QUESTION TYPE 2: CRITIQUE OF STATUTE
QUESTION TYPE 2: CRITIQUE OF STATUTE
Question Type 2 asks you to critique a draft statute or amendment from both a technical and a substantive standpoint. It gives you an opportunity both to show off what you have learned about statutes and to discuss a significant policy issue. Ideally, you should discuss the pros and cons of whatever is proposed and suggest substantive and technical changes to improve the statute.
2A. You are a staffer for U.S. Rep. Constant Waffle, a moderate from central Missouri. Expressing concerns about “quotas,” some House Republicans have been considering measures to eliminate the disparate impact causes of action from Title VIII. To try to prevent the total elimination of disparate impact analysis, some moderate Democrats and Republicans have drafted a provision to amend Title VIII to only allow disparate impact analysis when the defendant is a government entity, because proving the intent of a government entity is particularly difficult. The provision would add the following language to the statute:
§3604(g):
(1) In determining whether a violation of this section has occurred, disparate impact analysis shall only be employed where the defendant is a state, a municipality, a government-operated housing authority, or another government entity.
(2) Nothing in this subsection should be read to forbid or prevent the continued use of differences in effect to state a prima facie case of disparate treatment.
Write a memo for your boss assessing the proposed bill. Please include some discussion of:
- the pros and cons of the substance of the bill,
- drafting changes you might make to the text of the proposed bill (assuming that Rep. Waffle decides to support it substantively), and
- possible substantive changes to the bill.
2B. You are a staffer for U.S. Rep. Constant Waffle, a moderate from central Missouri. He serves on a committee with Rep. Donna Lotagud, a liberal from Northern California. She has introduced H.B. 1984 to try to add protection for marital status to the Federal Fair Housing Act. The bill would add “marital status” to the list of protected categories in 42 U.S.C. 3604(a)-(e), 3605(a) & (c), and 3606. In addition, the bill would add the following two subsections:
§3602(p)”Marital status” means an individual’s status with regard to being married, e.g., the state of being married, single, divorced, or cohabiting.
§3607(c)No provision in this subchapter regarding marital status shall be read to apply to the rental of units by an owner or owners with truly genuine religious objections to conduct reasonably likely to be undertaken by the prospective tenants on the premises of the owner or owners, so long as the owner or owners own no more than ten(10) rental units that are rented out for profit, irregardless of whether the owner or owners live on the premises.
Write a memo for your boss assessing the proposed bill. Please include some discussion of:
- the pros and cons of the substance of the bill,
- drafting changes you might make to the text of the proposed bill (assuming that Rep. Waffle decides to support it substantively), and
- possible substantive changes to the bill.
2C. You are on the staff of State Senator Constant Waffle, a moderate from central Missouri. In order to encourage home-ownership, the Missouri legislature is about to pass a statute creating a subsidy program for low- and moderate-income residents who wish to purchase a home. Under the program, the state will pay part of the down-payment for qualified applicants who demonstrate that they can meet the mortgage payments on the house in question. The statute includes schedules that delineate eligibility requirements and the amount of subsidy available to applicants at different income-levels. There is wide support in both parties for the statute, which is known as the Easy Cheap Home Ownership Act (ECHO). Senator Moe Billity (D-St. Louis) has proposed the following amendment to ECHO:
1) Program participants who purchase homes in areas in which people of their race make up less than 15% of the population are entitled to receive 10% more than the subsidy to which they otherwise would be entitled.
2) Program participants who purchase homes in areas in which people of their race make up less than 30% or more than 15% of the population are entitled to receive 5% more than the subsidy to which they otherwise would be entitled.
Write a memo for your boss assessing the proposed amendment. Please include some discussion of:
- whether the amendment would violate the federal Fair Housing Act or §1982;
- the pros and cons of the substance of the amendment;
- drafting changes you might make to the text of the amendment (assuming that Sen. Waffle decides to support it substantively); and
- possible substantive changes to the amendment.
ASSUME that the amendment would not violate the U.S. or the Missouri Constitution.
ASSUME that St. Louis and Kansas City, the two largest cities in Missouri, are “hypersegregated” as that term is used in American Apartheid.
ASSUME that the phrase “program participants” is adequately defined elsewhere in ECHO.
2D. You work at the U.S. House of Representatives on the staff of Rep. Constant Waffle, a moderate from central Missouri. His colleague, Adam Smith IV, a Republican from Virginia, has proposed the following amendment to the Fair Housing Act:
THE FREE MARKET PROTECTION AMENDMENT
a) It shall be a defense to an action under the Fair Housing Act against a non-government defendant that refraining from doing the action complained of would result in significant financial cost to the defendant.
b) This defense is available in the situations listed below:
(1) disparate impact claims;
(2) a decision by a real estate professional to adhere to a client’s stated preferences about the protected class status of the neighbors or the seller with regard to a dwelling that the client intends to purchase or rent;
(3) making or accepting a higher bid for ownership or rental of a dwelling regardless of the purpose of the bid.
