in the united states court of appeals - houston, texas · amici curiae . laura e. gómez, professor...

No. 17-1723 _______________________________________________________

IN THE

United States Court Of Appeals FOR THE FOURTH CIRCUIT

_______________________________________________________

ROSY GIRON DE REYES, et al.,

Appellants/Plaintiffs,

v.

WAPLES MOBILE HOME PARK, LIMITED PARTNERSHIP, et al.,

Appellees/Defendants. _________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

_________________________________________________________________

BRIEF OF AMICI CURIAE PROFESSORS OF LAW AND HISTORY IN SUPPORT OF APPELLANTS AND REVERSAL

_________________________________________________________________

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Gregory F. Laufer Andrew J. Markquart Andrew Kau 1285 Avenue of the Americas New York, NY 10019 (212) 373-3000 Counsel for Amici Curiae

Paul D. Brachman 2001 K Street, NW Washington, DC 20006 (202) 223-7300

Appeal: 17-1723 Doc: 37-1 Filed: 10/23/2017 Pg: 1 of 37 Total Pages:(1 of 38)

AMICI CURIAE

Laura E. Gómez, Professor of Law, Sociology and Chicana/Chicano Studies, University of California, Los Angeles

Ian Haney López, Earl Warren Professor of Public Law, University of California, Berkeley, School of Law

Michael A. Olivas, William B. Bates Distinguished Chair of Law, University of Houston Law Center

Stephen Pitti, Professor of History & American Studies, Yale University


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TABLE OF CONTENTS

Page

Table of Authorities ................................................................................................. iii

STATEMENT OF INTEREST OF THE AMICI CURIAE ...................................... 1

SUMMARY OF ARGUMENT ................................................................................ 1

ARGUMENT ............................................................................................................ 3

I. LATINOS HAVE HISTORICALLY BEEN TARGETS OF PERVASIVE AND LONG-ENTRENCHED DISCRIMINATION .............. 3

A. Discrimination Against Americans of Latino Origin Must be Understood in the Context of Discrimination Against Mexican Americans. ............................................................................................ 4

B. Latinos in the United States Have Been Subject to Pervasive Historical Discrimination, Including in the Context of Housing. ........ 6

1. Housing Discrimination ........................................................... 6

2. Lynching and Mob Violence .................................................. 10

3. Mass Deportations .................................................................. 11

4. Segregation in Public Education ............................................ 13

5. Discrimination in Voting Rights ............................................ 14

6. Exclusion from Juries ............................................................. 14

C. Discrimination Based on Immigration Status is Commonly Used as a Pretext for Racial Discrimination. ..................................... 16

II. THE FAIR HOUSING ACT BARS POLICIES THAT RESULT IN ARBITRARY AND UNJUSTIFIED DISCRIMINATION ......................... 18

A. Disparate Impact Theory Reaches the Discriminatory Effects of Policies, Whether or Not Tied to Past Intentional Discrimination. ................................................................................... 19


TABLE OF CONTENTS (Continued)

Page

ii

B. Appellants’ Claims Align with the FHA’s Goal of Remediating the Discriminatory Effects of Facially Neutral—Yet Arbitrary and Unnecessary—Housing Policies. ................................................ 22

CONCLUSION ....................................................................................................... 25


iii

TABLE OF AUTHORITIES

Page(s) CASES

Ave. 6E Investments, LLC v. City of Yuma, 818 F.3d 493 (9th Cir. 2016) .............................................................................. 23

Ave. 6E Investments, LLC v. City of Yuma, 217 F. Supp. 3d 1040 (D. Ariz. 2017) ................................................................ 21

Betsey v. Turtle Creek Assocs., 736 F.2d 983 (4th Cir. 1984) .................................................................... 2, 22, 24

Cent. Ala. Fair Hous. Ctr. v. Magee, 835 F. Supp. 2d 1165 (M.D. Ala. 2011) ....................................................... 23, 25

Clifton v. Puente, 218 S.W.2d 272 (Tex. Civ. App. 1948) ................................................................ 7

Espinoza v. Hillwood Square Mut. Ass’n, 522 F. Supp. 559 (E.D. Va. 1981) ...................................................................... 23

Hernandez v. Texas, 347 U.S. 475 (1954) .................................................................................. 4, 14, 15

Nat’l Fair Hous. All. v. Travelers Indem. Co., No. 16 Civ. 928, 2017 WL 3608232 (D.D.C. Aug. 21, 2017) ........................... 22

R.I. Comm’n for Human Rights v. Graul, 120 F. Supp. 3d 110 (D.R.I. 2015) ..................................................................... 22

Reyes v. Waples Mobile Home Park Ltd. P’ship, 205 F. Supp. 3d. 782 (E.D. Va. 2016) .........................................................passim

Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) .................................................................................passim

Veasey v. Abbott, 249 F. Supp. 3d 866 (S.D. Tex. 2017) ................................................................ 14


TABLE OF AUTHORITIES (Continued)

Page(s)

iv

Westminster Sch. Dist. of Orange Cnty. v. Mendez, 161 F.2d 774 (9th Cir. 1947) .............................................................................. 13

STATUTES, REGULATIONS, AND RULES

Fair Housing Act, 42 U.S.C. § 3601 .................................................................passim

Civil Rights Act of 1968, Pub. L. No. 90-284 ......................................................... 20

24 C.F.R. 100.500(a) ................................................................................................ 20

78 Fed. Reg. 11,467 (Feb. 15, 2013) ....................................................................... 21

Fed. R. App. P. 29 ...................................................................................................... 1

Fourth Circuit Local Rule 29(a)(2) ............................................................................ 1

LEGISLATIVE HISTORY

114 Cong. Rec. 2988 (1968) .................................................................................... 20

Extension of the Voting Rights Act: Hearing on H.R. 939, H.R. 2148, H.R. 3247, & H.R. 3501 Before the Subcomm. on Civ. & Const. Rights of the H. Comm. on the Judiciary, 94th Cong. 81 (1975) ....................... 14

Fair Housing Act of 1967: Hearing before the S. Subcomm. on Hous. and Urban Affairs of the S. Comm. on Banking and Currency, 90th Cong. (1967) ....................................................................................................... 18

OTHER AUTHORITIES

Alonso S. Perales, Are We Good Neighbors? (2d ed. 1974) ..................................... 7

