QUESTION TYPE 2: CRITIQUE OF STATUTE



QUESTION TYPE 2: CRITIQUE OF STATUTE

QUESTION 2A: COMMENTS

On this question, I was looking for three things: substantive analysis of the provision as written, suggested substantive changes and suggested technical changes. Nobody did all three well. The model answers make some pretty good points but are not exceptional.

A number of students got led astray by the mention of quotas. The official line by many conservatives about disparate impact analysis is that it creates “quotas,” by which they mean mandatory miniminum numbers of members of protected classes. The type of quotas at issue in the Question are not the kind raised by Starrett City. The suggested amendment has nothing to do with Starrett City. The amendment deals with disparate impact analysis. Starrett City is a Disparate Treatment case: the policy is not facially neutral, but rather facially discriminatory.

QUESTION 2A: STUDENT ANSWER #1

This proposed bill is an unsurprising attempt to reconcile the doctrines of discriminatory intent vs. discriminatory effect tests. The problem with intent is that it is too narrow a test and the problem with effects is that it is too broad. The substance of the bill is understandable, but not the best solution to the problem. The attempt to compromise and limit effects test to government entities ignores the fact that equally egregious actions are often committed by non-government entities. Proving intent is always going to be difficult because (1) it is very easy to successfully conceal intent, and (2) it is now becoming not politically correct or fashionable to discriminate overtly.

Consider the effect of this bill on future victims of housing discrimination who are blatantly victimized by facially neutral practices (like the all adult conversion of a building with predominantly black mothers). Also neutral practices like private advertisements using all-white models would no longer be actionable with the new amendment. Practices like this are contrary to the sprit of the legislation and victims should not be precluded from stating a cause of action because they can’t show intent. This change might encourage private entities to discriminate and simply cover their tracks.

Proponents of the bill may have valid arguments based on over-broad effects tests and judicial efficiency. Although efficiency of process and ease of administration are valid concerns, they don’t outweigh the need to provide a remedy to victims of subtle but devastating discriminatory housing practices.

I would suggest the following substantive changes to the bill: Allow intent test to be met if a reasonable person in the minority’s position would consider the defendant’s practice to be racially offensive. Although this leaves some room for judicial discretion that may be problematic, it is a more favorable alternative than this bill. Judges and fact-finders are capable of assessing “average person” standard as evidenced by various tort principles, so this test will be relatively successful in striking a more appropriate balance between the effect vs. intent test. Subjectivity won’t undermine the effectiveness of this test.

Drafting: -- too wordy. Clarity is sacrificed

-- sections more clearly delineated

-- listing might cause confusion

QUESTION 2A: STUDENT ANSWER #2

A. Pros and Cons of Bill: Disparate Impact Analysis (DIA) has mainly been used for class action suits (Betsy, Huntington,) where the defendant has been a government-run organization. In Huntington a municipality was defendant (Zoning in a white suburb; did not want to sell land to public housing.) In this case DIA is useful because its easier to conceal motivation of discrimination when dealing with big bureaucracies. The bad intent might not be there (as is required for disparate treatment claims) but the result could be the same -- policies that have a negative impact on minorities or protected class members. The main source of evidence in a DIA is statistics which can easily be done with local/state/federal government because of records kept. So by limiting DIA to governments, DIA claim will survive or not too much will be excluded. DIA was intended for the type of bureaucracies that could discriminate unintentionally but still have negative effects because of underlying facially neutral policies. Huntington

But bureaucratic hidden discrimination is not only limited to governmental entities. In Betsy, it was a Turtle Creek Association that discriminated against families with children. They were a 3-story high rise apartment building which tried to confine families (and race) to a particular area. Even larger corporations that own buildings would not be subject to a DIA. Even though DIA would apply to government entities, it still leaves out private large entities that also could not intentionally discriminate but have a negative impact such as in Betsy.

However, seeing how the Republicans want to get rid of DIA altogether, something is better than nothing.

Drafting changes: (1) Let’s take out §2 altogether. There is little confusion re: DIS/impact and DIS/treatments analysis. DIA deals with no intent /statistics/class action suits, other deals with bad intent. They are very different approaches; to put in §2 would be redundant, waste of space and unnecessary.

(2) On §1 “In determining ... has occurred” is too wordy. Take it all out. Start with “Disparate Impact Analysis...” Since 3604(g)(1) is at end of section it is assumed it refers to violations of 3604. If that is not clear say: “Pertaining to violations in this section, disparate... Also in (1) a problem could arise with phrase “shall only be applied”: ‘shall’ denotes no discretion = DIA that will be used. Could other approaches be used, besides DIA? What if you don’t want to use DIA? Shall should be replaced by may “may be” implied discretion and flexibility. People like that. Also, DIA should be defined DIA: involves differential treatment of similarly situated persons or groups that fall into protected class status defined by FHA.

(3) Another problem with 3804(g)(1) is what about organizations which the government has contracted out to some housing. Are they included?

QUESTION 2B: SAMPLE ONLY; NO MODELS

QUESTION 2C: COMMENTS

Almost everyone who answered this question made some interesting points, and a few of you had a lot of good ideas. I rewarded people who tried to address all four questions asked, who tried to see arguments on both sides of the first two questions, who read the amendment carefully, and who provided some thoughtful analysis or suggested changes.

On the question of legality under federal law, I was looking for recognition that any race-conscious remedy might be considered illegal, but that this remedy might pass muster because it didn’t directly exclude anyone from housing and applied to people of any race. In short, the amendment is more likely to pass muster than the program Starrett City, but is arguably somewhat more exclusionary than the program in South Suburban.

Among the technical changes I thought might be needed were definitions of “race” and of “areas.” The structure of the amendment is also a bit peculiar in that Asian-Americans in Missouri might be eligible for the additional subsidy in every single neighborhood in the state, which may not be the intended result.

The model answers do a good job suggesting some of the pros and cons and some possible substantive changes. Some of you got into trouble by raising complaints or suggesting changes that seemed to misunderstand what the amendment is trying to do. Several of you, for example, suggested eliminating all reference to race. Who then receives the additional subsidy? Everyone? Then you have just increased the amount you are spending statewide without doing anything about segregation. If you mean the additional subsidy only goes to some people, you have to make clear who they are. Several others suggested the importance of putting time limits on the transfer payments so the recipients don’t become dependent. However, the subsidy is going to pay the downpayment on a house. The recipients only get it once. You hardly need to worry that they’ll become dependent. Moral of the story is read more carefully and think about what I’m asking. Those of you who started writing right away and left early may have hurt yourselves with errors like these.

