WRITTEN ASSIGNMENT V (FALL 2006):

COMMENTS & BEST STUDENT ANSWERS

(O) Overview: General Comments & Recurring Concerns: These are useful problems for exam preparation purposes because they are the kind of focused statutory question I often test in Question I or as part of Question III. In general the submissions were a little thin. Many of you made a few basic points for each side in a pretty wordy way and used up your available space. Only one student took up the invitation in the instructions to use an abbreviated exam style and the resulting submission included vastly more arguments than anyone else did (it is the first model answer for each question). I don’t agree with every single pointin that answer, but it provides the sort of well-organized thorough exploration of the issues that earns very high exam grades.

Some recurring technique concerns that are relevant to exam-taking:

(1) Starting with conclusions: In general, I think it is unhelpful to start your analysis with your conclusion unless the format of the question requires you to do so. First, you get no credit for the conclusion until it is supported by analysis. Perhaps more importantly, I think that once you put the conclusion on paper, you tend to commit to it mentally and are less likely to give enough weight to counter-arguments.

(2) Presenting Both Sides: You were asked to provide both pros and cons and then discuss which position seemed strongest.

(i) Some of you only provided arguments for one side, which is a bad habit to get into even if you haven’t been given specific instructions to do more.

(ii) Many of you put all the arguments on one side first, then all the arguments on the other. I think this is often less effective than organizing the arguments by topic and giving both sides on each topic. This opens the door to a more extended dialogue on any given topic if warranted.

(iii) When you identify one argument or set of arguments as stronger, you need to explain why.

(3)When to Include Facts of Cases Discussed: Despite explicit instructions to the contrary, many of you described the programs at issue in Starrett City and/or South-Suburban in some detail at the outset of your analyses in Problems A or B. For the kind of work you are doing here and on exams, you should try to use the facts of the cases during your analysis, but you only need to tell me those facts you are actually working with and only when you are about to work with them.

(4) “Discrimination”is a very amorphous word that generally should be used only as the conclusion to your analysis, not as part of the reasoning. Many of you made statements like, “The affirmative marketing plan in South-Suburban should violate the statute because it’s discriminatory.” I don’t think this tells us anything. Compare:

The affirmative marketing plan in South-Suburban intends to increase the percentage of white people viewing the houses in order to make it more likely that one of more of the houses will end up with a white owner. Given the history of racial segregation, a plan whose purpose is to try to make it less likely that houses will have Afr-Am owners should be viewed as discriminatory.

(A) Assuming Starrett Cityis binding precedent, does the program at issue in South Suburban violate §3604(a)? Your discussion might consider some or all of the following: The analysis of “benign discrimination” used inStarrettCity;whether South Suburban is distinguishable from StarrettCityas a matter of statutory interpretation or as a matter of policy; whether the 7th Circuit’s analysis is convincing.

(1) I Was Looking For Some of the Following:

(a) Language Arguments: No “denial” because of race v. de facto “make unavailable”

(b) Application of Starrett City (SC) factors:

(i) Temporary in Nature: 3 houses, 1 sale each, like Oterov. ongoing program

(ii) Defined Goal: “More whitetraffic” count?

(iii) History of Discrimination/Imbalance: No history by South-Suburban (S-S) itself, but city has imbalance & delegated addressing it to S-S

(iv) Increase/Decrease Minority Participation: No express limit so not like SC, but intent is to have some more sales to whites.

(c) Factual Distinctions from SC

(i) Not quota & realtor explicitly told not to discriminate

(ii) Afr-Am buyers can still outbid or outqualify whites

(iii) Part of larger race-neutral strategy

(iv) Small effect on market: just 3 houses

(v) Very similar to Otero

(vi) Benefits to whole neighborhood if plan drives prices up

(d) Key Questions:

(i) Is it appropriate to view the relevant transaction as just these three sales or to look instead at the whole program, which will include many more transactions, but will include some affirmative marketing aimed at non-white home buyers. Note that a court is more likely to approve the challenged program if it believes that rejecting it will require also rejecting affirmative marketing targeting non-white buyers.

(ii) If the purpose of attracting more white traffic is to end up with more white buyers to help re-integrate the neighborhood, is this really any different than SC?

