Vol. 41, No. 2, Spring 2009

Vol. 41, No. 2, Spring 2009

Publication Date: June 11, 2009

SYMPOSIUM ON FAIR HOUSING TESTING

 

Otto J. Hetzel, Introductory Comments on the Fair Housing Testing Conference and the Importance of Testing to Achieve Compliance with the Fair Housing Act, 41 Urb. Law. 229 (Spring 2009).
A conference on fair housing testing was held at Wayne State University Law School, through its Fair Housing Educational Program, and the Fair Housing Center of Metropolitan Detroit, its partner in providing fair housing educational training. We are aware of no other training held exclusively on this topic since the enactment of the Fair Housing Act (FHA) in 1968. The Conference also celebrated the fortieth anniversary of the Fair Housing Act and completed thirteen years of sponsorship of fair housing training developed by these two organizations.

Fred Freiberg, A Test of Our Fairness, 41 URB. LAW. 239 (Spring 2009).
This article focuses on how testing has been used to enforce fair housing laws.  After providing a brief historic timeline of how fair housing laws have evolved, Mr. Freiberg discusses what is needed to ensure that fair housing testing is used more extensively and effectively going forward.

Liam Garland, Reflections on: Housing Rights Center v. Krug, 41 Urb. Law. 249 (Spring 2009).
Garland takes a critical view of Housing Rights Center v. Krug, as he discusses the issue of housing discrimination and current methods of enforcing housing discrimination laws. In Krug, the fair housing organization won handily in a case based primarily on testing. This case represents the exception rather than the rule.  The rule is that victims of discrimination rarely report to a fair housing organization or the government when they suffer discrimination. Garland advocates for a new system based on proactive and systematic testing. Garland discusses the background of Krug and the role of testing in proving a fair housing organization’s standing, a housing provider’s liability, and organizational damages and then discusses the implications of fair housing enforcement. Garland identifies important concerns in how testing evidence is handled at trial and offers Krug’s implications for our current, complaint-based system for fair housing enforcement. Specifically, Garland claims Krug both vindicates and indicts aspects of the current system of fair housing enforcement because it is based primarily on complaints and that the lack of complaints is evident of a broken system, not adherence to the laws. Garland claims testing for housing discrimination is vital but not error-proof. Its use may be essential in proving liability in certain fair housing cases and may also serve as the predicate upon which a fair housing organization can recover damages through litigation.

Clifford C. Schrupp, Keep on Testing, 41 Urb. Law. 267 (Spring 2009).
This article addresses some of the common questions related to fair housing testing.  When and who to test are always a key questions.  Mr. Schrupp provides some examples of typical situations when testing occurs and who to test.  Other key questions that fair housing testing practitioners should know are what variables to test, how often testing is needed, and how much evidence of discrimination is enough.

The Honorable Avern Cohn, Fair Housing Testing, 41 Urb. Law. 273 (Spring 2009).
This article describes fair housing testing from a judge’s perspective.  Honorable Cohn discusses the variety of forms that housing discrimination can occur.  Then, the article focuses specifically on how housing discrimination has developed in Michigan.  Finally, Honorable Cohn lends his own personal perspective about housing discrimination cases.

The Honorable Victoria A. Roberts, The Presentation of Testing Evidence in Court Cases, 41 Urb. Law. 283 (Spring 2009).
This article uses Metropolitan St. Louis Equal Housing Opportunity Council v. Gundaker to discuss testing evidence in fair housing cases, including: what “respectable” testing evidence needs to look like during trial; how Daubert v. Merrell Dow Pharmaceuticals, Inc. can guide the discussion of testing standards; the application of Daubert to housing disparate impact cases; the burden of proof; and credibility of tester witnesses.  Absent matched pair testing evidence, or video surveillance, the opportunity for data collection in housing discrimination cases is very limited. Courts have recognized the value of testing to prove discrimination.  With respect to the matched-pair testing, not making this match as similar as reasonably possible opens up the possibility that other factors influenced the results of the tests.  Consequently, the weight which will be given the test at trial, and its validity, is considerably lowered.  Thus, while testing evidence is only initially prepared in connection with a claim for individual disparate treatment, if Daubert is kept in mind as evidence is gathered and as testers are being trained, it may serve as the underpinning of an expert’s opinion in a disparate impact case.  Although the Daubert standard is not an evidentiary standard required to be met at trial, keeping Daubert in mind will certainly help attorneys and fair housing centers develop better testing evidence.