QUESTION 2C: STUDENT ANSWER #1

I. FHA: The proposed amendment conforms with the goals and spirit of the FHA which is to prohibit discrimination and promote integration. The amendment’s awarding of additional percentages of money based on a two tiered race analysis helps to achieve this. Even though the awards are based on race, which would be prohibited under a literal reading of the act, this affirmative marketing with race conscious efforts to promote integration of the area is within the scope and spirit of the ad. The amendment seems to have the effect of “steering” certain races to particular areas, an act prohibited under §3604(a) & (d) of the act. It is not rejecting these people, though; and the end result is a more integrated area. There is a history of hypersegregation in the area which justifies taking an affirmative marketing approach to eradicate it. The awards act as remedies to the past history of discrimination of minorities financially. These incentives to purchase homes in the areas, based on your race, may not be as neutral a policy such as the deduction of mortgage interest for homeowners, but it pursues a noble goal too, and doesn’t indirectly exclude people with such damaging results. People who are of the rate that is more than 30% of the area are still entitled to a subsidy. The ten and five percent additional amounts are not unreasonable or grossly disproportional to the social harm. They are meant to cure. (Milliken)

II. Pros & Cons: The obvious “pro” of the amendment is that it tries to affirmatively address and cure a pervasive and devastating social ill. It is a creative approach to creating an integrated balanced community in a state with hypersegregation plaguing its major cities. The effect of this hypersegregation damages the state’s people and economy. Enacting this amendment would benefit people of all races and socio-economic backgrounds. The cycle of keeping segregated neighborhoods that abound with crime, unemployment, single parenthood, drugs, etc. would be attacked and broken.

There are some negative aspects of the amendment. If, through the program there becomes a population of 30% of a particular minority, so subsidies stop for that race, will additional members of that race be discouraged from living there? Does the subsidy system create an unfair advantage for the first come, first serve people that take advantage of the program first? This “problem” can be viewed another way in that the later parties will be forced to seek out a new community where they will add to the minority base -- a possible “pro.”

Another con is that it discourages whites from moving into most communities because they will always be the majority. We have learned that most whites have indicated they would not be comfortable living in an area where they would be a 30% minority. Realistically then, you are not going to increase the number of whites that more to an all black area. The result may tend to be a “white flight” reaction to the integration of their existing neighborhoods.

III & IV. Substantive Changes/Drafting: There definitely needs to be a specific time period articulated to maintain control over the program. A second change would be a very expanded definition of the “area” in which the program would be in effect. As the “quotas” are filled the program should be discontinued so that it does not have an adverse effect of keeping out non-minorities that want both a particular area with the integrated result. Furthermore, I would replace the very forceful words “are entitled to” to a more flexible, “may be eligible for.” This could prevent fraudulent claims and allow to government a mechanism to deny certain groups who would try to take advantage or scam the program.

But, the most important substantive change I would suggest would be to expand the amount of the subsidy. I think that would have the most profound effect of ensuring the success of the program. The system is basically trying to pay off minorities to move into areas that may seem unfriendly, hostile and dangerous. So, make it really worth their while to do it. Increase the subsidies to 15 and 20 percent.

Then it would speed up the rate of integration, surely. The policies of the government, like allowing redlining, that created the situation must be redressed. Certainly enough money has historically been denied to minorities to more than justify an increase in these additional subsidies.

In terms of drafting, I would:

Eliminate #2, combining it into #1. The two of them are repetitious and verbose.

The order of the wording in #2 is also confusing. It is more clear to say more than 15% but less than 30%, not vice versa.

• Need definitions of “area” and “population.” Does, for example, the population include people that commute to and from “The area for work or just home owners? What about apartment dwellers? Does their transient nature preclude them from being counted?”

All of these definitional issues need clarification. The last idea would be to add a length of residency requirement so minorities couldn’t just churn homes because of subsidies.

QUESTION 2C: STUDENT ANSWER #2

FHA: The proposed statute would likely pass FHA muster. A major purpose of the FHA is to affirmatively promote integration. (See also Starrett City, Otero, & SSHC). This act does no harm to any party -- it only aids parties. Although its possible that a white party may claim harm to his property rights/values, its unlikely that the courts will give credence to such an argument.

1982: Unlike FHA, 1982 requires discriminatory intent (See Arlington Heights). Similar to FHA, §1982 purpose was to extend rights to African American citizens. The proposed legislation appears consistent with that purpose.

Pros & Cons: The proposal is facially neutral -- a big plus. One scholar, Roisman, suggests that white integration of predominately black areas is an important step in addressing this segregation problem. The Act uses both class and race for its underpinnings. This is a critical link to achieving true success in the public policy efforts to promote integration according to American Apartheid. The program also is similar to the Gatreaux mobility program in the Chicago area. That program has been almost universally applauded by scholars.

On the con side some such as Roisman may criticize the program as not going far enough. Although ECHO may assist higher income African Americans who can qualify and afford mortgages the poor ghettoized areas would likely become further isolated and concentrated. Roisman would also argue that the subsidies should be deep. The ECHO plan, which only addresses the down payment, may be considered too shallow.

Also, ECHO does not include those who rent -- any significant impact on segregation would need to include rental housing as well. (See American Apartheid) Some of the other cons are those often heard on similar legislation - this is costing the taxpayers money -- too much -- or that this is nothing more than another liberal attempt at social engineering bound to fail. I suggest we look at ways to cost shift to builders and/or those who discriminate and ignore those who criticize without a better plan of action of their own.

Drafting Changes: I recommend that the “or” in #2 be changed to an “and.” A loophole would otherwise be created defeating the purpose of the act. Also, the term “area” should be defined narrowly with a relatively small unit to prevent sub-area segregation.

Substantive Changes: I would recommend the deeper subsidies (i.e. to mortgages payments.) and extending the program to renters. Also, you should consider adding specific protections to people who use vouchers and subsidies to pay for housing. Rosenbaum (cited in Roisman’s piece) recommends additional assistance with employment, educational or job counseling, childcare, transportation, etc. to produce even more encouraging results than Gautraux.

QUESTION 2D: STUDENT ANSWER #1

To begin with, as a legislative assistant, I would add a preamble to the proposed amendment re-asserting the goals of the FHA, and applying these goals to the proposed amendment (“P.A.”). This might soothe fears of a Republican bringing forth an amendment to the FHA.

There are a number of technical changes that the P.A. would benefit from. a) “It” should be replaced with “A significant financial cost to the defendant.” This change would provide clarity such that 1) would read “A sig. financial cost to the defendant may be a defense to an action against a non-government defendant.” The clarity helps establish an economic exception defense under the FHA for private defendants.

