. Thus, it would allow owners to invoke the exemption only for their SFHs, not for their multi-unit buildings.
2. Technical Critique: Almost all the major concerns I had identified are noted by one or both of the model answers. I would have rearranged the structure of the sentence to make it completely active voice: “An owner of one or more buildings containing multiple dwelling units may claim this exemption if …”
3. Substantive Critique: Again, the models include most of the key arguments. A couple of additional points about why the case against Part E might be stronger than the case against Part D:
• An average real estate broker or agent may only own one or two residential properties and thus looks a lot more like an “ordinary” homeowner than someone who own a multi-unit building.
• If people find out that the owner of the multi-unit building discriminates with regard to his SFHs, they might assume he also does with regard to his other properties and be deterred from applying for those units.
Question II: Student Answer #1: This answer was the strongest in the class on the substantive pros and cons. The technical critique and rewrite of Part D are better than those of the other model and the technical work on the other two sections is pretty solid.
Technical critique: Part C attempts to define what a single-family house is and expand the traditional meaning within the exception (which was a SFH detached from any other units) to include a single condominium unit, even if it is located in a building with other condos.
In order to make the section fit with the intent of Rep. Constant Waffle, I would first get rid of "shall include" b/c that would suggest that the definition is not exhaustive or limited to the text provided by the definition. I would replace "shall include" with "means" for parallel structure with the definition section 3602.
I would next break up the traditional meaning of the word SFH with the text about and the new definition of SFH. This not only shows that the word still relates to a SFH that is not a condo (the traditional meaning), but makes the provision cleaner and easier to understand.
I would also take out the confusing language about what a condo is and replace it with the word "Condominium." I believe the word has become a part of American lexicon and would be understood w/o having to be defined. The word condo implies a specific type of ownership which I believe Rep. Waffle wanted to include specifically. The word also has a positive connotation that suggest "owner" vs. renter. [MAF: Note that you could have allowed this to cover other forms besides condos.]
Finally, I kept "as long as the owner doesn't own multiple units in that building" but altered it. I replaced multiple with more than one. I thought multiple could be ambiguous, similar to the words "few" or "a couple." While we know what it means, it would just be clearer to say more than one. Also, I added the word condominium in to refer back to what we are modifying for clarity and continuity, and then replaced "in that building" with "in the same building" b/c I felt it sounded cleaner.
RESULT: For the purposes of this section, a single-family house means:
1. a dwelling unit intended to house a single family; or
2. a condominium, as long as the owner doesn't own more than one condominium in the same building.
Part D attempts allow real estate brokers to use the SFH exception, despite the explicit prohibition for nonprofessionals in utilizing such services as outlined in sub A.
First I would move D up and tack it on to the end of the fourth proviso. It seems to fit here, as the fourth proviso already has a similar exception to the exception within it (the use of escrow agents, title companies, etc.).
For parallel structure, I would get rid of "for the purpose of" and replace it with "Nothing in this [fourth] proviso shall prohibit" - similar to the text immediately preceding this addition.
B/c it is understood that this would refer back to this provision, I got rid of "subparagraph A" and replaced it with, "claiming this exemption." I didn't see provisions referring back to subsections, so I went with this for parallel structure. [MAF: Good way to fix several problems at once.]
I also replaced "their" professional knowledge and skill to "his or her" b/c his or her refers back to singular nouns. I also removed the s from "skills" b/c it is not needed and we should favor singular v. plural form.
RESULT: Nothing in this proviso shall prohibit a real estate broker, agent or salesman claiming this exemption from using his or her professional knowledge and skill.
Part E is attempting to grant owners of multi-unit buildings the use of this exception, as long as they only own 3 or fewer SFH. I thought this could be placed at the end after the addition of (C).
I tweaked this provision quite a bit. First, I got rid of "can be invoked" and made it active: “This exemption applies to …” I added "owners of multi-unit housing" as the direct object. I felt the language "multi-unit housing" was similar to the single family housing, than using the word building, especially since we have been using dwelling throughout. I didn't want to introduce a new term that was inconsistent. And that I added the conditional phrase, “so long as the owner conforms to the provision listed herein" I got rid of "requirements" and just used provisions, to refer to the provisos above and changed here to “herein” for stylistic reasons.
RESULT: This exemption applies to owners of multi-unit housing, so long as the owners conform to the provisions listed herein.
Substantive critique:
Part C: Pro: B/c condo living has begun to take over many parts of America, especially in urban cities, the justifications for exempting a SFH would seem to be true regardless if one lives in a detached home or a condo. The realities are that we develop connections to condos like homes, develop relationships (perhaps even more so b/c of proximity) with neighbors, which are some reason for which we allow the exception. Further, condos are becoming even more common as vacation homes. B/c the cost of housing has risen so dramatically, and b/c of density issues, people choose to buy condos as second homes. This goes with legislative history (discussion on three b/c of summer home).
Con: Because people in protected classes tend to be on the lower rung of the economic ladder, by allowing condos as well, the very people the legislature intended to protect from discrimination may face more discrimination b/c the homes they are likely to seek will be the more affordable alternative to SFH, such as condos.
Part D: Pros: Currently the statute does not give us an answer to this question. And courts have had a hard time applying the rule, with different jurisdictions coming out differently. I think that when the statute is unclear, the legislature needs to redraft the statute to provide guidance to the courts, otherwise the Court's will have to interpret. This sets one standard all courts can apply.
A real estate professional should be allowed to claim the exemption b/c, even though he is a professional, he too may have the same interests that the legislature was intending to protect as everyone else under the exemption. Shouldn't he, despite his profession, have a right to some sort of control over his property?
Under the old rule, it was too difficult to tell if agents were using their expertise or not. Chances are you can't separate their knowledge of the business in any real meaningful way, so this just makes more sense. If we are going to allow them to use the exemption, let's not fool ourselves and just let them use it regardless.
Cons: This rule allows real estate brokers to use their expertise. Under the old interpretation, some courts allowed brokers to claim the exemption as long as they didn't use their profession, which is closer to the intent of the statute. B/c of a real estate brokers’ experience and expertise, an agent should be held to a higher standard. We don't want the people who represent the industry to be allowed to discriminate. It lowers the profession and may give the impression that if someone is willing to discriminate in selling their own home, that they may do so when selling homes commercially.
Part E: Pros: Similar to the arguments above under D. Someone who has a lot of multi-unit buildings is probably in the profession and has experience. But just b/c they are "in the business," does that mean there interest shouldn't be protected? This would allow them to enjoy the same rights as other SFH owners as intended by the legislature.
Cons: Again, if someone owns multi-units, they are in the business. They have expertise much like a broker. We don't want to allow these people to openly discriminate and exempted, meanwhile they are providing housing to the public.... potentially a large percentage of the public. It raises an eyebrow at their business practices in the multi-units if they are willing to discriminate in their SFH sales.
Question II: Student Answer #2: This answer was the strongest in the class overall on the technical critique; the work on Parts C and E is particularly good. The pros and cons are also strong, though I think a little less so on Parts C and D than the first model.
Technical Critique:
Rewrite: (C) For purposes of subsection (b), a single family house includes any dwelling unit, intended for occupancy as a residence by a single family, that is part of a structure that contains other dwelling units, provided that the owner does not own multiple dwelling units within the same structure.
• I changed section to subsection, since it is more specific, and leaves less confusion that it only specifically to 3603(b).
• I removed "shall" because it is not a duty that the SFH include a dwelling unit. It also is now less wordy.
• I put in "any" instead of "a" dwelling unit to be clear that it would apply to any such unit that meets the criteria. I think it is just more clear that the exemption is now extended to condos and presumably duplexes as well.
• In 3602, when defining "dwelling” it uses the words "for occupancy as a residence by a single family" therefore, I put in those same words so it is consistent and also more clear as to what defines a SFH. (it is intended as a residence for a single family, so someone cramming in multiple families would know that that unit is still covered since it is intended for just a single family.)
• You might consider putting the SFH definition with all the other definitions in 3602, unless SFH may defined differently in different contexts.
• For the sake of consistency I chose to use "structure" rather that switching back and forth between structure and building
• I got rid of 'that is part of" because it is too wordy and could just be summed up with "that contains"
• I also added in dwelling into "multiple units" for the sake of consistency
• Although I added more words, and I know that brevity and being concise are crucial in statutory drafting, I felt it was necessary to make the structure of the statute coincide with the structure of the FHA as a whole. I also added in some commas so it reads easier and you know where to pause
Rewrite: (D) For purposes of the fourth proviso of 3603(b)(1), it is not a violation of 3603(b)(1)(A), for a person who is in the business of selling or renting dwellings, who owns a single family house, to use his professional knowledge and skills. [MAF: Still needs to make clear that only applies to claims on SFHs he owns himself.]
• Reversed the last line and put it closer to beginning because it flows better and is more uniform in structure to other provisions of the FHA.
• I think these statutes are unclear when they refer to subsection, section, title etc. so I think it makes it much more clear to the reader to state the specific subsection when it comes to provisions that ONLY apply to a very specific section of the statute.
• Got rid of agent etc, makes it consistent to use the same language that the statute uses and since "in the business.." is defined in 3603(c), it does not need to be broken down further here. “In the business” definition seems all encompassing. [MAF: good choice]
• Using "their" is not appropriate, the statute uses "his" so i did the same and this can refer to male and female. [MAF: Good choice]
Rewrite: (E) The exemption in 3603(b)(1) may be invoked regardless of the number of multi-unit structures owned by the owner, provided that all other requirements of 3603(b)(1) are met.
• Starting with "this" is not clear as to which exemption, so I was specific.
• "Can" is not appropriate, "may" is better since it is not a duty, but discretionary if an owner wants to invoke the exemption. [MAF: good]
• Changed "exception" to "exemption" to be consistent with language.
• “Regardless” is one word rather awkward sounding "without regard to."
• "Here" is not helpful, again I went with the more specific route.
Pros/Cons: Part C: The question of what constitutes a SFH has been lingering since it has never been defined. This proposal is good because now we know it includes condos and duplex and any other residence intended to be used as a single family house. This makes sense since the intention is that the limited amount of real estate the owner has very little effect on the market, and if we are only dealing with a house for a single family, what difference does it make if it is a condo or a duplex that is technically attached to another building. It seems consistent with the statute to have it apply to a home containing a single family since it lessens the effect. What is a bit strange is that the owner can't claim the exemption is they own both parts of the duplex. That really does not make that much sense with regards to the fact that it has such a small impact anyways.
