Mar 30, 2010

News Roundup: March 15-26

NFHA President Testifies Before House Judiciary Committee
(Reading the full testimony is strongly recommended for anyone interested Fair Housing issues.)

On March 11, Shanna Smith of the National Fair Housing Alliance (NHFA) testified before the House Judiciary Committee's Subcommitte on the Constitution, Civil Rights and Civil Liberties, with a presentation titled "Protecting the American Dream: A Look at the Fair Housing Act."

The testimony emphasizes that in spite of our efforts, the nation still falls "dramatically short of reaching the actual goals of the Fair Housing Act" which is designed to "eliminate housing discrimination and to promote residential integration." "While people are working together in greater numbers than ever before--many go home each night to racially segregated neighborhoods."

Shanna "explores the nature and extent of housing discrimination as it is manifested today, how enforcement action is moving from the individual case by case format to addressing systemic segregation and discrimination, albeit slowly, and why systemic enforcement actions using disparate impact arguments can make important and needed progress in achieving the Congressional intent of the law. I also discuss how the Fair Housing Act could still be improved to fight discrimination against additional protected classes and to address other issues that have arisen since 1968. Finally, I discuss the recommendations necessary to make enforcement of the law effective." (Full Testimony Here)

The issue highlights numerous significant developments in the Fair Housing field.

HUD Launches Website to Gather Public Comment on LGBT Housing Discrimination Study
It is no longer necessary to attend one of HUD's official LGBT discrimination study listening sessions after the introduction of a new website that allows for public comment over the internet (Press Release and "Online Suggestion Box").

Can the FHA prohibit racist expressions where the first amendment does not?
Michael Corrigan, 62, of West Beverly neighborhood in Chicago, had signs on his property for nearly a year which read, "Say no to the ghetto," "White power," "Mt. Greenwood - the next Englewood," a sticker reading "White Pride Worldwide," and a tiny noose hanging from his garage.

Chicago Human Relations Commission chairman Dana Starks stated that the display "may have crossed the line into violations of federal and state fair housing laws that prohibit interferences with the purchase and sale of housing based on race."

The Commission is urging federal and state authorities to take notice of the issue and possibly charge Corrigan for any violations they may find.

Spokesman Kenneth Gunn of the Commission suggested that the signs may have a "chilling effect" on minorities looking to buy a home in the area (Chicago Examiner Article).

Recently, Fox News, through a freedom of information request, obtained a copy of the letter sent to the United State's Attorney General Eric Holder by the Chicago Commission on Human Relations in which "Commissioner Starks said the Chicago Fair Housing Ordinance is not applicable in this case, but the federal Fair Housing Act is. The Act allows for the feds to take action when intimidation is used to discourage people from buying a home because of their race."

Can the FHA prohibit offers of "free rent" to females posted on Craigslist?
The Housing Opportunities Made Equal of Virginia (HOME) has filed 20 complaints with HUD over Craigslist ads offering free rent to women, some of which detail feature characteristics like light skin, and are thought to be solicitations for sex.

Can the FHA's prohibition on advertisements targeted towards a specific gender help stop these alleged offers of sex for housing? Investigator Amy Nelson of HOME believes it can (Full Article Here).

Another Craigslist Quandary: "Bro Palace-America"
The ad seeks a "bro of epic proportions" to join a group of bros who "like to party hard and bang chicks even harder…in this "Temple to Broseidon." Is there a way around NIMBY? (Full Article Here).

New Book, 'Not in My Neighborhood: How Bigotry Shaped a Great American City' by Antero Pietila
"The bottom line is this: Gentiles excluded Jews and blacks from their neighborhoods using both legal and illegal means. Unscrupulous speculators took advantage of home sellers and buyers. Mortgage companies redlined neighborhoods where people could not get a regular mortgage, forcing them to rely on unscrupulous rent-to-buy schemes. With blockbusting techniques, flipping, and subprime mortgages, Baltimore neighborhoods and bank accounts were destroyed - to say nothing of people's souls" (Baltimore Sun Review).

News Roundup: March 8-14

LGBT Developments
National Gay and Lesbian Task Force calls on federal lawmakers to amend the FHA.

Congressman Joe Sestak announced the submission of his Housing Non-Discrimination Act to amend the FHA so that it includes a prohibition on discrimination of LGBT persons.

Subsidiaries of American International Group have agreed to settle over allegations of charging higher broker fees for subprime loans to African American borrowers for a total of $7.1 million. This marks the first case in which a lender has been charged for such fee discrimination.

