HOUSING DISCRIMINATION SPRING 2015:SAMPLE STATUTORY DRAFTING EXAM QUESTIONS

Professor’s Comments & Best Student Answers

QUESTION 2A: COMMENTS

On this question, I was looking for three things: substantive analysis of the provision as written, suggested substantive changes and suggested technical changes. Nobody did all three well. The model answers make some pretty good points but are not exceptional.

A number of students got led astray by the mention of quotas. The official line by many conservatives about disparate impact analysis is that it creates “quotas,” by which they mean mandatory miniminum numbers of members of protected classes. The type of quotas at issue in the Question are not the kind raised by Starrett City. The suggested amendment has nothing to do with Starrett City. The amendment deals with disparate impact analysis. Starrett City is a Disparate Treatment case: the policy is not facially neutral, but rather facially discriminatory.

QUESTION 2A: STUDENT ANSWER #1

This proposed bill is an unsurprising attempt to reconcile the doctrines of discriminatory intent vs. discriminatory effect tests. The problem with intent is that it is too narrow a test and the problem with effects is that it is too broad. The substance of the bill is understandable, but not the best solution to the problem. The attempt to compromise and limit effects test to government entities ignores the fact that equally egregious actions are often committed by non-government entities. Proving intent is always going to be difficult because (1) it is very easy to successfully conceal intent, and (2) it is now becoming not politically correct or fashionable to discriminate overtly.

Consider the effect of this bill on future victims of housing discrimination who are blatantly victimized by facially neutral practices (like the all adult conversion of a building with predominantly black mothers). Also neutral practices like private advertisements using all-white models would no longer be actionable with the new amendment. Practices like this are contrary to the sprit of the legislation and victims should not be precluded from stating a cause of action because they can’t show intent. This change might encourage private entities to discriminate and simply cover their tracks.

Proponents of the bill may have valid arguments based on over-broad effects tests and judicial efficiency. Although efficiency of process and ease of administration are valid concerns, they don’t outweigh the need to provide a remedy to victims of subtle but devastating discriminatory housing practices.

I would suggest the following substantive changes to the bill: Allow intent test to be met if a reasonable person in the minority’s position would consider the defendant’s practice to be racially offensive. Although this leaves some room for judicial discretion that may be problematic, it is a more favorable alternative than this bill. Judges and fact-finders are capable of assessing “average person” standard as evidenced by various tort principles, so this test will be relatively

successful in striking a more appropriate balance between the effect vs. intent test. Subjectivity won’t undermine the effectiveness of this test.

Drafting: -- too wordy. Clarity is sacrificed-- sections more clearly delineated-- listing might cause confusion

QUESTION 2A: STUDENT ANSWER #2

A. Pros and Cons of Bill: Disparate Impact Analysis (DIA) has mainly been used for class action suits (Betsy, Huntington,) where the defendant has been a government-run organization. In Huntington a municipality was defendant (Zoning in a white suburb; did not want to sell land to public housing.) In this case DIA is useful because its easier to conceal motivation of discrimination when dealing with big bureaucracies. The bad intent might not be there (as is required for disparate treatment claims) but the result could be the same -- policies that have a negative impact on minorities or protected class members. The main source of evidence in a DIA is statistics which can easily be done with local/state/federal government because of records kept. So by limiting DIA to governments, DIA claim will survive or not too much will be excluded. DIA was intended for the type of bureaucracies that could discriminate unintentionally but still have negative effects because of underlying facially neutral policies. Huntington

But bureaucratic hidden discrimination is not only limited to governmental entities. In Betsy, it was a Turtle Creek Association that discriminated against families with children. They were a 3-story high rise apartment building which tried to confine families (and race) to a particular area. Even larger corporations that own buildings would not be subject to a DIA. Even though DIA would apply to government entities, it still leaves out private large entities that also could not intentionally discriminate but have a negative impact such as in Betsy.

However, seeing how the Republicans want to get rid of DIA altogether, something is better than nothing.

Drafting changes: (1) Let’s take out §2 altogether. There is little confusion re: DIS/impact and DIS/treatments analysis. DIA deals with no intent /statistics/class action suits, other deals with bad intent. They are very different approaches; to put in §2 would be redundant, waste of space and unnecessary.

(2) On §1 “In determining ... has occurred” is too wordy. Take it all out. Start with “Disparate Impact Analysis...” Since 3604(g)(1) is at end of section it is assumed it refers to violations of 3604. If that is not clear say: “Pertaining to violations in this section, disparate... Also in (1) a problem could arise with phrase “shall only be applied”: ‘shall’ denotes no discretion = DIA that will be used. Could other approaches be used, besides DIA? What if you don’t want to use DIA? Shall should be replaced by may “may be” implied discretion and flexibility. People like that. Also, DIA should be defined DIA: involves differential treatment of similarly situated persons or groups that fall into protected class status defined by FHA.

(3) Another problem with 3804(g)(1) is what about organizations which the government has contracted out to some housing. Are they included?

QUESTION 2F: SAMPLE ONLY; NO MODEL ANSWERS

Question 2G: Comments: Although I thought this was the easiest of the three questions, only 16 of you chose it and many who did provided quite short and superficial answers. As always on Question II, I rewarded careful work identifying technical deficiencies in the proposed statute and thorough evaluation of the substance of the proposal. Both models provide good analysis of the technical issues. The first model answers provides serious pros and cons for all three provisions. Many students gave only pros or only cons regarding at least one of them.

General Concerns: The three sections of the amendment are different in kind. The first two are clarifications of the kinds of evidence that are relevant to a §3604(c) claim. The third is a defense. Several of you, including the first model, usefully restructured the amendment to emphasize this difference.

Several of you suggested changing or defining phrases that I took from other parts of the FHA. Careful drafters crafting amendments will incorporate terms used elsewhere in the statute, precisely so that no further explanations are needed. The drafters know that courts can and will rely on existing cases and definitions to clarify the meaning of the meaning of these terms. For example, §3604(c) already includes the terms “notice or advertisement,” so they probably don’t need any definition.

Many of you made changes to the language of the amendment and either provided a very general explanation (“this will make the statute clearer”) or provided no explanation at all. I tried to figure out what you were doing and give you credit if I thought your changes were sensible. However, I am certain I would have given more credit if you gave a specific pertinent rationale. As with any other type of exam question, the better answers explain what they are doing.