Ashleigh Bausch Varley & Mary C. Snow, Don’t You Dare Live Here: The Constitutionality of the Anti-Immigrant Employment and Housing Ordinances at Issue in Keller v. City of Fremont, 45 Creighton L. Rev. 503 (2012) ............................................................................. 17

Bruce Lambert, At 50, Levittown Contends With Its Legacy of Bias, N.Y. Times, Dec. 28, 1997 ................................................................................... 7



Page(s)

v

Chico Harlan, “In These Six American Towns, Laws Targeting ‘The Illegals’ Didn’t Go As Planned,” Wash. Post, Jan. 26, 2017 ............................. 17

“Colored Men” and “Hombres Aqui”: Hernandez v. Texas and the Emergence of Mexican-American Lawyering (Michael A. Olivas ed., 2006) ........................................................................................................ 4, 15

Daniel Eduardo Guzman, Note: There Be No Shelter Here: Anti-Immigrant Housing Ordinances and Comprehensive Reform, Cornell J.L. & Pub. Pol’y 399 (2010) ................................................................. 17

David G. Embrick & Kasey Henricks, Discursive Colorlines at Work: How Epithets and Stereotypes are Racially Unequal, 36 Symbolic Interaction 197 (2013) ........................................................................................ 12

Equal Rights Center & Drinker Biddle Reath LLP, Precaución: Obstacles for Latinos in the Virginia Rental Housing Market (April 2013) .......................................................................................................... 9

Francisco E. Balderrama, Decade of Betrayal: Mexican Repatriation in the 1930s (2006) ............................................................................................. 11

Francisco E. Balderrama, In Defense of La Raza: The Los Angeles Mexican Consulate and the Mexican Community, 1929 to 1936 (1982) .................................................................................................................. 13

George J. Sánchez, Becoming Mexican American: Ethnicity, Culture and Identity in Chicano Los Angeles, 1900–1945 (1993) .................................. 11

Gilbert Paul Carrasco, “Latinos in the United States: Invitation and Exile,” in Immigrants Out!: The New Nativism and Anti-Immigrant Impulse in the United States (Juan F. Perea ed., 1997) ...................................... 12

Hous. & Urban Dev., Housing Discrimination Against Racial and Ethnic Minorities 2012 (2012) .............................................................................. 9

Ian F. Haney López, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 85 Cal. L. Rev. 1143 (1997) ................................................... 4



Page(s)

vi

Ian F. Haney-López, Racism on Trial: The Chicano Fight for Justice (2003) .............................................................................................................. 6, 15

Ian Haney-López & Michael A. Olivas, Jim Crow, Mexican Americans, and the Anti-Subordination Constitution: The Story of Hernandez v. Texas, in Race Law Stories (Rachel F. Moran & Devon Wayne Carbado eds., 2008) .................................................... 6, 13, 14, 15

Jens Manuel Krogstad et al., 5 facts about illegal immigration in the U.S., Pew Research Center, Apr. 27, 2017 ......................................................... 18

Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration: A Cross-Border Examination of Operation Wetback, 1943 to 1954, 37 W. Hist. Q. 421 (2006) ........................................................... 12

Kirk Semple, “A Killing in a Town Where Latinos Sense Hate,” N.Y. Times, Nov. 13 2008 ........................................................................................... 16

Laura E Gómez, The Birth of the ‘Hispanic’ Generation: Attitudes of Mexican-American Political Elites toward the Hispanic Label, 19 Latin American Perspectives 45 (1992) ............................................................... 4

Laura E Gómez, “Postscript,” Manifest Destinies: The Making of the Mexican American Race (2nd ed. forthcoming 2018) ................................ 4, 5, 16

Leo R. Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the Nation (2nd ed. 2013) ............................................................. 16

Lina Newton, Illegal, Alien, or Immigrant? The Politics of Immigration Reform (2008) ................................................................................ 16

Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (2004)................................................................................ 12, 16

Natalia Molina, How Race Is Made in America: Immigration, Citizenship, and the Historical Power of Racial Scripts (2014) .......................... 5

Otto Santa Ana, Brown Tide Rising: Metaphors of Latinos in Contemporary American Public Discourse (2002) ............................................ 16



Page(s)

vii

Raul Yzaguirre, Laura Arce & Charles Kamasaki, The Fair Housing Act: A Latino Perspective, 4 Cityscape: A J. of Pol’y Dev. & Res. 161 (1999) ................................................................................................... 8, 9, 10

Richard Delgado, The Law of the Noose: A History of Latino Lynching, 44 Harv. C.R.-C.L. L. Rev. 297 (2009) ............................................. 11

Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 Vand. L. Rev. 55 (2009) ...................................................... 17

Sasha Goldstein, “Trio of Florida teens stalked and murdered Hispanic immigrant during ‘Guat hunting’ game: police,” N.Y. Daily News, Apr. 30, 2015 ................................................................................. 16

Stephen J. Pitti, Expert Report, Arce v. Douglas, No. 10 Civ. 623 (D. Ariz. Mar. 1, 2016) .............................................................. 5

Vicki L. Ruiz, South by Southwest: Mexican Americans and Segregated Schooling, 1900–1950, Org. Am. Hist. Mag. of Hist., Winter 2001 ........................................................................................................ 13

William D. Carrigan & Clive Webb, Forgotten Dead: Mob Violence Against Mexicans in the United States, 1848–1928 (2013) ............................... 10


1

STATEMENT OF INTEREST OF THE AMICI CURIAE

Amici are professors of law and history with expertise in legal issues

pertaining to the historical experiences of Latinos in the United States.1 They

submit this brief in support of Appellants to draw the Court’s attention to (i) the

history of discrimination against Latinos, including Latino immigrants, in the

United States, and (ii) the District Court’s unduly narrow interpretation of the

disparate impact theory of discrimination under the Fair Housing Act.2

SUMMARY OF ARGUMENT

The District Court erred in dismissing Appellants’ claim under the

Fair Housing Act (“FHA” or the “Act”), which alleges that Appellees’ policy of

requiring proof of U.S. citizenship or legal status from residents of Waples Mobile

Home Park constitutes unlawful discrimination on the basis of race and national

origin because the policy has a disparate impact on Latino families. In dismissing

Appellants’ claim, the District Court concluded that disparate impact theory under

the FHA is properly invoked only to “to ferret out long-entrenched discrimination

against historically disadvantaged groups”—and that those circumstances are “very

different from the context presented in this case.” Reyes v. Waples Mobile Home

1 As explained infra I.A, the term Latino encompasses the concepts of both race

and national origin. 2 Pursuant to Federal Rule of Appellate Procedure 29, Amici state that no party’s

counsel authored this brief in whole or in part; no party or party’s counsel contributed money to fund the brief’s preparation or submission; and no person other than Amici and their counsel contributed money intended to fund the brief’s preparation or submission. Pursuant to Fourth Circuit Local Rule 29(a)(2), all parties have consented to the filing of this brief.


