Amicus Curiae Brief — Cuyahoga Falls v. Buckeye Community Hope Foundation

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No. 01-1269 NOV 20 2002

IN THE ae

Supreme Court of the Gnited States

CITY OF CUYAHOGA FALLS, ef al.,

Petitioners,

BUCKEYE COMMUNITY HOPE FOUNDATION, ef ai.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE

THE NATIONAL FAIR HOUSING ALLIANCE,

AARP, THE CATHOLIC COMMISSION OF SUMMIT

COUNTY, OHIO AND THE NORTHEAST OHIO

AMERICAN FRIENDS SERVICE COMMITTEE

IN SUPPORT OF RESPONDENTS

JOHN P. RELMAN JOSEPH R. GUERRA*

MEERA TREHAN THOMAS HEALY

RELMAN & ASSOCIATES SIDLEY AUSTIN BROWN &

1350 Connecticut Ave., N.W. WOOD LLP

Washington, D.C. 20036 1501 K Street, N.W

(202) 728-1888 Washington, D.C. 20005

(202) 736-8000

ROBERT G. SCHWEMM

UNIVERSITY OF KENTUCKY

College of Law, Room 209

Lexington, Kentucky 40506

(859) 257-6013

Counsel for Amici Curiae

November 20, 2002 * Counsel of Record

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D C 20001

— — eg D =

TABLE OF CONTENTS

CA Ge FO ch tcccitisissccesssotisnsnnntiasenntenes

Ft RR Se AT SO

SUMMARY OF ARGUMENT ....000000000000ee.

IL.

Il.

THE LOWER COURT PROPERLY

REVERSED THE GRANT OF SUMMARY

JUDGMENT TO PETITIONERS .......00000...0000.....

A. The Evidence, Viewed Most Favorably To

Respondents, Would Support A Finding Of

Intentional Discrimination By City Officials.....

B. The Discriminatory Motives Of Citizens Are

Relevant To Determining Whether Officials

Sought To Give Effect To Those Motives.........

C. Consideration Of Citizen Comments Does Not

Threaten Any First Amendment Rights ............

1. The Governing Evidentiary Framework

Protects The City From Improper

Imputation Of Discriminatory Animus. ........

2. Considered Within The Governing Frame-

work, Protected Speech May Be Used As

Evidence Of Discriminatory Intent ..............

THIS CASE DOES NOT PRESENT THE

QUESTION WHETHER LIABILITY UNDER

THE FHA MAY BE BASED ON DISPARATE

DISPARATE IMPACT IS A VALID BASIS

FOR IMPOSING LIABILITY UNDER THE

(i)

TABLE OF CONTENTS - continued

Page

A. The Text And Purpose Of The FHA Compel

The Conclusion That It Permits A Finding Of

Liability Based On Disparate Impact Analysis. 23

B. The Legislative History Confirms That

Congress Intended To Provide A Disparate

Impact Claim Under The FHA ...................... 25

C. The Fair Housing Amendments Act Of 1988

Tacitly Approved Disparate Impact Analysis... 27

D. Administrative Implementation Of The FHA

Supports A Disparate Impact Standard ............. 28

a csinsesseiniaianinlions 30

ill

TABLE OF AUTHORITIES

CASES Page

Bangerter v. Orem City Corp., 46 F.3d 1491

I ae 24

Betsey v. Turtle Creek Assocs., 736 F.2d 983 (4th

a a a 24, 25

Bowen v. American Hosp. Ass'n, 476 U.S. 610

SEE TERT yee ere one 6

Buchanan v. Warley, 245 U.S. 60 (1917)............. 12, 26

Buckeye Cmty. Hope Found. v. City of Cuyahoga

Falls, 263 F.3d 627 (6th Cir. 2001), pet.

granted, 70 US.L.W. 3788 (US. June 24,

BI CeO sitcinecinncsnccnnssennoneiosencinaniitns 15

Cannon v. University of Chi., 441 US. 677

Ee avemee renner enn sem 27

City of Cleburne, Tex. v. Cleburne Living Crtr.,

Inc., 473 U.S. 432 (1985) ...........ooccceees. 12, 14, 19

Connecticut v. Teal, 457 U.S. 440 (1982) ............. 21

Crawford v. Board of Educ., 458 US. 527

REDS Sa 17

Dothard v. Rawlinson, 433 U.S. 321 (1977).......... 21

Edelman v. Lynchburg Coll., 122 S. Ct. 1145

Sree ee oe oe 27, 28

General Bidg. Contractors Ass'n v. Pennsylvania,

I I cicinerinnceiininniinlagensnhnansiiabncedl 24

Griggs v. Duke Power Co., 401 US. 424

EES. . 21, 23

Hanson v. Veterans Admin., 800 F. 2d 1381 (Sth

SS, Tso xichimesnsntibiaiiaacetditlc baal haidihntecadacesitiniaid 24, 25

Haupt v. United States, 330 U.S. 631 (1947)......... 18

Havens Realty Corp. v. Coleman, 455 U.S. 363

ES Oe ee EAE: ens 23

Holmes Group, Inc. v. Vernado Air Circulation

Sys., Inc., 122 S. Ct. 1889 (2002)... 23

TABLE OF AUTHORITIES -— continued

Page

Huntington Branch, NAACP v. Town of

Huntington, 844 F.2d 926 (2d Cir.), aff'd per

curiam, 488 U.S. 15 (1988) 2000 en. 24

Jackson v. Okaloosa County, Fla., 21 F.3d 1531

ES SS ee 24

James v. Valtierra, 402 U.S. 137 (1971)............... 17

Jones v. Alfred H. Mayer Co., 392 US. 409

I aS 3S FI ee 24

Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988)......... 24

Kirksey v. City of Jackson, Miss., 669 F.2d 316

REY eS eee 11, 12

Linmark Assocs. v. Township of Willingboro, 431

ERS Ie eer ee 2, 23

Lorillard v. Pons, 434 U.S. 575 (1978) 0000000000... 28

Lujan v. Defenders of Wildlife, 504 US. 555

FEN SE See ae 20

Macone v. Town of Wakefield, 277 F.3d 1 (ist

REESE SEES yearn soe nee 24

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. $74 (1986) 2.0.00. 3

Metropolitan Hous. Dev. Corp. v. Village of

Arlington Heights, 558 F.2d 1283 (7th Cir.

Se sihatieiiiciiinaipcipsisidittirtadicaati iad 24

Mountain Side Mobile Estates P'ship v. Secretary

of HUD, 56 F.3d 1243 (10th Cir. 1995) _........... 29

National Fair Hous. Alliance, Inc. vy. Prudential

Ins. Co. of Am., 208 F. Supp. 2d 46 (D.D.C.

ESR See Ne aes 25

Palmore v. Sidoti, 466 U.S. 429 (1984)................ 12, 13

Price Waterhouse v. Hopkins, 490 US. 228

SA SS EAT SR pa a 18

Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d

Smith v. Town of Clarkton, N.C., 682 F.2d 1055

ne 12

NN I MEN

TABLE OF AUTHORITIES -— continued

Page

Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S.

BESET ee oar 16

Town of Huntington v. Huntington Branch,

NAACP, 488 U.S. 15 (1988) ..00..000 eee 22

Trafficante v. Metropolitan Life Ins. Co., 409

OS ae 19, 24

United States v. City of Black Jack, Mo., 508 F.2d

EE eee 24, 30

United States v. City of Parma, Ohio, 661 F.2d

I 24, 30

United States v. Mead Corp., 533 US. 218

NN 29, 30

United States v. Mitchell, 580 F.2d 789 (Sth Cir

RIES Ge ALa Pe cee 30

United States v. Yonkers Bd. of Educ., 837 F.2d

D0GD Clnd Clr. 2OBF) nanan cnn eccecccvescseenens 12, 30

Village of Arlington Heights v. Metropolitan

Hous. Dev. Corp., 429 U.S. 252 (1977)............ passim

Washington v. Seattle Sch. Dist. No. 1, 458 US.