Write a memo for your boss assessing the proposed amendment. Please include some discussion of:
- drafting changes you might make to the text of the amendment (assuming that Rep. Waffle decides to support it substantively);
- the pros and cons of the substance of the amendment; and
- possible substantive changes to improve the amendment.
2E You work at the U.S. House of Representatives on the staff of Rep. Constant Waffle, a moderate from central Missouri. His colleague, A.C. Alieu, a Libertarian from Vermont, has proposed the following amendment to the Fair Housing Act:
Privacy Protection Act of 2000
(A) It will not be a violation of any state or federal fair housing provision for a person, in selecting another person with whom to share living space, to refuse to select somebody for any reason at all, except for race.
(B) It shall be unlawful to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of activities undertaken, or intended to be undertaken, on the premises, so long as such activities cannot be sensed in any manner at all outside the dwelling unit in question, unless such activities may be contrary to relevant law.
Write a memo for your boss assessing the proposed amendment. Please include some discussion of:
- drafting changes you might make to the language of the amendment (assuming that Rep. Waffle decides to support it substantively);
- the pros and cons of the substance of the amendment; and
- possible substantive changes to improve the amendment.
Assume that the statute would not violate the U.S. Constitution.
2F. 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, Mel T. Cutcheral (D.-Salinas, Cal.), recently received a complaint from a constituent who tried to set up a special home for graduate students from China near one of the campuses of the University of California. The constituent had been warned by a local fair housing agency that such a program would violate the federal FHA. In response, Rep. Cutcheral has therefore proposed the following amendment to the FHA. He intends it to allow special interest housing (like the Chinese Graduate Student Theme House) that is not simply a cover for traditional discrimination (e.g., the “Aryan Nation White Supremacy Theme House”).
Acceptable Limited Theme Housing Exception Amendment (ALTHEA)
(1) In rental housing, it is not a violation of §3604 to give preferences to current or potential tenants in Theme Housing (as defined below) whose presence furthers the theme of such theme housing.
(2) Theme Housing must meet the following four requirements:
(a) It has to contain no more than fifty dwelling units and must be housing no more than 100 individuals at any one time.
(b) There must be a clearly articulated theme that is made known to all applicants and residents.
(c) The theme must not be about excluding specific groups protected by the Fair Housing Act.
(d) Operators of theme housing must run regular programming available to all tenants that is focused on aspects of the theme and general interest programming shall be insufficient.
Write a memo for your boss assessing the proposed amendment. Please include some discussion of:
- drafting changes you might make to the language of the amendment (assuming that Rep. Waffle decides to support it substantively);
- the pros and cons of the substance of the amendment; and
- possible substantive changes to improve the amendment.
2G. 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, William Hearst Garrison (D-Mass.), wants to clear up some uncertainty regarding the advertising provision of the FHA. Garrison has proposed the following amendment to be added at the end of the present text of §3604(c) as part of that subsection:
(1) The selection of human models appearing in a notice or advertisement shall be a relevant consideration, but only for claims that the relevant protected class is race, color, national origin, or familial status.
(2) The particular media or location in which a notice or advertisement is displayed or distributed and the likely audience that results from that also are relevant to determine if it is in violation of this subsection.
(3) It is a defense to an action relying on paragraphs (1) or (2) of this subsection that it is unduly expensive at the present time for the defendant to present more models or advertise in additional media or locations.
Write a memo for your boss assessing the proposed amendment, including some discussion of:
- drafting changes you might make to the language of the amendment (if Rep. Waffle decides to support its substance);
- the pros and cons of the substance of the amendment; and
- possible substantive changes to improve the amendment.
2H. You work at the U.S. House of Representatives on the staff of Rep. Constant Waffle, a moderate from central Missouri. One of his newly elected colleagues, Rep. Proper T. Reitz (R-Tex.), wants to clarify the circumstances in which group homes must be accommodated by residential zoning laws. Rep. Reitz has proposed the following amendment to the FHA to be added as §3604(f)(10):
(10) In cases where a reasonable accommodation to municipal zoning laws is being sought pursuant to this subsection,
(a) The accommodation shall not be considered “necessary” by a court if the only basis for the plaintiff’s claim of necessity is that the owner or operator of the property at issue might not be able to afford to operate, market, or live in the housing absent the accommodation.
(b) It can be deemed a fundamental alteration of a primarily single-family residential zone to allow a residence in the zone to have eight or more unrelated persons in residence.
(c) Exhaustion of administrative remedies is only required for matters within the expertise of zoning authorities.
