Miami



HOUSING DISCRIMINATION SPRING 2005 FINAL EXAM:

QUESTIONS, COMMENTS & BEST STUDENT ANSWERS

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).

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 1: Comments: This question proved a good test of a number of key skills, including careful reading of the question, careful reading of the statute, the ability to use statutory interpretation tools to make arguments in a particular case, and the ability the make relevant policy arguments. Discussions of legal arguments regarding each exemption and of common errors follow:

Statutory Exemption: The key language of 3603(b) provides that the single-family house exemption applies:

only if such house is sold or rented … (A) without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate broker, agent, or salesman, or of such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such broker, agent, salesman, or person ….

The statute nowhere expressly says that a real estate professional can’t invoke the single-family home exception. Thus, the question raised by the case is whether a “person in the business of selling or renting dwellings” selling a single-family house on his own behalf should be considered to be “using” his own services. As we discussed in class, there are three possible answers: (i) always yes; (ii) always no; and (iii) answer depends on particular actions taken and services/facilities used (as in Babin).

I don’t think there are any very strong plain meaning arguments here. Like the first model answer, you could argue that the phrases “in any manner” and “any person” necessarily include this situation. However, the way we ordinarily speak, we don’t talk of “using” our own services whenever we act.

I think the most important arguments here go to the purpose of the single-family home exemption and of the fourth proviso. If you think the point is to create a zone of privacy, then people in the business might be entitled to claim it just like everyone else. If you think the point is to protect people who may not be aware of the details of the FHA, then you would not allow the claimed exemption. Note that discussing the overall purpose of the statute doesn’t help much when determining the scope of the exemption; any statutory exemption limits the overall purpose to some extent.

You need to be careful here if you follow the canon about interpreting exemptions narrowly. Here, narrow interpretation means limiting the number of circumstances in which the single-family home exception is allowed. As in Singleton, a corollary to interpreting §3603(b) narrowly is interpreting the provisos broadly. Thus, you would read the key language here broadly in order to narrow the application of the exemption.

Non-Statutory Exemption: In addition to the obvious arguments that the court should not create non-statutory exemptions, I was hoping for some extended two-sided discussion about the merits of this proposed exemption (and got very little of the latter). This is not a crazy idea. Many rentals of a primary residence will be exempt under 3603(b) anyway. The exemption will cover only a narrow range of cases where the rental of a residence is not exempt.

I would argue that the modifications are a bigger intrusion on the owner’s property interests than merely having to rent to someone the owner finds undesirable. It then becomes a policy question about whether the owners heightened interests outweigh those of people with disabilities looking for housing. You also could reasonably argue that Congress may have added the reasonable modification provision assuming that transaction like this would mostly be exempt. In addition, the legislative history of the FHAA focuses on ensuring sufficient housing is available; this would be a pretty small exemption.

Common Problems: Failure to Address Each Claimed Exemption Separately: Where there are two distinct issues raised, you need to address them both and you need to keep the discussions separate. Although, like the second model, it is possible to only discuss one issue in the dissent, it probably is better exam-taking strategy to show me arguments on both sides on both issues.

Discussing Issues Covered by the Stipulations: The question asked you to approve or disapprove two possible exemptions. The parties stipulated that N was in the business, so there was no need to discuss that issue. The parties also stipulated that if no exemption applied, that G would be entitled to make the requested modifications. That necessarily means that N has conceded that the modifications are “reasonable” and so the Supreme Court would not address that issue.

Incidentally, the question involves “reasonable modifications” not “reasonable accommodations. On the reasonableness issue, I am fairly certain a court would agree with the stipulation; the proposed changes are exactly the sort discussed in the legislative history and G should have enough money to restore the home.

Treatment of Lower Court Precedent: Many of you treated court of appeals and district court cases as binding. The Supreme Court may choose to approve the analysis in Singleton or Lamb or Hogar Agua, but it doesn’t have to and would probably explain its reasoning if it did. Incidentally, Hogar assumes without deciding that duplexes count as two single-family houses. The discussions in Hogar and Lamb about whether to count the seller’s residence are irrelevant if the residence is the property being put on the market.

Question 1: Student Answer #1: This is a strong answer with a number of useful arguments on each side of both issues. The student remainined tightly focused on the questions presented and used a number of the statutory interpretation tools we studied.

Majority: We Affirm the decision of the COA.

I. The plain language of 3603(b)(1) prohibits the use “in any manner” of sale/rental facilities/services from anyone in the biz of selling/renting dwellings. The FHA creates no distinction or suggests an exemption for people in the biz selling/renting their own homes but claiming not to use their expertise. Reading this exemption as a product of the political community, we read it literally to give effect to Congress’s compromise and thus do not find N exempt.

Significantly, the purpose of the FHA is to provide housing in the U.S. As such, congress intended to create a statute of “teeth and meaning” to accomplish this purpose. Achieving this purpose would be severely compromised if we as judges make a policy choice better suited for the legis. re:application of the exemption to people in the biz.

We find the unpersuasive the dissent’s argument that this decision punishes people in the biz for pursuing that biz b/c it does not allow them to be exempt, even if they do not “use” their expertise. First, it would be unduly burdensome and indeed impossible for judges to discern when/what is expertise v. common knowledge. The dissent suggests drawing the line at use of professional forms. This argument creates a loophole for people in the biz to discriminate so long a they do not use formal forms. Sponsor Mondale intended to plug all loopholes. We would not be carrying out that intent by creating one.

Additionally, deciding where to draw the line, in the absence of any direction or indeed indication that one should be drawn at all, requires unelected judges to make a policy choice better suited for the legis. It does not follow that Cong would create this out of compromise and then expect the ct to interpret it either broadly or narrowly. Accordingly, neither the language or history of the FHA supports this distinction

II. We also reject the District cts creation of a non-statutory/ almost equitable exemption based on the special connection people have w/ their homes.

The plain language of 3603 creates no addt’l exemptions based on such a connection- it is unequivocal and absolute. “Courts should not announce (equitable) exceptions to stat provos that are unqualified by the text of the statute itself.” (Hogar Agua). Even if we were to read the stat as a whole, no language in the FHA supports creating such an exemption, indeed one that would run counter to the anti-discrim. purpose of the FHA.

The FHA’s legis history, particularly the 1988 amendments re: PWDs [persons with disabilities] further strengthen this interpretation. Cong. noted that PWD’s have been denied housing b/c of “misreps, ignorance and outright prejudice.” thus the ’88 amendments evidence a “nat’l commitment to end unnecessary exclusion of PWD’s from American mainstream.” Allowing N to be exempt to the reasonable mod provision would thus be “inappropriate” (Ct.App.) and present an add’l barrier to the protection and integration of PWD’s that the 88 amendments sought to accomplish.

