Information Memo on Unit Four

HOUSING DISCRIMINATION SPRING 2008

INFORMATION MEMO ON UNIT FOUR

TABLE OF CONTENTS

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

(B) Write-Up of Cardona Discussion Questions

(C) Write-Up of Statutory Drafting Discussion Groups (Prior Years)

(A) Unit Four: Covered Topics &

List of Relevant Old Exam Questions

(1) Definition of Race Under §1982: Old Exam Questions: 3B 3F 3Q

(2) Definition of “Marital Status” (Cohabiting Couples)

(a) See Assignment IV Comments/Model Answers

(b) Old Exam Questions 2B 3H 3M

(3) Definition of “Handicap” Under FHAA: Old Exam Questions: 3L 3R

(4) Statutory Drafting

(a) Working knowledge of principles and issues for Question II

(b) See Assignment IV Comments/Model Answers

(d) Write-up of statutory drafting discussion groups (see below)

(B) Write-Up of Cardona Discussion Questions

DQ 140. If you were litigating Cardona, what arguments would you have made for each side under St. Francis and Shaare Tefila?

For plaintiff

Under St. Francis?The Court considered the legislative history:

“Congress, when it passed what is now §1981, had not limited its protections to those who today would be considered members of a race different from the race of the defendant. Rather, the legislative history of the section indicated that Congress intended to enhance ‘at the least, membership in a group that is ethnically and physiognomically distinctive.’” (middle of 2nd paragraph of St. Francis)

The Colombian plaintiff in the current case:

Colombians are “ethnically and physiognomically distinctive” from Cubans – and at end of opinion Ct. states that “distinctive physiognomy” isn’t even necessary, so basically you just have to be facially ethnically different from accuser and alleged discrimination must be based on this – which it is.

Further legislative history:

“These dictionary and encyclopedic sources are somewhat diverse, but it is clear that they do not support the claim that for the purposes of §1981, Arabs, Englishmen, Germans, and certain other ethnic groups are to be considered a single race.” (Beginning of 8th paragraph of St. Francis)

The Colombian plaintiff in the current case:

Just as legislative intent deems Arabs & Englishmen different races for §1981 purposes even though they are currently both classified as Caucasian, so too does Congress agree that Colombians and Cubans are different races even though they share the native tongue of Spanish.

UnderShaare Tefila?The Court looks at legislative history to determine if Jews were intended by Congress to be protected:

“As St. Francis makes clear, the question before us is not whether Jews are considered to be a separate race by today’s standards, but whether, at the time §1982 was adopted, Jews constituted a group of people that Congress intended to protect. It is evident from the legislative history of the section reviewed in St. Francis…that Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute.” (last paragraph of Shaare Tefila)

The Colombian plaintiff in the current case:

Same argument as in St. Francis – looks to intent of Congress and determines that even though Jews are Caucasians, they are not “foreclosed from stating a cause of action against other members of what today is considered to be part of the Caucasian race.” (last sentence of Shaare Tefila)

For defendant:

Under St. Francis?

Δ can argue… That §1981 does not provide for suits between Caucasians, as this was not stated in the statute nor clearly detailed in the legislative history – and for Ct. to allow this, Congress must first alter the statute b/c it’s their job, not the Ct.’s.

However the ct. rejected this argument b/c at the time §1981 was enacted, Arabs were not considered Caucasians as they are now, and this goes against public policy anyway in preventing discrimination.

…That discrimination was merely on place of origin, the Middle East, rather than his belonging to a particular ethnic group.

“If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin…he will have made out a case under §1981.” (last paragraph of St. Francis)

Under Shaare Tefila?Δ can argue...That since when are Jews considered a race? Judaism is a religion. Have you ever heard anyone refer to it as the “Jewish race”?

The Ct.shouldn’t expand §1981&2 to encompass merely anyone that is different because that gives the government too wide a latitude to adjudicate private matters and decreases the overall sensitivity to discrimination by creating a windfall of discriminatory claims by anyone who feels discriminated against because they are of a different “group” than another person.

DQ141. The 1866 Congress mentioned neither Cubans nor Colombians. What kind of evidence might you introduce to demonstrate that the two groups should be considered separate races?

Actual evidence to introduce:

Affidavits or witness testimony from unbiased South Florida Latinos (must be other than Cubans & Colombians) attesting to the Latin culture’s basic principle that to call Cubans & Colombians the same for §1981 purposes is clearly discriminatory.
Ask the Amex Latin executives what they think, take a poll.

Policy arguments to introduce:

By not considering Cubans and Colombians distinct races, then you are ascribing to the overgeneralization of ethnicities as a way to circumvent a discrimination claim. Just because Chinese and Japanese are both Asian does not preclude a suit by a Chinese person claiming discrimination at the hands of a Japanese or Korean? You can not just create a broader group that both parties conveniently fit into, and disregard the more specific difference that is creating the racial animus.

