Housing Discrimination Spring 2009 Take Home Final Exam: Questions, Comments, and Best Student Answers

Question I: In January 2008, Sam and Mo Epstein filed a complaint in the U.S. District Court for the District of New Jersey (in the Third Circuit) alleging discrimination on the basis of religion (Islam) and/or national origin (Arab/Egyptian) in violation of the FHA. Specifically, they claimed that:

The Harmony Acres Homeowners’ Association violated §3604(b) by banning their children from the Association’s pools and athletic facilities; and

Two members of the Association’s Board of Directors, Charlie Cohen and Lois Levy violated §3617 by bringing about that ban and otherwise interfering with the Epsteins’ enjoyment of the residence they own in Harmony Acres.

The complaint included the following factual allegations:

1. Samuel (“Sam”) Epstein is the son of two American citizens who are Jewish. He was raised as and remains a member of a Reform Jewish congregation. His wife Monifa (“Mo”), whose maiden name was Monifa Iffat, was born to two Egyptian Arabs who emigrated to the United States and became U.S. citizens prior to her birth. Mo was raised as a Muslim, but converted to Judaism in preparation for her marriage in 1988. When she converted, she became estranged from her parents, who did not even attend her wedding. The Epsteins have two sons, Ari (born in 1992) and Ben (born in 1994), who are being raised as Reform Jews.

2. In 2002, the Epsteins purchased a house in the Harmony Acres development in Jericho, New Jersey. Harmony Acres is a gated community governed by a Homeowners’ Association with an elected five-member Board of Directors. The Association oversees the community’s common areas, which include several swimming pools, tennis and basketball courts, and a weight room.

3. During the period between the Epsteins’ purchase of their house and the filing of this complaint, Glenn Gold was the chairman of the Association Board of Directors. Charlie Cohen and Lois Levy, who own the houses on either side of the Epstein residence, were members of the Board.

4. More than 60% of the residents of Harmony Acres are Jewish, including Gold, Levy, Cohen and one other member of the Board of Directors.

5. Monifa Epstein is generally known as “Mo” and normally does not reveal her traditional-Egyptian full first name to people outside her immediate family. Until 2007, the other residents of Harmony Acres were unaware that she was of Egyptian Arab descent or that she had been raised as a Muslim.

6. In July 2007, Mo’s father died and her mother, Zahra Iffat, came to live with the Epsteins in Harmony Acres. Because of the estrangement, Zahra had never visited her daughter’s home prior to moving in. Zahra follows many traditional Islamic customs, including wearing a headscarf whenever she leaves her home.

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7. Shortly after Zahra moved in, Lois Levy and Charlie Cohen visited the Epsteins and asked Mo to explain the “Arab lady who is working for you.” Mo explained that Zahra was her mother and that she herself was of Egyptian Arab descent and had been raised as a Muslim. Levy and Cohen were visibly upset and left hurriedly.

8. Levy and Cohen rapidly relayed the information about Mo’s background and about Zahra to many other residents of Harmony Acres. Levy told several neighbors that she was very angry that Mo had “lied all these years about being Jewish.” Cohen repeatedly expressed concern that the Epsteins “were hiding a terrorist cell.”

9. Prior to Zahra’s arrival, the Epsteins had regular social interactions with the Cohen and Levy families. Subsequently, the Cohens and Levys and most of the other neighbors stopped inviting the Epsteins to social events and refused any invitations the Epsteins issued themselves.

10. Levy and Cohen each separately suggested to Sam on several occasions that the Epsteins should move to a different neighborhood “where you might fit in better.” They each also would loudly make nasty remarks if they were standing in their front yards when Zahra entered or left the house.

11. In late August 2007, Sam complained to Glenn Gold. Gold, who was an attorney as well as chairman of the Board, spoke to Cohen and Levy. He asked them to modify their behavior, pointing out that that they might be exposing themselves and the Board to liability. After this, Cohen and Levy both stopped making nasty remarks in the Epsteins’ presence, but also completely ceased speaking to the Epsteins at all.

12. Charlie Cohen’s son Nick was the same age as Ari Epstein. Lois Levy’s son Jordan was the same age as Ben Epstein. Prior to Zahra’s arrival, the boys had been friends. After Gold’s discussion with their parents, Nick and Jordan completely stopped spending time with the Epstein boys.

13. When the boys all returned to school in September 2007, Nick and Jordan told their classmates about Zahra and about Mo Epstein’s background and started calling the Epstein boys “mongrels” and “baby terrorists.” These names were soon repeated regularly by other students. Ari and Ben each got into several fights in the first few weeks of the new school year and their performance in school suffered. Ari was kicked off the Junior Varsity soccer team after a fight with Nick in the locker room.

14. Nick and Jordan began shouting things like “Dirty Arab bitch” and “terrorist” at Zahra whenever they saw her. Several times, similar phrases were spray-painted onto the Epsteins’ fence. In October, Sam caught Nick and Jordan on his property with a can of green spray paint and took the can away from them. The graffiti continued to appear in other colors.

15. Sam spoke to both Charlie Cohen and Lois Levy about their sons’ behavior. Levy and Cohen said they would try to control their children, but told Sam, “You know how teenage boys are.” They never punished their sons for any of their actions regarding the Epsteins.

16. During October 2007, Nick and Ari got into a fight at the community weight room and Ben and Jordan fought beside one of the pools a few days later. Lois Levy and Charlie Cohen lied to the rest of the Board of Directors by saying that they had witnessed

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the incidents themselves and that the Epstein boys had started both fights. Cohen said, “It’s really not surprising considering their heritage.” With only Glenn Gold dissenting, the Board voted to ban the Epstein boys permanently from all the pools and athletic facilities. Jordan and Nick were also barred from these facilities, but only for one week.

Trial Court Decision: The District Court granted the defendants’ motion to dismiss for failure to state a claim. With regard to the §3604(b) claim, the court held, following Halprin v. Prairie Single Family Homes1 and similar persuasive authority from other federal circuits, that §3604(b) does not provide a cause of action for post-acquisition discrimination.

With regard to the §3617 claim, the court applied the reasoning of Salisbury House v. McDermott, holding that the allegations in the complaint were insufficient because there was no claim that “some type of force or compulsion” was used to deprive the plaintiffs of their FHA rights.

Court of Appeals Decision: On appeal, the Third Circuit reversed the dismissal of both claims. Finding the reasoning of U.S. v. Koch to be persuasive, it held that §3604(b) does allow claims for post-acquisition denial of services by a homeowners’ association.

The court also overruled McDermott and held that the proper standard for judging “interference” claims under §3617 was “whether the discriminatory conduct was so severe or pervasive that it would have the effect of causing a reasonable person to seriously consider abandoning the exercise of his or her housing rights.” The court said that it was “unlikely but possible” that the allegations in the complaint met this standard and remanded the case to the district court to allow the case to continue.

The U.S. Supreme Court granted the defendants’ petition for certiorari to decide two questions:

(1) Does §3604(b) allow claims for post-acquisition denial of services by a homeowners’ association?

(2) What is the proper standard for determining what conduct constitutes “interference” for purposes of §3617?

Compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court, and of a shorter opinion dissenting or concurring and dissenting, deciding these questions in the context of the allegations in this case. With regard to the second question, the shorter opinion should argue for the adoption of a different legal standard than the one adopted by the majority, even if it ultimately agrees with the majority about whether the complaint states a §3617 cause of action.

Assume that there is no directly applicable HUD regulation. Assume that the First Amendment would not prohibit applying the FHA to the conduct alleged. Assume that parents can be held liable under the FHA for acts of their minor children.

1 Discussed in U.S. v. Koch (See Course Materials at 114 et seq.).

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Question I: Professor’s Comments: For most students, this was the weaker of the two answers. Most students did not provide enough support for their conclusions on at least one side of at least one of the major issues. In addition, quite a few students spent at least several paragraphs on issues I thought were outside the scope of the question. That said, I was impressed by the range of arguments you made collectively. Together you found several strong arguments on each side of each issue that were not made explicitly either by the cases or in our class discussion.

A. §3604(b): Available Language & Policy Arguments from Helprin & Koch & Beyond

1. Statutory Interpretation Arguments:

a. Literal Arguments:

Gourlay argument re “in connection with” (See Models #1, #2, #3).

Koch argument re residence as “privilege” (See Models #1, #2, #3).

Arguments about the nature of services/facilities provided by HOAs (in covenants in purchase documents, so in connection with sale v. in exchange for later fees and dues, so separate transactions) (See Model #3)

b. Arguments from Related Provisions

Use of “enjoyment” in 3604(f)(3) (Gourlay; Models #1, #2, #3).

Use of “services and facilities” in 3603 (Model #2).

HUD regs don’t list post-acquisition harms in explaining 3604(b).

If conduct is covered by 3617, unnecessary to use 3604(b).

c. Arguments from Congressional Intent: See debate between Koch & Helprin as to whether Congress intended to address post-acquisition activities. (See Models #1, #2, #3).

2. Policy Arguments:

a. General Policy Against Discrimination: Proponents of covering post-acquisition activities can point to the general FHA policies in favor of fair housing and against discrimination and note the caselaw saying the FHA should be interpreted generously. (See Models #1, #2). More specific uses of nthe general policies include:

If denial of services/housing is not allowed at the time of sale, but HOAs are not subject to liability for post-acquisition behavior, they could simply wait until the sale is complete, then cut off services or harass unwanted residents afterward. (See Model #1)

Relatedly, if (as was true here) the characteristics in question were not apparent at the time of purchase, why should HOAs be allowed to harass the owners when they later find out they have a protected characteristic. (See Model #3)

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b. Special Concerns re HOAs

Because caselaw suggests this cause of action would be available to a tenant denied services by a landlord, you usefully could argue about whether HOAs are sufficiently different from landlords to suggest a different result. (See Models #1, #3).

Facilities of the kind at issue here are often pivotal to the decision to purchase a unit governed by an HOA and some residents would see access to facilities as crucial to the enjoyment of their home. (See Models #2, #3).

c. Administrative Concerns: Those arguing against coverage of post-acquisition claims will make floodgates arguments. (See Model #1). One of the non-model answers made the interesting argument that these denial of services cases belong in state court with other claims against HOAs and with related dignitary torts.

3. Arguments Outside the Scope of the Question

a. Assessing Whether Allegations Were Sufficient to State a Cause of Action: The plantiffs alleged that the HOA denied them access to the facilities because of national origin and religion. If you decide that post-acquisition activities are covered, those allegations should be enough to withstand a motion to dismiss. Unlike the 3617 claim, where the Supreme Court would need to decide the amount of harassment necessary to trigger the statute, there isn’t really any similar question of severity to decide here.

b. Fall River & Sufficient Allegations of Bad Intent : Spending time on this issue was not a good idea because (i) the lower courts didn’t address it; (ii) the Supreme Court did not list it as a question for decision; and (iii) it seems very unlikely that the Court would not allow discovery as to the intent of the two unmentioned Board members where the general allegation is that the Board acted with discriminatory intent, and the specific allegations are that two of the Board members both had bad intent and tried to influence others to act on the basis of that intent. This is a case where the Fall River issues are likely to arise in the context of sufficiency of the evidence, rather than on a motion to dismiss.