The dissent’s argument that Congress could not have intended this result is w/o support. While people may have special connections to their homes (lived in or to be lived in), that special connection must yield to the FHA’s command: America’s policy of non-discrim and integration in housing. Taking the dissent’s position to its logical conclusion, moreover, would allow anyone who has once lived in a house or intends to again in the future to prevent reasonable mods for PWDs b/c of a “special connection”

We do not decide whether on different facts (ie. reasonableness of mod; length of tenancy) this outcome could be different.

Dissent : Because I believe the majority has misread the language and misinterpreted Cong. intent I respectfully dissent

I. The majority’s reliance on plain language & its literal interpretation of 3603 is misguided. Indeed, the “easiest way to misread the stat. is to read it literally.” Thus, moving congressional intent and legis history, it cannot be said that Cong intended or that the FHA was designed to punish people in the biz for pursuing the biz. Yet this is exactly what the majority interp does.

First, we need to consider that the drafting congress was that of 1968. At that time, it was much easier to determine whether people used expertise b/c they were in the biz. Today however, people in the biz are not at distinguishable-some do not go to formal schooling or some just read up on the topic and are casual sellers. Due to this difference, interpreting the FHA as the maj. has done freezes it in time and fails to see the reality of the biz.

Moreover, the Majs argument re: lack of standards is w/o weight. While it may be difficult, it is not impossible. We could draw the line at use of formal forms. Simply b/c some one is in the biz does not mean that they by necessity use their expertise in everything. In this case, especially, there is no indication that N used his expertise from his apts. re: his NY house. As such, he should be exempt.

II. The majority, in interpreting the FHA as a product of the political community does a good job of the “machine method” manner of interpretation- they input the bare facts and get a result. In doing so, they eliminate/overlook the human side/concerns of the issue. There is no doubt that people have special connections to their homes. Altering the home, esp. when they have lived in the home before or intend to again damages this connection-people id w/ their homes- it’s a part of them.

The maj overlooks the fact that this exemption created by the District ct involves renting, not selling. The distinction is meaningful- when one rents they retain not only title but an emotional connection w/ the home. Where as if they sell, they lose title and with it control over allowing mods. Congress could not have intended this loss of control to apply to renting and owning w/o distinction. B/c the ct misreads the stat and cong. intent/ purpose, I dissent.

Question 1: Student Answer #2: This answer is particularly strong on the non-statutory issue in the majority and the statutory issue in the dissent.

Majority: This case presents two important issues relating to the statutory interpretation of the FHA exceptions. In analyzing a statute, courts usually look at the text first to see if its clear on its face and it should be given effect. If not clear, then the text or words in question should be interpreted in their ordinary meaning, unless it is apparent from the legislative context that it was intended to have a technical meaning. Beyond that, if still unclear, can go on to the purpose and structure of the statute, to the legislative history, if any, and lastly, can use the canons of construction. It is important to keep in mind as we examine the 2 exceptions at issue here that FHA is a remedial statue and as we recognized in Trafficante, the language of the FHA is broad and inclusive, so that statute should be read broadly to further its goals. In light of this broad remedial purpose to prevent racial discrimination in housing, we recognized in City of Edmonds that exceptions to the statute should be read narrowly.

I. The Court of Appeals’ holding as to 3603(b)(1) in this case seems to go against the 6th Ciracit’s interpretation in Babin, where the Court there allowed a RE agent that otherwise met the requirements of this smallholder’s exemption to claim it despite being a professional in the field b/c she did not use the facilities or services of her RE employer and did not earn a commission on the transaction (neither did her employer). Aside from her personal knowledge, which the court did not deem enough to fall under this clause, she in fact did not use any RE services/facilities.

The language in this section has latent ambiguity and so it is helpful to interpret it in light of its justifications. This exception is the product of political compromise (Blatt), so it should be interpreted narrowly and literally. The underlying justification seem to be to exempt small scale incursions into the RE market by unsophisticated owners/sellers/lessors. Congress was willing to take such small scale transactions at of the scope of the FHA if met stringent conditions so as not to bog down the Courts w/ litigation and to ensure that “bigger fish are fried”- i.e. the larger-scale participants of the market. It was also a deal that would exempt themselves (since some owned summer houses, etc.) which is reflected in the legislative history. Therefore, the interpretation of this exemption should be narrow and should not be applied if the underlying justification is probably not powerfully present.

In this case, NN operates several large rental complexes, so he is a sophisticated and knowledgeable as participant in the RE business. Therefore, we affirm the holding of the Ct. of Appeals in so far as it implicates the “use in any manner” “of such facilities or services” of a person in the business of selling and renewing dwellings. This is a limited holding, not as broad as the ct of appeals, b/c it would not preclude the case of an independent RE agent, such as the one in Babin who had only 2 SFH homes. [This distinction could be explained better]

II. We affirm the Ct. of Appeals holding that there is not non-statutory exception to the RM provision of the FHAA. Equitable (or non statutory) exemptions to a broad remedial statue should not be so easily read (see Hogar Agua), particularly when there is no or contrary leg. intent to this sort of exception. When Congress passed the amendments relating to disabilities, it expressed a clear intent to eliminate barriers to access and enjoyment of housing by persons w/disabilities of all kinds. In its committee report, it even lists examples of what kinds of reasonable modifications were contemplated and there include many of the ones the plaintiff is seeking here (e.g. grab bar, widening of doors, ect.).

We are of the opinion that the amendment’s language itself and the reasonable interpretation of that language by the lower courts sufficiently protect the homeowner/landlord. Specifically, a reasonable modification is not to impose undue administrative or financial burden on the landlord and Davis goes further to include in the test the notion that a reasonable standard protects from fundamental alterations to the program or housing (the context), This protection from fundamental alteration in the requirement for reasonableness of modifications sufficiently protects a landlord in the extent of changes to the character of the home b/c it’s a factor and evidence that he can point out to the court as it balances the compelling interests. Therefore, we also reject the District Court’s grafting of an exception that is simply not supported by the plain language of the statute, the remedial goals of the FHA, the legislative intent, and is not necessary given the reasonable interpretation of 3604 (f)

Dissent: I write to express my disagreement w/ the Court’s opinion as to the interpretation of the 3603 exemption. If the Babin RE agent is to be protected under this provision, I see no reason why an apt. complex operator should not be exempt as well when he is in the context of selling personal property (not rental units as part of his business). If the RE agent’s personal knowledge is exempted in the narrow context of a personal property sale w/ out commission, then NN’s should be too. The distinction of large scale vs. small scale business involvement should not be controlling.

Furthermore, I disagree w/ the majority’s characterization of the purpose underlying the exception. The true justification behind the political compromise (in that we agree) is to exempt a small sphere of personal privacy and choice, regardless of your occupation PROVIDED that you meet all other strict requirements, such as no more that 3 SFHs, no use of RE brokers/agents, etc. This is further supported by distinction that some lower courts have made between duplexes and SFH (see Lamb). If duplexes don’t count, then apartments should not count either.