P. Rivka Schochet, A Case Study of Paired Testing: Documenting Differences Contributes to a $725,000 Consent Decree, 41 Urb. Law. 293 (Spring 2009).
In April 2005, the Fair Housing Center of Metropolitan Detroit (“FHC”) filed a complaint in the United States District Court for the Eastern District of Michigan in Fair Housing Center v. General Properties, which alleged that defendants, owners and operators of a 273 unit apartment complex in Livonia, Michigan, violated the Fair Housing Act (“FHA”) and the Elliott Larsen Civil Rights Act by engaging in an ongoing pattern or practice of race discrimination in the rental of apartments. The FHC initiated testing after the president of a management company who formerly worked at General Properties’ apartment complex reported to the FHC that the property owner and manager had directed a leasing agent to discriminate against African Americans. The FHC’s tester training, testing protocols, and comparison methodology provided an important foundation for counsel to proceed with this suit. This article begins with a brief overview of testing and its acceptance as a valid methodology and evidentiary tool in fair housing lawsuits generally, as an introduction to a more detailed review of the role of matched pair testing in this particular lawsuit. Placed in practical context, the value of testing is apparent.

Judith Levy, Handling Civil Rights Cases—An Assistant United States Attorney’s Perspective, 41 Urb. Law. 303 (Spring 2009).
This article provides insight about housing discrimination cases from an Assistant United States Attorney’s point of view.  Ms. Levy describes her own personal involvement with housing discrimination cases.  Her unique experience offers a look into the civil rights practice of an Assistant United States Attorney.

John Obee, The Importance of Testing Evidence in Housing Discrimination Sales Transactions: Two Case Studies, 41 Urb. Law. 309 (Spring 2009).
In the forty years since the adoption of the federal Fair Housing Act, fair housing centers and civil rights attorneys have primarily used one key means of developing evidence of unlawful housing discrimination, i.e., testing. The importance of testing evidence in developing a housing discrimination case cannot be overstated. Testing evidence can establish irrefutable, comparative evidence of unlawful discrimination and is an objective means of resolving credibility contests between parties. In interpreting the Fair Housing Act, the Supreme Court and the federal courts of appeal have held that both prospective purchasers and protected class testers are entitled to truthful information when inquiring about the availability of a home or an apartment.

Steve Tomkowiak, Using Testing Evidence in Mortgage Lending Discrimination Cases, 41 Urb. Law. 319 (Spring 2009).
This article proposes that testing evidence used to provide evidence of unlawful discrimination in mortgage lending cases is equally as useful as its traditional application in fair housing cases.  Testing evidence can provide direct evidence of mortgage lending discrimination, or provide indirect, circumstantial proof of discrimination under disparate treatment and disparate impact theories of liability.  Testing has also been used in systemic studies of mortgage lending practices.  Because of the usefulness of testing evidence in mortgage lending discrimination cases, testing should be considered as a potential investigatory tool in each instance of suspected lending discrimination.

ARTICLES

Braham Boyce Ketcham, The Alexandrian Planning Process: An Alternative to Traditional Zoning and Smart Growth, 41 Urb. Law. 339 (Spring 2009).
This article proposes an alternative to traditional American zoning practices which is based on the work of the visionary architect Christopher Alexander. Alexander’s approach to architecture has broad implications for building and site design, as well as planning and development. Alexandrian planning represents a very different conception of the goals and methods of land use planning, focusing on a process rather than a planned final result.  Instead of following a detailed master plan, this process would be generative, creating an environment that favors small, incremental improvements. Changes should be proposed and initiated by the users of a space, allowing uses to adapt in a way that centralized planning simply cannot produce. While there is considerable overlap between Alexander’s philosophy and the recent trend of smart growth, the differences are significant: Alexandrian planning is a unique solution.

Dan Tesini, Working Forest Conservation Easements, 41 Urb. Law. 359 (Spring 2009).
This article discusses the new and growing concept of Working Forest Conservation Easements in both private and public situations. WFCEs are a powerful conservation tool that has been successfully applied to protect large tracts of the remaining productive forestland. By avoiding the need for fee simple purchase, WFCEs have enabled the conservation groups, the forest industry, and local communities to stretch conservation dollars to the max and thereby protect millions of acres of forestland from fragmentation and development. The article also discusses the current and potential issues presented by the implementation of this concept such as monitoring and development of management standards based on best management practices and applicable state and federal laws. The article provides methods to procure funding from federal, state and local entities. It describes the process of starting, funding, and running a WFCE.

With Cases Notes on:

Colorado Christian Univ v. Weaver

American Life Coalition v. Stanton

Parker v. Hurley

Kalson v. Paterson

N.C. ex rel. Cooper v. Tenn Valley Auth.

Natural Resources Defense Council v. United States Environmental Protection Agency

Jaynes v. Commonwealth

Cedar Lake Conf. Ass’n v. Lake County Prop. Tax Assessment Bd. of Appeals

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