B. §3617: To address this issue, in both the majority and the dissent, you needed to choose a legal test, defend your choice, then discuss whether the allegations in the complaint were sufficient to meet your test. Most students were weakest about defending their rule. Sometimes, the nature of the chosen test was such that it was pretty obvious whether the allegations were sufficient and I did not penalize in those cases for not providing an elaborate analysis of the allegations.

1. Choosing and Defending a Legal Test

a. Possible Tests

i) McDermott: Force or compulsion (see Model #1 dissent; model #4 dissent).

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ii) Gourlay & Court of Appeals in the fact pattern (similar, but not identical): whether the discriminatory conduct was so severe or pervasive that it would have the effect of causing a reasonable person to [G: “abandon” v. CtApp: “seriously consider abandoning”] the exercise of his or her housing rights.” (see Model #1 majority; model #4 majority). It is important that you recognize that, although both Gourlay and McDermott relied in part on ejusdem generis and floodgates arguments, the two cases adopted quite different tests.

iii) Babin: Directly effect the exercise of housing rights (see Model #2 majority(slight variation))

iv) Other: (see model #2 dissent).

b. Defense: Ideally, you need both to explain why your specific rule is a good idea and why the likely alternatives are worse. This can involve:

specific to rule chosen; not just others bad or don’t want to go too far; rhetoric: fund’l

i) Legislative Interpretation Arguments: The arguments based on ejusdem generis and on redundancy are in the models. One important argument that nobody raised is that interference with §3604(b) (access to facilities) might require a lesser showing than interference with §3604(a) (access to housing); even if you have to consider leaving for the latter, wouldn’t simply losing access to facilities without leaving be enough for the former?

ii) Policy Arguments: As we discussed in class, because “interference” is so vague, courts struggle with the tension between trying to most thoroughly protect the rights granted by the FHA and the need to provide some clear limit on how §3617 can be used. You can generally argue that narrower interpretations of “interference” do not protect against some important harms, but that broader interpretations increase litigation, turn minor disputes between neighbors into federal cases and risk chilling free speech.

iii) Precedent: To defend a rule, you can discuss how it would apply to the facts of lower court cases and explain why keeping or rejecting the results in those cases is sensible. It would be particularly interesting to hear how you’d handle Wilkey and Babin/Hughes. (Model Answer #2 does some good work on precedent).

iv) Relationship between §3604 and §3617: The lower courts did not address this question directly, so you did not need to cover it in your answer. I gave credit for discussions of the issue (see Model Answer #4).

c. Deciding Whether the Allegations Met Your Test:

(i) Apply Your Test Carefully: Several students lost points because their discussion of the allegations did not seem to follow the language of their test.

(ii) Take Seriously the Seriousness of the Allegations: Many students were quite dismissive of the §3617 claim here in one of their opinions. Your discussions needed to recognize that, collectively, there’s quite a lot going on here. If the claim were simply based on gossip, asking people to leave, and shutting them out socially, then this would clearly raise concerns both about this merely being a minor dispute between neighbors and about chilling free speech.

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However, the alleged attempt to change the outcome of the HOA decision about access to facilities may take it beyond a simple dispute between neighbors into something with legal consequences regarding property rights. Moreover, vandalism; use of racial/religious epithets; lying at the HOA proceeding and fighting almost certainly are not protected by the First Amendment. (See Model Answer #1 Majority for a very good discussion of why the allegations are serious).

C. Common Problems

1. Disregarding the Procedural Posture: A disturbing number of students discussed this problem in terms of “the evidence,” “the facts,” or “the record.” The case is before the Court after the trial court granted a motion to dismiss for failure to state a claim. All you have at this stage are allegations. Moreover, in that posture, you have to assume the defendants’ motives were discriminatory and simply assess whether the conduct alleged would be enough to violate the statute.

2. Lack of Care Making Arguments:

Neighbors v. HOAs : Many of you failed to take into account in your arguments that the 3604(b) claim was against the HOA while the 3617 claim was against the neighbors. For example, some of you, following Gourlay, argued that allowing this post-acquisition claim would turn every dispute between neighbors into an FHA claim. However, that argument is much weaker in a case where the key action is a vote bythe HOA Board to deny access to facilities.

Distinguishing Cases : Where the legal issue is what the rule should be, it is not particularly useful to distinguish key precedents on their facts unless you explain why the difference in facts is significant enough to require a different rule.

Internal Consistency : You need to make sure that all your arguments are consistent with both the rule you choose and the result you reach. Quite a few students made inconsistent arguments, especially on the 3617 issue.

3. Substantive Arguments re Protected Characteristics: Some students questioned whether the alleged facts would constitute discrimination on the basis of either religion or NO. I don’t think there is a serious question about either category:

NO: Because Z is of Arab/Egyptian origin, surely Mo and the boys are as well. Surely Congress meant “NO” to include ethnic heritage.

Religion: Although Z is the only practicing Muslim in the house, if the family experiences discrimination because of their association with her, it should be actionable under the statute. See Sorenson (race discrimination if evicted because of Afr-American guests). Moreover, the epithets being used suggest that some f the neighbors perceive that Mo and the boys might be Muslims and, as I suggested in class, that should be enough to sustain a claim.

Cause of action by Jews against Jews: Nothing in the FHA makes this a problem. The only placewe discussed it was in th context of §1982 and the argument was rejected there, too.

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Question I: Best Student Answers:Question I: Student Answer #1: [MAF: This was the best overall answer. The treatment of 3617 was probably the strongest in the class, providing some solid defense of the rules in each opinion and, in the majority, a terrific discussion of the application of the 3d Circuit’s test to the allegations. The 3604(b) analysis is also strong, particularly the policy arguments in the majority.]

Majority: 3604(b): FHA was enacted “to provide…for fair housing throughout the U.S.,” w/ the dual purposes of ending discrimination and furthering integration in housing. 42 USC 3601, Starrett, South Suburban. We affirm lower ct’s 3604(b) holding and adopt Koch as the relevant standard, as this furthers the FHA’s purposes.

Text of 3604(b) includes disc in “privileges of sale or rental.” As Koch ct persuasively argued, “residing” w/in a dwelling (post-acquisition =P-A) is the most natural privilege that flows from purchase/rental. To limit services to just pre-acquisition would not further Act’s purpose, b/c it would allow disc to occur w/ no remedy, just b/c sale papers have been signed. 2 Fair housing includes the right (=rt) to reside, not just the rt to buy. In this case 3, for example, it would make no sense to allow the Es to buy their home in 2002 in a gated community governed by a Homeowners’ Association (=HA), then to allow the HA to “disc…in the provision of services” to E family in 2007 (or any time after 2002), just b/c of the passage of time. Especially in HA context, pre-acquisition rt would mean little, b/c the HA doesn’t provide most (or arguably, any) services until after a sale. We should give effect to every term of statute, and since there are arguably no services provided by the HA in connection w/ a sale, and HAs are common in housing, to deny the P-A rt would make the term “services” meaningless in many cases. [MAF: Clever point.]

Dissent (=dst) cites Gourlay’s limited interpretation (=interp) of 3604(b), focusing on phrase “in connection therewith.” 1st, FHA terms should be “construed generously” to promote Act’s purposes, which this interp ignores. Trafficante, City of Edmonds.4 2nd, Gourlay rationale suggests there should be a P-A claim for HA. In footnote (=FN) (20), ct notes plain meaning of 3604(b) would likely extend P-A in connection w/ rentals. In FN 115, ct notes an ongoing relationship b/w landlord-tenant that does not exist b/w purchaser-seller, which the ct uses to suggest that 3604(a) may be read more broadly in rentals. See also Halprin. This case deals w/ a HA, which has an ongoing relationship w/ the purchaser (in fact, here the Es live in b/w 2 Board =Bd members), which is common in HA context, where bd members usually live in the same neighborhood or building as the purchaser. See also Pinchback. Since HA arguably even closer than the landlord in many cases, arg for P-A claims in HA context becomes even stronger, even under Gourlay’s limited (and not binding) reading of 3604(b).

We also reject dst’s arg that HAs should not be included w/in 3604(b). Although this case does involve certain personal neighbor disputes, a HA can have a great deal of power in community. Pinchback. [MAF: Very nice use of Pinchback.] Nothing w/in the text of 3604(b) excludes HAs, and to allow the exclusion would not further FHA purpose. If a HA were allowed to “discriminate…in the provision of services” based on a protected characteristic, that should

2 Legislative history (=LegH) also supports P-A rt. Although we are not aware of any LegH directly on point w/ P-A rts in HA context, Koch includes the original statement of policy of the FHA (including “occupancy” of housing). The inclusion of 3605 in FHA also suggests Congress (=Cong) was concerned w/ P-A disc. Koch.3 Not reaching decision on issues, but accepting the allegations as true for the sake of argument4 Both of these are cited in Koch, and are binding as Supreme Court cases. 5 FN 11 deals w/ 3604 (a), but it is the rationale that matters in this discussion.

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clearly be a 3604(b) violation. Here, i.e., the HA has control over the common areas, and the power to ban people permanently from them. If the HA is doing this based on a discrim purpose (i.e. religion/national origin), that goes against FHA purpose.

3617 We also affirm Appeals ct’s standard for “interference” (=interf) (“so severe or pervasive…likely effect of causing reasonable person = RP to seriously consider abandoning the exercise of his or her housing rts”) and reject Trial ct’s “force or compulsion” requirement. Further, ev seems sufficient to state claim under this standard.

As a preliminary matter, Trial Ct’s standard would make the other terms in 3617 mere surplusage, since that seems to overlap w/ the definitions of “coerce,” “intimidate.” As canon of statutory construction, we should not read words as surplusage. Gourlay. If Cong included word “interf,” w/in 3617, it must have intended for it to have a separate meaning.6 This definition strikes the appropriate balance, especially b/c the dst’s claims that this is too easy a standard are resolved by the intent requirement, which is difficult to prove and will prevent flood of litigation the dst warns against. [MAF: The student could have spent more time defending that the rule chosen instead of the trial court’s was the correct one.]

Applying this standard to this case, the complaint seems to make out enough of a 3617 claim, assuming E can prove intent. Throughout complaint, it is clear that C and L made repeated efforts, through their actions and their children’s, to likely cause a RP in the E family’s shoes to seriously consider abandoning the exercise of their housing rts. As soon as C & L discovered the “Arab lady” was M’s mother, they relayed info to several neighbors in the community, and C expressed concerned to multiple neighbors that E’s were terrorists. This is extremely serious accusation that is not to be taken lightly, especially in this day and age (w/ FISA phone-tapping, racial profiling after 9/11, and Homeland Security issues). Perhaps spreading rumors alone would not be enough to “interfere” w/ enjoyment of the property. However, Es were subjected to alienation in their neighborhood b/c of these terrorist accusations, spray-painting of the words like “terrorist” and other slurs,7 and constant screaming of such terms to mother-in law when she entered/left house. Further, b/c of N & J, these terms followed the E boys to school, where they suffered as a result of constant teasing by their classmates. Although the FHA deals w/ housing, schools are often a part of a reason to move into a neighborhood (or in this case move out of one), and here the fact that the E boys couldn’t even escape these terrorist accusations (which can be directly linked to L & C) in school suggests that a RP in this family’s situation would likely consider moving, and giving up their FHA rts, which must be a violation of 3617.