Lastly, I agree w/ the majority that no equitable exception should be grafted onto 3604(f). It is simply not supported by the plain language of the statute. In addition, NN would not needed b/c under the reasoning I explained above this matter would be exempt otherwise.

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.

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 2: Comments: This proved to be the hardest of the three questions and, in retrospect, I might have deleted the second sentence of §3602(s). Many of you apparently left this question for last, because you didn’t write very much. This meant that those who did solid work on this question tended to pick up a lot of ground. Like Question I, this was an effective test of whether you had mastered some basic skills and whether you understood how the statute works. For purposes of grading, I divided the problem into three sections (Inclusion/Definition of Occupation; Exceptions to Occupation; Post-Acquisition Claims) and rewarded people who did technical adjustments to each and who provided pro and con arguments about each.

Inclusion/Definition of Occupation:

Adding “Occupation” Many of you did a solid job laying out the basic arguments for and against adding a new category and noting that it would be helpful to have more information about the frequency of this form of discrimination. Common concerns:

• Many of your discussions of this suggested that the FHA’s list of characteristics is illustrative. That is deeply wrong. Nothing in the federal cases suggests this. Similarly, a few of you suggested “occupation” was already protected. It is in some jurisdictions like Wisconsin , but not in Indiana or in the FHA.

• Many discussions suggested that, in addition to the definition, we needed operative provisions to explain what causes of action would be available. However, adding “occupation” to the lists in the other provisions creates all the causes of action that are now available for race, sex, etc. (Special kudos for the couple of you who noted that §3617 doesn’t have a list of characteristics, so it needs no amendment).

• Many of you suggested that “occupation” didn’t belong on the list because it is a choice. Be careful about relying on this kind of argument. “Familial Status” and “Religion” are also choices. It is not clear that the line you want to draw is about voluntariness. Should we protect eye color or pyromania simply because they are involuntary? Should we say that choosing to work for the IRS represents assumption of the risk of harassment or is an immoral choice that deserves punishment?

• Some of you suggested it was a bad idea to add the category because landlords would be unable to evict rock stars who practiced at 3:00 a.m. or dog breeders who filled their apartments with terriers. It seems likely to me that courts will find that evictions because of excessive noses or noises are not “because of occupation.” You can’t evict someone for being a dog breeder but you can evict anyone who refuses to abide by legal pet restrictions.

Definition: “Occupation” means a lawful way of earning income or making a living. Useful substantive concerns here included whether non-profit activities and volunteer work ought to count and whether past and future jobs would be protected. The most common technical question was whether the two phrases in the definition were redundant. Be careful when rewriting about your choice of words. Some people substituted “career,” which might be read to exclude some part-time or short-term jobs.

Some common substantive concerns involved the inclusion of “lawful” as a modifier. Some of you were worried that people (usually prostitutes) shouldn’t suffer harassment from their occupation even when it is unlawful. This is quite charitable, but especially because the amendment will protect people from discrimination in selling and renting as well as harassment, it’s politically unlikely. Landlords are going to want to retain the right to exclude potential tenants who are professional criminals and Congress is unlikely to vote for the “Protect-the-Drug-Dealer” amendment. By contrast, some of you suggested it was unnecessary to include “lawful” because it was implicit. I think you’ll need it to stifle the same kinds of potential Congressional objections.

Exceptions to Occupation: 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.

Technical Changes: You might sensibly put this into one of the sections dealing with exceptions and restructure it into two clearly separate parts (see first model answer) and replace “jobs” with “occupations” for consistency. Recurring concerns:

• Some of you suggested deleting “on the basis of occupation” as redundant. By doing this, you will have a very large effect on the statute. If it is “not discrimination” of any kind “to apply neutral policies with a disparate impact on some types of jobs,” then race and national origin claims based on these policies would be free from legal scrutiny.

• Many of you suggested this passage was too confusing to deal with at all and then deleted it without further discussion. This is bad test-taking strategy; you should at least guess at what the passage is trying to do and discuss your best guess. Moreover, you should be able to parse this sentence. We looked at Wisconsin provisions that were in this form; it is not particularly hard to follow if you work through it carefully.

Consideration of Income: The concern here would be that a landlord or lender that refused an applicant for having low income or poor long-term prospects might be subject to claims that the basis for the denial was occupation. Although as some of you noted, a court might distinguish between the two rationales anyway, this provision makes clear that Congress does not mean to limit legitimate concerns about an applicant’s ability to make rent or mortgage payments. I included future income to make clear that landlords and lenders can use information about future earning capacity in addition to present take-home pay. This might be important if someone has a job that has a limited term or has a guaranteed pay increase coming in a few months.

Neutral Policies: This was the phrase that gave people the most trouble. The point was to eliminate the disparate impact cause of action for occupation (no cause of action where a neutral policy has a disparate impact on some (one or more) occupations). Many of you wanted to provide definitions of neutral policy and disparate impact. I’m not sure this is necessary for these well-established terms of art.

Most of those students who saw what the provision did had trouble seeing why you’d want it. I see three arguments. (i) Almost any neutral policy is likely to have a disparate impact on some jobs. You could be litigating this a lot. (ii) You will often have a hard time reaching sufficiently large numbers of any one job to do statistical analysis. (iii) Occupation discrimination probably isn’t a sufficient social problem to require this intrusive remedy. The counter-arguments are the usual arguments in support of any disparate impact claim.

Post-Acquisition Claims: “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.

Technical Changes: commonly raised points included:

Editing “Privileges of sale or rental of a dwelling”: This is the precise phrase used in 3604(b) and (f); if you change it here, then the definition does not connect back to the statute and is useless.

Deleting “as used in §§3604(b) and (f)(2)” The phrase is unnecessary; other definitions do not provide this type of cross reference.

Replacing “includes” by “means.” A number of you argued consistency with the rest of the statute required this change, but I disagree. 3602(c)(d)(e) & (i) all use “includes” to indicate that the defined phrase means the terms that follow and other things as well. That was what I was trying to do here. In any event, whichever word you use should be changed so that the verb matches the plural subject, “privileges.”

Rewriting the long awkward phrase beginning “while living.” Certainly this sentence needs help and some students came up with nice elegant replacements (see both model answers). Some concerns:

• You need to be careful about deleting the “while living in” language; a major purpose of the amendment is to make clear that you have enforceable rights after moving in.

• You may not need to include the reference to harassment because 3617 will cover interference with the right to enjoy your property once it is made part of 3604(b).

• You particularly do not want to define the phrase to mean only harassment because that would eliminate coverage of other services provided with the housing (e.g., pool, laundry, weight rooms, etc.)

• The phrase “quiet enjoyment” is not a good choice here; it is a term of art in Property law that generally refers to interference with title or possession, not simply making the resident unhappy.

