Miami



UNIVERSITY OF MIAMI SCHOOL OF LAW

Housing Discrimination Professor Fajer

Final Examination May 9, 2005

INSTRUCTIONS

1. Read all instructions before beginning.

2. This is an open-book examination. You may consult any written material that you think will be helpful.

3. You have three and one-half hours to complete your work on this examination. Bluebooks will not be distributed until the end of the first hour. During the first hour, you may read the examination materials and make notes on scrap paper or on the exam itself. After the first hour, you will have two and one-half hours to write your answers in the bluebooks.

4. I will not grade material written on scrap paper or on the exam itself. I only will grade material written in the bluebooks during the final two and one-half hours of the exam.

5. There are three questions. You should answer all three. Each question will be weighted equally, so allot your time accordingly (approximately 50 minutes per question). You may not have enough time to answer each question exhaustively; do the best you can.

6. Start each question in a separate bluebook. On the cover of each bluebook write your anonymous grading number and the question number (e.g., “Question II” or “Question III continued”).

7. Write only on one side of the page and write legibly. If your handwriting is large or difficult to read, write only on every other line. Illegible portions of the answer simply will not count.

8. Please read carefully. You will receive less credit if your answer disregards the instructions or some of the material presented in the question.

9. Your grade will be determined by both the breadth and depth of your analysis and, in part, by how well you write (conciseness, clarity, and organization). If you are feeling pressed for time, you may wish to put the end of your answer in outline form. While you will receive some credit for issues you clearly identify in this manner, you will receive less credit than if you fully analyze the issues.

10. If you think you need to make assumptions in order to answer a question, please identify the assumptions you make. (E.g., “Assuming that the screen works, ... .”)

QUESTION I

Norman Notrump owns and manages several large rental apartment complexes. Notrump also owns a large mansion in the Hollywood Hills, a summer home in Maine, and a five bedroom house in the New York suburbs where he and his wife raised their son. When his son decided to go to college at UCLA, Norman and his wife decided they would rent out the New York house for four years and use the California mansion as their primary residence. Their intent was to then allow their son to use the New York house if he followed in the family tradition and went to graduate school at Columbia University in Manhattan.

Greg Glancy is a highly successful writer of political thrillers who normally lives in California. He wanted to relocate to New York for a few years to oversee the adaptation of one of his thrillers into a Broadway play and to do some research for a new book about corruption in New York City government. He leased out the Notrumps’ New York home for four years. Unfortunately, while driving across country to take up residence there, he was seriously injured in a car accident. As a result, he would need to use a wheelchair to get around for the foreseeable future.

After Glancy got out of the hospital, he sent a letter to Notrump, proposing to make a number of modifications to the New York house to accommodate his new disability. These included adding a ramp up to the front door, widening several interior doorways, altering the downstairs bathroom and one of the upstairs bathrooms, and adding a mechanical chairlift to the main staircase. Glancy indicated he would put money into an escrow account to cover the cost of undoing these changes at the end of the lease.

Notrump replied that he would not allow Glancy to make the changes because of the sentimental value of the house, but offered to let Glancy out of the lease. Instead of accepting the offer, Glancy sued in federal court, claiming that Notrump violated §3604(f) of the FHA by failing to allow reasonable modifications of leased premises. In Notrump’s answer, he claimed that, under §3603 (b)(1), his lease with Glancy was exempt from the requirements of §3604 because the New York house was one of only three single-family houses he owned. However, Glancy’s attorneys argued that the single-family house exception did not apply because Notrump “was in the business of selling or renting dwellings” as defined by §3603(c).

Question I Continues on the Next Page

Question I Continued

After some negotiations, the parties stipulated that Notrump was in the “business of selling or renting dwellings” and that Glancy would be entitled to make the requested modifications under §3604(f) unless some exception applied. They then filed cross-motions for summary judgment, asking the court to determine whether Notrump’s refusal to allow the modifications fell within such an exception.

The District Court held in favor of Notrump, ruling that, under §3603, even people “in the business of selling or renting dwellings” were entitled to have three single-family houses exempted from §3604 if they otherwise met the terms of the exemption. In the alternative, the court held that, because of the special connection people have with their own homes, the statute should be read to contain an exception to permit anyone at all to refuse to allow modifications when renting out a family residence they had lived in before and intended to live in again.

The Court of Appeals reversed. First, interpreting the fourth proviso of §3603(b)(1), it held that a person “in the business of selling or renting dwellings” necessarily “used” their own expertise when renting out a single-family dwelling and therefore was not eligible to claim the single-family house exception. Second, it rejected the other “exception” described by the District Court, arguing that a non-statutory exception to the reasonable modifications provision was particularly inappropriate because, in the legislative history of the FHAA, Congress had strongly indicated its intent to eliminate barriers to people with disabilities living in ordinary residential neighborhoods.

The U.S. Supreme Court granted certiorari, limited to the question of whether Notrump’s refusal to allow modifications was exempt from §3604(f) on either of the theories relied on in the District Court. Write drafts of the analysis sections of an opinion and of a shorter dissent deciding this question for the Supreme Court in the context of the facts of this case. Assume the Court would treat the parties’ stipulations as binding.

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, 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.

Question II Continues on the Next Page

Question II Continued

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.”