I a a 17

Watson v. Forth Worth Bank & Trust, 487 US.

AS ee ee 4, 21, 25

Wisconsin v. Mitchell, 508 U. S 476 (1993).......... 3, 18

STATUTES AND REGULATION

42 U.S.C. § 20000-2(a)-(d) ...............2-cccceccceeceeeeeees 23

SE 23

42 USC. § 3604(a) ooo eS 23

cL ae 29

I I go ccencecrsnecincnoseveniossoucs 30

SE SS eae 30

Policy Statement on Discrimination in Lending,

59 Fed. Reg. 18266 (Apr. 15, 1994)... a

TABLE OF AUTHORITIES -— continued

ADMINISTRATIVE DECISION Page

HUD vy. Mountain Side Mobile Estates, 2 Fair

Hous.-Fair Lend. Rptr. (P-H) ¥ 25,053 (HUD

Sec’y), on remand, 2 Fair Hous.-Fair Lend.

Rptr. (P-H) 9 25,057 (HUD Sec’y 1993)............ 29

LEGISLATIVE HISTORY

Fair Housing Amendments Act of 1987: Hearings

on §S. 558 Before the Subcomm. on the

Constitution of the Sen. Comm. on the

Judiciary, 100 Cong, (1987) 0000.0... 27

Hearing on Homeowners Insurance Dis-

crimination Before the Senate Comm. on

Banking, Housing, and Urban Affairs, 103

EER ARETE ne ne ae Ene 29

H.R. Rep. No. 100-711 (1988) 000... 28

Oe I Cy Be ID crcccccssccnnnsscccccscssccesenes 26

ETAT Ee eae ane 26

ETE ee 26

TT TRENT RT ae 26

I achisicateinatichiiiadciiicaaibaien 27

ere 27

a ra 26

TS ae 27

ESE eee 27

134 Cong. Rec. 23711-12 (1988) 0. 28

SCHOLARLY AUTHORITIES

Robert G. Schwemm, Housing Discrimination:

Law and Litigation (2001) ......00............000000000000. 2,21

David Cole, No Equal Justice: Race and Class in

the American Criminal Justice System (1999)... 7

vil

TABLE OF AUTHORITIES -— continued

OTHER AUTHORITIES Page

Report of the National Advisory Commission on

I i 25

HUD, No. 8024.01, 7itle VIII Complaint Intake,

Investigation, and Conciliation Handbook

anh siiiadiiaainncsiciaeceladeanhlaianaiohiammmadibadianiameaaaiia, 29

INTEREST OF AMICI

The National Fair Housing Alliance (“NFHA”) is a non-

profit corporation that represents approximately eighty-five

private, non-profit fair housing organizations NFHA was

founded in 1988 to battle housing discrimination and to seek

to ensure equal housing opportunity for all people. NFHA

promotes equal housing, lending, and insurance opportunities

through education, outreach, policy initiatives, advocacy and

enforcement. Relying on the Fair Housing Act of 1968

(“FHA” or “Act”), NFHA and its members have undertaken

important enforcement initiatives to eliminate discriminatory

housing practices in cities and States across the nation.

AARP is the nation’s leading organization for people age

50 years and older, with 35 million members. At the national

and state level, AARP is actively involved in eliminating

barriers to homeownership through research, advocacy,

education and litigation. The FHA has been an important tool

in AARP’s pursuit of this goal and in its advocacy efforts to

eliminate predatory lending practices.

The Catholic Commission of Summit County, Ohio is the

social action arm of the diocese of Cleveland for Summit

County. The Commission engages in public policy advocacy,

community development, and educational efforts. Over the

past 20 years, the Commission has formed seven affordable

housing-related organizations, one of which provided a grant

to help fund the housing development at issue in this case.

The Northeast Ohio American Friends Service Committee

(“AFSC”) is a Quaker-related social action organization

committed to the principles of nonviolence and justice.

AFSC opposes social, economic and political inequality, and

”

discrimination AFSC seeks to change such conditions at the

local level '

The FHA reflects “a strong national commitment to pro-

mot{ing] integrated housing " Linmark Assocs vy Township of

Willingboro, 431 US 85, 95 (1977) Among the causes of

residential segregation that Congress sought to eliminate was

the refusal by predominantly white suburbs to accept low-

income housing This case illustrates the persistence of such

refusals, and demonstrates why, some 34 years after the FHA

was passed, “[hjousing in the United States continues to be

characterized by extremely high levels of racial segregation

and unlawful discrimination" Robert G Schwemm, Housing

Discrimination: Law and Litigation § 2 |, at 2-1 (2001)

The evidence in this case reveals that city officials engaged

in a concerted and discriminatory campaign to block

construction of a low-income housing development, a

campaign that included, but was by no means limited to, an

eleventh-hour referendum petition Invoking the First

Amendment, petitioners ask this Court to immunize this

illegal campaign from judicial scrutiny because it relied, in

part, on use of the referendum process If the Court accepts

this invitation, it will offer a blue-print that other cities can

use to evade the FHA and to frustrate its fundamental goals

Because amici are committed to ensuring the realization of

those goals, they file this brief in support of respondents and

urge affirmance, in part, of the judgment below

SUMMARY OF ARGUMENT

| Respondents do not, as petitioners claim, seek to hold

city officials liable simply because they withheld building

' Pursuant to Rule 37, letters of consent from the parties have been filed

with the Clerk of the Court. In accordance with Rule 37 6, amici state that

no counsel for either party has authored this bnef in whole or in part, and

no Merson or entity, other than amici, has made a monetary contnbution to

t} _ preparation or submussion of this bnef

permits after receiving a properly filed citizen petition To

the contrary, respondents offered evidence of a very different

FHA violation below, and the lower court’s judgment is that

this evidence could sustain a finding of intentional

discrimination Viewing that evidence “‘in the light most

favorable’” to respondents, Matsushita Electric Industrial Co

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), a jury could

find that city officials were not simply passive recipients of a

citizen petition Instead, the evidence reveals that city

officials engaged in a concerted and discriminatory campaign

to block respondents’ housing development by, among other

things, prompting an unprecedented (and invalid) petition

drive, then aiding and abetting that drive through a series of

discretionary acts to ensure that their “approval” of the

development would never take effect Based on this

evidence, a jury could properly conclude that the decision to

withhold the permits was simply the intended outcome of a

broader and illegal campaign

Evidence concerning citizen opposition to the development

is plainly relevant to determining whether city officials

undertook this campaign in order to appease the disciminatory

animus of their constituents, as this Court has made clear in

numerous decisions, including Village of Arlington Heights v

Metropolitan Housing Development Corp., 429 US. 252

(1977). Use of such evidence is also fully consistent with the

First Amendment Petitioners’ arguments concerning the

chilling effect of any inquiry into citizen motivation ignore

the city’s opportunity to show that it acted for proper reasons

This Court, moreover, has never suggested that the First

Amendment bars inquiries into whether legislators acted to

appease discriminatory sentiment, and has recognized that

protected speech can provide evidence of intent Wisconsin v

Mitchell, 508 U.S. 476 (1993)

The sweeping prohibition on evidence of discriminatory

intent that petitioners advocate would render the promises of

the Equal Protection Clause and the FHA _ illusory

Expressions of racial and other forms of discrimination are

not entitled to preferential “breathing space,” and city

officials cannot escape liability for giving effect to such

animus simply because they did so by relying, in part, on a

petition drive If petitioners have legitimate reasons for their

conduct, they should explain them to a jury They should not

be allowed to invoke the First Amendment to immunize their

official conduct from all judicial scrutiny

2 This case provides no occasion for this Court to decide

whether the FHA permits a finding of liability based on

disparate impact analysis Respondents did not pursue a true

disparate impact claim below, and have now formally

abandoned this theory This Court should not decide the

question in the absence of an adversarial presentation of the

issues

Further, the facts of this case do not state a disparate impact

claim The only facially neutral rule respondents challenged

was the local law that stayed approval of respondents’ site

plan once the referendum petition was filed This was the

first and only time the provision has ever blocked approval of

a site plan A single application of the “automatic stay”

provision does not afford a sufficient evidentiary basis for

finding that this law has an unjustified disparate impact on

protected persons Watson vy Forth Worth Bank & Trust, 487

US 977, 987 (1988)

