Monday, April 23, 2007

Oliveri on the FHA

Rigel Christine Oliveri (University of Missouri-Columbia) has posted Is Acquisition Everything? Protecting the Rights of Occupants Under the Fair Housing Act on SSRN.  Here's the abstract:

This Article addresses a recent trend among the federal courts to deny housing discrimination claims under the Fair Housing Act in cases where the plaintiff was an occupant of the housing at the time the discrimination occurred. Put another way, the courts have begun to read the FHA as protecting only the right to obtain housing, not the right to occupy that housing free of discrimination.

The trend began with a 2004 Seventh Circuit opinion authored by Judge Richard Posner in the case of Halprin v. The Prairie Single Family Homes. Halprin dismissed most of the claims of a Jewish couple who alleged that the President of their Homeowner's Association discriminated against them in a variety of ways. The sole reason for the dismissal was that the couple already owned their home and, according to Judge Posner, the FHA is concerned only with access to housing. Nearly a dozen federal courts have since followed suit.

This Article argues that Halprin was wrongly decided, and critiques the reasoning Judge Posner used to reach his conclusion. Next, the Article proposes a better method of determining how the Act should apply: specifically, that language in the FHA which limits the application of particular provisions to the "sale or rental of housing" is intended to refer to the relationship between the parties, and not to a particular point in time. This interpretation has the advantage of reaching not only landlords who discriminate against tenants, but also defendants such as Homeowner's Associations and municipalities, which are capable of discriminating against individuals who have purchased their homes.

Halprin's analysis will have potentially disastrous consequences for fair housing law, and it represents a departure from the manner in which remedial civil rights statutes have heretofore been interpreted. The Article concludes by situating Halprin within the broader debate between neoconservatives and Critical Race scholars about the proper aims of civil rights law in this "post civil rights" era.

Ben Barros

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