Housing Discrimination Spring 2008

HOUSING DISCRIMINATION SPRING 2008

INFORMATION MEMO ON UNIT ONE

TABLE OF CONTENTS

(A) Unit One: Covered Topics & List of Relevant Exam Questions

(B) MarinaPoint: Additional Problems

(C) Write-Up of Discussion Groups (1/18) (Alphabetical)

(D) MarinaPoint Problems: Comments and Best Student Answers

(A) Unit One: Covered Topics

& List of Relevant Old Exam Questions

(1) Inclusive & Exclusive Statutes

(a) MarinaPoint: Questions 2J 3H 3N 3P & Additional Questions Below

(b) Inclusive v. Exclusive Statutes (Policy): Question 2J

(2) Protected Characteristics:

(a) Federal v. State/Local Coverage: General Awareness

(b)Adding Additional Protected Classes (Policy): Questions 2B 2I

(c) Handicap/Disability(incl. Written Assignment I Comments/Model Answers): General Awareness

(3) History: General Awareness

(4) Theories of Statutory Interpretation: General Awareness, Especially re Question 1

(B) MarinaPoint: Additional Problems

The two problems that follow were short exam questions for Property classes in which I taught Marina Point. If you’d like to do them under exam conditions, give yourself about 10 minutes to read and outline the problem and then twenty minutes to write your answer. You can find comments and the best student answers at the end of this Information Memo.

(1) Discuss whether Loretta’s decision not to rent the apartment to Patrick in the following scenario should be considered “arbitrary” under Marina Point, and therefore a violation of California’s Unruh Act. Loretta is an enthusiastic alumna of Contra Costa College (CCC) in San Carlos, California. When she purchased an apartment complex near the campus, she decided to rent only to CCC students and alumni. Thus, when Patrick revealed that he was a graduate of nearby WhitcombUniversity, she refused to rent to him even though he had a good job and good references.

(2) Discuss whether Lourdes’s policy in the following scenario should be considered “arbitrary” under Marina Point, and therefore a violation of California’s Unruh Act. Lourdes owns a 50-unit apartment complex in Dickerson, California. Her father was employed by an American car company and was laid off for a substantial period of time when Americans started purchasing foreign-made cars. Thus, Lourdes will only rent to people who drive cars that are either made by American companies or primarily manufactured in the United States.

DISCUSSION QUESTIONS 7-14: RESPONSES & COMMENTS

The write-ups below include examples from your class and prior classes as well as some examples and comments of my own. The ideas that came from discussion groups your class are labeled with the alphabetical range of the group in question (e.g., ABO= A-BO; KRM= KR-M; NQ=N-Q). Although you are not required to know details about the Wisconsin and Miami Beach provisions, I think you should read through all of this material because I address a lot of common misconceptions/misreadings.

DQ7: INCLUSIVE v. EXCLUSIVE STATUTES

DQ7. Almost all fair housing statutes, including the federal Fair Housing Act, are structured like the New York City Human Rights Law at issue in Kramarsky in the sense that they provide a list of characteristics that housing providers may not employ in making their decisions. The open-ended approach of California’s Unruh Act is much rarer. What are the strengths and weaknesses of each approach?

A. Benefits of Open-Ended Approach/Drawbacks of Traditional Exclusive List

1. Open-Ended Approach Provides More Flexibility (KRM; NQ)

a. Allows statute to change with new developments in society. (ABO; KRM; NQ)

b. Allows statute to reach situations the legislature did not anticipate but that it likely would have wished to address. (DHAF)

c. Allows case-specific analysis of what characteristics should be protected in particular circumstances. (ABO; RSO)

2. Courts v. Legislature:

a. Courts may be more likely to be willing to address popular forms of prejudice than elected legislators; open-ended approach allows this.

b. Legislature may want courts to have opportunity (or burden) of fleshing out the statute’s meaning.

c. Traditional exclusive list may put too much emphasis on court’s finding the “correct” interpretation of the statutory language, putting more emphasis on “technical” questions like language, grammar and structure and less emphasis on purpose or on justice. (ABO; KRM)

d. Courts can use open-ended approach toprotect new characteristics without time & expense of new legislation. (NQ)

3. Tenant Protection

a. Traditional method allows housing providers to exclude people from housing for arbitrary reasons or stereotypes so long as they don’t rely on one of the prohibited characteristics (DHAF; KRM; NQ).

b. Under the open-ended approach, more people will find protection for the characteristics that others are likely to see as problems. (NQ)

B. Benefits of Traditional Exclusive List/Drawbacks of Open-Ended Approach

1. Exclusive list provides more certainty, leading to

a. Less litigation: plaintiffs do not bring suits to see if the relevant characteristic is covered. (ABO; DHAF; KRM; NQ; RSO)

b. Better awareness by landlords and tenants about their rights and responsibilities (ABO; DHAF; KRM; NQ; SPZ)

c. Lawyers finding it easier to counsel clients

d. Judges don’t have to define scope of characteristics they add to list (DHAF)

e.Resources not wasted discussing marginal or absurd categories (KRM)