Of course, the words “significant,” will need a formal definition, as will “financial cost”. Financial cost may or may not include a decrease in property values -- a formal definition would help clarify. Further, “shall” should be changed to “may”, since the defense is a permissive defense and not a command from the legislature. To help clarify, examples of what this P.A. considers “significant” and “financial costs” would give courts guidance in the construction of this amendment. Further, amendments which provide exceptions to remedial statutes are generally interpreted in a limited fashion. The extent of the limitation of the exception should be included in the R.A., not just the situations of which this P.A. would apply.

Part B should include: and this defense is available “and limited” to the situations below: “ -- the attempt to fulfill the remedial nature of the statute.

Part B (1): As for disparate impact claims (“D.I.”), if the legislature does not clarify that private defendants are exempt from a DI cause of action where there is a significant cost to the defendant, then the defendant may be overly burdened. As we’ve seen in Betsey from the 4th Cir., neutral housing policies which are due to economic reasons, but that also unfortunately affect protected class members, can cause a private defendant to suffer lawsuits as well as lost control over the rights of the property. The P.A. would correct this unfairness in the FHA. However, the defendant in Betsey, according to the P.A., would not be liable. Yet, the P.A. must not allow B(1) to be construed as not to allow a D.I. claim. The courts, when interpreting B(1) must realize that the D.I. defense is only a defense, and that certain cases will arise in which the D.I. is so very extreme and the economic burden so low as to provide an exception to the defense. As in Betsey, a D.I. claim weighed against an economic necessity is a matter of degrees. Examples showing what degrees would be acceptable/unacceptable would greatly clarify B(1).

B (3) is a broad interpretation of the court’s holding in Babin. However, in Babin, the plaintiff did not have any formal contractual obligation which could enforce the sale between the owner of the property and the Mich. Advocacy Service. As a result, the owner was forced to sell to the highest bidder of the property. However, in Babin, the actual buyer was a rabble-rouser and for the sole purpose of exclusion, bought the property before the Advocacy group could buy it. While selling a property to the highest bidder is not a crime, the court could have held that Babin interfered.

But, the intentions of the buyer goes against the stated intentions of the FHA, and to allow economics to defeat bad intentions would also fly in the face of FHA’s purpose and goals. The buyer interfered by making the housing unavailable to the advocacy service. To allow this economic exception would empower those who discriminate to do so with more immunity. While proving intent is difficult in some situations, in other situations, intent would not be disregarded. Further, bidders of houses should be required to place “good faith” bids, not “spite” bids.

B (2): this is an area that has provoked debate as well -- defendant is a real estate agent allowed to abide by a client’s racial preferences? While an economic exception might be allowed in some cases, a real estate agent already steers buyers/renters in the attempt to satisfy the customer and make a sale. Under the goals of the FHA, to allow a real estate agent to perpetuate racism or protected class biases goes against the grain of the Act. The Legislature should decide the laws governing the rules for real estate agents -- a blackletter rule would help, but one which undermines the FHA may not help so much.

QUESTION 2D: STUDENT ANSWER #2

The first textual problem in the proposed amendment to the FHA is the language “It shall be a defense...” It might serve a more protective purpose to say “It shall be a complete defense...” Otherwise, plaintiffs will most likely treat such defenses as mere possibilities, not as actual defenses. Allowing a “defense” might imply that if an action is brought to trial, such defenses are available,. However, if part of the purpose is to avoid litigation, including “complete” before defense would allow many cases to be resolved in summary judgments or motions to dismiss. The language “complete defense” might also discourage people from bringing actions that are likely to lose.

The wording “action under the Fair Housing Act” also sounds lacking. This phrase sounds clearer as: “action brought under the Fair Housing Act.” Addition the “brought” clarifies that the defense is available when the FHA is actually being used by plaintiff. Conceivably, a defendant could use the suggested defense if the action would be under the FHA, but the plaintiff brought suit upon different grounds (such as § 1982 or Equal Protection Clause). Adding “brought” might prevent a broad application of the defense to claims not brought under the FHA.

“[S]ignificant financial cost” is bound to create problems, especially in court interpretations. However, as cases are fact-specific and defendants will have varying abilities to incur certain costs, not exact figure or “fine line” can be drawn to clarify what a significant financial cost will be. Yet, different wording might be helpful to courts, or any other interpreters, of the FHA. One suggestion is to change “significant” to include “what a reasonable person would find significant to a similarly-situated defendant.” This, of course, sounds like a judicially-created test. However, such wording would be helpful to courts, especially considering that “significant financial cost” is bound to be tested in the courts upon amending the FHA. Another suggestion is to change “significant” to “material.” This change would develop another working standard that courts use frequently. However, “material” could be a much lesser standard than “significant” and such a textual change would affect the substance of the proposed amendment “significantly.” Then again, the FHA uses the word “significant” in describing what type of physical damages is excluded from the reasonable accommodation requirement. The fact that “significant” is used, though, does not mean that it is clear or could be clarified, especially when considering the great likelihood that courts will spend “significant” amounts of time determining what “significant financial cost” will mean.

Part (b) of the proposed amendment offers a list when the defense “is available.” This phrase will undoubtedly run into the common statutory-interpretation doctrine of -- excuse my Latin -- expression unius est exclusior alterius. The listing of three situations could mean two things: a. these situations are examples of when defense is used; b. these are the only situations when defense can be used. Depending on how broad the amendment’s sponsor wants the defense to apply, different wordings would be helpful. The amendment might read, “This defense is available only in the situations listed below.” This would clarify that any other situation would be wasting time asserting the defense. On the other hand, if the sponsor wants a broad application of the defense, the wording, “This defense is available, but not limited to, the situations below.” However, this would create even more litigation as people would use the defense and hope it applies to themselves. Again, using that wording would dramatically alter the substance of the amendment. Thus, for the sake of clarification, the amendment should read, “This defense is available in only the situations listed below; so that the scope of its application is clearly defined and the expressio ... argument can be anticipatorily avoided.

Part (2) of sec. (b) uses the term “real estate professional.” The rest of Part (2) concerns clientele, implying that “real estate professional” refers to “a person acting in the capacity of a real estate agent.” This wording more accurately defines the type of person who will be afforded a defense. In Babin, such a question arose as to whether real estate agent meant person who works for a real estate agency and is acting outside of real estate agency or a person who is acting as a agent of the real estate agency. A person who works for an agency, but is selling her own house (privately), is still a real estate professional. Since the amendment refers to clientele, however, it might be helpful to clarify “real estate pro.” to say “person acting in real estate agent capacity.”