2

Park Ltd. P’ship, 205 F. Supp. 3d. 782, 791–92 (E.D. Va. 2016). Both of those

conclusions are incorrect.

First, contrary to the District Court’s unsupported conjecture, Latinos

have been subjected to longstanding and pervasive discrimination in the United

States since the mid-nineteenth century. In addition to facing discrimination in

obtaining access to and credit for housing, Latinos have been subjected to various

types of public and private discrimination, including lynching and other mob

violence, inhumane and racially charged mass deportation, and race-based

discrimination in public education, voting, and jury participation. And although

the majority of Latinos today are not immigrants, animus toward Latinos is deeply

intertwined with anti-immigrant sentiment. The District Court cited no support for

its apparently contrary view of the history of discrimination against Latinos.

Second, whether discrimination against Latinos is “long-entrenched”

(as it in fact is), the complaint in this case pleads all that the FHA’s disparate

impact theory requires: that the policy of requiring certain immigration documents

from would-be renters disproportionately affects Latino tenants without valid

justification. Appellants need not show that the challenged policy forms part of a

historical narrative of discrimination. Instead, as this Court long ago explained,

“plaintiffs . . . are required to prove only that a given policy had a discriminatory

impact on them as individuals.” Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987

(4th Cir. 1984) (emphasis in original). If that policy lacks “any sufficient

justification,” a suit challenging it is in “the heartland of disparate-impact


3

liability.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,

Inc., 135 S. Ct. 2507, 2522 (2015).

If upheld, the District Court’s ruling would effectively freeze the

FHA’s disparate impact theory in amber, denying one of the Act’s key protections

to victims of more recent, if no less destructive, forms of discrimination. That

unduly narrow interpretation is contrary to the FHA’s broad remedial purposes, the

authoritative interpretation of the FHA by the Department of Housing and Urban

Development (“HUD”), and decades of case law from this Court and others.

ARGUMENT

I. LATINOS HAVE HISTORICALLY BEEN TARGETS OF PERVASIVE AND LONG-ENTRENCHED DISCRIMINATION

Even if disparate impact claims under the FHA applied only to “long-

entrenched discrimination against historically disadvantaged groups,” Reyes, 205

F. Supp. 3d. at 791, that standard is easily satisfied as applied to Latinos, and

Latino immigrants in particular. For as long as Latinos have resided in the United

States in substantial numbers, they have been subject to pervasive discrimination in

practically all aspects of society, including but by no means limited to the context

of housing. Moreover, discrimination against Latinos on the basis of race and

national origin is often linked to discrimination on the basis of immigration status.

Thus, while the District Court erred in restricting application of disparate impact

theory to redressing long-entrenched historical discrimination, Appellants’ claim

would nonetheless survive even under that narrower (but inappropriate)

interpretation.


4

A. Discrimination Against Americans of Latino Origin Must be Understood in the Context of Discrimination Against Mexican Americans.

Latinos as a group are defined both on the basis of having a national

origin in a Latin American country and on the basis of race.3 Latinos should be

considered not simply as an ethnic group, but rather “alongside the nation’s other

major racial groupings.”4 Indeed, the Supreme Court recognized as much as early

as 1954, finding that Mexican-American residents of Jackson County, Texas,

“constitute[d] a separate class . . . distinct from ‘whites.’” Hernandez v. Texas,

347 U.S. 475, 479–80 (1954).5 Other courts have similarly treated discrimination

claims against Latinos “as encompassing both race and national discrimination.”

Reyes, 205 F. Supp. 3d at 787 n.6.

Although Latinos are properly understood as a broad racial group, the

particular reality of the Latino experience in the United States has been defined

3 The term “Hispanic” was first used in the 1980 census to refer to Americans

with ancestral origins in Latin American countries. See Laura E Gómez, The Birth of the ‘Hispanic’ Generation: Attitudes of Mexican-American Political Elites toward the Hispanic Label, 19 Latin American Perspectives 45, 45 (1992). Amicis’ use of the term “Latino” includes the concept of national origin captured by the term Hispanic.

4 Laura E Gómez, “Postscript,” Manifest Destinies: The Making of the Mexican American Race 173 (2nd ed. forthcoming 2018).

5 While Hernandez did not explicitly say that Latinos were a race, it “is the first Supreme Court case to extend the protections of the Fourteenth Amendment to Latinos/as, and it is among the great early triumphs in the Latino/a struggle for civil rights.” Ian F. Haney López, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 85 Cal. L. Rev. 1143, 1145 (1997); see generally “Colored Men” and “Hombres Aqui”: Hernandez v. Texas and the Emergence of Mexican-American Lawyering (Michael A. Olivas ed., 2006).


5

largely by the experiences of Mexican Americans, who represent 70% of Latinos

in the United States. While Latinos trace their ancestry to many different

countries, other Americans tend to view Latinos and Mexicans as basically

coterminous categories. This means, among other things, that the derogatory racial

views held by many toward Mexican Americans are by extension directed toward

Latinos as a class without any finer distinctions.6 Pejorative attitudes toward

Mexican Americans have created a “racial script” or set of durable stereotypes that

can be applied to all Latinos.7 One aspect of this racial script is to assume that “all

Latinos are Mexican, to presume they are immigrants, and to presume that they

entered this country illegally,” and that they are “racialized perpetual foreigners”

who will never truly be American.8

Because the racial categories of Latinos and Mexican Americans have

been largely collapsed in American politics and popular culture, and because the

fact that seven out of ten Latinos are Mexican American causes the experiences of

Mexican Americans to significantly shape the experiences and treatment of all

Latinos, this brief relies on discrimination against Mexican Americans that has

6 Gómez, supra note 4, at xvi (noting that because Mexican Americans represent

70% of Latinos, “their fate shapes the life chances of other Latinos”). 7 See Natalia Molina, How Race Is Made in America: Immigration, Citizenship,

and the Historical Power of Racial Scripts (2014). 8 Gómez, supra note 4; see also Stephen J. Pitti, Expert Report, Arce v. Douglas,

No. 10 Civ. 623 (D. Ariz. Mar. 1, 2016) at 12 (describing “demeaning racial representations” emphasizing Mexican Americans’ supposedly “dangerous, criminal, and unproductive qualities, and their weak intellects and fitness for manual labor”).


