Petition for Writ of Certiorari — Julie Ellen Wartluft, fka Julie Ellen Bartels, et al., Petitioners v. The Milton Hershey School, et al.

No. 21-_______

In the Supreme Court of the United States

JULIE ELLEN WARTLUFT, f/k/a Julie Ellen Bartels; AND

FREDERICK L. BARTELS, JR., as Administrators of

the Estate of Abrielle Kira Bartels, Deceased,

Petitioners,

vs.

THE MILTION HERSHEY SCHOOL; AND

THE HERSHEY TRUST COMPANY, as Trustee of

the Milton Hershey School Trust,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

John W. Schmehl, Esquire

Counsel of Record

DILWORTH PAXSON LLP

1500 Market Street

Suite 3500E

Philadelphia, PA 19102

(215) 575-7200

jschmehl@dilworthlaw.com

Counsel for Petitioners

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QUESTION PRESENTED

To provide fair housing across the United States is the express

purpose of the Fair Housing Act. See 42 U.S.C. § 3601 et seq. This Act

is also known as Title VIII of the Civil Rights Act of 1968, as amended.

It makes it unlawful to discriminate in the rental, or to otherwise

make unavailable or deny a dwelling to any renter because of a

disability of the renter. 42 U.S.C. §3604(f)(1). To rent is defined in the

Act as to lease or to let or otherwise to grant for consideration the right

to occupy premises. 42 U.S.C. §3602(e). The Milton Hershey School

provides

education

and

housing

to

approximately

2,100

underprivileged students in homes of 10-12 students without requiring

any monetary consideration.

The question presented is whether

participation in a mandatory chore program at the student home as set

forth in an enrollment agreement to remain in residence at the School

is “consideration” under the Act sufficient for the child to qualify as a

renter and thus bestowing the Act’s protections from discrimination in

housing.

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i

PARTIES TO THE PROECEEDINGS

Julie Ellen Wartluft, f/k/a Julie Ellen Bartels; Frederick L.

Bartels, Jr., as Administrators of the Estate of Abrielle Kira Bartels,

Deceased, are petitioners and were plaintiffs-appellants below.

The Milton Hershey School; The Hershey Trust Company, as

Trustee of the Milton Hersey School Trust, are respondents and were

defendants-appellees below.

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, petitioners state as follows:

Petitioners Julie Ellen Wartluft, f/k/a Julie Ellen Bartels and

Frederick L. Bartels, Jr., as Administrators of the Estate of Abrielle

Kira Bartels, Deceased, are not corporate entities. Thus, this rule is

not applicable.

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ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

CORPORATE DISCLOSURE STATEMENT ............................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

APPENDIX TABLE OF CONTENTS .......................................................................... iv

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

CITATION OF OPINIONS BELOW ............................................................................. 1

BASIS FOR JURISDICTION ........................................................................................ 1

STATUTORY PROVISIONS INVOLVED .................................................................... 2

STATEMENT OF THE CASE....................................................................................... 2

A.

Procedural Background. .................................................................................. 5

B.

Factual Background. ....................................................................................... 5

ARGUMENT AND REASONS FOR ALLOWANCE OF THE WRIT ........................ 10

I.

The Third Circuit’s Decision Applied A Narrow Interpretation To The

Definition Of “Consideration” Under The Fair Housing Act That Is Contrary

To The Holdings Of This Court And Other Circuits To The Detriment Of This

Country’s Most Vulnerable Citizens ................................................................. 10

II. The Question Presented Is Exceptionally Important And Warrants This

Court’s Review ................................................................................................... 23

III. This Case Presents A Needed And Ideal Vehicle For Resolving The Question

Presented And Issuing Vital FHA Guidance .................................................... 24

CONCLUSION............................................................................................................. 27

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iii

APPENDIX TABLE OF CONTENTS

Opinions, Orders and Memorandum Entered

in Conjunction with Judgment

Opinion of the United States Court of Appeals for the Third Circuit,

Wartluft et al. v. The Milton Hershey School et al.,

Docket No. 20-1753, 844 Fed. Appx. 499 (3d Cir. Feb. 1, 2021) ............. App. 1a

Judgment of the United States Court of Appeals for the Third Circuit,

Wartluft et al. v. The Milton Hershey School et al., No. 20-1753

dated February 1, 2021 .......................................................................... App. 11a

Sur Petition for Rehearing, United States Court of Appeals for the

Third Circuit, denying rehearing, Wartluft et al. v. The Milton

Hershey School et al., No. 20-1753 (3d Cir. March 16, 2021) ............... App. 13a

Memorandum of the United States District Court for the Middle District

of Pennsylvania, Wartluft et al. v. The Milton Hershey School et al.,

2020 WL 1285332 (M.D. Pa. March 18, 2020) ...................................... App. 15a

Order of the United States District Court for the Middle District of

Pennsylvania, Wartluft et al. v. The Milton Hershey School et al.,

No. 1:16-cv-02145, dated March 18, 2020 .............................................. App. 29a

Other Relevant Memorandum Entered in the Case

Memorandum and Order of the United States District Court for the Middle

District of Pennsylvania, Wartluft et al. v. The Milton Hershey

School et al., 400 F. Supp. 3d 91 (M.D. Pa. 2019) (denying Defendants’

Motion for Judgment on the Pleadings on subject issue) ..................... App. 30a

Statutes Involved in Case

42 U.S.C. §3602(e) ......................................................................................... App. 52a

42 U.S.C. §3604(f)(1) ..................................................................................... App. 54a

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iv

Other Material Essential to Understand Petition

“Milton Hershey School Lawyer Finds Guidance in Dismissal of Student

Suicide Case,” The Legal Intelligencer, February 11, 2021 (the lawyer

“said it’s an important decision for the Milton Hershey School and

possibly other institutions that provide residential programs for at-risk

students.”) ............................................................................................... App. 56a