Several of you spotted the issue from the readings that drafters often misuse “shall.” However, you need to replace it with something more certain than “may be” (as in: “use of human models may be relevant” to determining whether 3604(c) is violated; or “undue expense may be a defense.” What you probably mean is that the models will be relevant or the defense will be available in the appropriate cases only. However, that is true of any factor or defense. Using “may be” suggests some other condition must be met and will leave courts wondering when they should allow the evidence or the defense.

Section 1: This section had two purposes. First, it made clear that one could base a §3604 (c) claim on human models, codifying the existing caselaw. Many of the answers noted the reasons from the cases for allowing these claims and pointed out that it might be useful to demonstrate that Congress supports the results in Ragin and its progeny.

Second, this section limited the characteristics for which a human models claim is available. The first model provides the kind of particularized discussion of pros and cons of excluding “handicap” that I was hoping for. Some of the other answers did some similar analysis of sex and religion.

Many of the answers suggested that it simply runs contrary to Congress’s intent to treat protected characteristics differently. This seems overly simplistic to me. First, Congress does treat some characteristics differently. The religious exemption does not apply to race claims. The senior citizen housing exemption only applies to familial status claims. Several provisions apply only to claims based on “handicap.” Second, the nature of

statutory amendments is that Congress is allowed to change its mind and have new intent about certain issues. To argue against the provision convincingly, you must make a substantive case that coverage for one or more of excluded characteristics is important.

Section 2: This section codifies the rule developed by the HUD regulations that choice of media is relevant in determining whether an advertiser has indicated a preference. We discussed some of the pros and cons of this in class. You should have been aware that this is not a new idea, but something HUD already does.

Some of you seemed to think §2 would prevent developers from targeting upscale buyers with, e.g., direct mail. I don’t see why it would unless the targeting tended to exclude people who could afford the housing in question on the basis of one of the prohibited characteristics (e.g., by targeting upscale zip codes that are predominantly Anglo but not upscale zip codes that are predominantly Latino).

Some of you saw in the “target audience” language an attempt to regulate affirmative marketing plans. I think the statute would have to be much more clear if it were doing that. The affirmative marketing cases seem to allow advertising that, at least in terms of placement, indicates a preference. Thus, a provision designed to permit affirmative marketing would probably have to take the form of an exception.

Section 3: This section would have codified the possibility we discussed in class of having the equivalent of a smallholders’ exemption for certain kinds of advertising claims. You would not be expected to show multiple models or run your ad in more than one media outlet if you were only advertising for a couple of units and the additional expense would be significant compared to your overall budget. As several of you noted, the provision as written might also be used by defendants like Saunders who might claim that it was too expensive for them to rerun existing advertising stock.

Many of you argued without out (much supporting analysis) that this loophole would eviscerate the statute. That seems to me unlikely. Any ad with several models in it already would seem to fall outside the defense as would the advertising for any very large development or apartment complex.

Many of you thought that “unduly expensive” was too vague or needed to be defined. Keep in mind that courts utilize tests like “unreasonable” and “undue burden” all the time and are used to weighing pros and cons. You need to discuss why it might be preferable to have a less flexible standard, rather than assuming that these standards are inherently a problem. Question 2G: Student Answer #1: Technical Drafting Changes: I might propose the following:For the purpose of this subsection, relevant factors may include –

(1) The selection of human models for discrimination claims based on race, color, national origin, or familial status.(2) The particular form of media, location of distribution, or target audience.

Nothing in this subsection requires an advertiser to incur unreasonable expenses to include additional models or advertise in additional forms of media or locations.

The reasons for these technical changes are to ensure that the courts understand exactly the purpose of the amendment. In terms of consistency, I proposed to include the phrases: “For the purposes of this subsection” and “ Nothing shall…”, this helps the amendment to match the rest of the FHA and also helps to clarify that these provisions only apply to 3604 (c). The word “shall” should normally not be used (it tends to be verbose and can usually be replaced with a better word). However, because it is used throughout FHA, I erred on the side of being consistent. In addition, these technical amdts. makes the statute more precise and clear. Furthermore, it is important to get rid of vague or ambiguous words like “unduly.” Instead, I used “unreasonable” which is also consistent with the statute (see 3604 (F)(3)(B). Although “unreasonable” may also raise some questions of meaning, the courts are equipped to deal with that consideration based on the frequency of its use. Using the word “unreasonable” instead also does not alter the meaning of the proposed amendment by replacing “unduly”.

I was also able to exclude lengthy word choices or phrases that did not add much to the statute; for example: “at the present time”, “that results from that also”. It is important to be as clear and simple as possible so the statute/amendment is easy to follow and interpret. The language should be no more complicated than is necessary. Also the proposed amendment only cited two forms of advertising: notice or advertisement, where 3604 (c) included another type of publication – statements. I was able to phrase the amendment in a way that included all forms of publications (consistency).Pros for the substance to the amendment: The amendment is a good step toward clarifying what factors should be considered in an advertising claim. The amendment acts as a better guide for judges/jury instructions. This will not only make the interpretation of the advertising provision easier but will also aid in the uniform application of the law. In addition, the amendment ensures that a fundamental form/means of advertisement is examined in these cases: use of/selection of human models. A picture may actually sell the product more and actually draws a connection to the product, so it is important that they are considered.

The amendment also makes a good point in excluding “handicap” from the list. Although excluding another selection of models (based on race, national origin, etc.) may raise serious FHA concerns, excluding handicapped individuals is really a different matter. The outright non-use of handicapped models doesn’t necessary indicate a preference for non-disabled (in a way that excluding Blacks would) people don’t just normally consider handicap as a class of people to be represented, but that decision is not based on their disability (necessarily). In addition, it would impose too great of a burden on advertisers to include all categories (including handicapped) – that would just be unrealistic. In addition, the other categories (race, national origin, familial status) have a huge history of discrimination that requires their extra protection (see apartheid) where in terms of the disabled, the problem is not as frequent/historically evident. The categories are all about different problems so it is okay to treat them differently – and here is an example of where the disabled really don’t need that kind of protection (especially in terms of burden on advertisers). The second clause is also beneficial because it ensures courts consider what form of media is used and the target audience. If not for this factor, LL could advertise in all white areas, so even by including ½ of models of another race, it would not reach that other race and so the purpose of using black models (e.g.) would be defeated. If not for this provision, LL could get around 3604 (c) easily by just targeting a group according to the area.

