Faculty.law.miami.edu



2020 EXAM BANK

QUESTION TYPE 2: STATUTORY AMENDMENT

Prof’s Comments & Best Student Answers

Spring 2002 Statutory Amdt. Q (2020 Sample SQ2A)

Comments & Student Answers Available after Submission Deadline

Fall 2006 Statutory Amdt. Q (2020 Rev. Prob. 3C1)

Prof’s Comments: I was a little disappointed overall. The answers showed very little indication that students had looked at the materials on statutory drafting and, despite specific warnings at the review session, included a lot of unexplained redrafting of the amendment. In addition, several students did not seem to understand Marina Point very well. Comments below are tied to the three paragraphs of the amendment.

(1) As used in this section, the lists of protected classes other than in subsection (f) shall be read inclusively instead of exclusively, barring all arbitrary discrimination. This provision was designed to turn the FHA into the kind of inclusive statute that California uses. In this context, “arbitrary discrimination” does not refer to the types of conduct that are forbidden but to the characteristics that trigger statutory protection. Thus, the exception for section (f) would not create less protection for people with disabilities, but would prevent other characteristics from being the basis of reasonable accommodations and modifications claims. As several of you realized, this was an opportunity for you to discuss the pros and cons of inclusive statutes that were laid out in one of the Info Memos. (See 1st model answer). Ideally, you might have discussed whether this kind of tinkering would make sense with the FHA in particular.

(2) Arbitrary discrimination includes the use of blanket stereotypes and relying on broad or statistical generalizations, but not a person’s relevant improper conduct. This definition incorporates ideas directly from Marina Point. You could have discussed whether these were good ways to define the term, whether some other definition would be better, or whether it would be best (as some of you suggested) to eliminate this definition and leave the scope of the term to the courts to develop. A number of you argued that this belonged in the definition section and not in §3604. However, it is structurally parallel to some of the definitional passages in §3604(f).

(3) Economic characteristics are not intended to be considered as forms of arbitrary discrimination under the meaning of this subsection. This section incorporates the limit on Marina Point created by Harris. You might have discussed whether the distinction between personal and economic characteristics makes sense at all or in the context of the FHA.

Student Answer #1: [This answer had the best combination of thoughtful substantive work and useful technical suggestions.]

Initially, there are some important benefits and drawbacks to altering the list of protected characteristics in the FHA by making the list inclusive and thereby adding or allowing arguments to be made to add additional classes to gain protection.

There are many reasons to carefully consider changing the FHA list. The current exclusive list allows predictability in bringing lawsuits. Furthermore, predictability makes it easier to comply with the FHA because the public knows who it can and cannot discriminate against. On the other hand, however, this knowledge may allow the public to get around the FHA through indirect discrimination by using an UNPROTECTED classification as a pretext to discriminate against protected classes and this argument favors an inclusive list. This would keep the public on it toes and hopefully encourage fairness in housing due to fear of unpredictable liability for unlawful discrimination.

Also, allowing new classes would arguably increase strain on the courts and increase waiting time for plaintiffs due to the new litigation arguing for the protection of new classes. However, everyone currently fits into one of the protected classes, so making the list inclusive wouldn’t really give any additional people standing as a potential plaintiff. Increased litigation, would, however, possibly raise costs to landlords-owners who will have more lawsuits to defend (arguably) and this ma lead to increased rents, thereby harming the very people that the FHA is trying to protect (renters/buyers).

Allowing additional classes to the list also raises concerns about enforcement resources. HUD and other agencies often have fixed budgets and will have to process more claims with same resources. This could result in weaker claims (or claims that appear weaker because a sophisticated landlord left behind little or no evidence of discriminating) being ignored by the HUD who would have to be more “choosy” in taking cases to court. Thus the most helpless victims of housing discrimination may suffer.