Dst characterizes situation as a series of neighborly disputes that cts should stay out of. However, as S.Ct., we have a duty to shape policy for lower cts. While neighborly disputes such as not inviting the Es to social events is clearly not a matter for the cts, the vicious spreading of accusations of terrorism, based on prejudices of religion and national origin, are both serious and pervasive. B/c of L & C’s conscious effort to attack the E family b/c of their perceived religion and national origin, L & C effectively interfered w/ the E’s enjoyment of their home and the privileges that flow from such residence, including attending neighborhood schools and enjoying common areas. Although dst wants to defer to HA b/c elected, clear that L & C also engaged in severe discriminatory conduct by corrupting the democratic process by lying to the Board. L & C not only lied to the Board about who started the fights, but they also reiterated their prejudices 6 We reject dst’s notion that “interf” is a catch-all provision. Nothing in text of the statute or legislative history suggests this. Interfere has its own unique definition, and if Cong disagrees w/ our interp, they may amend 3617 accordingly. 7 “Dirty Arab Bitch” spray painted on E’s fence for the world to see is a arguably a hate crime, and may be dangerous (to a different degree as a car bomb, Sturgis, which presents a more immediate threat) as it may draw negative attention and further threats or other actions from community members. Further, the issue of whether N & J actually spray painted can be flushed out at trial. It is enough at the pleading stage.

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(and perhaps the stereotypes they were feeding throughout the neighborhood) by claiming it may have been b/c of their heritage.8 As a result, E’s teenage boys9 lost access, permanently, to pools and athletic facilities controlled by HA. Especially serious b/c of the boys’ age, but w/ the multitude of other problems faced by E family as a result of L&C’s vicious lies, it should definitely be enough to force RP to consider moving, especially where clear that 2 members of the Board (who also live on each side) have so much power to control access to certain “facilities” (which if disc, falls w/in 361710 text).

Here, more than a series of indirect consequences b/c of ambiguous statements by two neighbors opposed to a crisis home for mental patients. McDermott. (“more important that we express our fears…vehemently”). There is instead a family faced w/ serious and pervasive allegations and attacks by two people who have some power to influence elected HA 11, and in a context of such harassment where a RP would seriously consider giving up his rts to housing, or perhaps even where the rt to enjoy the property no longer exists in reality. This is clearly interf under 3617.

Dissent: 3604(b): Majority (=maj) fails to read plain language of 3604(b): “to discriminate…in terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith….” (emphasis added) As Gourlay (which is not binding, but persuasive) noted, italicized portion limits claims for disc provision of services to those in connection w/ actual sale, not P-A services, b/c 1st clause only mentions sale/rental of a dwelling. Gourlay, Halprin.

Maj’s interp seems to insert word “enjoyment” into 3604(b). This is not the role of the cts. Cong wrote this statute, and left that word out. Further, Cong knew how to use the word, since it is included in both 3604(f)(3) and 3617. This suggests that 3604(b) is limited to the actual sale transaction, and that the P-A claim (for anything other than handicap, which is covered by 3604(f)(3)12 lies in 3617.

Maj wrong to look to Gourlay’s FNs for guidance. When the HA context involves a purchase, as in this case, 3604(b) clearly does not allow P-A claims. Further, cts should not be getting involved in neighborly disputes, as in this case. Unlike the landlord-tenant situation, a purchaser has greater property rts in his home, and is also on more equal footing w/ the HA than the landlord-tenant relationship.

3617: Maj’s low standard will create flood of litigation. Maj fails to consider well-founded statutory construction: ejusdem generis 13. 3617 presents list of 3 specific phrases, followed by general term “interf,” which is clearly a catch-all provision, and therefore must be limited to scope of specifics. I would include trial ct’s requirement of “force or compulsion,” b/c otherwise anyone would be able to bring in a 3617 claim based on neighborly disputes and upset feelings, allege intent (w/o any good ev of it), and then flood the courts w/ endless litigation. The RP standard is too complex for housing situation, and “force and compulsion” would maintain traditional claims like car-bombing, Sturgiss, firebombing homes, Waheed, and other similarly brutal acts. Further, “seriously consider leaving” language is ambiguous, and will not prove

8 This is not democracy, and the voting remedy is likely to have little effect, whereas here, neighborhood is 60% Jewish, Bd is 80% Jewish, and there is a longstanding historical Arab-Jewish conflict.9 One of whom was also kicked off the JV Soccer Team (no sports, greater effect on RP?) 10 Further, if disparate treatment in way HA is applying rules (i.e. in a disc’tory manner), that should be FHA violation. 11 Arguably similar to Arlington Heights, departure from procedure, and Rizzo. 12 Koch, further surplusage arg about 3604(f)(3), (f)(2), which is identical to 3604(b)13 Plus, everyone knows a canon of construction means nothing if it is not in Latin.

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practicable standard b/c it is too subjective, even w/ inclusion of RP test (which, as in torts, is often tailored to parties, and may be exceptionally unworkable in the housing context).

I disagree that there is ev in complaint to meet even maj’s low interf standard. L & C have 1st Amendment rts, mere rumors can’t be basis for interf claim. Unless words contain clear threats, 3617 should not allow words alone to be enough, since would make so many common neighborly disputes (and gossips) subject to litigation. McDermott.

Question I: Student Answer #2: [MAF: This answer is very solid on both issues. On the 3604(b) question, the majority contains a very strong argument based in the language of 3603, although the dissent is a little stronger overall. On the 3617 question, although there a couple of pretty solid argumnts in the dissent, the majority is much stronger, showing a really good sense of what the cases say and how to use them.]

Majority: §3604(b): Plain/Dictionary Meaning of Statute – Not clear whether “services or facilities in connection therewith” under §3604(b) relates to “privileges of sale or rental” (“PSR”) or “dwelling.” Plain meaning of “services and facilities” (“S/F”) of dwelling includes facilities like pool and athletic facility as part of package of buying home in community. Epstein family (“EF”) bought home in anticipation of use of these facilities. Yet, “S/F” in connection with “PSR” could only include those realtor, title, loan, and other services happen prior to the completion of the sale or lease of the property. Therefore, plain meaning not clear if a §3604(b) violation. Where plain meaning is ambiguous, cts. look at dictionary definition of word to find plain meaning from ordinary usage. Gourlay.

Even if ct. assume that statute should interpret “S/F” to relate to “PSR,” dictionary meaning of facilities in connection with privileges of rental could include post-acquisition amenities like pool and athletic equipment, especially where landlord has ongoing duty to keep apartment and common areas habitable. See Gourlay. If dictionary definition could extend to post-acquisition S/F in context of rental, likely that it could also extend to sale, especially where HOA has similar duty as landlord to keep common areas habitable. Yet, “S/F” could strictly be interpreted, as it was under “plain meaning,” only include S/F associated with the financial transaction of sale or rent. Where plain meaning not clear, ct. must look at canons of construction (“CC”) to find meaning of statute. Gourlay.

CC – If legislature uses particular language in one part of statute but omits in another section, presumption that legislature intentionally excluded language. Gourlay. Under §3604(f)(3)(B), legislature provided for protection against discrimination on basis of handicap to include “equal opportunity to use and enjoy a dwelling.” Phrase clearly applies to post-acquisition enjoyment of property. No such phrase of use and enjoyment exists under §3604(b). If §3604(b) already included use and enjoyment of dwelling, there would have been no reason for legislature to include §3604(f)(3)(B) in statute. Therefore, legislature intended to not provide for protection against discrimination in post-acquisition services, like pool and athletic equipment.

“S/F” interpreted as statutory terms of art. Both “S/F” are found in statute under §3603(b)(1)(A) and §3603(c)(2). Plain reading of (b)(1)(A) refers to S/F used in pre-acquisition of sale or rental by real estate brokers, agents, and salesmen. This interpretation is clarified and supported in (c)(2). Statute should be interpreted consistently throughout; two sections are the only other sections in statute where “S/F” are used in conjunction. Likely that legislature intended that “provision of S/F in connection therewith” refer to the pre-acquisition PSR of dwelling, as it is under (b)(1)(A) and (c)(2).[MAF: This is very good!]

Policy and Legislative History Arguments – CC provide adequate evidence that §3604(b) does not encompass post-acquisition HOA pool and athletic use; BUT court still look to legislative history and policy if any doubt. Santa Fe Trail. Original purpose of FHA to address

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discrimination practices cut off inner city blacks to access to suburban housing. Koch. Where FHA concern was to address access to suburban housing for minorities, not clear how protection against post-acquisition discrimination could further this goal.

App. Ct. relies on Koch which bases large part of opinion on Neudecker. Neudecker found post-residence acquisition claims based on disability allowed under §3604. However, since Neudecker involved disability, Neudecker ct. upheld post-residence acquisition claim based on §3604(f)(3)(B), “equal opportunity to use and enjoy dwelling.” While this phrase is present under §3604(f), it is clearly absent from §3604(b). CC legislature purposely excluded from §3604(b). Koch court cannot rely on Neudecker for a §3604(b) claim.

3617: Though EF not entitled to claim under §3604(b), EF still may recover under §3617, as held in Koch, Sofarelli, Stirgus.

Plain/Dictionary Meaning – “Interference” defined in dictionary as interposing in way that hinders or impedes; come into collusion or be in opposition; enter into or take part in concerns of others. Webster’s; Salisbury. Not clear what conduct is included under definition; too expansive including innocuous conduct like enforcement of covenants against family of different religion or race; competitive bidder; landlord not allowing minorities to have parties on certain nights of week, etc. Risk that every dispute between neighbors of different races end up in federal ct. over FHA claim. Gourlay. If plain meaning not clear, look at CC to find meaning of statute. Gourlay.

CC – Where general term follows specific term, general term should be understood as reference to and in context to specific term. Gourlay; Salisbury. “Interfere” is general term and is preceded by three specific terms, “coerce,” “threaten,” and “intimidate.” Salisbury court held that all three specific terms require some act of force or compulsion. Therefore, “interfere” should also be limited to acts of force or compulsion. Salisbury. However, Salisbury court overstates its ejusdem generis claim. “Coerce”& “intimidate” both have force or compulsion in definition. Webster’s. Yet, definition of “threaten” does not explicitly involve any form of “compulsion” or “force.” Not clear how Salisbury court would reconcile this distinction. More instructive to look at how other cts. define “interference” under §3617 to carve out working definition.

Past Court Decisions – Gourlay held that “interference” claims are limited to conduct that is so severe or pervasive that would have effect of causing reasonable person to abandon exercise of housing rights. Ct. compares conduct to Title VII hostile work environment claims; look for violence or threats of violence. Gourlay finds close call where no violence or property damage occurred, content and context of discriminatory statements are limited, and only alleged discrim. action is filing of lawsuit. Stirgus and Koch supported severe and pervasive standard, finding firebombing of house or systematic sexual assault and battery of women violated §3617.

OTOH, cannot discover how far statute goes by observing direction in which it points. Babin. §3617 “interference” not limited to force or compulsion but also people in position to directly disrupt exercise or enjoyment of protected right & exercise power with discriminatory act. Though, Babin found that seller not liable under §3617 where house sold to highest bidder even though buyers were motivated by animus to keep home intended for mentally disabled out of neighborhood. Economic competition act not direct enough act to “interfere” with potential buyers’ enjoyment of rights. Contrasted with Hughes, where court rejected Babin and found that “interference” did exist. Economic exception rejected, especially where irrational behavior to spend money for purpose of prohibiting someone else from living next to you based on handicap.

