Justifying facial discrimination by government defendants under the Fair Housing Act: which standard to apply?

• Author: Bridges, Kaitlin A.
• Position: NOTES

1. INTRODUCTION

   Since its inception, the Fair Housing Act (1) has played a vital role in the exposure and reduction of housing discrimination. (2) Victims of housing discrimination can use several theories to establish a prima facie case under the Fair Housing Act, (3) one of which is the facial discrimination theory, which applies when a law or policy discriminates against members of a protected group on its face. (4) While there appears to be no debate over how a plaintiff establishes a prima facie case of facial discrimination, several of the United States Courts of Appeals are split regarding the standard that reviewing courts should use when they examine a defendant's asserted justifications for the discriminatory treatment. (5) Of the circuits that have dealt with this issue, three have adopted a rigorous standard that is more favorable to plaintiffs, while only one has adopted a more encompassing standard that grants great deference to the defendant's justification in cases that involve discrimination against certain protected classes. (6)

   This Summary will discuss the standard that the Sixth, Ninth, and Tenth Circuits have adopted, as well as the opposing viewpoint of the Eighth Circuit. In discussing the various standards that courts of appeals have adopted, this Summary will demonstrate that the standard currently employed by the Eighth Circuit fails to adequately prevent and protect citizens from housing discrimination, as intended by the Fair Housing Act. The Summary will ultimately conclude that the Sixth, Ninth, and Tenth Circuits have applied the appropriate standard, and that the Eighth Circuit needs to join those Circuits in applying a standard that encourages those wronged by housing discrimination to challenge unfair housing policies and practices.

2. LEGAL BACKGROUND

   1. The Fair Housing Act and Discrimination

      The Fair Housing Act makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." (7) Additionally, it is 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." (8) Courts have interpreted the phrase "otherwise make unavailable" broadly, and have generally held that practices such as zoning restrictions that have a discriminatory impact on protected groups of people are prohibited by the Fair Housing Act. (9)

      A plaintiff can establish a prima facie case of unlawful discrimination in violation of the Fair Housing Act by using one of two theories: disparate treatment or disparate impact. (10) Under a disparate treatment theory, "a plaintiff can establish a prima facie case by showing that animus against the protected group 'was a significant factor in the position taken.'" (11) Under a disparate impact theory, on the other hand, "a prima facie case is established by showing that the challenged practice of the defendant 'actually or predictably results in ... discrimination; in other words that it has a discriminatory effect.'" (12) The major difference between these two theories of discrimination is that in a disparate impact case, the plaintiff does not have to prove that the discrimination was intentional in order to prevail. (13) However, in a disparate treatment case, the plaintiff is required to show that a "'discriminatory purpose was a motivating factor.'" (14) In either a disparate treatment or disparate impact case, once the plaintiff establishes his or her prima facie case of discrimination, the burden will shift back to the defendant, who will then have the opportunity to attempt to justify his or her actions and avoid liability. (15)

      There is also a subgroup of disparate treatment cases that proceed on a theory known as facial discrimination. (16) This type of case arises when a legislative act or any other rule or policy applies different rules to a protected group of people than are applied to another group of people. (17) Such an act or policy should be easy to identify because, by simply reading the rule, it will be apparent on its face that it treats two groups of people differently and, therefore, is discriminatory. (18) Despite the fact that facial discrimination cases are considered to be disparate treatment cases, which generally require proof of some level of intent, "'[w]hether [a] ... practice involves disparate treatment through explicit facial discrimination does not depend on why the [defendant] discriminates but rather on the explicit terms of the discrimination.'" (19) Therefore, a plaintiff proceeding under a facial discrimination theory establishes a prima facie case "merely by showing that a protected group has been subjected to explicitly differential--i.e. discriminatory--treatment." (20) As with disparate impact cases and general disparate treatment cases, after the plaintiff establishes this prima facie case, the defendant has the opportunity to demonstrate that, despite the differential treatment, his or her actions were justified. (21) It is at this point in the analysis of facial discrimination cases that a controversy has arisen and a circuit split has developed.

   2. Sixth and Tenth Circuits on Facial Discrimination

      The Tenth Circuit was one of the first United States Courts of Appeals to consider a municipality's facially discriminatory housing policy. (22) In Bangerter, the plaintiff, a mentally disabled man, was sent to live in a group home after being released from the Utah State Developmental Center. (23) Shortly after the plaintiff's arrival at the group home, it was discovered that the home did not have a conditional use permit, which was required under a city ordinance. (24) The home applied for and eventually received the required permit, but it was contingent on the home's compliance with two conditions: twenty-four hour supervision of the home's residents and creation of a committee which would address citizen complaints and concerns about the home. (25) The plaintiff then filed a lawsuit against the city, alleging that the conditions imposed by the conditional use permit were not imposed on other non-handicapped persons and thus were discriminatory, in violation of the Fair Housing Act. (26)

      The district court determined that the plaintiff "did not allege that [the city] acted with a discriminatory motive, and thus could not state a claim for discriminatory intent." (27) The Tenth Circuit, however, disagreed with the district court on the basis that the conditional use permit requirements were facially discriminatory. (28) The court pointed out that when a policy or requirement blatantly discriminates against a group of people protected by the Fair Housing Act, less proof is required to establish a prima facie case. (29) More specifically, "a plaintiff need not prove the malice or discriminatory animus of a defendant to make out a case of intentional discrimination where the defendant expressly treats someone protected by the [Fair Housing Act] in a different manner than others." (30) At the same time, however, the Tenth Circuit noted that facially discriminatory policies should not be automatically invalidated because it is possible that such a policy has a legitimate justification. (31)

      Turning to the standard for determining exactly when a facially discriminatory policy is justifiable and should be permitted, the Tenth Circuit determined that the district court had improperly applied a rational relationship test. (32) Instead of applying this test from equal protection jurisprudence, the Tenth Circuit determined that "[t]he proper approach is to look to the language of the [Fair Housing Act] itself, and to the manner in which analogous provisions of Title VII have been interpreted, in order to determine what justifications are available to sustain intentional discrimination." (33) The court then identified sufficient justifications: the requirement must either be rooted in individualized public safety concerns or clearly be for the benefit of the protected class rather than for the purpose of discriminating against such class. (34) Before remanding the case to the district court to apply the new standard, the Tenth Circuit made a point to remind courts applying this standard that a certain level of flexibility will be necessary for the Fair Housing Act to reach the potential Congress intended it to have. (35)

      In 1996, a year and a half after the Tenth Circuit's decision regarding facially discriminatory housing policies, the Sixth Circuit found itself facing a case that presented the same issue. (36) In Larkin, the plaintiff applied for a license that would permit her to open an adult foster care center for disabled persons. (37) Her application was denied due to failure to comply with spacing requirements imposed by the Michigan Adult Foster Care Licensing Act (MAFCLA). (38) MAFCLA prohibited residential facilities like the one in question from being erected within 1,500 feet of another such facility or in a location in which the facility would "substantially contribute to an excessive concentration of state licensed residential facilities." (39) After her application was denied, the plaintiff filed a lawsuit alleging that MAFCLA's spacing requirements violated the Fair Housing Act. (40)

      The Sixth Circuit began by discussing the two theories available in housing discrimination cases: disparate impact and disparate treatment. (41) Noting that MAFCLA's spacing requirement only applies to facilities that house disabled persons, like that proposed by the plaintiff, and not to other similar facilities, the court determined that such a facially discriminatory provision raises a claim of disparate treatment. (42) Due to the facial nature of the discrimination, the Sixth Circuit explained that a finding of...