Fair Housing and the Causation Standard After Comcast

The Supreme Court last term held in the Comcast case that “but-for” causation must be shown by plaintiffs under the 1866 Civil Rights Act’s § 1981 and also announced that this standard is the default position presumed to govern all other federal civil rights statutes. This Article deals with how Comcast’s but-for presumption applies to fair housing cases. The answer is complicated, because these cases are often brought under multiple laws. For example, a Black applicant who is rejected by an apartment complex ostensibly for having inadequate income, but who believes this decision was racially motivated because the complex accepted a white tester with similar credentials, may sue under the Fair Housing Act, the 1866 Civil Rights Act’s § 1982, the Fourteenth Amendment’s Equal Protection Clause (if the complex is public housing or otherwise involves state action), and a state or local fair housing law. If the evidence shows the complex rejected the Black applicant both because of an unlawful motive (race) and a lawful one (economics), who should win? The answer depends on what causation standard applies in these laws. The causation issue seems easy enough to resolve for claims under the 1866 Civil Rights Act’s § 1982, the companion provision of the one involved in Comcast, which will now also be governed by the but-for standard. But in Equal Protection Clause claims, Comcast’s statutory presumption does not apply, and such claims have for decades been governed by the more lenient “motivating-factor” standard. And claims under state and local fair housing laws will vary from place to place, because they are also unaffected by the Comcast presumption concerning federal statutes and many of them provide for more lenient causation standards. The most difficult issue for housing discrimination cases will involve claims under the Fair Housing Act, whose “because of” prohibitions must now be taken to suggest, based on Comcast, a but-for standard. But a strong counterargument exists. For decades, the lower courts have rejected but-for causation in Fair Housing Act cases in favor of a more lenient standard. Moreover, this view was well-established by 1988 when Congress amended the Fair Housing Act without changing its crucial “because of” language, a fact that the Supreme Court has held may indicate Congress’s endorsement of prior established standards. And a further complication will arise in the growing number of Fair Housing Act suits that include a retaliation claim under the statute’s § 3617, which may, as in Title VII employment discrimination cases, have a different causation standard than that of the Fair Housing Act’s other substantive provisions. This Article concludes that, in multiclaim fair housing cases, courts will have to analyze the causation issue for each law separately, likely producing different results. As for the Fair Housing Act, most circuits will be bound by their precedents establishing a less-than-but-for standard, at least until an en banc decision makes a change. A circuit split on the Fair Housing Act issue seems likely, leading eventually to Supreme Court review or intervention by Congress, which, as the final authority on statutory matters, is ultimately responsible for resolving this issue

Standing to Sue in Fair Housing Cases

Few procedural issues have commanded more attention from the Supreme Court in recent years than standing. The question of who is a proper party to bring a particular claim has arisen in a variety of contexts, but the Court has been especially active in addressing standing problems in cases concerning allegations of housing discrimination. The recent decision of Gladstone Realtors v. Village of Bellwood marked the fifth time in the past decade that the justices have decided a fair housing case on standing grounds. The Supreme Court\u27s determination to emphasize standing issues in many of its early fair housing opinions means that these issues will be the focus of substantial litigation in the coming years. Therefore, it is essential that the problems in this area be understood and that some systematic and rational approach to their resolution be developed. This article is intended to be a contribution to that effort. The heart of the article is a detailed review of the five standing opinions produced thus far by the Supreme Court in fair housing cases. This discussion leads to a number of conclusions about the current state of the law and about the significant problems that remain to be solved. The types of claims and the types of claimants that may occur in housing discrimination suits are categorized in order to develop an overall approach to standing issues in this field. The basic question that underlies the entire article is whether a general rule-such as one that would recognize standing in any plaintiff who is injured in any way as a result of a fair housing violation-can be an appropriate and meaningful guide for deciding specific cases in this field or whether, since [g]eneralizations about standing to sue are largely worthless as such, each individual case or type of case must be governed by its own rules