6

spanned almost two centuries of American history. That history, as we explain,

includes not only housing discrimination, but the persistent treatment of Mexican

Americans—and thus Latinos—as a racially inferior and disfavored group.9

B. Latinos in the United States Have Been Subject to Pervasive Historical Discrimination, Including in the Context of Housing.

Latinos have been subject to widespread discrimination throughout

the United States since at least the Mexican-American War, which resulted in the

transfer of significant territory from Mexico to the United States. As Mexicans,

and then other Latinos, became part of American society, they found themselves

subject to discrimination in the housing market, as well as in the public schools,

the voting booth, and other areas of society. That discrimination continued for

decades and indeed persists in various forms today.

1. Housing Discrimination

A substantial body of evidence establishes beyond reasonable debate

that Latinos have experienced high rates of discrimination in all aspects of the

housing market. Indeed, contrary to the District Court’s assumption, Latinos face

the same forms of overt (and covert) housing discrimination as other historically

disfavored groups, including African Americans, sometimes at even higher rates.

9 See Ian F. Haney-López, Racism on Trial: The Chicano Fight for Justice

(2003); Ian Haney-López & Michael A. Olivas, Jim Crow, Mexican Americans, and the Anti-Subordination Constitution: The Story of Hernandez v. Texas, in Race Law Stories 273 (Rachel F. Moran & Devon Wayne Carbado eds., 2008).


7

Anecdotal “testimonios” gathered by pioneering Mexican-American

lawyer Alonso Perales demonstrate that Latinos—including veterans returning

from service in World War II—encountered many of the same forms of private and

public housing discrimination that African Americans faced in the post-war United

States.10 For example, when Perfecto Solis and his wife attempted to buy a house

in Texas, a salesman told the couple “he could not sell it to [them] because of a

restrictive clause against the purchase or use by Latin-Americans.”11 Another

developer told veteran Leopoldo Mancilla that he could not purchase a home in a

community “for Veterans Only” because “the homes there were not for sale to

Latin-Americans.”12 Indeed, racially-restrictive covenants were widely used to

restrict housing choice for Latino homebuyers, just as they were used to deny

property rights to other disfavored groups.13

10 Alonso S. Perales, Are We Good Neighbors? 139–213 (2d ed. 1974). These

testimonios, documented in the form of affidavits, chronicle discrimination against Latinos in housing, employment, and public accommodations.

11 Id. at 139–40. African-American veterans were subjected to the same discriminatory treatment. See Bruce Lambert, At 50, Levittown Contends With Its Legacy of Bias, N.Y. Times, Dec. 28, 1997, at A1 (recounting that Eugene Burnett, a returning veteran, was told by a salesman that he could not buy a home because “the owners of this development have not as yet decided whether they’re going to sell these homes to Negroes”).

12 Perales, supra note 10, at 142–43. 13 See Clifton v. Puente, 218 S.W.2d 272, 274 (Tex. Civ. App. 1948) (invalidating

a racial covenant restricting conveyances to Latinos); see also Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2515 (2015) (“During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities[.]”).


8

Data from more recent studies confirm that Latinos have been

subjected to strikingly high rates of systemic discrimination in housing. A 1979

study commissioned by HUD showed that “dark-skinned” Mexican Americans in

the Dallas area faced a 96% likelihood of experiencing at least one instance of

housing discrimination, and in fact were twice as likely to experience

discrimination as African Americans. While somewhat less severe, “light-

skinned” Mexican Americans still faced a 65% chance of encountering housing

discrimination.14

A 1981 HUD study of the Boston rental market found that callers with

identifiably Latino accents were invited to view 73.8% fewer apartments than

white-sounding callers.15 In a separate study conducted the following year, 60%

of Latino participants were told that no housing was available for sale in Denver,

compared with 31% of the white participants.16

In 1989, a HUD-sponsored nationwide survey of 40 metropolitan

areas showed that Latinos faced rates of discrimination similar to those

experienced by African Americans: 56% of Latino participants faced

discrimination in the market for home purchases, while 50% experienced

discrimination in the rental market.17 HUD has continued to conduct this type of

14 Raul Yzaguirre, Laura Arce & Charles Kamasaki, The Fair Housing Act: A

Latino Perspective, 4 Cityscape: A J. of Pol’y Dev. & Res. 161, 162 (1999). 15 Id. 16 Id. 17 Id. at 163.


9

nationwide survey periodically, most recently in 2012. While this more recent data

shows improvement, Latino participants were still told about 12.5% fewer units

than whites, and were shown 7.5% fewer units.18

Other local studies by various organizations over the years have also

found high rates of housing discrimination against Latinos. For example, a 1997

study of the Washington, D.C. metropolitan area, including the Virginia suburbs,

found discrimination rates of 37% against Latino renters and 42% against Latino

homebuyers. These rates were not dramatically different from those experienced

by black renters and homebuyers (44% and 33% respectively).19 A more recent

2013 study of the rental market in Virginia found, in the context of “growing

hostility toward immigrant communities,” that Latinos faced discriminatory

treatment 55% of the time when compared to similarly qualified whites.20

Latinos have also historically faced discrimination in the market for

home loans. Data collected pursuant to the Home Mortgage Disclosure Act

showed, in 1990, that Latinos with moderate incomes were approved for loans at

nearly the same rate as whites with lower incomes (68% versus 69%).21 A study of

1991 data showed that Latino mortgage loan applicants had 50% higher rates of 18 U.S. Dep’t of Hous. & Urban Dev., Housing Discrimination Against Racial and

Ethnic Minorities 2012 xi (2012). Unlike the rental market, the differences between white and Latino testers in the market for buying homes were not found be statistically significant in 2012. Id. at xvii.

19 Yzaguirre et al., supra note 14, at 163–64. 20 Equal Rights Center & Drinker Biddle Reath LLP, Precaución: Obstacles for

Latinos in the Virginia Rental Housing Market 2–3, 11–13, 15–21 (April 2013). 21 Yzaguirre et al., supra note 14, at 164.