3. If the Court nevertheless chooses to address the issue, it

should rule that disparate impact analysis is a valid basis for

imposing liability under the FHA’ The FHA uses the same

operative language as Title VII, which this Court long ago

held permits a finding of liability based on disparate impact

Linguistic consistency, as well as the shared remedial

purposes of the two laws, compels the conclusion that the

FHA also includes a disparate impact cause of action Indeed,

the circuit courts have unanimously so held

This construction of the Act is confirmed by its legislative

history In seeking to promote integrated residential housing.

proponents of the FHA recognized that segregation stemmed

in part from ostensibly neutral laws and governmental

practices, and they sought to undo the effects of those laws

and practices In addition, they recognized that proving

intentional discrimination would often be extremely difficult

Recognition of a disparate impact cause of action 1s thus

essential to achieving the goals of the FHA Indeed, when rt

amended the Act in 1988, Congress knew that courts had

uniformly recogmized such a cause of action, and it

necessarily ratified that construction by preserving the Act's

operative language

Finally, even if the language, purpose and history of the Act

did not compel recognition of a disparate impact cause of

action, this Court should defer to the views of the agencies

charged with administering and implementing the law, all of

which have found that the FHA permits a finding of lability

based on disparate impact

I. THE LOWER COURT PROPERLY REVERSED

THE GRANT OF SUMMARY JUDGMENT TO

PETITIONERS.

Viewed in the light most favorable to respondents, the

evidence shows that petitioners were not passive observers of

citizen democracy in action, but instead prompted and

facilitated a petition drive as part of a discriminatory

campaign to block respondents’ housing development This

evidence is sufficient to sustain a finding of intentional

discrimination Permitting a city to be held liable for such

conduct 1s wholly consistent with this Court’s precedents and

poses no threat to any First Amendment nights

A. The Evidence, Viewed Most Favorably To

Respondents, Would Support A Finding Of

Intentional Discrimination By City Officials.

To establish a prima facie case of intentional discrimination

under the Equal Protection Clause and the FHA, a plaintiff

need only show that “a discriminatory purpose has been a

motivating factor’ in the challenged action Arlington

Heights, 429 US at 265-66 In reviewing the evidence

bearing on this central issue, the lower court was not

restricted to considering only the motivation of the city

engineer who declined to issue the building permit, as

petitioners contend, Pet Br at 12 Rather, the court was

obligated to undertake “a sensitive inquiry into such

circumstantial and direct evidence of intent as may be

available” Arlington Heights, 429 US at 266 Here, a

wealth of direct and circumstantial evidence would allow a

reasonable juror to conclude that the city engineer’s refusal to

issue the building permits was the intended result of a

concerted campaign by city officials to give effect to their

own discriminatory animus and that of their constituents. The

lower court’s judgment that respondents’ evidence is

sufficient to state a prima facie case of intentional

discrimination was plainly correct, and should be affirmed

See Bowen v. American Hosp. Ass'n, 476 US. 610, 625.11

(1986) (this Court “reviews judgments, not opinions”)

(internal quotation marks omitted)

From the outset, respondents encountered a remarkable

level of opposition to their development Before even voting

on the development, city planners requested unprecedented

accommodations from respondents, including the construction

of an eleven-foot earth and brick barrier to shield adjacent

property? Tr Prelim Inj Hr’g (“Tr”) 47, Sixth Circuit JA

(“App”) 152-54, 966-67 And while approval of a site plan is

“One council member testified that she could not recall any other

instance where a developer was asked to build such a barmer See J A 49

ordinarily a routine matter, respondents site plan was the

subject of three separate, and quite heated, public meetings

Prior to several of these meetings, moreover, city officials

urged residents to attend to express their strong opposition to

the development Tr 135-37, 271-74, App 488-84

As a result, many citizens spoke out vehemently against the

development in language that a reasonable fact-finder could

interpret as veiled racism One resident objected that “[wlJe

have got our ghetto[]” already, while another, who later

helped lead the referendum drive, warned of the “kind of

element [that] is going to be moving in there, just like you

have on Prange Drive,” a reference to the only development

in Cuyahoga Falls with a significant African American

population JA 40, 139, Tr 270, 182-85, 316 Other

residents expressed concerns that “there will be a different

class of people living there,” that Cuyahoga Falls would be

“downgrading itself,” and that the development would attract

crime and “boom boxes,” J A 40, 44, 144, 162, comments

typical of racial stereotyping See David Cole, No Lqual

Justice: Race And Class in the American Criminal Justice

System 34, 42 (1999) *

Echoing what he perceived to be “the mood of the

community,” Mayor Robart also expressed opposition in

terms indicative of discriminatory animus. He argued that the

development represented the same type of “social engineering

that brought us busing,” and referred to a newspaper article

entitled “Stuck in the Ghetto,” which discussed problems with

Section 8 housing J A 189 ifayor Robart also agreed with

the comments of a state representative who attended a city

council meeting and argued that “condensing these

* Racial animus could also be fairly inferred from the threatening

behavior of some opponents of the development One threatened to throw

respondent Steven Boone out a window, while several others followed

him to his car after a public meeting Tr 37 — menacing conduct not

typically prompted by concems over a development’s impact on sewer or

storm water drainage systems Pet Br at 16

individuals in one place ‘just breeds problems” App 9/7.

20 (emphasis added)

In addition, there is evidence that opponents of jhe

development were motivated by unlawful discrimination

against families At a meeting of the planning commissign.

Council Member George Potts explained that residents were

concerned that the development would “potentially have a Jot

of children” and that its lifestyle would therefore differ from

that of a nearby retirement community. App 479, JA 37

The city’s planning director explained that the commission

requested the unprecedented barrier surrounding the

development because “this project would be a larger family

type project” JA 98 Residents repeatedly expressed

concerns about the number of children that would live jn

Pleasant Meadows Id at 140, 163-64 One asked

respondents, “Are your little kids going to shut up right at

sunset” /d at 44 And at the meeting to organize the

referendum petition, residents expressed concern about the

children that would move in to the development. Tr. 295

City officials responded to these sentiments by providing

assurances that they were doing everything in their power to

block the development Council Member Sandy Rubino told

residents that he had “looked under every rock” for a

legitimate reason to vote against the development. J A. 144

Council President Barbara White said she and other city

officials had looked for “any legal shred that we could hang

onto so that we could reject this project.” /d. at 150

As part of these efforts, city officials first conceived the

idea of a “citizen-led” referendum, then went to extraordinary

lengths to ensure that it prevented the site plan from taking

effect. It was the city’s law director, not citizens, who first

raised the possibility of a referendum to block the

development at a council meeting on March 4, 1996 JA

174 At this same meeting, Mayor Robart urged the council

to delay its vote on whether to approve the site plan “iwo

weeks, a month” or longer in order to “buy time.” App 967

After the meeting, the mayor met with the citizens who

ultimately conducted the petition drive, and consulted with

them about the name of the group /d at 1174

At a March 18, 1996 meeting, Mayor Robart again urged

vigorous opposition to the development, JA_ 155, and

suggested the city engage in a legal war of attrition with

respondents that would delay approval unti] the development

became financially untenable * At the conclusion of that

meeting, the council again declined to approve the site plan.

despite its recognition that there was no valid legal ground tor

rejecting it /d at 145-46, 148-49 Instead, it tabled a vote to

give the legal department another chance to see “if there was

any possible reason that [the City] could turn [the project]

down legally" App 1265 Council President Barbara White

wrote to the city’s law department, asking whether the counci!