Furthermore, the unreasonable clause is also a good idea because it reflects the same idea as in a reasonable accommodations claim. The clause allows for the courts to determine where they would pose too much of an undue burden on the advertiser. This will be especially true in terms of a small business owner, we don’t want the FHA requiring small business to go bankrupt or feel

financial instability for their little ad. This clause ensures the policy behind FHA 3604(c) is satisfied without imposing an undue burden on advertisers.

Cons for the amendment: Although the amendment may be attempting to give relevant factors to consider, it is important they aren’t read to be restrictive/exclusive. We don’t want judges to only examine those two clauses (see technical changes – so it wouldn’t likely be a problem). The amendment is also contrary to the policy of FHA by failing to provide protection for the disabled. In the past, we have if anything, singled out the handicap to provide additional protection be we have never outright excluded them. The handicapped are excluded as a group under the FHA because of the frequency of discrimination against them. Therefore, they should also be protected in the advertising arena. Although it is true that historically other groups (like race) have had more historical discrimination, that doesn’t mean the disabled shouldn’t be afforded the same protection. Who knows how the trend in discrimination will shift? We need to protect all groups from this form of advertising. In addition, just because other people don’t think of the handicapped as a group that needs to be represented, doesn’t mean we should go along with that ignorance. Furthermore, as clearly indicated by the amendment, the selection of models would only be one factor to consider. So it doesn’t mean that all ads would require a person with a disability, by including the handicap in the list it just means the lack of them will be considered (but it wouldn’t be dispositive)

The second provision is just an added burden on small advertisers. Notice there is no small holders exemption to 3604 (c), so a small business owner can be required to place very expensive ads in 2 or 3 different newspapers (e.g.) if in a large city.The statute is also not a good idea because of the major loophole it leaves open in the “unreasonable clause”. This clause will allow a small (and possibly large apartment complex/advertiser) to openly discriminate by excluding all African Americans (e.g.) from its ads on the simple basis that it couldn’t afford to reprint them. This provision allows for a wide distribution of discriminating ads for an endless amount of time (so long as the advertiser can claim it would be unreasonable to change their ad to include minorities). Now it is true that this situation may not come up that frequently but really that isn’t the point. If it can happen at all, it should be prevented. If the advertiser is really in such a dire financial position, then he should have to come up with another form of non-discriminatory advertising other than publishing 68 whites in a brochure.Substantive Changes: Aside from possibly adding handicap to the amendment (see argument above) I would probably list out other possible, relevant factors to consider. Such as, # of times the ad was published or distributed, the size of the ad, quality of ad, actual # of models used (as opposed to just the selection of them). A more detailed list of factors to consider would provide better guidance and uniformity of applying the law.

Question 2G: Student Answer #2 (Technical Drafting Issues Only):Subsection 1

Replace “selection” with use. It is the use not the selection of the human models that gives rise to the claim for discrimination because the preference is inferred from the use.

Remove word “appearing”. If the term “use” replaces “selection” then “appearing” is redundant.

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

Add language to clarify “relevant consideration”; it is unclear whether the use of the models will be a relevant consideration in determining whether the ad/notice indicates a

preference and is therefore a violation or whether it is a relevant consideration that the ad/notice is a violation. One sure way to defeat the purpose of a statute is to use language that could be considered ambiguous.

Replace “but only for” with the term provided. Simple language is preferred in statutory drafting.

Remove the word “relevant” prior to listing the protected classes to which the subsection will apply. Use of the word relevant is redundant. If a claim has been made, it is made in regard to one of the protected classes.

List the protected classes that are included, not those that are excluded; this will give you a shorter list to work with.

Resulting subsection: The use of human models in any notice, statement or advertisement shall be a relevant consideration in determining whether such notice, statement or advertisement indicates a preference, limitation or discrimination, provided the claim is not based upon religion, sex, or handicap.Subsection 2

Replace particular media or location with “means”. “Means” will be more inclusive of all possible media outlets; probably helpful to include an illustrative list defining “means”.

Replace “displayed/distributed” with communicated. Less words are used to convey same meaning – easier to read. Also communicated a more “catch-all” term.

Place “resulting” in front of audience and remove “that results from that”. Use less words to convey same meaning; you also know that “resulting” is modifying audience – removes any ambiguity.

Replace may with “shall be” prior to relevant in second to last line. The term shall was used in (1) – this will allow you to maintain consistency in the use of language.

Resulting subsection:The means by which any notice, statement or advertisement is communicated and the likely resulting audience shall be relevant in determining if such notice, statement or advertisement is in violation of this subsection.Subsection 3

Replace “it is a defense…” with “Nothing in this subsection…”; this will allow for consistency in way other defense are drafted (e.g. 3604 (f)(a)

Remove term “defendant”; this term is not used anywhere else in the FHA; should be replaced with “respondent” as defined in §3602(h).

Replace media or locations with “means” for same reason cited in changes to (2).

Resulting subsection:Nothing in this subsection requires a respondent to use more models or advertise by additional means, where such use or advertisement imposes would constitute an undue expense upon the respondent.

QUESTION 2H: BEST STUDENT ANSWERS (NO COMMENTS AVAILABLE)

Question 2H: Student Answer #1: The best overall answer; strong on both technical and substantive critiques.

Technical problems:

1. "is not appropriate" - this language makes it unclear whether the statute is attempting to tell courts that it is not good policy to apply the following doctrines/ aspects of T7, or whether it is actually negating discretionary authority.

Change: Based on W's intent to "ban the application of T7" she would want to say "shall not" which creates a duty for the court NOT to apply it. Further, the entire intro sould be written in active voice, specifying that a court or agency is applying the doctrines.

2. Parallelism- the beginning of each section is different, & statutes should be consistent, expressing ideas in the same way with a maintenance of parrallel sen. structure so that it is easiest for courts and consituents to read and understand.

Change: "The futile gesture test" & "The affirmative action test" & "The hostile environment harassment test" or something otherwise parallel.

- "the use of the test for judging the lawfullness of affirmative action" is also way too long and has unnecessary words. Change to above or something similar.

3. "so-called" - this is not needed and is too colloquial for the statute.

4. "futile gesture" - if the legislature finds this too unclear it should be defined in this subsection. Quotes around it are unnecessary. If defines, it should be connected by "is" or "means"

Change: eg, The futile gesture doctrine;

5. "in employment" w/i pt. (2)- this is redundant. the subsection begins with Title VII which shows the rest of the statute will be discussing employment tests/ claims.