10

denial than whites of equal income.22 These differences cannot be explained by

differences in credit history. According to a 1992 study by the Federal Reserve

Bank of Boston, even when controlling for credit history, Latinos and African

Americans were 60% more likely to be denied a mortgage loan than similarly

situated white applicants.23

In short, there is overwhelming evidence of historical discrimination

against Latinos in all aspects of the housing market.

2. Lynching and Mob Violence

The housing market is far from the only area in which Latinos have

been subject to historical discrimination at the hands of both public and private

actors. Mexicans were historically subject not only to discrimination, but to the

type of outright violence more frequently associated with the post-Reconstruction

South. In the early decades following the Mexican-American War, incidents of

mob violence against individuals of Mexican descent were commonplace in Texas,

California, and other parts of the newly transferred territory that became the

American Southwest. Between 1848 and 1928, there were at least 547 known

instances of lynching or other mob violence against Mexicans.24 Indeed, many of

22 Id. 23 Id. 24 William D. Carrigan & Clive Webb, Forgotten Dead: Mob Violence Against

Mexicans in the United States, 1848–1928 3–4 (2013).


11

these acts were done with the knowledge of or even active participation by law

enforcement, including the Texas Rangers.25

3. Mass Deportations

Between the 1930s and 1950s, the U.S. government instituted two

waves off mass deportations that were marked by flagrant racism and mistreatment

of individuals of Mexican descent. First, in the early 1930s, in the face of

skyrocketing unemployment, Mexicans came to be viewed by many as taking

scarce jobs that otherwise could have gone to Americans. In what were called

“repatriation” campaigns, government officials conducted a series of raids and

other measures designed to intimidate Mexican Americans, make their lives

generally less pleasant in America, and encourage self-deportation.26 All told, up

to two million people left for Mexico over the course of the Great Depression.27

The repatriation efforts devastated many Mexican-American communities in the

United States, including in Los Angeles, where nearly a third of the Mexican

population departed for Mexico during that period.28

Then in 1954, Attorney General Herbert Brownell implemented a

program of mass deportation called “Operation Wetback” in reference to the racial

25 Richard Delgado, The Law of the Noose: A History of Latino Lynching, 44

Harv. C.R.-C.L. L. Rev. 297, 300 (2009). 26 Francisco E. Balderrama, Decade of Betrayal: Mexican Repatriation in the

1930s 71–73 (2006). 27 Id. at 265–66. 28 George J. Sánchez, Becoming Mexican American: Ethnicity, Culture and

Identity in Chicano Los Angeles, 1900–1945 214 (1993).


12

slur widely used at the time to evoke the image of Mexicans illegally entering the

country across the Rio Grande.29 During the summer of 1954, 800 U.S. Border

Patrol officers conducted a series of raids, road blocks, and other efforts that

resulted in the apprehension and deportation of over one million individuals,

mostly of Mexican descent.30 Operation Wetback was marked by widespread

abuse and injustice. An unknown number of Americans of Mexican descent were

swept up in the mass deportations, often without any opportunity to present

evidence in support of their legal status.31 One roundup in112-degree heat resulted

in 88 deaths, a number that could have been higher but for the intervention of the

Red Cross.32 Workers were deported on buses, trains, and boats, frequently in

inhumane conditions. One congressional investigation compared a cargo ship used

for deportations as “an eighteenth century slave ship” and a “penal hell ship.”33

Many workers were dumped over the border, including in the desert, with little

regard for their safety or needs.34 These deportations are a black mark in this

29 Kelly Lytle Hernández, The Crimes and Consequences of Illegal Immigration:

A Cross-Border Examination of Operation Wetback, 1943 to 1954, 37 W. Hist. Q. 421, 421 (2006); David G. Embrick & Kasey Henricks, Discursive Colorlines at Work: How Epithets and Stereotypes are Racially Unequal, 36 Symbolic Interaction 197, 204 (2013).

30 Hernández, supra note 29, at 421. 31 Gilbert Paul Carrasco, “Latinos in the United States: Invitation and Exile,” in

Immigrants Out!: The New Nativism and Anti-Immigrant Impulse in the United States 197–98 (Juan F. Perea ed., 1997).

32 Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 156 (2004).

33 Id. 34 Id.


13

nation’s treatment of Latinos, one approved and executed at the highest level of

government.

4. Segregation in Public Education

In the first half of the twentieth century, Mexicans and other Latinos

were subject to widespread de facto segregation in American public schools. A

1931 survey showed that “more than 80 percent of the school districts in southern

California enrolled Mexicans and Mexican-Americans in segregated schools,”35 a

practice that was later struck down on Fourteenth Amendment grounds as to one

Orange County school district. Westminster Sch. Dist. of Orange Cnty. v. Mendez,

161 F.2d 774, 780–81 (9th Cir. 1947). The education in these segregated schools

for Mexican students was typically inferior and focused on vocational training

based on the assumption that Mexican students “possessed few aspirations and

fewer abilities beyond farm and domestic work.”36 And while Texas state law did

not expressly mandate segregation of Mexican-American students, it was the

customary practice of school officials across Texas in the first half of the twentieth

century to place students of Mexican origin in separate schools.37 One Texas

school superintendent made explicit the racism that motivated this segregation:

35 Francisco E. Balderrama, In Defense of La Raza: The Los Angeles Mexican

Consulate and the Mexican Community, 1929 to 1936 56 (1982). 36 Vicki L. Ruiz, South by Southwest: Mexican Americans and Segregated

Schooling, 1900–1950, Org. Am. Hist. Mag. of Hist., Winter 2001, at 24. 37 Haney López & Olivas, supra note 9, at 294–95.


14

“Some Mexicans are very bright,” he explained, “but you can’t compare their

brightest with the average white children. They are an inferior race.”38

5. Discrimination in Voting Rights

Like other disfavored minority groups, Latinos have been subject to

widespread voting discrimination. The 1975 amendments to the Voting Rights Act

(“VRA”) were in large part a response to discrimination against Mexican

Americans, including through failure to provide Spanish-language ballots in areas

with large populations of native Spanish speakers who could not “read and

understand the English language.”39 More recent efforts to disenfranchise Latino

voters include the use of voter identification laws, and other restrictions known to

disproportionately affect voting rates among minority populations. In 2017, for

example, a District Court reaffirmed an earlier 2014 ruling that Texas’s strict voter

identification law “was passed with a discriminatory purpose,” based in part on the

“contemporaneous history” of discrimination against Latinos and African

Americans.” Veasey v. Abbott, 249 F. Supp. 3d 866, 874–76 (S.D. Tex. 2017).

