HOUSING DISCRIMINATION SPRING 2009:
INFORMATION MEMO #5 : INFO ON UNIT THREE
TABLE OF CONTENTS
A. PRIOR YEAR’S GROUP DISCUSSION OF STARRETT CITY
B WRITE-UP OF GROUP DISCUSSION #4
(B) Write-Up of Starrett City Group Discussion: Prior Year
QUESTION 1: CAN COURTS IGNORE LITERAL STATUTORY LANGUAGE?
Comments: This question was designed to get you to think about when, if ever, a court should carve out exceptions to the literal language of a statute. Many of the major arguments that are part of this debate are below. One group also argued that courts can treat statutes as providing general guidance but not binding authority on individual points. This is an interesting argument, but not one that is accepted in our system. Normally, courts treat clear legislative resolutions of specific issues as binding. They tend to create unenumerated exceptions only if they believe that the legislature did not intend the outcome that would result from literal application of the statute.
Arguments Supporting Exceptions
The Act interpreted literally makes it very difficult for housing providers to take any steps to further integration, which is supposed to be one of the goals of the Act. Thus, it is necessary to allow some exceptions to achieve the goal of integration.
Congress cannot anticipate every circumstance, so exceptions should be allowed where the court has reason to believe that Congress did not intend the law to cover the situation in question.
Times change, so courts should be allowed some leeway to read exceptions into statutes to deal with new circumstances.
Arguments Opposing Exceptions
Where a party clearly literally violates a statute, a court should not look at motivation or possible conflicting legislative intent to create an exception, but rather should assume the legislature meant what it said.
Where there are two possible policies supporting a statute and one of them supports the literal reading of the statute, a court should apply the literal reading.
Literal application of statutes provides certainty by making results more predictable
Where a statute literally prohibits one means of attaining a goal, it is problematic to rely on that goal to justify making an exception to allow the prohibited means.
QUESTION II: WHAT IS THE BEST OUTCOME?
Comments: Again in this section, the groups hit many of the major arguments. A couple of points not mentioned:
1) Starrett City was seen as especially important because it was a model to show people that a common middle-class perception is untrue: integrated low-income housing does not necessarily devolve into crime-infested slums. If people stopped associating mixed race housing with poor living conditions, integration wouls be more likely to occur naturally in the future.
2) Starrett City’s quota system is an especially bad method of achieving integration because it rewards and validates the beliefs of some white folks that too many people of color are bad for a complex or neighborhood. Dealing with white flight through these quotas pleases those who want a limit oin the number of people of color and stigmatizes people of color as undesirable.
A couple of points that you made that I thought warranted a response:
1) One group suggested it would be inappropriate for Congress to make an exception to a statute. This argument misconstrues the role of the legislature. Even if you believe that the courts should not make exceptions to statutes, Congress has both the authority and the duty to reconsider old legislation to determine if it should be modified or eliminated.
2) Several groups said that the courts or Congress should not allow the program because it constituted “discrimination.” This is a conclusion, not an argument. You’d need to explain why it is the sort of discrimination that should be unlawful.
Arguments in Favor of the Starrett City Program
Integration is an important goal and Congress should try to facilitate it.
Integration is important because:
It leads to interaction between people of different races;
Segregated neighborhoods create long term economic/social harms.
Starrett City is not trying to exclude any group, but rather to create a community that will benefit all people.
The Starrett City program is necessary to achieve an integrated housing complex.
Arguments Against the Starrett City Program
There needs to be a stronger demonstration that other methods will not work before employing quotas to preserve integration.
The government should allow integration to occur naturally as people are ready for it and not try to legislate it.
Drawing lines based on race should never be allowed; it only encourages more discrimination.
White flight and the loss of services that often accompany it should be addressed directly.
(B Write-Up of Group Discussion #4: Integration Maintenance (Faith, Hope & Charity)
I gave these questions as a written exercise last year. The write-up below includes comments on the written submissions as well as specific references to points made in your groups. Collectively, this years’ groups provided some useful arguments, but did not tend to explore both sides of DQs 69-70.
(O) Overview: General Comments & Recurring Concerns: These are useful problems for exam preparation purposes because they are the kind of focused statutory questions I often test. In general the submissions were a little thin. Many of you made a few basic points for each side in a pretty wordy way and used up your available space. Only one student took up the invitation in the instructions to use an abbreviated exam style and the resulting submission included vastly more arguments than anyone else did (it is the first model answer for each question). I don’t agree with every single point in that answer, but it provides the sort of well-organized thorough exploration of the issues that earns very high exam grades.
Some recurring technique concerns that are relevant to exam-taking:
(1) Starting with conclusions: In general, I think it is unhelpful to start your analysis with your conclusion unless the format of the question requires you to do so. First, you get no credit for the conclusion until it is supported by analysis. Perhaps more importantly, I think that once you put the conclusion on paper, you tend to commit to it mentally and are less likely to give enough weight to counter-arguments.
(2) Presenting Both Sides: You were asked to provide both pros and cons and then discuss which position seemed strongest.
(i) Some of you only provided arguments for one side, which is a bad habit to get into even if you haven’t been given specific instructions to do more.
(ii) Many of you put all the arguments on one side first, then all the arguments on the other. I think this is often less effective than organizing the arguments by topic and giving both sides on each topic. This opens the door to a more extended dialogue on any given topic if warranted.