6. ...by a landlord "OR a rep of the LL" - reps are always included as LL b/c of vicarious liability which is provided in other section of the FHA. Therefore not needed here and can be entirely omitted.

7. Landlord... "in the context of rental units" - two problems w/ this. If there is a LL, he owns the complex, therefore the tenant is a tenant and not an owner and is renting SO rental units are already inferred necessarily and don't have to be stated. IF rep also wanted this to extend to condo associations, eg, which could perhaps being a hostile environment claim against if they were harassing the tenant, then this should also be omitted and LL should be changed to LL or CA. Don't see why the context would be any different if W didn't want it to apply to LL.

8. Re: hostile environment claim- the stat refers to "amount of discriminatory behavior necesary for HE claim" BUT it seems from W's intent that she wants to bar application altogether, which is different from simply saying cts should still have the claim but not use the same evidentiayr burden as T7.

change: "HE claim" or test.

- also if trying to ban the claim, W can omit the amount of behavior nec'y b/c if no claim, no need for information re: evidence.

Substance: Housing & social policy

W's ban on futile gesture

CONS of disallowing: FG is good public policy for FHA claims for a series of reasons:

1. the burden of humiliation occasioned by discrim against a P is heavy, & if P is sure he will be rejected, "shouldn't have to submit to explicit & certain rejection" Fraiser. 2. even though the P was unwilling to engage in the futile gesture of submitting an offer for the prop or submitting an application, the P is still a victim of discrimination. 3. Courts need to be concerned that if the D's discrim is so entrenched that no one of a particular protected class applies.

Further, the only way the FG applies now (w/o W's amendment) is if P's evidence of the D's discrimination is so overwheming that its obvious applying wouldn't have done any good (eg, like in Frasier b/c no blacks had EVER been accepted & the housing was in an area where blacks lived, so it was clear to the ct. that D's discrim was successful). Therefore, this won't pose the problems of judicial inefficiency or insurmountable litigation b/c this type of clear proof is not usually available. Finally, the fact Ps take the time and resources to bring these claims shows that they care about the discrimination and it affected them.

PROS: On the other hand, W's amendment may be good b/c of several reasons: If P was so sure of being rejected before applying to the D, why would P be humiliated? It is illogical to argue that someone that KNOWS something will happen, can mentally prepare for it, would be so humiliated. The application is a mere formaility and operates as a bar to suit without merit.

Also, While FG works well in employment this is b/c emply. & housing are very different. the point of FG in emply is b/c many emply. suits concern promotions, therefore hte P himself has individual evidence from experience in the workplace on the basis of other employees (show that there have been other employees rejected in the class so there was no point). Second, in the emply context, the humilitation would often be worse b/c other employees would know about it, perhaps witness it, and it would not be internal embarassment like (likely)in housing. In emplymeny, the humiliation would be public. & in the job sector the P may run into the same employees co-workers later at another job in the same industry, still unable to escape the memories of embarassment.

W's ban on Affirmative Action (AA) test in Starrett

CONS of disallowing AA claims: the effect on minorities is more important than intent, & affirmative action programs could help break the cycle of segregated communities, helping minorities more from a poverty-stricken area into an itnegrated community. Looking beyong the text of the FHA to its purpose of achieving integration, it makes sense that it should not be read literally & used to prevent a policy which would actually aide in integration. It combats the problems of tipping & white flight (see so Sub) and if integration is not sometimes used to trump discrimination, it can result in hypersegregation (American Apar) where there is a black minority slum area surrounded by white suburbs.

Further, By requiring the D to rebut a discriminatory effect of an AA prgm, it reuqires the D to be proactive and think before implementing it what effects it would have that D could be liable for. Thus it makes the D actually use better proactive business practices.

PROS of Disallowing AA: AA prgms in housing can ultimately restrict black residential choice and D's attempts at integration, although seemingly laudable, so nothing to alleviate the larger problems of segregation. At best, they may permit a few blacks to live in integrated areas if they can qualify for a mortgage (Amer Apar 227). Further, treating a person differently b/c of race implies the consciousness of race and the purpose to use it as a decision making tool (So Sub). It can restrict minority access to desirable rental acconomodations otherwise available. It may also aggravate racial tensions b/c it allows for the color of skin to impact availability of housing, thus thearting the goal of living in a truly color blind society. Therefore, implementing D's burdens of evidence in housing should be the same as T7 b/c it is just as important to integrate in housing as emplyment.

Hostile Environment Ban

CONs of Banning HE: Allowing HE makes sense in housing b/c a person cannot truly enjoy their rights if the housing environment is hostile, leading them to fear for their safety or well-being (&enjoyment of rts is protected by FHA). The applicality looks to a variety of factors, like the frequency of the conduct, severity, whether it is physically threatening or humiliating, & whether it unreasonable interferes w/ the ability to use or be comfortable in the residence. Therefore, this claim requires a decent amount of evidence to protect the D if he has a bad day and utters something offensive (as was the case in Discenso), but allows the P protection if the conduct is sufficiently egregious. Further, HE is nec'y for P b/c the home is supposed to be a safe place, & if someone is accosting P it means every time P walks to the door P will be worried. If LL is harassing, who would P complain to? P would otherwise be left with no remedy. Plus, the LL-tenant relationship is an ongoing contractual one

PROs of banning HE: In employment, the P has to be at work all day with co-workers and employment MGMT. Therefore the effect is substantially lenghtier than in housing where the P may only have to see the LL once per month or less. Further, the P would likely have a claim under 3617, interferece w/ rt. to enjoy home, if the conduct was really threatening or coercive, thus it wouldn't completely eliminate P's remedies.

Question 2H: Student Answer #2 (Technical Critique Only) This answer felt very smart to me and was probably the strongest technical critique.

First, it is unclear what the purpose is for these proposed amendments. It would be helpful to include a preamble for the proposed amendments to explain its purpose, but this explanation will not be necessary if ratified, b/c the purpose of §3604 is rather clear. See §3601.

Because Rep. Waffle wants to "clarify instances" as to when Title VII analysis is approrpriate in a housing context, I will proceed under the assumption that she wants to ban the use of these three specific cases because she believes they are merely inapplicable to housing. [Good idea to state premises at outset.]

