Law Commons^™

Reflections On Arlington Heights: Fifty Years Of Exclusionary Zoning Litigation And Beyond, Robert G. Schwemm

Law Faculty Scholarly Articles

Fifty years ago, when I was two years out of law school, I began work on a case—Metropolitan Housing Development Corp. v. Village of Arlington Heights—that was destined to take on epic proportions in the housing discrimination field. The case started with a complaint filed in 1972, shortly before I joined the plaintiffs’ legal team, and was not finally resolved until 1980, after I’d left that team to become a law professor. During the seven years that I worked on the Arlington Heights case, it produced a major Supreme Court decision on standing and the Fourteenth Amendment’s Equal Protection Clause3 …

Fair Housing And The Causation Standard After Comcast, Robert G. Schwemm

Law Faculty Scholarly Articles

The Supreme Court last term held in the Comcast case that “but-for” causation must be shown by plaintiffs under the 1866 Civil Rights Act’s § 1981 and also announced that this standard is the default position presumed to govern all other federal civil rights statutes. This Article deals with how Comcast’s but-for presumption applies to fair housing cases.

The answer is complicated, because these cases are often brought under multiple laws. For example, a Black applicant who is rejected by an apartment complex ostensibly for having inadequate income, but who believes this decision was racially motivated because the complex …

Reflections On Moving Toward Integration And Modern Exclusionary-Zoning Cases Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This Article has two parts: Part I presents my views on Moving Toward Integration [Richard H. Sander et al., Moving Toward Integration: The Past and Future of Fair Housing (2018)], and Part II examines one of the book’s policy recommendations for furthering residential integration—exclusionary zoning litigation—along with some of the roadblocks to this and other pro-integration efforts erected by the Trump Administration.

Source-Of-Income Discrimination And The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

Amending the federal Fair Housing Act (“FHA”) to ban “source-of-income” discrimination has been discussed for over twenty years. During this time, a growing number of states and localities (including many of the nation’s largest cities) have taken this step by amending their fair housing laws to prohibit discrimination against Section 8 voucher holders and others based on their source of income. Meanwhile, bills proposing such an amendment to the FHA have regularly been introduced, including four in the current Congress.

Proponents of such an amendment say it would help fulfill the voucher program’s goal of providing low-income families with a …

State And Local Laws Banning Source-Of-Income Discrimination, Robert G. Schwemm

Law Faculty Scholarly Articles

Most states and many localities have civil rights laws that are substantially equivalent to the federal Fair Housing Act ("FHA"),' which means they at least ban discrimination based on the seven factors outlawed by the FHA (i.e., race, color, religion, national origin, sex, familial status, and disability). Many of these state and local laws also include other protected classes, such as age, marital status, sexual orientation, and source of income.

This Article reviews state and local efforts to outlaw source-of-income discrimination.4 (For its part, Congress currently has multiple bills before it that would add such a prohibition to the FHA.) …

Segregative-Effect Claims Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

Two types of discriminatory-effect claims have been recognized under the federal Fair Housing Act (FHA): (1) disparate impact; and (2) segregative effect. Neither requires a showing of illegal intent, and both, according to a 2013 regulation promulgated by the U.S. Department of Housing and Urban Development (HUD), are subject to the same three-step burden-shifting proof scheme, which assigns the plaintiff the initial burden of proving that the defendant’s challenged practice causes a discriminatory effect. Both the disparate-impact and segregative-effect theories date back to appellate decisions from the 1970s, although the Supreme Court’s endorsement of the former in 2015 in Texas …

Proving Disparate Impact In Fair Housing Cases After Inclusive Communities, Robert G. Schwemm, Calvin Bradford

Law Faculty Scholarly Articles

Disparate-impact claims under the federal Fair Housing Act (“FHA”) are now a well-established part of housing discrimination law, having been recognized for decades by the lower courts and recently endorsed by the Supreme Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. The Court in Inclusive Communities saw the impact theory as a way of bolstering the FHA’s “role in moving the Nation toward a more integrated society,” but it also set forth certain “cautionary standards” to guard against “abusive” impact claims. Under these standards, which are similar to those adopted in a 2013 HUD …