“Lisa Scullin [spokeswoman for the Milton Hershey School] Statement on

the Milton Hershey School,” The Inquirer, Published November 2, 2016

(“the school estimates that 60-70% of its student body has one or more

physical or psychological impairments that may meet the ADA’s definition

of a disability. Many of these are attributable to the backgrounds of

poverty and need.”) ................................................................................. App. 59a

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v

TABLE OF AUTHORITIES

Page

Cases

Adickes v. S. H. Kress & Co.,

398 U. S. 144 (1970) ................................................................................................. 17

Alexander v. Riga,

208 F.3d 419 (3d Cir. 2000)...................................................................................... 11

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .................................................................................................. 17

City of Edmonds v. Oxford House, Inc.,

514 U.S. 725 (1995) .................................................................................................. 10

Community Services, Inc. v. Wind Gap Mu. Auth.,

421 F.3d 170 (3d Cir. 2005)...................................................................................... 19

Defiore v. City Rescue Mission,

995 F. Supp. 2d 413 (W.D. Pa. 2013) ....................................................................... 17

Gladstone v. Village of Bellwood,

441 U.S. 91 (1979) .................................................................................................... 10

Havens Realty v. Coleman,

455 U.S. 363, 102 S. Ct. 1114, 71 L. Ed. 2d 214 (1982) .......................................... 11

Helen L. v. DiDario,

46 F.3d 325 (3d Cir. 1995)........................................................................................ 11

Hunter ex rel. A.H. v. District of Columbia,

64 F. Supp. 3d 158 (D.D.C. 2014) ............................................................................ 18

In re City of Phila. Litig.,

158 F.3d 723 (3d Cir. 1998)...................................................................................... 15

Lloyd v. HOVENSA,

369 F.3d 263 (3d Cir. 2004)...................................................................................... 15

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vi

McDonnell Douglass Corp. v. Green,

411 U.S. 792 (1973) .................................................................................................. 19

Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mount Holly,

658 F.3d 375 (3d Cir. 2011)...................................................................................... 11

Perrin v. United States,

444 U.S. 37 (1979) .................................................................................................... 12

Reeves v. Sanderson Plumbing Products,

530 U.S. 133 (2000) .................................................................................................. 16

Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96 (3d Cir. 2017) .......................... 11

Salisbury v. City of Santa Monica,

No. 20-55039, 2021 BLK 210276, 2021 US App. Lexis 16848 (9th Cir. June 7,

2021) (Amended Opinion of that at 994 F.3d 1056 (9th Cir. 2021)........................ 13

Tolan v. Cotton,

572 U.S. 650 (2014) (per curiam) ............................................................................. 16

Trafficante v. Metro. Life Ins. Co.,

409 U.S. 205 (1972) .................................................................................................. 10

U.S. v. Columbus Country Club,

915 F.2d 877 (3d Cir. 1990)...................................................................................... 10

Wartluft v. Milton Hershey Sch. & Sch. Tr.,

400 F. Supp. 3d 91, 108 (M.D. Pa. 2019) ................................................................. 27

Statutes

28 U.S.C. §1291 .............................................................................................................. 5

28 U.S.C. §1331 .............................................................................................................. 5

42 U.S.C. §3602(e)................................................................................................ passim

42 U.S.C. §3602(h) ....................................................................................................... 26

42 U.S.C. §3604(f)(1) ............................................................................................ passim

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Rules

Fed. Rule Civ. Proc. 56(a) ............................................................................................ 17

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PETITION FOR A WRIT OF CERTIORARI

Julie Ellen Wartluft, f/k/a Julie Ellen Bartels, and Frederick L. Bartels, Jr.,

as Administrators of the Estate of Abrielle Kira Bartels, deceased, respectfully

petition this Court for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Third Circuit in this case. The Administrators were

also individual plaintiffs in the appellate court proceeding.

CITATION OF OPINIONS BELOW

The Opinion of the Court of Appeals for the Third Circuit (App.1a-10a) is

unpublished and non-precedential. Wartluft, et al. v. The Milton Hershey School et

al., 844 Fed. Appx. 499 (3d Cir. 2021), No. 13-1415 (the “Panel Opinion”). The

Memorandum of the United States District Court for the Middle District of

Pennsylvania (App. 15a-28a) is available at 2020 WL 1285332 (M.D. Pa. 2020). The

Memorandum and Order of the District Court for the Middle District denying the

Defendants’ Motion for Judgment on the Pleadings on the issue that is the subject

of this Writ is reported at 400 F. Supp. 3d 91 (M.D. Pa. 2019). There are no related

proceedings.

BASIS FOR JURISDICTION

The Court of Appeals entered judgment on February 1, 2021. App. 11a-12a.

Petitioners timely filed a petition for rehearing or rehearing en banc, which the

Third Circuit denied on March 16, 2021. App.13a-14a. This Court has jurisdiction

under 28 U.S.C. §1254(1). Pursuant to this Court’s Order of March 19, 2020, the

deadline to file this Petition for Writ of Certiorari has been extended to 150 days

from the order denying a timely petition for rehearing, which is August 13, 2021.

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STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are from Title VIII of the Civil Rights Act

of 1964, as amended. Title VIII is the Fair Housing Act (the “FHA” or the “Act”).

The two relevant statutes include 42 U.S.C. §3604(f)(1), which makes it unlawful

“[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a

dwelling to any buyer or renter because of a handicap of – (A) that buyer or renter.”

The second relevant statute is 42 U.S.C. §3602(e), where “to rent” is defined in the

Act as “includes to lease, to sublease, to let and otherwise to grant for a

consideration the right to occupy premises not owned by the occupant.”

STATEMENT OF THE CASE

Are society’s neediest, most vulnerable youth — ones in institutional care —

children of a lesser god? Are their labors unworthy of the solemn protections

afforded by our civil rights laws, like “tramps given a free meal” and not permitted

to complain even if their mistreatment may be so abjectly cruel as to drive them to

take their own lives?

The Third Circuit has answered these questions in the affirmative.