What it still unclear is if this applies to the house or the owner, perhaps putting something in that clears that up would be really helpful, so that cases like Pulcinella don't hurt people when the exemption should really apply to an owner and not a house itself! However, your intention seems to be that this would apply just to the owner, but it is not worded very clearly in the language.
Part D: With regards to using the realtor/in the business services, the pro is that it really clarifies it for the courts and now there won't be so many issues within the litigation of whether the person really used his professional skills or if he ignored those skills and acted like any regular guy. In addition, just because he is a professional should not mean that he doesn't have an interest in what happens to his house so therefore, it does make sense that he should get the exemption for his privacy and autonomy interests.
However, it may be problematic since this means that the proposed amendment is now publicizing discrimination. The purpose of not being able to use a broker is that a "racist" landlord should have to go his way alone, and should not get to make his discrimination known to the world via the use of a broker and also should not be allowed to make his discrimination easier for him. However, with the amendment, a broker can use all of his professional skills to attract a “preferred" tenant, although this is somewhat minimized in that 3604c still applies and he can't outwardly advertise his preferences.
In order to appease civil rights lobbyists and make the amendment a bit easier to swallow, perhaps limit the "professional" services they can use...maybe they shouldn't be able to use their databases to seek out certain types of tenants based on discrim. preferences, but would still be allowed to use the knowledge they acquired while in the biz to attract a tenant (i.e. know to paint the house etc.). Perhaps draw the line of the way they can find those tenants who meet their potentially "racist, sexist etc" preferences by not allowing use of the databases. Although this may be hard to enforce, it shows an effort that we don't tolerate discrimination and we will not make it easy for someone to discriminate.
Part E: This amendment again clears up what courts have been struggling with in terms of who can claim the exemption when in "the business." Now the courts have a clear answer and will be able to apply accordingly. Moreover, why shouldn't the mogul be able to protect his zone of privacy in terms of his personal residence and the 2 other SFHs he owns?
However, what is not so great about this proposal is that this is allowing a real estate mogul too much leeway and although he can't use the exemption for the entire apt building, it still seems contrary to the purpose of 3603(b)(1), which is to "protect" the little guy and let him have a zone where he can do what he wants with his home, since if the little guy is renting out his personal residence he has a valid interest in making sure that ppl he approves of lives there so they don't trash the place. However, a real estate mogul is not a "little guy".
It also makes sense to only apply to the little guy because it is hard to enforce anyway against individuals on such a small scale, but in the case of a mogul (or anyone who really owns an apt building), it really would not be that difficult to enforce because they are more noticeable and more "out there" in the public eye. Also, since it is a business, it seems that the mogul should really treat all aspects of that business the same, whether it's the huge complex, or just his few individ SFHs, since enforcement is presumably easier than for the millions of "little guys” who own up to 3 SFHs.
QUESTION IIIA
Based on the facts below, Scott brought an action against Abrams County in the U.S. District Court for the District of Connecticut, alleging that, by rejecting his proposed housing development, the county had violated §3604(a). His complaint included three theories:
(1) Disparate Impact/Familial Status;
(2) Disparate Treatment/Familial Status; and
(3) Disparate Treatment/National Origin (Eastern Europeans)
Discuss the application of each theory to the facts, noting the strengths and weaknesses of each party’s position. Connecticut is in the Second Circuit, so the Court of Appeals decision in Huntington Branch is binding precedent. Assume Scott has standing to bring these claims.
Abrams County is directly north of New London, Connecticut. The northern two-thirds of the county contains residential neighborhoods and businesses targeting suburban consumers. When New London was thriving in the 1940s, small factories and transportation and storage facilities covered most of the southern third of the county. With relatively few residences in the southern third, Abrams County put only a couple of elementary schools there and bused the children north for junior and senior high school.
As New London declined economically, many businesses in the southern third of Abrams County failed or relocated, leaving behind abandoned warehouses and factories. In 2001, the Abrams County Development Council (ACDC) authorized a redevelopment plan (2001 Plan) to try to address the blighted areas in the southern third.
The 2001 Plan designated a large area as an Opportunity Zone (OZ) and offered incentives for developers to build there. The Plan rezoned the OZ to allow multi-unit residential housing but, because of the lack of schools, units in the new complexes could have no more than two bedrooms. To make them attractive to professionals from New London, it also required that the units be relatively large with extensive amenities. The 2001 Plan stated that, as more schools were built, the ACDC would consider further rezoning to allow multi-unit complexes targeted at moderate income families. Unfortunately, as of 2006, only a few apartment complexes were built in the OZ and the county had built no new schools.
Scott, a developer, did extensive research into the possibility of building apartments in the OZ. He discovered that the New London area had more than enough housing appropriate for urban professionals. However, there was a significant need for moderate-income housing for clerical, government, and service industry workers and their families. He then purchased a very large plot of land in the OZ.
Scott and his staff designed a two-story apartment building that consisted of 24 two- and three bedroom apartments arranged around a central courtyard where children could play safely. He filed the appropriate documents with the ACDC to request rezoning to allow him to build twelve of these buildings on his property in the OZ, along with a strip mall containing a grocery store, a drug store, and other retail outlets.
In his documentation, Scott provided evidence that he had done appropriate investigation to conclude there were no hazardous wastes on the properties he purchased. He also showed that he had received approval from the state to receive grant money to pay for some of the infrastructure (e.g., fire hydrants, stop signs, traffic lights) required by the new development.
He also laid out extensive local market research showing that between 70% and 80% of the units in his buildings were likely to be occupied by families with children as compared with 20% of the units in the buildings with larger units that had already been completed under the 2001 Plan. He also provided a national study that showed that families with children were significantly more likely to rent apartments in his intended price range than in the price range contemplated by the 2001 plan. The study concluded that families with children who had higher incomes purchased houses instead of renting more expensive apartments.
ACDC includes seven councilmen, each elected from a separate geographical district. Two of the districts, represented by Betsy and Chris, include part of the southern third of the county. The other five districts, including those represented by David and Esther, are entirely residential areas in the northern part of the county. Pursuant to its usual procedures, ACDC solicited feedback from the public, then held a closed hearing to discuss Scott’s rezoning proposal, at which County officials and lawyers said there were no legal hurdles to approving the proposal and that the County had money in the budget to cover the necessary expenditures.
Betsy and Chris strongly urged the project be approved to boost the economy in their districts, reminding the others that ACDC typically followed the lead of the councilmen for the district where a project was located. They pointed out that Scott was very successful with prior development efforts. They acknowledged that the county would have to spend some money for related infrastructure, but pointed out that the state grant would cover about half of what was needed.
Chris noted that school district officials had indicated they could handle the planned influx of children, but David and Esther expressed concern that teachers at the schools involved would have their hands full with larger classes that included many students new to the area.
Esther worried that the neighborhood was not appropriate for children in general. She worried about leftover hazardous waste: “I know he has checked everything out, but how can they really be sure?” She worried that there was no mass transit near by. She worried that, “It’s such an ugly place to bring up children. Who would want to grow up there?” She also worried that the parents wouldn’t have enough places to shop.
David said, “Look, we all know what’s really going on here. He’s going to fill the place up with those Eastern European immigrants with names like eye charts who are all over New London these days. People in my district won’t stand for having their schools filling up with children of Russians and Transylvanians and whoever that grew up in Communist countries and don’t know how to behave in America.” Esther acknowledged that some of her constituents said things like that, but said “It’s garbage.”
ACDC voted 4-3 to reject Scott’s proposal. David and Esther voted with the majority; Betsy and Chris were on the losing side. After further discussion, ACDC issued a written statement saying rezoning was denied because there were too many concerns about adding such a large number of new residents into an area that still was primarily industrial.
Question IIIA: Professor’s Comments: 24 of 64 students chose this question. The highest number of checkmarks was 103 (the first model answer); the next best were 76 and 78. The median was 51.5, and the mean was about 53. On the whole, I thought the responses to this question were a little better than to IIIB. The most common problems were not knowing the law very well on the disparate impact issue and failure to see significant arguments on both sides of some or all of the major issues. Discussion of suggested legal analysis and common problems follows, arranged by the three claims.
A. Disparate Impact/Familial Status: You were told to use the test from Huntington Branch. Obviously, you ran into trouble if you didn’t know the relevant factors and how they fit into the legal analysis. A consistent problem was that students discussed the factors, but did not attempt to do an overall balance at the end. Some suggested analysis is laid out here:
1. Prima Facie Case: Evidence of Disproportionate Effect: If you accept the studies S presented as relevant, the numbers they include surely show a sufficient effect. Like the first model, some students challenged whether the studies were asking the right questions or whether the national study was relevant locally. You might also simply rely on the fact that ACDC clearly believed that S’s plan was going to bring more families with children to the OZ. Note that the demographics of the northern part of the county are probably irrelevant here; that there are lots of families with children (FWC) there, doesn’t mean the southern part of the county isn’t segregated.
2. Government Burden: Under Huntington, the state must show its decision (i) furthered a bona fide[3] legitimate gov’t interest; and (ii) that no alternative would serve the interest with less discriminatory effect. Your answers generally had some good discussion of the state’s interests, although relatively few of you explicitly did the second part of the test. Some thoughts on this part of the analysis:
a. Scott’s Plan v. Housing Allowed by 2001Plan: One recurring question raised by the ACDC objections is why are these problems more significant now than they would have been for housing clearly allowed by the 2001 Plan. For example, if the site is dangerous because of hazardous wastes, why did you allow people to live there in the first place? There might be answers to this question (e.g., children are more likely than adult professionals to roll around in empty barrels on a nearby lot), but the state should have to provide them. Note also that concerns applied differently to children than to adults might cease to be “legitimate” for FHA purposes.
b. Site-Specific v. Plan-Specific Concerns: All of the ACDC objections, if legitimate, appear at first to be site-specific. However, several students made solid arguments that some of them might be viewed as plan-specific, for example:
• The number of residents being added to the area can be altered by changing the number of units Scott builds.
• Scott is already building some shopping areas; he could add more to his plans.
• Aesthetics might be handled by requiring Scott to put buffers (fences; landscaping) between the residences and nearby industrial uses.
