A Herculean leap for the hard case of post-acquisition claims: interpreting Fair Housing Act section 3604(b) after Modesto.

Author:Pennisi, Mary

Introduction I. Background of the Fair Housing Act A. History of the FHA 1. The Statute 2. Legislative History 3. Social History B. Theories of Statutory Interpretation 1. Meaning-Based Theories 2. Intent-Based Theories 3. Alternative Theory: Coherency Theory II. Circuit Split After Committee Concerning Community Improvement v. City of Modesto A. Modesto and Other Federal Cases Applying FHA To Post acquisition Claims 1. Modesto a. Facts b. Holding 2. Other Lower Federal Courts' Interpretations of [section] 3604(b) B. Federal Cases Failing to Apply the [section] 3604(b) to Post acquisition Claims 1. Fifth Circuit 2. Seventh Circuit a. Halprin v. Prairie Single Family Homes b. Bloch v. Frischholz III. Taking a Herculean Leap: A Dworkinian Resolution to the Circuit Split A. The Applicability of Dworkin's Theory 1. The Inadequacy of Meaning-Based Theories 2. The Inadequacy of Intent-Based Theories 3. The Inadequacy of HUD Regulations and Chevron Analysis 4. Coherence Theory as a Viable Solution to the Dworkinian Tie B. Applying Dworkin's Theory to the Circuit Split 1. The Incoherency of Categorizing Discrimination as Pre- and Post-Acquisition and the Shortcomings of Bloch v. Frischold 2. A Coherent Solution Conclusion The hard truth on the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation. (1) Housing was the last plank in the civil rights revolution, and it is the realm in which we have experienced the fewest integration gains. (2) INTRODUCTION

Lynne Bloch and her family peacefully occupied their Chicago condominium for over thirty years. (3) Lynne even served on the condominium's association board. (4) As observant Jews, the Blochs kept a mezuzah affixed to their doorframe facing the hallway as required by the Jewish faith. (5) A mezuzah is a small parchment inscribed with Torah verses and encased in a carved box that is typically a few inches long and one inch wide. (6) Its size is comparable to that of a cigarette lighter or roll of Lifesavers candy. In September 2001, the board passed the "Hallway Rule," prohibiting residents from placing "[m]ats, boots, shoes, carts or objects of any sort" outside their doors. (7) Lynne did not foresee that the rule would impact her family's mezuzah. (8) However, in 2004, while repainting the hallways, the association removed all mezuzot and other religious symbols. (9) When Lynne affixed another mezuzah, the association once again removed it over her objections. (10) The removals continued even during the funeral of Lynne's husband, despite her request that the association allow her to display the mezuzah during the weeklong shiva. (11) Upon returning from her husband's burial with the family's rabbi, she found the mezuzah removed and felt humiliated while explaining its absence to him. (12) When she sued under the Fair Housing Act (FHA), the Seventh Circuit found that the Blochs could not raise a claim for post-acquisition discrimination under [section] 3604(b). (13) Judge Frank Easterbrook wrote, "[o]ur job is not to make the law the best it can be, but to enforce the law actually enacted." (14)

Housing discrimination remains pervasive during the post-acquisition phase, i.e., after homeowners or renters take possession of their dwellings, particularly in urban areas. (15) A split in federal circuit courts has left protection against housing discrimination for dwellers such as the Blochs under FHA [section] 3604(b) in a state of uncertainty. The FHA prohibits housing providers, e.g., landlords, homeowners, real estate companies, municipalities, and insurance companies, from discriminatorily making housing unavailable to members of certain groups based on their race, religion, sex, national origin, familial status, or disability. (16) Section 3604(b) specifically prohibits "discriminat[ion] against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith" because of a protected characteristic. (17)

On October 8, 2009, Committee Concerning Community Improvement v. City of Modesto (18) created a split in federal circuit courts over whether FHA [section] 3604(b) applies to discrimination that occupants suffer after acquiring their dwellings. The Ninth Circuit (19) and many district courts (20) have held that [section] 3604(b) applies to post-acquisition events. By contrast, the Fifth Circuit (21) and Seventh Circuit (22) narrowly interpret the FHA to limit [section] 3604(b) to claims involving discrimination that occurs during the preacquisition phase or that amounts to constructive eviction. The Seventh Circuit's recent decision to rehear the Blochs' case en banc after Modesto reflects the exceptional importance and timeliness of this circuit split in civil rights jurisprudence. (23) The Seventh Circuit's painstaking effort to refashion the Blochs' post-acquisition claim into a pre-acquisition claim also demonstrates the arbitrariness of these temporal distinctions and reveals how the statute is fundamentally ambiguous.