2. Exclusive List Leaves Control with Legislature; Smaller Role for Courts

a. Judges don’t have discretion or difficulties “interpreting” legislative intent. (ABO)

b. Control by democratically elected body, not unelected judges

c. Ensures coverage for characteristics legislature intended to protect. (SPZ)

3. Exclusive List Intrudes Less on Housing Providers’ Control of Property (NQ; RSO)

C. Other Comments

1. One prior group suggested that the traditional list may itself become illustrative and therefore seen as open-ended. While this is theoretically possible, the exclusive nature of these lists is so well-established that a court is unlikely to interpret a statute as illustrative without very clear instructions from the legislature.

2. This is yet another example of the recurring legal debate about the relative virtues of bright line rules v. flexible standards. You might want to think about which side of this debate seems stronger to you in this context (and why).

DQ8-11: PROTECTED CHARACTERISTICS

DQ8. What is the difference between “family/familial status” and “marital status”? What kinds of discrimination do you think legislative bodies had in mind when they included these characteristics on their lists? Several students this year and in the past this year had a lot of problems with these definitions. The moral is that you need to read more carefully.

A. “Family/Familial Status”

1.Definition/Coverage: “Family/Familial Status” means one or more adults residing with one or more dependent minor children or planning to do so. (DHAF) It does not refer to any possible set of people who set up household together.

a. These protections extend to any traditional or non-traditional family structures that include at least one adult and at least one minor child..(DHAF)

b. Unlike “marital status,” this characteristic does not include any reference to the nature of any relationships between adults. “Marital status” is not a subset or overlapping category, but a completely separate concept. Familial Status similarly provides no protections for same-sex couples unless they are excluded for living with or intending to live with children.

c. Unlike most of the characteristics listed in the FHA, “Familial Status” does not provide protection for everyone: It violates the statute to discriminate against people with children, but it does not violate the statute to discriminate against people without children. Thus, while it is true that “[i]n some areas they discriminate … to drive out college students and bring in families,”(DHAF), this is not familial status discrimination.

2. Purpose: This characteristic was added to make it easier for families with children to obtain appropriate housing (see problems described in MarinaPoint). Because of concerns about noise and behavior, many people prefer to live in adults-only space. (ABO). However, people with children need places to live. (DHAF)

a. One group suggested that this category might be designed in part to combat concerns by landlords about having too many individuals residing in a dwelling unit. (ABO). However, landlords still can exclude prospective tenants based on a neutral rule about maximum occupancy unless the tenants can meet the standards for a disparate impact claim.

B.“Marital Status”

1. Definition/Coverage: “Marital Status” usually is defined as being married, single, divorced, widowed or separated. See Miami Beach Code §62-31.

a.Many states and municipalities provide “Marital Status” protection, but the federal gov’t does not (except with regards to mortgages and other consumer credit).

b.Jurisdictions split as to whether this sort of definition prohibits discrimination against unmarried cohabiting couples. See cases on this issue in Unit IV.

c. Problematic Explanations:

One group suggested that this category “dealt more with the intimacy of the relationship and the legal connection to another individual.”(ABO) This is way too imprecise an explanation of what is covered.
Some prior groups have suggested that you have to be married to get protection under this category, but that is not so. Every statute I know of explicitly includes being single, separated or divorced in the category. Indeed, these are the types of folks most likely to seek redress under the statutes. There is not a lot of discrimination against married couples.

d.Same-Sex Couples. One group suggested that this category is“likely to prevent discrimination against homosexuals who have a life partner.” (ABO) One prior group suggested this kind of protection would not extend to lesbian and gay folks. In practice, these provisions do not prohibit discrimination because someone is (or is perceived to be) homosexual. However, if a landlord tried to evict a same-sex couple because they had a marriage ceremony (or because they were single), the couple would have a pretty fair argument that they are the victims of “marital status” discrimination.

2. Purposes

a. Protect divorced, widowed, separated and single women from stereotypes about ability to pay. (DHAF)

b. Protect single and divorced individuals from stereotypes about swinging lifestyle and lack of responsibility. (ABO; DHAF; KRM)

C. Relationship to “Single Family Homes” in Residential Zoning and as Exception to Housing Discrimination Statutes:

1. Zoning and “Single-Family Homes”: Many jurisdictions have zoning restricting certain areas to “single-family homes.”These usually contain definitions of “family, ” often similar to the provision at issue in City of Edmonds. One group suggested that the marital status or family status provisions might affect these definitions. (KRM). This is very unlikely to be true. The definitions of family found in the statutes you have only apply for the purposes of interpreting those statutes and do not replace definitions of family found in zoning ordinances. The zoning definitions of family almost invariably favor adults living with dependent children over groups of adults living without children, and so don’t violate “family status” provisions. It is possible that a zoning definition might run afoul of the “marital status” provision, but usually they treat married and unmarried couples alike.