The New Progressive Property And The Low-Income Housing Conflict, Zachary A. Bray

Law Faculty Scholarly Articles

The foundation of property law has been much debated in recent years, as several scholars have sought to provide a theoretical alternative to what they call the dominant, “law-and-economics” approach to property. In place of the law-and-economics approach, these scholars advance a new theoretical approach, which I call “the new progressive property.” At its core, this new approach favors rules thought to promote the collective well-being of the larger community while ensuring that relatively disadvantaged members of society have access to certain basic resources. This Article explores the boundaries and practical implications of the new progressive property. To do so, …

Overcoming Structural Barriers To Integrated Housing: A Back-To-The-Future Reflection On The Fair Housing Act's "Affirmatively Further" Mandate, Robert G. Schwemm

Law Faculty Scholarly Articles

A key goal of the 1968 Fair Housing Act (“FHA”), which was passed as an immediate response to Dr. Martin Luther King, Jr.’s assassination, was to replace the ghettos with “truly integrated and balanced living patterns.” It hasn’t happened. Today, more than four decades after the FHA’s passage, “residential segregation remains a key feature of America’s urban landscape,” continuing to condemn new generations of minorities to a second–class set of opportunities and undercutting a variety of national goals for all citizens.

But recent developments dealing with an underutilized provision of the FHA – § 3608’s mandate that federal housing funds …

Neighbor-On-Neighbor Harassment: Does The Fair Housing Act Make A Federal Case Out Of It?, Robert G. Schwemm

Law Faculty Scholarly Articles

Does the federal Fair Housing Act (“FHA”) ban harassing statements to a minority family who has just moved into a predominantly white neighborhood? The FHA does contain an antiharassment provision (42 U.S.C. § 3617), and this certainly applies to firebombings and other types of physical assault designed to drive the family out of the area. But does § 3617 also outlaw purely verbal attacks? And if so, how egregious must the remarks be before a federal case should be made out of them? For example, would substituting "Niggers" for "people like you" in the above quote make a difference?

Today, …

Discretionary Pricing, Mortgage Discrimination, And The Fair Housing Act, Robert G. Schwemm, Jeffrey L. Taren

Law Faculty Scholarly Articles

For generations, mortgage lending has always been the gateway to the American dream of homeownership, and, historically, has also been characterized by widespread discrimination against racial and ethnic minorities and their communities. Mortgage discrimination in the modem era has often been accomplished through a technique known as discretionary pricing, in which lenders allow their loan officers and brokers to increase borrowers' costs from an objectively determined base rate. In the past decade alone, discretionary pricing has cost minority homeowners billions of dollars in extra payments, which, in tum, has led these minorities to suffer higher foreclosure rates than whites and …

Cox, Halprin, And Discriminatory Municipal Services Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This Article deals with Cox v. City of Dallas, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, and the issue of whether the Federal Fair Housing Act (FHA) should be interpreted to outlaw discrimination in the provision of services by local governments. Part I describes the Cox litigation and its connection with Halprin. Part II surveys the pre-Cox cases that have dealt with discriminatory municipal services. Part III analyzes the FHA's relevant provisions and their legislative history and concludes that Cox and Halprin were wrong to deny FHA protection to current residents. Part IV …

Why Do Landlords Still Discriminate (And What Can Be Done About It)?, Robert G. Schwemm

Law Faculty Scholarly Articles

Let's say you have a serious, though not life-threatening, medical condition, such as a non-malignant growth in your back that causes considerable pain and impairs your ability to walk. At first, your doctor tells you there is no cure, but then one day, a new drug specifically designed to eliminate this kind of problem is approved. You take this drug, but notice no change. With your doctor's encouragement, you continue to take the drug, hoping that its cumulative effect will achieve the desired result. Twenty years go by with no relief. Then, your doctor tells you that a much stronger …

Barriers To Accessible Housing: Enforcement Issues In “Design And Construction” Cases Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

In the Fair Housing Amendments Act of 1988 (“FHAA”), Congress added “handicap” to the bases of discrimination outlawed by the federal Fair Housing Act (“FHA”) and also enacted three special provisions to further insure equal housing opportunity for persons with disabilities. One of these special provisions—§ 3604(f)(3)(C) —mandates that all new multi-family housing be designed and constructed with seven specified accessibility features.