In order to make it easier for people and the Court to feel empathy for a discrimination claim, consider two countries who would be considered non-“distinct” by Δ Amex’s contention, but who have been at war or have other special circumstances?

What if a North Korean landlord refused to rent or promote any and all South Koreans? Or if Jordanians refused to rent to Israelis? Or if Syrians refused to rent to Lebanese?
The majority uses polar opposite races in its decision, but even with more closely related (both in speech and geographic distance) groups like listed above, logic and legislative history dictates that a claim should not be precluded.

Where do you think Judge King got the information that supported his determination?

Judge King used common sense from being culturally aware and knowledgeable.
This is shown because the plaintiff never introduced evidence such as affidavits or witnesses (as discussed above), so there was nothing in the opinion citing such information from the record or lower courts’ decisions.

Would it be permissible for him to rely on his personal experiences living in South Florida?

I don’t think so. I think judicial fairness and impartiality requires him to go strictly by facts presented in the record or by previous cases in Florida regarding the proper classification of Cubans and Colombians, or other Latin ethnicities.

(D) WRITE-UP OF DRAFTING EXERCISES(PRIOR YEARS)

(1) Overview: Notes for Final Exam Question II

a. Before redrafting a passage in a statute, indicate what is wrong with it, so I can see what you are trying to accomplish with the redraft.

b. You need to be able distinguish between

(i) suggestions that make the statute clearer without changing what it does; and

(ii) suggestions that make substantive changes

c. Be specific. “The statute is vague.” may be true, but it’s not very helpful. In what way? If you think a word was used incorrectly, explain why.

(2) Advertising Amendment

Overview. This is former Exam Question 2G; more comments and good student answers are available online. You can improve this statute by restructuring it to recognize the difference between the first two provisions and the third. A nice example from one of the model answers:

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 selection of human models appearing in a notice or advertisement shall be a relevant consideration, but only for claims that the relevant protected class is race, color, national origin, or familial status.

a. Technical Drafting Concerns

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

ii) replace “shall be” with “is” (George)

iii) relevant consideration of what? Needs to be explained. (George; Ringo) While this is awkwardly drafted, it is helpful to remember it is becoming a part of §3604 so a court might just interpret it to mean a relevant consideration in determining liability under §3604(c).

iv) relevant is repeated. The second use is unnecessary and can be deleted. One prior group suggested the first “relevant” is ambiguous because the models can be relevant either to the defendant’s marketing strategy or to the plaintiff’s claim. However, in the context of a §3604(c) claim, there is no reason for it to refer to the defendant’s marketing. The problems here stem from a lack of clear organization, not from the use of “relevant.”

v) but onlyis unnecessary

vi) protected class is a term from McDonnell-Douglas analysis and is not defined in the statute. Can simply say “for claims based on …”

b. Substantive Concerns (outside scope of assignment): Both groups expressed concern at the decision to exclude religion (hard to show), sex, handicap. You could plausibly argue that people don’t expect to be able to discern handicap and religion from models and so the concerns that arise are likely to be infrequent and very subtle and therefore not worth pursuing. Similarly, very few advertisers will try to indicate (or will be perceived as indicating) a preference based on sex, and so it may not be worthwhile to allow the cause of action.

c. Sample Formulations and Fajer Comments

i) Selecting human models appearing in a notice or advertisement is a relevant consideration for discrimination claims based on race, color, national origin, or family status.. This is a big improvement in terms of clarity although I would replace “discrimination claims” with “claims under this subsection” to clarify that you aren’t trying to change the whole statute.

ii) The selection of human models appearing in a notice or advertisement shall be a relevant consideration when determining discriminatory intent, but only for claims that the protected class is a race, color, national origin, or family status. The problem with this formulation is that intent is unnecessary for a §3604(c) violation; I think the intent is to have the models be relevant to the ordinary reader test.

iii) The only relevant protected classes when considering claims based on selection of human models in a notice or advertisement are race, color, national origin and familial status.(Ringo)I think this is clearer than the original at expressing its purpose. I’m not wild about “protected classes,” which is not a term the statute uses.

iv) The selection of human models appearing in a notice or advertisement is a relevant consideration for claims based on race, color, religion, sex, familial status, or national origin. (George): Also clearer than the original ; good dropping the shall for is. Might want to limit “claims” to those brought under “this subsection.” Adding the other characteristics back in is a substantive change (See above).

