1C.Alexandra was an accountant who was partially paralyzed and used a wheelchair. After she was made a partner at a prestigious accounting firm, she decided to purchase a townhouse. She began looking at advertisements for upscale townhouses each day in the real estate section of the local newspapers. Over the course of several weeks, she was annoyed to see that that all of the models in these ads seemed to be in perfect physical condition and none showed the slightest indication of any disability, let alone a wheelchair. She was particularly distressed by a series of ads run by Bialek Builders, the owners of several large townhouse developments. These ads appeared daily for several weeks in two different newspapers, each showing many smiling people of all ages and races. Although the ad campaign used different models each day, almost all the models either were walking down long staircases or were engaged in sports activities like tennis, bicycling, or jogging.
After consulting an attorney, Alexandra sued Bialek Builders in federal court. Her complaint alleged that the ads violated 42 U.S.C. §3604(c) by indicating that persons with mobility-related disabilities were not welcome at the townhouse developments. After a bench trial, the court ruled for the defendant. It held that, as a matter of law, the mere failure to use models with handicaps cannot violate §3604(c) because the use of able-bodied models does not “indicate a preference” for people without handicaps. The court also ruled in the alternative that, even if there was a cause of action for failure to include models with handicaps, the Bialek Builders ad campaign itself did not violate the statute. The court found as fact that ordinary readers in the surrounding area were not accustomed to seeing pictures of people with handicaps in any form of advertising, and thus they would not view the pictures as making any statement at all about whether people with handicaps were welcome at the townhouses. The court found irrelevant Alexandra’s testimony about her own reactions to the ads, saying that she was not an “ordinary reader.”
The Court of Appeals reversed both rulings. It first held that the cases finding the use of selected human models to be race discrimination apply equally to discrimination on the basis of handicap. It then held that the proper standard for judging the ad campaign was the way it would be viewed “by an ordinary reader of the protected class in question.” The court remanded the case for reconsideration under that standard. Defendants petitioned for certiorari.
The U.S. Supreme Court granted the petition for certiorari to resolve two issues:
1) Can the failure to include models who appear to have disabilities in advertising regarding the sale or rental of housing ever violate 42 U.S.C. §3604(c)?
2) Is the appropriate standard for evaluating claims under §3604(c) the perceptions of “the ordinary reader of the protected class in question”?
Write an opinion and a shorter dissent for the Court resolving these issues in the context of the facts of this case.
1D.Westmeadow is a suburban municipality located near a major city. In the past, the Westmeadow Zoning Board has been very welcoming to group homes for people with disabilities. As a result, many group homes are in operation throughout the town. Several of them house people with mental retardation. Unfortunately, in the last two years, some Westmeadow teenagers have decided that it is good fun to stop on their way home from school and harass and sometimes assault the residents of these homes. In one particularly brutal incident, several 16-year olds beat and raped a 32-year old woman with Down’s Syndrome. The Westmeadow Zoning Board responded by amending their zoning code to prohibit the placement of group homes for persons with mental retardation within 1500 feet of a Junior or Senior High School.
Happy Knoll is a group home housing people who are mentally retarded. Its present location is less than 500 feet from a Junior High School. The operators of Happy Knoll have lined up a house in a different part of the town to lease if they are forced to move. However, they would prefer to remain in their present location because it has better access to shopping and entertainment and because moving is traumatic for the residents.
Happy Knoll’s operators brought suit in federal court against Westmeadow, claiming that the new zoning ordinance violated the FHA. The District Court held that the ordinance did discriminate on the basis of handicap because it denied access to housing to people with a particular disability because of their disability. However, the court found as fact that the Zoning Board had enacted the ordinance out of a good faith belief that it would improve the safety of the persons in question. The court then held that, at least as to government defendants, it was a complete defense to a Fair Housing Act claim of intentional discrimination on the basis of handicap that the defendant acted out of a good faith belief that it was protecting the health or safety of the individuals who were the subject of its regulation.
The Court of Appeals reversed, holding that the Fair Housing Act contained no exception related to the health or safety of those being excluded from housing, and stating that the courts had no power to graft exceptions on to a federal statute. The U.S. Supreme Court granted Westmeadow’s petition for review to resolve whether the Fair Housing Act allowed the defense articulated by the District Court.
Write an opinion and a shorter dissent for the Court resolving this issue in the context of the facts of this case. Assume that the evidence supports the District Court’s finding of fact. Assume that the result is not affected by whether the zoning ordinance in question applies to currently operating group homes or just to those that have not yet opened.