This

Honorable Court is called on to revisit that improvident conclusion and determine

that even children in institutional care are protected by our nation’s disability laws

for their housing when that institution requires the children to perform work for its

benefit.

This case arises from a novel question concerning the scope of standing to sue

for discrimination under the Fair Housing Act of 1968, as amended, and the proper

construction of 42 U.S.C. §§3604(f)(1) and 3602(e) of the Act, which as relevant

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2

herein, only protects “renters” from discrimination and requires those invoking the

Act to have provided “consideration” for their housing.

Supreme Court Rule 10(c) provides that this Court considers in review of a

writ whether a United States court of appeals has decided an important question of

federal law that has not been, but should be, settled by this Court, or has decided an

important federal question in a way that conflicts with relevant decisions of this

Court.

Appellants submit that protecting our nation’s most vulnerable citizens from

the tragedy exhibited here presents a case of such importance. The harms done to

this class of disabled children here will concomitantly undermine the federal

housing rights of this country’s most vulnerable citizens, in contexts as varied as

residential schools, universities, residential drug treatment facilities, and homeless

shelters. By focusing on what constitutes “consideration” for purposes of invoking

civil rights protections when no money changes hands, this case provides an

opportunity for the Court to clarify this as yet obscure issue. In addition, it is

submitted that the Panel Opinion applied a narrow construction to a statutory

provision of civil rights law, where a broad construction was required by this

Court’s precedents.

By definition, our nation’s most indigent lack cash and so perforce make it up

in trade whether by sweeping, cleaning, other meaningful chores, teaching,

residential assistance, picking produce, or any number of methods. These citizens

should not be denied protection if any construction of the statute allows it. These

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citizens simply should not be denied the federal civil right to be free from

discrimination in their housing merely because they do not have any money and

there is a substantial element of gratuitous benefit provided beyond what the labors

of their hands can generate.

So too with tenderhearted Abrielle Bartels, a 14-year old girl who fate placed

in a residential care facility and who needed the protection of federal law that would

have prevented the discrimination she faced; viz, to be suspended or effectively

expelled merely for suffering a bout of adolescent depression, while she was being

professionally treated, which would have been prohibited under the Fair Housing

Act. By improperly reading the Act narrowly to exclude such children and their

labors from the definition of “renters,” the Panel Opinion, as did the District Court,

frustrates the remedial purpose of the Act and truncates its protections for the class

who need it most: those who have no resources and thus can only barter. This

reading unduly demeans such consideration as chores provided by citizens in many

settings and, here, all students at the facility in question, including young Abbie

who, as a condition of continued residence at the facility, was required to provide

chores.

The Panel Opinion essentially holds that there is no degree of services

provided by a child at a tuition-free residential school that would be sufficient to

claim a civil rights protection to be free from housing discrimination. The Panel

Opinion says that our poorest kids are not protected by our nation’s housing civil

rights laws because their labors can never be consideration under the Act. This is

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an irrational inversion of what should be the case: our courts should resolve every

doubt in favor of protecting such disabled children, not throwing them to the wolves.

A.

Procedural Background.

This case comes on appeal from a District Court order granting summary

judgment to the Defendants on all counts, and affirmed by the Third Circuit Panel

Opinion. Final judgment was entered in the District Court on March 18, 2020, and

a timely notice of appeal was filed on April 7, 2020. The District Court exercised its

subject matter jurisdiction pursuant to 28 U.S.C. §1331 over the FHA claim. The

Court of Appeals had subject matter jurisdiction pursuant to 28 U.S.C. §1291.

In

the Amended Complaint at issue, Plaintiffs claimed, in part, that the School

violated the FHA. It is only the FHA claim that is the subject of this Petition.

B.

Factual Background.

At the tender age of 5, with parents whose tragic circumstances left them

unable to adequately care for her, Abrielle Kira Bartels (“Abbie”) landed at the

Milton Hershey School (the “School” or “MHS”), a residential K through 12 school

for underprivileged children founded as an orphanage in 1909. The uncontroverted

facts highlight the travesty of what followed: the School made a premature decision

on or before June 12, 2013 to bar Abbie’s continued enrollment, at the age of

fourteen, merely because Abbie needed a short-term admission to a mental health

treatment facility for suicide ideation a second time.

This setback from Abbie’s first treatment was eminently treatable.

Nonetheless, eager to rid itself of a child it viewed as a problem, the School made a

decision to immediately bar Abbie from stepping foot on campus for at least 14

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5

months; i.e., a de facto expulsion dressed up as a “leave of absence.”

Notably,

Abbie’s admission to the second mental health facility that treated her, the

Pennsylvania Psychiatric Institute (“PPI”), occurred on June 11, 2013 (Panel

Opinion at 4); i.e., a mere one day before the School decided to send her away. In

fact, Abbie’s mother was told before the second admission that Abbie would not be

allowed to return to the School for at least the entire next school year.

It is thus facially obvious that the termination decision was premature

because it was made at the outset of treatment, not after treatment, nor even

during treatment. The decision was also taken with no individualized assessment

to be made after treatment, whether in June 2013, or in August 2013 before the

start of a new school year, or anytime thereafter during the entire next school year,

which would have been 9th grade for Abbie.

Instead, the School made its

determination based entirely on Abbie’s need for a second admission in a robotic

manner that flouts both medical standards and civil rights laws.

Abbie’s School psychologist even admitted under oath that the School never

made any determination as to whether it could meet her needs before or after this

second treatment. This action was discriminatory on its face because mental health

was the sole reason for barring Abbie from the School after nine years in residence

there, the only real home she had known. Then, one day after Abbie was cleared by

PPI to return to the School, the School compounded its error by harshly disinviting

her from her own 8th grade graduation and after-party at her student home, where

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her possessions remained in her room. That denial was itself a discriminatory act

independent of barring Abbie from returning for 9th grade.

The brutally abrupt rescission of the invitations came the very day before the

events, again without any assessment of Abbie’s condition by the School, or whether

any accommodation could have been offered to allow her to attend these events.