There is also a public concern to consider. Some of your voters may feel that adding more characteristics will dilute the importance of the current categories by lessening their historical and symbolic significance. Alternately, some members of the public may feel that adding new characteristics will inappropriately elevate the significance of the new additions (common feeling for adding “marital status” and “sexual orientation”)

Despite these concerns, adopting the open-ended UNRUH approach will offer protection for a wider range of classes by adding flexibility without the timely/costly process of amending the FHA. Furthermore, courts will now have the option of adding to the list, which takes the pressure off of you (as a Congressman) to respond to popular prejudice and bill (Handy)! This is good for your career.

If you chose to adopt the substance of this proposed amendment, considering the foregoing policy discussion, I would recommend the following changes…

1) leave the same until “shall”. After shall add the following provision to replace the remainder of (1)… “not be read to be exclusive, but instead shall prohibit all discrimination covered in this section that is ARBITRARY.”

• 1 deleted “instead of inclusive” because this is implied and is extra un-needed language → Occam’s Razor → I cut it out.

2) & (3) → I’m starting fresh because these ideas need clarification and organization to be better understood…

(2). “ARBITRARY” discrimination means decisions based on

a) blanket stereotypes; and

b) statistical generalizations; except that

(3). Nothing in this section prohibits decisions based on.

a) Economic characteristics;

b) Particular conduct of and individual that is relevant and improper;

c) Special-purpose housing qualifications, such as those listed in §3607 herein;

d) Any other factor or characteristic otherwise allowed in this Section

I wanted to separate what is arbitrary and what is not (for this section) to make the amendment easier to use and understand. I felt it was important to specify what generalizations can be used for special purpose housing or qualifications found elsewhere in the statute like “direct threat” or “convicted substance abuser”. This adds some limits back to the inclusive list and as a bonus, allows for future amendments to the Act that might specifically allow discrimination/broad generalizations to be used to exclude certain groups from the list (assuming that the inclusive results in the future). This may help the amendment pass by appeasing its opponents who want to leave the list exclusive; but it still sticks with the spirit of the amendment.

I realized that leaving “relevant” and “improper” in the amendment adds some confusion and ambiguity, but I feel that those terms are best left undefined by the legislature. HUD can perhaps provide examples and interpret the bounds of those words to add clarity or the courts can use those words as wiggle room for extraordinary unpredictable cases and situations. In fact, Cox already has done such a thing by allowing exclusion based on disruption of business, property damage, and injury to others. These types of relevant and improper actions are too numerous to list out in a definition – so they should be left undefined.

One last thought…perhaps a provision should be added to limit new additions to classes that “are like” those already listed… that are “of the same nature” ← vague, I know but it is important to stick with the spirit of the Section and to avoid absurd claims, like adding weight, intelligence, etc.

Student Answer #2: [This answer had a number of good ideas on the technical changes and some good points (although not as much discussion as I’d like) in the pros and cons.}

Technical Changes and Substantive Issues: Regarding the overall premise that these subsections should be added as §3604(g), this seems improper given the essential message of these amendments as both rules for interpreting the statute and a huge overall policy change. Thus, I would place these amendments more towards the beginning of the FHA, such as in §3601.

First Paragraph: Given that change, I would alter “as used in this section” to a statement that reflects the above comments – such as – “This Act is intended to …” Also, confusing in the 1st paragraph is “the list of protected classes” and then the inclusion of the exception for handicap – subsection (f), and the use of “inclusively instead of exclusively.” As statutes ought to be easy on the eyes for even the layman and because of this amendment’s overall policy objectives, this paragraph ought to simply state:

This Act is intended to protect against all forms of arbitrary discrimination, and the protected classes listed herein are merely illustrative, except if otherwise indicated.

Then, a new sentence ought to be placed in the beginning of section (f) that explains that the categories defining handicapped discrimination are not illustrated and instead are to be interpreted precisely. Example:

The rules provided under this section shall be applied only to claims arising under this section.

The next paragraph, which defines[1] “arbitrary discrimination”[2]: “blanket” stereotypes is confusing and overly vague and redundant. The same goes for “broad or statistical” generalizations. The clause regarding a person’s “relevant improper conduct” is easily combined with the next paragraph, which describes another exception to the “arbitrary discrimination of paragraph one. An easy way to combine these clauses and make the presentation much smoother for the reader would be to have either a follow-up sentence to the one crafted on the previous page – or to add these exceptions into the “exceptions” section of the Act. It could read as follows:

No claim exists under this Act against a defendant who acted solely in consideration of

1. the claimant’s improper conduct; or

2. the plaintiff’s risky economic standing

“Risky” militates against discrimination of the poor simply because of that status.