As to the substance of the amendment, there are a few pros. Since it applies to non-governmental defendants, its scope accurately reflects a governments laissez-faire attitude towards the private sector. Also, disparate impact claims would actually be harder to defend. After Betsey, a defendant could argue that a change in action would not justify an increased cost to D. But this amendment would ensure that the cost would be “significant.” (Assuming that courts will not find petty cost to be significant, of course.) Congdon involved a $65,000 repair that the courts found would not be justified as an increased cost. It is possible that this case would be decided differently under a “significant financial cost,” again depending on how large a sum the courts will find as “significant.”

One problem that might be textual but touches on substance, is the defense for a “decision by a real estate...” If a tester states a preference to a real estate agent, and the real estate agents implies she will follow such preference, she can then be protected. No action is req’d by agent, only a “decision.” However, can such a simple decision comport with a “significant financial cost” to an agency? For example, a real estate agent who shows a person with “white preferences” a home in a black neighborhood could lose a sale and waste time and money showing the house. But having the policy to not “decide” to “adhere” to the preferences won’t really cause a “significant financial cost” to the agency.

For policy purposes, the real estate agent defense should be totally eliminated. The Babin court shows concern with allowing institutionalized racism via real estate agencies. Further, the broad policy of the FHA is to promote integration. Allowing real estate agencies a defense to preferring certain neighborhoods is counterproductive to integration goal. No one has to accept a house in an unpreferenced neighborhood, but the FHA shouldn’t allow agencies to perpetuate such preferences, especially where a significant financial cost would be spent towards another sale, NO real cost is incurred.

Section (3) allows a good defense situation by extending defense to bidding. Any bidding always has the effect of denying housing to lots of protected classes. Further, the bidding process is based on economics, upon the assumption that the highest bid will get ownership/rental. A protected class is not excluded, but still has the opportunity to out-bid. This ensures owners of house value it most. (Value maximization).

However, the “regardless of the purpose of the bid” language must must be omitted. Allowing any purpose contradicts the economic intent of bidding and the amendment itself (free market). Economics do not rely on racist purposes, for instance. Allowing no review of intent will open doors of pretextual bidding which the FHA should never allow. Thus, the “regardless of ... purpose” should be omitted to avoid pretextual racism and to maintain the economic posture of the amendment.

One last addition is to add a clarification that “significant financial cost cannot be a pretext to racist intent.” This is to clarify that significant cost can’t be used as a defense with some review of intent. Otherwise, the “economic” defense would be used for racist, not economic, purposes. Adding this language would help to remind courts that intent still matters.

Question 2E: Comments

This amendment was designed to address two problems we discussed extensively in the second half of the course: your interest in control over people with whom you share living space and your interest in doing what you want in the privacy of your own “home.” The first provision allows any form of discrimination (except race) when choosing roommates and pre-empts state and local statutes. The model answers do a good job picking up the drafting problems with this answer; lots of terms will need to be defined. I was hoping the substantive discussion would cover whether sharing living space is so different from other housing decisions that it warrants a broad exemption and whether an exception for race would be a good idea. Both models make some useful arguments on these points.

The second provision creates a new prohibited basis for housing decisions: activities taken within the living area that don’t affect people outside the space. Many of you had trouble with this provision because you seemed to assume that the exceptions embedded in it would apply to other prohibited categories as well, which it does not say. My goal (which may not have been clear enough) was to provide protection for things like political, sexual, and religious activities that cannot be seen, heard or smelled outside the living unit. As many of you pointed out, both the word “sensed” and the phrase “contrary to relevant law” needed to be defined in order to put appropriate limits on the statute. However, my assumption was that a landlord should be able to restrict loud parties, illegal drug use, and cooking or other activities that send offensive smells into other people’s homes. Because my intent was apparently not clear enough, the discussions of this provision tended to be a little bit confused. Both models contain a number of useful points, given their reading of the provision.

Question 2E: Student Answer #1

Drafting Changes:

(A1) It will not be a violation of any state or federal fair housing statute for a person, in selecting another person to share a housing unit with, to refuse to select another person for any reason other than race.

(A2) It will not be a violation of any state or federal fair housing statute for a person to refuse to share a housing unit with another person for any reason other than race.

- change from “living space” to “housing unit b/c living space is a vague term, that could mean anything (a shared living room, a common courtyard in an apt bldg, etc.). “Housing unit” makes it clear that the parties will be sharing a housing unit. Even still, it might be a good idea to define “housing unit” to include situations involving a shared apartment and situations involving a rented room in a private house. The definition would exclude landlords who live in the same building, but do not share a housing unit with their tenants.

-“race” could be defined but this might be tricky and could make the statute harder to pass b/c everyone would have an interest in how it is defined. I think the courts would be able to define this themselves, as they generally do in applying Title VII, FHA, etc.

-A1 keeps the original statute’s focus on selecting a person to live with. At the same time, the language is awkward, and a bit difficult to phrase clearly (for me anyway). A2 might grant a broader right—not just applicable to situations where people select someone to live with, but to situations where people are assigned to live together? - but I think I reads much more smoothly. I guess it is a question of specificity and precision v. simplicity.

(B) It is unlawful for any person

1) to refuse to sell or rent because of activities the buying or renting party is undertaking, or intends to undertake on the premises, as long as these activities cannot in any manner be sensed outside the housing unit in question, unless such activities are unlawful.

2) to refuse to negotiate for the sale/rental of a housing unit to any person b/c . . .

3) to otherwise make unavailable or deny a housing unit to any person b/c . . .

-generally, I have attempted to clarify who is acting and what actions are prohibited by breaking the unlawful acts into 3 subsections

-I changed “dwelling unit” to housing unit to be consistent throughout the amendment.

-I removed the “bona fide offer” requirement b/c it seemed superfluous- if you refuse someone b/c they didn’t make a bona fide offer, then you are not refusing them “b/c . . .” On the other hand, if it serves as a condition precedent (Π must make a bona fide offer before they can claim discrimination) we might want to add it back in there.

Pros/Cons: (A) The general purpose of the FHA is to provide equal housing opportunity for all people, but the courts and local legislatures clearly grant varying levels of protection to members of different protected classes. This is especially true when comparing race and sex discrimination (see, e.g.,Braunstein, Wisc. §106.04(5)em). This statute would create a narrow exemption to the FHA (and State Stat’s) prohibition against discrimination, applicable only in situations where people are sharing a housing unit. Landlords renting for profit would not be exempt from these anti-discrim statutes, except in the very narrow case of if they were sharing a housing unit with a tenant (and housing unit ( an entire apartment building). While some might argue that arbitrary discrimination is never ok (Marina Point), the truth is that there are any number of reasons to permit people to discriminate upon who they will share living space with:

-privacy - esp re: sex, sex or. and family status

-safety - sex

-religious beliefs - sex, sex or., fam. status, marital status.