C. Credibility Concerns/Further Investigation: Several of the stated concerns seemed questionable in context; some of the better answers suggested further investigation might help. For example:
• The concern over school crowding seems to conflict with the assurances of the school district. Need to check if there are genuine educational concerns re bigger classes, even if district could make it work if they had to.
• Why are there concerns over hazmats if Scott has done appropriate checking? Are there reasons to question his checkers? Are there specific site checks ACDC could order that would resolve the issue without simply denying Scott’s rezoning?
• Is lack of mass transit really a bigger issue for working class families than for yuppies? Presumably if they need it and it’s not there, they won’t rent Scott’s units. Do studies exist suggesting whether Scott’s target group mostly has cars?
3. Balancing/Additional Factors: Many of you skipped this step, where you need to try to weigh the significance of the state interests against the extent of their effects, taking into account the other two factors, which played out as follows:
a. Evidence of Intent: This is laid out under the next claim. Because this is a familial status claim, presumably only evidence of familial status discrimination is relevant. However, I gave credit for arguments that the national origin discrimination ought to count as well because it calls the legitimacy of the county’s reasons into question.
b. Remedy Requested: This is an intermediate example between the usual dichotomy of “gov’t must build” and “gov’t just needs to get out of the way.” The county here is not asked to build housing, but it will have to build some accompanying infrastructure. Some of this will be paid for by the state and the county has money in its budget for the rest, so it’s not a huge intrusion on gov’t autonomy, but it is not zero intrusion either.
B. Disparate Treatment/Familial Status: I intended for you to use the analysis outlined in Rizzo to assess the evidence of discriminatory intent. I rewarded thoughtful use of the Rizzo factors and the identification of the strongest evidence going to the familial status claim (many students missed some or all of this). When using Rizzo, you need to recognize that the case treats the six types of evidence it lists as factors, not elements: you don’t need to show helpful evidence in each category to prevail. You also need to remember to tie your discussion back to the ultimate question of intent. Several students laid out the historical background and steps leading up to the decision in great detail, but never explained how the story did or didn’t support the legal claim.
Students who did not use Rizzo got credit for discussions of relevant evidence. I also gave credit here for discussions of the number of board members needed to state a claim, although I really had intended you to talk about that with regard to the national origin claim. I penalized students who applied the McD-Dgs burden shift, which is not used for government defendants, and the structure of which makes no sense as applied to a zoning decision. I did give a little bit of credit for mixed motives analysis, which does have a parallel in government cases.
My sense of the best evidence of discriminatory intent:
1. Discriminatory Impact: As noted in reference to the first claim.
2. Historical Background: The 2001 Plan limited the number of bedrooms because of a concern about lack of schools, which looks at least like an awareness that having more FWC might be problematic. Although the plan stated that it would allow more housing for moderate income families as schools were built, none were. Failure to build schools might indicate a desire to avoid having more FWC. Also, it is not clear that FHA permits intentionally blocking FWC to avoid school crowding.
3. Sequence of Events Leading to Challenged Decisions: All of the problems with the gov’t interests noted under the first claim become relevant here. You could see evidence of discriminatory intent in, e.g., raising problems now that should have applied to housing under the original plan, concern about schools that seem to ignore school officials and about hazardous materials that seem to ignore S’s studies, etc.
4. Departure from Normal Procedural Sequences: No clear evidence of this.
5. Departures from Normal Substantive Criteria: ACDC typically follows district councilmen, but didn’t here. Rejection involves turning down state money to build infrastructure (although some local money also needed, but that was in budget). Attorneys said no legal hurdles to approval, although disapproval may be consistent with ACDC legitimately exercising discretion for policy reasons.
C. Disparate Treatment/ National Origin: You could have gone through the whole Rizzo analysis here, but you have very little to work with beside D’s fairly egregious comments. I primarily was looking for you to use the cases covered in class and in the Unit Two Info Memo to discuss whether D’s comments were enough to support this claim in the context of a 4-3 vote under these circumstances. The third model does a very nice job on this issue. A few additional specific points:
1. Look Beyond the Surface: Several students saw no evidence here beyond D’s comments. However, the cases suggest that community pressure makes these intent claims stronger and here, you have evidence of concern among constituents in at least two districts. Esther’s comment, “it’s garbage,” certainly is evidence that she is not being influenced by her constituents, but it isn’t conclusive. She is one of the strongest opponents of Scott’s plan, and her comment might be part of an attempt to cover up what is really driving her opposition.
2. “Eastern European” as “National Origin;” A few students argued that discriminating against “Eastern Europeans” is not national origin discrimination because no specific nation is targeted. However, I am fairly certain that discrimination against clusters of nations counts as “national origin” discrimination. First, I would analogize to, e.g., religion. I feel confident that if you discriminated against “non-Christians” or “polytheists” that would fall under the statute, even though those categories are not individual religions. Second, I see no reason to treat this category as outside the scope of the statute; it has the same possibilities for stereotyping and stigma that an individual nation has.
3. Cumulating Separate Kinds of Discrimination: What do you do if Esther and David each voted no for different illegitimate reasons? I gave some credit to students who discussed the interesting question of whether you can cumulate different forms of discrimination in a case like this.
Question IIIA: Student Answer #1: This was easily the strongest answer to this question, particularly in terms of using the available facts. The impact discussion is very strong: thoughtful and well-tied to the doctrine. The student also does a solid job working through the Rizzo factors and the significance of the 4-3 vote.
Disparate Impact/Familial Status: From the facts it appears as if a facially neutral policy is having some kind of disc effect on persons based on their familial status. The appropriate test in this district to determine DI claims for gov’t Ds is Hunt. Branch.
P's Prima facie case: S has demonstrated that through the use of statistical evidence that the policy implemented by ACDC's 2001 Plan has resulted in a disc. effect on families w/ children (a protected class within the meaning of the FHA). Acc. to the facts, S's housing units were likely to be occupied by 70%-80% of families w/ children, as opposed to the other buildings specifically approved by the ACDC plan, which contained only 20% families w/ kids. S also provided a national study showing that families w/ kids were more likely to rent apts in his intended price range, while the apts approved by the ACDC were no conducive to family budgets. Wealthy families were more prone to buy homes, rather than apts. So, wealthy families won't choose to live in the ACDC apts and middle class families can't typically afford to live in them. But these statistics are not precise to the area, they are national, so could be argued that there won't be such a disc impact on families w/ kids in the region. The problem w/ this logic is that unlike race, which can vary from place to place, family status can be examined through national stats, b/c it tends not to vary. Also could be argued that this isn’t really having a DI on families w/ kids, but rather on middle class families. Economic status is not protected by the FHA, however that's a very narrow way to look at these stats.
D's Burden: ACDC only has to provide evidence that their plan furthered a bona fide legitimate interest and that no alternatives existed which would have had less effect. There are several BF legit interests available and raised here. School districts unprepared to handle the influx of so many new children, would lead to larger classes and too much for teachers to handle. Worries concerning leftover hazardous waste. Worries concerning the lack of mass transit, kids might need to get to school, parents might not have cars, area isn't prepared to accommodate so many new families. Parents may not have enough places to shop in the area.
However, not all of these are BF legit interests, and several alternatives appear to be available. The school concern is by far the strongest, except that the facts state that school officials had already stated that they could handle the influx. As to the hazardous waste, S has provided the council w/ studies showing that there is no hazardous waste on the properties he purchased (although kids could be harmed by haz waste nearby, in the water system). Still, haz waste concerns should affect everyone living in the community, it's not a specific legit interest concerning why families w/ kids should be kept out. As to mass transit, S has shown that he has received a grant from the county to cover the costs of needed infrastructure. Not to mention, once again this is a broad concern affecting the number of people living in the area. If the council is concerned there are too many people, their policy is not the right one b/c it doesn’t limit people necessarily, it seems to be limiting children specifically and kids aren't particularly apt to take public transportation anyways (aside from school buses). Finally, the shopping is not a BF concern, it has no effect on whether parents choose to move to the area or not. The city has no real interest in making sure parents have places to shop and even if it did S seems to be taking care of the problem b/c he has also requested to build a strip mall, grocery, drug store etc. [MAF: I do think the county has some legit concerns here, like traffic if lots of new residents have to drive a long way to shop.]
Balancing: It's important to provide housing for families w/ children, which have been excluded for a considerable amount of time. The FHA seeks to prevent disc, even unintentional of this kind and gov’t policies that result in disc effects are no less harmful than intentional discrimination by private landlords. The evidence seems to be weighing of S at this point, but there are 2 more factors to account for.
The requested remedy weighs in favor of the ACDC on first glance b/c S is asking for more than just approval and for the gov’t to back off, he is asking for affirmative gov’t action and the expending of gov’t funds to help w/ his project. This type of remedy tends to be disfavored and weighed for the gov’t b/c the state needs to limit expenses. However, the facts suggest that S has acquired a good portion of the funding needed from a county grant and even the council members themselves acknowledged that although the state would have to spend some money on infrastructure, the grant would cover half of what was needed. Govts are better apt to spread costs to the taxpayers, so this kind of expenditure may outweigh the burden.
Similarly, there is some evidence of disc intent in this case and that can be balanced out as well. From the statement's made by E, it appears as if she (and the district she represents) are unhappy w/ the idea of bringing in families w/ kids to the area. This is tied somewhat to the NO allegations (to be discussed later), but E specifically says that the area is an ugly place to grow up in and her stated reasons for wanting to deny the plan are far from legitimate, which might lead to an inference of pretext for disc intent. Even further, when the plan is denied, the council states they denied the housing b/c they were worried about adding such a large number of new residents to a former industrial zone. That's hardly what was discussed at the meeting. This might imply that the council wanted to shield its actual intent. However, no direct statements are made against kids or families at all, and a lack of disc intent might go in favor or the ACDC in this case.
Disparate Treatment/Familial Status: With the gov’t as D in this situation, the court could choose to apply the Arlington Heights II test to determine the state's intent in denying S's plan. First, as stated above there is a racial impact w/ regards to the decision made. B/c S's plan is denied by the ACDC, housing will not be built and it can be argued that families w/ kids will disproportionately suffer by not having that kind of available housing in the area. Acc. to 3604(a), it is a violation of the FHA to otherwise make unavailable or deny a dwelling to any person b/c of familial status (among other things). That is precisely the result here, although it is extremely difficult to determine whether the gov’t was acting w/ disc intent under the circumstances.