Adding Definitions: Many of you wanted to add definitions of “enjoyment” and “harassment.” While it would be plausible to do so, you might at least consider leaving the terms to be fleshed out by the courts. For example, there already is a sizeable body of law about the meaning of harassment. If a court doesn’t see a statutory definition, it likely will just follow this precedent.

Coverage of Post-Acquisition Claims: As we discussed in class, courts have split about the availability of FHA remedies for post-acquisition discriminatory acts (PADA). The purpose of this part of the amendment is to clarify that PADA are covered. Incorporating the relevant language into §3604 (b) & (f) ensures that this change occurs for all protected characteristics, not just occupation. The better answers gave me some pro and con aimed specifically at the coverage of PADA.

Scope/Definition: Some of the better answers noted that the amendment could make clear who can violate this provision and particularly whether landlords and condo boards are responsible for harassment by other residents. Others suggested making clear that the provision applied to common areas as well as the dwelling itself.

Several students noted possible First Amendment problems. This concern certainly would justify careful drafting, although I don’t think the concern is greater here than it already is for 3617. It also is not common to put limitations expressly referring to the Constitution in the statute itself.

General Common Problems: Failure to provide supporting reasons: On this kind of question, students need to provide explanations for rewriting the statutory language. If I don’t agree with the rewrite, I can give some credit if I can see what you were trying to do. Similarly, when you argue that a proposed provision is “inconsistent with the goals of the FHA” or “creates line-drawing problems,” you need to provide more explanation.

Arguments Inconsistent with Amending the Statute As I have noted in the past, when you are amending the statute, you usually are deliberately changing what it does. Thus, arguments that the amendments are inconsistent with earlier legislative history or intent or caselaw are not particularly helpful. Instead, you should argue substantively about whether those changes are a good idea. Similarly, saying that the amendment creates line-drawing problems is not very persuasive. The job of the legislature is to draw lines. Thus, the answer to “If you allow occupation, where do you draw the line?” is “Right where the amendment says; it adds occupation and nothing else.”

Failure to Take Account of Existing Statutory Language: Some of the language in the amendment comes directly from the existing statute. Although you should generally avoid passive voice, where an existing statute like the FHA is already passive, you should treat using consistent language throughout the statute as a higher priority.

You also need to be careful to use terms consistently. E.g., “dwelling” may seem vague, but it is what the statute repeatedly uses and it is already defined. Replacing “dwelling” with a word like “tenancy” may unnecessarily limit the amendment (by not covering owners).

Recurring Minor Concerns:

• Some of you have way too much concern with frivolous lawsuits. Anytime you add causes of action, you will attract some questionable lawsuits, but there’s not a lot of evidence that, e.g., the 1988 Amendments led to a rash of frivolous suits. It’s not all that plausible that there are hundreds of people laying in wait to bring questionable harassment lawsuits as soon as the amendment is passed.

• It is hard to use Blatt on this kind of question (although see second model for one reasonable argument). Most importantly, you don’t yet know what process will be used to pass the amendment (if it passes at all). There might, e.g., be extensive compromise and negotiation, which would place in the Political Community, but you can’t know that yet at this stage.

• Some of you rattled off a list of irritated questions about the amendment: “Does it do this? Does it do that?” Although you can raise some useful points this way, I don’t find it an effective technique for this type of question. You have the statutory language and you have experience in how statutes are interpreted. Look at the language and make arguments about how it will be read. If you can’t tell, say so, and recommend language to fill the gap.

Question 2: Student Answer #1: This answer contains the strongest discussion of the technical concerns as well as some solid two-sided discussion of the substance.

Language Δ’s I would make to 3602(s): I would define “occupation” separately, in its own section; using “However” at the beg. of a sentence of a statute seems very odd. I would drop it out. I would also separate the 2 exceptions so the statute is easier to read. I also Δ ‘d “types of jobs” to “occupations” to maintain uniformity:

1)”Occupation” means...

2) It is not discrim on bais of occ.:

a) to consider present or future income level, or

b) to apply neutral policies with a disparate impact on certain occupations.

Language Δ’s I would make to 3602(t): I would make the first section shorter by removing the references to 3604(b) and f(2), so long as Waffle is meaning to apply this definition to the statute in general; mentioning the specific sections is otherwise redundant. The draft clearly is trying to stay open-ended about what rights are included by both “privileges...” and “enjoyment.” The statute would flow a little better if it instead read,

privileges ... include the right to its enjoyment while living there. Enjoyment includes the right to not be harassed.

Pros of 3602(s)-substantive: It is an honorable goal to want to protect more people against housing discrimination. Certain jobs, like IRS agents or lawyers (see Kramarsky) are unpopular, and without protection some landlords may deny housing to unpopular jobs.

Cons of 3602(s)-substantive: By adding protection to occupations of the FHA, there is a risk of diluting its importance. Are people with certain jobs really having problems finding housing? Propriety’s story, while heartbreaking, is likely nothing more than an anecdote. By elevating jobs to the level of familial status, race, and handicap, the FHA loses its original purpose: to help those who are having a difficult time finding housing get homes, and to end segregation/promote integration. Also, given HUD’s budget, it’s in society’s interests for them to spend their resources where they are most needed: race, family etc.

Pros 3602(t)-substantive: Clearly, a right to get housing under the FHA is useless without protection once housing is obtained. In some post-acquisition cases it is difficult to prove to a court that your right to enjoy property is being damaged, short of firebombing (see Gourlay, Dicenso). Rather than hoping a court reads 3604(b) broadly, this would ensure a right to post-acquisition enjoyment.

Cons for 3602(t): Creating a post-acquisition cause of action would likely become a catchall for any neighbor disputes. (Gourlay). Also, this cause of action arguably already exists, so amending the FHA is unnecessary and redundant. Koch said the plain language of 3617 allows post-acquisition/occupancy claims. If a claim fails the severity/ pervasive test (Shellhammer) then its not an FHA right that is being violated and Π should use criminal/civil remedies.

Substantive changes.-3602(s): I would not have this amendment be for occupations. I would advise Waffle that protecting jobs rather than sexual orientation, which has a very established history of discrimination, is a slap in the fact to gay people. I agree with not allowing a DI claim if the amendment stays for occupation, because it would likely be too similar to an economic DI claim, which would penalize too may neutral policies (monthly maintenance fees, etc.)

Substantive Δ’s to 3602(t): I think this amendment needs more specificity that I’m not exactly sure how to achieve. “Harassment” is a broad word that describes a lot of behavior. Sometimes, harassment may even be called for (not mowing your lawn, etc.)- it just matters what degree of harassment one uses. Something along the lines of “threats, intimidation, coercion” would probably work, as these words encapsulate more aggressive behavior than mere “harassment.”