Overall Structure: The statute is poorly-worded. First, change "Employment of Title VII analysis . . . is not appropriate in the following situations:" to the following: "FHA claims will not be analyzed using Title VII analysis in the following three situations:" This fixes a number of problems:

a. Using the word "employment" as a verb when talking about Title VII is very confusing (i.e., the subject-matter of Title VII is employment; this creates confusion.)

b. Eliminates the "is not appropriate" language. That phrase was ambiguous: "is not approrpriate" means never apprporiate? Sometimes not appropriate? That it is simply a weak standard? That it implies there is a better framework to use? Saying "will not be analyzed" eliminates these ambiguities, and refrains from using the unhelpful phrase, "shall." I am also mindful that saying "are not to be analyzed . . ." creates similar ambiguity problems to its original phrasing. Finally, I am mindful that "will not be" may create problems as to timing, but I believe it is better than "shall."

c. Saying "in the following three situations" creates an exlusive list, there though will be room for interpretation here by the courts --> a good goal. Assuming that Rep. Waffle's goals were to prevent only these three uses, stronger language could be used ("only the following three situations"); but b/c her intent is unclear, the language I chose will be workable by the courts, with the intent probably that it is exclusive (exlusive creates more predictability; people know how to plan accordingly to comply --> beneficial)

d. It may also be beneficial to change "Title VII" analysis to something more specific, such as "McD-D burden sihfting analysis" if this is her goal

Subsection (1): Reword this subsection to say: "when applying the "futile gesture" claim, or similar, analysis…” Reasons:

-the "so-called" language is superflous and unnecessary

-including "or similar" in the subsection seems to do what the "so-called" language was intending to do

-since Rep. Waffle wants to "ban" its use; I am assuming that she wants to ban this test and anything similar, hence the inclusion of "or similar" ("ban" is strong language)

-this rephrasing also allows the statute to naturally flow into the subsections, so that it reads like a coherent paragrpah and complete thought (more understandable)

Subsection (2): Reword this subsection to say: "when evaluating the lawfulness of affirmative racial-integration maintenance programs" Reasons:

-this subsection is horribly written; I am proceeding under the assumption that Sen. Waffle is trying to say you can't apply the Title VII Affirmative Action test (four factors) to a housing context

-the use of "affirmative action cases in employment" is redundant; we know we are dealing with applying Title VII standards; there is no reason to include the "employment" or "affirmative action" language

-"evaluating the lawfulness" is more precise than "judging the lawfulness" --> unless she was trying to get rid of a test or balancing altogether (in which case I would make a suggestion other than "evaluation" ... maybe "determining")

Subsection (3): Reword this subsection to say: "when determining whether a hostile environment sexual harassment cause of action against a landlord has been stated" Reasons:

-original too wordy; if dealing with sexual harassment hostile environment; a LL's "discriminatory behavior" is a given

-"by a landlord or by a representative of the landlord" is superfluous in the main subsection. Pehaps add a sub-sub section that says "(3)(a) "Landlord" includes a landlord or a person or persons representing the landlord"

-the "rental units" seems superfluous as well --> if we are dealing with a LL, it is almost surely a rental (though this could also be another addition, (3)(b): "this provision only applies to rental units")

-original use of "by" was ambiguous: "by" a LL meaning it is HIS claim? probably not --> probably meant "by" to mean harassment done by the LL

(SUM) As a whole, the statute is rather wordy and hard to understand. By simplifying it and cutting out/rephrasing some words (and possibly adding a few more sub-subsections), it is far easier to understand.

Question 2H: Student Answer #3 (Substantive Critique Only): The substantive critique in this answer is very strong, especially for subsections (1) and (3). Under the point system I used, it received fasr and away the highest score for thev substantive critique.

Purpose of the Amendment: Appears to eliminate analogies to Title VII. Only one clear goal however, which is to eliminate futile gesture theory. Unclear as to whether Benign Discrimination Integration maintenance would be valid/invalid and unclear as to new standard for hostile environment.

Pros

1. Title VII is not Title VIII. Although they were drafted and passed in the same decade, they protect different areas of society. Statute could be first step towards differentiating them, which could arguably be a good thing, because courts use Title VII almost too much as a crutch, and dont' allow themselves to think creatively and come up with flexible solutions to the problems that are specific for housing. Also, lack of Title VII standards could result in less summary judgment, allowing FHA claims to come to forefront, which would increase society's knowledge about their rights.

2. Futile gesture claim may be good for employment, where dissemination of information often directly stems from employer, but is somewhat ill suited for Housing context due to different medias [craiglist, real estate agents, word of mouth] in which housing provider's intent could be incorrectly construed [however, other prongs of PInchback test protect this....]. Also, Pinchback is only case where futile gesture has been applied in FHA context [as far as MF knows] and unlikely that getting rid of it would be such a big deal especially since there is liability for real estate agents and 3604(c) protects those who make a decision not to obtain housing due to suggested preferences. Furthermore, Pinchback rule can result in floodgates of meritless cases because people will think they would get turned down, bring a case, and discover that they would have been accepted.

3. Abolishment of Title VII for Integration maintenance depends on what will replace it. If courts are left without guidelines they would be left with two choices in Starrett-esque situation: literal violation of 3604(a)- so program not valid or literal violation of 3604(a) but program valid because benign and advances integration. This may be good because it would be more simple, eliminate the duration factor and result in less "pocket ghettos." Furthermore, Title VII in employment context is often subset of other factors such as skill/ability, in housing it is strictly based on race. Maybe not appropriate for this reason. Furthermore, [footnote Starrett] Title VII cases have not been concerned with tipping beyond which a work force might be segregatd; reducing tipping is main aim of integration maintenance. Since goals are different, standards should be as well.

4. If Title VII standards are abolished for hostile environment, Court's probably will turn to 3617 and CFRs for guidance. However, CFRs are vague, and mainly just state "because of sex." Without Title VII, HUD could enact CFRs related to hostile environment to provide clearer picture and command Chevron deference. Taking away Title VII crutch could force courts to tailor new rules for these situations which are clearly an issue that needs consideration. "Severe or Pervasive" [Dicenso] is too strong, and as case shows, can result in meritorious claims failing - woman was touched-should be severe enough. However, title VII test focuses on all circumstances because employee interacts with employer everyday. Not appropriate for housing considering that length of relationship may be much shorter [re month to month lease] and one incident should be enough in such a circumstance.

