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?