6. Exclusion from Juries

Latinos have similarly been subject to discrimination in matters of

criminal justice, including through excluding Latinos from juries. In Hernandez v.

Texas, 347 U.S. 475 (1954), the Warren Court held that a Mexican-American 38 Id. at 295. 39 Extension of the Voting Rights Act: Hearing on H.R. 939, H.R. 2148, H.R.

3247, & H.R. 3501 Before the Subcomm. on Civ. & Const. Rights of the H. Comm. on the Judiciary, 94th Cong. 81 (1975) (statement of Rep. Barbara Jordan).


15

defendant was deprived of equal protection under the Fourteenth Amendment

because Mexican Americans were systematically excluded from his jury pool. In

reaching its conclusion, the Court noted that, whereas 14% of the population in

Jackson County, Texas had Mexican or Latin American surnames, there was no

record of a single individual with such a name serving on any jury commission,

grand jury, or petit jury in the preceding 25 years. Id. at 480–81. This lack of

Mexican Americans on juries harmed both Mexican-American defendants, who

were more likely to face hostile, biased juries, and Mexican-American victims,

who were less likely to obtain justice where the perpetrators were white.40

As two of the Amici have noted elsewhere, the key question for the

Court in determining whether Mexican Americans constituted a distinct group for

purposes of equal protection analysis was whether the “group existed under social

practices of group subordination.”41 The Court concluded that the answer to that

question was yes, citing as evidence the limited “participation of persons of

Mexican descent in business and community groups,” the segregation of Mexican

schoolchildren, and—glaringly—the fact that the courthouse in which the

defendant was tried directed “Hombres” to the segregated toilet for “Colored

Men.” Hernandez, 375 U.S. at 479–80.

40 López & Olivas, supra note 9, at 284; see generally Olivas, supra note 5. 41 López & Olivas, supra note 9, at 290.


16

C. Discrimination Based on Immigration Status is Commonly Used as a Pretext for Racial Discrimination.

While Latinos have been subject to pervasive discrimination

generally, Latino immigrants have been on the receiving end of particular hostility,

with immigration status frequently standing in as a pretext for what is in fact racial

discrimination. Latino immigration is often spoken of with violent, non-human

metaphors such as a “brown tide” flooding into the United States.42 Such language

contributes to Latino immigrants being viewed as a threat to what is perceived to

be traditional American culture.43 Indeed, even the commonly used term “illegal

alien” is itself pejorative in its dehumanization of the subject, and it is generally

used almost exclusively to refer to Latino immigrants.44 Latino immigrants have

recently been hunted down and murdered by angry mobs, a dark echo of the past

instances of lynching discussed above.45

42 Otto Santa Ana, Brown Tide Rising: Metaphors of Latinos in Contemporary

American Public Discourse 72 (2002). 43 Leo R. Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the

Nation 3 (2nd ed. 2013). 44 Ngai, supra note 32, at xix; see also Gómez, supra n. 4, at n.cciv (describing

“illegal alien” as “pervasive as a racist trope for Latinos”); Lina Newton, Illegal, Alien, or Immigrant? The Politics of Immigration Reform 145 (2008) (explaining that “unspecified ‘illegals’” in political discourse are “understood to be Mexican migrants”).

45 See, e.g., Sasha Goldstein, “Trio of Florida teens stalked and murdered Hispanic immigrant during ‘Guat hunting’ game: police,” N.Y. Daily News, Apr. 30, 2015, http://www.nydailynews.com/news/crime/fla-teens-murdered-immigrant-guat-hunting-game-cops-article-1.2205020; Kirk Semple, “A Killing in a Town Where Latinos Sense Hate,” N.Y. Times, Nov. 13 2008, http://www.nytimes.com/2008/11/14/nyregion/14immigrant.html.


17

Discrimination against Latinos frequently masquerades under the

pretext of policies focused on immigration status, particularly in the housing

context. Between 2006 and 2009, 105 localities nationwide passed or considered

laws that would prohibit “illegal aliens” from renting property.46 In many cases,

supporters of these laws have not attempted to conceal the underlying racial

animus. Supporters have been quoted expressing concerns with “Cousin Puerto

Rico and Taco Whoever moving in” or with Spanish-speaking families in Mexican

soccer jerseys patronizing Wal-Mart.47 Other localities, including in Virginia, have

passed maximum occupancy ordinances that are widely regarded as pretextual

attempts to deny housing to Latino immigrant families.48 Given that more than

46 Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-

Illegal Immigrant Ordinances, and Housing Discrimination, 62 Vand. L. Rev. 55, 59–60 (2009).

47 Id. at 80; see also Ashleigh Bausch Varley & Mary C. Snow, Don’t You Dare Live Here: The Constitutionality of the Anti-Immigrant Employment and Housing Ordinances at Issue in Keller v. City of Fremont, 45 Creighton L. Rev. 503, 558 (2012) (quoting anti-Latino sentiment expressed by residents of one town following passage of such a law); Chico Harlan, “In These Six American Towns, Laws Targeting ‘The Illegals’ Didn’t Go As Planned,” Wash. Post, Jan. 26, 2017, https://www.washingtonpost.com/business/economy/in-these-six-american-towns-laws-targeting-the-illegals-didnt-go-as-planned/2017/01/26/b3410c4a-d9d4-11e6-9f9f-5cdb4b7f8dd7_story.html (describing the municipalities that passed such laws as “a collection of mostly white exurbs and faded manufacturing towns whose populations suddenly were transforming,” with “[m]ore Latinos … arriving in search of jobs”).

48 Daniel Eduardo Guzman, Note: There Be No Shelter Here: Anti-Immigrant Housing Ordinances and Comprehensive Reform, Cornell J.L. & Pub. Pol’y 399, 414–18 (2010) (noting that these laws, versions of which were passed in the towns of Manassas and Herndon and Loudon and Prince William Counties, likely targeted “Latino immigrant families,” who “tend to maintain numerically larger households”).


