Sample Question III: Best Student Answers

Sample Question III: Best Student Answers

QUESTION III: Student Answer #1: [This was the best overall answer to Question III, earning the second highest scores to Parts A and C and a tie for the top score on Part B. The student did an especially good job discussing the evidence in Part B.]

(Part A). P might begin by arguing (arg) that HUD interpreted the FHA to be broad enough to cover timeshares (TS). (Chevron) (holding that the court owes deference to the interpretation proffered by the agency charged with administering it). However, MM will arg that this language provides that a TS “may” fall w/in the meaning of a dwelling, not that it must. (Angstman). Nonetheless, bc the shares purchased are each tied to a base, the TSI sold by MM include a housing right (rt)—the rt to return every year (yr) to the same base, and many SH do return to their bases yr after yr. What is imp. is that SH have the rt to return: “what these prop owners do w/ that rt, as true w/ any prop owner, is their own decision.” (Acorn).

Despite this fact, MM has a strong arg that the TSI are not “dwellings” bc shareholders (SH) neither view the resort as a place to return to, nor intend to remain at the resort for any significant period of time. Columbus Country Club (CCC). The pivotal aspect of TSI is its “transient” nature—SH ability to swap shares so that they do not have to return to the same vacation suits each yr. Assuming that the SH selects a single resort as its base for all 3 shares--while all 3 shares may be based at the same resort for a consecutive 3-week period, presumably they may also be spread out among different resorts--3 continuous (or non-continuous) weeks do not amount to “an extended period of time.” This short stay is significantly less than the summer (sum) bungalows (bungs) at issue in CCC where annual members could spend up to 5 months at the bungs, and nearly all members returned sum after sum.

However, P will arg that 3 is the minimum number of weeks that must be purchased, but that there is no limit to the number of weeks that a SH could purchase. Theoretically, an MM SH may purchase enough shares to surpass the time spent at the sum bungs in CCC. In that case 5 months was the outer limit, and there was no indication how long each bung was actually utilized. Further, the “option” to trade shares should not create a safe harbor for discriminatory conduct. Significantly, all resorts are owned by MM, and SH may trade shares amongst each other. Exempting TSIs from the FHA would create a broad exception that would permit MM (and other TS-providers) to freely discriminate within its vacation enclaves. (CCC).

MM will contest that SHs do not view the suits as “a place to return to.” MM sells TSIs. The interests purchased allow SHs to vacation at different resorts each yr. SHs do not own the suits at their base—presumably they are not free to leave any of their belongings behind after their weeks are up, and they are most likely not permitted to alter the premises. Nor do they pay taxes on the property (contra Acron where residents paid both a mortgage and taxes on their respective dwellings). To this point, P will argue that payment of taxes is not dispositive, and that the meaning of “dwelling” is not defined by ownership. Rather, giving the FHA broad construction, courts have found several abodes to be dwellings where occupants do not pay taxes. (Farm labor camps (Ever Fresh Co); AIDS Hospice (Baxter); Childrens’ home (Hughes Memorial); Cooperative apartment building (Robinson)—from Acorn),

Finally, MM will arg that available suits are rented to non-SH as an additional source of revenue. This fact may place MM in line with Patel, where the court qualified a motel as commercial venture and a public accommodation, thus placing it in a category outside the intended reach of the FHA. (see Patel cited in Acorn). However, as a finalarg P should remind the court that Congress intended for the FHA to be construed broadly. (Trafficante).

(Part B)P will arg that MM denied their application bc they have 4 children (FS). The facts indicate that the application process went smoothly until LL was informed that the Ps had 2 sets of twins (TP and LL got along extremely well on TP’s initial visit to the property—notably while TP was sans children and LL was unaware that she in fact had children). Furthermore, LL remained excited about TP as an applicant up until P’s FS was disclosed (once the preliminary screening was stamped with a tentative approval, LL called TP to congratulate her and set up a further visit). It was not until P disclosed her FS that LL paused for a lengthy period, and then began making excuses to deny P the shares. This change in demeanor is circumstantial evidence of MM’s rejection on the basis of FS.

MM will argue that there is no evidence of DT: P’s application was put through a preliminary screening (credit and reference check) according to normal procedure. Because their credit rating was only slightly above the minimum and because one of GP’s previous employers could not be reached, the application was only tentatively approved. Furthermore, the family was not rejected after LL was informed about the number of children, rather a visit was arranged for the entire family for early June. Moreover, a family that also had a child filled the vacancy. This fact is mildly helpful for MM—it may support the conclusion that the Ps were not rejected because of FS.