CONS

1. Two statutes are part of a coordinated scheme of CR laws enacted to end discrim; SCOTUS has held that both statutes must be construed expansively to implement goal; therefore, they are meant to go hand-in-hand and often Title VII is necessary to provide relevant material on new situations. Step towards eliminating some analogies could result in movement towards separating

all. Unnecessary to even mention Title VII in statute-too confusing; maybe some Courts/landlords/housing providers don't even know what the Title VII standards are, but know the Pinchback, Starrett and DiCenso rules. Could result in a lot of confusion.

2. Pinchback rule is good because it alleviates a potential T from having to place self in embarassing situation in which they have nothing to gain. Often, real estate agents are fairly certain of policies and Pinchback rule also makes necessary that complex/provider would have actually rejected had applied, so no confusion or harm to innocent providers, but substantial benefit in situation where discrim. providers cause damage.

3. Starrett rule has its faults. However, its unclear what would replace it. The 4-prong test is supported by SCOTUS determination and implicitly accepted by LH when passed 1988 FHAA. No real need to change it now unless test is so difficult to pass that it hinders integration [but Otero and So.Sub passed similar test]. If replaced, discrim in entity itself and floors not ceilings MUST still remain if integration is to be valid benign activity, so at least some Title VII analogies must be made. If purpose is to completely ban integration maintenance, runs counter to LH re. Mondale["one of the biggest problems we face is the lack of experience in actually living next to Negroes] and dual purposes of FHA.

4. Are we just getting rid of Title VII rule "severe or pervasive"? If so, will probably result in floodgates. Although current standard is unfavorable to Ps, protects Ls from having every interaction become a COA. Ts are often grumpy when it comes to their Ls, and if the standard is lower it may result in several Ts bringing claims on actions less severe than what we want to be a COA.

Substantive Recommendations:

- Pinchback rule should stay. Pros outweigh cons. If want to reduce breadth of what it covers, maybe enact rule that says "futile gesture...explain obviously [see below]...only applies when information that leads to abandonment of application process comes from RE agent." This will eliminate word of mouth issue and limit potential meritless claims, but still provide Ps with substantial protections.

- Starret rule should be changed. Integration maintenance is something that is desirable, and complies with one of goals of FHA. Suggestion is to make it so that in order to comply, you can mention race in program, but has to be floor for minorities [i.e. goal of 25% but over 25% allowed] and there has to have been some imbalance in the entity itself before program is allowed [which is why So.Sub. is desirable].

- Title VII hostile environment rule should not be eliminated but legislature should make an attempt to clarify that 1 instance of touching could be enough and that frequency is relevant to duration of lease [i.e. 2 events in 4 month lease is ceratinly enough given that it would equate to 6 over a year see Shellhammer].

-Title VII shouldn't be mentioned, and neither should case names. Could cause lots of confusion in lower courts.

Sample Question 2J: Best Student Answers (No Comments Available)Question 2J: Student Answer #1: [This is one of the best responses to Question II I’ve ever received. The technical critique is strong, though perhaps a little bit weaker than the 3d model, but the substantive critique is outstanding. This was easily the highest score on this Question.]

Technical Critique: Intro Sentence/Overall:

Removed “above” because it is unnecessary and may be confusing; “subparagraph” is sufficient to indicate that (A) and (B) fall within the 3d paragraph.

Changed “unreasonable” to “not reasonable.” Although both work, “not reasonable” is more clear that the listed provisions do NOT fall w/in (A) or (B).

Removed “but isn’t limited to” because “includes,” as used in the statute, is sufficient to convey that the list is not exhaustive.

Moved “substantial hardship or undue burden” to the beginning of the sentence because those are the important terms.

Removed “a” before substantial hardship, and removed “an” before undue burden.

Result: For purposes of subparagraphs (A) and (B), a proposed modification or accommodation is not reasonable if it would impose substantial hardship or undue burden on the housing provider or neighboring residents, which includes—

Part (i)

Removed “change” – this word is unnecessary. In the context of A/M it is understood that limitations are on “changes.”

Removed “increase . . . disproportionately”- this sentence structure is confusing. The provision is meant to make clear that there must be a balance of the burden and benefit. I considered using “greater . . . than,” but decided that the adjective disproportionate was necessary to convey that the burden is too large in comparison to the benefit (not just greater than). I came to the conclusion that “disproportionately greater than” sounded better than “increases inconvenience disproportionately,” yet retained the meaning intended by Rep. V.

Changed “achieved” to “received.” “Received” sounds better, although achieved is not wrong, because the benefit of equal access is received by the disabled individual through the change provided by the HP.

Result: A burden imposed that is disproportionately greater than the benefit received

Part (ii)

Removed “financial costs” because reference to “fees” is sufficient to convey that the provision relates to financial costs

Removed “that are likely to result” because it is unnecessary. These provisions are all speaking about probabilities because the HP has refused to take action. - Begin with “an increase” for parallel structure.

Removed “rental or owners’.” I think it is understood that renters pay rent and fees are normally paid by owners. For the sake of brevity, I removed these words.

Removed “monthly.” It is understood that rent and fees are normally paid on a monthly basis.

Result: An increase of 2% or more in rent or other fees; or

Part (iii)

Change “fundamentally” to “fundamental” for parallel structure and changed “altering” to “change” because it is clearer and sounds better than “alteration.”

Change “relevant nature” to “essence”. I think essence captures that the change must be to the very heart of the dwelling. Relevant nature seems unclear to me. For instance, if the issue with making an alteration to a building is that the building is historic, then placing a ramp on the exterior may change its essence.

Change “housing” to “dwelling” for parallel structure. Dwelling is used throughout the statute and is defined in §3602. Use of the word “housing” may be confusing.

Remove prepositional phrase, “at issue,” because it makes the provision unnecessarily wordy.

Result: A fundamental change to the essence of the dwelling

Substantive Critique: Intro Sentence/Overall: Rep. Velluper’s (V) proposed amendment seeks to codify what several circuits have held: that analysis used under the Rehabilitation Act §504 (as opposed to Title VII) is the correct standard to apply, (see Shapiro). Under that standard cts determine whether or not a request imposes an undue burden, substantial hardship, or fundamental alteration in the program. (Davis).