Despite the accessibility requirements of § 3604(f)(3)(C)—and similar requirements in scores of state and local fair housing laws—a great deal of the multi-family housing built since §3604(f)(3)(C) became effective has failed to include the features mandated by this …

For The Rest Of Their Lives: Seniors And The Fair Housing Act, Robert G. Schwemm, Michael Allen

Law Faculty Scholarly Articles

America's population is growing older. According to the 2000 census, more than 35 million people in the United States (12% of the total population) are over 65 years old. These figures are expected to grow dramatically in the early decades of the twenty-first century as the "Baby Boom" generation reaches retirement age and as improvements in health care make it possible for more people to live to an advanced age.

Providing housing for this segment of the American population is already a massive industry and one that will certainly grow as the number of, older persons increases. One of the …

A New Look At Sexual Harassment Under The Fair Housing Act: The Forgotten Role Of §3604(C), Robert G. Schwemm, Rigel C. Oliveri

Law Faculty Scholarly Articles

Sexual harassment in housing is a significant national problem. Although less visible than the comparable problem in employment, sexual harassment in housing may be as prevalent and probably more devastating to its victims.

Nevertheless, relatively little attention has been paid to this issue or to the law that should govern it. Indeed, the law of sexual harassment in housing developed well after and in virtual lock-step with the law of sexual harassment in employment. Thus, courts have simply interpreted the Fair Housing Act (FHA) to prohibit sexual harassment to the same degree—and only to the same degree—as it is prohibited …

Discriminatory Housing Statements And §3604(C): A New Look At The Fair Housing Act’S Most Intriguing Provision, Robert G. Schwemm

Law Faculty Scholarly Articles

Today, more than three decades after the 1968 Fair Housing Act ("FHA") banned such behavior, blatant discrimination—often accompanied by racist slurs and other explicitly discriminatory statements—continues to plague America's housing markets. The FHA not only outlawed discrimination in most housing transactions on the basis of race, color, religion, and national origin, but also contained a specific prohibition, § 3604(c), banning all discriminatory housing statements. Unlike the FHA's more traditional prohibitions against discriminatory refusals to deal and discriminatory terms and conditions, § 3604(c)'s ban on discriminatory statements has not been the subject of much litigation or debate.

Part I of the …

Government Lawyers And Their Private “Clients” Under The Fair Housing Act, Eugene R. Gaetke, Robert G. Schwemm

Law Faculty Scholarly Articles

In strengthening enforcement of the federal Fair Housing Act, Congress in the 1988 Fair Housing Amendments Act ("FHAA") authorized government lawyers from the Justice Department, the Department of Housing and Urban Development, and state and local civil rights agencies to prosecute cases "on behalf of” persons aggrieved by housing discrimination. This new enforcement scheme has led to a heightened level of administrative complaints and litigated cases in which government lawyers are put in the potentially difficult position of having to represent both their agency and private complainants.

The "triangular" relationships created by the FHAA between government lawyers and their public …

Introduction To Mortgage Lending Discrimination Law, Robert G. Schwemm

Law Faculty Scholarly Articles

Although mortgage lending discrimination and the laws that forbid it have been a part of the American landscape for over two decades, it has only been in recent years that this subject has captured the attention of the public, Congress, and federal enforcement officials. The result has been a tremendous upsurge in interest in this field. Still, there are relatively few cases that have been litigated to a conclusion on the merits, and fewer still that have resulted in plaintiff's victories. Thus, we find ourselves in an exciting period of great potential, but as yet not fully realized accomplishment, as …

The Future Of Fair Housing Litigation, Robert G. Schwemm

Law Faculty Scholarly Articles

This article is a revised version of the keynote address I gave at a conference entitled "Where is Fair Housing Headed in This Decade?" sponsored by The John Marshall Law School in the Fall of 1992. As its title implies, the conference focused on the future of fair housing, and my address dealt with certain developments that I felt were not only observable in the early years of the 1990s, but were also likely to be important in the remaining years of this decade.

