Neighbor-on-neighbor harassment: does the Fair Housing Act make a federal case out of it?

Author:Schwemm, Robert G.

    "This is a nice neighborhood--we don't want people like you here. Why don't you go back to the ghetto where you belong." (1) Does the federal Fair Housing Act (2) ("FHA") ban such statements to a minority family who has just moved into a predominantly white neighborhood? The FHA does contain an antiharassment provision (42 U.S.C. [section] 3617), (3) and this certainly applies to firebombings and other types of physical assault designed to drive the family out of the area. (4) But does [section] 3617 also outlaw purely verbal attacks? And if so, how egregious must the remarks be before a federal case should be made out of them? For example, would substituting "Niggers" for "people like you" in the above quote make a difference?

    Today, more than forty years after the FHA's enactment in 1968, (5) housing harassment remains pervasive. (6) Harassment and retaliation claims continue to account for a significant portion of all FHA claims. (7) According to the U.S. Department of Housing and Urban Development ("HUD"), the agency primarily responsible for administering the FHA, (8) well over a thousand [section] 3617 complaints were filed with HUD and state and local fair housing agencies in each of the past four years. (9) A similar number of harassment claims are made each year to private fair housing groups. (10) In one particularly egregious example of neighbor-on-neighbor harassment, a Latino family in 2009 was awarded over $500,000 in damages against one of its white neighbors, although the legal basis for this case was state law, not the FHA. (11)

    Given how frequently housing harassment has occurred throughout the FHA's history, one might expect that the statute's application to neighbor-on-neighbor harassment would be settled by now. But a series of court decisions over the past decade--particularly two produced by the Seventh Circuit--has raised serious doubts about how this matter should be handled.

    The first of these came in 2004. Judge Posner's opinion in Halprin v. Prairie Single Family Homes of Dearborn Park Ass 'n, (12) held that homeowners subjected to anti-Jewish harassment by their neighbors could not sue under the FHA's main substantive provision ([section] 3604); it also suggested that [section] 3617 should be interpreted so as not to apply either. (13) Halprin's theory was that the FHA's protections are limited to homeseekers and do not also cover current residents. (14) But the Seventh Circuit rejected this theory five years later in its en banc opinion in Bloch v. Frischholz. (15) Among other things, Bloch "effectively overrule[d] Halprin as far as [section] 3617 is concerned." (16)

    While much of Halprin has now been swept aside, (17) its hostility to the idea of applying the FHA to most types of neighbor-on-neighbor harassment lives on. Indeed, Bloch itself endorsed this part of the Halprin opinion by announcing that the behavior condemned by [section] 3617 must be "more than a 'quarrel among neighbors' or an 'isolated act of discrimination,' but rather [must be] a 'pattern of harassment, invidiously motivated."' (18) Courts throughout the country have expressed similar misgivings about applying the FHA to neighbor harassment unless it involves systematic or highly abusive behavior. (19)

    But why should this be so? The text of [section] 3617 outlaws interference "with any person in the exercise or enjoyment of... any right granted or protected by" the FHA's substantive provisions. (20) This means, according to the governing interpretive regulation, that [section] 3617 bans "interfering with persons in their enjoyment of a dwelling" because of race or other FHA-prohibited factor. (21) Certainly, hostile race-based comments would seem likely to interfere with any reasonable minority's enjoyment of his or her home. Thus, if a neighbor verbally harasses a homeowner or renter because of that person's race, national origin, religion, or other factor condemned by the FHA, it would appear that this behavior is covered by [section] 3617.

    Court opinions that have dismissed such behavior as merely a neighbors' quarrel not worthy of being made into a "federal case" are essentially imposing some sort of de minimus defense on [section] 3617 cases, because they believe the FHA was not intended to impose a "civility code" on neighbors. (22) But the text of [section] 3617--surely the best indicator of congressional intent---contains no such defense. (23) Nor is this provision analogous to the one in Title VII that the Supreme Court has interpreted to prohibit only "severe or pervasive" harassment in the employment context. (24) Thus, the language of [section] 3617 might well be interpreted to extend to even isolated hostile remarks, at least so long as that interpretation does not run afoul of the speaker's First Amendment rights. (25) Furthermore, there are good reasons to suppose that congressional concerns underlying the FHA might well be advanced by broadly interpreting [section] 3617 to outlaw all forms of invidious harassment among neighbors. (26)

    This Article analyzes the issue of whether [section] 3617 should be interpreted to outlaw invidiously motivated disputes among neighbors. Part II begins by examining [section] 3617's text and its relationship to the overall FHA. It then reviews [section] 3617 decisions in neighbor harassment cases, including Halprin and Bloch. This analysis shows that the scope of [section] 3617 is governed by the meaning of "interfere with" and the relationship of [section] 3617 to the prohibitions it references in [section][section] 3603-3606. These issues are further analyzed in Part III, which examines [section] 3617's legislative history and purpose, its interpretation by HUD and courts in other types of [section] 3617 cases, Supreme Court decisions in analogous Title VII cases, and the issue of whether interpreting [section] 3617 to outlaw a neighbor's verbal abuse would pose First Amendment problems. The Article concludes that applying [section] 3617 to neighbors' quarrels (i.e., making a federal case out of them) is appropriate in a much broader range of cases than Halprin, Bloch, and many other decisions have allowed.


    1. [section] 3617's Text and Related Provisions

      The modern FHA is primarily the product of two statutes: the original law passed in 1968 (27) and the Fair Housing Amendments Act of 1988 (28) ("FHAA"). The current version of [section] 3617 was enacted by the FHAA and provides:

      It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title. (29) This language is identical in its substantive prohibitions to the version of this provision that was enacted in the original 1968 FHA. (30) The only change made by the 1988 amendments was procedural: the FHAA made violations of [section] 3617 subject to the statute's regular enforcement methods, which had previously controlled only claims under the FHA's other substantive provisions. (31)

      The text of [section] 3617 shows that three elements are required for its violation: (1) the defendant must "coerce, intimidate, threaten, or interfere with" some person (2) "in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of' (3) a "right granted or protected by" [section][section] 3603-3606. As for the first element, the meaning of the four verbs--particularly "interfere with"--is crucial in determining how far [section] 3617 goes in outlawing neighbor-on-neighbor harassment. The second element has three alternative parts, one of which--"having aided or encouraged" another--has produced a good deal of [section] 3617 litigation, (32) but is not generally relevant to the problem of the harassment of minorities, whose [section] 3617 claims turn on whether the behavior directed against them is in response to "the exercise or enjoyment off their own FHA rights. Finally, a person asserting a claim under [section] 3617 must be, or must have been, exercising or enjoying a "fight granted or protected by" [section][section] 3603-3606.

      The FHA provisions referred to in [section] 3617, i.e., [section][section] 3603-3606, contain the substantive heart of the statute. The most important of these provisions is [section] 3604, whose subsections (a) and (b) make it unlawful, respectively, to "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" (33) and to "discriminate 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 race, color, religion, sex, familial status, or national origin." (34) The rest of [section][section] 3603-3606 outlaws various other specified discriminatory housing practices. (35)

      One other provision worth mentioning here is [section] 3631, which was passed along with the 1968 FHA as a separate title and which provides for criminal sanctions for anyone who "willfully injuries [sic], intimidates or interferes with" another's fair housing rights "by force or threat of force." (36) Although technically not a part of the FHA, [section] 3631's prohibitions concerning interference with fair housing rights parallel those of [section] 3617, and the same behavior may produce both a criminal charge under [section] 3631 and a civil claim under [section] 3617. (37)

    2. [section] 3617 Case Law...

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