Because there are several reasons that MM might have rejected Ps application, the Mcd-Dgs burden shift would prove useful bc it would effectively force MM to commit to a theory of the case. According to Asbury, P would successfully set out a PFC: first, byestablishing that P was w/in a protected class (family with 4 children); second, that P applied for and was qualified to purchase shares (TP submitted application & assets and credit rating slightly above minimum required); third, that P was denied the opportunity (application placed on hold, and ultimately rejected); and fourth, that the housing opportunity remained open (remained open for two weeks). The PFC creates a rebuttable presumption, which then switches the burden to MM to proffer a legitimate, nondiscriminatory reason (LNR) for its decision.

As a LNR for the rejection, MM might assert that P was rejected bc MM has a policy of giving preference to families whose members have attended, or who currently attend EEE. However, due to an issue in timing, reliance on this fact is not dispositive (or very persuasive). P’s application was put on hold 2 weeks before an applicant meeting this standard came around. Also, if there were exceptions made after this policy was instituted that fact would prove unfavorable for MM’s claim (see Asbury).

Alternatively, MM might assert that GP’s comment that public schools are good enough for their kids and that they didn’t want the twins to turn into “stuck-up little snots” was the reason for P’s rejection (Frazier). If MM asserts that GP’s physical response (clearly annoyed) and verbal response (offensive to EEE graduates, a significant number of MM SHs) was the reason for the family’s rejection, the ct might conclude that MM’s proffered reason was not bc of P’s FS, but rather that GP’s offensive comment produced an uncomfortable feeling, and was therefore a lawful reason to reject P’s application. (Frazier). Ultimately, P has the burden to prove that the LNR was a pretext. Any inconsistencies in the proffered reasons for P’s rejection will support the conclusion that MM discriminated based on FS.

(Part C)Under Marina Point (MP), the Unruh Act prohibits “arbitrary” discrimination. In other words, blanket discrimination of any group based on a generalized prediction, rather than exclusion based on individual conduct. In this case, P will argue that MM’s policy effectively excludes an entire class of individuals (those w/ no affiliation to EEE) on the basis of a generalized prediction—that families who are not affiliated with EEE “as a whole” will have less wealth, worse credit, and have children who are not as well behaved as those of families who are affiliated with EEE. The reasons provided by MM as the basis for instituting the policy are exactly the type of generalizations that MP forbids.

However, MM may argue that it offers the type of “special purpose housing” left open by the ct in MP. Similar to housing for the elderly, MM provides a vacation service to EEE families. However, P would argue that excluding timeshares from the FHA would effectively sanction vacation enclaves. (see 3A supra).

Alternatively, MM might arg that giving preference based on EEE is a permissible policy. Unlike MP, which turned in part on the difficulty of obtaining housing for families with children, MM’s policy is not the type of blanket disc that will create a shortage of adequate housing. Consequently, that its policy is beyond the scope of the FHA. First, it seems unlikely that people who are not affiliated with EEE will have a difficult time finding housing. Second, MM’s policy only relates to vacation timeshares; therefore, the court will not be as concerned that a certain class of individuals is being turned away from a housing need. Also, MM would argue that its selection process does not perpetuate irrational stereotypes. Unlike policies that reinforce racial and religious stereotypes, MM’s policy is based on its members desire to socialize among other EEE families. Furthermore, in MM’s experience EEE families are more willing to make long-term financial commitments, a positive fact for the company’s bottom line.

However, even if this generalization is true, the ct in MP held that membership in a class expected to behave a certain way must be coupled with actual misconduct. In other words, only an individual’s disruptive conduct is grounds for exclusion, not membership (or non-membership) of a class based on status. In this case, P’s assets and credit rating were slightly above minimum that MM required. Also, during the June visit, both sets of twins were very well behaved as they wandered around the resort (which was not a violation of any rules). Therefore, there was no individual justification for excluding the family, and MM’s denial must have been based solely on its generalized predictions. Furthermore, the ct in MP made clear that a HP’s right to maximize profits is not a reasonable basis for exclusion.

Finally, (and this might be a reach) P might argue that if the ct were to accept MM’s argument it could possibly create a loophole that would undermine the purpose of the FHA. For instance, if HP could restrict occupancy to individuals who participate in preferred organizations, and if those organizations restrict membership based on protected characteristics, then the HP has evaded the limitations imposed by the Act.