Many of these developments—such as the growing role of the federal government in fair housing enforcement …

Private Enforcement And The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

The first section of the Fair Housing Act declares that "[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." If the United States has been officially committed to providing for fair housing for the past 20 years, why is segregated housing still the prevailing norm throughout our nation? Why does discrimination still regularly occur when minority homeseekers venture into white areas? Why are the opportunities for living in stable, integrated neighborhoods only marginally better now than they were a generation ago in the days of Lyndon Johnson, Everett McKinley …

Compensatory Damages In Federal Fair Housing Cases, Robert G. Schwemm

Law Faculty Scholarly Articles

The federal fair housing laws became effective in 1968. Since then, courts have often awarded damages to victims of housing discrimination, but their decisions have provided little guidance for assessing the amount of such awards. There is a great range of awards, with some courts awarding only nominal damages of $1 and others setting awards of over $20,000. Compounding the problem is the difficulty of measuring the principal element of damages claimed by most plaintiffs in fair housing cases, noneconomic emotional harm or other forms of intangible injury.

Rarely is the basis for the amount of the court's award satisfactorily …

Standing To Sue In Fair Housing Cases, Robert G. Schwemm

Law Faculty Scholarly Articles

Few procedural issues have commanded more attention from the Supreme Court in recent years than standing. The question of who is a proper party to bring a particular claim has arisen in a variety of contexts, but the Court has been especially active in addressing standing problems in cases concerning allegations of housing discrimination. The recent decision of Gladstone Realtors v. Village of Bellwood marked the fifth time in the past decade that the justices have decided a fair housing case on standing grounds.

The Supreme Court's determination to emphasize standing issues in many of its early fair housing opinions …

Discriminatory Effect And The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This article addresses the question of whether housing practices that produce discriminatory effects violate the Fair Housing Act. The language and legislative history of the statute are examined, the analogy to employment discrimination law is explored, and the principal Title VIII cases are considered in an effort to determine just what racial discrimination is under the Fair Housing Act. This analysis leads to a suggested approach for evaluating Title VIII cases that are based on discriminatory effect, including how such an effect may be shown by the plaintiff and what significance such a showing should have in terms of the …

Cooperative Apartments: A Survey Of Legal Treatment And An Argument For Homestead Protection, Carolyn S. Bratt

Law Faculty Scholarly Articles

“The homestead may be a splendid mansion, a cabin or a tent,” but can it be a cooperative apartment? The supreme courts of both Florida and Georgia recently have answered this question in the negative. The Florida Supreme Court denied to a widow a homestead exemption in her deceased husband's cooperative apartment, ruling that a cooperator has no proprietary interest in the apartment, the building, or the land on which the building is situated. The Georgia Supreme Court denied a homestead tax exemption to cooperators because they lacked the characteristics of ownership needed to bring them within the constitutional exemption …

From Washington To Arlington Heights And Beyond: Discriminatory Purpose In Equal Protection Litigation, Robert G. Schwemm

Law Faculty Scholarly Articles

When the Supreme Court decided Washington v. Davis on June 7, 1976, it began a new era in civil rights law. Rejecting the contention that state action is unconstitutional solely because it operates to injure more blacks than whites, the Court held that proof of discriminatory purpose is necessary to establish a claim of racial discrimination under the equal protection clause. In two cases decided the following term—Village of Arlington Heights v. Metropolitan Housing Development Corp. and Castaneda v. Partida—the Court reaffirmed its commitment to the discriminatory purpose requirement, but was badly divided on how to apply the …

Book Review | Shelter And Subsidies: Who Benefits From Federal Housing Policies? By Henry J. Aaron (1972), Robert G. Schwemm

Law Faculty Scholarly Articles

This book review examines Shelter and Subsidies: Who Benefits from Federal Housing Policies? by Henry J. Aaron (1972).