(2) Common Problems

(a) Many of you made mistakes describing the programs in SC & S-S (e.g., calling the transactions at issue in S-S “rentals”). This would count against you onan open-book test, let alone on a project that you had two weeks to complete.

(b) When you are working with cases, you need to be accurate and precise about what the case actually says. If you are arguing that it should be read or extended more broadly than its language will completely support, make that clear (“SC says ‘XXX,’ which suggests that the court believes that ….”) Otherwise, it looks like you are deliberately misrepresenting the case.

(c) Relatedly, many of you read SC to stand broadly for the proposition that you cannot use race as a factor at all in making housing decisions. The case doesn’t say that. If it did, there’d be no need to adopt the elaborate affirmative action analysis from Title VII. Moreover, SC reaffirms Otero, which allowed race-conscious housing decisions. It also acknowledges that integration is one of the primary purposes of the FHA.

(3) Best Student Answer #1:

(a) Args South Suburban (SS) Program violates § 3604(a) under StarrettCity (SC):

  1. Differences between SS prog. & SC prog. (see(b)(1) below) only technical – in reality, effect still same (denying minorities housing by showing a preference for whites).

1st- provision in SS agreement saying realtor can’t take action limiting based on race just lip service – program itself contracting w/realtor to do just that!

2nd -“Affirmative marketing”(AM) targeting only whites has effect of excluding blacks, making harder for them to find out about housing, thus harder for them to get it, just like racial quota.

3rd – Program not temporary b/c no provision that SS will not continue buying houses and marketing them in same way, w/no goal set for # of houses or date when program will stop preference for whites.

4th - Title VII affirmative action (AA) cases cited by SC as allowing progs remedying past imbalance meant to remedy past imbalance/discrim. against blacks, not whites! If prior imbalance favors minorities, and prog. at issue disfavors minorities, then not achieving approvable “AA” goals, and does not pass title VII test SC used for housing. SC’s “benign discrimination” concern as much prob. here as in SC, since, by decreasing availability of homes to blacks by denial of info. & increased competition, impact of AM prog. falls mostly on blacks. Since blacks as whole underrepresented in political process, they will be less likely to be able to keep progs. like the SS one from proliferating and denying them more housing. For above reasons, SS prog. fails SC test.

  1. Underlying policy concern of SC = avoid institutionalizing racism – title VII cases test just trying to ensure same. When SS advertising to whites, it’s institutionalizing desire to have more whites in area, exactly like SC prog.
  2. 7th circ.’s attempt to differentiate SS prog. by characterizing as “limited race conscious marketing which does not exclude minorities from housing opportunities” faulty.

1st- advertising cases like Ragin recognize marketing strategies can have effect of excluding on racial basis. If ad that blacks can see can exclude simply by not having black models, all the more so can exclude by making sure blacks don’t even see ad.

2nd - SS prog. can also have “futile gesture” effect – since blacks know SS’s goal is to sell to whites, might think “why even bother?”

3rd - 7th circ. underestimates likelihood prog. encourages realtor to steer. Realtor knows he’s working for organization with specific goal of selling to whites, so proviso that realtor shouldn’t take action that limits black access meaningless, b/c he knows if he fails to bring in whites, SS will not hire him again. Thus high probability he will steer to achieve SS’ goals.

4th - 7th circ. misconstrues effect of prog. Adding white traffic to market necessarily decreases/restricts the % of black buyers in relation to white buyers. (note - should make difference whether prog. also tries to affirmatively avoid advertising to blacks – this would decrease # of potential black buyers along with % of black buyers, which would be an even bigger problem.)

  1. 7th circ.’s assumption that FHA intends to “stimulate robust multi-racial market activity” misstates intention of FHA, which is really to protect people from housing denials b/c of protected status. 7th circ.’s characterization of FHA intent makes little sense considering how FHA limits market activity (e.g. by limiting acceptable advertising and broker behavior). Effect of SS prog. not to make housing =lly available to all, b/c practical effect likely that whites more able to afford/purchase (houses probably cheaper than available in white area), prog. houses than blacks, putting blacks at disadvantage.