Question 2: Student Answer #2: I thought this was one of the strongest answers in terms of the pros and cons and it also makes some solid technical suggestions. Choosing to begin by laying out the student’s understanding of the puroposes of the various provisions was a sensible choice. In this case, the student’s understanding of those purposes was precisely what I had in mind.

After reviewing the proposed amendment of Rep. Propriety, I have a few concerns regarding the legal, constitutional, and policy implications of this legislation. The amendment also contains serious structural and substantive weakness that need to be addressed. I will discuss each in turn

A. Purpose: It is difficult to ascertain the purpose and objective of the amendment because the provisions are currently structured to have multiple functions that will make confusion. For the puroposes of the memo I assume that the objectives of the amendment are as follows:

1) To prohibit discrimination on the basis of occupation to the same extent as the other protected characteristics

2) To clarify congressional intent that the FHA does protect post-acquisition discriminatory acts.

3) To allow the following exceptions for discrimination on the basis of occupation

a) If decision was purely based on income as opposed to occupation

b) Neutral policies w/disparate impact on some occupations

B. Arguments in favor of the Amendment

1) Within the spirit of the FHA. By proposing an amendment that will afford protection to more people, Rep. Propriety is acting in congruence with the policy of the FHA “to provide, within constitutional limitations, for fail housing throughout the United States.” §3601. Such policy also includes the right to hold and enjoy one’s dwelling, as evidence by Sen. Mandale’s first proposal of the opening section which included “occupancy” as a protected right. (Koch)

2) Intolerance of Harrassement. This amendment also captures the essence of anti-discrimination legislation, in that acquisition is worthless without the night to enjoy and occupy after such acquisition. By broadening the scope of unlawful activity, Congress is sending a strong message of intolerance of harassment and other discriminatory conduct.

3) Flexibility of FHA. The FHA should charge and adapt to new problems in modern society. In the even that a new form of discrimination is prevalent, the FHA should quickly address this threat to fair housing policy.

C. Arguments Against the Amendment.

1) Response to public outcry. Generally speaking, legislation that was enacted in response to public out cry tends to be a problem for future courts and legislatures. In the passionate feeling of injustice, the legislature produces sloppy, unchecked legislation. I fear that this may be an example of such legislation. Perhaps a revisit to this issue in the near future would produce more balanced, logical thinking or even prove that such legislation was unnecessary. Moreover, there is no evidence to date that the unfortunate incident in Fort Wayne was a prevalent occurrance sufficient to warrant a federal amendment. This may just have been a isolated incident.

2) First Amendment conflicts. By expanding the scope of 3617, there may be conflicts with free speech. A broad interpretation of “interfere” may constitute unconstitutional content-based regulation of speech. (see McDermott)

3) Other general concerns. By adding a new protected class, this amendment may open the floodgates of litigation into our federal court system. We need to be cautious before we impose such a hinderance of judicial economy. There are potentially scores of occupations, attorneys included, that people do not like an express their distaste for.

The basis of occupation itself is problematic in that it is relatively mobile unlike some other protected characteristics like race and disability, a person could potentially flow in and out from under FHA protection with each new occupation change. Although not a hard & fast rule, congressional intent suggests a somewhat permanent quality to the protected characteristics.

There is also fear that by adding to the list of protected characteristics, you are potentially detracting attention from discrimination based on the other characteristics that may be more damaging to our society

D. Drafting changes

1) 3602(s): should include only the first sentence. The rest of the provision is inappropriate in a definition section.

2) 3602(t): Remove “as used in 3604(b) and (f)(2)” This is to make the provision consistent with the rest of the section, which generally do not enumerate where the word or phrase is found.

3) “Income provision” in 3602(s) belongs in section 3603 or 3604, if at all. If income is not considered discriminatory, then there is no need to include it. However, because many would construe one’s occupation to be inextricably liked to one’s income, a more proper place for this sentence would be a new section (d) in 3603. I would redraft the sentence to read:

Nothing in §§3604, 3605, 3606, or 3617 shall apply to considerations of present or future income.

This sentence effectively and concisely removes income from FHA protection.

4) Elimination of disparate impact clause: The purpose of this clause is extremely ambiguous and will only create massive interpretation conflicts. First of all, the application to “same jobs” is totally unacceptible. Rep. Propriety must make clear what occupations he intents to allow disparate effect for. Once the listed occupations are clear, this provision also belongs in the exemptions section 3603. It is crucial that we determine the scope of the exempted disparate impact, otherwise it could eat a hole through the statute. Therefore 3603(e) should include subdivisions providing qualifying language to limit the scope of this exemption.

5) 3602(t) can be redrafted to read:

Privileges of sale or rental of a dwelling includes the right to use and enjoy a dwelling.

The harassment clause is unncessary because 3617, which prohibits harassment, automatically covers any rights enumerated in 3603-3606.

6) Limiting “occupation” only to 3617: Because there are substantial concerns with introducing an entirely new class to the FHA. Perhaps the addition of a protected class should be limited to 3617. While it could be confusing to have an additional protected in only one section, I believe this would be the type of compromise necessary to ensure the amendment’s passage into law. By adding “occupation” just to 3617, the amendment gives the same effect to prohibiting the conduct found in Fort Wayne. Thus, Rep. Propriety’s narrow purpose would have been fulfilled and the amendment is narrowly tailored enough to gain bipartisan support.

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.

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.

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 3: Comments: This question was designed to see how well you could use the facts of the problem to make legal arguments. However, many students laid out legal standards at length without spending much time applying the standards to the facts. On an open book test, this gets you very few points. The other most common problem was failure to recognize that there were serious arguments on both sides of each issue. Despite repeated warnings that every major issue would be contestable, most of you treated at least one major issue as an easy winner for one side. This was such a pronounced trend that, during my second reading of your answers, I started keeping track of how many students argued both sides on each issue. The totals are included in the discussions of the major issues below.

3604(c) Violation: On this question, about 60% of you were pretty certain that the ad violated the statute, about 15% of you were pretty certain that it didn’t, and about 25% seemed to see serious arguments on each side. All of the model answers do some nice work on this issue.

The question was intended to solicit a discussion that almost none of you included. I think that some of the images and text are probably sexist. But, as I said in my write-up of Assignment III, that isn’t the same thing as indicating that women are unwelcome, which is what the statute really bans. I had hoped some more of you would more directly discuss whether a woman would feel like they didn’t want her living there.

The question contained lots of factual detail about the ad and I heavily rewarded people who used lots of the details to make arguments and punished people who explained the relevant legal standards in more or less detail, but didn’t spend much time discussing the application to the facts. I also rewarded:

• Discussing both text and pictures

• Discussing the significance of where the ad was placed

• Arguments that the result might turn on whether the court adopted the ordinary reader test or the ordinary female reader test (as opposed to noting the two tests without any explanation of why the choice of test affected the result.)