could reject the site plan without incurring liability and

whether a referendum could block the development /d at

974-75

After the law department confirmed that there was no

legitimate ground for rejecting the site plan, the council

approved it by a slim majority on April 1, 1996 Tr 43

Shortly thereafter, the referendum leaders held their first

public meeting, which three council members and Mayor

Robart attended /d at 292 Although the council members

were asked to leave, the mayor remained and expressed

support for the petition drive Docket Entry R (“R”) Exh D,

at 84-88, App 903, 1174 The day after the meeting, the

mayor wrote the city’s law department to ask how many

signatures were needed App 979 Although the law

department provides legal advice to the council, not those

seeking to block council actions, id. at 816-17, it provided the

requested information

* The Mayor explained that the city's law department is paid no matter

what it is doing, whereas respondents would have to hire lawyers and

decide how long they “want to pursue this thing, given the fact that we all

know that somewhere along the line there ts a deadline” App 945

Before the site plan ordinance took effect, the mayor

directed the city’s service director to issue a memorandum

requesting that no building permits be issued until further

notice R 34, Exh A_ The service director issued the

memorandum to the city engineer, who had never seen such a

directive for any other development Tr 193-94 Following

receipt of the referendum petition, the law department advised

that any building permits should be held in abeyance R 34,

Exh A

Despite the “automatic stay” effected by the filing of the

petition, the council still could have authorized issuance of

the permits by passing an emergency ordinance with the

support of eight of eleven council members The council

failed to do so, however, when, on May 28th, three council

members again voted against the ordinance, and another two

members abstained Tr 196 As a result, the city engineer

declined to issue the permits

Viewing these facts and all reasonable inferences to be

drawn from them in the light most favorable to respondents, a

reasonable juror could find that city officials, motivated either

by their own discriminatory animus or a desire to appease that

of their constituents, mounted a concerted campaign to block

respondents’ development As part of that campaign, they

repeatedly departed from the normal procedural and

substantive standards for site plan approval by delaying votes

in order to search for non-zoning bases for rejecting the

development See Arlington Heights, 429 US at 267 & n 17

(“[dJjepartures from the normal procedural sequence” and

failure to rely on factors “usually considered important by the

decisionmaker” are strong indications “that improper

purposes are playing a role’) Unable to find such grounds,

they prompted and then abetted a petition drive cynically

designed to provide a “nondiscretionary” basis for

discriminating against African Americans and families with

children This view of the city’s conduct is buttressed by the

facts that (1) no other site plan had ever been the subject of a

referendum petition, let alone a petition proposed and openly

encouraged by city officials after consultations with city

lawyers, (2) the council had approved an even larger

development (that did not involve subsidized housing) for the

exact same site three years earlier, J) A 43, 137, App 148,

and (3) denial of respondents’ smailer development had a

disproportionate impact on protected groups See Arlington

Heights, 429 US at 266 (fact that official action bears more

heavily on protected groups may serve as circumstantial

evidence of discriminatory intent) ©

Contrary to the claims of petitioners and the United States.

a jury reviewing this evidence would not be required to

consider only those actions city officials took after the

petition was filed See Pet Br at 11-15, Brief of the United

States as Amicus Curiae Supporting Petitioners (“US Br”)

at 27-32 Even if city officials lacked discretion to issue

building permits after the petition was filed, a jury could

reasonably find that respondents’ injury resulted from a

coordinated campaign of discretionary (and impermissibly

motivated) actions through which city officials ensured that a

petition drive they had prompted and abetted would preclude

their site plan approval from ever taking effect Cf Airksey v

City of Jackson, Miss., 669 F 2d 316, 317 (Sth Cir 1982) (per

curiam) (“{t}]he referendum process may not be used to

legitimate an unconstitutional act”) In short, city officials

cannot escape liability for blocking respondent's development

by claiming that their “hands were tied,” when the evidence

shows that they told citizens to buy the rope, explained how

to tie it, and stalled long enough to make sure the knot was

firmly in place in time

* The fact that the mayor himself did not “organize{| the petition drive”

or “secure|| meeting places” for it, Pet App 128a-129a, does not preclude

a finding that city officials collectively prompted and abetted the drive in

order to give effect to the discnmunatory animus of yocal citizens

B. The Discriminatory Motives Of Citizens Are

Relevant To Determining Whether Officials

Sought To Give Effect To Those Motives.

Tacitly recognizing the sufficiency of respondents’

showing, petitioners try to foreclose consideration of key

pieces of the evidence against them Thus, they argue that

courts may consider only the discriminatory motives of the

officials themselves, not the animus of the citizens those

officials represent Contrary to petitioners’ claims, however,

numerous decisions of this Court, including Arlington

Heights, confirm the relevance of evidence of citizen animus

This Court has long held that government officials engage

in intentional discrimination by giving effect to the

discriminatory motives of the electorate See City of

Cleburne, Tex. y Cleburne Living Ctr., Inc., 473 US. 432

(1985) (city officials violated Equal Protection Clause by

blocking construction of home for the mentally retarded in

response to community prejudice), Palmore vy Sidoti, 466

US 429 (1984) (state court violated 14th amendment by

taking into account societal prejudice when it declined

custody of child to white mother who had married African

American man), Buchanan y Warley, 245 US 60 (1917)

(city officials violated equal protection when they banned

African Americans from buying property in majority-white

neighborhoods to prevent racial conflicts)® Some “[p]rivate

biases may be outside the reach of the law, but the law

* See also United States y Yonkers Bd of Educ , 837 F 2d 1181, 1226

(2d Cir 1987) (city officials can be hable under the 14th Amendment if

“racial animus was a significant factor in the position taken by the persons

to whose position the official decision-maker 1s knowingly responsive’).

Smith v Town of Clarkton, NC , 682 F 2d 1055, 1063 (4th Cir 1982)

(city officials violated Equal Protection Clause and FHA by blocking low-

income housing development in response to citizen opposition “mouvated

in significant part by racial considerations”), Airksey, 669 F 2d at 316-17

(motivation of the electorate may be considered in a proper case)

cannot, directly or indirectly, give them effect” Pa/more,

466 US at 433

Nothing in Arlington Heights precludes courts from

considering evidence that city officials sought to appease the

discriminatory animus of citizens Indeed, in Arlington

Heights itself, this Court approved the lower courts’ inquiry

into whether city officials had refused to rezone based on the

racially motivated comments of some opponents of the

housing project 429 US at 268-69 By recounting the

lower courts’ conclusion that the evidence in that case did not

warrant a finding that the officials had been so motivated, the

Court confirmed the relevance of the inquiry, nowhere did it

fault the lower courts for considering such evidence :

The evidence in this case, of course, is starkly different

from that in Arlington Heights There, city officials handled

the rezoning request “according to the usual procedures” and

“focused almost exclusively on the zoning aspects of the

[rezoning] petition” /d at 269-70 Here, city officials

repeatedly departed from their usual procedures —- imposing

unprecedented conditions, tabling routine votes, issuing

unprecedented directives, and proposing and abetting an

unprecedented referendum - and openly searched for non-

zoning grounds in order to reject the development

Nor are the comments of opponents of the development

rendered legally irrelevant because city officials “approved”

the site plan Pet Br at 13-14 This Court has explained that

“the electorate as a whole, whether by referendum or

otherwise, could not order city action violative of the Equal

‘Arlington Heights also forecloses petitioners’ clam that citizen

comments are relevant only where city officials act “for the sole purpose

of appeasing racially motivated opponents” Pet Br at 14 (emphasis

added) (quoting United States vy Birmingham, 538 F Supp 819, 827

(ED Mich 1982)) Because government officials rarely take any action

“motivated solely by a single concern,” a plaintiff need only show that “a

discriminatory purpose has been a motivating factor’ in the challenged

action Arlington Heights 429 U § at 265-66

Protection Clause ——_ and the city may not avoid the strictures

of that Clause by deferring to the wishes or objections of

some fraction of the body politic” City of Cleburne, 473

US at 448 It is equally plain that the city cannot avoid these

twin strictures through a discriminatory campaign that

combines aspects of both types of proscribed conduct

Viewed in the light most favorable to respondents, the

evidence shows that city officials “defer{red] to the

[discriminatory] wishes or objections of the body politic” by

repeatedly delaying a vote on the site plan in order to abet a

petition drive that would “order” the very action that city

officials themselves could not take To bar consideration of

citizen comments because city officials nominally approved

an ordinance only after devising a scheme to render that

approval ineffective would indulge the most artificial of

pretexts, and reward the most cynical of subterfuges

(. Consideration Of Citizen Comments Does Not

Threaten Any First Amendment Rights.