Contrary to the Panel Opinion and what any fair understanding of the psyche of a

14-year old girl would lead one to conclude, there was patent evidence that Abbie

was devastated: this poor child killed herself, which was certainly sufficient

evidence for the Plaintiffs in this case to have prevailed on defending summary

judgment, where every inference is to be given the non-moving party and all doubts

resolved in its favor.

Indeed, just before the suicide, the School had further

compounded Abbie’s distress, consigning her to wonder what her fate was, by not

telling her its conclusions in a timely manner.

The School told Abbie and her

mother in unambiguous terms that the only options on the table were a total

termination from the School or possibly a long-term leave of absence and possible

return afterwards on certain conditions not imposed on other students. All of that

caused Abbie to lose hope for her future, crying on the morning of her suicide that

she did not want to live away from the School.

None of these facts are controverted and the only real question is whether

this child was protected by the civil rights law of this country or, instead, was

thrown under a legal bus after the School threw her under an emotional one.

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The FHA Count of the Amended Complaintwas dismissed solely on the

grounds that Abbie’s residence at the School was completely gratuitous, without

any consideration provided by Abbie to the degree necessary to invoke the FHA.

Both the District Court and the Court of Appeals rejected the position that the

School’s highly-touted mandatory chore program, with a history dating back to

1908, was consideration for her residence at the School.

Those determinations

precluded Abbie from renter status under the FHA, with no standing to bring a

claim.

The result is incongruous, veers sharply from the liberal construction

afforded such remedial laws as the FHA, and produces a manifestly unjust outcome.

The uncontroverted record is replete with evidence demonstrating that the

mandatory chore program is more than sufficient to provide “a consideration” for

purposes of invoking the Act. The Panel Opinion minimized such evidence, which

created triable issues of fact as to the supply of consideration. Among the evidence

that made Abbie a renter within the Act were, inter alia, the following:

(1)

the mandatory chore program was birthed simultaneous with the

School and dates back to the original Deed of Trust, wherein students were

expressly required to work on the School’s farms of that era, which were owned by

the School Trust;

(2)

as a strict condition of enrollment for every child at the School, the

child or the child’s parent/sponsor, must sign an enrollment agreement requiring

the student to comply with the rules, including specific mention of doing chores at

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the student home — a fact that standing alone calls into question the Panel

Opinion;

(3)

the School does not contest that the chore program exists or that there

is a discipline policy at the School that would include points for insubordination at

the student home, that could ultimately lead to the loss of college aid or expulsion;

and

(4)

the chores included items otherwise deemed FHA consideration such

as cleaning, grounds maintenance, cooking, and the like.

All this notwithstanding, the Panel Opinion narrowly construed the FHA’s

“for a consideration” requirement of renter status necessary to invoke FHA

protection despite a record that could support a conclusion in favor of the nonmoving party.

This is plain error thay disproportionately affects a highly

vulnerable class of children and invites mistreatment of other disenfranchised

constituencies who, rather than paying cash, earn what keep they can with what

humble labor they can provide. Indeed, in reaching its conclusion deeming Abbie

unworthy of FHA protection, the District Court applied an analogy likening Abbie

to a “tramp” given a free sweater and who may not then be heard to complain later

if that free sweater is not given even if that child must work to keep that sweater.

Something has gone tragically wrong with our nation’s system of federal disability

protection if that is in fact how such children are viewed.

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ARGUMENT AND REASONS FOR ALLOWANCE OF THE WRIT

I.

THE THIRD CIRCUIT’S DECISION APPLIED A NARROW

INTERPRETATION

TO

THE

DEFINITION

OF

“CONSIDERATION” UNDER THE FAIR HOUSING ACT THAT IS

CONTRARY TO THE HOLDINGS OF THIS COURT AND OTHER

CIRCUITS TO THE DETRIMENT OF THIS COUNTRY’S MOST

VULNERABLE CITIZENS

The Panel Opinion conflicts with decisions of this Supreme Court and the

Third Circuit requiring that the terms of the Fair Housing Act be recognized as

providing a “broad and inclusive” compass and therefore accorded a “generous

construction.” The Supreme Court has emphasized that the language of the FHA is

“broad and inclusive” and must be given a “generous construction,” in order to carry

out a “policy that Congress considered to be of the highest priority.” Trafficante v.

Metro. Life Ins. Co., 409 U.S. 205, 212 (1972); as summarized in U.S. v. Columbus

Country Club, 915 F.2d 877, 883 (3d Cir. 1990). This Court has stated that the FHA

“broadly prohibits discrimination in housing throughout the Nation.” Gladstone v.

Village of Bellwood, 441 U.S. 91, 93 (1979).

Standing that mandate upside down, the Panel Opinion has instead

eviscerated the reach of the FHA and provided the School with a full exemption

from it, despite an express admonition from the Supreme Court that FHA

exemptions are to be “read narrowly in order to preserve the primary operation” of

the national policy of fair housing. City of Edmonds v. Oxford House, Inc., 514 U.S.

725, 731-732 (1995).

That approach is troubling especially because the Third

Circuit, laudably, has addressed another FHA question within this Court’s remedial

framework and noted: “In answering this question, we are mindful of the Act’s

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stated policy ‘to provide, within constitutional limitations, for fair housing

throughout the United States.’ § 3601. We also note precedent recognizing the

FHA’s ‘broad and inclusive’ compass, and therefore according a ‘generous

construction’ to the Act’s complaint-filing provision.” Id. at 732.

The Third Circuit, citing to the House Judiciary Committee, has recognized

that “the Fair Housing Amendments Act . . . is a clear pronouncement of a national

commitment to end the unnecessary exclusion of persons with handicaps from the

American mainstream.” Helen L. v. DiDario, 46 F.3d 325, 333 n.14 (3d Cir. 1995)

(emphasis in original) (citation omitted). The Panel Opinion ignored this case law

on generous construction.

Further, in Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96, 110 (3d Cir.