(b) Args SS Program does not violate § 3604(a) under SC:

  1. SS Prog. differs from SC prog. where matters under the SC factors: 1st - SS prog. has no “inflexible racial quota” (in fact, agreement had provision saying realtor can’t limit b/c of race), 2nd - no longer wait for black applicants for housing as in SC, 3rd – SS prog. temporary (just 1 sale per house, so more like Otero. Also, SS prog. limited to first sale of specific, limited quantity of houses). 4th - unlike SC, SS remedying past imbalance bordering on segregation, so more like AA than SC prog. and hence allowable. Also, fear of prog. affecting mostly those w/o pol. power to oppose it not factor here, where the most of residents/voters in area are black.
  2. SC prog. fell squarely under FHA’s “otherwise make unavailable” lang., since in SC had long wait-list of minorities bypassed, vs. SS - no denial of housing at all: terms forbid race limiting & lower ct found no evidence anyone denied housing by SSHC.
  3. As 7th Circ. noted, SS prog. only stimulates “robust multi-racial market activity” by increasing ordinary competition. SS prog. doesn’t violate FHA goal of ending discrimination, & achieves FHA integration goal in positive way. This exactly kind of integrative prog. FHA drafters envisioned. Args. that advertising to whites (see A(i)(5) above) puts black buyers at economic disadvantage irrelevant b/c FHA doesn’t protect against economic competition.

(c) strongest args: Strongest arg. that SS prog. violates § 3604(a) under SC = effects of prog. similar to SC in denying housing. Strongest arg. SS prog. doesn’t violate § 3604(a) under SC (& strongest overall) = differences in the SS prog. indicate it would pass the SC title VII test.

(4) Best Student Answer #2: I liked this answer because it focused on an assumption that I agree is crucial to the decision and also because at looked at the AMP in this case as part of South Suburban’s larger project.

The court in South Suburban proceeds from the idea that the proposed program will increase awareness of the subject properties in the white community and that such action is not necessary in the black community because there is innate / built in interest. If this assumption is correct then it is unlikely that the proposed program is discriminatory under StarrettCity. StarrettCity stood for the proposition that “measures designed to maintain integration by limiting minority participation…are of doubtful validity”(emphasis mine). In StarrettCity the program excluded or limited participation in public housing, whereas in South Suburban (assuming my assumption above) the program merely includes whites by making sure that they are aware of the availability of the subject property.

If, however, the advertising was such that only whites were made aware of the availability of the subject property then the program would likely violate the “otherwise make unavailable” provision of §3604(a) by making the property de facto unavailable to blacks. The failure to advertise would likely not only fall under the “otherwise make unavailable” but also under §3604(b) by discriminating in the “provision of services in connection [with the sale or rental of a dwelling].”

As a matter of public policy the goals of maintaining integration in a neighborhood faced with re-segregation are admirable and worthwhile. The means used to accomplish the transition are not as divisive or as concrete as StarrettCity’s racial quotas and the court recognizes this fact. The Seventh Circuit comes to the conclusion that the policy is merely an effort to educate whites who would otherwise become unaware. They point out that the SouthSuburbanHousingCenter advocated not only whites moving into predominantly black neighborhoods but also blacks moving into white neighborhoods (though this is not the subject of this litigation). Because the policy of South Suburban does not exclude or “otherwise make unavailable” housing in black neighborhoods to blacks but merely advertises the availability to whites, it should be allowed as nondiscriminatory under §3604(a)

(B) Assuming you have no binding precedent, does the program at issue in South Suburban violate §3604(c)?Your discussion might consider some or all of the following: The policies we’ve discussed that underlie §3604(c); 24 CFR §100.75; Whether the 7th Circuit’s analysis is convincing.

(1) I Was Looking For Some of the Following:

(a) Discussion of the §3604(c) claims addressed in S-S:

(i) The placement of ads in media aimed at white readers violates §100.75(c)(3)

(ii) The Affirmative Marketing Plan (AMP) itself is a “statement … indicating a preference” for white people

(b) Empirical Questions

(i) Was there any outreach other thanthe “special outreach” to whites?

Courtrefers to AMP as “additional” promotion and advertising.

Was there “normal outreach? (other ads; local realtors; signs)

(ii) Corollary Question: Does the use of special outreach actually deny information to Afr-Ams as prohibited by 100.75(c)(3)

(c) Role of Context: Do we just look at the special outreach or can we look at all activities undertaken by S-S with regard to these properties or in general?

(i) When determining if the AMP “indicates a preference”

(ii) When determining if §100.75(c) is violated.

(d) Key Questions?