Next, one looks to the historical background of the decision for context. Here the facts state that this area thrived in the 1940s until the factories pulled out, leaving the area blighted, since there were so few residences, only a few elementary schools were set up and kids were bused to Jr/Sr HS. In 2001, the ACDC decided to rezone for residences, implying that they were hoping to bring back life to the community. However, the plan was particularly geared to bringing back the economy in terms of young professionals targeted by the plan to build multi-units w/ no more than 2 rooms. The plan itself promised to rezone again to allow multi-units targeted at middle income families, but by 2006 (5 years later!), this had not taken place and the county had built no new schools. This history seems to imply that the area has always had a problem w/ families and children. It's true that a poor area may not be able to afford building schools and was forced to bus kids, but now once the plan has begun, schools should be near the top of the list as a vital part of a city's infrastructure. Families w/ kids have been pushed out of the area for years and the county has done nothing to attract them back. Had the plan included schools, and actually built one w/in a reasonable time, the argument would be very different.
Third, the sequence of events leading up to the decision is very useful in a case like Rizzo where the public is outraged and the mayor makes comments, but not very useful here where little is said concerning the plan or the council's decision.
Fourth, there is some evidence of departure from normal procedures, but not entirely. The council meeting is run acc to procedure b/c the ACDC solicited feedback from the public, held a closed hearing etc (all of which were typical). Then there's a departure b/c the ACDC typically followed the lead of the councilmen for the district where the project was located, that would be B and C in this case, the council voted against B and C. This provides some evidence that a DT claim might work and that their was disc intent on the part of the council members.
Lastly, there is also evidence of a departure from normal subst criteria b/c during the meeting county officials and lawyers said that there were no legal hurdles to approving the proposal and that the county had money in the budget to cover expenses. It seems to imply that typically the advice of the lawyers and officials would be taken by the ACDC otherwise why consult them at all. Had this been another situation, the council would have listened and approved the budget. Though it could be argued that there's no way to really know, the council has some discretion in the matter, just b/c the officials didn’t see a problem, doesn’t mean there wasn’t one.
There is a strong inference of disc intent from the council's decision, further supplemented by the vote of 4-3 denying the plan. Acc to Birmingham, a vote of 4-3 can be thrown out as evidence of disc intent if 2 bad apples are found within the group and were able to cause the vote to turn the way it did. D and E voted to deny and both D and E made statements leading to an inference that they were not inclined to want these kids in the area. In all, it appears to be a strong case for S, unless it is determined that D's motives were not based on FS, but on NO disc and that E had no disc intent whatsoever, but a misplaced concern, however this seems unlikely from the statements they made.
Disparate Treatment/National Origin: S would have a very hard time arguing that the ACDC as a whole discriminated against his plan b/c of their negative opinion of eastern Europeans. NO claims do arise out of the FHA, but in this context, not much seems to imply that the entire ACDC was opposed to EEs. D makes very disc statements at the council meeting, saying that EEs are all over the area, that the whole point of S's plan is to bring them in, that people in his district don't want their kids going to school w/ "Transylvanians" (extremely racist and stereotyped statement), also makes comments that EEs are communist and don't know how to be Americans. Can this attitude be attributed to the council as the cause for their denial?
There is no other evidence supporting the idea that D's beliefs were pervasive or convincing. E states that her constituents feel as D does, but that she thinks its all "garbage". That means she doesn’t agree, so that intent can't be attributed to her. 4 members voted to deny, E had no problem w/ EEs, D did, the question remains as to the other 2 who voted to deny. If they were influenced by D's statements or felt the same way, then perhaps this claim will apply, but it doesn’t seem to be enough unless there is overwhelming history that the area is anti-EE and there's a public outcry concerning this. A court would not likely find a DT claim hearing concerning NO.
Question IIIA: Student Answer #2 (Issues 1 & 2): This answer did quite solid work on both of these issues. The impact analysis is very strong, with real work on the least restrictive alternative and the balancing (which most students did quickly if at all). The only real weaknesses are failure to talk about statistics and about evidence of intent. On the second issue, the student works through the Rizzo factors very well, but misses some of the strongest evidence of intent.
Disparate Impact/Family Status: Where the ACDC's facially neutral decision is based on a facially neutral policy, but has a disproportionate negative effect on families with children, Scott has a disparate impact claim under the FHA. The test followed by the 2nd Circuit comes from Huntington Branch and is analyzed in steps below:
Prima Facie Case. Scott has a prima facie case because the ACDC's rejection of his proposal actually results in discrimination against families with children because it is allegedly based on a desire not to flood the area with too many residents too quickly (which occurs more easily when housing is designed to keep families). [MAF: Should bring in statistics here.]
Burden Shift: D's Justification. A government D may survive an impact action where it can show that the policy furthers a legitimate bona fide government interest and that no alternative would accomplish that interest with a less discriminatory effect.
Legit Interest? The ACDC proffered as reasoning behind its denial of Scott’s request that the district was not ready to house so many new residents at one time. This is a substantial concern for any town. The more residents in an area, the more resources required to be brought in or redirected. It would be irresponsible to approve such a decision if the town is legitimately not prepared to handle such an influx of residents. However, the reasoning does seem strange when viewed in light of the fact that the council is behind the redevelopment plan in the first place. For years, the council has been conducting efforts to rehabilitate the area and bring in more people to lessen the blight of the deserted warehouses. However, the council is on record has having suggested that they would only begin to accept proposals for residential housing after more schools were built (and this has not yet occurred). But, the housing that the council seems to be approving is designed with young professionals in mind and if they don't intend to allow some housing for families, where would they bring in the financial backing to build the schools upon which the approval of family apartments depends? Nevertheless, this last factor does make the interest look more legitimate than it might otherwise be.
Whether it could be accomplished without such a discriminatory effect on families with children. The council's reasoning is both site and plan specific. The stronger claim is that the area does not have the infrastructure or resources to sustain a large influx of residents at one time (site specific). Though this may be true (though we don't have facts on number of proposed residents in either the yuppie buildings or the family buildings, which would aid in determining whether the reasoning was true), S has already received grants from the state that would cover half the cost of bringing in infrastructure, plans to build his own shops, grocery, and drug store, and the official ok from school district officials that children would not completely flood the system. The only site specific concern left might be the hazardous waste one proposed by Esther, but this is likely not valid because S has already done the investigations to show the area is safe and clean. The less strong claim is the council's plan specific claim that there would be too many residents could easily be resolved by a proposal with fewer residential units that still serves families. However, we do not have facts on numbers as compared to the yuppie buildings or on whether S can resubmit a plan for fewer units and still serve families.
Balancing test: extend of effect on families v. purpose of the denial.: S's major obstacle is the fact that he's asking the town to spend money. There is no way to accomplish his plan without getting at least some dedication of funds and resources from the town. HOWEVER, the fact that he already has so much state and local support really carries a lot of weight in the balance. Combined with the fact that the initial goal of the redevelopment stated a future intention to bring in families, denying their entrance (especially where they're getting help with money from the state) would really delay the effort. Additionally, working against the council is the fact that they already have approved a number of multi-residence buildings, and specifically required they be fitted with top-of-the line appliances (indicating an effort to appeal to non-families).
Under this analysis, Scott appears to have a very good claim for disparate impact.
Disparate Treatment/Familial Status: Under an intentional discrimination action, Scott must show that discrimination was a significant factor in the Council's decision. Though from another circuit, we'll apply the Rizzo test for government defendants which includes different factors in determining whether there was discrimination.
The impact of the denial falls heavily on families. Because family-style housing necessarily brings more residents than housing developed for young or childless people, it has to be cut down in order to attract fewer residents, and may not bring in a return on the investment. Therefore, the impact of not wanting to bring in too many residents at one time definitely falls on families. However, the fact that this is the first proposal (I think that's clear from the facts) for a family development means there is no pattern to prove the impact, only an educated guess.
Background of decision. The fact that the board did say they were initially interested in bringing families back in, but wanted to wait until the area was sufficiently ready to facilitate these residents works both for and against it.
for: if this really is the first denial of a family bldg, the council may appear as if it is just sticking to the plan of we'll build for them when the town is actually ready for them.
against: Enough time has passed that if there isn't a building with families yet, and no schools are built yet, may it makes sense to work off the idea that if they allow families in, they're just going to have a find a way to support them and it will stimulate the area.
Departures from normal sequences. The facts suggested that, as many councils, this council normally votes with the intentions of the reps of the district the decision is based in. However, in this case, only one representative voted with Betsy and Christ who really supported the project.
Departures from normal substantive criteria. The fact that the council has recognized as one of it's goals an intention to start allowing family buildings eventually, but won't allow this one does seems funny. But the departure means a lot more when coupled with the fact that it means denying HALF the cost of bringing in the infrastructure if they go with Scott's plan right now. Of course, the council could be relying on the fact that maybe the offer for a grant will still be around by the time they feel ready for a family development, but this is not likely the reasoning and even less likely to be true.
Discriminatory vote on council. The fact that one vote against the plan came from a member who clearly was discriminating, albeit on a different basis, suggests that there was some discrimination in the decision. The fact that this person would discriminate based on one factor, may mean he would discriminate generally. However, this is not such a fabulous argument because it's both a different class and only one vote out of 7 and no court has ever found a decision by a council discriminatory with such numbers.
Based on the analysis, the only heavy factor for Scott is the denial of the money, and all the other factors seems to really sway both ways. This would be a hard cause of action for him to prove because family status isn't obviously a significant factor in the decision. This is especially so because (I think) he is the first developer to suggest family style housing so there is no pattern yet.
Question IIIA: Student Answer #3 (Issues 1 & 3): This answer also did quite solid work on both of the issues included. The impact discussion is strong, although it omits least restrictive alternative analysis and fails to talk about the remedy requested. On the third issue, the student does a particularly nice job discussing intent in the context of the 4-3 vote.
Disparate impact/familial status: As this court is in the Second Circuit, the Court of Appeals decision in Huntington Branch is binding precedent. Therefore, since we are dealing with a government defendant, we must analyze S's disparate Impact claim using the test laid out in Huntington Branch.. The alleged neutral policy was to establish a zoning ordinance that limited families to the OZ b/c of lack of elementary schools and to draw working professionals into the area.