IE.Mary Kahn sued Wendy Wu, alleging that Wu violated 42 U.S.C. §3604 by refusing to rent Kahn an apartment because of her national origin. After a bench trial, the District Court made the following findings of fact:
(A) Wendy Wu was born in Taiwan and is now an American citizen. When Wu was a graduate student newly arrived in the U.S., she was lonely and unhappy because her university committed insufficient resources to helping foreign students.
(B) Many years later, when Wu had amassed a substantial fortune, she purchased an old dormitory from the university from which she earned her Ph.D. She fixed up the dormitory and named it Wu’s International Student House (WISH). WISH
now houses 96 students in 48 rooms and provides programming designed for foreign students new to the United States.
(C) Each school year, Wu solicits applications from students attending the university. She selects the residents of WISH with the goal of achieving a diverse community of students with the maximum ability to communicate with each other. She thus favors (1) students who speak languages besides their native tongue and English; and (2) students who have spent time in several different countries. She also selects no more than three students who were raised in any one country.
(D) In October 1998, after Wu selected the students to live in WISH during the 1998-99 academic year, one of the selected students became ill and left WISH. Several students, including Mary Kahn, applied to fill the opening.
(E) Kahn was born in the U.S.A., but has lived for at least three months each in France, Israel, Tunisia and Sri Lanka. She speaks English, French, Hebrew, Arabic and Tamil.
(F) After Wu read Kahn’s application, she told her, “You are the sort of person I normally would be thrilled to have at WISH, but I already have three Americans.” Wu then selected a student from Brazil who spoke only three languages and had only lived in Brazil and the U.S.
(G) Wu would have given the open slot to Kahn had she been born in any country other than the United States, Germany or Mexico, each of which was home to three students already living at WISH.
Based on these findings, the District Court held that Wu discriminated against Kahn because of her national origin in violation of §3604(a) and that the FHA contains no relevant exception permitting Wu’s actions.
The Court of Appeals reversed. It held that since the three-student limit applied to all national origins equally, there was no discrimination on the basis of national origin. In the alternative, it held that it would imply an exception to the FHA because “Wu’s attempt to create a truly diversified living environment is not the sort of conduct Congress intended to ban.” The U.S. Supreme Court granted certiorari.
Write drafts of the analysis sections of an opinion and a shorter dissent for the Supreme Court determining whether Wu’s conduct should be considered national origin discrimination in violation of §3604(a). Assume that the evidence supports the District Court’s findings of fact. Assume that a room in WISH constitutes a “dwelling” within the meaning of the FHA and that the exceptions to the FHA enumerated in §§3603 and 3607 do not apply to this case.
1G. John Galt owns a high-rise building called “The Fountainhead” that contains 150 upscale two-bedroom apartments. It is in a desirable location in Rand, a major American city. He charges $1500 a month in rent. However, when they move in, new tenants have to pay first and last months’ rent, $1000 as a security deposit, and a one-time “Lease Origination Fee” (LOF) of $5000: a total of $9000. After several potential tenants complained, HUD brought a disparate impact action against Galt.
After a bench trial, the judge enjoined the use of LOF, holding that LOF had a disparate impact on African-Americans and on families with children that was not justified by any business necessity. The court based its holdings on the following findings of fact:
(1) The relevant pool to judge the impact of LOF is households in Rand that
(a) have one or two adults and fewer than three children (almost all households residing in The Fountainhead fit this description)
(b) have an annual income of at least $75,000 (necessary to afford the rent); and
(c) have the $4000 in cash or other liquid assets necessary to pay the move-in costs excluding LOF plus a $500 emergency reserve (a total of $4500).
(2) The impact of LOF can be expressed as the percentage of households in the relevant pool that are excluded from The Fountainhead because they do not have the additional $5000 in cash or liquid assets necessary to pay LOF.
(3) The well-designed (and unrebutted) study by HUD shows that the percentage of households in the pool excluded by LOF are as follows:
30% of all households in the pool excluded
22% of White households in the pool excluded
58% of African-American households in the pool excluded
16% of households in the pool having two adults + no children excluded
32% of households in the pool having one adult + no children excluded
64% of households in the pool having one or two adults + one or two
children excluded
(4) Many comparable rental properties in Rand with similar monthly rent and security deposits were able to generate substantial profits without LOF. Galt provided no evidence that suggested that the costs of operating The Fountainhead exceed those of the comparable properties. Thus, the LOF was not necessary for Galt to operate his business.