2017), the Third Circuit concluded that “[t]he Fair Housing Act was intended by

Congress to have ‘broad remedial intent.’ Alexander v. Riga, 208 F.3d 419, 425 (3d

Cir. 2000) (quoting Havens Realty v. Coleman, 455 U.S. 363, 380, 102 S. Ct. 1114, 71

L. Ed. 2d 214 (1982)); see also Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of

Mount Holly, 658 F.3d 375, 385 (3d Cir. 2011) (‘The FHA is a broadly remedial

statute . . . .’), cert. dismissed, 134 S.Ct. 636 (2013).” Clearly, the Third Circuit in

other circumstances hews to the Supreme Court’s FHA guidance.

The appeal under the FHA claim is limited to 42 U.S.C. §3604(f)(1), which

requires Abbie to qualify as a renter. The definition of “to rent” in the FHA is, in

part, “to grant for a consideration the right to occupy premises not owned by the

occupant.” 42 U.S.C. §3602(e). When interpreting a statutory term, we first give

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effect to statutory definitions and then to the term’s “ordinary, contemporary,

common meaning.”

Perrin v. United States, 444 U.S. 37 (1979).

“[F]or a

consideration” is not further defined, but of the multiple definitions of consideration

in Merriam-Webster’s Dictionary (2021), the most generous and applicable should

be its simple common usage of a “recompense, payment.” It is submitted that any

contemporary context should surely include as consideration mandated chores at a

residential school for children, as we are far past the point of disregarding child

labor under Federal law.

Based upon Supreme Court precedent, the Panel Opinion should merely have

examined whether Abbie agreed to provide meaningful chores for her residence at

the School. The Panel Opinion (at 5) unduly narrowed Abbie’s rights under the

FHA by suggesting that all that mattered was the complex Black’s Law definition of

consideration as “[s]omething (such as an act, a forbearance, or a return promise)

bargained for and received by a promisor from a promise; that which motivates a

person to do something.” While the School Enrollment Agreement would satisfy

this definition by mandating compliance with the chore program, the more generous

construction is that “a consideration” means merely that Abbie provided something

of value (recompense) in exchange for her residence.

Veering sharply from the Supreme Court directive to construe the FHA

broadly, the Panel Opinion instead chose the most restrictive possible definition of

“a consideration,” as if it wanted to see an arm’s length negotiation between the

School and the child resulting in specified contract terms. This was even though

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the Panel Opinion acknowledged that consideration need not be provided in cash.

Abbie of course gave consideration in the form of chores, required by an actual

contract (the Enrollment Agreement), and mandated in a School Handbook (at 3, 30

and 37) in order to remain in the student home.

Rejecting the plain fact of chores as consideration (as supported by the

Enrollment Agreement), the Panel Opinion instead analogized chores to homework.

But homework, of course, is not in any way “a consideration” given to the School.

Unlike homework, chores are performed for the benefit of the student home or for

maintenance of School facilities. The School would have to hire staff to keep the

group homes clean, cook, and maintain the grounds if students did not do chores.

However, no one would be hired to do a student’s homework.

To deny Abbie the status of a renter, one must conclude that Abbie provided

nothing of value to the School in order to continue her residence there, a factually

unsupportable conclusion as a matter of fact and law. Said another way, the Panel

Opinion would conclude that no amount of chores imposed on a child as a condition

of residence could ever be sufficient to qualify as consideration to allow standing

under the FHA.

The Ninth Circuit Court of Appeals recently had cause to discuss the concept

of FHA consideration in Salisbury v. City of Santa Monica, No. 20-55039, 2021 BLK

210276, 2021 US App. Lexis 16848 (9th Cir. June 7, 2021) (Amended Opinion of

that at 994 F.3d 1056 (9th Cir. 2021). Salisbury brought a claim under the FHA as

a holdover tenant of his father’s lease, but had no rental agreement and paid no

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13

rent.

The Court denied him standing, finding that there was no evidence he

performed “any act” other than the payment of rent that could satisfy the

consideration requirement.

The Ninth Circuit, however, made every effort to

broadly define “consideration” with multiple meanings, including a broad Black’s

Law Dictionary (2d ed. 1910) definition of consideration as “Any benefit conferred, or

agreed to be confirmed, upon the promisor . . . to which the promisor [i]s not

lawfully entitled.” (Emphasis added.) 994 F.3d at 1064.

In the course of the Panel’s decision, its sharpest departure from applicable

standards and controlling law came in its reliance on a statement by the School’s

counsel made during oral argument for the first time, having never before been

introduced anywhere in the proceedings. Panel Opinion at 6. “[A]s the School’s

counsel explained at oral argument, if a student could not physically perform

chores, the School would not deny her education or housing. The School housed

Abbie out of charity. That free student housing falls outside the Act.”

First, counsel’s statement, as then interpreted by the Panel, should not have

been afforded any weight at all, let alone used to reach a final conclusion. This is

because it asserted (1) facts not in evidence; (2) an argument raised for the first

time at the oral argument after submission of the briefs; and (3) it puts the rabbit in

the hat by concluding that charity precludes any analysis of labor as consideration.

The Panel Opinion’s reliance on this statement to conclude that chores were not

truly required as a condition of residence for the vast majority of students who can

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14

perform physical chores clearly violates Supreme Court precedent.

It is also

contrary to the School Handbook and other material given to students.

As the Third Circuit itself explained: “Our Circuit adheres to a wellestablished principle that it is inappropriate for an appellate court to consider a

contention raised on appeal that was not initially presented to the district court.”

Lloyd v. HOVENSA, 369 F.3d 263, 272–73 (3d Cir. 2004) (quoting In re City of

Phila. Litig., 158 F.3d 723, 727 (3d Cir. 1998)). Thus, the Panel Opinion’s reliance

on this statement constitutes a further indication of the Panel’s error on standing.

While the Panel Opinion accepted counsel’s statement as evidence and entertained

and credited the related argument, its truth was never established or probed, as

would have been the case had the argument been properly raised.