However, Rep. V. has incorporated “neighboring residents” (NR) into the amendment. Clarifying that burdens placed on NR are relevant to determine reasonableness makes clear that housing associations and landlords (HP) are not the only individuals affected by A/M requests. For instance, if residents are placed on wait list of 5 years to receive a parking spot, and if a disabled tenant bumps the next resident on the list (forcing them to wait another 5 years) this accommodation does not necessarily affect the HP; however it would create a burden for the residents next in line to receive spaces. Under Rep. V’s design, the ct would necessarily look into those burdens.

On the other hand, there is an arg to restrict the courts inquiry to HP bc it would place the burden on those individuals to provide suitable arrangements for displaced NR. Furthermore, including NR into the analysis may create a loophole for prudent HP to evade any A/M requests by pointing to inconvenience posed to NR as a legitimate excuse for inaction. While looking into the overall burdens imposed by the A/M is wise, requiring cts to find requests unreasonable based solely on inconvenience to NR would greatly limit the effect of the statute. However, limiting the cts inquiry solely to HP’s burdens is also imprudent bc it would disregard the true scope of burdens that may be imposed. A better course of action would be to remove the subject of the sentence (both HP and NR) entirely, which would permit cts to look into all harms posed, but not unduly restrict the cts analysis.

With respect to the specific limitations proposed by Rep. V, case law concerning the limits of the affirmative duty placed on HP is unsettled—in other words, how much cost is too much, what does “substantial” mean, and what kind of change would fundamentally alter a program? Amending the statute to define these limitations would illuminate this murky area of the law. Furthermore, it would provide guidance to HPs regarding their legal responsibilities to disabled tenants under the FHA. And it would also prevent meritless claims against innocent HPs.

On the other hand, an overly narrow draft could go beyond Rep. V’s intent and prove devastating to the purpose of the Act if it were to create a roadmap to sidestep liability. Moreover, the purpose of this provision is an attempt to provide equal enjoyment through reasonable A/M. Specifying exact limits does not take into account the wide range of

disabilities and factual circumstances that these claims arise under. Therefore, generality in this context is useful because it is flexible yet effective. The current scheme yields a highly fact specific inquiry that requires balancing the needs of both parties.

Alternatively, it may make more sense to define what is not reasonable w/in the respective subparagraphs. Because A & M requests require different things from the HP, the provisions below are not all applicable to both A & M. Nonetheless, the remainder of this memo lays out a substantive critique of each specific proposal, as well as recommended changes to improve the amendment.

Part (i): This provision intends to limit A/M whose benefits are not proportional to the costs of implementation. Also, by creating this separate provision, the amendment makes clear that burdens are not limited to financial costs (discussed in (ii)); rather, that there are intangible costs that may be associated with the proposed alteration. For instance, a ramp that would effectively block traffic into or out of a community, resulting in significant delays to local residents would be “inconvenient.” If the benefits received from constructing that ramp were not proportional to that level of inconvenience, then the proposed modification would not be reasonable.

However, this provision does not clarify how courts or HP should calculate inconvenience or benefits. While some costs may be easily ascertainable, i.e., how much time has been added on to the residents’ commute, calculation of the benefit received (associated with the plaintiff’s disability) may be more complex. Furthermore, use of the term “inconvenience” may imply that an individual’s comfort level with the alteration is relevant. However, the inquiry should be into burdens imposed—asking whether or not the A/M will weigh so heavily on the HP that it seems unfair.

Part (ii): This provision intends to set a limit to the financial costs that may be incurred from the implementation of any A/M. Currently, the statute (and HUD regs) does not provide any limit to the amount of money that HP must spend. By redrafting to include a ceiling, it sets one standard that will provide uniformity among all circuits and to all HP.

However, this figure does not take into account those cases where the disabled individual requesting A/M is only a month-to-month tenant. It may not be reasonable to impose a 2% increase on the building tenants where the individual who requires the change can up and leave at any time. Furthermore, this provision does not account for those cases were the change would benefit the entire building. For instance, it may be reasonable to impose a monthly increase that is greater than 2% where all the building tenants will be able to utilize the accommodation, such as an elevator. Also, this provision is not applicable where the request is for a modification, which the tenant would pay for him/herself. When requesting a modification, the tenant is only asking that the HP permit a change. Whereas, a request for an accommodation requires that the HP take on the cost.

Part (iii): This provision seeks to clarify that an A/M is not reasonable if it would change the essential nature of the HP’s building. It is useful because it clarifies that HP do not have to deconstruct their buildings in order to accommodate a disabled tenant.

However, bc this provision applies to A/M it would be better if Rep. V added “program.” By requesting an accommodation, the individual is not just asking that the dwelling be altered; he or she may be asking that certain rules/programs be altered as well. By adding “program” to the provision will further Rep. V. intent to limit the HP’s responsibilities under the FHA.

Question II: Student Answer #2 (Substantive Critique Only): [This was the second best substantive critique, providing for each part of the amendment a solid pro argumentone or more

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solid cons, and some nice suggested changes.]

Substantive Critique: Intro Sentence/Overall:

Pro: The word “reasonable” is vague; it is helpful to clarify its parameters and to limit responsibilities by precluding three scenarios. This is not unusual for the FHA; it was done for two other terms/expressions in 3604(f). ---

Con: 1) “[I]ncludes but isn’t limited to” indicates that it is not a comprehensive list of the limits of the landlord/homeowner responsibilities (which was the objective of the amendment) (unless “substantial hardship or an undue burden” is meant to limit to those two categories, see supra, in which case it still falls short of clarifying.) 2) By reversing the language from Davis/its progeny, we end up with “undue burden,” which would seem to be a low standard. At least within the Davis language when it’s merely “undue,” it’s still a “hardship.” ---

Suggestion: Because it has worked well with the case law, the three Davis categories may be established as the comprehensive limits of reasonable, so long as the categories are presented somewhat less precisely, e.g., “(ii).” Although the amendment will sacrifice some precision, by limiting liability to these three categories, it will increase the likelihood of passage because it now provides something for both sides (i.e., the landlords now know the limits of liability, but the handicapped now know that anything not included within the three categories is actionable); and it will not cause Waffle (a moderate who, unlike conservative Vellupper, cannot merely appeal to the landlords/homeowners) to lose votes by appearing to be insensitive to the needs of the handicapped. Additionally, by limiting liability to these three categories it will enhance judicial eficiency because the courts will not need to determine whether other cases fall within the definition of “reasonable.”

Part (i)

Pro: It remotely resembles the cost/benefit analysis of Davis.