3604(a) Violation: I apparently did the best job designing this part of the question because roughly 1/3 of you were pretty certain that A&W violated the statute, roughly 1/3 were pretty certain that they didn’t, and roughly 1/3 saw serious arguments on each side. Again, I was looking for more energy spent discussing the facts than simply stating legal principles. There were lots of facts here to use in your arguments.

For those of you sure you saw discrimination, consider the following:

• A&W invited GM for an interview even though she was female

• They live in the complex, so more reason to care about personality

• They had rejected people w passing TNT scores before for personality issues

• W said he would treat hot men and women alike.

• No strong evidence that they wouldn’t have given her the unit if the better candidate hadn’t shown up.

• Mac Use might matter for use and interface with some of the computerized functions of the complex

• Might use TNT & Mac as an excuse because they didn’t want to say “we don’t like you.” That wouldn’t violate statute.

For those of you sure that there was no serious evidence of discrimination, consider the following:

• In their discussion, A, who is in charge of tenant selection, says he would treat hot men differently than W treats hot women.

• There is some inconsistency in their stories. In their discussion, they never mention the reasons for rejecting her that they tell her later. When they speak to her, they don’t mention hotness, lateness, nor any of the personality discomfort issues that might be present.

• They hold up her application for three days even before they know a better candidate is available.

• A non-geek jury might not that you’d reject an applicant b/c of computer selection.

• If G’s awkwardness in the interview stemmed from Wesley staring at her, that might be treated as parallel to harassment.

• She shouldn’t be blamed for lateness that is due to unusual traffic problems.[1]

Common Problems:

• There is not a lot to discuss under the McDonnell Douglas prima facie case. A&W could argued not qualified, but she was good enough to get an interview. They could argue not rejected, because she was put on the wait list, but the complex just opened, is full, and has one year minimum leases, so she’s not getting in off the wait list any time soon.

• Under the second prong of McDonnell-Douglas, any non-discriminatory reason is legitimate, even if it seems silly. Its implausibility will come into play during the third step.

• Extensive discussion of the two versions of mixed motives analysis also was not a great use of time. You can note the small difference it makes but not worth a lot of energy.

• Mixed motives analysis is triggered by a finding of fact that the defendant had both a legitimate and a discriminatory motive, not by the mere assertion of more than one motive.

• The Rizzo factors apply only when the defendant is a government entity.

• Many of you downplayed or ignored the discussion between A&W because she wasn’t in the room to hear it. This is bad test-taking strategy; if I give you “facts” use them. It also is bad lawyering. You can find these things out in depositions; remarkably often, witnesses tell the truth about what happened. E.g., both Cato and Sorenson include important evidence of statements made out of the hearing of the plaintiffs.

• Many of you made statements that suggested you knew exactly what was going on in the defendants’ minds. You can’t possibly have that knowledge without a Vulcan mind meld. All you can do is draw reasonable inferences from the evidence you have.

Unruh Act: This part of the question required you to apply the standards from Marina Point to the two different criteria that W claimed they used to reject G. 60% of you were pretty certain that both criteria violated the statute, roughly 20% were pretty certain that they didn’t, and roughly 20% saw serious arguments on each side. Although I think the arguments regarding the two criteria are not the same, only two of you thought that the outcome would be different for the TNT than for the Macs, although quite a few students analyzed the two separately and got rewarded for doing so.

Important Arguments:

Landlord’s Legitimate Interests v. Generalizations/Stereotypes: To the extent Mac use is necessary to interface with the building’s services or TNT indicates ability to utilize those services they’re probably OK, although TNT seems to contain some questions not relevant to that sort of issue. In addition, A&W live in the building and surely get to exercise some discretion about who they want to live with as long as they don’t use generalizations and stereotypes to do so. A court might decide TNT combined with the interview provides relevant info about compatability. Hard to see, however, that Mac use is correlated to compatability unless you rely on stereotyping.

Availability of Housing: Marina Point turns in part on difficulty obtaining housing for families with children. Seems very unlikely that people without Macs or with low TNT scores will have similar concerns.

Specialized Housing: Marina Point leaves open the possibility of allowing otherwise arbitrary discrimination to create “housing for special classes or purposes.” You could discuss here whether the “techno-geek” housing is the sort of thing the Cal. S.Ct. had in mind.

Common Problems:

• “Arbitrary” has a different meaning in Marina Point than it does in federal constitutional law (where it means something like “totally without rational foundation.”) Marina Point concedes that it might be “rational” is a constitutional sense to exclude families with children; on average they probably cause more disturbance and damage. Doing so is not “arbitrary” in a constitutional sense, but the court holds it is arbitrary when interpreting the Unruh Act because, for that purpose, you cannot rely on generalizations.

• Several of you argued that to be protected under Marina Point, the characteristic in question has to be involuntary or immutable. Nothing in the case says that. Moreover, Cox, the case relied upon, involved protection of people wearing hippie-type clothing, which is clearly a voluntary characteristic.

• The question specifically asked you to analyze just the TNT and Mac claims under the Unruh Act. Any discussion of sex discrimination or attractiveness was beyond the scope of the question.

Question 3: Student Answer #1: This was the strongest answer in the class. Although it’s a little rambly in places, it received 103 checks, and contains very solid two-sided discussion of the three major issues and good use of both facts and cases.

Sex Discrimination 3604(c) -Need to look at Hunter and Ragin first of all see if advertising indicated a preference for male and discriminate against females; you would need to use the ordinary reader test. Her you could use the ordinary reader test, the ordinary reader for protected characteristics, or the ordinary reader for the computer and Tech Magazines. Also, you may say that it indicates a preference in the places you publish. Ragin states that you need to look out the specific ad campaign of this development, also the ordinary reader is not the over-sensitive reader. Which may be saying that the ordinary reader of protected characteristic may be oversensitive. 100.75 does not allow cherry picking for ads but as stated earlier this may be found in 3604.

The text is a problem. I think the ordinary reader of PC (protected characteristic) and ordinary reader of magazines and ordinary ordinary reader would find text is geared toward geeky males and tends to exclude females. Ball field, beat up at gym class, porn, tends to be male geared. I think the text for check out techno-towers is fine. In a way the complex itself is more geared toward males with computer gaming and programming cause not many women are in the field. However, you could state the nature of the complex without including such obvious words that are geared to males as those stated above.

The ads with no people are fine except that you may argue that the furniture and star trek posters are male oriented The colors and furniture may be more geared to male taste than female. Science fiction and such have more male readers I think. Computer equipment and such sometimes scare females cause our society tends to be geared at not promoting women in math and science.

The female in pic 5 might work here and seems subservient in bringing the men food. Also the woman typing and guy laughing shows woman as subservient. However, to the ordinary ordinary reader this may just look like a place that wants geeks male or female considering the female has big glasses. Also, the ordinary reader of mag. would probably be male and use to those ads. The fem. ordinary reader may not take this as a place excluding females but a place that is just not geared to typical female interest or ideas of inferior design, she may not feel excluded but just feel that this community does not promote her idea of a great time.