The Miami Valley Fair Housing Center filed a discrimination suit against The Connor Group for posting a Craigslist advertisement that read: "a great bachelor pad for any single man looking to hook up." It is being alleged that the advertisement discriminates against women by showing a preference for single males.

A federal judge has given the city of Baltimore more time to narrow its allegations against Wells Fargo for targeting black neighborhoods for bad loans which have resulted in foreclosures costing the city tens of millions of dollars. See here for analysis of the original dismissal.

"The Green Book" 2010 supplement, the Bible outlining the laws and rights of tenants and applicants of HUD assisted housing, is now available.

Mar 10, 2010

What Obama's Proposed Inclusionary LGBT Housing Rule Does and Does Not Do

The U.S. Housing and Urban Development Department conducted a listening session on Thursday in an effort to gather input on how to design the first-ever national survey of LGBT housing discrimination. The session was hosted at Chicago's city hall and included over a dozen members of the gay community, fair housing advocates and government officials who shared their stories and perspectives on the issue. (Full Washington Post article here).

One concern expressed the need for testers to "think of a way to make it clear that this is a gay couple and not just two men who really can't afford to do anything than get a single apartment with a single room," said John Knight of the ACLU.

This marks one of the first steps by HUD to fulfill their promise made in October of assuring the LGBT community inclusion in HUD programs. (Full Press Release Here).

In that press release HUD Secretary Shaun Donovan announced, "The evidence is clear that some are denied the opportunity to make housing choices in our nation based on who they are and that must end. President Obama and I are determined that a qualified individual and family will not be denied housing choice based on sexual orientation or gender identity."

The administration intends to achieve this goal in three ways:
1) through the promulgation of a rule that clarifies the term "family" in HUD's public housing and Housing Choice Voucher programs to include otherwise eligible LGBT individuals and couples; 2) require grantees and those who participate in the Department's programs to comply with local and state non-discrimination laws that cover sexual orientation or gender identity; 3) specify that any FHA-insured mortgage loan must be based on the credit-worthiness of a borrower and not on unrelated factors or characteristics such as sexual orientation or gender identity.

As evidence that this is an issue of national concern, Michigan in 2007 issued a report finding that nearly 30 percent of same-sex couples were treated differently when seeking housing (Michigan's full report here).

What does this mean for the LGBT and fair housing communities?

First, the rule does not change the Federal Fair Housing Act to include the LGBT community. LGBT persons can still be denied the sale or rental of housing on the basis of this status under federal law. While many people have expressed disappointment with this deficiency in the proposed rule, such a revision of the FHA would almost certainly be struck down in the federal courts on the basis that the President exceeded his executive powers in an attempt to legislate from the White House. The only promulgation I could conceive of as possibly escaping this Separation of Powers issue is HUD rule defining the meaning of "sex" to include gay, lesbian, bi, and transgender persons. While court's are required to grant Administrative agencies great deference in their interpretations of statutes, the courts would likely strike the rule down as an abuse of discretion in statutory interpretation.

Though the rule does not propose to change the FHA, the commissioned national study likely has that purpose. The release of that report will be used by LGBT and equal rights interest groups to place pressure on the legislature to pass an LGBT inclusive amendment. It is important to note however that while federal law is deficient in this area, 17 states and 80 cities have included LGBT provisions in their own housing laws.

Second, as many are unaware, The Housing Choice Voucher Program refers to what is more widely known as Section 8 housing. The proposed rule would make it illegal for HUD to discriminate against the LGBT community in the distribution of these housing subsidies. Presently, HUD agents could deny such vouchers to LGBT couples on the basis that they do not fit within the program's definition of family; hence the rule clarifying what "family" actually means in order to include LGBT persons.

Third, if my reading of the press release is accurate, the new rule would require landlords receiving section 8 vouchers to comply with those state and municipal laws that have LGBT inclusive provisions.

Finally, the rule would prohibit the Federal Housing Administration, a government agency created in 1934 under the National Housing Act to provide home financing through the insurance of mortgage loans, from discriminating against the LGBT community in the granting of FHA-insured mortgages. More on FHA insured mortgages here.

Mar 9, 2010

Children in Search of a Place to Play

While the bylaws prohibit anyone from playing organized sports on the grounds of the complex, the condo association is being sued for discriminatory enforcement of condo rules against families with children. See full article here.

More Stringent Standard for Organizational Standing and the Need to Keep an Eye on this Issue.

Equal Rights Ctr. v. Post Props. 657 F. Supp. 2d 197 (D.D.C. 2009)

Decided September 28, 2009

This case stands on the principle that organizational standing is not available when an organization's injury is self-inflicted. Whether we are seeing a more stringent principle being promulgated, a refinement in the law or a case of bad strategy is unclear.

