12/2/2016 Background • Bases for AFFH includes: – Title 8 of the 1968 Civil Rights Act as amended in 1988 The E volution in Case Law and Policy under the Fair – 42 U.S.C. 3601 et. seq. (Fair Housing Act) – Executive Order 12892 Housing Act’s Duty to Affirmatively Further Fair • 42 USC 3608(e) sets forth the duties of HUD’s Secretary who shall: Housing in Oregon and Beyond – make studies with respect to the nature and extent of discriminatory housing practices in representative communities throughout the United States; – publish and disseminate reports, recommendations, and information derived from such studies that: – Oregon Chapter of the American Planning Association Legal Issues Workshop specify the nature and extent of progress made nationally in eliminating discriminatory housing practices and furthering the purposes of this subchapter, obstacles remaining to achieving equal December 2, 2016 housing opportunity, and recommendations for further legislative or executive action; and Speaker: Jennifer Bragar – annually report to Congress, and make available to the public, data on the race, color, religion, sex, national origin, age, handicap, and family characteristics of persons and households who are applicants for, participants in, or beneficiaries or potential beneficiaries of, programs administered jbragar@tomasilegal.com 503 ‐ 894 ‐ 9970 by the Department to the extent such characteristics are within the coverage of the provisions of law and Executive orders referred to in subsection (f) of this section which apply to such programs (and in order to develop the data to be included and made available to the public under this subsection, the Secretary shall, without regard to any other provision of law, collect such information relating to those characteristics as the Secretary determines to be necessary or appropriate). www.tomasilegal.com 2 Arlington Heights Arlington Heights Factors On remand the 7 th Circuit set forth 4 factors to consider whether conduct that • Metropolitan Housing Development Corporation v. produces a discriminatory impact but was taken without a showing of discriminatory intent violates the FHA: Arlington Heights (“Arlington Heights”) 429 U.S. 252 1. How strong is the plaintiff's showing of discriminatory effect; (1977) 2. Is there some evidence of discriminatory intent, though not enough to • The U.S. Supreme Court requires intent to make satisfy the constitutional standard of Washington v. Davis ; 3. What is the defendant's interest in taking the action complained of; and constitutional claims of housing discrimination. 4. Does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing. Metropolitan Housing Development Corporation v. Village of Arlington Heights , 558 F.2d 1283 (7 th Cir. 1977). The case settled, therefore, the U.S. Supreme court did not get to review analysis of the factors. Thus, it is unclear whether disparate impact exists under the FHA as a method of proving a violation. www.tomasilegal.com 3 www.tomasilegal.com 4 Circuit Split About Whether FHA Requires Intent USSC Granted Certiorari Twice or Whether Disparate Impact Is Sufficient Some cases to consider: • Magner v. Gallagher (St. Paul) and Mt. Holly v. Mt. Kennedy ‐ Park Homes Assoc. v. Lackawanna, 436 F2d 108 (2 nd Holly Gardens are two recent examples of cases that Cir. 1970), cert. den. (1971). were going to push the question of disparate impact Decision: Evidence of discriminatory intent in the Town’s actions to block a development marketed to people of color. as a way of proving intent to discriminate. But in the Griggs v. Duke Power, 401 US 424 (1971). Magner case, the courts dismissed because the case Decision: Disparate impact is sufficient to prove violation of settled, and in Mt. Holly the parties also settled. the Civil Rights Act in hiring decisions. Arlington Heights v. MHDC, 429 U.S. 252 (1977). Decision: No evidence of discriminatory intent; disparate impact not sufficient to demonstrate FHA violation. www.tomasilegal.com www.tomasilegal.com 6 1
12/2/2016 E xecutive Order 12892 on Fair Housing Stated Goals of New Policy – The Executive Order gives broad reach to the federalization of many local • Improve integrated living patterns and overcoming and state government acts and thereby the duty to affirmatively further fair housing. historic segregation; – HUD adopted rules to implement the requirements of the Executive • Reduce racial and ethnic concentrations of poverty; Order ‐ Department of Housing and Urban Development Implementation • Reduce disparities by race, color, religion, sex, of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11460 (Feb. 15, 2013) (to be codified at 24 C.F.R. pt. 100). familial status, national origin or disability in access – The Order and rules require: to education, transit and employment and reducing • Uniform data systems health hazards; and • Cover all recipients of federal funds related to housing or urban development • Respond to disproportionate housing needs by • Requires AFFIRMATIVELY furthering fair housing, not just non ‐ protected class. discrimination www.tomasilegal.com 7 www.tomasilegal.com 8 Texas Dept. of Housing and Community Affairs v. Proving the Case – the Number Game Inclusive Communities Project • First you show that the local government’s numbers are off – this could take years to build a record. • The Court built on its employment discrimination cases ‐ Griggs v. Duke Power Co., 401 U.S. 424 (1971) and Smith v. City of Jackson , 544 U.S. 228 • Then the local government tells you what the reason (2005) – the focus is on the effect of the action on the employee not the is for why the numbers are off. motivation of the employer. • The tie between, the Title VII of the Civil Rights Act, employment • You then have an opportunity or obligation to discrimination (ADEA) “otherwise adversely affect” and the Fair Housing suggest alternative methods for taking care of the Act is the phrase “otherwise make unavailable” which refers to the consequences of an action rather than the actor’s intent. legitimate business needs. • After exploring the 1988 amendments to the FHA, the Court concluded that Congress presupposed disparate impact under the FHA as it had been enacted in 1968. • Before rejecting a public interest, a court must determine that a plaintiff has shown that there is an “available alternative practice that has less disparate impact and serves the entities legitimate interest. www.tomasilegal.com 9 www.tomasilegal.com 10 “Consolidated Plan” under 24 Local Comprehensive Plan C.F .R. Part 91, Subpart C. • Local comprehensive plans must be consistent with the Consolidated Plan • Only recipients of federal housing dollars are required to conduct a if federal funds are sought or used by local governments. “Consolidated Plan” • A grantee is required to submit a certification that it will affirmatively • The Consolidated Plan must take into consideration the impediments to fair further fair housing, which means that it will: – housing identified in the Analysis of Impediments ‐‐ the Fair Housing Plan. conduct an analysis to identify impediments to fair housing choice The Fair Housing Plan must identify steps the jurisdiction will take to address within the jurisdiction; – these barriers. Failure to do either will result in an administrative or civil take appropriate actions to overcome the effects of any impediments challenge to the jurisdictions ability to receive federal funds. identified through that analysis; and – • maintain records reflecting the analysis and actions in this regard. Set Annual Objectives – Activities to be Undertaken – Outcome Objectives – Geographic Distribution of Housing Assistance – Annual Goals for Affordable Housing, Public Housing, Homelessness – Response to Barriers to Affordable Housing www.tomasilegal.com 11 www.tomasilegal.com 12 2
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