These concerns may not be strong enough to overcome the government’s interest in ending race discrimination, but they would permit a limited exception where people are sharing living space. Asking people to live on the same street, or on the same floor, is one thing, but asking people to share intimate, private living space is entirely another.

(B) The language of this subsection is problematic b/c it encourages people to assume that people will engage in certain behavior b/c they are members if a particular protected class. As worded, this exemption would promote the stereotypes that create the housing discrimination the FHA was enacted to combat. In particular, the language “so long as these activities cannot be sensed in any manner at all outside the dwelling unit in question” creates an enormous loophole - can the L “sense” her client’s activity from their status as a member of a protected class? (See Norman, see also Sprague, noting that a lesbian did not waive her rights under the ordinance when she revealed her sexual orientation). Clearly, the answer should be “no” but the courts (Norman) may say “yes” if is true that (A) also permits people to act on their stereotypes, but (A) only applies where people are sharing a housing unit. (B) would apply to any sale or rental of a housing unit, and thereby create a much bigger exception [MF: See comments on this] , which would threaten to undermine the entire purpose of the FHA, and of state and local anti-discrimination statutes.

Substantive Changes: (A) I might actually drop the exemption for race, for the same general reasons I would permit the statute itself. Sharing a living space is different than living next door to someone. The government may have a stronger interest in preventing racial discrimination, but this interest would not be violated by permitting people to discriminate re: who they will share a house/living space with. Sharing a bathroom/cooking area/etc. with another person is hard enough as it is. While neighbors who don’t like each other can go into their separate homes and close their doors, people who live together don’t have any “private” place to retreat to - their home is supposed to be their retreat. This is as true for the person being discriminated against as it is for the person doing the discrimination. Of course, in this case, you would want to define “housing unit” very narrowly, and maybe even place a limit on the # of people sharing the housing, to ensure this narrow exception does not grow to a huge loophole that would promote segregation rather than integration.

(B) If this statute is trying to create a privacy right to cohabitate, live w/ your gay lover, etc,. I think it would be best to come right out and say so, instead of hoping the courts can muddle through. An expansive list, designed to be read ejusdem generis, would at least guarantee/specifically protect certain rights (cohab, sexual orientation, religious practices, etc). while leaving the courts some flexibility to deal with any other, unanticipated situations. You’d want to leave some sort of general term to be read in light of the specific examples. I would remove the exemption for “activities that can be sensed in any manner” entirely - the exemption for unlawful activities should be comprehensive enough.

Question 2E: Student Answer #2

This amendment is intended to protect the rights of individuals to choose who they share a room or an apt. with, as well as the rights of individuals to cohabit. I believe that you should back this amendment only if the following changes are made. Without the changes this amendment would be unclear and protect activities which you would not intend to be protected.

Section A: First thing that should be changed is used of the word person. This word, as defined in the FHA, does not only include individuals, but also, corporations, partnerships, labor organizations and many others that you would not want this section to apply to. You also don’t want to redefine person as it has a clear meaning set forth in the rest of the statute which would then need to be altered. Perhaps can just use the word individual, which is not already set forth in the statute and is not defined. Make sure that the section uses consistent wording and doesn’t use a different word each time it means individual.

You should also have the term living space defined. What constitutes a living space: is it an apt, an entire house or a room? Also, if an apt., how many bedrooms? Does that even matter. Is it a problem if they share a bathroom space or even if they have separate bathrooms? I would say that living space is an apt. or single family house.

There is also the question as to why race is the only exception. If we want to allow individuals the right to choose a roommate freely b/c of privacy concerns, why is race not part of that concern. If it is for safety reasons, than what is the problem with religion or handicap?

The section is also too wordy. Perhaps you should cut it down to: It will not be a violation of any state or federal fair housing provision for an individual to refuse to sell or rent to another individual, with whom such individual would share living space, for any reason, except for race. [MF: Nice clear rewrite]. May also perhaps want to put the race exception as a subsection of this section: Stating something like: the provision in Section A is not applicable if the refusal to rent or sell is based on the individual’s race.

Section B: The first thing that needs to be clarified is what is meant by relevant law. That term is not defined in the statute. Does it mean state, municipal or federal laws. Does it just mean illegal? In that case, what about sodomy laws in some states? Is it meant to include those? Also may want to define activities. The word premises is also vague. Does it mean the building, does it mean the surrounding areas or does it mean inside in the apt. Finally what is meant by sensed? Does it mean to smell, hear or see? Be more specific. I would remove the phrase contrary to relevant law and substitute illegal or unlawful. I would define premises to be rooms or units in a dwelling.

The amendment would be clearer if it read: It shall be unlawful to refuse . . . Person because of activities undertaken, or intended to be undertaken, on the premises, unless such activity is illegal or could lead to destruction of the premises. I added the destruction of the premises part b/c as written, this amendment may not allow LL the right to make a determination based on the best interest, economically, of their property. Meaning the economic loss suffered b/c of tenants destroying the property.

I removed the sensed in any manner b/c I find that that brings into play too many privacy issues and what constitutes outside the dwelling. Cooking smells linger outside the dwelling. Noises go outside the dwelling. It is best to just stay away from that because it is extremely cloudy, no real way to define. There would be a lot of, judicial interpretation done on it. Also, are we really saying that it would be unlawful not to rent to you if you cook Indian food in your premises, unless the smell of the Indian food permeates the outside of the premises.

General Points Although the overall purpose of the amendment is to protect privacy and I believe you should support such intention, here are some of the things you may want to consider in making the decision. Section A is left open so that it is okay to discriminate against someone on the basis, of sex, color, national origin, religion, handicap, familial status, marital status and sexual orientation. I know that marital status and sexual orientation do not appear in the FHA, but they do appear in many state fair housing provisions. We may want to rethink whether we want this interfering w/ those provisions of some states. Also, are we comfortable saying you an discriminate, just not because of race. Must also wonder if this will create a housing problem for those who are being excluded. Section B which is meant to provide for cohabiting couples or perhaps for people’s sexual activities inside their homes can perhaps lead to the protection of things which we have yet to consider that we may not want protected. Perhaps Section B can be made even more specific to its intended purpose.