Equal Rights Center ("ERC"), an organization devoted to advancing civil rights and fair housing for everyone, brought suit against Post Properties for allegedly failing to bring their buildings into compliance with accessibility provisions in the American Disabilities Act ("ADA") and Fair Housing Act ("FHA"). Post Properties owns and manages more than 21,000 apartment units across five states. According to the Court's description of the facts, ERC, on its own accord, chose to investigate one of Post's buildings to determine whether they were in compliance with accessibility laws.

The issue in the case is not whether Post actually violated accessibility laws but whether ERC had the authority to file suite and come before the court as an organization. To get before a court of law, Article III of the Constitution requires the plaintiff to have "suffered a concrete and particularized injury that is actual or imminent, traceable to the challenged act, and redressable by [the] court." Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Whether organizations have standing to sue on behalf of injured persons is not at issue here. The issue is whether organizations have standing in their own right, independent of its individual member's injury. While injury to an organization representing the interests of a particular class of persons may seem less concrete and particularized than that of an individual who is unable to rent from Post because a unit's doorway is not wide enough to fit a wheelchair, the Supreme Court has granted organizations standing before the court without necessarily creating a special exception. Haven's Realty Corp v. Coleman, 455 U.S. 363 (1982).

In Haven's, the Court ruled that a nonprofit corporation devoted to equal housing access had standing against a defendant's racial steering practices because steering frustrated its mission to assist minorities in accessing housing. Id. Additionally, the nonprofit, in providing such services, had to expend substantial resources in identifying violations of the law in the community they served. Even if no economic resources had been expended, the court noted that an organization is not deprived of organizational standing when the alleged injury results from the organization's non-economic interest in encouraging open housing. The nonprofit merely has to demonstrate that it "suffered impairment in its role of facilitating open housing." Id. at 379.

According to the court in Equal Rights Center, the standing doctrine in Haven's does not however extend to where a plaintiff's injury "merely consists of the impact on its activities caused by their willful diversion of resources in response to the defendants' conduct." Equal Rights Ctr. v. Post Props. 657 F. Supp. 2d 197 (D.D.C. 2009). Thus, organizational standing will not be found when the injury to the plaintiff is said to be purely self-inflicted and arising solely out of their own decision to expend resources. Id. at 201.

Through its interpretation of the discovery proceedings, the court here determined that ERC essentially conceded that its injuries were caused by its own decision to investigate the Defendant. This lead to the finding that ERC's injuries were purely self-inflicted and thus falling outside the scope of standing law provided in Haven's.

Whether this decision marks a tightening of Organizational Standing law or wrong strategy is unclear. It seems that the court should have recognized that ERC's ability to provide the service of referring persons to handicapped accessible housing was impaired by the Defendant's alleged failure to comply with accessibility standards. The fewer handicapped accessible units (required by law) within a community, the more difficult it will be for ERC to fulfill its mission of providing equal housing to persons with a handicap. It is also possible; however, that ERC did not sufficiently plead this injury; in which case, the court is not required to supplement deficiencies on behalf of either party. (While the true facts of the suite are unclear, it is always prudent to file a case with a bona-fide plaintiff who was looking for accessible housing and join them in the claims against Defendant).

On the other hand, this case, if appealed, may change the interpretation of the long standing requirements set forth in Haven's. Perhaps this case represents a movement away from finding organizational standing in situations where the injury to an organization's mission is less concrete.

Mar 5, 2010

$7.4 Million Retrofitting Case

Retrofitting housing units to comply with accessibility requirements under the FHA for persons with disabilities is expensive. A.G. Spanos Companies, the nation's fifth-largest housing developer, understands this fact quite well after settling for an estimated $7.4 million for non-compliance with FHA building standards.

According to the press release, "Under the agreement, the nation’s fifth largest builder of residential real estate will retrofit properties in Arizona, California, Colorado, Georgia, Florida, Kansas, Missouri, Nevada, New York, North Carolina, and Texas at an estimated cost of $7.4 million."

The FHA provides that since 1991 new construction of multifamily dwellings with four or more units be required to have accessible ground floor units where there is no elevator and accessibility for all units in buildings with an elevator. This is true for both public and private housing except in rare instances where steep terrain makes accessibility standards impracticable.

It is not uncommon, as was the case here, for city building inspectors to approve new construction of housing developments that do not comply with the FHA. This just shows how disparate local building codes are from the FHA requirements. The Fair Housing Accessibility First Initiative was designed to promote compliance nationwide with the FHA. The present settlement will contribute to this initiative in numerous ways that are detailed in the Press Release.