Pros and Cons: I think this is a worthy amendment because in reality the same type of harm may be inflicted on people – despite not belonging to a defined “class”. It is difficult to predict all forms of such harm and this Amendment allows the Courts to dynamically apply this essential fair housing law. Some examples of categories that currently are harmed – but do not have causes of action under the federal Act are age and marital status. Unfortunately, the Act in its current form would require a significant procedural step – just to include these arguably worthy categories. The 1988 Amendments are a good example of this – as it partly was designed to add “family status”, it took years! And it gets ever more slowed down by accompanying changes. This is for more efficient. The only problem is a risk of a whole lot more of litigation.

Spring 2011 Statutory Amdt. Q (2020 Rev. Prob. 3C2)

2020: The passages in red relate to topics we didn’t cover. I am giving you model answers for those sections as illustrations of successful work.

Prof’s Comments: Student answers to this question were very uneven. Although this question is always hard for some students, I had hoped this year’s version was relatively straightforward because we spent significant class time on each of the three cases at issue and because we talked repeatedly about when it made sense to import Title VII analysis into Fair Housing law. Below, I’ll first discuss recurring general concerns, then talk separately about each section of the proposed amendment.

A. Recurring Concerns

1. Problems Understanding the Legislator’s Role:

• When Congress amends an existing statute, it often does so to change the existing rules or to reject an agency’s interpretation of the statute. It isn’t a problem that the proposed amendment is inconsistent with Title VII, the present FHA, or HUD’s regulations. Indeed, that’s usually the point.

• Similarly, Congress gets the last word as to what federal statutes do so long as they are constitutional. Many students incorrectly suggested that it was outside the authority of Congress to overturn judicial interpretations of statutes. You need to better distinguish arguments thast might be appropriate in a Constitutional setting (where the Supreme Court has the last word) from those involving statutes.

• You should think carefully before suggesting additions to the amendment that you haven’t regularly seen in the statutes we’ve studied. For example, individual subsections like §3604(g) usually don’t contain separate purpose provisions or case names or detailed recitations of existing doctrine.

2. Exam Technique

a. Following/Using Instructions & Information Provided:

o Although you had 50 minutes for the question, many of you gave me answers that were much shorter than for the other two questions. I had at least ten answers that were less than two typed pages, which was not a recipe for success. I don’t know whether the problem was general time management or that you had to spend a lot of time looking up the relevant authorities, but you need to do better.

o Quite a few students seemed unsure what the provisions were trying to do. You were told the author was trying to overrule three specific cases and should have understood what was at issue from class discussion and particularly from the dissents in Starrett City and DiCenso. The purposes of the individual provisions are described in detail below.

o I designed the question to explore where, in FHA cases, courts should use doctrine created for employment discrimination. I gave particular credit in the substantive critiques for discussions of this theme in the context of the three doctrinal areas addressed by the proposed amendment.

o The instructions asked that your substantive critique include both pros and cons for each provision. Relatively few students did this for all three provisions; those who did were strongly rewarded.

b. Make & Defend Points with Specificity

o A reasonable rule of thumb when doing legal analysis of any kind is that specificity is very helpful. Many of you simply dismissed particular provisions as “confusing” or “vague” or “ambiguous” without trying to explain what the problems were. Give your boss better information. E.g.,

▪ “I couldn’t tell whether the author was trying to do X or Y.”

▪ “The phrase Z would be clearer if you replaced it with ….”