Also, Section B as drafted by me, without the provision of destruction, takes away too much discretion from the landlord. It basically says that he cannot discriminate unless the activity is illegal. Wild fraternity parties are not illegal, but they are destructive and place an economic burden on LL. W may perhaps want to leave some discretion in the hands of the landlord. We may perhaps want to make provisions for religious exception. For example the provision as drafted would not prevent someone who wants to maintain a dwelling Kosher from not renting or selling to someone who will cook pork and shellfish there. Those are not illegal activities.

QUESTION 2F: SAMPLE ONLY; NO MODEL ANSWERS

Question 2G: Comments: I read through your answers to this question two times each. The first time through, I put a check mark next to each correct relevant point you made. As with the midterm, this “quantity score” is a way to try to distinguish the pithy from the verbose and is a small consideration in your ultimate grade. Your quantity is listed on the top of first page of your answer after the letter Q. The highest score (the first model) was 73; the median was in the low 30s and the mean was about 35. Several of you had fewer than 20 checks, which is very very weak for a one hour question. Do not fret about places where you think I left off a check or two; differences of fewer than ten checks would not affect your grade.

Although I thought this was the easiest of the three questions, only 16 of you chose it and many who did provided quite short and superficial answers. As always on Question II, I rewarded careful work identifying technical deficiencies in the proposed statute and thorough evaluation of the substance of the proposal. Both models provide good analysis of the technical issues. The first model answers provides serious pros and cons for all three provisions. Many students gave only pros or only cons regarding at least one of them.

General Concerns: The three sections of the amendment are different in kind. The first two are clarifications of the kinds of evidence that are relevant to a §3604(c) claim. The third is a defense. Several of you, including the first model, usefully restructured the amendment to emphasize this difference.

Several of you suggested changing or defining phrases that I took from other parts of the FHA. Careful drafters crafting amendments will incorporate terms used elsewhere in the statute, precisely so that no further explanations are needed. The drafters know that courts can and will rely on existing cases and definitions to clarify the meaning of the meaning of these terms. For example, §3604(c) already includes the terms “notice or advertisement,” so they probably don’t need any definition.

Many of you made changes to the language of the amendment and either provided a very general explanation (“this will make the statute clearer”) or provided no explanation at all. I tried to figure out what you were doing and give you credit if I thought your changes were sensible. However, I am certain I would have given more credit if you gave a specific pertinent rationale. As with any other type of exam question, the better answers explain what they are doing.

Several of you spotted the issue from the readings that drafters often misuse “shall.” However, you need to replace it with something more certain than “may be” (as in: “use of human models may be relevant” to determining whether 3604(c) is violated; or “undue expense may be a defense.” What you probably mean is that the models will be relevant or the defense will be available in the appropriate cases only. However, that is true of any factor or defense. Using “may be” suggests some other condition must be met and will leave courts wondering when they should allow the evidence or the defense.

Section 1: This section had two purposes. First, it made clear that one could base a §3604 (c) claim on human models, codifying the existing caselaw. Many of the answers noted the reasons from the cases for allowing these claims and pointed out that it might be useful to demonstrate that Congress supports the results in Ragin and its progeny.

Second, this section limited the characteristics for which a human models claim is available. The first model provides the kind of particularized discussion of pros and cons of excluding “handicap” that I was hoping for. Some of the other answers did some similar analysis of sex and religion.

Many of the answers suggested that it simply runs contrary to Congress’s intent to treat protected characteristics differently. This seems overly simplistic to me. First, Congress does treat some characteristics differently. The religious exemption does not apply to race claims. The senior citizen housing exemption only applies to familial status claims. Several provisions apply only to claims based on “handicap.” Second, the nature of statutory amendments is that Congress is allowed to change its mind and have new intent about certain issues. To argue against the provision convincingly, you must make a substantive case that coverage for one or more of excluded characteristics is important.

Section 2: This section codifies the rule developed by the HUD regulations that choice of media is relevant in determining whether an advertiser has indicated a preference. We discussed some of the pros and cons of this in class. You should have been aware that this is not a new idea, but something HUD already does.

Some of you seemed to think §2 would prevent developers from targeting upscale buyers with, e.g., direct mail. I don’t see why it would unless the targeting tended to exclude people who could afford the housing in question on the basis of one of the prohibited characteristics (e.g., by targeting upscale zip codes that are predominantly Anglo but not upscale zip codes that are predominantly Latino).

Some of you saw in the “target audience” language an attempt to regulate affirmative marketing plans. I think the statute would have to be much more clear if it were doing that. The affirmative marketing cases seem to allow advertising that, at least in terms of placement, indicates a preference. Thus, a provision designed to permit affirmative marketing would probably have to take the form of an exception.

Section 3: This section would have codified the possibility we discussed in class of having the equivalent of a smallholders’ exemption for certain kinds of advertising claims. You would not be expected to show multiple models or run your ad in more than one media outlet if you were only advertising for a couple of units and the additional expense would be significant compared to your overall budget. As several of you noted, the provision as written might also be used by defendants like Saunders who might claim that it was too expensive for them to rerun existing advertising stock.

Many of you argued without out (much supporting analysis) that this loophole would eviscerate the statute. That seems to me unlikely. Any ad with several models in it already would seem to fall outside the defense as would the advertising for any very large development or apartment complex.

Many of you thought that “unduly expensive” was too vague or needed to be defined. Keep in mind that courts utilize tests like “unreasonable” and “undue burden” all the time and are used to weighing pros and cons. You need to discuss why it might be preferable to have a less flexible standard, rather than assuming that these standards are inherently a problem.

Question 2G: Student Answer #1: Technical Drafting Changes: I might propose the following:

For the purpose of this subsection, relevant factors may include –

(1) The selection of human models for discrimination claims based on race, color, national origin, or familial status.

(2) The particular form of media, location of distribution, or target audience.

Nothing in this subsection requires an advertiser to incur unreasonable expenses to include additional models or advertise in additional forms of media or locations.

The reasons for these technical changes are to ensure that the courts understand exactly the purpose of the amendment. In terms of consistency, I proposed to include the phrases: “For the purposes of this subsection” and “ Nothing shall…”, this helps the amendment to match the rest of the FHA and also helps to clarify that these provisions only apply to 3604 (c). The word “shall” should normally not be used (it tends to be verbose and can usually be replaced with a better word). However, because it is used throughout FHA, I erred on the side of being consistent. In addition, these technical amdts. makes the statute more precise and clear.

Furthermore, it is important to get rid of vague or ambiguous words like “unduly.” Instead, I used “unreasonable” which is also consistent with the statute (see 3604 (F)(3)(B). Although “unreasonable” may also raise some questions of meaning, the courts are equipped to deal with that consideration based on the frequency of its use. Using the word “unreasonable” instead also does not alter the meaning of the proposed amendment by replacing “unduly”.