Majority rejects Hughes; creates test based on Babin. Not clear Hughes court analysis of what is irrational behavior. Bank’s behavior in Hughes might not be all that irrational if other buyers are also irrational. Bank is motivated by making sure property values stay high and owner

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will be able to repay mortgage. If other homeowners on street will sell property if handicap home moves in, then economic rational for bank to give mortgage to third party not opening handicap home.

Majority creates test of “interference” based on tort-like proximate cause test. While overt acts as described in Gourlay, Stirgus, and Koch are included in definition of “interference,” other less overt behavior also included. Π must show that less overt act motivated by discrimination or animus was direct cause to Π’s loss of enjoyment of housing right. Π must show no superseding or intervening causes to loss of enjoyment; if Δ shows superseding or intervening cause, then Π has no cause of action under §3617 “interference.”

Under allegations, clear that behavior of Cohen and Levy families (“CLF”) motivated by hatred for EF’s Arab background and CLF never punished children for name calling & vandalism against EF. Ct. reluctant to find §3617 violation for mere name calling, but CLFs’ complete disregard for children’s behavior led to physical fight between EF children and CLF children. CLF lied to Board for children to hide their children’s wrongdoing. CLF children’s violent acts, along with the less overt acts of lying, were direct cause to EF children’s loss of enjoyment of pool and athletic equipment. Acts as alleged fall squarely into definition of “interference” under §3617.

DISSENT: §3604(b): Plain Meaning – As owners of home in neighborhood, EF have property rights in common areas that they purchased with their home and pay for their maintenance in monthly dues to HOA. Privilege or right of enjoying use of pool and equipment flows out of definition of purchase or rental of dwelling. Koch.

CC – Does not provide clarity to meaning of clause. §3603(b)(1)(A) and §3603(c)(2) both deal with exemptions as it relates to rental or sale of dwelling by parties which does not involve facilities or services of brokers, agents, or salesmen. Not clear how this context of exemption could be imposed on §3604(b) which deals with prevention of discrimination in sale or rental of dwelling. Majority’s analysis provides little clarity on the issue of interpretation. As majority points out, “F/S” could relate back to “PSR” just as much as it could relate back to “dwelling.”

Legislature intended to provide disabled extra protection against discrim.; created statute to address special needs of disabled because face different type of discrim. than other groups. However, just because legislature decided to provide disabled protection against discrim. under §3604(f)(2)(A); does not foreclose possibility that §3604(b) also provides post-acquisition protection; could be mere coincidence. CC do not show solid conclusion; ct. look at legislative history. Santa Fe.

Legislative History – Courts construe terms of FHA generously. Trafficante. FHA created to promote truly integrated living patterns. Gourlay; Starrett City. First section of FHA originally presented to legislature to include policy of preventing discrimination in occupancy of housing. Starrett City. Agree with majority that original purpose was to address business practices preventing blacks from leaving inner city ghettos. Starrett City. Goals and purpose would be defeated if FHA provided pre possession but not post possession protection against discrim. Gourlay.

Even if legislature had not contemplated post possession, FHA was passed due to public outcry to social problem of severe racial discrimination against blacks. Starrett City. Legislature is voice of people. Ambiguities of statute should be resolved with what that voice would want today. Mandy. Public voice today would want to continue to meet the problems of discrim. Not always best approach to interpretation through literalism. No surer way to misread a document than to read it literally. Starrett dissent. Legislative purpose of FHA prohibit discrim. as well as

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further integration. Starrett; So. Suburban. Construing statute to exclude post-acquisition discrim. defeats that purpose.

§3617: Agree that CLF children’s actions amount to violation of §3617. Disagree with majority’s test. Too narrow where fails to find acts by bidders and banks whose less overt, indirect actions are clearly discrim. as “interference” under §3617. Test focus less on causation and more on intent. Greater the malicious and discrim. intent and less rational justification for act, greater attenuation between act and harm should be allowed. Under this test, discrim. of Δs in Wilkey and Hughes found malicious with little to no rational justification. So, still violation of §3617 “interference,” though act is attenuated.

Question I: Student Answer #3 (3604(b) Issue Only): [I thought this was the best treatment of this issue; good on both language and policy in both the opinion and dissent.]

Majority: Section 3604(b) of the Fair Housing Act does allow claims for post acquisition claims. The primary goal of the Fair Housing Act is to prevent discrimination and provide access to housing. Section 3604(b) makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling…” (emphasis added). These privileges do not cease to exist once a dwelling is acquired.

Had Congress meant to limit the protection of §3604(b) to the sale of the dwelling, as the trial court found in its reliance on Halprin, they would have omitted the mention of privileges and simply referred to what is at issue in a sales transaction: terms and conditions. It can be argued that the term “privileges” simply refers to the general privilege of being able to buy or rent a home, but this is unfounded as that privilege is protected in §3604(a) and §1982.

The term “privileges” was added to ensure that tenants and owners receives equal privileges that flow from the rental or sale of a home- privileges that continue through the duration of occupancy. As discussed in Koch (page 117), legislative history supports the interpretation that Congress was concerned with preventing discrimination during occupancy.

The case at hand serves as a good example of why §3604(b) creates a post acquisition claim. The religious and national origin classifications that are at issue were unknown to the defendants at the time of acquisition. Religion, national origin and some types of disabilities are not immediately visible, and therefore may not be discovered until after housing is acquired. To read the statute so narrowly as to prevent a post-acquisition claim under §3604(b) would completely undercut the goals of the FHA and leave some victims of discrimination without remedy simply because their protected classification was not facially visible and the discovery and subsequent discrimination occurred during occupancy. [MAF: This is a nice argument].

§3604(b) allows for a claim for denial of services by a homeowners’ association. The Court of appeals correctly relied on the post acquisition analysis in Koch, and appropriately extended this reasoning to the current case. Homeowners’ associations are increasingly prevalent and in many cases control the very services and amenities that make a neighborhood or a building desirable to prospective buyers. The use of swimming pools, gyms, and other common areas are selling points for the development and privileges that flow from purchasing a home or condo. Mandatory homeowners’ association dues are used for the maintenance and upkeep of these facilities for the enjoyment of all members. The board (or governing body with any such title) of a homeowners’ association is, with respect to services and amenities, essentially a landlord. [MAF: nice argument.] The Court of Appeals reliance on Koch (involving a landlord and renters) is appropriate.

The trial court relied of Halprin, a case involving a dispute with a homeowners’ association. Even if we had not rejected the Seventh Circuit’s narrow reading of §3604(b),

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Halprin involved harassment and the imposition of an additional regulation, but not the outright denial of services by a homeowners’ association on the basis of a protected classification.

Where a homeowners’ association allegedly denies services post-acquisition on the basis of a classification protected by the FHA, §3604(b) does allow for a claim. The allegations are that the HOA treated the Epstein children differently by permanently banning them from the pools and athletic facilities, whereas the Levy and Cohen children received only a temporary ban. For the §3604(b) claim to be successful, the plaintiff must show that the difference in treatment by the HOA board was based on religious and/or national origin.

Dissent: The plain language of §3604(b) makes no mention of a claim for post acquisition for denial of services by a homeowners’ association. The statute

only prohibits the discriminatory provision of services and facilities in connection with a sale of a dwelling. The context of the use of the phrase ‘in connection therewith’ clearly limits claims for discriminatory provision of services to the provision of those services in connection with a sale, because the preceding sentence mentions only the sale or rental of a dwelling.

Gourlay. Had Congress intended the statute to allow for a post-acquisition claim that protected use and enjoyment, they would have stated it, as is the case with §3604(f)(3).

Though we do not find a claim against an HOA, we do not read the statute to exclude all post acquisition claims. The majority rely follows the reasoning of Koch, arguing that where the HOA is paid a fee and manages amenities, the HOA essentially becomes a landlord. The language of the statute provides for the protection of “privileges of sale or rental,” and we interpret occupancy as a privilege flowing from the sale or rental. Halprin. In Koch, the landlord was still effectively in control of the occupancy of the apartments, in which case the statute allows for a post-acquisition claim.

The extension of the status of landlord to an HOA board is erroneous. First, the HOA does not control occupancy as a landlord does. Members of an HOA, no matter how powerful the HOA board, are still the owners of their property and control the privilege of occupancy that flows from a sale. Second, the balance of power between a landlord and tenant versus an HOA board and member is very different. Landlords essentially hold all power at the time of rental and post-acquisition. An HOA board holds virtually no power at the time of sale and has limited power post-acquisition. Finally, Members of an HOA are also able to impact the composition of and decisions made by the HOA board through their votes and involvement, whereas tenants have no power, aside from moving, to change their landlord.

Even under this Court’s expansive reading of §3604(b), the denial of services by the HOA cannot support a claim. The “privileges of sale or rental” do not include the services provided by the HOA. The purchase of a home in a neighborhood with amenities provided by an HOA does not guarantee access to the amenities; payment of HOA fees and membership in the HOA does. The services provided by an HOA are privileges of payment of dues separate from the acquisition of a home. [Clever idea, although often part of the closing documents a sale.]

Question I: Student Answer #4 (3617 Issue Only): [MAF: This was probably the second strongest on this issue (after the first model). The majority opinion is particularly strong, doing nice solid work both in defense of the Gourlay rule and on application to these allegations.]

Majority: 3617 of the FHA states that “it shall be unlawful to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of… any right granted or protected by” 3603-3606. The cts have struggled with the meaning of the concededly ambiguous term “interference.” See McDermott, Gourlay, Babin, Hughes. In one circuit, McDermott found that the term is a catchall and the section requires “force or compulsion.” In another circuit, Gourlay held that interference is conduct that is so severe/pervasive that a reasonable person would leave.

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In addition to the confusion over the term “interference,” some cts have held that 3617 stands alone (Gourlay, Stirgus), while others have required a violation of 3603-3606, thereby turning the section into an aiding and abetting section. Ex. Frazier.

We do not read “interference” as being solely a catchall designed to require force and compulsion. Interference is its own term in the series, meaning “to hinder” or “impede” and to take part in the concerns of others. Webster’s 9 th New Colleg. Dictionary . There are acts that lack force or compulsion yet still interfere so much as to deprive a property owner of their enjoyment. See Hughes. However, we take seriously the words “hinder” and “impede.” We recognize, as the Dissent points out, that the cts cannot be flooded with neighbor squabbles and that only severe actions will qualify as interference. We agree with the lower court’s variation of Gourlay standard. Discriminatory conduct cannot be merely inconvenient; it must be so severe or pervasive that it would make a reasonable person seriously consider leaving. We rely on the parallel reasoning of Title 7’s hostile work environment, expounded on further in Gourlay. We overrule McDermott as to the meaning of interference.

Here, like in McDermott, neighbors sought to interfere with the use of another’s property based on the spreading of lies and misstatements. Like in Gourlay, a homeowners association allegedly acted unfairly to homeowners. In Gourlay, the ct’s examples of actionable interference included racial slurs, physical violence, property damage and numerous derogatory statements. [MAF: good use of Gourlay.]