Write a memo for your boss assessing the proposed amendment, including some discussion of:
- drafting changes you might make to the language of the amendment (if Rep. Waffle decides to support its substance);
- the pros and cons of the substance of the amendment; and
- possible substantive changes to improve the amendment.
2I. 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, Prudence Propriety (R-Indiana), was greatly moved by the recent tragedy in her district described in the article on the next page, and was shocked at the failure of the Fair Housing Act to provide adequate deterrence or remedies.
Rep. Propriety has proposed an amendment to the FHA to prohibit intentional discrimination based on your job (as opposed to your income) and to make clear that discriminatory acts that occur after someone has purchased a home can violate the statute. Her amendment adds “occupation” to the lists of protected characteristics in §3604(a)-(e), §3605, §3606, §3617 and §3631. It then adds the following new definitions to §3602:
§3602(s) “Occupation” means a lawful way of earning income or making a living. However, it is not discrimination on the basis of occupation to consider present or future levels of income nor to apply neutral policies with a disparate impact on some types of jobs.
§3602(t) “Privileges of sale or rental of a dwelling” as used in §§3604(b) and (f)(2) includes the right while living in a dwelling to the enjoyment of the dwelling including not being harassed there.
Write a rough draft of a memo for your boss assessing the proposed amendment, including some discussion of:
- drafting changes you might make to the language of the amendment (if Rep. Waffle decides to support its substance);
- the pros and cons of the substance of the amendment; and
- possible substantive changes to improve the amendment.
In doing these tasks, you should view the newspaper article on the next page as a useful indication of what Rep. Propriety has in mind. Feel free to refer to it as an example of conduct that might be affected by the amendment. However, remember that your task here is to assess the amendment, not to provide legal analysis of the facts in the article.
Article for Q2I:
Family Blames Condo Association for IRS Employee’s Suicide
April 18--Simon Enderman knew better than to tell people he worked for the I.R.S. “He would say he was an accountant,” recalled his sister Edna, “and then if they asked who he worked for, he’d just say ‘the government.’ He knew how people feel about the I.R.S.”
Unfortunately, word got to his neighbors at Country Oaks Estates, a Fort Wayne condominium community, with tragic results. After what his sister described as a “six-month hate campaign,” late Friday night—April 15 when tax returns were due—Enderman, 27, came home to a message scrawled in red magic marker on the door of his condo: “Happy tax day a**hole; you made our lives miserable again this year so we’re gonna make sure you’re f***ing miserable too.” Enderman apparently went inside and, without even closing the door, killed himself with his own gun with a single shot to his right temple.
According to Edna, her brother’s difficulties began last Halloween night, when someone wrote “g**d*mn tax man” in shaving cream across the exterior of Simon’s unit. After Simon admitted to curious neighbors that he indeed worked for the I.R.S., a number of them began making snide remarks to him whenever they saw him. In addition, he regularly received anonymous letters calling him names and threatening him with unspecified harm because of his connection to the I.R.S.
In January, after some teenagers from the complex tripped him one day while he was carrying groceries to his unit, he filed a written complaint with the Condo Association. However, according to Frank Foley, attorney for the Association, there really was nothing for the Condo Board to do because no association rules were being violated.
After that, Simon told Edna that everyone seemed very angry with him for “tattling.” Both the verbal comments and the letters got nastier, so Simon bought the gun he later used on himself. Edna says that Simon’s family believes that her brother’s situation was “like sexual harassment” and that the Board “should have done something to stop it.”
Foley said this situation was very different from a sexual harassment case. First, he says that “the federal courts in the Seventh Circuit [which governs Indiana, Illinois, and Wisconsin] have made clear that, once someone purchases a condo and moves in, harassment by neighbors or even by the Condo Board is not actionable under the fair housing laws.” More importantly, he said federal and Indiana state law “protect people from harassment on the basis of race, sex, religion and the other usual categories, but don’t cover harassment because of your occupation.”
Edna says she is not going to let her brother be forgotten; already she has started talking to some state legislators about changing the law. “Wisconsin protects against discrimination because of your job. We should have that here, too.” She also wants some kind of written apology from the Condo Board and the Country Oaks residents.
The Board issued a statement late Monday denying any responsibility but offering “the deepest sympathies to the Enderman family in this difficult time.” Edna says that several of the other owners have called her expressing their condolences as well.
Other Country Oaks residents were less sympathetic. One owner, who requested anonymity, insisted that there must have been some other problem in Enderman’s life. “Normal guys don’t go whining to the condo board when people make fun of them, much less kill themselves. We all think there had to be something else going on—problems at the office, drugs, breaking up with someone—something like that.” He paused, then grinned. “After all, it’s busy season at the I.R.S. Maybe he just found it too taxing.”
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