Prima facie case, the defendant's actions must "actually or predictably result in discrimination." Scott will argue: ACDC's 2001 development plan limits families with children from moving into the OZ. This was the intended purpose of the zoning, as the few elementary schools in the area would not support a large influx of people with children. Thus, the plan restricted new multi-unit residential housing to large, expensive two bedroom apartments in order to attract higher income, working professionals to the area. ACDC planned on revisiting the zoning ordinance as the amount of elementary schools in the area grew. The refusal to modify the zoning ordinance will perpetuate the OZ as being inaccessible to people w/ children.
Scott has provided evidence that only 20 percent of the units under the 2001 plan are occupied by families and that if his plan was allowed to go forward, 70 to 80 percent of the units in his building were likely to be occupied by families with children. (This shows a need for affordable multi-family housing in the area for people with families). He also provided evidence that families were more likely to buy in his intended price range, than the price of apts under 2001 plan. Basically such luxury apartments are too expensive for the average family, and further, those families with higher incomes would most likely purchase homes instead of renting expensive apartments.
Linking this evidence to the first prong of our test, the ACDC has created a situation in which people w/o children have more access to housing in the OZ area than families. The zoning board's actions actually and predictably resulted in discrimination b/c the goal of the plan was to specifically provide housing for professionals and not families due to the supposed shortage in elementary schools. At this step in the test, we do not need to show intent - just that the results did have a disparate impact on the protected group.
Burden shift = defendant offers justifications: Here, we must see if the policy furthers a legitimate bona fide govt. interest. The question is whether the interest is of substantial concern such that it would justify a reasonable official in making this determination.
ACDC will most likely proffer David and Esther's first justification; that teachers at the schools involved would have their hands full with larger classes. However, Chris has noted that the school officials had indicated that they could handle the planned influx of children. Further, this is not their district. It would seem that D & E should have less of an interest in an area that does not consist of their constituents. Chris, who represents the district would have a better sense of if the schools could handle more families moving into the area.
Esther has additional justifications, namely that the area is not appropriate for children in general, that there may hazardous waste left over from when there area was largely industrial, there is no mass transit nearby. It's an ugly place to bring up children and that the parent's wouldn't have enough places to shop.
First, the buildings include courtyard areas for kids to play, and as children move into the area, there will be a ripple effect that will likely spark development of more kid-friendly infrastructure, like parks, more schools, grassy areas and clean-up projects. As far as the hazardous waste, S has done an "appropriate investigation" that no hazardous waste on the properties exists. If Esther is concerned, instead of killing the project, she could ask for an additional test, a third party to run more tests.
The fact there is no mass transit may be a concern BUT there is nothing that suggests that there is a specific need for mass transit. Schools will likely bus the kids to and from school, like they do for high school. Parents will likely use cars. This project is not an low-income housing project but "moderate-income" housing. Families with moderate incomes would probably have less need for public transit.
And finally, while shopping maybe in shortage, Scott's plan includes a strip mall to provide some shopping and retail stores to the area.
I believe a court could refute each of these justifications BUT anytime you pull the "safety for the children" card, a court will likely listen to it. Painting a picture of a industrial cemetery with all types of dangers to children, including toxic waste, could be strong enough for a court to say that these justifications are reasonable. In addition, we still need to ask if this is site specific or plan specific. Since this is site specific, it will be a stronger claim, and usually survive.
Balancing: weigh the extent of the effect against the purpose. I did quite a bit of this analysis already in step two. Looking at the goals for the FHA, to provide people access to housing, and the extent that people with families need housing (as evidence by Scott's reports); compared with the weak justification for excluding affordable multi-units with two/three bedrooms from being developed into the OZ, the court may find that the purpose for excluding Scott's development does not justify the effect on families in the area.
Under this prong we may also bring in intent. The 2001 plan specifically intended to limit families into the area. The intent does not need to include malice in order for it to be discriminatory. Scott will argue that the 2001 plan intentionally was created to limit the influx of families into the OZ area and not changing the zoning will perpetuate this discriminatory intent.
Disparate treatment/national origin: Here, we would first need to look at the direct evidence: testimony or other proof, which may expressly or straightforwardly prove the existence of discriminatory intent:
David's statements are direct evidence of discrimination on the basis of national origin. He talks about last names in a derogatory way: like eye charts; that they don't know how to behave in America; that we don't want these kids in our schools. Further, b/c these kids will grow up and be bussed into his district, he has an interest in keeping them out of the southern part of the county altogether.
Further, we have a departure from a normal procedural sequence: B&C strongly support the project. ACDC typically followed the lead of the council members in their districts where a project was located. The relevance is that ACDC is not doing what we would expect them to do and this suggests that something else is driving the situation. The reason for not following normal procedure then, we could assume is b/c of decimation against eastern Europeans.
We must next do a count. We know that D voted with discriminatory intent. Esther acknowledged that some of her constituents said things like that, but she said it was garbage, and we have no information about the third vote and fourth vote. Based on Esther's comments, she most likely voted based on her feelings about whether the area was suitable for children. But could have D's comments swayed our two remaining votes in the majority.
The main issue here is: Does one proven bigot in a board throw out the entire vote? Unfortunately we have no real rule to follow. In Church v. Huntsville, the court held that a single council member did not have any authority either to establish municipal policy or to bind the municipality. It therefore examined the evidence against the other four councilors, finding that two had opposed the alleged policy and that two had expressed no views on the subject. The court refused to draw an inference of discriminatory intent from the silence of council member, and rejected the P's claims. This case fits with our set of facts. Here we have one person with proven discriminatory intent, and two that expressed no views at all. E - on the other hand would probably be cleared of having any discriminatory intent based on her statement.
For our case, I will take the sensible argument laid out by Scott Harris - Which said you don't need majority with proof of bad intent. Instead this can be relaxed with both (a) bad motive on part of at least a significant bloc of legislatures and (b) circumstances suggesting the probable complicity of others. In our case, we have neither. We have evidence of one bad apple - not a significant bloc. Further, we have no circumstances suggesting the probable complicity of others. Therefore a court will likely find against the Scott in DT on the basis of national origin.
QUESTION IIIB
Based on the facts below, Cornelia Collins and Trace Turnblad brought an action against Lincoln and Edna Larkin in the U.S. District Court for the Northern District of California, alleging violations of the federal FHA and California’s Unruh Act. Their complaint included three theories :
(1) Failure to grant reasonable accommodations and or modifications in violation of §3604(f).
(2) Disparate Treatment: denial of housing because of race (inter-racial couple) in violation of §3604(a); and
(3) Disparate Treatment/Arbitrary Discrimination because of family connections (daughter of Bull Collins) in violation of the Unruh Act.
Discuss the application of each theory to the facts, noting the strengths and weaknesses of each party’s position. Assume that the Larkins concede that Cornelia being the daughter of Bull Collins was a substantial factor in their decision to turn down the plaintiffs’ application but that they contest that this violated the Unruh Act.
Lincoln and Edna Larkin, an African-American couple, own and manage Maybelle Manor, a large apartment building on San Francisco’s very chic Von Tussle Avenue. To enter the building from Von Tussle Avenue, you climb six marble steps from the sidewalk to the entranceway, where a uniformed doorman opens the polished mahogany doors leading you into the main lobby. There you’ll find the front desk and the elevators to the upper floors. Just 30 feet away from the front entrance, at the corner of Seaweed Street (named for its many Sushi bars), is a city bus stop.
To get to Maybelle Manor’s rear entrance from the front, you would turn onto Seaweed Street and walk a long city block downhill, then turn onto Wilbur Avenue (which runs parallel to Von Tussle). About halfway down the block on Wilbur is a dark alley called Penny Lane, which goes uphill again about half a block to the back of Maybelle Manor. There, a flight of three steps takes you to a set of heavy metal doors that lead into a large maintenance and storage room. From there, another set of heavy metal doors opens into an 80-foot carpeted hallway leading to the front lobby.
Cornelia Collins is the youngest daughter of Clyde “Bull” Collins, the notoriously racist white chief of police in 1960s Baltimore. Completely rejecting her father’s beliefs, Cornelia became a civil rights lawyer.
Cornelia is married to Trace Turnblad, a prominent African-American clothing designer who specialized in clothes for “plus-sized” women. The couple have lived for many years in a large house they own in a wealthy suburb of San Francisco. However, Trace recently developed a degenerative muscular disorder and he now must use a wheelchair most of the time. The couple decided to rent an apartment in San Francisco to make it easier for him to get to work, to social engagements, and to entertainment venues.
Cornelia and Trace fell in love with one of the “penthouse” apartments at the top of Maybelle Manor. The large hallways and rooms made use of his wheelchair possible and the view was spectacular. However, to get into the building, Trace needed help from the doorman and Cornelia to climb the stairs while another employee followed behind carrying the wheelchair.
Cornelia and Trace easily satisfied all the financial requirements for renting the apartment, but before finalizing the lease, they set up a meeting with the Larkins to discuss some details, including the construction of a ramp for Trace to get into the building without help. Lincoln, who made most of the business decisions about the building, took Cornelia to look at the entrances while Edna and Trace had coffee in the Lincolns’ apartment.
“How did you end up with her?” Edna asked.
Trace raised an eyebrow. “You mean with a white woman?”
“No. Well, yes. No, not really. It’s just that she reminds me of someone….” Edna thought for a minute, then giggled. “Doesn’t she wear an awful lot of hairspray?”
Trace laughed. “She does like to have everything under control. When I just met her, I went to see her argue a big case in Virginia, trying to get some raggedy-ass school district to treat its black kids as good as white folk. She had everything really prepared, all these papers laid out, under control, like she put hairspray on the whole case. But then she started to talk, and there was so much fire and passion. I thought, if I can get her to care for me half as much as she cares about this case, I’ll be one lucky man.”
Edna shook her head. “Well, good for you if that’s so, but when I look at the two of you together, something just bothers me ….”
Meanwhile, Cornelia was telling Lincoln that, if he would construct a ramp at the front entrance for Trace, she would be willing to sign a five-year lease. He said that he was hoping they could put the ramp at the back entrance where the door was closer to the ground and where it wouldn’t affect the look of the building on Von Tussle Avenue.
Cornelia noted there were a lot of problems with the back entrance. Trace would probably need help getting through the doors in and out of the maintenance room. To get to and from the bus stop, Trace would have to go both uphill and downhill in the wheelchair. She also worried that if they came home late at night, Penny Lane would be dangerous.