(iii) When you identify one argument or set of arguments as stronger, you need to explain why.
(3) When to Include Facts of Cases Discussed: Despite explicit instructions to the contrary, many of you described the programs at issue in Starrett City and/or South-Suburban in some detail at the outset of your analyses in Problems A or B. For the kind of work you are doing here and on exams, you should try to use the facts of the cases during your analysis, but you only need to tell me those facts you are actually working with and only when you are about to work with them.
(4) “Discrimination” is a very amorphous word that generally should be used only as the conclusion to your analysis, not as part of the reasoning. Many of you made statements like, “The affirmative marketing plan in South-Suburban should violate the statute because it’s discriminatory.” I don’t think this tells us anything. Compare:
The affirmative marketing plan in South-Suburban intends to increase the percentage of white people viewing the houses in order to make it more likely that one of more of the houses will end up with a white owner. Given the history of racial segregation, a plan whose purpose is to try to make it less likely that houses will have Afr-Am owners should be viewed as discriminatory.
(A) Assuming Starrett City is binding precedent, does the program at issue in South Suburban violate §3604(a)? Your discussion might consider some or all of the following: The analysis of “benign discrimination” used in Starrett City; whether South Suburban is distinguishable from Starrett City as a matter of statutory interpretation or as a matter of policy; whether the 7th Circuit’s analysis is convincing.
(Spring 2009: Note that this is worded somewhat differently from your DQ69)
(1) I Was Looking For Some of the Following:
(a) Language: No “denial” because of race v. de facto “make unavailable” (Faith)
(b) Application of Starrett City (SC) factors:
(i) Temporary in Nature: 3 houses, 1 sale each, like Otero v. ongoing program (Faith)
(ii) Defined Goal: “More white traffic” count? (Faith)
(iii) History of Discrimination/Imbalance: No history by South-Suburban (S-S) itself, but city has imbalance & delegated addressing it to S-S
(iv) Increase/Decrease Minority Participation: No express limit so not like SC, BUT intent is to have some more sales to whites. (Charity)
(c) Factual Distinctions from SC
(i) Not quota (Charity; Faith) & realtor explicitly told not to discriminate
(ii) Afr-Am buyers can still outbid or outqualify whites (Faith)
(iii) Part of larger race-neutral strategy
(iv) Small effect on market: just 3 houses
(v) Very similar to Otero
(vi) Benefits to whole neighborhood if plan drives prices up
(d) Key Questions:
(i) Is it appropriate to view the relevant transaction as just these three sales or to look instead at the whole program, which will include many more transactions, but will include some affirmative marketing aimed at non-white home buyers. Note that a court is more likely to approve the challenged program if it believes that rejecting it will require also rejecting affirmative marketing targeting non-white buyers.
(ii) If the purpose of attracting more white traffic is to end up with more white buyers to help re-integrate the neighborhood, is this really any different than SC? (Charity) This would be a particular concern if the affirmative advertising outlets target relatively wealthy whites who wouuld be likely to outbid local Afr-Ams (Faith)
(2) Common Problems
(a) Many of you made mistakes describing the programs in SC & S-S (e.g., calling the transactions at issue in S-S “rentals”). This would count against you on an open-book test, let alone on a project that you had two weeks to complete.
(b) When you are working with cases, you need to be accurate and precise about what the case actually says. If you are arguing that it should be read or extended more broadly than its language will completely support, make that clear (“SC says ‘XXX,’ which suggests that the court believes that ….”) Otherwise, it looks like you are deliberately misrepresenting the case.
(c) Relatedly, many of you read SC to stand broadly for the proposition that you cannot use race as a factor at all in making housing decisions. The case doesn’t say that. If it did, there’d be no need to adopt the elaborate affirmative action analysis from Title VII. Moreover, SC reaffirms Otero, which allowed race-conscious housing decisions. It also acknowledges that integration is one of the primary purposes of the FHA.
(d) Spring 2009: Questions about the content of the advertising go to the §3604(c) claim (and therefore to DQ70). Here, you needed to focus on whether housing was effectively being “denied” or “made unavailable.”
(3) Best Student Answer #1:
(a) Args South Suburban (SS) Program violates § 3604(a) under Starrett City (SC):
1. Differences between SS prog. & SC prog. (see(b)(1) below) only technical – in reality, effect still same (denying minorities housing by showing a preference for whites).
1st- provision in SS agreement saying realtor can’t take action limiting based on race just lip service – program itself contracting w/realtor to do just that!
2nd -“Affirmative marketing”(AM) targeting only whites has effect of excluding blacks, making harder for them to find out about housing, thus harder for them to get it, just like racial quota.
3rd – Program not temporary b/c no provision that SS will not continue buying houses and marketing them in same way, w/no goal set for # of houses or date when program will stop preference for whites.
4th - Title VII affirmative action (AA) cases cited by SC as allowing progs remedying past imbalance meant to remedy past imbalance/discrim. against blacks, not whites! If prior imbalance favors minorities, and prog. at issue disfavors minorities, then not achieving approvable “AA” goals, and does not pass title VII test SC used for housing. SC’s “benign discrimination” concern as much prob. here as in SC, since, by decreasing availability of homes to blacks by denial of info. & increased competition, impact of AM prog. falls mostly on blacks. Since blacks as whole underrepresented in political process, they will be less likely to be able to keep progs. like the SS one from proliferating and denying them more housing. For above reasons, SS prog. fails SC test.