The ads being placed in a high tech and computer mags may indicate a preference for males if you look at the reading statistics. You are allowed to gear toward groups in other areas but not housing. However it maybe a waste of time for the place to advertise in other places cuase many people may not have those interests. Also how big or how many ads need to be placed in other areas to make opportunity to live at this place fair. Claim against A&W will likely succeed.

Intentional Discrimination: Direct Proof = direct eveidence/circumstantial evidence. Here the direct proof of discrimination maybe that they said she was too hot. However this goes to her looks not that she is a female. Also, that would be distracting, you do not know if that goes to he being a female in general or that she was just too hot! However, the guy also said that they would not want hot guys because that would be too much competition. This may be a uniform policy that attractive people are just not wanted whether they are female or male. I think it would be hard to prove this case on direct proof.

McDonnell Douglas burden shift: Stolen from Title VII the elements are.

1) Protected class-she is female, gender is protected

2) applied-took TNT test and submitted credit

3) qualified-had above minimal TNT test and good credit

4) denied-housing not given to her

5) remained open and went outside class-this is not necessarily needed under Cato but here the apt went to a male software engineer with higher TNT score and used a macintosh.

Now it is time for D to give a legit reason for denying apt to Π. The Ds (A&W) would say that they denied G because she did not have values needed for apt: she did not like Next Generation, not mac owner, and not high TNT score.

Now, G still has the burden of proving intentional discrimination occurred. She must prove that the reason for rejecting her from apt was a pretext and gender was the reason. You would have to see if star trek, TNT, and mac policy were uniformly applied and see how may people did not own macs or had low TNT score. Need to see how many females actually live in the complex. Are the star trek policy and mac policy written down instead of fly by night. I assure only TNT and credit is written down. Also, see about “attractiveness policy”! Again is it that she is female or no hot people allowed.

After this if a mixed motive is found it is questionable whether G will win. If go by title vii standard then price waterhouse was overruled and if improper and proper reason for denying housing is found then Π could get declaratory relief, some injunctive relief, and cost of atterney’s fees but not damages or apt. Whole idea, if landlord would have made decision to deny housing anyway regardless of improper reason, the Π gets to recover something to encourage discrimination claims to be brought to court. However, if titleVIII is not like title VII and price waterhouse standard is still intact and D proves that would of made decision regardless of improper reason Π loses. I think it is questionable whether G will win. There is evidence that Gloria was not intentionally discriminated against due to gender.

Unruh Act/Marina Point: The point of Marina Point is to prevent exclusion of an entire class of individuals based on generalized predictions as a whole. To be denied housing, it should be based on individual conduct and not generalizations. Basically: No Arbitrary Discrimination. Another point of Marina is to be able to deal with changing times and to be able to provide people with housing when they are being denied.

The TNT test may be thought of as individualized conduct because shows how much interest you will have in apt. complex. It predicts interest and possibly individualized conduct. However some people are bad test takers and people who apply in that apt complex are obviously interested in living there. Also the mac users may have common interest & people who buy macs may share similar characteristics and behavior. However this is a generalization of what people will get like who buy macs and so is against Unruh act. In same way, test can be against Unruh cause it makes generalizations on how people will behave on test score and not on individualized conduct like the LSAT. However the interview may help get around these problems cause people interview who meet minimum. A&W ask about mac ownership and other hobbies and interest to decide if personality will fit in.

If you want to take Marina Point literally, these things may be arbitrary but Marina had to do with children not be able to live in homes and facing homeless families. So although non-mac and TNT maybe thought of as arbitrary, I am sure these people don’t have problems finding housing elsewhere. I think the TNT score and mac may both violate Unruh but I think Unruh was meant to cover discrimination that was a problem in society. Some special communities with special interests should be allowed, people should be allowed to choose who they live with if there is not a huge shortage of housing in society.

Question 3: Student Answer #2 (Advertising & Denial only): This answer does a very good job making use of lots of the facts on the two issues presented here. In addition, on both issues, after laying out arguments for each side, the student usefully tried to assess which set of arguments was stronger.

COA#1: 3604(c) based on sex: Π’s Argument

1. Plain Lang: By looking to plain lang of statute, it says “making, print, publishing...is unlawful.” Wesley and Andy (WTA) made and published this as and it indicates a sexual preference for male tenants.

2. Ordinary Reader (OR): Ad violates statute if suggests to OR preference/disprefrence for protected category (Ragin, Hunter). Look at text first; “techno geeks to feel at home,” porn reference, ball field reference, trouble getting dates—these are all things typically related to male thoughts, feelings or activities. Even though, for example, one may argue that females like porn too, it is not an issue discussed publicly nor is is a standard “enjoyment” for women as it is for males (i.e. more porn mags aimed at guys)

Related to the photos, models and activities, to show 3604(c) violation, there must be an absence of models indicating a preference to certain sex (here). All the photos that have people have men in them. The activities are drinking beer, video games, star trek; all of which are male dominated activities. The only 2 females present are portrayed as a servant carrying snacks to a large table surrounded by men (P5) and P6 where a female is portrayed like a secretary, both P5 & P6 show women in roles subordinate to men and show men as “loving life” while being taken care of by a woman. This shows that females aren’t to engage in the videogames computer stuff and enjoyment of apt complex like men are, in a male dominated atmosphere.

The court in Ragin urged us to read statutes broadly in order to prevent discrim ads, esp. the use of human models. HUD and other cts have interpreted the use of models as violation, it’s important to know that ads are constructed to convey advertiser’s image that he wants viewers to identify w/. This ad, as judged by OR looking at text and models, indicates a preference to males, regardless of if that was W and A’s intention. Ads: we id w/ what we see, Π can’t id w/these.

COA#1: 3604(c) based on sex: D’s argument

OR should be judged specifically to the particular medium used for advertisement. A&W chose to adv. in comp and tech magazines b/c they wanted to target a certain type of tenant-one that is a “master”or highly interested in computer technology. The realm of computer technol (CT) is male dominated and A&W designed their ad to appeal to a target market. I can imagine that no one contested ads for Barbie Dolls just b/c they are typically pink, girly & have female models b/c girls were their target for profits.

Text-nothing in the text refers to sex of either male or female. Π is oversensitive b/c she is a woman who is marketing exec for 1BM—a male dominated co. Π is used to feeling isolated b/c she works w/ mostly men and A&W cant be liable for oversensitive ORs. In fact, the text says “Equal housing opportunity” in bold letters and even mentions wheelchair accessible. This shows that A&W meant to encourage all applicants and provides equal Housing in accordance w/ FHA.

