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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 …

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 …

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 …

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 …

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 …