In the case at bar, conduct fitting each of categories allegedly occurred. The E’s fence was repeatedly spray painted with derogatory phrases by the children of CC and LL. These actions occurred after the realization that Monfia was Egyptian and her Muslim mother moved in. These actions continually damaged the E property and even after the children were caught their parents took no action. In Seaphus v. Lilly repeated acts of vandalism were held to be actionable under 3617. In Stirgus racially motivated violence and vandalism was also held actionable. We believe that there needs to be a uniform standard when it comes to vandalism and violence. Assuming that E’s sons were not the initial aggressors, the boys suffered violence at the hands of the sons of CC and LL. CC and LL themselves peppered the grandmother with derogatory phrases and urged E to leave the development. CC and LL’s conduct after they were legally advised by GG to stop their comments isolated E in silence. LL accused Monifa of lying about being Jewish and CC stoked concerns that the family was “hiding a terrorist cell.” Their children harassed the E boys at school. We find that because of these discriminatory actions, E states a claim for interference upon which relief can be granted. It is possible a reasonable person would consider moving based on these numerous events. As an aside we note that if these actions do not rise to interference then interference would mean only the extreme violence of Stirgus and cross-burning- essentially force and compulsion.

Because we held in Section I that E stated a cause of action under 3604(b) it is unnecessary to this case to state whether 3617 stands alone or needs a cause of action from 3603-3606. However in the interest of resolving the circuit split we hold that section 3617 does not need a violation of another section for the claim to be actionable. If 3617 were not independent then actions by third parties that interfere with a family actually living in their house would go unpunished. The section would be reduced to an aider/abetter clause of the prior sections and that was not the announced intention of Congress. We agree with the reasoning in Koch and Neudecker. Had the legislature intended the section to turn on violations of 3603-3606, they could have written the section as such.

Dissent: Although we agree with the majority’s holding that 3617 does not require a separate violation of the FHA, we cannot agree with their definition of interference. Based on the canons of construction as noted in McDermott, interference is a catchall for conduct flowing under

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coerce, threaten and intimidate. It is impossible that Congress would prevent force and compulsion and then add in hindrance and a dalliance into the affairs of others. The majority simply says again that the punishment of bad acts (the ends) justifies the interpretation (means); the result of which will be increased litigation.

Because no force or compulsion was used, we would reverse the Ct of Appeal. We would overrule Gourlay in so far as the standard for 3617, and although we feel for E, we would dismiss the complaint.

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QUESTION II: Based on the facts below, identify and discuss the strengths and weaknesses of any colorable disparate treatment claims under §3604(a) or discriminatory advertising claims under §3604(c) that might be raised against Father George and the Starr Foundation by John or Paul for discrimination on the basis of National Origin or Religion. If you believe that mixed motives analysis might be relevant to any §3604(a) claim, simply state that belief; do not try to work through the mixed motives analysis or discuss whether Price Waterhouse would apply.

The Starr Foundation is a non-profit corporation dedicated to making life easier for people who choose to immigrate to the U.S. Most of its energies are devoted to poor and working class immigrants, but it has a few projects targeting those who are more affluent.

In 2001, a new 120-unit apartment complex was about to open in San Francisco when its developer declared bankruptcy. The Starr Foundation purchased the empty complex and named it “Strawberry Fields,” intending to use it as a kind of upscale halfway house for recent immigrants. The notion was that new arrivals to the U.S. could rent an apartment there for up to two years and receive, in addition to living space, a variety of services including help with the immigration process, practical information about living in San Francisco, and information about how to contact people or organizations that share the immigrant’s heritage, language, or religion .

The Foundation decided to allow some U.S. citizens to rent housing at Strawberry Fields because its lawyers were aware that limiting rentals to immigrants might run afoul of national origin protections in the FHA The Foundation’s Board of Directors also believed that the presence of some Americans in the complex might help integrate recent arrivals from other countries. However, the Foundation decided to require that all tenants, even the Americans, be new to San Francisco.

To manage Strawberry Fields, the Foundation hired Father George McKenzie, a Roman Catholic priest with extensive experience providing social services to immigrants. The complex was an immediate success and soon there were many more applications than available apartments. Father George had to develop some procedures to help choose among them.

He decided to collect applications for a month at a time in anticipation of vacancies that would arise when the tenants’ two year maximum stay ended or if they otherwise had reason to leave. At the end of each month, he would fill the vacancies from among that month’s applicants who were financially qualified, giving some priority to:

renting to applicants who spoke the greatest number of languages (because they were more likely to make connections with other tenants);

renting to applicants from countries less well-represented among existing tenants (for diversity and to create connections with more different immigrant groups); and

maintaining between 15% and 25% Americans in the complex (enough to help the others assimilate, but not enough to significantly exclude the immigrants who were the primary intended beneficiaries of the project).

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Father George developed a standard flyer that contained text but not pictures. The

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flyer is reproduced on the previous page.14 He distributed the flyer to employment agencies and employers who worked with professionals from overseas. He had the text translated into eleven languages and ran it as an ad in the on-board magazines of international airlines.

He also did a version of the flyer that did not contain the section on “services for recent arrivals” or the language, “Ready to live in America, but not quite ready to be an American?” He sent this version to domestic employers and ran it as an ad in domestic airline magazines.

In May 2008, John, a computer programmer from Cleveland, relocated to San Francisco and successfully applied for an apartment at Strawberry Fields. Although Father George felt that the complex had nearly the maximum number of U.S. citizens that he should allow, John speaks Czech (plus Japanese, French, Spanish and Cie), and one of the new tenants who was having trouble making friends was from the Czech Republic.

Father George met with John when he moved in When he began to talk about the availability of religious services, John revealed that he was a member of the Church of the Spirit of the Expanding Gospel. CSEG is a very small Christian denomination that believes each of its members has a duty to God to live strictly in accordance with New Testament teachings and to continually try to lead others to join the church and live accordingly.

Father George visibly shuddered when he heard John belonged to CSEG because his experience was that its members greatly annoyed people around them with constant attempts to persuade them to the CSEG view of the world. He told John, “You can believe whatever you want, but its very important in a place like this that you respect the views of others. Please be careful about how you spread your gospel. Don’t let me hear that other tenants think you are harassing them.”

John was a warm friendly man and although he would talk about CSEG to anyone who had a conversation with him for more than five minutes, he rarely annoyed his fellow tenants. In the ten months after John arrived, the only tenant who complained was the man from the Czech Republic, who had almost nobody else to talk to and so got more than his fair share of John’s preaching. Despite the lack of complaints, at several social events when Father George saw John talking about CSEG to another tenant, he would ask him to stop. John would always smile and comply.

Meanwhile, the number of American citizens in the complex had increased slightly, to almost 30% of the tenancies. The Board of Directors of the Starr Foundation held a meeting and strongly suggested to Father George that he needed to reduce the percentage to bring the complex more into line with the Foundation’s primary purpose of helping immigrants. Annoyed, Father George returned to the complex to attend a social event, where he found John preaching in Japanese to a newly arrived Electronics Engineer. He got very angry, and said, “I’ve told you not to bother the other tenants with all that. I’m going to have to ask you to leave the complex. You have two weeks to get out.”

14 For movie trivia buffs, 555 Durella Street is referenced in What’s Up Doc (1973), which contains the best comic chase scene ever filmed. The phone number, of course, is 650-BEATLES.

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John’s friend Paul, also a programmer and a member of CSEG, was looking to relocate from Cleveland to San Francisco. He and John had discussed the possibility that Paul would apply for an apartment at Strawberry Fields. When John was evicted, he told Paul not to bother applying, saying “Father George doesn’t want more Americans and he doesn’t want CSEG members.”

Paul replied, “I’m sure you’re right. I just got off a Lufthansa flight and there was this ad in German for the place that made it pretty clear they only want immigrants. It’s too bad. I really was going to apply, but I guess I won’t bother now.”

Question II: Professor’s Comments:

A. Generally:

1. Grading Criteria: I strongly rewarded discussions of the four major issues laid out below that raised strong arguments on both sides and used the facts well. Quantity of relevant points made was also a mild consideration. The median number of points made was 117.5 and the mean was 128. The two lowest totals were below 60; the second and third highst were between 165 and 170. The highest total, which is the first mode answer, was 255.

2. Use of Space: My issue-spotting questions always raise more issues than you have room to fully discuss, putting a premium on identifying the most important issues and on using space effectively. Many of you could get more ideas on paper on this exam (or any other) by writing more efficiently, using abbreviations15, etc. The first model does this exceptionally well. In addition, I was quite surprised that several students used less than six pages of their available seven. Even if you were pressed for time, surely you could have banged out some additional analysis to fill the space you had.

3. Issues Outside the Scope of the Question: You should not have discussed:

a. Issues Not Covered by the Course: E.g., Standing and the 3607 exception for religious organizations (which wouldn’t be applicable anyway because SF is not affiliated with any religion).

b. Issues Not Covered by the Language of the Question: I asked you to discuss “colorable disparate treatment claims under §3604(a) or discriminatory advertising claims under §3604(c).” Disparate impact claims are outside the scope of the question (plus I told you I wouldn’t test them).

15 I apologize for giving you multiple entities with the initials SF (San Francisco; Strawberry Fields; Starr Foundation). Usually I catch things like this, and I paid with quite a bit of confusion at my end. I tried to give you the benefit of doubt as to whch you meant if I wasn’t sure.

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c. Questionable Legal Claims:

A few students discussed whether the claim should fail because it is “post-acquisition.” Evictions surely constitute “denial” of housing or “otherwise mak[ing it] unavailable.” None of the policy reasons for limiting post-acquisition claims would seem to apply when people completely lose their housing. Moreover, we did an eviction case (Sorenson) in which this was not an issue.

A few students discussed whether “American” constitutes a “national origin” within the meaning of the FHA. I suppose it is possible that a court would entertain this as a serious question, but I think it’s unlikely. Unlike §1982, the FHA is written neutrally and would appear to cover any possible national origin just as it covers all races. And the nation where you were born seems to be one of the plausible literal readings of “national origin.”

B. Intent to Discriminate: Most students did some solid work compiling evidence of G’s intent. In grading, I considered the following issues

1. Solid two- or three-sided discussion: The facts supported three plausible reasons for the termination:

that J was American (the board pressured G to have fewer Americans; lawfulness depends on benign discrimination arguments discussed beow);

that J was a member of CSEG (clearly unlawful); and

that G believed J was harassing other tenants (probably lawful).

Ideally, you should have discussed evidence supporting each position and then compared the strength of each. Many students, including both models, primarily discussed intent in looking at the religion claim, and discussed the national origin claim only in terms of the benign discrimination issue. However, one way to defeat the national origin claim is simply to prove that national origin was not a substantial factor in G’s decision to evict J.

2. Careful use of the facts. Students who overstated the strength of either particular pieces of evidence or of the overall evidence for one position got lower scores. Both models are very strong on use of the facts.

3. Understanding the role of McDonnell-Douglas:

a) Eviction v. Denying Initial Access: It is not clear that the burden shift would apply to a case involving discriminatory eviction; the only eviction case we read was Sorenson, which used direct proof. However, several students, including both models, did a reasonable job tailoring the burden shift to the context of eviction.

b) McDonnell-Douglas v. Direct Proof : Several students argued that the burden shift must apply because there was “no direct proof” here. This misunderstands the law in two ways:

(i) “Direct proof” simply means trying to prove intent by putting in direct or circumstantial evidence and using the burden of proof appliedc in an ordinary civil suit. It is not limited to “direct evidence.”

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(ii) Plaintiffs can always try to prove intent using direct proof even when they do not meet the Mcd-Dgs prima facie case.