(i) Can you do special outreach advertising to bring in more non-white traffic? If so, should the result be the same here?

(ii) For the purposes of 3604(c), is there a difference between preferring “white traffic” and preferring white buyers?

(2) Common Problems

(a) MisusingtheOrdinary Reader Test: This is not a challenge to the content ofparticular ads (indeedthe ads may not even exist yet). Thus, it is not clear that the ordinary reader test applies.

(b) Misunderstanding the Relationship Between the Regs and the Statute. These regs constitute HUD’s positions as to what violates the FHA. Thus, if you say that the regulation is violated, it means that the statute is also violated.

(c) Assuming Away the Interesting Questions: Many of you assumed that the special outreach constituted the only advertising that was occurring and assumed that non-whites would not have any access to the special outreach advertising. These assumptions make the problem easier, but are unrealistic. You should at least address the possibility that the special outreach was really supplemental.

(3) Best Student Answer

(a) args. SS prog. violates 3604(c):

  1. Statement at issue in SS violates plain language of 3604(c) on its face by expressing preference for whites (whole idea of prog. = “let’s get whites in here”). FHA forbids “any intention to” discriminate, so even if argue ads themselves don’t show pref., SS contract indicating desire to AMP to whites in itself a violation.
  2. Congress could’ve made exception for good intent or worded differently, but didn’t. Cong. included “preference” & “discriminate” lang. so shld include arguably non-discriminatory showing of preference. Thus intent irrelevant where facial violation.
  3. 7th circ’s arg. unconvincing b/c AMP to whites in effect expresses preference for whites – can’t differentiate b/c don’t say not to advertise to blacks. 3604(c) = blanket prohibition against expressing prefs., irrespective of way done or motivation behind.
  4. Ordinary reader wld feel that AMP to whites = showing preference to whites, just as showing only white models shows preference for whites.
  5. Important to look at real effect on realtor (as discussed in part A, above).
  6. 24 CFR § 100.75(b) = “any docs used w/respect to sale or rental” of dwellings. Plan to have broker/K w/broker to sell clearly connected to sale of home. Falls directly under 24 CFR 100.75(c)(2) – expressing preference to broker. Also, small # of units irrelevant b/c talking about institutional sale, not private individual. HUD regs should apply here b/c still worried about white monopoly – don’t just look at this area – overall, whites have more $ & will be more willing to spend here b/c cheaper that white areas.

(b) Args. SS prog. does not violate 3604(c):

  1. Under 7th circ’s analysis, SS just trying to promote integration – not limiting sale/ promotion to whites, just making effort to bring them in to help black community. AM to whites doesn’t mean blacks will not get info – just giving whites info too. Contract w/broker not indicating preference, just helping whites get info too.
  2. Can’t compare to lack of minority models in Ragin, b/c (presumably) nothing about SS ads themselves signaling “you’re not welcome” to black buyers. If SS made efforts not to show ads to blacks (e.g. not putting “for sale” sign up by houses or advertising in media exclusively directed to whites), would be a different story. Ordinary reader wldn’t see anything wrong w/advertising in media w/white audience if there’s nothing wrong w/ad itself, especially if blacks see media too (so broker k shows no pref).
  3. Under 24 CFR § 100.75(b) = “any docs used w/respect to sale or rental” of dwellings. Statement in broker K doesn’t’ have to do directly w/sale of dwelling. Also, only a few housing units involved so this HUD reg shouldn’t apply. HUD regs shldn’t apply here b/c policy reasons behind the regs don’t fit – no inequality of bargaining pwr b/c black neighborhood. No worry here re: whites “monopolizing best neighborhoods” b/c whites such a minority here & whole purpose is to integrate! Also, whole policy behind regs to stop segregation b/c more profitable to sell to whites, but here integrating! Also, not clear if FHA intent more to stop discrimination or cause integration, so do Chevron test to fig out if HUD regs wld be reasonable agency act if applied here. Cld argue shdn’t apply here b/c not bad level of discrim intent & pro-integration.
  4. This is not situation FHA was meant to remedy – No bad intent, no worries re: broker behavior here b/c asking broker to do opposite of blockbusting – spend $ to advertise where less likely to bring profit. So no reason to construe lang. strictly.

(c) Strongest arg. = violation (& overall) – FHA lang. prohibits any preference/intent.