Petitioners and their amici argue that the use of citizen

comments as evidence of intentional discrimination threatens

core First Amendment values They claim that the use of

such evidence threatens to saddle a city with liability based on

the expressions of a handful of individuals, and will chill core

political activity by officials and citizens, who will fear that

their valid motives for voting, signing petitions or speaking

against measures will be tainted by association with those

who vote, sign or speak for illegal reasons See Pet Br at 16-

19.U S Br at 17. These claims are groundless

1. The Governing Evidentiary Framework

Protects The City From Improper

Imputation Of Discriminatory Animus.

In arguing that judicial scrutiny of citizen comments will

result in cities being held liable for the views of a few

citizens, petitioners ignore the evidentiary framework that

governs intentional discrimination claims Under Arlington

Heights, courts must conduct a “sensitive inquiry” into many

factors, including the impact of the challenged action, its

historical background, and the sequence of events leading up

to the action See 429 US at 266-68 Statements by citizens

and officials are only part of the broad picture that the

factfinder must consider Indeed, in concluding that the

evidence “at least, raise[s] a genuine issue of material fact as

to whether the City gave effect to the racial bias of its

citizens,” the Sixth Circuit made clear that it considered all

“the circumstances surrounding the opposition to the project,”

not just the comments of a few citizens See Buckeye Comty.

Hope Found. v City of Cuyahoga Falls, 263 F 3d 627, 637

(6th Cir 2001)

Petitioners also ignore the opportunity they will have to

rebut respondents’ view of the evidence and to come forward

with evidence to show that the actions described above were

not taken for improper reasons. Thus, petitioners could offer

arguments or evidence to show that they delayed votes,

imposed unprecedented conditions and prompted an

unprecedented petition drive not because they sought to give

effect to discriminatory animus, but because they concluded

that current zoning laws fail to accommodate legitimate

concerns over density, noise, pollution and traffic Cf

Arlington Heights, 429 US. at 270 (evidence showed that

officials focused on appropriate zoning factors and neighbors’

reliance on zoning policies) If, after a full and fair tral, the

fact-finder nevertheless imposes liability, it will not be

because a mere “one ten-thousandth of the City’s population”

was motivated by racial or other improper animus Pet Br at

16 Instead, liability will rest on a successful showing that

city officials gave effect to impermissible discrimination, and

that their explanations for their actions are mere pretexts © Cf

* Respondents might succeed in proving pretext, for example, by

showing that the larger complex the city approved would have entailed the

same Or greater impacts on sewers, school systems, traffic and pollution,

lexas Dep't of Cmty. Affairs vy Burdine, 450 US 248, 253,

255 n 10 (1981) (Title VII plaintiff pursuing an intentional

discrimination claim must prove that “legitimate reasons

offered by the defendant were a _ pretext for

discrimination’)

In short, the city was not precluded from rejecting the

development once one citizen expressed racial opposition

Pet Br at 19-20 Petitioners will have a full opportunity to

show that they acted for legitimate reasons They cannot

escape their burden of making that showing, however, by

barring consideration of evidence demonstrating that they in

fact sought to appease the discriminatory animus of citizens

2. Considered Within The Governing

Framework, Protected Speech May Be Used

As Evidence Of Discriminatory Intent.

Because petitioners have a chance to prove the propriety of

their actions, arguments concerning “the potential for chilling

First Amendment rights,” U.S. Br. at 17, amount, in reality, to

an extraordinary plea for protection against the mere chance

of an erroneous finding of intentional discrimination, reached

after a full and fair trial But the “breathing space” petitioners

and their amici seek for expressions of discriminatory animus,

id. at 19, is not justified by the First Amendment, and is

wholly inconsistent with this Court’s decisions. To protect

the “critically important rights” that both the “Fair Housing

Act and, a fortiori, the Fourteenth Amendment safeguard,” id

at 20, this Court has long permitted judicial inquiries into the

intent of legislators and the electorate alike It has likewise

recognized that protected speech can provide direct evidence

of discriminatory animus, and that evidentiary use of such

speech to prove intent is constitutionally permissible To hold

otherwise would eviscerate the promise of the Equal

Protection Clause and the FHA.

and by pointing to the statements of Mayor Robart, who emphasized that

the issue was not density J A 154.

ti eee, — Al

me EE ee ee

This Court has frequently endorsed inquiries into the

motives of legislators and voters to determine whether

legislation was enacted for an unlawful purpose Indeed, as

noted above, in Arlington Heights, the Court approved

judicial examination of the motives of city officials whose

zoning decision had a disproportionate adverse impact on

minorities 429 US at 268-69 Similarly, the Court has held

that when a facially neutral referendum is challenged under

the Equal Protection Clause, “an inquiry into intent 1s

necessary to determine whether the legislation in some sense

was designed to accord disparate treatment on the basis of

racial considerations” Washington v_ Seattle Sch. Dist. No.

/, 458 US 457, 484-85 (1982) Even when rejecting such

challenges, the Court has made clear that ‘a law neutral on its

face still may be unconstitutional if motivated by a

discriminatory purpose” Crawford vy Board of Educ, 458

US $27, 544 (1982), see also id. at 545 (applying Arlington

Heights factors to facially neutral referendum and finding “no

reason to challenge the Court of Appeal’s conclusion that the

voters of the State were not motivated by a discriminatory

purpose”), James v Valtierra, 402 US 137, 141 (1971) (the

“record here would not support any claim that a law

seemingly neutral on its face is in fact aimed at a racial

minority ”’)

In none of these cases did the Court suggest that the First

Amendment posed any barrier to the required judicial inquiry

into intent. To the contrary, in Arlington Heights, the Court

mandated a “sensitive inquiry into such circumstantial and

direct evidence of intent as may be available” 429 US at

266 (emphasis added) Statements by legislators and voters

espousing discriminatory views or a desire to appease such

views is the most “direct evidence” of discriminatory intent

available Indeed, the Court noted that, in some cases, the

members of an administrative or legislative body “might be

called to the stand at trial to testify concerning the purpose of

the official action” /d at 268 The Court recognized that

“inquiries into legislative or executive motivation represent a

substantial intrusion into the workings of other branches of

government,” id. at 268 n 18, and that some testimony might

be barred by privilege, id. at 268 (citing Jenney vy Brandhove.