4. Addressing the Relevance of Religious Belief v. Action: If G is evicting J because J is doing religious activities that might annoy other tenants, should the statute treat that the same as being evicted because of religious beliefs? The problem was designed to raise this issue and students got credit for addressing it. The first model hints at the question; the second has a very nice discussion tying the issue to Congressional intent.

C. Benign Discrimination:

1. Comparing and Applying Starrett City

a. The Four-Factor Test: (See Model #3): Three of the four factors are pretty clearly not met (not temporary; no defined goal; no history of discrimination by the housing provider). The fourth (effect on traditionally disadvantaged groups) cuts in favor of the program. Several students lost points by looking at general history of discrimination against immigrants or by looking at Americans as a minority within the complex; both approaches are inconsistent with Starrett.

b. General Comparisons: (See Models #1, #2 #3): The models do a nice job of demonstrating a wide range of arguments comparing this case to Starrett. The discussion of Congressional intent in Model #2 is a particularly good contribution. One interesting and hard-to-resolve question is whether the program should be considered an access quota for immigrants or a ceiling quota on Americans.

2. Policy re Helping Immigrants: As many of you pointed out, the purpose of the SF program is not really integration maintenance but rather to provide services and appropriate housing for immigrants. You thus can analyze the problem as a request for a non-textual exemption for a non-profit entity to further that purpose. Again, all three models do a nice job laying out the importance of the services and the arguments for and against the exception. One important point that none of you made is that, however noble and important it might be, using temporary housing to facilitate successful integration of immigrants into the U.S. is only marginally related to the central goals of the FHA.

D. Futile Gesture: This was the issue that many students missed or undervalued. Model #4 is very strong and Model #5 is quite solid. Under the analysis in Pinchback, which is really all you have to go on, the McD-Dgs test is replaced by the following elements:

1. Financially Able to Rent/Qualified: This element merited a brief discussion. You have a little bit of info: P at least speaks German and English, and he is a computer programmer like John. However, you don’t have other relevant details about his finances, his language skills, and other possible factors like a criminal record. Model #4 does a nice job getting a lot out of this issue.

2. Would Have Taken Steps to Rent but for Discrimination: P says he would have and you have no info to the contrary. This didn’t merit more than a sentence or two.

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3. Ds Discrimated Against People with the Relevant Characteristic & Would Have Discriminated Against P: This is a major issue and you need to distinguish between the NO and the religion claims. Because of the quota and the position of the Board, you have some pretty good evidence of this for NO, though less certain than in Pinchback itself. You’d have a tougher road showing that FG would be very likely to reject P because he is a CSEG member. (See Model #4 & #5)

4. Reliably Informed of Policy: This is also a major issue. P has J’s account of what happened plus the ads. It’s not clear if J even had good info re the quota, and a court might decide J is too personally involved to be reliable. On the other hand, J may have no good reason to mislead his friend. The relative value of the ads also merits some careful discussion. (See Model #4 & #5)

E. Advertising: This primarily was a national origin claim: that the ad showed a dispreference for Americans. I provided a considerable number of details as to language and layout. For example, a number of students discussed relative font size and how close to the top of the ad particular language was placed. I rewarded students who thoughtfully16 discussed a substantial number of the details and the ad as a whole (See especially Model #1).. I also considered your treatment of the following topics that I thought were relevant:

1. Ordinary Reader: Application of the test and discussion of whether using ordinary-reader-of-the-protected-class might make a difference. (See Model #1).

2. Legal Significance of Running Two Different Ads: If you use different ads to target different readers in different publications, can the ad targeted at Americans mitigate any preferences in ads aimed at non-Americans? (See Model #1 & #5).

3. Relevance of South Suburban: You could discuss whether and how the case might apply. This case is different because arguably some individual ads might drive people away. On the other hand, maybe it’s OK to do separate targeted ads to increase overall traffic. (See Model #5).

4. Religion Claim: This is a weaker claim than NO and needs to be discussed separately. One might claim that the ad favors the listed mainstream religions or even that it favors religious folks over non-religious folks. (See Model #1).

Question II: Best Student Answers:Question II: Student Answer #1: [MAF: This is the 255 checkmark answer. The student wrote extremely concisely and made a remarkable number of useful points in seven pages. The discussion of intent was probably the second strongest overall in the class, doing a nice job working with the facts and seeing the religious belief/conduct problem pretty well. The benign discrimination discussion is solid, doing a nice job discussing policy re housing for immigrants, although not trying to apply the factors from Starrett City. The advertising discussion was easily the strongest in the class, discussing both national origin and religious discrimination, using the facts very well, and doing a solid job on both South-Suburban and the significance of there being two different ads. The futile gesture discussion is the weakest part of the answer. I think the

16 I particularly liked the argument that describing immigration services as “special services” would suggest to an OR that they were not intended to be used by all residents. By contrast, I quite disliked the argument that no American would be interested in the ethnic community centers. Literally millions of Americans would consider themselves to be ethnically Mexican, Japanese, Russian , etc.

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student made a tactical error trying to discuss P’s and J’s 3604(a) claims together, and so short-changed this issue.]

3604(a) McD-Dgs : Cases often deal w/ denial of application, Frazier, Asbury, but nature of PFC varies w/ particular claim. Since main issue intent, useful to summarize PFC.17

1. PFC: (a) Undisputed elements: J and P will argue (=arg) they are being disc’ed against as protected class members b/c they are: American (=Am), national origin (=NO) claim, and CSEG members, religion (=rel) claim. J will easily meet the qualification element (he was already a tenant = tnt) and the denial element (apartment “otherwise made unavailable or denied” when evicted). As in Asbury, may strengthen J’s case if ev of whether J’s apartment went to a non-Am (non-member of class). If J’s apartment went to Am/CSEG, FG’s defense becomes much more plausible.

(b) Applied For? J not only applied for, but was accepted into the development. (No dispute likely). The issue will arise with P, who did not apply for the apartment but will claim futile gesture b/c of the ads and J’s comments. Pinchback. More ev needed whether P qualifies, since discussion with J about possibly applying does not suggest he would qualify. (If not, P has no claim.) Pinchback. Not clear whether FG/SF would have said no in P’s particular case, although P may arg high Am occupancy rate + Board’s “strong suggestion” to reduce Ams suggest would have been rejected. P’s big issue: reliable info, not clear whether P’s statement and ad are reliable enough. P may arg reliable b/c J was recently evicted, had experience w/ FG and complex. FG may arg not reliable source, like real estate agent/employee, policy against allowing friend’s statement to be enough (no duty to know). Cf. Pinchback. Perhaps statement + ad enough, but unlikely to be successful w/o good ev. (weak case for P)

2. FG’s Non-Discrim Reasons: Low burden for FG, must only produce ev of legitimate reason for denial. In J’s claim, FG may produce ev he received complaints about J from another tnt for annoyance. Similar to Kramarsky, Frazier. Further, FG may produce ev J was unruly tnt, repeatedly disobeyed FG’s request to stop preaching at social events. Sorenson (tnts’ bad behavior, repeated parties, brought prior tnt). Ct may reject this as disc’tory reason, since appears to be based on rel, not clear whether any one else not allowed to talk about rel (useful fact to know). Still, b/c FG’s low burden, the complaint will likely be enough to shift burden to J.

3. Ev of Pretext: Burden of proof on J.

(a) J’s conduct: FG will arg J was unruly tnt, since he repeatedly spoke about CSEG at several social events.18 Sorenson. J will arg this is not a valid reason, since it is based on rel (+ possible disparate treatment if no one else being limited). J may arg he always smiled/complied, which suggests he is not unruly. FG will arg he received complaints from 1 tnt, although this also seems to be based on rel. FG will likely arg comfort of tnts, and that it is particularly important to respect the views of others in this development. J should arg only 1 tnt complained in 10 months, he “rarely annoyed” other tnts, and that it is not clear that he was not respecting others (J may arg he was just discussing views in normal conversation). J should arg this was just FG’s own prejudices/stereotypes against CSEG, esp. b/c no ev that Japanese tnt annoyed w/ J. Perhaps other tnts’ testimony useful here.

(b) Sequence: J will arg that FG became angry w/, and evicted him, right after the Board “strongly suggested” that he needed to reduce # of Ams. Seems to suggest FG may have been

17 J has a stronger claim under 3604 (a), so most of the discussion will focus on J. 18 Useful to know specific # of times J disciplined—lower the #, more likely pretextual

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using preaching19 as pretext to remove J because of NO. Timing may be strong ev for J, Frazier, although FG may arg angry b/c of J’s repeated disobedience. Sorenson.

(c) Inconsistencies: J may arg that FG’s stated reason for evicting him is inconsistent with purpose of SF complex: “making connections.” FG gave priority to applicants who spoke greatest number of languages, b/c they were more likely to make connections with other tnts, and arguably FG chose J partly b/c he spoke Czech (and 5 other languages) and the Czech tnt was having trouble making friends. Despite J’s 6 languages and friendly attitude, J may arg that FG penalized him for speaking to other tnts (contrary to purpose.) J’s case is strengthened by fact that there is no one else to speak to the Czech tnt. FG may counter that J not making connections, but annoying other tnts (and J not serving his purpose, since the Czech tnt complained about him). J may arg FG being inconsistent by telling him to respect others’ views, and promoting this diverse atmosphere (multiple immigrant groups, ad w/ multiple rels), yet not respecting J’s views.

(d) Conclusion on intent ev: J’s case seems to be strong enough to at least past MSJ. Need more ev, but limited ev suggests FG based decision on J’s religion and NO. Likely not enough for P to win on this claim (too many hypotheticals.)

Quotas : J may arg that 15-25% limit on Ams is illegal, makes housing “unavailable” based on NO. No similar limitation on other NOs, which suggests disparate treatment, especially if J was denied b/c SF was over this limit. J may arg ct should follow Starrett rationale, which is only binding in 2d Cir, but suggests rigid racial quotas violate FHA b/c disc on the basis of race (arg’bly analogous to NO). FG/SF counter FHA also serves to promote integration. Starrett, S. Suburban. FG/SF arg these % are necessary to ensure that primary intended beneficiaries (immigrants) receive apartments, Starrett Dissent, since SF is located in San Francisco, and there will arguably be a larger number of Ams applying than immigrants. Global Theme House discussion. J will arg this is not defense, since a decision is still being made on the basis of NO, and Ams harmed b/c of NO.

FG may arg these are not set quotas like Starrett, (which are more dangerous b/c they have a specific % for each particular race), but are more flexible, only affect Ams, and have a legitimate purpose. Ct’s treatment will depend on which FHA goal (end disc v. further integration) ct presumes is more important (when conflict). J’s claim is stronger if ct rejects quotas all together and presumes ending disc is more important.

Non-textual defenses: May be literal FHA violation. FG/SF will arg “benign” disc, and should not be (or no Congressional intent) covered by FHA. Starrett Dissent, S. Suburban, Global Theme House discussion. Focused on helping recent immigrants adjust to life in Am, and 15-25% limit on Ams helps others assimilate, while still allowing purpose to be accomplished. Only 2-year max stay, in line w/ concept of helping new immigrants, differs from long-term policies (as in many other rental/condo situations). No similar limits on other NOs (the policy to give some priority to under-represented countries, most languages, furthers diversity). Unique needs of immigrant groups, more likely to feel comfortable and assimilate if given these special tools (counseling), presence of too many Ams would make these services go to waste. Successful program (high demand), need a way to divide; this is in line w/ purpose, while still allowing Ams.