I was also able to exclude lengthy word choices or phrases that did not add much to the statute; for example: “at the present time”, “that results from that also”. It is important to be as clear and simple as possible so the statute/amendment is easy to follow and interpret. The language should be no more complicated than is necessary. Also the proposed amendment only cited two forms of advertising: notice or advertisement, where 3604 (c) included another type of publication – statements. I was able to phrase the amendment in a way that included all forms of publications (consistency).

Pros for the substance to the amendment: The amendment is a good step toward clarifying what factors should be considered in an advertising claim. The amendment acts as a better guide for judges/jury instructions. This will not only make the interpretation of the advertising provision easier but will also aid in the uniform application of the law. In addition, the amendment ensures that a fundamental form/means of advertisement is examined in these cases: use of/selection of human models. A picture may actually sell the product more and actually draws a connection to the product, so it is important that they are considered.

The amendment also makes a good point in excluding “handicap” from the list. Although excluding another selection of models (based on race, national origin, etc.) may raise serious FHA concerns, excluding handicapped individuals is really a different matter. The outright non-use of handicapped models doesn’t necessary indicate a preference for non-disabled (in a way that excluding Blacks would) people don’t just normally consider handicap as a class of people to be represented, but that decision is not based on their disability (necessarily). In addition, it would impose too great of a burden on advertisers to include all categories (including handicapped) – that would just be unrealistic. In addition, the other categories (race, national origin, familial status) have a huge history of discrimination that requires their extra protection (see apartheid) where in terms of the disabled, the problem is not as frequent/historically evident. The categories are all about different problems so it is okay to treat them differently – and here is an example of where the disabled really don’t need that kind of protection (especially in terms of burden on advertisers).

The second clause is also beneficial because it ensures courts consider what form of media is used and the target audience. If not for this factor, LL could advertise in all white areas, so even by including ½ of models of another race, it would not reach that other race and so the purpose of using black models (e.g.) would be defeated. If not for this provision, LL could get around 3604 (c) easily by just targeting a group according to the area.

Furthermore, the unreasonable clause is also a good idea because it reflects the same idea as in a reasonable accommodations claim. The clause allows for the courts to determine where they would pose too much of an undue burden on the advertiser. This will be especially true in terms of a small business owner, we don’t want the FHA requiring small business to go bankrupt or feel financial instability for their little ad. This clause ensures the policy behind FHA 3604(c) is satisfied without imposing an undue burden on advertisers.

Cons for the amendment: Although the amendment may be attempting to give relevant factors to consider, it is important they aren’t read to be restrictive/exclusive. We don’t want judges to only examine those two clauses (see technical changes – so it wouldn’t likely be a problem).

The amendment is also contrary to the policy of FHA by failing to provide protection for the disabled. In the past, we have if anything, singled out the handicap to provide additional protection be we have never outright excluded them. The handicapped are excluded as a group under the FHA because of the frequency of discrimination against them. Therefore, they should also be protected in the advertising arena. Although it is true that historically other groups (like race) have had more historical discrimination, that doesn’t mean the disabled shouldn’t be afforded the same protection. Who knows how the trend in discrimination will shift? We need to protect all groups from this form of advertising. In addition, just because other people don’t think of the handicapped as a group that needs to be represented, doesn’t mean we should go along with that ignorance. Furthermore, as clearly indicated by the amendment, the selection of models would only be one factor to consider. So it doesn’t mean that all ads would require a person with a disability, by including the handicap in the list it just means the lack of them will be considered (but it wouldn’t be dispositive)

The second provision is just an added burden on small advertisers. Notice there is no small holders exemption to 3604 (c), so a small business owner can be required to place very expensive ads in 2 or 3 different newspapers (e.g.) if in a large city.

The statute is also not a good idea because of the major loophole it leaves open in the “unreasonable clause”. This clause will allow a small (and possibly large apartment complex/advertiser) to openly discriminate by excluding all African Americans (e.g.) from its ads on the simple basis that it couldn’t afford to reprint them. This provision allows for a wide distribution of discriminating ads for an endless amount of time (so long as the advertiser can claim it would be unreasonable to change their ad to include minorities). Now it is true that this situation may not come up that frequently but really that isn’t the point. If it can happen at all, it should be prevented. If the advertiser is really in such a dire financial position, then he should have to come up with another form of non-discriminatory advertising other than publishing 68 whites in a brochure.

Substantive Changes: Aside from possibly adding handicap to the amendment (see argument above) I would probably list out other possible, relevant factors to consider. Such as, # of times the ad was published or distributed, the size of the ad, quality of ad, actual # of models used (as opposed to just the selection of them). A more detailed list of factors to consider would provide better guidance and uniformity of applying the law.

Question 2G: Student Answer #2 (Technical Drafting Issues Only):

Subsection 1

• Replace “selection” with use. It is the use not the selection of the human models that gives rise to the claim for discrimination because the preference is inferred from the use.

• Remove word “appearing”. If the term “use” replaces “selection” then “appearing” is redundant.

• Include “statement” along with notice and advertisement to be consistent with 3604(c). (do same in §2)

• Add language to clarify “relevant consideration”; it is unclear whether the use of the models will be a relevant consideration in determining whether the ad/notice indicates a preference and is therefore a violation or whether it is a relevant consideration that the ad/notice is a violation. One sure way to defeat the purpose of a statute is to use language that could be considered ambiguous.

• Replace “but only for” with the term provided. Simple language is preferred in statutory drafting.

• Remove the word “relevant” prior to listing the protected classes to which the subsection will apply. Use of the word relevant is redundant. If a claim has been made, it is made in regard to one of the protected classes.

• List the protected classes that are included, not those that are excluded; this will give you a shorter list to work with.

Resulting subsection:

The use of human models in any notice, statement or advertisement shall be a relevant consideration in determining whether such notice, statement or advertisement indicates a preference, limitation or discrimination, provided the claim is not based upon religion, sex, or handicap.

Subsection 2

• Replace particular media or location with “means”. “Means” will be more inclusive of all possible media outlets; probably helpful to include an illustrative list defining “means”.

• Replace “displayed/distributed” with communicated. Less words are used to convey same meaning – easier to read. Also communicated a more “catch-all” term.

• Place “resulting” in front of audience and remove “that results from that”. Use less words to convey same meaning; you also know that “resulting” is modifying audience – removes any ambiguity.

• Replace may with “shall be” prior to relevant in second to last line. The term shall was used in (1) – this will allow you to maintain consistency in the use of language.