341 US 367 (1951) (Speech or Debate Clause) and United

States v Nixon, 418 US 683 (1974) (executive privilege))

Notably, however, the Court did mot include the First

Amendment among its list of possible impediments to

inquiries into legislative intent — despite its recognition, just

two paragraphs later, that such inquiries may include an

examination of whether officials were motivated by the

discriminatory views of citizens, id at 268-69

In fact, in other contexts, the Court has made clear that the

First Amendment does not prohibit use of speech — even core

political speech — as evidence of motive or intent In

Wisconsin v Mitchell, 508 US 476 (1993), a criminal

defendant argued that his sentence was enhanced in violation

of the First Amendment because prosecutors used statements

he had made to prove that his crime was motivated by racial

bias In rejecting this argument, the Court explained that

“(t]he First Amendment does not prohibit the evidentiary

use of speech to prove motive or intent Evidence of a

defendant's previous declarations or statements is commonly

admitted :n criminal trials subject to evidentiary rules dealing

with relevancy, reliability, and the like” Jd at 489 To

support its holding, the Court cited Price Waterhouse vy

Hopkins, 490 US 228 (1989), a civil case in which

statements made by the defendant employer were admissible

to prove discrimination See Mitchell, 508 US at 490 The

Court also cited Haupt v_ Umited States, 330 US 631 (1947),

a case in which political statements made by the defendant

were admissible as evidence of intent in his trial for treason

See Mitchell, 508 US. at 489

In short, the First Amendment does not preclude use of

discriminatory statements by citizens as evidence that city

officials sought to give effect to the discriminatory animus of

—_—

C—O

their constituents Certainly, such statements do not deserve

more “breathing space” than other core political speech that

the Court has held admissible to prove intent Indeed, neither

petitioners nor their amici explain why expressions of racial

and other forms of illegal discriminatory animus should be

accorded special evidentiary status, when such animus cannot

provide a valid basis for legislative action See Arlington

Heights, 429 US at 266, City of Cleburne, 473 US at 448

To hold otherwise, moreover, would severely undermine

the protections of the Equal Protection Clause and the FHA

City officials will rarely, if ever, openly acknowledge that

they are acting to give effect to the illegal animus of citizens

To foreclose use of citizen expressions of such animus as

evidence that officials were so motivated, therefore, would

essentially immunize conduct that violates both the

Constitution and a federal statute designed to vindicate “‘a

policy that Congress considered to’ be of the hichest

importance ’” Jrafficante y Metropolitan Life Ins. Co., 409

US 205, 211 (1972)

Indeed, this case provides a virtual blueprint for how cities

can evade the FHA On respondents’ view of the facts, which

must be accepted for present purposes, city officials prompted

and then abetted a petition drive that simultaneously

effectuated the city’s discriminatory goal while ostensibly

purging it of any impermissible taint Petitioners and their

amici now ask this Court to bless this plan of evasion, arguing

that the petition drive precludes all liability for the

“nondiscretionary” withholding of building permits, that it

precludes any inquiry into the motivations of citizens who led

the drive, or that, at a minimum, it permits a finding of

liability only if the petition itself is a “sham "? This Court

* Respondents’ evidence would permut a finding that the petition was a

“sham,” in that it was part of a concerted campaign to discnmunate But

the test the United States proposes would ignore the role of officials in

that campaign, and would focus instead solely on whether the referendum

was “‘objectively baseless” US Br at 18 Because “hypothetical” or

should reject this invitation If petitioners have legitimate

reasons for their conduct, they should explain those reasons to

a jury They should not be allowed to use a petition drive as

part of a concerted campaign of discrimination, and then to

invoke the First Amendment to immunize that campaign from

judicial scrutiny and liability

Il. THIS CASE DOES NOT PRESENT THE

QUESTION WHETHER LIABILITY UNDER THE

FHA MAY BE BASED ON DISPARATE IMPACT.

This case presents no occasion for the Court to decide

whether the FHA includes a disparate impact cause of action

Respondents have disavowed such a claim in this Court, and

the United States has declined to address the issue In all

events, the facts of this case do not give rise to a disparate

impact claim Accordingly, this Court should vacate the

lower court's holding that respondents were entitled to pursue

a disparate impact claim under the FHA

Although respondents made a “disparate impact” argument

below, they did not identify a facially neutral practice or

_policy, adopted without discriminatory intent, that had a

disproportionate effect on protected groups. To the contrary,

even as part of their “disparate impact” analysis, respondents

claimed that city officials blocked the development through a

series of ad hoc actions designed to “comply[{] with the

discriminatory wishes of” citizens. Appellants’ Br at 25

Respondents have now confirmed that they are not pursuing a

disparate impact claim

As a result, this Court lacks the benefit of an adversarial

presentation by parties with “an actual, as opposed to a

professed, stake” in the question presented Lujan v.

Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J,

concurring) Indeed, the United States, which administers

“possible” nondiscriminatory grounds for opposing a housing develop-

ment can always be postulated, no discnmuinatory scheme that made use of

a faciaily neutral referendum would ever be illegal under this test

_—— -

and enforces various aspects of the FHA, see infra at 28-29,

has declined to address whether the FHA includes a disparate

impact cause of action US Br at 12 n1_ For prudential

reasons alone, therefore, this Court should decline to address

the issue at this time

In any event, the facts of this case do not give rise to such a

clam. “[T]he necessary premise of the disparate impact

approach is that some practice[{], adopted without a

deliberately discriminatory motive, may in operation be

functionally equivalent to intentional discrimination”

Watson, 487 US at 987 (emphasis added), see also Griggs v

Duke Power Co., 401 US 424, 430-31 (1971) The

discriminatory impact of a facially neutral practice or policy

is established by examining its “operation” over a range of

applications '°

The predicates for disparate impact analysis are absent

here The only neutral rule that contributed to respondents’

FHA injury was the provision of the city charter that stayed

approval of respondents’ site plan when the referendum

petition was filed Because the referendum provision had

never before been invoked to block approval of a site plan,

respondents could show only that a single application of a

facially neutral law bore more heavily on protected groups. A

single application of the city’s “automatic stay” provision

simply does not afford a sufficient evidentiary basis for

determining whether this facially neutral rule operates as the

functional equivalent of intentional discrimination See

Schwemm, supra, § 10:6, at 10-43 (disparate impact “is not

'° See, eg, Griggs, 401 US. at 429 (aptitude test and high school

diploma requirement rendered “a markedly disproportionate number of

Negroes” ineligible for job), Dothard y. Rawlinson, 433 U.S. 321, 329-30

(1977) (height requirement excluded one-third of all women, but less than

2% of all men), Connecticut v. Teal, 457 US. 440, 443-44 (1982)

(hundreds of test results showing disproportionate pass rates of blacks and

whites established disparate impact of written examination for

promotions).

appropriate for claims that are based on a single act or

decision”) ''

In short, because there is no evidence that current housing

segregation is attributable to the city’s facially neutral

“automatic stay” provision, the fact that members of a

protected class are adversely affected by the first and only

application of that law does not provide a_ sufficient

evidentiary basis for application of disparate impact analysis

lll. DISPARATE IMPACT IS A VALID BASIS FOR

IMPOSING LIABILITY UNDER THE FHA.

If this Court reaches the issue, it should hold that the FHA

authorizes a disparate impact cause of action The FHA

employs precisely the same operative language as Title VII of

the Civil Rights Act of 1964, and this Court long ago

concluded that this language permits a finding of unlawful

discrimination based on appropriate evidence of disparate

impact Linguistic consistency, and the related aims of the

two laws, compel the same construction of the FHA, as every

court of appeals has concluded. The propriety of such a

construction is confirmed by the Act’s legislative history, by

Congress’s tacit ratification, in 1988, of judicial adoption of

disparate impact analysis under the FHA, and by agency

implementation of the Act.

'' In some cases, courts have entertained disparate impact challenges io

a “single decision” that simply affirmed a policy that had long exerted a

segregative effect on the town. See, e.g, Town of Huntington y.

Huntington Branch, NAACP, 488 U.S. 15, 17 (1988) (town’s refusal to

amend zoning law restncted private construction of multifamily housing

to a largely minority area, thereby “significantly perpetuatling] segre-

gation in the Town.”) (internal quotation marks omitted). Such disparate

impact challenges are really leveled at the long-standing policies, not

isolated applications of laws that have not contributed to the segregated

nature of the town.

A. The Text And Purpose Of The FHA Compel The

Conclusion That It Permits A Finding Of

Liability Based On Disparate Impact Analysis.