▪ “The phrase Z may not be easily understood, but could be improved by defining it as follows …”

o Ideally, when you offer alternative language, you should identify the problem with the original phrasing and briefly explain why your version is better. Many of you provided unexplained edits to the amendment. If I could figure out what you were trying to do, I gave you some credit. In many cases, I couldn’t.

c. Clear Concise Presentation: Almost all of you should employ tighter prose on exams. Difficulties in this regard were especially and ironically very evident on this question when many you complained, at frightening length, about how badly the provisions were drafted. Two noteworthy examples (of many):

o The use of phrase X in provision Y is “redundant and superfluous.” Note that either “redundant” is superfluous or “superfluous” is redundant.

o Provision X is “too verbose.” As opposed to “just verbose enough”?

One common form of unnecessary prose was including detailed descriptions of the cases at issue. Obviously, you can helpfully refer to particular aspects of the cases to critique the proposed amendments. However, on an open book test with very limited time, you’re not going to get any significant credit for essentially just copying a chunk of a case brief into your answer.

B. Introductory Passage & Overall Structure of the Statute

1. Likely Purpose: Read as a whole, the subsection is trying to overrule three instances where courts (in the three cases listed in the overview) had applied Title VII analysis to FHA claims. The use of the phrase, “un the following situations” should mean that the subsection does not bar the use of Title VII analysis in other situations like Mcd-Dgs or Disparate Impact.

2. Technical Concerns include

• Intro Passage

• this section = 3604; some students deleted the phrase, but you need it to limit the reach of the prohibition. Otherwise it would arguably apply to Title VII itself.

• Employment (same word used with two meanings). Change 1st use. (see 2d model)

• not appropriate (vague); If you want to ban, do so explicitly. (see both models)

• following situations (can simplify to “for”)

o “In interpreting this section, Title VII analysis shall not be used for:”

• Structure of Amendment (looking at three paragraphs together)

• Use parallel structure for the three provisions (see 1st model)

• or (after second paragraph): confusing when used with a negative instruction. Can just leave out. Don’t need “and” either (see structure of 3604(f))

• Could also turn into 3 separate provisions w/o framing sentence

3. Substantive Concerns: I will address these paragraph by paragraph.

C. Para. (1): Futile Gesture(FG)/Pinchback

1. Likely Purpose: Overruling Pinchback cpmbined with the wording of the paragraph presumably means getting rid of futile gesture claims altogether (as opposed to modifying the cause of action). Because Pinchback was a 1982 case, a couple of clever students suggested extending this provision to cover both 1982 and 3604.

2. Technical Concerns

• Overall:

• Probably need more description of claim or a definition. (see 1st model)

• [As we discussed in class in 2020] Could delete reference to FG altogether, and require some attempt to apply for the housing opportunity and something that could be considered an effective denial. Need to be careful wording this so you don’t prevent cases like Asbury, where P tried to apply and was never explicitly told no.

• 2d Model adds language to reach FG or similar doctrines, to be clear that not just banning precise version of FG used by Pinchback. Reasonable idea, but could accomplish also by using one of two bullets above.

• Specific Language Used

• So-called & quotes around FG: unnecessary; don’t need to suggest this well-established Title VII doctrine is somehow questionable. (see both models)

• Claim used as noun here and verb in para. (3) (see 1st model, changing to doctrine)

3. Substantive Concerns: We covered pros and cons of FG in class in detail. 1st and 3d Models discuss most of the relevant points. You also could discuss the specific elements of FG adopted in Pinchback in detail, examining how well they operate and suggesting modifications (e.g., limiting the sources from which P can get “reliable” info re D’s policies.)

Student Answer #1: [The best overall answer; strong on both technical and substantive critiques.]

Technical problems:

1. "is not appropriate" - this language makes it unclear whether the statute is attempting to tell courts that it is not good policy to apply the following doctrines/ aspects of T7, or whether it is actually negating discretionary authority.

Change: Based on W's intent to "ban the application of T7" she would want to say "shall not" which creates a duty for the court NOT to apply it. Further, the entire intro sould be written in active voice, specifying that a court or agency is applying the doctrines.

2. Parallelism- the beginning of each section is different, & statutes should be consistent, expressing ideas in the same way with a maintenance of parrallel sen. structure so that it is easiest for courts and consituents to read and understand.

Change: "The futile gesture test" & "The affirmative action test" & "The hostile environment harassment test" or something otherwise parallel.