Secondly, assuming arguendo that it was true that a physically disabled child

would not forfeit enrollment, this would only be assured because the FHA would

require that housing accommodations be made for a disability that may have

prevented a child from performing the physical chores. But that accommodation

would not swallow the general rule nor prove the lack of a chore requirement.

Rather, it would prove only that there may be accommodations necessary for

disabilities under Federal law. The exception for a disability proves the rule exists

for all the able-bodied students, including Abbie.

The accommodation could be to provide the disabled child with other chores

to perform, like paperwork for the student home.

But here as well, using a

statement of counsel that appeared from nowhere and with no factual support to

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15

convert the chore requirement solely into an educational experience, also violates

the summary judgment standard of drawing all reasonable inferences in favor of the

nonmoving party. Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000). To

put it another way, the Panel Opinion used an FHA civil rights accommodation to

deny FHA civil rights to the very student it used in its example.

How is that

student supposed to enforce his or her civil right to an accommodation scenario and

not be discriminated against in housing if he or she has no right to that

accommodation in the first instance?

The effect of the Panel Opinion is to use a legal obligation to make

accommodations under the FHA to negate the applicability of the FHA. Clearly, if

the consideration for otherwise free residential housing were chores, the fact that

accommodations were made for a blind child under the FHA does not change the

status of other children who do provide consideration as “renters,” and who should

be entitled to enforce discriminatory conduct under the FHA.

The same would apply to a homeless shelter, where a resident must perform

chores to remain in residence, and therefore qualify as a renter, and which status

cannot be denied merely because a blind resident is given an accommodation.

While the Americans with Disabilities Act (the “ADA”) could also be implicated in

this example, for teenage students the ADA equitable remedies are of limited value

because the student will age out before the case winds through the court system.

In Tolan v. Cotton, 572 U.S. 650, 656-657 (2014) (per curiam), the Supreme

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16

Court articulated the summary judgment standard:

[C]ourts may not resolve genuine disputes of fact in favor

of the party seeking summary judgment . . . a “judge’s

function” at summary judgment is not “to weigh the

evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.”

Anderson, 477 U.S., at 249. Summary judgment is

appropriate only if “the movant shows that there is no

genuine issue as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. Rule Civ.

Proc. 56(a). In making that determination, a court must

view the evidence “in the light most favorable to the

opposing party.” Adickes v. S. H. Kress & Co., 398 U. S.

144, 157 (1970).

The Panel Opinion not only failed to articulate this standard but it viewed the

evidence in the light most favorable to the movant, despite evidence to the contrary,

including on Abbie’s reaction to the news from the School, the finding on counsel’s

statement of the excuse from chores and the very issue of whether the facts support

consideration given by Abbie.

Abbie was a renter under Section 3604(f)(1) because mandatory chores that

benefit the School are consideration. The simplest, universally understood example

making plain the Panel Opinion’s grossly flawed “lack of consideration” error is the

proposal of “Will work for food.” This is the most elementary exchange of mutual

consideration between the haves and have-nots, the affluent and the poor. As the

case law has suggested — see, e.g., Defiore v. City Rescue Mission, 995 F. Supp. 2d

413, 419 (W.D. Pa. 2013) (issue is whether homeless “shelter residents provide some

form of consideration for their stay”) — and contrary to the Panel Opinion, the poor,

the homeless, and, yes, even orphan children, have a right to be free from housing

discrimination when that housing has been provided pursuant to a bargain in which

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17

they are “required” to perform their humble labor, even if meager, in consideration

for continued housing.

A

District

of

Columbia

District

Court

simplified

the

analysis

of

“consideration” under the FHA as follows: “To satisfy this definition, a plaintiff need

do no more than allege that the owner ‘received some consideration for permitting

them to reside in [a] dwelling[ ].’” Hunter ex rel. A.H. v. District of Columbia, 64 F.

Supp. 3d 158, 178 (D.D.C. 2014).

Here, Abbie and other MHS children — like the residents of homeless

shelters where chores must be performed — did provide some consideration,

certainly enough to invoke our nation’s civil rights laws and not cancel them on the

basis of the disturbing “tramp” analogy employed in the opinion below.

That

analogy was likening Abbie to a tramp who receives the charity of a benevolent

man, who offered her a piece of clothing if she walked around the corner to buy it for

herself. The “tramp” in the analogy provides no consideration for the clothing, but

the analysis would be the opposite if the “tramp” had to perform chores (e.g., wash

his car, clean his house, cook his food) for the benefit of the benevolent man to

receive the clothing.

If we were talking about an adult homeless shelter where residents perform

chores necessary to maintain the shelter, the Panel Opinion may have found valid

consideration for invoking protection from housing discrimination on account of

disability. Vulnerable disabled children are no less entitled to federal housing law

protections, even where they benefit from “the charity of strangers” but

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18

nevertheless must earn their keep. This case could determine whether the most

vulnerable children in our society, forced to strike a bargain with a wealthy

institution in exchange for a better chance at a productive life, can be discriminated

against in housing provided by that institution when a condition of the housing is

the sweat of their brow.

The lower court’s ruling is contrary to the law of consideration, the precepts

of the Hershey charity’s founder chore program, and the most basic responsibility of

society to stand by its neediest and most alone children. This Court should find, as

the Panel Opinion ignored, that Abbie’s chores were certainly sufficient to bring her

within the protections of the FHA.

The School’s so called “leave of absence policy,” as described to Abbie’s

mother, facially discriminates by requiring a student with mental health challenges

to complete a full year in public school before being considered for readmission,

solely on account of those challenges. “The protected trait by definition plays a role

in the decision-making process,” making it “per se or explicit discrimination.”

Community Services, Inc. v. Wind Gap Mu. Auth., 421 F.3d 170, 177 (3d Cir. 2005).