Section 3604(a) of the FHA makes it illegal to “make

unavailable or deny{] a dwelling to any person because of

42 USC § 3604(a) The FHA’s operative “because of”

language is identical to the operative language of Title VII,

which bars discrimination against an employee “because of

such individual's race, color, religion, sex, or national origin ”

42 § USC 2000e-2(a)-(d) In Griggs, this Court held that

Title VIL prohibits not only intentional discrimination, but

also employment practices that have unjustified

discriminatory effects “Linguistic consistency requires” that

the operative language of the FHA be given the same

meaning as “the same operative language” in Title VII

Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 122

§ Ct 1889, 1893 (2002) (phrase “arising under” in 28 USC

§ 1338 must have same meaning that Court gave that phrase

in § 1331) (internal quotation marks omitted)

Far more than “linguistic consistency,” however, compels

such a construction of the FHA. In concluding that Title VII

authorizes liability based on unjustified disparate impact, this

Court focused on the broad purposes underlying that statute,

observing that it was intended “to achieve equality of

employment opportunities and remove barriers that have

operated in the past” to hurt minority employees. Griggs, 401

US. at 429-30 The same broad remedial objectives

prompted passage of the FHA. The Act declares that “fit is

the policy of the United States to provide, within

constitutional limitations, for fair housing throughout the

United States.” 42 U.S.C. § 3601. This Court has frequently

recognized “the broad remedial intent of Congress embodied

in the Act, Havens Realty Corp. v. Coleman, 455 U.S. 363,

380 (1982), which reflects “a strong national commitment to

promot[ing] integrated housing,” Linmark Associates, 431

P 24

US at 95, and seeks to achieve that goal by outlawing “a

broad range of discriminatory practices,” Jones v Alfred H.

Mayer Co., 392 US 409, 417 (1968)

It is precisely because the FHA and Title VII share the

same basic purpose of promoting equal opportunity for

members of protected groups that this Court has looked to its

interpretation of Title VII to give meaning to provisions of the

FHA For example, in /rafficante, 409 US at 208-09, the

Court interpreted the phrase “‘person aggrieved’” in the FHA

by citing a case that construed a similar phrase in Title VII

Cf General Bidg. Contractors Ass'n vy Pennsylvania, 458

US. 375, 389-90 (1982) (14th Amendment's discriminatory

purpose standard controls claims under the 1866 Civil Rights

Act because the laws are “legislative cousins” and it would be

“incongruous to construe” them in a “markedly different”

manner)

In light of the identical language and purposes of the two

laws, the circuit courts have unanimously concluded that the

FHA, like Title VII, includes a disparate impact cause of

action’? These rulings, moreover, reflect a judicial

recognition that the FHA could not achieve its broad aim of

ensuring equal housing opportunities if it did not reach many

public as well as private rules and practices that, however

neutral they may appear, operate in a manner that is

“functionally equivalent to intentional discrimination.”

'? Eg, Macone v. Town of Wakefield, 277 F 3d 1, 5-7 (1st Cir. 2002),

Bangerter v. Orem City Corp, 46 F.3d 1491, 1501 (10th Cir 1995),

Jackson vy. Okaloosa County, Fla., 21 F.3d 1531, 1543 (Lith Cir 1994),

Keith v. Volpe, 858 F.2d 467, 482-84 (9th Cir. 1988), Huntington Branch,

NAACP vy. Town of Huntington, 844 F.2d 926, 934-36 (2d Cir.), aff'd per

curiam, 488 U.S. 15 (1988), Hanson v. Veterans Admin., 800 F.2d 1381,

1386 (Sth Cir. 1986), Betsey v. Turtle Creek Assocs, 736 F.2d 985, 986-

88 (4th Cir. 1984), United States v. City of Parma, Ohio, 661 F.2d 562,

564-65, 576 (6th Cir. 1981), Resident Advisory Bd. vy. Rizzo, 564 F.2d 126,

146-49 (3d Cir. 1977), Metropolitan Hous. Dev. Corp. v. Village of

Arlington Heights, 558 F.2d 1283, 1288-90 (7th Cir. 1977), United States

v. City of Black Jack, Mo., 508 F.2d 1179, 1184-85 (8th Cir. 1974).

Watson, 487 US at 987 Thus, the lower courts have

permitted disparate impact claims against appraisal practices,

Hanson vy Veterans Administration, 800 F 2d 1381, 1386 (Sth

Cir 1986), insurance redlining practices, National Fair

Housing Alliance, Inc. vy Prudential Insurance Co of

America, 208 F Supp 2d 46, 58-61 (DDC 2002), and

(before familial status protection was included in the Act),

adults-only rental policies, Betsey v /urtle Creek Associates,

736 F 2d 983, 986-88 (4th Cir 1984), that effectively made

housing “unavailable” to minorities Without a disparate

impact cause of action, these and many other barriers to fair

housing could not be eliminated

B. The Legislative History Confirms That Congress

Intended To Provide A Disparate Impact Claim

Under The FHA.

Although the Congress that enacted the 1968 FHA was

primarily concerned with eliminating intentional

discrimination — as it had been four years earlier when it

adopted Title VII — proponents of the Act also wanted to undo

the discriminatory effects of municipal laws and practices and

to ensure that government could not use such laws to

circumvent the Act

Congress adopted the FHA in the wake of the highly

publicized report by the National Advisory Commission on

Civil Disorders, which had warned that the “Nation is moving

toward two societies, one black, one white — separate and

unequal.” See Report of the National Advisory Commission

on Civil Disorders 1, 13 (1968) Proponents of the FHA

repeatedly pointed out that the facially neutral practices of

suburban governments were a principal cause of residential

segregation Thus, the Act's principal sponsor, Senator

Mondale, explained that blacks were unable to move to white

suburbs because of the “refusal by suburbs and other

communities to accept low-income housing = An

important factor contributing to exclusion of Negroes from

such areas, moreover, has been the policies and practices of

agencies of government at all levels” 114 Cong Rec 2277

(1968) (emphasis added) Similarly, Senator Brooke noted

that blacks could not move to better neighborhoods because

they were “surrounded by a pattern of discrimination based

on individual prejudice, often institutionalized by business

and industry, and Government practices” /d at 2526

(emphasis added) Of particular relevance, Senator Mondale

noted that, after this Court had prohibited explicitly racial

zoning laws in Buchanan vy Warley, 245 US 60 (1917),

“{ljocal ordinances with the same effect, although operating

more deviously in an attempt to avoid the Court's prohibition,

were still being enacted” 114 Cong Rec at 2699 (emphasis

added)

Proponents of the FHA plainly intended to eliminate these

causes of residential segregation Senator Mondale stated that

it “seems only fair, and is constitutional, that Congress should

now pass a fair housing act to undo the effects of these past

State and Federal unconstitutionally discriminatory actions ”

Id (emphasis added) Indeed, because Congress had

undoubted power to proscribe intentional discrimination by

States, Senator Mondale would have had no reason to

comment on the constitutionality of a fair housing law aimed

at state governments unless that law sought to reach the

effects of neutral laws and practices

The legislative history also demonstrates that Congress was

aware of the difficulty of proving discriminatory intent

Senator Baker introduced an amendment that would have

exempted from liability any homeowner who engaged a real

estate agent “without indicating any preference, limitation or

discrimination based on race __, or an intention to make any

such preference, limitation or discrimination” /d at 5214 A

number of the bill's proponents objected that the amendment

would make proof of discrimination difficult in all but the

most blatant cases Senator Dominick argued that the amend-

ment would “increase[] the opportunity for discrimination,”

id at 5220, and Senator Percy stated that the amendment

- ee r Pog) eee ee PR he Ase

“would require proof that the single homeowner had specified

racial preference | maintain that proof would be impossible

to produce” /d at 5216 See also id at $218, §220-2)

(remarks of Senators Mondale and Hart regarding the diffi-

culty of proving discriminatory intent) In response to these

concerns, the Baker amendment was defeated /d at §221-22

In short, proponents of the FHA clearly recognized that

residential segregation stemmed in part from ostensibly

neutral laws and governmental practices, and they sought to

undo the effects of those laws and practices These facts,

together with the widespread recognition that evidence of

overt discrimination would often be difficult to uncover,

confirm that Congress intended to provide a disparate impact

cause of action under the FHA Indeed, the contrary

conclusion would effectively condemn Congress as having

adopted a measure manifestly incapable of achieving its

intended aims

C. The Fair Housing Amendments Act Of 1988

Tacitly Approved Disparate Impact Analysis.