Models- P5 has a female carrying food; she isn’t a servant, she is merely an innocent model w/snacks. Likewise P6 is just a pictures of 2 ppl working together in a male/female environment. If anything this shows integration of sexes, not discrim. Saunders held that models don’t need to be equally represented, therefore having few women isn’t a violation

Outcome: D wins. When judging OR in specific context there is no violation. We should judge OR in accordance to OR in science and tech mags b/c advertisers design ads w/ target consumer, idea, theme and place ads specifically in media to profit. ORi n science/ comp. mags wouldn’t find violation.

COA#2: 3604(a) based on sex: McDonnell Douglas Test applues b/c Π doesn’t have direct evidence and will rely on indirect evidence to created rebuttable presumption that discrim occurred.

Π’s Prima Facie case

1) Π is a member of a protected class, as a female, b/c 3604(a) explicitly lists “sex” and W and A obv knew she was a woman.

2) Π applied....

3) was qualified- W and A said she had highest credit noting and passed TNT over min score

4) Π was rejected housing

5) After the rejection, apt went for 3 days w/o being rented and then went to a male tenant. Contested issues here include is leaving housing open for 3 days “normal procedure and do W and A like to fill apts ASAP

D’s Burden: W and A mentioned not wanting “hotties” and said it refers to guys and girls and the Π was late to interview and it didn’t go well. Ldlds live in building so may be more preferential to certain applicants than others b/c of close contact, as opposed to off-site ldld. Under Frazier, if ldld is uncomfortable, they can reject applicant w/o 3604a violation. W and A “waited to see if others applied” and that is ok b/c (as stated) screening and being picky about tenants is ok b/c ldld lives in bldg and bldg environment encourages use of common areas. Providing current tenants w/ similar tenants to themselves fosters community “feeling and can wait to see if better fit applicant applies

Intent (part 3-burden on Π): W and A used pretext to discriminate: made her uncomfortable and said interview didn’t go well, W and A were annoyed she was late but didn’t recognize that it was b/c of broken down bus and not Π ‘s fault. W and A were irritated w/ Π ‘s movie and computer brand preference. All those are irrelevant to ldlds getting rent payments and Π s ability to be good tenant, esp b/c she loves computers. However, as stated, W and A want to provide community feeling w/ shared interests for ppl who feel unrelateable to most and evidence suggests that is why they refused her not b/c intentional discrim b/c sex. Fact finder won’t believe Π’s story even if they disbelieve D and D will win.

Question 3: Student Answer #3 (Advertising & Unruh Act only): This answer does a nice job on the ad, using the different ordinary reader tests well and making arguments for defendants that no other students saw. The discussion of the TNT test and the Unruh Act is also unusually thorough, particularly in using Marina Point.

Ad: An ad violates 3604(c) if it suggests to an ord. Reader (OR) a preference/dispreference for a particular protected category; the focus is the message and not intent. Gloria’s success depends on which version of the OR test the ct applies-OR of PC (female) or OR in general

Placement of Ads: An OR of PC would likely find the placement of the ad in comp and tech mags to indicate a preference for males. Generally, comp. programming is a male-dominated field so ♀ would not likely see the ad. An OR in gen would argue that the placement of the ad in those mags was necessary to the purpose and designing of the complex—it’s designed for comps so what good would it do to have people w/o comps or gaming interest to live there/use it. These mags are read by Δ’s largest audience.

Text: An OR of PC would find the text of the ad as indicating a pref. First “techno geeks” is a term generally (esp. in movies and tv) given to males. Moreover, the mention of “ball fields” and “porn” suggest that males are the intended audience or that females would not likely fit in here. On the other hand, an OR in gen would find that mention of room for 2 computerss might indicate of couple (♂+♀ or ♂♂/♀♀) and so would not indicate a pref. Finally the mention of “security” is very imp. for a ♀ (personal safety) so no pref.

Pics: An OR of PC would note that 10/12 models are ♂. Further, in the 2 in which ♀ are shown, the ♀ are 1)bringing snacks to the men and 2) typing while the Male is laughing/overseeing. G will argue that the ♀ are shown in positions of servitude and are under the control/ are less than/ ae servants of the male and therefore, that the ad indicates a pref. Also, the inclusion of hi-tech comp systems might serve to overwhelm or confuse ♀ who are usually not as technically savvy as ♂.

An OR in gen would counter by saying that we need to consider the audience and amenities of the bldg. B/c it was designed for comps/gaming, why wouldn’t the Δ’s show the systems? Finally OR in gen will argue that b/c G saw the ad and applied anyway, that it did not indicate a pref. But G can argue that the technology aspect did not indicate a pref b/c she is an IBM marketing exec. and is familiar w/such complex systems (even if by seeing them not working w/ them)

Unruh Act In M Point, the ct held that the listed classes are merely illustrative, not restrictive-that the Unruh act protects all persons not just PC’s. MPt dealt with a LL’s blanket exclusion of families w/children.

While G can argue that the TNT score is an arbitrary characteristic, D’s will argue that there is no evidence that discrim based on TNT score is a problem. MP had extensive evidence of discrim. against families w/children. Furthermore, the complex here is geared towards techies and was built around their needs.

G will argue that MP relied on Cox, which held that hippies are protected. B/c hippies are protected (something more similar to TNT score than fams w/ kids), TNT score discrim should be prohibited as well. G could also argue that while D’s can exclude based on indiv. conduct, they cannot based on a gen. stereotype. The TNT, in essence, is a gen stereotype b/c it does not reflect many personal attributes, just gives you an idea of who the person is but, like LSAT scores, groups people based on a #, not re: who they are. Further, even assuming that TNT score was based on indiv. conduct, MP, mandates that the exclusion be related to the services provided and facilities provided. While D’s will say that TNT score is relevant to services/facilities, a lower TNT score does not necessarily mean that G won’t use the gaming room or computer workstations.

Thus b/c the legis history and case law (Cox and MP) interpreting CA’s Unruh Act prohibits all arbitrary discrim. and b/c TNT score is a generalized and arbitrary characteristic/consideration G will successfully be able to argue that the use of TNT score in housing violates the Unruh Act. Distinction b/t housing and employment is relevant here in employment, a proficiency/ skills test is tied to persons ability to do his/her job. The TNT test here, designed to ID tenants w/ significant comp. experience, would be more suited to employment where the score would relate to ability to do job. Here, a TNT score has no obvious relevance to ability to pay rent, live in an apt, etc.

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[1] Actually, significance of the bus is a very obscure joke: Latin phrase, quoted a lot when people once did that sort of thing, used to indicate that even the famous and powerful die or are brought down. Literally “So goes the glory of the world” or in Latin, “Sic Transit Gloria Mundi.”

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PHOTO #1 (P1)

PHOTO #5 (P5)

PHOTO #4 (P4)

PHOTO #6 (P6)

PHOTO #3 (P3)

PHOTO #2 (P2)

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