Galt appealed and the Court of Appeals reversed. It held, following the Fourth Circuit’s approach in Williams, that in a disparate impact suit against a private defendant, the FHA is not violated if the disproportionate effect on the class in question results entirely from class members having less money (on average) than non-class members.
The U.S. Supreme Court granted certiorari, limited to the question of whether the holding of the Court of Appeals was correct. Write (in draft form) the analysis sections of an opinion and of a shorter dissent deciding this question for the Supreme Court in the context of the facts of this case. Assume that the trial court’s findings of fact are supported by the record.
1H.Truman Towers (TT) is a public housing project in a poverty-stricken neighborhood in Kansas City, Missouri. It consists of five 32-story buildings containing a total of 1600 apartments. Over the last few months, several female tenants were sexually assaulted in first floor apartments in TT. The assailants apparently watched the women through ground floor windows, determined that they were alone, and got access to their apartments by posing as policemen.
As a result of these crimes, the city of Kansas City (which operates TT) imposed Rule 02-007, which required that each of the 50 TT ground floor apartments have at least one adult male living in it. Households without an adult male were immediately transferred to apartments on upper floors or to other public housing.
Patty Pepper has been living in a TT ground floor apartment with her two children for five years. Rather than complying when told she had to move upstairs, Patty brought suit under the FHA in federal court claiming that Rule 02-007 constituted sex discrimination in violation of §3604(a).
The District Court granted a preliminary injunction, holding that Rule 02-007 was facially discriminatory and that the FHA contained no relevant exceptions. The city appealed.
The U.S. Court of Appeals for the 8th Circuit vacated the injunction and remanded the case to the lower court, instructing it to proceed on two theories:
(i) Under the reasoning of Familystyle, it is a defense to a sex discrimination claim under the FHA against the government that the challenged policy is substantially related to an important state purpose. Under this theory, the trial court would need to determine whether Rule 02-007 was substantially related to the important government interest in preventing sexual assault.
(ii) Under the reasoning of South Suburban and Bangerter, in some circumstances it is a defense to an FHA claim that the challenged policy is “benign” in the sense that it is intended to benefit the relevant group (in this case, women). Under this theory, the trial court would need to determine if Rule 02-007 was a genuine instance of “benign” discrimination.
The U.S. Supreme Court granted Patty’s petition for certiorari, limited to the question of whether either or both of these theories is a proper interpretation of the FHA. Write (in draft form) the analysis sections of an opinion and of a shorter dissent deciding this question for the Supreme Court in the context of the facts of this case. Assume that absent the adoption of one of these theories, Rule 02-007 would violate the FHA.
1K. TheobaldUniversity is located in the city of Brickenhart. It is a mid-sized private university associated with an Evangelical Christian denomination. All of its on-campus housing is segregated by sex, but it only has room on campus for about three quarters of its undergraduates. The rest of the undergraduates and all of the graduate students (about 800 students a year) must find housing in Brickenhart or its suburbs.
Liz is a Theobald graduate who has religious beliefs conforming to the denomination associated with the university. She owns a five story apartment building near campus. Each floor has twenty large two-bedroom apartments that can house up to four adults in reasonable comfort. Most of her tenants are current Theobald students or recent graduates.
Many of the Theobald students prefer to live in sex-segregated housing and the University encourages them to do so when possible. Liz’s own religious beliefs make her more comfortable with sex-segregated housing for Liz to run a completely sex-segregated building.
To try to balance market forces with her own and the students’ interests in sex-segregated space, Liz organized her building as follows: The apartments on the second floor of her building are only available to male residents. The third floor apartments are only available to female residents. To ensure that tenants cannot get around this system, opposite sex overnight guests are forbidden on both the sex-segregated floors. The apartments on the first, fourth and fifth floors are available to anyone. Only apartments on the fourth and fifth floors have views that increase their value.
Most of the time, nearly all the apartments in the building are rented out. As a result, sometimes the only units available for rent are on one of the sex-segregated floors. The men’s floor has been the only one available about as often as the women’s floor. When this happens, Liz puts prospective tenants on a waiting list and offers them an appropriate unit as soon as one becomes available.
A local non-profit fair housing agency sued Liz in federal court, alleging that maintaining sex-segregated floors constitutes unlawful steering in violation of the FHA. The District Court found as facts the information provided above and ruled in favor of Liz.
In its opinion, the court held that sorting tenants by floor was not steering where the sorting did not put any actual limit on the total number of men or the total number of women in the building. It also held that Liz’s system did not violate §3604(a) because both sexes were treated identically. The court expressed confidence that Congress did not intend to forbid benign sex-based segregation consistent with traditional social norms.