- "the use of the test for judging the lawfullness of affirmative action" is also way too long and has unnecessary words. Change to above or something similar.

3. "so-called" - this is not needed and is too colloquial for the statute.

4. "futile gesture" - if the legislature finds this too unclear it should be defined in this subsection. Quotes around it are unnecessary. If defines, it should be connected by "is" or "means"

Change: eg, The futile gesture doctrine;

5. "in employment" w/i pt. (2)- this is redundant. the subsection begins with Title VII which shows the rest of the statute will be discussing employment tests/ claims.

6. ...by a landlord "OR a rep of the LL" - reps are always included as LL b/c of vicarious liability which is provided in other section of the FHA. Therefore not needed here and can be entirely omitted.

7. Landlord... "in the context of rental units" - two problems w/ this. If there is a LL, he owns the complex, therefore the tenant is a tenant and not an owner and is renting SO rental units are already inferred necessarily and don't have to be stated. IF rep also wanted this to extend to condo associations, eg, which could perhaps being a hostile environment claim against if they were harassing the tenant, then this should also be omitted and LL should be changed to LL or CA. Don't see why the context would be any different if W didn't want it to apply to LL.

8. Re: hostile environment claim- the stat refers to "amount of discriminatory behavior necesary for HE claim" BUT it seems from W's intent that she wants to bar application altogether, which is different from simply saying cts should still have the claim but not use the same evidentiayr burden as T7.

change: "HE claim" or test.

- also if trying to ban the claim, W can omit the amount of behavior nec'y b/c if no claim, no need for information re: evidence.

Substance: Housing & social policy

W's ban on futile gesture

CONS of disallowing: FG is good public policy for FHA claims for a series of reasons:

1. the burden of humiliation occasioned by discrim against a P is heavy, & if P is sure he will be rejected, "shouldn't have to submit to explicit & certain rejection" Pinchback. 2. even though the P was unwilling to engage in the futile gesture of submitting an offer for the prop or submitting an application, the P is still a victim of discrimination. 3. Courts need to be concerned that if the D's discrim is so entrenched that no one of a particular protected class applies.

Further, the only way the FG applies now (w/o W's amendment) is if P's evidence of the D's discrimination is so overwhelming that its obvious applying wouldn't have done any good (eg, like in Pinchback b/c no blacks had EVER been accepted & the housing was in an area where blacks lived, so it was clear to the ct. that D's discrim was successful). Therefore, this won't pose the problems of judicial inefficiency or insurmountable litigation b/c this type of clear proof is not usually available. Finally, the fact Ps take the time and resources to bring these claims shows that they care about the discrimination and it affected them.

PROS: On the other hand, W's amendment may be good b/c of several reasons: If P was so sure of being rejected before applying to the D, why would P be humiliated? It is illogical to argue that someone that KNOWS something will happen, can mentally prepare for it, would be so humiliated. The application is a mere formaility and operates as a bar to suit without merit.

Also, While FG works well in employment this is b/c emply. & housing are very different. the point of FG in emply is b/c many emply. suits concern promotions, therefore hte P himself has individual evidence from experience in the workplace on the basis of other employees (show that there have been other employees rejected in the class so there was no point). Second, in the emply context, the humilitation would often be worse b/c other employees would know about it, perhaps witness it, and it would not be internal embarassment like (likely)in housing. In emplymeny, the humiliation would be public. & in the job sector the P may run into the same employees co-workers later at another job in the same industry, still unable to escape the memories of embarassment.

W's ban on Affirmative Action (AA) test in Starrett

CONS of disallowing AA claims: the effect on minorities is more important than intent, & affirmative action programs could help break the cycle of segregated communities, helping minorities more from a poverty-stricken area into an itnegrated community. Looking beyong the text of the FHA to its purpose of achieving integration, it makes sense that it should not be read literally & used to prevent a policy which would actually aide in integration. It combats the problems of tipping & white flight (see so Sub) and if integration is not sometimes used to trump discrimination, it can result in hypersegregation (American Apar) where there is a black minority slum area surrounded by white suburbs.