Compensatory Damages in Federal Fair Housing Cases

The federal fair housing laws became effective in 1968. Since then, courts have often awarded damages to victims of housing discrimination, but their decisions have provided little guidance for assessing the amount of such awards. There is a great range of awards, with some courts awarding only nominal damages of $1 and others setting awards of over$20,000. Compounding the problem is the difficulty of measuring the principal element of damages claimed by most plaintiffs in fair housing cases, noneconomic emotional harm or other forms of intangible injury. Rarely is the basis for the amount of the court\u27s award satisfactorily explained in the opinion. Moreover, the amount awarded often bears little relationship to any evidence of actual injury to a particular plaintiff in a given case. In one recent decision, for example, the court set its award not by reference to the facts of the case before it, but by noting the range of a number of other fair housing awards and awarding an amount somewhere in the middle. Of course, when the case is decided by a jury, the jury is not required to make findings or to explain its verdict. This uncertain situation has created a substantial problem for courts, for litigants, and for the proper enforcement of the federal fair housing laws, particularly as higher awards have been made in recent years. The problem of evaluating intangible injuries has also become important in other civil rights contexts, such as suits for employment discrimination and actions based on constitutional violations by governmental officials. The solutions suggested in the fair housing field may well have an influence on the judicial response to damage claims in these other types of cases. This Article is an effort to address this problem and to determine if some systematic basis for evaluating compensatory awards in fair housing cases is possible. The legal basis for compensatory damage awards in housing discrimination cases is reviewed in Part I. That Part analyzes the provisions of federal fair housing laws and the construction of those provisions by the courts, as well as the legal arguments for application of the doctrine of presumed damages to housing cases. Part II surveys those factors which appear to have some influence on the amount of damages awarded. Based on a review of forty-six federal housing discrimination cases, that Part examines the relationship between the size of the award and such factors as the type of housing involved, the family and employment status of the plaintiff, and the wealth of the defendant. This analysis does not lead to a set formula that can predict award amounts, but it does suggest some elements that should be considered in determining the size of a fair housing award, and it gives some sense of what the approximate value of a given case might be

\u3cem\u3eCox\u3c/em\u3e, \u3cem\u3eHalprin\u3c/em\u3e, and Discriminatory Municipal Services Under the Fair Housing Act

This Article deals with Cox v. City of Dallas, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, and the issue of whether the Federal Fair Housing Act (FHA) should be interpreted to outlaw discrimination in the provision of services by local governments. Part I describes the Cox litigation and its connection with Halprin. Part II surveys the pre-Cox cases that have dealt with discriminatory municipal services. Part III analyzes the FHA\u27s relevant provisions and their legislative history and concludes that Cox and Halprin were wrong to deny FHA protection to current residents. Part IV builds on this analysis to provide a sounder approach to FHA claims alleging discriminatory municipal services. Although the result in Cox may be defended, this Article\u27s ultimate conclusion is that the analysis in Cox and Halprin is so flawed, and in particular has so misconstrued § 3604(b) of the FHA, that it should be rejected by other courts

Reflections on \u3cem\u3eMoving Toward Integration\u3c/em\u3e and Modern Exclusionary-Zoning Cases Under the Fair Housing Act

This Article has two parts: Part I presents my views on Moving Toward Integration [Richard H. Sander et al., Moving Toward Integration: The Past and Future of Fair Housing (2018)], and Part II examines one of the book’s policy recommendations for furthering residential integration—exclusionary zoning litigation—along with some of the roadblocks to this and other pro-integration efforts erected by the Trump Administration

Discriminatory Effect and the Fair Housing Act

This article addresses the question of whether housing practices that produce discriminatory effects violate the Fair Housing Act. The language and legislative history of the statute are examined, the analogy to employment discrimination law is explored, and the principal Title VIII cases are considered in an effort to determine just what racial discrimination is under the Fair Housing Act. This analysis leads to a suggested approach for evaluating Title VIII cases that are based on discriminatory effect, including how such an effect may be shown by the plaintiff and what significance such a showing should have in terms of the defendant\u27s burden of justification

Private Enforcement and the Fair Housing Act

The first section of the Fair Housing Act declares that [i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States. If the United States has been officially committed to providing for fair housing for the past 20 years, why is segregated housing still the prevailing norm throughout our nation? Why does discrimination still regularly occur when minority homeseekers venture into white areas? Why are the opportunities for living in stable, integrated neighborhoods only marginally better now than they were a generation ago in the days of Lyndon Johnson, Everett McKinley Dirksen, and Martin Luther King, Jr.? In short, why has the Fair Housing Act accomplished so little? This conference is an attempt to address these important questions. Earlier panels discussed the roles of federal, state, and local governments in enforcing the Fair Housing Act. This panel will examine what private people and private organizations can do and why their roles are so crucial. In many ways, private efforts under the Act have been more successful than governmental enforcement. A recounting of the impressive isolated achievements of private persons and local fair housing organizations, however, must not lull us into a sense of complacency. The fundamental question remains: can a law that relies so heavily on private enforcement ever succeed in systematically attacking the widespread patterns of discrimination and segregation in America\u27s housing