Lincoln worried that a ramp in front that looked good enough for the neighborhood would be very expensive. Cornelia said she might be willing to pay for it, even though she thought it was his responsibility. They agreed to check into the cost of the front ramp and meet again.
When they met in the Larkins’ apartment a few days later, Lincoln had an estimate of $65,000 and Cornelia had an estimate of $38,000 using less fancy materials. He said he didn’t think the city would allow her version, but she said she’d represent him for free in front of the zoning board and was confident she could win. He also said that she would need to place money in escrow to cover the cost of removing the ramp when they moved out, but she said he didn’t need to remove it, so no escrow was needed.
While they were discussing this, Cornelia had rolled up the papers containing her estimate and was tapping the paper tube against the table for emphasis. At that moment, Edna walked in with a tray of snacks, saw what Cornelia was doing, and dropped the tray on the floor. “You’re Bull Collins’s daughter!” she yelled. Startled, Cornelia said, “Yes, but….”
Edna cut her off. “I thought I recognized you. Fire and passion? Oh, no. No, no, no.” She ran out of the room. Lincoln explained that Edna had been badly beaten by Baltimore police at a demonstration about integrating a dance club when she was a teenager. Cornelia stammered out an apology and she and Lincoln agreed to talk further at a later time.
The next day, Lincoln called Cornelia and said, “We can’t go through with the lease. I wasn’t crazy about the ramp out front …. Well, we might have worked that out. But we’re just too uncomfortable having Bull Collins’s kin under our roof.”
Question IIIB: Professor’s Comments: 40 of 64 students chose this question. The two highest number of checkmarks were 99 and 97, the median was 51, and the mean was about 54. There was a very wide range of quality on this question. The most common problems were not knowing the law very well on the disabilities issues and failure to see significant arguments on both sides of some or all of the major issues. Discussion of suggested legal analysis and common problems follows, arranged by the three claims.
A. Reasonable Accommodations/Reasonable Modifications (RA/RM): There was a lot to talk about on these claims. In general, students did a pretty solid job of identifying relevant facts and using them to make sensible arguments. However, your articulation and use of the relevant legal doctrine tended to be pretty sloppy, suggesting not enough study time on this material. Most importantly, only three of you clearly demonstrated that you understood that RA and RM are two different causes of action that needed to be addressed separately. An overview of my suggested legal analysis follows:
1. Preliminary Issues: These issues might arise before getting to the heart of the RA/RM claims. None of them merited a lot of time.
a. Definition of Handicap: Trace mostly needs a wheelchair and has a degenerative disease. That he falls within the definition shouldn’t be contested.
b. Not a Current Tenant: Several students incorrectly argued that the plaintiffs could not make these claims until they actually became tenants. First, neither of the relevant statutes includes such a requirement and 3604(f)(3)(A) expressly refers to “reasonable modifications of existing premises occupied or to be occupied ….” Second, it would make no sense to require a disabled applicant to move into the building in order to make RA/RM claims. Such a requirement would enable an uncooperative landlord or condo board to get away with refusing RA/RM in advance to deter the disabled applicant from taking the unit in the first place.
c. No Denial: A number of students sensibly argued that it is not clear that the plaintiffs’ requests for RA/RM were actually denied before the defendants decided to reject them outright. This is a fact question that depends on precisely what LL said to CC and when he said it. You don’t have all the relevant details, so there isn’t all that much to discuss. Given the uncertainty, good exam technique would suggest you note the issue, and then say something like, “If a court were to find there was no denial, plaintiffs would lose. If not, the analysis would continue as follows ….” What you should not do is use this as an excuse to end your discussion of RA/RM.
2. Necessary: Both the RA and the RM causes of action require that the plaintiff show that the action requested is “necessary.” Here, I think the arguments that a front ramp is “necessary” would be pretty straightforward. The alternative to having some sort of ramp is getting the staff to carry Trace in and out of the building, which would be difficult for all concerned. Similarly, even with a ramp, there probably are too many disadvantages to the back door for it to be a workable option.
3. Reasonable Modifications: These involves changes made at the tenant’s expense.
a. Application: A couple of you argued that RM to the exterior of the premises are unavailable. Neither the statute nor the regs address this question. However, Freer, the only RM case we read, also involved an exterior ramp. However, the regs explicitly say that RAs are available for “public and common use areas” and do not use that language for RMs. On the other hand, the RM statute talks about the landlord’s right to have the interior of the premises restored; the reference to “interior” would presumably be unnecessary unless exterior modifications were also permitted.
b. Reasonable? (Davis test: reasonable if no undue hardship, no substantial burden, no fundamental alteration of program)
(i) Building Appearance: The Ds may claim that a ramp in front will harm the appearance of the building. Although this claim is presumably stronger for a chic building on a fancy street, as several students noted, entrance ramps are so commonplace, that it is unlikely to bother the tenants too much. In addition, some tenants are likely to appreciate the ramp for themselves or their guests. The Ds probably would have to show evidence of significant effects on market value to be able to use this to defeat the claim.
(ii) Zoning Issues: The Ds might suffer some costs trying to get zoning approval from the city. Assuming CC lives up to her promise to represent them for free, any other costs are unlikely to make the ramp unreasonable. However, if it looks like extended litigation is necessary, that might be a “substantial burden.” It would greatly weaken the FHA if the need for zoning approval by itself made an RM “unreasonable.”
(iii) Other Concerns
o Several of you argued that the landlords might incur tort liability from accidents on the ramp. The real cost to them is the increase, if any, in the cost of their liability insurance, which I’d bet is not significant. For one thing, the ramp has to be safer to use than six marble steps. For another, although many of you seemed very concerned about slipping on snow and ice, it almost never snows in San Francisco (you’d have no particular reason to know this; I think the winter of 1977-78 was the last time).
o In Freer, the court discussed how quickly the ramp could be removed, but that issue arose because someone might have wanted to remove the mobile home. Here, where the building is very unlikely to be moved, the speed of removal matters much less.
c. Need for Escrow: 24 CFR §100.203 allows the landlord in an RM case to ask for money to be placed in escrow to cover the cost of restoration of the premises. However, there are at least three arguments that this might not be appropriate here:
(i) The regulation allows the landlord to insist on the escrow “where it is necessary in order to ensure with reasonable certainty that funds will be available to pay for the restorations….” Here, it is possible that the plaintiffs’ financial position is strong enough to make this unnecessary.
(ii) Both §3604(f)(3)(A) and §100.203 only refer to restoring “the interior of the premises.” The ramp is obviously not part of the interior, so restoration might not be required at all.
(iii) Even if restoration of the exterior might be required in some cases, the statute and the regulation on require restoration that is “reasonable.” The examples in the regulation state that restoration is not necessary where the modification “will not interfere in any way with the landlord's or the next tenant's use and enjoyment of the premises and may be needed by some future tenant.” The parties will argue about whether this is true of the ramp.
4. Reasonable Accommodations: RA analysis would apply here to the request to have the ramp installed at the owners’ expense. The “reasonableness” analysis would be the same as for the RM claim, with the additional consideration of the cost to the owners. We talked at some length (in the context of Congdon) about how you might analyze whether placing a monetary burden on the landlord constitutes an “undue hardship.” I deliberately made the higher cost figure $65,000—the same as the cost in Congdon—to encourage you to compare the two cases. The first model answer does a nice job laying out several ways in which the facts are more favorable for the plaintiffs here.
5. Common Problems:
a. RA/RM are Different From Refusal to Rent Claims: The plaintiffs did not claim that they were rejected for the apartment because of Trace’s disability. A refusal to rent claim would require proof of discriminatory intent. By contrast, the RA/RM claims do not require discriminatory intent; a denial for any reason is sufficient to trigger the claim if the requested RA/RM is both necessary and reasonable.
b. Preliminary Injunction Standards Are Not Relevant Here: Shapiro and some other cases we read required the plaintiffs to show “irreparable harm” and a “substantial likelihood of success on the merits,” which are the standards you must meet to obtain a preliminary injunction. Here, nothing in the problem suggests that the plaintiffs are seeking that remedy. Indeed, they are likely to be seeking damages, rather than an injunction forcing the defendants to let them into the building. By the time they could get even a preliminary injunction, they almost certainly would be settled into a different apartment.
B. FHA Disparate Treatment: Interracial Couple: I thought this was the weakest of the three claims for the plaintiffs, but Edna’s remarks almost certainly provide enough evidence to go to a jury. I primarily was looking for the best arguments on each side about the evidence; this was a place to use the categories developed for Assignment II.
1. McD-Dgs v. Direct Proof: Many of you were confused on the relationship between these methods of proving intent. Direct proof simply is the normal procedure used in any civil suit and so is available whether or not the plaintiff can make out a McD-Dgs prima facie. Direct proof does not require “direct evidence,” which is the relatively unusual evidence present in Cato, Sorenson and Pinchback where the defendant says “I did it because of race.” Here, I gave some credit for working through the initial steps of McD-Dgs, but I didn’t penalize students who just did the direct proof analysis.
2. Legal Analysis Here:
a. McD-Dgs Prima Facie Case: All of this is easy except the last step; we don’t know what happened to the apartment afterward. However, Cato seems to suggest you can skip the last step where there isn’t evidence of a new tenant that directly undermines your case. Some of you seemed to think there was no application. No formal application is required (see Asbury), but surely Ps must have provided some information for everyone to have reached the stage of negotiating about a ramp.
b. McD-Dgs: Ds Burden: The obvious choice is CC being BC’s Daughter (not illegitimate for FHA purposes). The Ds might also claim it was because of CC being a lawyer or her personality, but that’s not what they told the Ps and you have little evidence to support such a claim (negotiations went on a long time after Linc was aware of those things). The Ds might also talk about not wanting to build the ramp, but that’s only legit if they win on the first claim. Moreover, Linc said in the final phone call that they could have made the ramp work.
c. P’s Ultimate Burden/Direct Proof: Whether you use McD-Dgs or direct proof, this is the heart of the problem. Many of you glossed over this step or suggested that the evidence was overwhelming for one side or the other. It isn’t. A lot of evidence is relevant but not conclusive. Some thoughts on the evidence here:
(i) Conversation between Edna & Trace: This contains the plaintiffs’ best evidence, but it certainly isn’t conclusive for either side. When asked, “You mean with a white woman?” Edna responds, “No. Well, yes. No, not really.” You might read this as admitting her concern with race, but them fumbling around trying to cover. You also might read it as trying awkwardly to articulate her as-yet-unidentified discomfort with CC’s resemblance to her father.