Any explanation offered by the School to rationalize its discriminatory action

in denying Abbie attendance at her hard-earned eighth grade graduation, or

excluding her from the grounds of her student home picnic, is clearly a pretext for

the discrimination. See McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802-804

(1973). We know this because when discussing internally what the School should

do if Abbie and her mother appeared at graduation as threatened, the decision was

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19

made (but not communicated) to let Abbie attend without any accommodation even

necessary.

The most preposterous of the School’s claims that Abbie’s chore requirement

was not consideration for continued residence is its argument that there are no

consequences for children refusing to do chores, ostensibly because the MHS

Handbook’s Uniform Discipline Policy fails to expressly include “not doing chores”

— the most obvious of all rule infractions — as subject to discipline. This Hail Mary

argument demonstrates the weakness of the lower court’s opinion that there is no

quid pro quo, as shown below.

As MHS is fully aware, the Enrollment Agreement for each child requires in

Section 4 obedience to all rules and policies, including as concerns chores (“You

agree to enroll your child in the School and to accept and follow the terms of this

agreement.

These rules address behavior, program requirements, visiting

privileges, vacations, studies, chores, substance abuse, and all other matters

relating to your child’s conduct at the School.”). At the end of the agreement, the

student and/or sponsor must acknowledge their “obligations” under the agreement.

The School wants this to be a contract when it suits its purposes, but not when the

consequence is to grant children civil rights. Chores are required seven days a

week. Any reasonable reading of the School’s Uniform Discipline Policy is that the

discipline imposed for the misbehaviors set forth in that Policy are consequences

that would flow from repeated defiance and refusal to do assigned chores.

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20

For example, a Level I violation includes “Disobeying authority” and “failure

to follow student home . . . rules,” a consequence of which is “Extra chores.” One of

those rules concerns the chore program. A Level II violation includes “Unmodified

Level I behaviors, Disrespect to adults (defiance, insubordination),” the additional

consequences of which include “Loss of privileges.”

Level III violations include

“misbehavior that has not responded to Level I or II interventions,” including

“serious acts of defiance, insubordination” and where the add-on consequences

include “Campus work assignments.”

Finally, a Level IV violation includes

“misbehavior of a repeated nature,” where the consequences rise to “Loss of C.E.S.

scholarship” and “Review of enrollment.”

Thus, a child’s continued and repeated defiance in failing to obey chore

assignments in and around the student home that are categorically required in the

Enrollment Agreement, Student Handbook, and other sources in the record would

be grounds for loss of college assistance and termination. The original Deed of

Trust required students to “do such work upon the farms as may suit his capacity.”

Thus, School students have been required to perform meaningful chores for over a

century. Indeed, a child’s insubordination can cause extra chores and campus work

assignments to be imposed resulting in more benefits for the School, unlike more

homework, where there is no benefit to the School.

The punishments noted in the Discipline Policy on misbehaving children that

require more work for the School provide additional consideration for the housing

received.

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This should not even be close: the chores are plainly consideration

21

required by and provided to the School, in exchange for the privileges and benefits

of residing free of monetary charge in School housing. If there is any remaining

question, Section 4 of the Enrollment Agreement completes the circle by providing

that failure to obey School staff and follow rules and policies will result in discipline

and could lead to a child’s dismissal.

Defendants now will say literally anything to avoid accountability for the

singular act of cruelty at the heart of this case. Constantly refusing to do chores

most certainly will get a child expelled from a facility where simply needing

counseling and comfort for depression will get a child removed.

The School’s allegations that it could not provide the services Abbie needed

after her discharge from PPI on June 19, 2013 is belied by substantial evidence in

the record.

Evidence in the record described the vast psychological services

provided at the School. Dr. Herr of the School recorded in a Psychotherapy Note

that he met on May 29, 2013 with Abbie, her mother, her father and her father’s

partner at Philhaven “for a family session.”

Dr. Herr then met with the same

family members and Abbie’s brother at Philhaven two days later. Dr. Herr recorded

participating in a “final family session” five days later. Finally, Dr. Herr meets

with Abbie and her mother on June 13, 2013 at PPI.

The School ignores the

Plaintiffs’ principal argument that the School failed to do an assessment of Abbie’s

needs after her treatment, and, in fact, never even did it before her treatment, by

the very words of Abbie’s treating School psychologist.

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22

Contrary to the School’s position, there is extensive evidence that students

were terminated or placed on leave of absence after a second admission to a mental

health facility. However, Plaintiffs’ discrimination does not rise or fall on a pattern,

as the individual discrimination against Abbie is well-established by the record.

Moreover, Defendants contradict themselves by claiming there is no policy to banish

students after two admissions at the same time they justify banishment by the

defense in one of their briefs that “being hospitalized twice in such a short period

has medical and clinical significance.” So their position is we do not have a policy

but in fact we defend that policy.

Hovering over this case is an unpleasant truth: a mind-bogglingly wealthy

charity has elevated image above all, seeking to rid itself of children like Abbie

rather than help them face adolescent depression. To continue this practice, MHS

has manufactured an FHA escape clause, based on the preposterous claim that

chores are suddenly “voluntary.” This Court should not lend itself to this ruse: our

nation’s disability protections extend even to the needy and vulnerable children

served by MHS.

II.

THE

QUESTION

PRESENTED

IS

EXCEPTIONALLY

IMPORTANT AND WARRANTS THIS COURT’S REVIEW

This appeal thus involves a question of exceptional importance, i.e., whether

an underprivileged child in the care of a residential school for children who cannot

pay tuition, and who instead performs what chores they can for their keep, should

be denied a right to be free from housing discrimination under the FHA. The fact is

that from their initial mandatory enrollment agreement until graduation the child

122206566-5

23

is required to perform chores at their group homes to maintain residence. The

Panel Opinion gives the School the unchecked freedom from the FHA to

discriminate in its provision of housing to minor children, including against those

with a mental health disability. It devalues and thereby contravenes the remedial

purpose of the FHA and diminishes the services that the child gives back to the

School.