18

half of undocumented immigrants in 2016 originated in Mexico or another Latin

American country, it is not surprising that much anti-Latino sentiment is couched

as animus against undocumented immigrants.49 That provides additional reason to

be skeptical of housing policies framed in terms of immigration status.

II. THE FAIR HOUSING ACT BARS POLICIES THAT RESULT IN ARBITRARY AND UNJUSTIFIED DISCRIMINATION

The District Court held that Appellants could not “rely exclusively on

disparate impact” to prove their claims because doing so would be inconsistent

with the “history and purpose” of that theory of liability for two related reasons.

Reyes v. Waples Mobile Home Park Ltd. P’ship, 205 F. Supp. 3d 782,794–95 (E.D.

Va. 2016). First, because the disparate impact theory “is designed to remove

barriers to housing that endure as remnants of the country’s tragic and regrettable

history of state-sanctioned intentional discrimination.”50 Id. at 790 (emphasis

added). And second, because imposing “disparate impact liability for policies that

impact Latinos only incidentally to the impact on illegal aliens” would “decouple[]

49 See Jens Manuel Krogstad et al., 5 facts about illegal immigration in the U.S.,

Pew Research Center, Apr. 27, 2017, http://www.pewresearch.org/fact-tank/2017/04/27/5-facts-about-illegal-immigration-in-the-u-s/.

50 As discussed above, discrimination against Latinos is part of the history of de jure discrimination in the United States. The deepening segregation the FHA sought to remedy was not limited to divisions between white and black neighborhoods. Indeed, Congress understood that “until the Negro,” but also the “Puerto Rican, Latin American and other ethnic groups [were granted] access to the whole housing market, they [would] continue to be second-class buyers and lessees.” Fair Housing Act of 1967: Hearing before the S. Subcomm. on Hous. and Urban Affairs of the S. Comm. on Banking and Currency, 90th Cong. 102 (1967) (statement of Roy Wilkins, Executive Director, NAACP).


19

disparate impact theory from its original and central purpose” of eliminating the

vestiges of intentional discrimination. Id. at 793.

Neither rationale withstands scrutiny. To the contrary, the FHA’s

disparate impact theory is designed for cases exactly like this one, in which

purportedly facially-neutral policies incidentally and unjustifiably burden housing

choice, regardless of intent.

A. Disparate Impact Theory Reaches the Discriminatory Effects of Policies, Whether or Not Tied to Past Intentional Discrimination.

According to the District Court, “the history, purpose, and application

of the disparate impact theory” all suggest it is properly invoked to “ferret[] out

entrenched segregated housing patterns” that result from historical and intentional

discrimination. Reyes, 205 F. Supp. 3d at 790–91. To be sure, remediating the

long-standing effects of de jure segregation was and remains a central goal of the

FHA. But it is now well settled that the Act’s disparate impact theory also reaches

the effects of facially neutral “restrictions that function unfairly to exclude

minorities from certain neighborhoods without any sufficient justification”—

whether tied to a history of intentional discrimination or not. Texas Dep’t of Hous.

& Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2521–22

(2015). Contrary to the District Court’s conclusion, the statute’s legislative

history, text, and consistent interpretation over many years confirm that the

disparate impact theory is broadly applicable to all unlawful barriers to housing

opportunity, whether they reflect long-standing and intentional forms of

discrimination or arise from new and facially neutral policies.


20

The FHA declares in the broadest possible terms that it is “the policy

of the United States to provide, within constitutional limitations, for fair housing

throughout the United States.” 42 U.S.C. § 3601. But the Congress debating the

Act’s passage understood that “discrimination per se was only a small factor”

driving the increasingly stark patterns of residential segregation the FHA sought to

address. 114 Cong. Rec. 2988 (1968). Just as important were policies “racially

neutral in themselves, but having profound racial effects.” Id. Eliminating both

causes of segregation would require legislation addressed not only to intentional,

deliberate discrimination, but also “policy decisions [] involving racial

implications that were probably neither foreseen nor intended.” Id. (emphasis

added). So Congress included in the FHA prohibitions focused on the result of

challenged acts, rather than the intent of the actor. Specifically, the Act prohibited

not only intentionally discriminatory refusals to sell or rent, but also other conduct

that would “otherwise make unavailable or deny” housing because of race, color,

religion, sex, or national origin. Civil Rights Act of 1968, Pub. L. No. 90-284,

§ 804, 82 Stat. 73, 83 (1968).

HUD, the agency charged with enforcing the FHA, has long

interpreted that language to prohibit a practice if it “predictably results in a

disparate impact on a group of persons or creates, increases, reinforces, or

perpetuates segregated housing patterns.” 24 C.F.R. 100.500(a) (emphasis added)

(codifying long-standing agency interpretation). In other words, the Act is

unquestionably available to address policies that reinforce and perpetuate the

effects of past intentional discrimination (as the District Court emphasized). But


21

the FHA is also broad enough to reach new policies that predictably impose

discriminatory burdens on protected groups. See HUD, Implementation of the Fair

Housing Act’s Discriminatory Effects Standard; Final Rule, 78 Fed. Reg. 11,467

(Feb. 15, 2013).

The Supreme Court’s recent decision in Inclusive Communities

underscores the point. As the Court explained, “[d]isparate-impact liability

mandates the removal of artificial, arbitrary, and unnecessary barriers” to housing

choice without regard to intent, because eliminating “restrictions that function to

unfairly exclude minorities from certain neighborhoods without any sufficient

justification” is consistent with the FHA’s broad statutory purpose. Inclusive

Communities, 135 S. Ct. at 2521–22 (internal quotation marks omitted). Nowhere

did the Court hold, as did the District Court, that such relief is available only to

remediate long-entrenched historical barriers to open housing.

To the contrary, courts applying Inclusive Communities have allowed

disparate impact claims as means of challenging barriers to housing choice

unrelated to the historical segregation of white and black communities most

prominently discussed at the time of the FHA’s passage. For example, plaintiffs

have successfully marshalled disparate impact claims to challenge zoning decisions

that incidentally price out a disproportionate number of Latinos. See Ave. 6E

Investments, LLC v. City of Yuma, 217 F. Supp. 3d 1040, 1047–49 (D. Ariz. 2017).