This Note examines the split in federal circuit courts created by Modesto. Part I examines the history of the FHA and theories of statutory interpretation. Part II discusses the split in federal authority and both sides' interpretative methodologies and rationales. It demonstrates how the circuits subscribe to the same intent-based and meaning-based theories of statutory interpretation, yet arrive at different conclusions. Part III.A maintains that meaning-based and intent-based theories are unavailing because the disagreement between the circuits arises from a fundamental ambiguity in the statute regarding what constitutes housing access, integration, and the "privileges of sale or rental." Because traditional interpretive theories fail to resolve this ambiguity, Part III.B offers a solution based on an alternative interpretative theory, the Coherence Theory, developed by Ronald Dworkin. (24) The Coherence Theory posits that Modesto presents a Dworkinian tie because housing "access" can be conceptualized as either achieving genuine ongoing integration and discrimination-free housing or enabling protected classes to merely take and maintain physical possession of dwellings. This Note suggests that the Supreme Court should resolve the split in authority by interpreting the FHA to advance the "policies or principles that furnish the best political justification for the statute" as maintained by Dworkin. (25) It analyzes the related principles and policy issues concerning housing discrimination underlying the FHA and posits that the Supreme Court should recognize that the distinction between pre- and post-acquisition discrimination is arbitrary because housing availability, access, and integration involve ongoing rights that do not end at the point of acquisition. This Note concludes that the Supreme Court should abolish the distinction between pre- and post-acquisition discrimination by adopting the Ninth Circuit's interpretation and by allowing occupants such as the Blochs to seek redress under [section] 3604(b) for discriminatory treatment that occurs after acquiring their dwelling not amounting to constructive eviction.


    Part I explains the FHA and its history. It also reviews methods of interpretation that courts use to resolve close questions of statutory law.

    1. History of the FHA

      This section discusses the substantive provisions and enforcement mechanism of the FHA along with its legislative and social history. Congress enacted the FHA as Title VIII of the Civil Rights Act of 1968. (26) The FHA states that it "is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." (27) It protects particularly vulnerable groups against discrimination in housing. (28)

      1. The Statute

        Sections 3604, 3605, (29) and 3606 (30) of the FHA enumerate substantive rights and protections enforced under [section] 3617. (31) Sections 3604(a)-(c) and 3617 prominently figure into the debate over post-acquisition claims.

        Section 3604(a) protects particular classes of individuals against discriminatory refusals, which hinder them from acquiring a dwelling in the first instance by making it unlawful "[t]o refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." (32) The phrase "otherwise make unavailable" covers discriminatory acts that hinder individuals from obtaining housing through such means as racial steering, (33) discriminatory zoning, (34) discriminatory provisions of municipal services, (35) and mortgage or insurance redlining. (36) Section 3604(a) also protects dwellers against discriminatory acts that cause them to abandon or lose their dwellings, such as constructive eviction. (37)

        Section 3604(b) prohibits "discriminat[ion] against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith" because of a protected characteristic. (38) The section applies to: (i) proposed terms of sale or rental; (39) (ii) services or facilities related to the initial sale or rental transaction; (40) (iii) terms and conditions of housing after rental or sale, including discriminatorily subjecting a specific tenant to different rules or fines, imposing higher fines, increasing rent, (41) or adopting similar generally discriminatory rules; (42) (iv) maintenance or services connected to a dwelling, especially delaying repairs; (43) (v) privileges of using a dwelling; (44) (vi) harassment; (45) and (vii) provision of municipal services. (46) Post-acquisition claims under [section] 3604(b) most often involve discrimination in the terms and conditions of housing after rental or sale, such as...

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