Resulting subsection:

The means by which any notice, statement or advertisement is communicated and the likely resulting audience shall be relevant in determining if such notice, statement or advertisement is in violation of this subsection.

Subsection 3

• Replace “it is a defense…” with “Nothing in this subsection…”; this will allow for consistency in way other defense are drafted (e.g. 3604 (f)(a)

• Remove term “defendant”; this term is not used anywhere else in the FHA; should be replaced with “respondent” as defined in §3602(h).

• Replace media or locations with “means” for same reason cited in changes to (2).

Resulting subsection:

Nothing in this subsection requires a respondent to use more models or advertise by additional means, where such use or advertisement imposes would constitute an undue expense upon the respondent.

QUESTION 2H: Professor’s Comments

What I Was Looking For:

Clause (a) (necessary/affordability): This is a sloppy attempt to codify the Seventh Circuit position in Hemisphere. You could have discussed whether that position was a good idea and how you might modify it to, e.g., allow the sort of analysis that the Sixth Circuit employed in Smith & Lee.

Clause (b)(fund’l alteration/8+ residents) This is a large change to the statute. It would mean that allowing group homes of eight or more could never be a reasonable accommodation in a residential neighborhood. You should have discussed whether that would be a good idea and suggested alternatives that would be a little less severe.

Clause (c) (exhaustion): This is an attempt to codify the sort of distinction between traditional zoning matters and disability accommodations that I suggested in class. It probably is too vague as written. You might have discussed the pros and cons of an exhaustion requirement generally and suggested ways to make this distinction clearer.

QUESTION 2H: Best Student Answer

Drafting Changes: The first problem that I see is that this that this intended bill is directed at group homes. Nowhere in the bill or in the prior two sections of 3604(f) do I see a mention of group homes. Thus, I would mention in the first line that it applies to group homes.

Second, I see a few words that might be need to be defined:

- b/c this section is specifically talking about group homes it might be more clear if you indicate that reasonable accommodation has the same meaning as it has in 3604(f)(3)(B). The same should be said of necessary.

- Also might want to define what a fundamental alteration is. One suggestion might be as defined by caselaw.

~ Zoning Authorities- Might want to say this means zoning boards, planning departments, city councils, or those who make zoning laws.

-Administrative remedies-just might want to clarify this means appeals from the zoning board. This probably is reasonably clear but it is better to err on the safe side.

Redrafting:

1) Where A GROUP HOME seeks a reasonable accommodation to a municipal zoning law:

A) AN accommodation WILL NOT BE CONSIDERED NECESSARY IF the only basis for a claim of necessity is that the GROUP HOME CANNOT AFFORD TO OPERATE.

B) It MAY be deemed a fundamental alteration of a HOUSING zoned single family residence to allow a group home in the zone with eight or more persons. (I think taking out primarily is good b/c it is either zoned Single Family or it is not. Second, taking out unrelated is good b/c it gets rid of any potential Oxford House problems.)

C) Exhaustion of administrative remedies is only NECESSARY for matters within the expertise of the zoning authorities.

Pro and Con

A) The pro of this is that it limits accommodations to those in which are really necessary. We cannot simply allow reasonable accommodations to be handed out like candy or else they will not be deemed as being necessary and reasonable, thus defeating the whole purpose of the reasonable accommodation. Furthermore, Simply having a lack of funds is not necessary b/c one has a disability it is necessary b/c one does not have sufficient funds to run a group home. This is very similar to the decision that was laid out in Hemisphere. In that case Posner stated another important reason for not allowing such an accommodation. If one could get an accommodation for the handicapped on the basis of insufficient funds this would allow that person to claim all kinds of benefits under the FHA such as special breaks on one's taxes or other special breaks.

The con side is that this might prevent people from integrating into the community. The reason being is that part of being necessary is being affordable. For example, if a new kind of mental illness were to be discovered and that mental illness required constant care which was fairly expensive the only way in which a group home could operate is if it allowed for numerous patients to be cared for at once. Otherwise it simply would not be profitable to do so. Thus, this could create a chilling effect which would effectively keep group homes from opening and thus would confine these people to institutions which would go against the purpose of the FHA. As HR 101-711 notes the purpose of the FHAA is to allow for independent living of the handicapped and to prevent interference with this independent living.

B) The pro of this is that this allows for cities not have to specifically prove that there is a fundamental alteration. Usually a SFR zone limits the number of residents that can live in a house so that it will cut down significantly on problems with traffic, parking, noise, crime, litter, and cut down on a strain of city services such as sewer, fire, police, etc. Thus, giving the city the option to claim that having eight or more residents would be consistent with the purpose of single family residential zoning. All a city would have to do now is cite this statute and they would not have to worry about something being deemed as not a fundamental alteration.

The con of this is that there does not have to be any specific findings. What if there is a group home that needs 10 more residents for therapeutic reasons. The city could simply cite this as saying that this is a fundamental alteration and thus they can claim that this is not REASONABLE, even though this group home may need more than 8 residents for

treatment purposes. Furthermore, what if there is a city that allows for 7 people in a SFR zoning. As the reasoning in Smith and Lee goes would the increase of one more resident really be a fundamental alteration of the neighborhood? Finally, what if there is a group home where the residents can cannot leave and cannot receive any visitors for treatment

purposes. Would there be a fundamental alteration? There would not be parking, traffic, or police problems. There may be a slight increase in sewer but this could be determined on a case by case basis.

C) The pro of this is that it admits that zoning authorities are not experts on handicaps under the FHA. Decisions regarding the FHA should best be left up to those who can adequately interpret the statute namely the courts. This also saves time and money which

many of these group homes simply do not have.

Con: This takes autonomy away from group city zoning boards and thus may anger local government. Furthermore, what if the zoning appeals board would have granted the

accommodation, this would have actually been cheaper and less time consuming than taking it to court.

Substantive Changes

A) Here we might want to make an exception that is similar to Smith and Lee. That is that if one could prove that they could not get treatment outside of an institution unless a group home was profitable then they should be able to be exempt from this. This goes along with the stated purpose of the FHA, integration and treatment outside of institutions.

B) I think that this subsection should be deleted altogether. It frustrates the purpose of

the FHA. There could be many instances when more than 8 is needed. Furthermore, this is a decision that has traditionally been left up to local governments and it should probably be best left in their hands b/c they know what is best for their city on a local level. It could also prevent treatment for therapy reasons.

C) I think that we should clarify what is meant by matters within expertise; would define

Question 2I: 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 2I: 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 2I: 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 2J: Comments: I was a little disappointed here. 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.

Question 2J: 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 → Ockham’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.

Question 2J: 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.

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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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