QUESTION III

Based on the facts below, discuss whether Gloria could succeed on any of the following claims against Andy and Wesley: (1) that their ad indicated a preference based on sex, violating FHA §3604(c); (2) that they intentionally denied her housing because of her sex, violating FHA §3604(a); and (3) that preferring tenants who have a higher “TNT score” or who use Macintosh computers is arbitrary, violating California’s Unruh Act.

Wealthy software engineers Andy Allenson & Wesley Wu built an apartment complex called Techno-Towers in Northern California that they had specifically designed for computer industry professionals. The complex consisted of four towers surrounding a central courtyard. Each tower contained 20 one-bedroom apartments, 20 two-bedroom apartments, a small gym, laundry facilities, and an entire floor consisting of reading rooms and gaming rooms available to all tenants in the building.

Wesley, in charge of advertising, decided simply to run a single full page ad repeatedly in several computer and technology magazines. The headline across the top of the ad said, “Finally, a place for techno-geeks to feel at home.” Underneath the heading were six photographs [described in detail on the next page]. Underneath the photos was the following text:

You know who you are. You never quite fit in. Too much time at the screen. Not enough time on the ball field. Trouble getting dates. Beat up in gym class. Programming (nearly) as interesting as porn. Even now that you’re grown up, your apartment is still just a place to stash your stuff. Not designed to fit your life. Nobody designs to fit your life. Until now.

Check out Techno-Towers. Prime Silicon Valley location. State-of-the-art security. Wireless internet in every apartment, common areas, courtyard. Huge living/dining rooms with built-in bookshelves, entertainment center wired for cable, two computer workstations. Common rooms for video gaming on giant screens. Common rooms for role-play gaming. Website with tenant chat rooms (general and special interest).

Leases of one year or more from $2500 a month.

Wheelchair accessible apartments available.

Equal Opportunity Housing.

Question III Continues on the Next Page

Question III Continued

Layout of Pictures in Techno-Towers Ad:

[pic]

P1 = Central courtyard. Asian-Amer. Male (mid-30s); Anglo Male (late 20s) working on laptops at table, each with open bottle of imported beer.

P2 = Common room. Giant screen TV with video game in progress. Two males playing game seen from rear in silhouette against screen.

P3 = Furnished interior of apartment. No people. Built-in bookshelves full (some computer science textbooks and paperback science fiction titles visible). Macintosh computer with elaborate accessories set up on desk. Large TV. Papers and books scattered on surfaces. Chinese food take-out boxes by computer. Large Star Trek poster on wall to one side.

P4 = Computer & security control room. No people. Very space age looking room with lots of monitors with views of the buildings, courtyard and lobby. Fancy control panel and lots of computer equipment.

P5 = Common room. Large table covered with fantasy gaming pieces; around table five males (all 20s-30s): short Chicano; light-skinned African-Amer.; skinny blond Anglo; chubby Asian Amer.; and tall Anglo with graying brown hair and beard in role of dungeon master. In background, Asian-Amer. female (early 20s) entering room carrying tray of snack foods.

P6 = Interior room. Dark-skinned African-Amer. female with big glasses (12-13); Asian-Amer. male with same big glasses (same age) working together at screen of a Macintosh computer. She’s typing; he’s laughing.

Question III Continues on the Next Page

Question III Continued

Andy, in charge of tenant selection, created an application form he called the “Tech-Noledge-Test” (“TNT”), designed to identify tenants with significant computer experience. The TNT also asked questions that Andy thought were related but less important such as whether the applicants enjoyed games, chat rooms, fantasy novels, and Star Trek. Andy set a minimum acceptable score on the TNT and a minimum acceptable credit rating.

Wesley’s ad attracted lots of applicants. Andy and Wesley together interviewed every applicant who met both minimums. They generally preferred the applicants with the highest TNT scores. However, because they were both going to live in the complex, they occasionally rejected someone with a high score who made them uncomfortable during the interview. In a very short time, all but one of the apartments were rented.

Gloria Mundy is a marketing executive for IBM. Although she knows a lot about the products she works with, she is not herself a programmer. She did not find the Techno-Towers ad very appealing, but she liked the location and some of the features, so she applied anyway. She had the highest possible credit rating and got just over the minimum acceptable score on the TNT. At the time Andy and Wesley interviewed her for the last remaining apartment, they had no other applicants left who met the minimum criteria.

The interview did not go particularly well. Gloria was late because a bus broke down, blocking traffic on the freeway. Wesley kept staring at her, which made her uncomfortable. Andy was irritated that she liked Deep Space Nine better than The Next Generation. Wesley, who, like many in the industry, prefers Macintosh computers, was astonished that she had never owned one and had no interest in getting one.

After she left, Wesley said, “She’s a babe. Way too hot, man. Don’t want her here. Too distracting.”

Andy, who was gay, laughed, and said, “I wouldn’t say the same thing if she were a guy.”

“Don’t want hot guys here either,” Wesley replied. “Too much competition. Anyway, let’s wait a couple days. See if anyone else applies.”

Three days later, they interviewed and accepted a male software engineer who had a much higher TNT score than Gloria and used a Macintosh. Wesley told Gloria they had chosen the other applicant because of the TNT score and the Macintosh, but that they would keep her application on file.

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PHOTO #2 (P2)

PHOTO #3 (P3)

PHOTO #6 (P6)

PHOTO #4 (P4)

PHOTO #5 (P5)

PHOTO #1 (P1)

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