Further, By requiring the D to rebut a discriminatory effect of an AA prgm, it reuqires the D to be proactive and think before implementing it what effects it would have that D could be liable for. Thus it makes the D actually use better proactive business practices.

PROS of Disallowing AA: AA prgms in housing can ultimately restrict black residential choice and D's attempts at integration, although seemingly laudable, so nothing to alleviate the larger problems of segregation. At best, they may permit a few blacks to live in integrated areas if they can qualify for a mortgage (Amer Apar 227). Further, treating a person differently b/c of race implies the consciousness of race and the purpose to use it as a decision making tool (So Sub). It can restrict minority access to desirable rental acconomodations otherwise available. It may also aggravate racial tensions b/c it allows for the color of skin to impact availability of housing, thus thearting the goal of living in a truly color blind society. Therefore, implementing D's burdens of evidence in housing should be the same as T7 b/c it is just as important to integrate in housing as emplyment.

Hostile Environment Ban

CONs of Banning HE: Allowing HE makes sense in housing b/c a person cannot truly enjoy their rights if the housing environment is hostile, leading them to fear for their safety or well-being (&enjoyment of rts is protected by FHA). The applicality looks to a variety of factors, like the frequency of the conduct, severity, whether it is physically threatening or humiliating, & whether it unreasonable interferes w/ the ability to use or be comfortable in the residence. Therefore, this claim requires a decent amount of evidence to protect the D if he has a bad day and utters something offensive (as was the case in Discenso), but allows the P protection if the conduct is sufficiently egregious. Further, HE is nec'y for P b/c the home is supposed to be a safe place, & if someone is accosting P it means every time P walks to the door P will be worried. If LL is harassing, who would P complain to? P would otherwise be left with no remedy. Plus, the LL-tenant relationship is an ongoing contractual one

PROs of banning HE: In employment, the P has to be at work all day with co-workers and employment MGMT. Therefore the effect is substantially lenghtier than in housing where the P may only have to see the LL once per month or less. Further, the P would likely have a claim under 3617, interferece w/ rt. to enjoy home, if the conduct was really threatening or coercive, thus it wouldn't completely eliminate P's remedies.

Student Answer #2 (Technical Critique Only)[ This answer felt very smart to me and was probabkly the strongest technical critique.]

First, it is unclear what the purpose is for these proposed amendments. It would be helpful to include a preamble for the proposed amendments to explain its purpose, but this explanation will not be necessary if ratified, b/c the purpose of §3604 is rather clear. See §3601.

Because Rep. Waffle wants to "clarify instances" as to when Title VII analysis is approrpriate in a housing context, I will proceed under the assumption that she wants to ban the use of these three specific cases because she believes they are merely inapplicable to housing. [Good idea to state premises at outset.]

Overall Structure: The statute is poorly-worded. First, change "Employment of Title VII analysis . . . is not appropriate in the following situations:" to the following: "FHA claims will not be analyzed using Title VII analysis in the following three situations:" This fixes a number of problems:

a. Using the word "employment" as a verb when talking about Title VII is very confusing (i.e., the subject-matter of Title VII is employment; this creates confusion.)

b. Eliminates the "is not appropriate" language. That phrase was ambiguous: "is not approrpriate" means never apprporiate? Sometimes not appropriate? That it is simply a weak standard? That it implies there is a better framework to use? Saying "will not be analyzed" eliminates these ambiguities, and refrains from using the unhelpful phrase, "shall." I am also mindful that saying "are not to be analyzed . . ." creates similar ambiguity problems to its original phrasing. Finally, I am mindful that "will not be" may create problems as to timing, but I believe it is better than "shall."

c. Saying "in the following three situations" creates an exlusive list, there though will be room for interpretation here by the courts --> a good goal. Assuming that Rep. Waffle's goals were to prevent only these three uses, stronger language could be used ("only the following three situations"); but b/c her intent is unclear, the language I chose will be workable by the courts, with the intent probably that it is exclusive (exlusive creates more predictability; people know how to plan accordingly to comply --> beneficial)