Many of you sensibly discussed the similarity to Sorenson here. As in Sorenson, Edna’s “yes” is relevant evidence, but she’s allowed to try to explain it away. The better discussions noted that the “yes” in Sorenson was better evidence because it was responding to a question about the reason for the eviction. Here, Edna is only referring to the reason for her question about the couple ending up together.
(ii) Timing of Decision: The timing is most consistent with CC’s father being the real reason for the denial. After the crucial conversation, the landlords again met with CC and appeared to be negotiating seriously about the front ramp until Edna recognized her. However, you could argue that, after the initial shock wore off, the landlords deciding on the basis of CC’s father is sufficiently irrational that it must be covering for something else or that E exaggerated her shock to provide a pretext.
(iii) Other Relevant Evidence:
• Several students cleverly noted that evidence of the racial make-up of the building (particularly interracial couples) would be very helpful.
• A number of students argued that because the landlords were African-American, it was unlikely they would discriminate based on race. I’m very skeptical, particularly when the claim involves an interracial couple. Lots of people of many races dislike “mixed marriages.” .
• One fact I gave you that nobody picked up on was that, as in Cato, Linc made most of the business decisions for the Larkins. This makes it less likely that the decision rested on any mild discomfort Edna had with the race of the plaintiffs. It is more likely that Linc would want to protect his wife from the much stronger reaction Edna had when she recognized CC as BC’s daughter.
C. Unruh Act: Denial of BC’s Daughter as Arbitrary:
1. What I Was Looking For I thought this was an interesting question that did not resolve itself easily (although most students were quite sure of one position or the other). On the one hand, refusing to rent to CC because of things her father did years ago seems “arbitrary” in the sense the case uses it: Her father has little to do with her qualifications to rent or to her likely behavior as a tenant, particularly since the Ls know that she differs greatly from her father in her politics. To the extent the refusal is based on a fear she will be like her father, it seems the sort of stereotype or generalization the case rejects.
On the other hand, her presence alone might be very traumatic to Edna; she apparently looks like her father. Moreover, as a couple of students cleverly noted, should Edna have to fear that the father comes to visit? This is not a blanket exclusion of a group of people based on a generalization, but a way to deal with a harm that likely is triggered by CC and almost nobody else.
In the end, this comes down to a policy choice about the relative importance of the landlords’ and tenants’ respective interests. A court might decide that landlords should have the right to protect their own feelings by excluding people in situations like this, particularly as there’s no reason to think that this kind of problem occurs often enough to make it difficult for people like CC to find housing. A court might also decide that CC should not have to suffer simply because of her father’s actions, which would be not all that different than excluding Germans or Russians as a group because of the way one of those nations might have treated you or your parents.
2. Common Problems;
a. Reading Marina Point. Several students argued that Marina Point only protects identifiable classes, but no language in the case expressly creates such a limit. Moreover, earlier cases protect people in Hippie-type clothing and people with an unsavory reputation, which don’t look much like identifiable classes. Similarly, some students argued that the case only protects immutable characteristics, a concept it never mentions. Again, wearing hippie-type clothing is not immutable, nor is having children.
b. Illustrative v. Exclusive Lists: Several students (including the author of the 1st model) used the question as an opportunity to discuss whether the list should be treated as illustrative or exclusive. While in a different case you could ask the California Supreme Court to revisit this issue, here a federal court is going to feel bound by Erie to follow Marina Point on this issue unless the statute itself has been amended.
c. Arguing that CC was Denied Because of Her Personality/Reliance on Kramarsky: The Ls conceded “that Cornelia being the daughter of Bull Collins was a substantial factor in their decision to turn down the plaintiffs’ application….” Arguing that it was not the real reason was inconsistent with the concession, which you should have understood as my attempt to take the issue of intent off the table for this claim.
Many students who raised the personality claim cited Kramarsky as authority. Even aside from the concession, reliance on Kramarsky regarding lawyers with assholic personalities was doubly problematic: First, it is a New York case, of no relevance in interpreting a California statute. Second, our discussion of hyper legal lawyers was not an application or reading of Kramarsky, but instead was an application of the Marina Point analysis to the facts of Kramarsky.
Question IIIB: Student Answer #1: This was the strongest overall answer to this question, one of only a few to address reasonable accommodations separately from modifications and to provide solid two-sided discussion on all three claims. The student sees most of the issues on the first claim, although the discussion is not always as tight to the doctrine or as in depth as might have been ideal. There is a strong discussion of the available evidence on the race claim and a pretty good discussion of the Unruh Act issue (which could be developed more).
Failure to grant Reas Acc: 3604 (f)(3)(b)/ 100.204: demand to build a ramp at the owner's expense. Here P is obviously handicapped (in a wheelchair). P will argue that the accommodation is necessary for PWD to have equal access to the unit. P could not get into building w/out assistance of doorman (climbing steps). This is a great burden for P, BUT the burden on the D is a substantial financial burden. The P wants the D to build a ramp for no less than $38k, and maybe even more than $65k. $65k was specifically rejected in Congdon. However, P is willing to sign a 5-yr lease, where P in Congdon was only a month-month tenant. Furthermore, in Congdon, D offered alternatives such as a ground floor apt, whereas here, D seems obstinate. However, there may be no claim at all because D never actually rejected paying for the installation of a ramp, "I wasn't crazy about the ramp... well we might have worked that out." Because of the great financial burden, D probably doesn't have to install an expensive ramp at their own expense.
Reasonable Mod: 3604(f)(3)(a) / 100.20: Generally:: P should be allowed to build at own cost. Only burden on D is if the ramp somehow lowers the value, so may be proper insistence to build a 65k ramp v. 38k. However, even the less expensive ramp would probably be OK if the court followed Freer which allowed for the P to install a ramp of their choosing as long as it did not infringe on public safety (trip hazard) and was easily removable. The requirement to climb 6 steps in the front or even 3 steps in the back would create enough of a burden on the P to require some sort of reasonable modification allowed by the D.
Insistence on rear entrance: Would have to go uphill or downhill to get to bus station in a wheelchair for a block. Furthermore, he would have to open 2 sets of heavy metal doors, to then go down a long hallway. Landlord (LL) will insist they have gone so far out of their way to create an ambiance with the marble floors, and to install a ramp that was not completely amazing (i.e. $65k ramp) would create a fundamental alteration of the facility by ruining the atmosphere. However, this is highly debatable, and the policy of the FHAA would be in favor of the P to let them install a ramp at their cost to the front of the building.
Escrow Acct: While the D might demand a K provision that would force the P to put the premises back to the condition they were in prior to modification, they cannot force an escrow acct to be held. Furthermore, there is nothing that would support a theory that a ramp would somehow lower the value of the building, and even a K to return premises to their original place would seem unnecessary, there is no threat to public safety or any other really good reason for the LL to force removal of the ramp at end of tenancy.
Disparate treatment/ denial of housing based on race: While the P may want to bring a Mc-D plea to the court, this is prob unnecessary as there is direct proof of disc by the direct statements of the LL "how did you end up.. white woman... yes". Furthermore, the burden would still inevitably rest on the P to prove that any reasons given by the D were mere pretext. Therefore a direct proof COA brought under 3604(a) would be fine here.
Here, P will claim the direct statements made by LL about a black man being married to a white woman, coupled with E's reaction when she saw C. D will point out that similar to Sorenson, she responded "yes" to a racially charged question, but the rest of her conversation sought to clarify. She immediately follows up with "no not really". Furthermore, she discusses how C wears a lot of hairspray (nothing protected about that... thank god!). But, P will counter saying further statements were made, "when I look at you... something just bothers me." However, D will contend like Frazier (LL rightfully refused housing because he was being called a racist, which made him uncomfortable) the actual denial only came because of the conduct of P, here E had been beaten by the MD police dept in which the daughter of the police chief was now requesting housing. Everyday C walked in the door, E would have to remember the brutal painful memories of that beating. However, P will rightfully point out, that her conduct is exactly the opposite of what E is afraid of, she's a lawyer championing the rights of Afri Am like E & L.
What is missing here is a very valuable piece of info: what is the neighborhood composition? have other inter-racial couples had similar problems (send in testers)? We only have limited information to go off of, and there's somewhat of an irony of calling a black couple racists, but here, there are direct statements made to the D on different occasions to backup and definitely support a possible claim of denial.
Disparate Treatment/ Arb disc based on Unruh: Unruh act disallows arbitrary disc on any group based on stereotypes. Here, P will contend D disc based on family connection to her father a known racist. However, Unruh does not apply to conduct, rather stereotypes. Here, D was beaten up and has a rightful fear of racist people like P's dad as she was directly affected. but similar to above, that's P's dad not P's conduct. D’s argument is tenuous as it seems to apply more to the stereotype that anti-disc leg seeks to remove. Here, any family connection to a perceived black sheep of family would be a class of people singled out and rejected housing, while this may not necessarily be a large block of people it does tend to fit the profile Unruh was seeking to protect which was misguided arbitrary disc (here, believing a civil rights atty is a racist).
D may argue that decision should come out more like Kramarsky (can discriminate against a class of ppl—lawyers—if not specifically listed in statute) rather than Marina Point, as this creates a better rule for the courts to adhere by creating judicial certainty and not diluting protected classes by seemingly adding a never-ending list, but in interpreting a CA law we should use a CA court decision: Marina. Furthermore, policy to promote fair housing for all tends to support illustrative lists not exclusive.
Question IIIB: Student Answer #2 (Issue #1): This was probably the strongest answer on the disabilities issues, seeing most of the major concerns and clearly separating the accommodations from the modifications claims.
Failure to grant reasonable accommodations: The issue is whether the Larkins violated 3604(a) by not agreeing to install a ramp. Two elements to consider in determining whether a person with disabilities should receive accommodations are 1) is the accommodation necessary; 2) is it reasonable?. An accommodation is considered reasonable if there is no undue hardship or substantial burden on D, and no fundamental alteration to the program. The ramp is necessary for Trace Turnblad (TT) to access the building. This is evident by the amount of assistance it takes for him to enter the building and get up the stairs. This could also be humiliating for TT. He could not exit or enter the building ever by himself because he requires the assistance of others. This is an obvious burden if every time you leave the apt, you must be with someone or ask the doorman for help.