J should arg that this policy not only furthers disc but also promotes segregation, since it allows immigrants to stay close to their own culture, rather than assimilating into Am culture (examples from ad: “your homeland,” 23 languages20, ethnic community centers) by being exposed to more Ams. J should also arg that even if there are good reasons, the numbers are too

19 FG will characterize this as “harassing other tenants.” Questionable as disc’tory in the first place (against J’s rel). [MAF: could devlop this more].20 Which J may argue suggests don’t even have to learn English.

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low (what is really the difference b/w 25 and 30% Am?) and rigid (being enforced). J may arg that FG/SF should go to Congress if they want FHA exception for this purpose. Whether J will win will depend on ct’s presumptions about FHA purposes, quotas in general, but FG/GF at least has a good argument on this point.

3604(c): Both J & P (=JP) may be able to bring claim for this ad, since either one may be harmed by the effects of what they allege to be a discriminatory ad against Am or CSEG.

Note on Religion: JP may arg inclusion of Catholic mass on premises, and easy access to Christian churches, synagogues, and mosques excludes certain rels, or indicates a preference for Catholics (since on premises). Weak argument for JP, since FG/SF will argue this is no indication of preference (=pref), but rather listing of amenities in area that would satisfy variety of people of different (=diff) rels. SP/FG will likely win on rel claim, as Ordinary Reader (=OR) would likely not expect list of every single place of worship for each rel. Ragin. Therefore, JP’s 3604(c) claim should focus on NO.

“Make, print, or publish”: (Little to no dispute likely) JP may attempt to bring a 3604(c) claim against either SF or FG. FG developed flyer, so he arg’bly “made it” and “caused it to be published” (distributed to airlines). Assume SF liable for acts of agents/employees. Asbury. Flyer is clearly a notice, statement, ad, w/in language

Indicate a pref: NO: JP will argue first 2 sentences (“Start a new life,” “not quite ready to be an American?”) raise questions that suggest ad indicates pref for non-Ams, especially b/c second question is only relevant to non-Ams, and the italicized “Be” further emphasizes distinction b/w immigrants and Ams. FG may arg “new life” targeted to anyone new to San Francisco, regardless of NO, consistent w/ SF’s policy. JP should arg questions must be read together, and ad as whole sends a message pref’ing non-Ams (“Easy Access” to multiple community centers21, Special Services for “Recent Arrivals”22: immigration counseling, “your homeland,” 23 languages). JP arg all info included in ad not targeted to immigrants is typical of ads (cost, # of rooms, location, building amenities), standard to include, therefore doesn’t impact message sent. JP may arg focus is so much on immigrants that Ams may feel out of place there (like foreign country).

FG/SF arg although these ads may be targeted to non-Ams—should be expected since they are intended beneficiaries of complex—nothing to suggest to OR that Ams would be excluded or not welcome. Dadeland Ad (targeting men v. excluding women). [MAF:Nice way to use class discussion.] P’s statement that ad “made it pretty clear that they only want immigrants” = some suggestion of OR’s view. Useful for JP to get other people’s views of ad (including both immigrants and non, since not clear whether the OR should be tailored to the protected class) as ev of whether this passes OR test. Ragin, Saunders.

FG/SF arg fonts. Largest text name of the complex (neutral). Only things bolded, jump out at first glance, are: name, # of rooms, cost, address. Fact that bolded suggest these are ad’s focal points, everything else is just additional info. JP will have to arg there is so much here directed to immigrants that not just extra, but would discourage Ams from thinking they welcome at SF. (Ev P wouldn’t apply is helpful, but not dispositive)

Different Ads in Diff Locations: HUD 100.75(3) does not seem to help JP, since no segment of market was excluded by choice of publication. Ads in both domestic, international, multiple

21 FG/SF may arg OR would not expect to see an “Amer community center,” so these terms are descriptive rather than any indication of pref. JP will have to focus on message ad sending as a whole, rather than individual terms in the ad. 22 FG/SF may arg “Recent Arrivals” refers to San Fran. JP counter this with fact that this was excluded in the domestic ads, and that ¾ of items listed are targeted to immigrants. [MAF: Good use of facts.]

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languages suggest everyone included. (Like S. Sub,, seems to be additional ads, not exclusionary). FG/SF arg diff marketing campaigns for diff markets (good business!) Excluded 2 questions, recent arrivals section in domestic ads suggests no intent23 to indicate a pref for non-Ams, b/c those ads intended for primarily immigrants/intl community. Didn’t expect OR of that publication to be Am (since international flights). Saunders. Some issue about whether this assumption realistic (global economy, people travel) [MAF: nice point], and what impact is on the Ams who do see it (JP). JP may arg diff ads in diff markets is similar to use of black models in black neighborhoods (disparities in ads) in Ragin. Weak arg, since FG/SF not trying to advertise for separate buildings, but targeting diff markets for the same building, arg’bly to reach diverse group of people.

Conclusion Ads: A lot in this ad suggests the OR, if Am, would be discouraged from applying to SF, since overall message appears to be so strongly targeted to immigrants. JP’s big issue: who is OR? [MAF: Could discuss more why thismight mater.] P may be able to tie to statement for futile gesture, but not clear.

Question II: Student Answer # 2 (Proof of Intent; Benign Discrimination) : [MAF: I thought this was the strongest discussion of intent in the class, combining a strong two-sided discussion of the evidence with a nice analysis of the religious/belief conduct distinction nicely tied to statutory purpose. It also probably was the strongest discussion of benign discrimination, making strong asrguments each way including the use of all four Starrett City factors and legislative policy considerations.]

Religious Discrimination: Burden of Proof: (Asbury) P meets prima facie case by establishing he is a protected class (member of CSEG), that he applied (currently was living in the building), was qualified to live there(recently moved, spoke 5 languages, had a job to pay rent etc- these requirements not discriminatory because imposed on everyone.), that he had been rejected (evicted), and that the apartment was still available (not exactly sure of the status but assumed that the apt given to someone not of J’s religion or national origin.)

Burden shifts to D: establish legitimate nondiscriminatory reasons . J required to show reasons are pretext to cover up D’s religious animus. G argues reason was to protect other tenants from harassment. G knew about J’s religion when J moved in (J told him) and G still allowed him to move in. G argues that he did not have a concern about J’s religious beliefs and had stated at the interview that J could believe whatever he wished; his main concern was that J would not bother other tenants in the building. J argues G is a Catholic priest, which as a head of a religious sect indicates hidden religious prejudice. Even though G permitted J to move into the building he visibly shuddered when J said he was a member of CSEG. The fact that G felt it necessary to make a comment about J’s religion and to draw a conclusion immediately about J that he would harass other tenants because of his religion indicates possible prejudice against CSEG.

J’s Behavior: G argues that he asked J on numerous occasions not to annoy other tenants in the building. J had not complied and there had been a complaint from another tenant in the building from J’s alleged harassment. G argues that it was not what J was preaching but the fact that he was harassing the other tenants in the building which was the reason for his eviction—not his specific religion. J argues that this is pretext. J is viewed as generally friendly and when asked to stop preaching he complies. It is a stretch on G’s part to say that it is absolutely necessary to evict J because his harassment to the other tenants was so egregious since based on the facts the interactions seem relatively minor. The only tenant who had actually complained about J was a Czech man who no one else would talk to. G argues that a complaint from one tenant was enough harassment for his eviction due to the warnings J had been given and that all tenants have a right to live without harassment.

23 Intent will not matter if there is discriminatory message. Saunders.

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However, J was just being friendly and helping the non-profit organization reach their goal of integration with the residents, the reason they allowed Americans to live in the building in the first place. J argues that this is a form of censorship from G, that if the other tenants want to talk to J about religion they should be permitted to do so without G cutting them off. The only person who seems to have a problem with J’s preaching was G and not the other tenants which is seen by the fact that only G tells J to stop preaching when he sees him talking to the other tenants. The other tenants can ask him to stop.

Statutory interpretation: G argues religion can be seen differently than race regarding statutory interpretation- race does not involve specific actions, religion at times does. J’s religion calls for the tenant to actively preach, actions which may not be conducive to this living environment. Actions are not a normal result of your race rather than in a persons’ religion, which can result in racial discrimination to be seen as much more arbitrary in nature, something Congress was more interested in protecting. J argues Congress knew when drafting the statute that they included religious beliefs for a reason and that it is assumed that you practice your religion beliefs where you live, which is what Congress was ultimately trying to protect- the actual practice of one’s religion, not just the fact that you are that religion. Religion is not treated differently than race according to the literal interpretation of the statute.

J might have a claim against SF for his religious beliefs. SF may in fact not be prejudiced against J, but G is, and since G is acting on behalf of SF as their agent, they will likely not be able to avoid liability since it is SF’s responsibility to pay attention to how management is treating tenants (respondeat superior). But if SF can show that there was mixed motivation, that though it appears that he was denied for religion, G had legitimate reason for the quota system then SF may be able to succeed. Requires that discrimination on national origin is legitimate reason for eviction.

National Origin/ Nontextual Defenses/Integration: J brings a claim based on national origin. On its face, the quota system of 15-25% Americans implemented by SF violates 3604 a for refusing to rent based on national origin. Even though the text of the statute is not in their favor, SF will raise non-textual defenses.

Starrett City: J argues that SC found that integration alone is not enough to overcome discriminatory policies. Quota systems would not be permitted: “societal discrimination alone seems insufficient and over expansive as the basis for adopting. benign practices with discriminatory effects.” This case is factually distinguished from SC in that SF’s goal is not integration maintenance in their apartment complex but to provide a half-way home to the city. A half-way home is different from an apartment complex, and generally half-way homes are not usually established for the general public. The purpose of the halfway home was to provide housing for immigrants whereas SC, it was to provide housing for the public. [MAF: Nice point.] This is a non-profit organization set up for the purpose of helping immigrants; SF determined that allowing some Americans would help them achieve this goal. This is a non-profit organization, whereas in SC it seems that profit could be a motivating factor for encouraging a more “acceptable race” to live in the building to make it more attractive to encourage more white people to live there and to avoid “white flight”. [MAF: Nice point.] Here it doesn’t appear to be any underhanded motivation for keeping the number of Americans to a minimum- not monetarily motivated but rather legitimately seeking to help immigrants based on the services provided which are wasted on Americans.

Purpose: SF’s purpose is to encourage an integration for those people of another national origin, and allowing Americans to live there takes up the space reserved for newly arrived immigrants. The goal being achieved is something that the entire community would likely want to uphold since we want immigrants to become acclimated to our society and to really feel like Americans-

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good social policy. Even though there is a quota system in place, it doesn’t have the same negative connotation that is associated with that of SC which is a plan that the court didn’t’ want to uphold.

Harm: SF argues this is not significant harm against Americans. The public does not see Americans as a whole as being a culture discriminated against- they are the majority not the minority. There is less of a stigma attached. Presumably the SFs themselves are Americans, indicating that they likely don’t have a secret prejudice against Americans. They will also in general not have a difficulty in finding housing in the entire city. J argues that we are not aware of what the housing situation in San Francisco is currently like. Housing may be difficult to find and possibly scarce and this could be hard on Americans.

Precedent: J argues bad legal precedent - if we allow a system that permits discrimination based on origin, who is to say that it wouldn’t become more prevalent in our society? SF argues we aren’t looking at a permanent housing situation but rather a turnover situation which is more of an exception to normal housing which will not be able to be extended to every apartment complex in the city.