Another court recently permitted disparate impact claims to proceed on the theory

that an insurer’s refusal to provide policies to landlords renting to recipients of

Housing Choice Vouchers disproportionately affected “women-headed


22

households.” Nat’l Fair Hous. All. v. Travelers Indem. Co., No. 16 Civ. 928, 2017

WL 3608232, at **1–2, 10 (D.D.C. Aug. 21, 2017). And yet a third court

sustained a disparate impact claim on the theory that “households with children are

more than three times as likely to be adversely impacted by” a rule imposing

unjustifiably restrictive occupancy limits based on apartment size. R.I. Comm’n

for Human Rights v. Graul, 120 F. Supp. 3d 110, 126 (D.R.I. 2015) (internal

quotation marks omitted).

In none of those cases did courts require—because none is required—

a link between the discriminatory effect of the challenged policy and a history of

intentional discrimination against the effected group. Instead, as this Court long

ago explained, “plaintiffs . . . are required to prove only that a given policy had a

discriminatory impact on them as individuals.” Betsey v. Turtle Creek Assocs.,

736 F.2d 983, 987 (4th Cir. 1984). The District Court’s interpretation to the

contrary is an aberration that cannot be squared with the history, purpose, or long-

standing application—both before and after Inclusive Communities—of the FHA’s

disparate impact theory. It must be corrected.

B. Appellants’ Claims Align with the FHA’s Goal of Remediating the Discriminatory Effects of Facially Neutral—Yet Arbitrary and Unnecessary—Housing Policies.

The District Court alternatively reasoned that a disparate impact claim

in this case would be improper because imposing liability “for policies that impact

Latinos only incidentally to the impact on illegal aliens” would “decouple[]

disparate impact theory from its original and central purpose.” Reyes v. Waples


23

Mobile Home Park Ltd. P’ship, 205 F. Supp. 3d 782, 793 (E.D. Va. 2016). But it

is precisely the incidentally discriminatory effects of otherwise valid policies that

the disparate impact theory was intended to address. Indeed, suits targeting

“housing restrictions that function unfairly to exclude minorities from certain

neighborhoods without sufficient justification . . . reside at the heartland of

disparate-impact liability.” Inclusive Communities,135 S. Ct. at 2521–22; accord

Ave. 6E Investments, LLC v. City of Yuma, 818 F.3d 493, 503 (9th Cir. 2016)

(“[D]isparate impact not only serves to uncover unconscious or consciously hidden

biases, but also targets artificial, arbitrary, and unnecessary barriers to minority

housing and integration that can occur through unthinking, even if not malignant,

policies of developers and governmental entities.” (internal quotation marks

omitted)), cert. denied, 137 S. Ct. 295 (2016).

That the policy in question here targets immigration status does not

change the equation. Although “alienage discrimination is not a per se violation”

of the FHA, plaintiffs may state a disparate impact claim if a policy restricting

housing based on residency status has “the effect of discriminating on the basis of

national origin.” Espinoza v. Hillwood Square Mut. Ass’n, 522 F. Supp. 559, 567–

68 (E.D. Va. 1981). It is no answer, as the District Court held, that policies

targeting undocumented immigrants will necessarily impact persons of foreign

birth, including Latinos of foreign birth. As one court put it, “extending protection

from housing discrimination to Latinos even when they are not specifically

targeted by the challenged practice is a feature of the FHA’s programming, not a

bug.” Central Ala. Fair Hous. Ctr. v. Magee, 835 F. Supp. 2d 1165, 1198 (M.D.


24

Ala. 2011) (Thompson, J.) (internal quotation marks omitted), vacated on

mootness grounds sub nom. Cent. Ala. Fair Housing Ctr. v. Comm’r, No. 11-

16114, 2013 WL 2372302 (11th Cir. May 17, 2013). “[T]he cursory assertion that

[a policy is] primarily discriminating against some other, non-protected group (in

this case non-citizens) does not undermine [a] showing of a prima-facie case of

disparate impact against Latinos.” Id. at 1196 (rejecting State’s argument that

disparate impact claim was unavailable because “one could always prove,

statistically, that a law [targeting] illegal immigrants has an adverse impact based

upon persons of foreign birth”) (internal quotation marks omitted). Instead, the

inquiry simply turns to assessing whether the policy in question is “artificial,

arbitrary, and unnecessary,” or whether it “is necessary to achieve a valid interest.”

Inclusive Communities, 135 S. Ct. at 2522–23 (internal quotation marks omitted).

In other words, the proper inquiry in this case was not, as the District

Court seemed to suggest, whether the FHA was intended to prohibit discrimination

based on immigration status, but instead whether a policy facially directed to

immigration status nevertheless makes housing disproportionately unavailable to

Latinos. See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir. 1984)

(“The correct inquiry is whether the policy in question had a disproportionate

impact on the minorities in the total group to which the policy was applied.”). If

so, Appellees would be entitled to every opportunity to demonstrate that the policy

is nevertheless necessary to achieving a valid interest. But by instead limiting the

use of “evidence of disparate impact[] to show that the . . . policy is in fact a

pretext for intentional racial or national origin discrimination,” the District Court


25

improperly reversed those burdens of proof. Reyes, 205 F. Supp. 3d at 795

(emphasis added). Doing so undermines the purpose of the FHA generally and the

disparate impact theory in particular: “to root out discriminatory housing

practices, whether implemented with the intent to deprive certain groups of equal

access to housing or not.” Cent. Ala. Fair Hous. Ctr., 835 F. Supp. 2d at 1196.

CONCLUSION

The FHA prohibits policies and practices that result in unjustifiable

discrimination against Latinos, regardless of intent. And Latinos have long been

subjected not only to housing discrimination, but to discrimination that is

inexorably intertwined with anti-immigrant sentiment. A policy that arbitrarily

denies housing to Latinos based on their immigration status is, therefore, plainly

within the heartland of the FHA’s prohibitions. The District Court’s contrary

conclusion cannot be squared with the history and purpose of the FHA, nor the

history of discrimination against Latinos in the United States. It must be reversed.


26

Dated: October 23 , 2017 New York, New York

Respectfully submitted, By: /s/ Gregory F. Laufer PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP Gregory F. Laufer Andrew J. Markquart Andrew M. Kau 1285 Avenue of the Americas New York, New York 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 [email protected] [email protected] [email protected] Paul D. Brachman 2001 K Street, NW Washington, DC 20006 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 [email protected] Counsel for Amici Curiae Laura E. Gómez, Ian Haney López, Michael A. Olivas, and Stephen Pitti


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