Wednesday, September 24, 2008

Schwemm on Discriminatory Municipal Services under the FHA

Robert G. Schwemm (University of Kentucky) has posted Cox, Halprin, and Discriminatory Municipal Services under the Fair Housing Act on SSRN.  Here's the abstract:

For most of its forty-year history, the federal Fair Housing Act ("FHA") has been accorded a generous construction by the courts. The modern federal judiciary, however, has grown so hostile to civil rights that decisions narrowing the coverage of the Nation's anti-discrimination laws have become the norm. With respect to the FHA, this trend is reflected in two appellate decisions - Halprin v. The Prairie Single Family Homes Ass'n, 388 F.3d 327 (7th Cir. 2004), and Cox v. City of Dallas, 430 F.3d 734 (5th Cir. 2005) - that took remarkably narrow views of the FHA by denying that its principal provisions apply to post-acquisition cases brought by current residents.

These two decisions and the specific issue dealt with in Cox - whether the FHA prohibits the discriminatory provision of municipal services to minority neighborhoods - are the subject of this Article. 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 analyses the FHA's relevant provisions and their legislative history, an analysis that shows Cox and Halprin to have been wrong in denying 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's ultimate conclusion is that the analysis in Cox and Halprin is so flawed - and in particular has so misconstrued the FHA's 3604(b) - that it should be rejected by other courts.

Ben Barros

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