DISPARATE IMPACT: GOV’T DEFENDANTS

Huntington Branch

Continued

DQ131: Town’s Justifications

For Zoning rules? Trying to get developers to build in depressed “urban renewal” area.

DQ131: Town’s Justifications

For Zoning rules? Trying to get developers to build in depressed “urban renewal” area.

Court rejects because:

• can do w/o outright ban on multi-family homes outside depressed area (incentives)

• maybe counterproductive; builders don’t have to work in Huntington; can just go elsewhere

DQ131: Town’s Justifications for Rejecting Proposal

Site-Specific• sewage• traffic• health hazard from

substation

Plan-Specific• parking• fire protection• inadequate

recreation areas• small units

DQ131: Plan-Specific v. Site-Specific Justifications

Site-Specific: Site chosen won’t work for this kind of project. E.g.:

• toxic waste dump next door

• site too small for multi-family housing

DQ131: Plan-Specific v. Site-Specific Justifications

Site-Specific: Site chosen won’t work for this kind of project.

Plan-Specific: Site OK; need to fix specifics of plans for this project

DQ131: Plan-Specific v. Site-Specific Justifications

Site-Specific: Site chosen won’t work for this kind of project. Hard to get around.

Plan-Specific: Site OK; need to fix plans for this project. Easier to get around:

• often can let project proceed w modifications • instead of “no” can say: allow if meet specs• less discriminatory alternative almost always

available

DQ131: Town’s Justifications for Rejecting Proposal

Site-Specific• sewage• traffic• health hazard from

substation

Plan-Specific• parking• fire protection• inadequate

recreation areas• small units

DQ131: Town’s Justifications for Rejecting Proposal

Site-Specific• sewage• traffic• health hazard from

substation

Not Supported by Evidence in Record

Plan-Specific• parking• fire protection• inadequate

recreation areas• small units

2d Circuit Balance in Huntington Branch

• strong effect v. • weak reasons by town +• town not forced to build +• [unstated: evidence of intent] =Plaintiffs win

Qs on 2d Circuit Opinion?

HBII: Supreme Court Opinion

• Mandatory jurisd. at the time: state statute struck via Supremacy Clause

• Affirms just portion dealing w zoning ordinance on narrow grounds:– Assuming disparate impact cause of action

exists, sufficient evidence to support result

– Inadequate justification given by town

HBII: Supreme Court Opinion: Precedential Value Unclear

• Specifically declined to decide if disparate impact cause of action exists for FHA

• BUT no justice said otherwise• Every lower court since says yes• SCt recently recognized for ADEA (Age)

b/c supposed to parallel Title VII; cd make same argument here

DISPARATE IMPACT: PRIVATE DEFENDANTS

Need to know 3 versions of Legal Test1. Betsey

2. Arlington Hts (Congdon)

3. 4th & 10th Cir. (see DQ 138)

Betsey Test:

(Similar to Blackjack (8th Cir) for govt defdts)

1. P shows disproportionate impact

2. Then D must prove business necessity sufficiently compelling to justify the impact

Betsey Test: Impact

1. Usually proved by statistics; not integral to this classa. I’ll make very clear; not ask you to assess

close cases re stats

b. Info on statistics in Note (pp.362-64)

Qs on Statistics or Note?

Betsey Test: Impact

1. Usually proved by statistics

2. Like Huntington: 2 Kinds of Effect Relevant

• impact on community (segregation/integration)• impact on affected group (residents of affected

bldgs)

Betsey Test: Impact

1. Usually proved by statistics

2. Two Kinds of Effect Relevant• impact on community

• impact on affected group– Raises hard Q of when pool is too small.– Why not require community effect? Maybe

concern re many small ldlds with cumulative effect

Betsey Test: Business Necessity

Implicit Questions:

a. How necessary?

b. How much cost should landlord bear to achieve statutory goals (“sufficiently compelling to justify”)?

Betsey Test: Business Necessity

Court remands for application of defense:a. policy in Q exclusion of families w children

(pre-1988)

b. Evidence that might meet this test in Betsey? i) Tenants moving out b/c prefer adults only bldgs

ii) Harm to bldg/units from children

iii) Can’t charge as much rent

iv) Other?

Congdon v. Strine

• Neutral Policy Challenged? Refusal to Get Elevator Into Good Repair

• Applies Arlington Heights II factors even though they were designed for government defendant

Congdon v. Strine: Arlington Heights II factors

1) Strength of effect

2) Evidence of some intent

3) D’s interest/justification

4) Type of Remedy Requested?

Congdon v. Strine: Arlington Heights II factors

1. Strength of effect• Affected disabled P more severely than

other tenants • Can’t get out as much; physical problems

using stairs.

2. Evidence of some intent

3. D’s interest/justification

4. Type of Remedy Requested?

Congdon v. Strine: Arlington Heights II factors

1. Strength of effect

2. Evidence of some intent• Lack of evidence of intent “weighs in

Strine’s favor” • Arl Hts II says it shouldn’t; otherwise

drifting into disparate ttreatment

3. D’s interest/justification

4. Type of Remedy Requested?

Congdon v. Strine: Arlington Heights II factors

1. Strength of effect

2. Evidence of some intent

3. D’s interest/justification• Court: D has no interest in elevator not

working !!??

4. Type of Remedy Requested?

Congdon v. Strine: Arlington Heights II factors

1. Strength of effect

2. Evidence of some intent

3. D’s interest/justification• Court: D has no interest in elevator not

working• Real Q: D’s interest in not fixing:

• lots of $ to replace/repair?• could just be lazy

4. Type of Remedy Requested?

Congdon v. Strine: If Betsey Applied

1. Strength of Effect: Same

Congdon v. Strine: If Betsey Applied

1. Strength of Effect: Same

2. Business Necessity Defense:– New elevator wd cost $65,000. too much

for 1 apt?– Might also look at cost of better

maintenance?