Subsection (1): Reword this subsection to say: "when applying the "futile gesture" claim, or similar, analysis…” Reasons:

-the "so-called" language is superflous and unnecessary

-including "or similar" seems to do what the "so-called" language was intending to do

-since Rep. Waffle wants to "ban" its use; I am assuming that she wants to ban this test and anything similar, hence the inclusion of "or similar" ("ban" is strong language)

-this rephrasing also allows the statute to naturally flow into the subsections, so that it reads like a coherent paragrpah and complete thought (more understandable)

Subsection (2): Reword this subsection to say: "when evaluating the lawfulness of affirmative racial-integration maintenance programs" Reasons:

-this subsection is horribly written; I am proceeding under the assumption that Sen. Waffle is trying to say you can't apply the Title VII Affirmative Action test (four factors) to a housing context

-the use of "affirmative action cases in employment" is redundant; we know we are dealing with applying Title VII standards; there is no reason to include the "employment" or "affirmative action" language

-"evaluating the lawfulness" is more precise than "judging the lawfulness" --> unless she was trying to get rid of a test or balancing altogether (in which case I would make a suggestion other than "evaluation" ... maybe "determining")

Subsection (3): Reword this subsection to say: "when determining whether a hostile environment sexual harassment cause of action against a landlord has been stated" Reasons:

-original too wordy; if dealing with sexual harassment hostile environment; a LL's "discriminatory behavior" is a given

-"by a landlord or by a representative of the landlord" is superfluous in the main subsection. Pehaps add a sub-sub section that says "(3)(a) "Landlord" includes a landlord or a person or persons representing the landlord"

-the "rental units" seems superfluous as well --> if we are dealing with a LL, it is almost surely a rental (though this could also be another addition, (3)(b): "this provision only applies to rental units")

-original use of "by" was ambiguous: "by" a LL meaning it is HIS claim? probably not --> probably meant "by" to mean harassment done by the LL

(SUM) As a whole, the statute is rather wordy and hard to understand. By simplifying it and cutting out/rephrasing some words (and possibly adding a few more sub-subsections), it is far easier to understand.

Student Answer #3 (Substantive Critique Only): [The substantive critique in this answer is very strong, especially for subsections (1) and (3). Under the point system I used, it received fasr and away the highest score for thev substantive critique.]

Purpose of the Amendment: Appears to eliminate analogies to Title VII. Only one clear goal however, which is to eliminate futile gesture theory. Unclear as to whether Benign Discrimination Integration maintenance would be valid/invalid and unclear as to new standard for hostile environment.

Pros 1. Title VII is not Title VIII. Although they were drafted and passed in the same decade, they protect different areas of society. Statute could be first step towards differentiating them, which could arguably be a good thing, because courts use Title VII almost too much as a crutch, and dont' allow themselves to think creatively and come up with flexible solutions to the problems that are specific for housing. Also, lack of Title VII standards could result in less summary judgment, allowing FHA claims to come to forefront, which would increase society's knowledge about their rights.

2. Futile gesture claim may be good for employment, where dissemination of information often directly stems from employer, but is somewhat ill suited for Housing context due to different medias [craiglist, real estate agents, word of mouth] in which housing provider's intent could be incorrectly construed [however, other prongs of PInchback test protect this....]. Also, Pinchback is only case where futile gesture has been applied in FHA context [as far as MF knows] and unlikely that getting rid of it would be such a big deal especially since there is liability for real estate agents and 3604(c) protects those who make a decision not to obtain housing due to suggested preferences. Furthermore, Pinchback rule can result in floodgates of meritless cases because people will think they would get turned down, bring a case, and discover that they would have been accepted.

3. Abolishment of Title VII for Integration maintenance depends on what will replace it. If courts are left without guidelines they would be left with two choices in Starrett-esque situation: literal violation of 3604(a)- so program not valid or literal violation of 3604(a) but program valid because benign and advances integration. This may be good because it would be more simple, eliminate the duration factor and result in less "pocket ghettos." Furthermore, Title VII in employment context is often subset of other factors such as skill/ability, in housing it is strictly based on race. Maybe not appropriate for this reason. Furthermore, [footnote Starrett] Title VII cases have not been concerned with tipping beyond which a work force might be segregatd; reducing tipping is main aim of integration maintenance. Since goals are different, standards should be as well.