The particular media or location in which a notice or advertisement is displayed or distributed and the likely audience that results from that also are relevant to determine if it is in violation of this subsection.

a. Technical Concerns:

i) Particular is unnecessary.

ii) results from that is very awkward. (Ringo). Might replace with “the likely resulting audience….”

iii) As noted above, the whole structure could be improved by creating a prefatory clause that says something like “Relevant considerations in assessing liability under this subsection include …”

iv) might eliminate the passive construction

b. Substantive Concerns (outside scope of assignment).

i) One prior group expressed concern that the use of relevant might be vague or give courts too much flexibility, particularly in combination with the existing language of §3604(c): “indicates a preference.” This really is a substantive complaint. Moreover, keep in mind that courts already employ the very open-ended “ordinary reader” test here. All this provision does is tell the judge that she must admit evidence of the particular media used because it is relevant to the ordinary reader test.

ii) “Amendment suggests it is important to consider media and intended audience of ad. While this may be important, should also consider what a reader outside of these classes would perceive of the ad.” (Ringo). I think this is an unnecessary concern, Nothing in the Amendment forestalls the use of the ordinary reader test. Saying that some additional factors will be relevant doesn’t foreclose the use of others.

c. Specific Formulations and Fajer Comments.

i) When selecting the type of media or location where a notice or advertisement is displayed or distributed is a relevant consideration in determining the likely audience that resulted.

A) Change to “When selecting …” doesn’t make sense. Changes the first part of the sentence from a thing that can be “relevant” into an incomplete action.

B) Overall change misunderstands what the provision is doing. Of course the location and media help determine the likely audience, but as drafted without the reference to “this subsection”, you haven’t made any of this relevant to the determination of liability under §3604(c).

ii) The media or location in which a notice or advertisement is displayed or distributed and the likely audience that results from such ad or notice also are relevant considerations to the violation of this subsection

A) Good eliminating the unnecessary particular and the awkward results from that. However, “such ad or notice” also is pretty awkward.

B) “relevant considerations to the violation” feels awkward.

iii) Targeting a specific audience by use of particular media or location is relevant to determine if an advertisement is in violation of this subsection. (Ringo) The restructuring certainly makes the sentence clearer. I worry that the passive construction at the beginning will lead to awkward debate (e.g., if you are trying to hit everyone except a particular group, is that targeting a specific audience? )

iv) A nice version from a prior model answer: 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.

It is a defense to an action relying on paragraphs (1) or (2) of this subsection that it is unduly expensive at the present time for the defendant to present more models or advertise in additional media or locations.

a. Technical Drafting Concerns

i) unduly expensive Many students argued on the exam thought that this phrase 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.

ii) at the present time for the defendant: “present time” is unclear (Ringo; George) all this can be deleted without changing the sense of the passage.

iii) eliminate 2d passive construction: “It is a defense … that presenting more models or advertising in additional media or locations would be unduly expensive.”

iv) Make more specific the subsection to which the Amendment refers. (Ringo): I think this is unnecessary. This is an amendment to §3604(c); that is the subsection in question.

v) Don’t start with “it” – poor writing and is unclear. (George) This is a good general rule. However, statutes commonly word defenses in this way: “It is a defense to an action under this subsection that ….”

b. Questions re nature of “defenses:”

i) Defense of “unduly expensive”/“more models language” may not be a defense b/c don’t always need more models. (Ringo) Defenses often create narrow exceptions to statutes where defendants meet particular tests (as we’ll see when we do statutory defenses in a couple of weeks). Idea is there’ll be a defense in the narrow set of cases (i) where an advertiser’s liability turns on the lack of models of a particular race or age (ii) and where the defendant genuinely can’t afford to redo the ads or add more models.

ii) “defense” … is this absolute? How good is this defense? (Ringo). The normal understanding is that, where you meet the criteria for the defense, you win the lawsuit. Where the criteria count in your favor but are weighed against the criteria that count against you, we’ll call them “factors” rather than a defense.

c. Alternate formulations and Fajer Comments

i) The Defense to an action in paragraphs (1) or (2) is that the violator will incur undue expense in the presentment of more models or in advertising in additional types of media or locations. Good idea to eliminate passive voice altogether; and resulting minor rewrites generally are good. “The Defense” sounds like there’s only one. “Presentment” is unnecessarily formal.

ii) Undue expense is a defense to an action relying on paragraphs (1) or (2) of the subsection This is very elegant. It eliminates a whole lot of words and both passive constructions. Initially, I thought you needed to explain where the undue expense would be generated, but I think that is clear enough from context and from limiting the defense to the prior paragraphs. Nicely done.

(3) Redraft of §1982

a. Current version of §1982: Property rights of citizens.All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

b. Thoughtful Outline of Considerations (John)

I. Problems:

A. Must bar all racial discrimination

1. What are the rights of white citizens?

2. We should perhaps broaden the statute to be more inclusive

B. Jones private and public discrimination in sale or rental of property