Question III: Student Answer #2 (Parts A & C Only): [This student wrote the strongest answers to both of these parts. On Part A, the student worked with the facts very well and identified a nice set of relevant categories to work with. Part C displays a very good understanding of Marina Point., making nice two-sided arguments about underlying policy and about the significance of Harris.]

(Part A)The time shares will only be considered a “dwelling” within 3602(b) if they are considered to be “residence[s]” according to the “ordinary meaning” canon of construction. See Columbus. Although courts have pretty universally held that summer bungalows are considered residences/dwellings, despite not being year-round residences, bec. the residents intend to stay for a significant period of time and intend to return, i.e., they are not “mere transients,” see id., the courts have generally held that motels are not residences. See Louisiana Acorn (“Acorn”). Time shares have been subject to splits between jurisdictions.

Layout. Although they could be “well-appointed hotel rooms” (and they are located in ski resort towns, they have only small gyms and contain computer rooms and cafeterias, usually associated with non-permanent stays), possibly indicating that we should categorize them within the Patel case, that they have multiple rooms, a kitchen, and a large living area indicates that they are condominiums despite the fact that some suites are rented out each year. (Homes can be rented out too.)

Duration of Stay. Although they are purchased as weekly shares, the “base” requirement indicates more permanence. Acorn goes beyond Columbus to consider the “right to return every year” to be the “most important fact” in analyzing the time shares, and that would seem to apply regarding the base. Although the online “market” which MM operates would seem to be a more established exchange program than Acorn’s,the fact remains that they are exercising a right for a property to which they have the right to return. (However, it is only a requirement to “[i]nitially” choose a base, potentially weakening the argument for veteran shareholders as well as the non-base arrangementsfor beginners. Moreover, the base requirement does not necessarily require a continuous duration of time, potentially relegating it to a sojourn/transient visit.)

HUD Preamble. Despite Angstman’sdismissal of this factor and allegation that Acorn agreed, the suggestive language in the preamble, while not given the same deference under Chevron as a formal regulation, should be persuasive. That Acorn went on to discuss the specific facts may merely mean it intended to responsibly fortify its decision (but it would have decided based on HUD as well).

Taxes/Ownership. One of Angstman’smain bases for not considering it to be a dwelling is that they “do not own or pay taxes.” Here, however, they are called “shareholders,” and the taxes are paid from purchase price and dues that they pay. Although rentals to non-shareholders contribute to MM’s revenue as well (possibly indicating that taxes are paid from other sources), that they pay dues, beyond the purchase price, which goes toward maintenance and taxes, clearly distinguishes this from a hotel, for which the guest merely pays the room price. Furthermore, it is unclear to what extent non-shareholders who are not ultimately purchasers rent the units; if almost all the renters eventually purchase, it is even more logical to consider the purchasers to be the taxpayers. --- Thus, despite the fact that the instant case deals with familial status discrimination, and all factors equal, Acorn and Angstman can be distinguished by understanding the courts to be more sensitive to racial discrimination, Acorn, than familial status discrimination, Angstman, the factors of the instant case allow for a determination that it is a dwelling even within the standards established by Angstman.

(Part C)“Arbitrary” does not mean that there is no reason at all. In Marina Point, the no children policy was based on what the landlord considered to be a “reasonable economic motive” due to their “annoying or potentially dangerous activities” such as arson and batting practice in hallways. Nevertheless, the court held that the Unruh Act’s list was merely illustrative, not exclusive and that it included all individuals from “arbitrary discrimination.” The challenge lies in defining and applying the expression “arbitrary discrimination.” The court guides us by saying that it is prohibited to “exclude an entire class of individuals on the basis of a generalized prediction that the class ‘as a whole’ is more likely to commit misconduct and provides certain examples. MP at 39.

At first glance, the EEE policy seems to be different than the MP prohibited conduct bec. the Unruh prohibition deals with stereotyping about a group’s propensity for certain unfavorable conduct. Here, however, it is not stereotyping about a group as much as it is trying to achieve the stated objectives of the policy, e.g., common experiences to promote social interaction. It would seem to be more similar to the old-age home exception discussed in MP, i.e., special purpose housing. Despite the strong AARP lobby, it may not be limited to old-age homes, as we discussed in class regarding undergraduate student housing for a particular university. The exception is especially compelling if there are other similar options available at the ski resorts, i.e., the non-EEE families will not be completely deprived of the ski-resort experience.

However, upon analyzing the objectives of the policy more closely, it seems that MM is suspicious of all those who are not EEE families of having unfavorable dispositions. E.g., they will be less agreeable residents, they won’t be as willing to make long-term fin. commitments, and their lack of sophistication and travel experience will