Con: The language of “inconvenience” seems too minor to justify a determination that it is unreasonable. It would seem that the aggregate inconvenience is sufficient and that spreading the burden is not sufficient to escape an unreasonableness determination. ---

Suggestion: Revert to the Davis language of “undue hardship” which indicates that people must suffer some level of personal hardship which is not justified given the benefit.

Part (ii)

Pro: It promotes judicial efficiency by specifically spelling out an example of too great a financial cost, without having to perform a balancing test with the plaintiff’s benefit. ---

Cons: This would seem to be overprecise. If we consider a 2% increase to be too great a financial loss, regardless of whether it will enable an entire group of handicapped people to live in a building that is particularly desirable, it would seem to produce a harsh result. Even within the Davis system, the “substantial burden” exception, although not officially a balancing test like the “undue hardship” exception, still takes into account relevant factors; it merely allows the finding that it is unreasonable in cases in which the plaintiff gains significantly. The policy of discontinuing discrimination in housing would likely be harmed by this bright line 2% rule, which would allow discrimination despite a relatively low cost increase. Additionally, if we are adopting the comprehensive limitation approach, discussed supra, this is far too specific a representation of unreasonable changes due to their substantial effect on the landlords/owners (and even without invoking the comprehensive limitation approach, it might be construed as the only exception based on the concept of the expressio unius canon of construction). Furthermore, “monthly” would seem to preclude a one-time assessment, which does not seem to be a fair reason to distinguish if the same money is being lost. Moreover, these specifics will likely create

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much debate within Congress and the voters, possibly preventing passage of the amendment.

Suggestion: Avoid overprecision, and sacrifice some judicial efficiency in order to leave it to the courts to decide the parameters of what constitutes a “substantial burden” upon the landlords/owners. This will increase the likelihood of passage. “Perfection is the enemy of good.”

Part (iii)

Pro: This is written using general language but clarifies that a landlord will never have to suffer a loss that will change the nature of his operation. This is something which can only be made on a case-by-case basis. Therefore, leaving it to the courts is appropriate.

Cons: Because it is subjective, a landlord can frame a change as fundamentally altering, clogging the courts with frivolous litigation. For example, a ramp sticking out into the street can be framed generally as impeding traffic within the trailer park, and it may be necessary for a judge to determine that the claim is ridiculous based on photograph or for a lawyer to take a stopwatch and demonstrate that the lost time due to slowing down to avoid the ramp amounts to a trivial number of minutes per year.

Suggestion: Despite potential for abuse, this is a necessary protection for landlords/owners, and, aside from the technical critique supra, it should remain as is.

Question II: Model Answer #3 (Technical Critique Only]: [This was the best technical critique in the class.]

Technique: The proposed statutory amendment contains a number of technical problems. In the main provision, there are eight such problems. 1) The word “above” in the opening prepositional phrase should be removed because it is unnecessary and inconsistent with the style of the other provisions of the Fair Housing Act (FHA). 2) Similarly, the word “proposed” can also be removed as unnecessary. 3) “If it would cause” should be added after “unreasonable if” to create a causal relationship between the accommodation or modification and the disqualifying negative experience of the owner or landlord or other residents. 4) To remain consistent with the other provisions of the FHA, “housing provider” should be replaced with “owner or landlord.” 5) Likewise, “neighboring residents” should be replaced with “other residents of the housing facility or community.” 6) “To” should be added before “experience” to complete the aforementioned causal relationship between the accommodation or modification and the disqualifying negative experience of the owner or landlord or other residents. 7) Although not found in the FHA itself, cases discussing the FHA have used the terms “undue hardship” and “substantial burden,” and as such, these terms should replace “substantial hardship” and “undue burden.” 8) In the last phrase of the main provision, “isn’t” should be replaced with “is not” because contractions should not be used in legislation, and “is not” is consistent with, for example, the U.S. Department of Housing and Urban Development (HUD) Regulations pertaining to the FHA. (See, e.g., § 100.70.) The FHA itself does not contain such a construction because its provisions do not contain an example of an exemplary list.

As a result of these changes, the main provision of § 3604(f)(3)(D) would read as follows: “for purposes of subparagraphs (A) and (B), an accommodation or modification is unreasonable if it would cause the owner or landlord or the other residents of the housing facility or community to experience an undue hardship or substantial burden, which includes, but is not limited to.”

Regarding subsection (i), there are two technical problems. 1) “A change” is repetitive and should be removed because the main provision already identifies that the list will contain

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examples of undue hardship or substantial burden caused by the proposed change. (See, e.g., Shapiro.) 2) The provision should identify whose inconvenience and whose benefit should be considered. An alternative provision could read as follows: “disproportionately more inconvenience to the owner or landlord or the other residents of the housing facility or community than benefit to the handicapped person.” As previously mentioned, the phrase “the owner or landlord or the other residents” reflects language consistent with the FHA. The term “handicapped person” is also used in the FHA.

There are also two technical problems in subsection (ii). 1) The term “financial” is repetitive and should be removed. The provision already makes clear that it pertains to rent and fees, which are financial in nature. 2) The provision does not specify to whom the cost increase must apply for the provision to be effective. An alternative provision could read as follows: “a cost to the owners or other residents of the housing facility or community that if divided evenly amongst owners or residents, would likely result in a 2% or more increase in owners’ fees or monthly rent.” Again, language should be used, such as “housing facility or community,” that remains consistent with the FHA.

Subsection (iii) contains three technical problems. 1) “Fundamentally” should perhaps be replaced with “substantially” if the purpose of the term is to reflect a degree of change that is impermissible. If the purpose of “fundamentally” is to clarify that this provision pertains to the “nature” of the dwelling, then “fundamental” should be used to modify “nature” instead of serving as an opening to the provision. If the term is meant to the reflect the language of the court in affirmative action jurisprudence, discussed infra, it could perhaps be left alone. 2) The term “relevant” may be superfluous; it does not appear to add anything to the provision. 3) “Housing at issue” should be replaced with either “dwelling,” “the housing facility or community,” or both phrases, so the language is consistent with the other provisions and the FHA as a whole. An alternative provision could read as follows: “altering the fundamental nature of the housing facility or community.” Use of “dwelling” would be more restrictive by prohibiting a change that would alter (in the way described) the individual dwelling itself, as opposed to the entire building or community. In sum, such changes would make the proposed amendment more technically sound; however, there are also substantive issues to address.