Prior to passage of the 1988 Fair Housing Amendments Act

("FHAA"), all eight of the circuit courts that had addressed

the issue had concluded that the FHA included a disparate

impact cause of action See note 12, supra Congress was

aware of this judicial consensus, and necessarily endorsed it

by amending the law without changing the operative “because

of” language

When Congress amends a statute, it is “presumed to have

known of [the] settled judicial treatment” of that law

Edelman v_ Lynchburg Coll, 122 § Ct 1145, 1152 (2002)

(Title VII case), see also Cannon v_ University of Chi, 441

US 677, 696-98 (1979) Here, the legislative history of the

FHAA shows that Congress had actual knowledge of the

FHA impact decisions, see /air Housing Amendments Act of

1987: Hearings on §. 558 before the Subcomm. on the

Constitution of the Sen. Comm. on the Judiciary, 100 Cong

§29-57 (1987) Indeed, the House Report expressly cited a

number of circuit decisions employing disparate impact anal-

ysis SeeHR Rep No 100-711, at 21 & n $2, 90-9] (1988)

(citing decisions of Second, Fourth and Ninth Circuits)

Aware that illegal racial discrimination in housing was

continuing, Congress strengthened enforcement of the Act.

see id at 16-18, 33-40, and made no change to the Act's

operative “because of language In fact, the House rejected

an attempt to eliminate disparate impact challenges to local

zoning decisions, see id at 89 (describing failed attempt to

require showing of “intent to discriminate” in such

challenges),'’ and the FHAA’s principal sponsor in the Senate

explained that “Congress accepted thie] consistent judicial

interpretation” endorsing a disparate impact analysis and

“contemplated no such intent requirement” 134 Cong Rec

2371 1-12 (1988 ‘remarks of Senator Kennedy) In light of

this history, the FHAA must be seen as “tacit congressional

approval” of the prior judicial decisions endorsing the impact

standard See -delman, 122 S Ct at 1151-52, see also

Lorillard y Pons, 434 US 575, 580 (1978) (Congress is

presumed “to adopt [prior judicial] interpretation when it re-

enacts a statute without change’)

D. Administrative Implementation Of The FHA

Supports A Disparate Impact Standard.

Finally, the various agencies charged with implementing

and administering the FHA have embraced use of disparate

‘The House Report also expressly endorsed a disparate impact

analysis in cases involving the newly protected class of familial status It

explained that reasonable limitations on the number of occupants per unit

would be allowed to continue “as long as they did not operate to

discriminate on the basis of race, color, religion, sex, national ongin,

handicap or familial status” HR Rep No 100-711, at 31 (emphasis

supplied), see also id at 21 & nm 52 (noting that famulial status

discnimunation “often has a racially discrnmunatory effect” on minorities

and approving cases upholding FHA disparate impact challenges to

“adults-only” housing requirements)

Oa ees

Se le en ee

impact analysis Most significantly, the Secretary of Housing

and Urban Development (“HUD”), who has “[t]he authority

and responsibility for administering th[e] Act,” 42 USC

§ 3608(a), has endorsed disparate impact See HUD vy

Mountain Side Mobile Estates, 2 Fait Hous -Fair Lend Rptr

(P-H) 4 25,083, at 25,492-93 (HUD Sec’y), on remand, id

did not resolve the issue whether disparate impact is a valid

basis of liability — and, as amici have just explained, it plainly

does - an administrative construction adopted through

adjudication is entitled to the highest degree of deference

See United States y Mead Corp., 533 US 218, 230-31 &

n 12 (2001) "

In addition, the Assistant Secretary for Fair Housing and

Equal Opportunity has told Congress that “(t]he standards to

determine discrimination [in home insurance under the

FHA] - as in all other covered areas — will be based on the

principles of overt discrimination, disparate treatment, and

disparate impact’ See Hearing on Homeowners Insurance

Discrimination Before the Senate Comm. on Banking,

Housing, and Urban Affairs, 103 Cong 52 (1994) Similarly,

HUD’s handbook for its FHA enforcement staff endorses

impact theory '* Thus, even if Chevron deference did not

apply to the Secretary's interpretation, the view of FHA law

‘This conclusion is not altered by the fact that the Tenth Circuit

reversed this decision on other grounds Mountain Side Mobile states

P'ship v. Secretary of HUD, 56 F 3d 1243 (10th Cir 1995) In fact, the

Tenth Circuit expressly endorsed the Secretary's view that the FHA

includes a disparate impact cause of action /d at 1250-51

'* See HUD, No 8024 01, Title VI/J Complaint Intake, Investigation,

and Conciliation Handbook, 3-25 (1995) (housing policy violates the

FHA if it has a discriminatory motive or “a disproportionately negative

effect upon [protected] persons”), id pt. 7-12, at 7-20 to 7-23 (idenufying

“overt discrimination, disparate treatment, and disparate impact” as types

of illegal discnmunation under the FHA), id pt 5-10-A-4, at 5-57 (facially

neutral land-use ordinances may violate the FHA if they have a “disparate

impact’)

reflected in these various HUD pronouncements is entitled to

Skidmore deference. Mead, 533 U.S. at 227-28.

Other agencies have also interpreted the FHA to include a

disparate impact cause of action. As part of its enforcement

responsibilities under the FHA,"° the Justice Department has

often successfully urged the lower courts to adopt an impact

standard in FHA cases, particularly those dealing with

exclusionary land-use decisions by local governments. See,

e.g., Yonkers, 837 F.2d at 1217; City of Parma, 661 F.2d at

564-65, 576; United States v. Mitchell, 580 F.2d 789, 791-92

(Sth Cir. 1978); City of Black Jack, 508 F.2d at 1184-85.

Moreover, in 1994, HUD, Justice, and eight other federal

agencies that regulate financial institutions, including the

Federal Reserve Board and the Office of the Comptroller of

the Currency, adopted a joint ‘Policy Statement on

Discrimination in Lending” recognizing that proof of

disparate impact is sufficient to establish a violation of the

FHA. See 59 Fed. Reg. 18266, 18269 (Apr. 15, 1994).

Although these agencies lack the interstitial lawmaking power

delegated to the Secretary of HUD, their consistent views are

also entitled to Skidmore deference, and confirm the propriety

of the Secretary’s determination that the FHA provides a

disparate impact cause of action.

CONCLUSION

For these reasons, the judgment of the court of appeals

should be affirmed.

practice” and “general public importance” cases); id § 3610(g)(2)(C)

(requiring HUD to refer administrative complaints that involve zoning or

other land-use laws or ordinances to the Attorney General for appropriate

action under § 3614).

-— —_—— ee

Respectfully submitted,

JOHN P. RELMAN JOSEPH R. GUERRA*

MEERA TREHAN THOMAS HEALY

RELMAN & ASSOCIATES SIDLEY AUSTIN BROWN &

1350 Connecticut Ave., N.W. WoOobD LLP

Washington, D.C. 20036 1501 K Street, N.W.

(202) 728-1888 Washington, D.C. 20005

(202) 736-8000

ROBERT G. SCHWEMM

UNIVERSITY OF KENTUCKY

College of Law, Room 209

Lexington, Kentucky 40506

(859) 257-6013

Counsel for Amici Curiae

November 20, 2002 * Counsel of Record

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