The Larkins will argue, however, that there is a substantial burden on them in installing the ramp. The ramp costs anywhere from 38k to 65k which a considerable expense. In weighing the how much this will burden D, it is important to look at how many units are in the building, how much they charge for rent, to see if this is really a huge expense for them. Also, they may be able to attract more disabled tenants by installing the ramp which may bring them profits. The Larkins, on the other hand, would argue that installing a ramp would alter the building, and ruin the aesthetics. It is not clear whether this is a historic building or not, but installing a ramp in the front of a fancy building with marble steps might detract from the aesthetics. This could result in people having less of an interest to rent in the building. The last element to consider is whether there is fundamental alteration to the program. The ramp would not affect other residents entry into the building so therefore, there is no fundamental alteration to the housing. The ramp allows for more people to access the building, it does not take away from people's access.
Failure to grant reasonable modifications: The burden on the Larkins is somewhat less of an issue once Cornelia Collins (CC) offers to pay for the ramp. This brings us into the realm of reasonable modifications (RM). The HUD regulations state that "it is unlawful for any person to refuse to permit, at the expense of a handicapped person, RM of existing premises, occupied or to be occupied by a handicapped person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the premises of a dwelling." Furthermore, a landlord may condition his permission for a RM on the renter agreeing to restore the interior of the premises to the condition that existed before the modification. The proposed modifications are necessary for TT to fully enjoy the premises (see above).
The Larkins proposed an alternative modification of putting the ramp in the back of the building where it would be less noticeable not detract from the aesthetics of the front. However, this alternative is not really plausible. TT would have to traverse up and down hills in his wheelchair in order to use get to the bus stop from the back entrance. The Larkins might argue that this is San Fran, and in order for TT to get around anywhere his going to have to go up and down hills. This is not a valid argument because TT should not have to go up and down hills in a wheelchair when accessing his home- where he will be coming and going all the time. Therefore, the alternative proposed by the Larkins does not seem rational. It becomes a question of who bears the greater burden. Is it more of a burden on the Larkins to have the ramp in the front, or on TT to have the ramp in the back.
The Larkins wanted CC and TT to remove the ramp when the moved out of the building. CC said that the Larkins did not need to remove the ramp. The statute only calls for the restoration of the interior of the premises. Arguably the ramp only affects the exterior and therefore, CC and TT would not have to pay to remove the ramp. Also, there is a question of whether the Larkins must accept CC's proposal for a cheaper ramp. If they can get approval from the zoning board they may have to accept the cheaper version b/c essentially CC is paying for it, and the difference in the burden on the Larkins might not be much more significant with the cheaper ramp. It seems likely that a court would find that the Larkins violated 3604(a) by not agreeing to let the ramp be installed in the front of the building.
Question IIIB: Student Answer #3 (Issues 2 & 3): This was clearly the strongest answer on the Unruh Act cause of action; the student really understood the difficulties at the heart of the problem. The answer also includes solid analysis of the race claim, particularly working through the prima facie case, although I think the student leans more toward the plaintiffs than the evidence warrants.
Disparate Treatment, Denial of Housing Because of Race:
Prima Facie Case: 1. Member of a protected Class ( interracial couple
2. Applied and was Qualified for ( although the lease wasn't signed and done, they were in the middle of negotiations dealing with the addition of the ramp to the property as they had already "fallen in love" with the property. Before they signed the lease, they needed to make sure the property was usable for T, and they were definitely qualified as they met the financial qualifications. She as a successful lawyer, and in the facts, it states, they were financially qualified. The estimates for the ramp could be considered an application and an effort to better the place along with her willingness to argue FOR free to the zoning board. People don't do that unless they are interested and applying, they don't waste their time that way.
3. Denied ( they were denied. L called C and said, we can't go through with the lease, as you are BC's kin, you can't live here, DENIED
4. The apartment remained opened or went to a member of a different protected class based on the facts provided, it is unknown what happened with the apartment, more information would be needed to completely create the prima facie case.
Discussion of evidence of discrimination based on race: P: D asked "how did you end up with her?" the tone, and the emphasis placed on the her, from a black woman to a black man could easily be construed (and could possibly be) racism based on the color of C's skin.
P responded, “to a white woman?” D will argue that at this point, being accused of racism, made her already feel uncomfy with this particular tenant, and at that point there is a non-discriminatory reason to not rent, but the conversation continued
P: D ADMITTED that it was because she was white, She said "yes..." then tried to cover her tracks as quickly as she could with 'well no not really" She tried to cover up her faux pas with talking about her hairspray used in Cornelia's hair, arguably an attempt to cover up the already discriminatory comment about him being married to a white woman. She has successful exposed her disdain towards white women marrying a black woman, between the yes and the how did you end up with her. D then digs the hole more (puts in her foot in her mouth more, pick an analogy) when she says, there is something when I see the two of you together something bothers me (interracial married couple!)
To this argument, D will argue that it was that the statement was because D was getting a feeling that Cornelia was the police chief's daughter and it wasn't more seeing them together then seeing her at all and reminding her about her past and the abuse she suffered. The way she said it though, coupled with the other comments above indicate that at this point it is less about the fact that Cornelia was the police chief's daughter and more about the interracial marriage.
The defendants will argue that they were going to rent the apartment to the couple even knowing they were an interracial couple, as they were going through what would have been a waste of time to figure out how to build a ramp if they had NO intention of allowing these people to move in. They even had estimates done.
Defense will argue she was rejected because of the cost of the ramp and because Cornelia was the daughter of someone who was beaten by a police chief. It was a comfort thing, not a race thing, and definitely not because Trace married a white woman. Plaintiffs can establish as seen above that the defendants already demonstrated adverse feelings towards the interracial couple looking at their apartment.
Mixed motives discussion: It is entirely possible that the reason for the dismissal and denial of the rent was a mixed motive, but the burden is on the defendants to PROVE that in the absence of that information they wouldn't have discriminated against the plaintiffs
That case is extremely difficult to make here. One would have to believe that if Cornelia was black and still same situation (beatings father policeman etc) that the defendants would still have denied them housing. When they denied them, they stated the reason for the denial was because of the relationship between the police and the couple. However, based on the conversation between Trace and Edna, it is apparent that at least some of the reason was because for the interracial marriage. It's a tough call to say that without the interracial marriage, the couple would have had the apartment.
Arbitrary Discrimination/Unruh Act: Marina Point was a court ruling that stated a test that made arbitrary discrimination based on a class of people a violation of the Unruh Act. The court further ruled that the Unruh Act was illustrative not exclusive. Can't discriminate based on arbitrary classification. The question is whether deciding not to rent the Kin of Bull Collins is an arbitrary classification.
Looking from Edna's point of view, she was one of the many many blacks beaten by Collins’s police while demonstrating about integration at a dance club. Because of her color and her belief, she was beaten. That would definitely qualify as a non-arbirtrary reason to discriminate against Collins, and not allowing him to rent in her building. It is a personalized reason, as he knew what his minions were doing and in some cases presumably ordered it.
The issue is whether, because of this horrible traumatizing experience, she can discriminate against his family. Is it arbitrary to discriminate against someone just because they happen to be blood related to a killer? Is “the apple doesn't fall too far from the tree?” and the closeness of relation, especially between a father and a daughter, enough to overcome the arbitrary standard?
Cornelia in no way had followed in her father's white racist footsteps, instead becoming a strong advocate for blacks. Trace even told the story of when he first saw her arguing for the black kids in a raggedy ass school district. By all definitions, she wasn't following her father's footsteps but instead was going against him, very strongly. She even seemed extremely embarrassed and stammered an apology for her father's behavior. Do a man's sins follow his child, no matter how much that child tries to repent? [MAF: Unto the seventh generation!]
But it can be considered arbitrary and thus not a decision based on personality and the person themselves, to discriminate against a member of a family solely because they are a member of that family. It isn't her fault her father was a racist who condoned the beating of blacks. She also chose her own path, which Edna was aware of because Trace told her. Cornelia, like Edna fled across the country from Baltimore to San Fran to possible escape her father's reputation. Should it follow her wherever? She is nothing like him, and maybe believing that she is provides an arbitrary assumption.
Marina Point was about discrimination of children, because AS a CLASS they are rowdier and more destructive to property. It was an arbitrary discrimination based on a stereotype. It is also a stereotype that a child will end up just like her father, and that she can't successfully shake of her childhood and the hatred her father probably tried to instill into her. It is understandably hard to look at the daughter of the man who ordered your abuse and not see and relive what happened. The problem is, discriminating against his children because he was a jerk, is that arbitrary?
Judging someone based on who they chose to engage with is not arbitrary, birds of a feather flock together. But judging based on what a father is like, when you don't pick your father is more arbitrary and not personalized. Even judging a black man who marries the white daughter of the man who beat black people, and refusing to rent to him because of WHAT he married, is relatively arbitrary. He didn't marry her father, he fell in love with her and married the daughter, the civil rights advocate who fought for rights of blacks her father tried so hard to destroy.
Maybe the personal connection here, that she was personally beaten makes this not arbitrary, maybe it doesn't. It would be more likely to be arbitrary by another black who was never in Baltimore, to discriminate against Cornelia, because there is even less of a personal connection.
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[1] Many students misread the cases that alluded to this issue. Lamb, without any supporting analysis, treats a duplex as zero SFHs for purposes of determining how many the owner had. Presumably, following this literal read of “house,” the owner also could not claim the exemption for either unit in the duplex. Hogar Agua, pursuant to a stipulation of the parties, treats a two-family house as one SFH, but says it expresses no opinion as to the correctness of the stipulation. This is not a legal ruling on the issue at all.
[2] Many students read this clause to mean that the exemption could not be invoked if you owned multiple units in the same building, but (i) that’s not what it says; and (ii) that would clearly contradict Rep. Tate’s stated intent, so it is unlikely to be what the clause does.
[3] As always when “bona fide” (Latin for “good faith”) is part of the relevant legal test, some of you spelled it as “bonified,” which sounds like it might mean “fossilized” or “hit with a bone” or slang for a sexual act performed by a male on someone else (“I heard that he bonified Terry last night.”)
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