Law Commons^™

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 …

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 …

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 …

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 …

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 …

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 …