Intent of Congress: J argues intent of Congress when statute drafted was strict adherence to anti discrimination policies (SC). Congress’ has had opportunities to change the law and overrule SC and yet they haven’t. SF argues that if the statute is interpreted literally it makes it very difficult to provide for the underlying goal of Congress: integration. Congress can’t anticipate every exception. Just because this system is not allowed facially does not mean Congress would not want it implemented. Congress may not have thought of this situation. Times change. The law is not static and the ultimate goal is a goal that Congress would want to encourage. Based on the benign harm and ultimate purpose of this program, it is likely that J will not have a claim for national origin.

Question II: Student Answer # 3 (Benign Discrimination) : [I thought this was the second strongest coverage of this set of issues, including a strong set of arguments for each position and a very good discussion of the policy related to immigrants and housing.]

J will argue that ∆s’ screening system is discriminatory and illegal. Though it consists of two criteria other than a quota, both of these criteria—(i) applicants who spoke greatest number of language; and (ii) applicants from countries less well-represented—are simply proxies for “non-American.”

In defense, ∆s will argue that this is a benign quota and was enacted in the spirit of the FHA. The quota’s purpose is to promote integration and prevent the ghettoization of immigrants. Further, ∆s may argue that J’s FHA claim is not the kind that the FHA envisioned: the legislature wasn’t worried that American citizens would become homeless before immigrants.

A court applying Starrett would find ∆s arguments are weak because the evidence indicates that the quota system is intended to be permanent, instead of temporary. In addition, the quota resembles a ceiling quota more closely than an access quota. Though ∆s may counter that ceiling quotas are usually only a concern when applied to minority populations, the FHA protects everyone from nat’l orig discrimination and a ceiling quota would therefore be illegal when applied to a majority population. [However, the 4th Starrett City prong focuses on the effects on minority populations.]

Further, ∆s’ argument regarding “tipping” is undermined by the fact that SF is an upscale residence complex: plummeting property values and services to the community are not a concern. Finally, ∆s’ argument that the quota system is in place in the interest of integregation is severely undermined because (1) SF tenants only stay for two years and (2) SF accepts American applicants at their lawyers’ urging to avoid trouble with the law.

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Still, ∆s’ policy arguments may win over a court adjudicating this case. Because most of the tenants at SF are all “in the same boat,” SF provides a safe place for immigrants to become acclimated to their new home and the new people and cultures that come along with it. This sense of security is necessary to allow people to be open and accepting of one another. Saturating SF with American citizens will compromise this sense of security and cause the newcomers to withdraw, put up walls, and isolate themselves. However, striking the right balance b/w immigrants and Americans can create an environment in which all tenants will become accepting of people from different cultures. As Senator Mondale stated of the FHA: “One of the biggest problems we face is the lack of experience in actually living next to [people who are different from us]” [MAF: Good use of Mondale quote.]

Question II: Student Answer # 4 (Futile Gesture) : Whether Paul (“P”) can recover under §3604(b) without having applied under “futile gesture” in Pinchback.

P likely has good info that SF would turn him down. P’s knowledge based on J’s experience and also based on German advertisement on airplane. J’s experiences shows that FG does not like CSEG members because he cringed. BUT not clear whether FG evicted J because personally disliked J because J did not listen to request to not preach or because J was CSEG. Fact that FG did not deny J housing in the beginning of his tenancy (although FG found out about J’s CSEG membership after J was offered housing) shows that more likely FG disliked J’s behavior. Unlike Pinchback, where stated policy was relayed by agent and had been enforced many times, only one CSEG member, J, has been kicked out; could have been more because of bad blood between J and FG more so than fact that J is CSEG. OTOH, FG scolded J for CSEG activities right before eviction. May show that CSEG was part of reason of eviction.

Stated policy of N/O quota at SF more like Pinchback. SF admits policy and took action to prevent possible FHA problems by accepting Amers. Under Starrett analysis above, quota system likely to be discriminatory. P and J had discussed SF housing prior to J moving to San Fran. Although, not clear if J was aware of quota system and would have relayed information to P. FG did not tell J during eviction that SF did not want any more Amers. However, P told J that FG did not want any more, so knowledge of policy had to come from somewhere (maybe rumor?). Assuming FG told J about policy prior to moving in or J found out about policy from reliable source, then more likely that P had good info that SF would turn him down. Still, P could have taken his eviction personally. P might not want to admit that his preaching may have been against rules because P is religious zealot. P is looking for alternate excuse for eviction and blames fact that he is different than everyone else at SF in two ways, i.e. Amer’n and CSEG. P assumes this is why he was evicted. So, P likely not as reliable as agent in Pinchback.

P not likely able to rely on German ad as good info that SF would turn him down. Overall P could interpret ad to only offer housing to immis, e.g. “immigration counseling,” “connections to others from your homeland,” “start a new life,” “not quite ready to be an Amer’n,” and list of ethnic community centers. BUT P must consider the audience that ad is directed to. Not many Amers speak German. P saw ad on airplane from Germany. P assume that ad is directed to German nationals. Not entirely out of possibility that Amers could also apply for housing. However, possible that knowledge of ad combined with knowledge of J’s experience, P may reasonably assume that SF likely would turn him down.

Not clear if P would have been qualified otherwise. Not clear if P would have been able to afford apartment to begin with. Apartments likely more expensive in San Fran than in Cleveland. Only apartments available in SF are two and three bedroom (not clear if P moving by himself or with family). OTOH, P is programmer and likely makes good money. P discussed with J about apartments; likely aware of limited availabilities. Still, P might not have been qualified with policy of only accepting 15-25% Amers. OTOH, policy is part of discrim. behav. & would not

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be held against P under Pinchback analysis. Even disregarding quota policy, not clear whether P would have qualified with language policy. FG made an exception for J as Amer’n especially because he speaks five languages. Not clear if P speaks anything more than English and German. Mulitlingual policy might be more legitimate requirement looking for people who value diversity and cultures, see Kramarsky; though, multilingual could be proxy to discrim. against Amers and favor other nationalities more likely to be multilingual. Multilingual exception in conjunction with Amer’n quota policy might make both policies viewed as discrim. together.

Not clear if SF would have in fact turned down P. FG felt pressure from SF Board to keep Amers to lower percentage to maintain purpose of SF. FG has policy of looking for individuals who know many different languages. FG’s personal views and experiences with CSEG members, and especially J, likely make him want to avoid having another CSEG resident. All shows FG likely would have turned down P. OTOH, FG seems like forgiving and tolerant individual. FG told J when he found out J was CSEG that J could believe whatever he wanted. FG gave J lots of chances even when J did not follow rules about not harassing. FG may think that J’s behavior was anomaly in CSEG, though confirms his preconceived notions. May be open minded to accept another CSEG in house. OTOH, FG knows CSEG is a small group; small number of individuals in smaller group likely have similar beliefs and behaviors. P’s case stronger if P sent CSEG testers (preferably immi CSEGs) to see if FG still open to admittance.

Question II: Student Answer # 5 (Futile Gesture & Advertising) : [MAF: Probably the second best answer on each of these issues. The student does strong two-sided analysis on futile gesture, hitting every major issue I thought was important except qualifications. Regarding advertising, the ordinary reader analysis is strong, making good use of the facts (e.g., significance of the top line), and the student addresses both South-Suburban and the significance of there being two different ads.

Paul’s 3604(a) Claim: Although Paul never applied for an apartment at the complex, he could claim application of the futile gesture doctrine (Pinchback) and claim that he would have been denied housing because he was a member of the CSEG and American.

- Paul will claim that his reliance on John’s advice not to apply was reasonable. Although John was not speaking on behalf of the Foundation, Paul will argue that the information was reliable. A former tenant would have first-hand experience with the management, and information from a former tenant carries some truth to it.

- Additionally, Paul can use the Board’s statements to Fr. George to lower the percentage of Americans to show that he would have been rejected if he applied based on his national origin. He will claim that the Board did not want to take any more Americans into the complex.

- Fr. George and the Foundation will argue that Paul’s reliance on John’s words was unreasonable. Unlike in Pinchback, where the board of directors was the source of the agent’s information regarding discriminatory practices, John had no way of knowing that the Foundation was seeking to reduce the percentage of Americans. John, from his interactions with Fr. George, may have first-hand knowledge that Fr. George would not allow any CSEG members in his complex.

- Additionally, unlike in Pinchback, where the community never allowed a black member to the community, the complex here does allow Americans. Although John was evicted, there were other Americans living in the complex. Paul may have a stronger claim, however, with regard to a religious discrimination claim if there are no other CSEG members living in the complex, as Fr. George had made it known that he does not like that particular faith.

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- Paul may claim that John’s comments, when viewed together with the flier, offer reliable information that the complex would not rent to an American or CSEG member. [MAF This could be developed more.]

Conclusion: Paul’s reliance on John’s statement is not likely reasonable because John was not speaking under any authority of the Foundation.

3604(c) Discriminatory Advertising Claim: To have a claim under §3604(c), Paul must show that Strawberry Fields advertisement suggests a preference for non-Americans (or dis-preference for Americans) to the ordinary reader. Ragin.

Evidence for Paul: The top of the advertisement states asks in big letters whether the potential applicant is ready to live in America but not quite ready to be an American. This would suggest to the ordinary reader that the apartment complex is for people who are new to the country.

- Additionally, the advertisement mentions certain services such as immigration counseling and connections to others from a tenant’s homeland. Neither of these services would be applicable to an American and suggests a preference for non-Americans.

- The overall feel of the advertisement may discourage an American from applying to live in the complex. The services seem to be geared specifically to immigrants, and Americans may not want to live in a place where the majority of the occupants have limited English-language skills.

Evidence for Foundation: The top line of the advertisement asks in big bold letters whether the viewer is coming to San Francisco to start a new life. This line does not suggest a non-American preference because Americans from all over the country may be moving to San Francisco to start anew. Because this is the top line, an ordinary reader can interpret it to be the main statement of the advertisement, which is applicable to all nationalities. The next line of the advertisement could then be interpreted to say that the complex welcomes anyone (American or not) rather than showing a non-American preference.

- The advertisement also states that the complex has easy access to mass transit, houses of worship of various religions, and ethnic community centers. The easy access does not necessarily appeal only to newly arrived immigrants. Some Americans also enjoy easy access to religious buildings and even ethnic community centers (to connect with their heritage as well for general social interaction. The easy access to religious buildings also shows that the Foundation likely provides equal opportunity to rent for members of any faith.

- The advertisement describes amenities that are appealing to both Americans and non-Americans such as new kitchens and bathrooms, gym, security, etc.

South-Suburban Analysis: The Foundation could also argue that its advertising does not deter American applicants but merely creates additional competition in the market. South-Suburban. In fact, an advertisement without the services or certain language is available to domestic renters, and the questionable advertisement is only available on international airlines. This would seem to constitute a type of limited race-conscious advertising that the court allowed in South-Suburban.

- Unlike the property in South-Suburban, however, Strawberry Fields maintains a racial quota for Americans. Paul could argue that the targeted advertising as well as a quota against Americans extend this fact pattern beyond what was present in South-Suburban. [MAF: nice point.]

- Conclusion: The advertising scheme selected by Fr. George seems to akin to the advertising in South-Suburban. Likely, the advertising campaign does not constitute a violation of §3604(c).

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