Are children in need to be denied a civil right for fair housing because our

courts refuse to value their labor? Should a decision that stands for a proposition

that no amount of services required of a child by an institution providing monetarily

free room, board, and education can constitute consideration be the law of the land?

The answer to both those questions should be a resounding no. What happened

below to Abbie and her family is not merely an affront to their rights but to the

rights of all indigent children suffering from a disability protected by the FHA.

Exempting the Milton Hershey School’s student homes from the FHA would create

an exception at odds with the Act’s purposes and objectives: to eliminate

discrimination in housing.

III.

THIS CASE PRESENTS A NEEDED AND IDEAL VEHICLE FOR

RESOLVING THE QUESTION PRESENTED AND ISSUING

VITAL FHA GUIDANCE

The chore program at the Milton Hershey School is well-documented. It may

not be so well-documented at other private schools, making this an ideal vehicle to

address the issue.

Moreover, if children providing chores for the benefit of the

School can be given standing as renters under the FHA, and their work valued,

then the ruling should easily apply to adult facilities such as half-way houses,

122206566-5

24

residential drug treatment facilities or homeless shelters to the extent there are

required chores as a condition of residence in those places. Further, the School has

already publicly maintained that it is an important decision for residential schools

for

at-risk

children,

inviting

similar

mischief

elsewhere.

See

https://www.law.com/thelegalintelligencer/2021/02/11/milton-hershey-school-lawyerfinds-take-home-lessons-in-ruling-on-students-suicide/.

Appendix

56a-58a.

(the

School’s lawyer “said it’s an important decision for the Milton Hershey School and

possibly other institutions that provide residential programs for at-risk students.”)

This case would have implications for thousands of children at the School

alone. We know this from a written “Statement on the Milton Hershey School”

provided by Lisa Scullin, Vice President of Communications at the School, to The

[Philadelphia] Inquirer, and published therein on November 2, 2016.

This

Statement included the following: “60 to 70% of [the School’s] student body has one

or more physical or psychological impairments that may meet the ADA’s definition

of a disability,” and that “[m]any of these are attributable to backgrounds of poverty

and need.” See Appendix 59a-61a.

The fact that the School boasts of now having avoided any prohibition against

discriminatory practices in its housing, while at the same time maintaining that it

serves primarily a class of children with disabilities is by itself an important reason

why this standing issue is deserving of this Court’s attention. It is an unseemly

legal position and supports the principle that the FHA deserves a liberal

construction so that discrimination in housing can be eradicated, not allowed to

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25

flourish at a school with so many children in protected classes and bountiful

resources.

The FHA should apply liberally where it can to protect indigent children from

discrimination in housing based on a mental or physical disability, which the FHA

refers to as a “handicap.” While not an issue in this case, the definition of handicap

in the Act (42 U.S.C. §3602(h)), is “(1) a physical or mental impairment which

substantially limits one or more of such person’s major life activities, (2) a record of

having such an impairment, or (3) being regarded as having such an impairment.”

Society’s disabled children that fall into one of these broad categories should have

standing under the FHA where they provide labor, even if there is disagreement

about whether a course of conduct constitutes a violation of the FHA.

If there is one further justification for this Court’s review, it is the very two

opinions in the lower court in this case of Middle District Chief Judge John E. Jones

III. These two opinions diverge because of the lack of guidance in this important

issue. In denying Defendants’ Motion for Judgment on the Pleadings on the issue of

whether required chores could constitute “consideration” provided by Abbie, so as to

give her estate standing as a renter, Chief Judge Jones stated:

In their amended complaint, the Estate pleads that

Abrielle performed chores and other tasks in exchange for

residency in the student home. Taking the Estate’s

averments as true, and for the reasons that follow, it has

sufficiently pleaded that Abrielle was a “renter” for

purposes of the FHA.

We first note that Defendants’ position that Abrielle’s

chores were insufficient to bestow upon her the title of

“renter” is unpersuasive. . . As aforementioned, both the

statute and the common law are clear that, a person is a

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26

“renter” for purposes of the FHA if that person provides

consideration in exchange for some interest in property.

Because the Estate has pleaded that Abrielle supplied

consideration in exchange for her housing, the Estate has

demonstrated that Abrielle was a renter under the FHA.

Wartluft v. Milton Hershey Sch. & Sch. Tr., 400 F. Supp. 3d 91, 108 (M.D. Pa. 2019).

As chores were the only consideration ever alleged by the Estate, a conclusion

could be drawn that Chief Judge Jones had a later change of heart when he granted

summary judgment on the FHA claim on the grounds that chores were not

consideration. The other possibility is that Chief Judge Jones found the chores were

not in exchange for housing, but the entire record from the Enrollment Agreement

to the School Handbook establish otherwise. This change of heart is likely because

of the lack of clear guidance on non-monetary consideration provided by a resident

that would otherwise have standing under the FHA, the same as if that resident

had paid cash rent.

While there may exist, arguendo, grounds for claiming that the School’s

suspension or expulsion of Abbie merely because she faced treatable depression is

defensible within the FHA, there should be no disagreement that Abbie and other

indigent children like her are certainly within the protective umbrella of the FHA.

This Court is called on to vindicate the latter proposition alone, leaving for the

District Court and a jury the ultimate factual disposition. This Court’s review is

thus needed.

CONCLUSION

For the reasons set forth above, the Court should grant this Petition for Writ

of Certiorari. This will let justice be done for disabled children who will otherwise

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27

be cast outside the protections of our nation’s civil rights laws, merely because they

are too poor in the eyes of some to qualify for that protection. Surely, the FHA and

our nation’s promise to its vulnerable youth mean more than that.

Respectfully submitted,

/s/ John W. Schmehl

John W. Schmehl, Esquire

Dilworth Paxson LLP

1500 Market Street, Suite 3500E

Philadelphia, PA 19102

Telephone: 215-575-7200

Email: jschmehl@dilworthlaw.com

Dated: August 12, 2021

122206566-5

Counsel for Petitioners

28