4. If Title VII standards are abolished for hostile environment, Court's probably will turn to 3617 and CFRs for guidance. However, CFRs are vague, and mainly just state "because of sex." Without Title VII, HUD could enact CFRs related to hostile environment to provide clearer picture and command Chevron deference. Taking away Title VII crutch could force courts to tailor new rules for these situations which are clearly an issue that needs consideration. "Severe or Pervasive" [Dicenso] is too strong, and as case shows, can result in meritorious claims failing - woman was touched-should be severe enough. However, title VII test focuses on all circumstances because employee interacts with employer everyday. Not appropriate for housing considering that length of relationship may be much shorter [re month to month lease] and one incident should be enough in such a circumstance.

CONS: 1. Two statutes are part of a coordinated scheme of CR laws enacted to end discrim; SCOTUS has held that both statutes must be construed expansively to implement goal; therefore, they are meant to go hand-in-hand and often Title VII is necessary to provide relevant material on new situations. Step towards eliminating some analogies could result in movement towards separating all. Unnecessary to even mention Title VII in statute-too confusing; maybe some Courts/landlords/housing providers don't even know what the Title VII standards are, but know the Pinchback, Starrett and DiCenso rules. Could result in a lot of confusion.

2. Pinchback rule is good because it alleviates a potential T from having to place self in embarassing situation in which they have nothing to gain. Often, real estate agents are fairly certain of policies and Pinchback rule also makes necessary that complex/provider would have actually rejected had applied, so no confusion or harm to innocent providers, but substantial benefit in situation where discrim. providers cause damage.

3. Starrett rule has its faults. However, its unclear what would replace it. The 4-prong test is supported by SCOTUS determination and implicitly accepted by LH when passed 1988 FHAA. No real need to change it now unless test is so difficult to pass that it hinders integration [but Otero and So.Sub passed similar test]. If replaced, discrim in entity itself and floors not ceilings MUST still remain if integration is to be valid benign activity, so at least some Title VII analogies must be made. If purpose is to completely ban integration maintenance, runs counter to LH re. Mondale["one of the biggest problems we face is the lack of experience in actually living next to Negroes] and dual purposes of FHA.

4. Are we just getting rid of Title VII rule "severe or pervasive"? If so, will probably result in floodgates. Although current standard is unfavorable to Ps, protects Ls from having every interaction become a COA. Ts are often grumpy when it comes to their Ls, and if the standard is lower it may result in several Ts bringing claims on actions less severe than what we want to be a COA.

Substantive Recommendations: - Pinchback rule should stay. Pros outweigh cons. If want to reduce breadth of what it covers, maybe enact rule that says "futile gesture...explain obviously [see below]...only applies when information that leads to abandonment of application process comes from RE agent." This will eliminate word of mouth issue and limit potential meritless claims, but still provide Ps with substantial protections.

- Starret rule should be changed. Integration maintenance is something that is desirable, and complies with one of goals of FHA. Suggestion is to make it so that in order to comply, you can mention race in program, but has to be floor for minorities [i.e. goal of 25% but over 25% allowed] and there has to have been some imbalance in the entity itself before program is allowed [which is why So.Sub. is desirable].

- Title VII hostile environment rule should not be eliminated but legislature should make an attempt to clarify that 1 instance of touching could be enough and that frequency is relevant to duration of lease [i.e. 2 events in 4 month lease is ceratinly enough given that it would equate to 6 over a year see Shellhammer].

-Title VII shouldn't be mentioned, and neither should case names. Could cause lots of confusion in lower courts.

Fall 2011 Statutory Amdt. Q (2020 Sample SQ2B)

Comments & Student Answers Available after Submission Deadline

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[1] This is really a policy statement and defining it may be necessary.

[2]Further, it’s unnecessary because vagueness here would place the definition of this term in the hands of the courts.

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