2. “Single-Family House” Exception (§3603(b)(1)): One group noted that Wisconsin treats this issue differently from the federal statute. (DHAF) However, as should be apparent after Unit V, this is unrelated to the family status/marital status discussion. Rather, the federal statute exempts some sales of “single family houses” from the requirements of §3604 (a) (b) (d) (e) (f). Wisconsin says that such sales are too big a part of the housing market to exempt.

DQ9. Federal age discrimination provisions generally protect people over 40 from discrimination, e.g., in employment. What is different about the approach taken to age discrimination in housing by Wisconsin and by Miami Beach? What are some pros and cons of using the latter approach in a housing context?

A.Federal Statutes v. Miami Beach/Wisconsin: The federal provisions(which do not apply to housing) are only violated if an employer makes a decision because a current or potential employee is over 40.. Wisconsin and Miami Beach prohibit discrimination based on any age 18 or over. Thus, you can violate these statutes by dissing the young for being too young as well as the middle-aged or elderly for being too old. . (HAGKO; KRM). Some further elaboration:

One group argued that under the Miami Beach provision, housing providers “cannot prevent young people from living there regardless of economic status.” (RSO) This is incorrect. The provisions only prevent exclusion because of age.
Note that Miami Beach/Wisconsin reasonably set the lower limit at 18. People below that age cannot enter enforceable contracts and their right to access to housing is covered by the familial status provisions.
As in the past, because of the slightly ambiguous wording of the question, some groups focused on possible differences betweenWisconsin and Miami Beach. (ABO; DHAF; SPZ) I don’t think the slight differences in wording have any significant substantive ramification with one exception. Wisconsin has an exemption from the age discrimination rules for housing for older persons and Miami Beach does not. (SPZ).

B. Arguments in Favor of the Broader (M.B. & Wisc.) Definition:

1. Protects a broader range of people. (HAGKO) Note that if you make an argument like this on an exam question, you should flesh it out more. Explain why there might be discrimination against 18-40 year olds and why it would be a good idea to provide a legal remedy for it.

2. Protecting younger folks may help bring about communities more integrated on the basis of age. (RSO) We “don’t want to restrict young people from certain neighborhoods which might provide a better living environment, just [as] we would not want to relegate the elderly to poor neighborhoods.” (KRM). This is clever idea, although it’s always hard to guess how much impact on integration this kind of statute will have.

3.40 years old seems an arbitrary number in the context of housing discrimination. People are likely to have more income and be more stable at 40 and are more likely to pay on time and be more reserved. (DHAF) It seems unlikely that a lot of discrimination will be associated with turning 40. (I think this is a strong argument). However, to the extent there is discrimination against this group, it would seem to be particularly harmful. (DHAF).

4. Ageis a relatively arbitrary/stereotypical/unfair way to assess a housing provider’s legitimate interests in solvency, stability, reliability, etc. (DHAF; KRM) Certainly there are wealthy mature 22-year olds and insolvent untrustworthy 50-year olds, although age probably is a better gauge for the landlord’s interests than race or religion.However, as one group noted, “Landlords would want to discriminate against the young for being rowdy and loud, the stereotype of college students, and against the elderly for needing special accommodation for elder people.” (DHAF)

C. Arguments Against the Broader Definition:

1. More people will be able to sue; more frivolous suits. (HAGKO) Again, this could use more explanation. Any time you add a cause of action this is true. Why might this be a particularly problematic example? E.g., you might believe that a lot of young folks legitimately denied apartments by landlords because of their financial circumstances or lack of credit history might claim age discrimination and the social burdens of these suits would outweigh the benefits of challenging a few cases of real discrimination.

2. This might prevent over-55 housing developments which look out for the interests of elderly people. Good point, although the statutes tend to create exceptions for specialized housing for seniors.

3.Elderly people tend to be subjected to discrimination due to age more often than younger people. I tend to agree with one of the earlier points that this is much less true in housing than in employment. Until folks become quite elderly, they are likely to bee seen as more reliable and less likely to cause trouble.

4. The consequences may fall on the landlords. (HAGKO). The stereotypes may have some basis in fact. (KRM) If landlords have to rent to 18-year olds who may not be as responsible or able to meet the rent requirements, they will have to deal with it. “Putting a 21 yr. old in an apt instead of a 50 yr. old [possibly] increases the risk of damage to the property and the chance of upsetting/bothering other tenants.” (HAGKO). This is a solid point, although the landlords in Wisconsin and Miami Beachretain the right to use financial criteria and references to screen folks and to use security deposits to deter trouble as long as they use the same standards for young and old alike.

DQ10. Are there characteristics protected by one or more jurisdictions that you were surprised to see? Are there were characteristics you were surprised not to see? Are there definitions you found particularly well-drafted? Particularly poorly drafted?