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fair housing

“Study results in jurisdictions with state-level protections against housing discrimination on the basis of sexual orientation unexpectedly show slightly more adverse treatment of same-sex couples than results in jurisdictions without such protections.” [Samantha Friedman et al., "An Estimate of Housing Discrimination Against Same-Sex Couples," SSRN]

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A popular feature of many real estate websites is the ability to search for neighborhood- and town-level statistics on crime, rated school quality, income, age, concentration of school-age children, and a host of other demographic variables. Now the National Fair Housing Alliance, the busy group that has extracted tens of millions of dollars from other businesses through complaints and litigation, says it is considering complaints against sites that offer search for information related to forbidden fair housing categories (race, national origin, family structure, and others) and either offer real estate for sale or refer business to real estate agencies. Site operators object that the offending information typically comes from the U.S. Census Bureau itself and that consumers could still obtain such information online, if a bit less conveniently, even if real estate sites stopped offering it. [Kenneth Harney, Washington Post/syndicated]

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We’ve tracked (especially by way of the Westchester County, N.Y. controversy) the ambitious efforts of the federal Department of Housing and Urban Development to grab more control over local governments’ zoning and project building decisions, in part through a proposed new “AFFH” rule (Affirmatively Furthering Fair Housing). Now the House has voted an appropriations rider cutting off funds for implementation of the new rule. [sponsor Rep. Paul Gosar (R-Ariz.), Paul Mirengoff/PowerLine, Sara Rankin/Legislation Prof (opposed), National Low-Income Housing Coalition, earlier on AFFH and on housing discrimination law generally]

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Maryland roundup

by Walter Olson on March 8, 2014

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A group called the National Fair Housing Alliance has taken the lead in levying sensational bias charges against mortgage lenders, claiming that neglect of REO (real-estate-owned) properties following foreclosure has followed racially discriminatory patterns. It helped negotiate the extraction of $42 million from Wells Fargo, and is pursuing tens of millions in claims against Bank of America and other lenders. NFHA’s claims have routinely been given unskeptical circulation in the press, but now an investigation by Kate Berry and Jeff Horwitz in the American Banker is bringing overdue scrutiny:

The group has disclosed addresses for only a fraction of the properties it alleges the banks have neglected, but a review of those it has released indicates that NFHA regularly misidentified the institution legally responsible for maintaining specific homes. In some cases, it conflated the banks responsible for maintaining properties with those that were simply serving as trustees for mortgage-bond investors. In others, it faulted banks for damage that occurred before they took possession of properties.

Not in dispute is the leverage the NFHA has gained in its dealings with banks from its close ties to supporters in the federal government. Unusual among Washington agencies, the Department of Housing and Urban Development both funds housing discrimination investigations by nonprofits, including by the NFHA, and provides the venue for them to negotiate their claims.

Grants from HUD and Fannie Mae helped get the NFHA and its leader, Shanna Smith, into the profitable business of investigations in the first place. Banks complain without success about Smith’s practice of demanding a deal while withholding the actual identities and addresses of the properties said to be suffering from bank neglect. Now the HUD-brokered Wells Fargo settlement has paid off richly with $30 million+ for the NFHA and its affiliates, the better with which to stir up more complaints. And watch the revolving door spin, amid few qualms arising from conflicts of interest: “Sara Pratt, the HUD official responsible for investigating and resolving the NFHA’s complaints, and who oversaw its settlement with Wells Fargo, is a former NFHA staffer and consultant.” (cross-posted at Cato at Liberty).

It looks as if someone really doesn’t want the Obama administration’s treasured but shaky “housing disparate impact” theory to come under review by the Supreme Court [Josh Blackman on reports of settlement mooting Mount Holly, N.J. case granted certiorari and pending before the Court; earlier on controversial tactics used to moot St. Paul case through settlement]

More: Piscataway v. Taxman also dropped off the Court’s docket via a mootness tactic. And shorter Doug Kendall/Constitutional Accountability Center: how dare PLF, Cato and IJ take the Court’s word on what the issue is in Mt. Holly? [Ilya Shapiro]

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Banking and finance roundup

by Walter Olson on October 22, 2013

  • “Dodd-Frank and The Regulatory Burden on Smaller Banks” [Todd Zywicki]
  • Side-stepping Morrison: way found for foreign-cubed claims to get into federal court? [D&O Diary]
  • “Alice in Wonderland Has Nothing on Section 518 of the New York General Business Law” [Eugene Volokh, swipe fees]
  • “Financial Reform in 12 Minutes” [John Cochrane]
  • Why the state-owned Bank of North Dakota isn’t a model for much of anything [Mark Calabria, New York Times "Room for Debate"]
  • Regulated lenders have many reasons to watch SCOTUS’s upcoming Mount Holly case on housing disparate impact [Kevin Funnell]
  • Cert petition: “Time to undo fraud-on-the-market presumption in securities class actions?” [Alison Frankel]

October 7 roundup

by Walter Olson on October 7, 2013

  • More regulation of online speech: what could go wrong? “‘Eraser’ law gives California teens the right to delete online posts” [ABA Journal, Eric Goldman, Scott Greenfield]
  • Gov. Brown signs bill to grant law licenses in California to illegal immigrants [Reuters]
  • “Court: website alleging police corruption shouldn’t have been shut down” [Ars Technica; Lafayette, Louisiana]
  • License to speak: Eugene Volokh and Cato Institute challenge licensing of DC tour guides;
  • Thanks to Keith Lee at Associates Mind for including us in list of recommended law sites;
  • St. Paul disparate-impact housing controversy: “How Mischievous Obama Administration Officials Scuttled An Important Supreme Court Case” [Trevor Burrus, see also]
  • Great circle of tax-funded life: public sector lobbying expenditures [Washington state via Tyler Cowen]

September 23 roundup

by Walter Olson on September 23, 2013

  • Drunk driver leaves road, hits power pole, Washington high court allows suit against property owner to proceed [Lowman v. Wilbur, PDF]
  • State attorneys general pressure clothing maker to drop t-shirts with drug names [ABA Journal, related earlier]
  • More transparency needed in Child Protective Services [Reason TV] One lawyer’s critique of CPS [Laurel Dietz, Straight (Vancouver)]
  • While aspiring to nudge us into more farsighted financial practices, government has trouble staying out of dumb bond deals itself [Coyote, and more (Detroit)]
  • You can care about safety but still think some speed limits are set too low [Canadian video on Jalopnik]
  • Trial lawyers aim to extend to Indiana their Idaho victory over “Baseball Rule” on spectator liability [NWIT, earlier here, here, here, etc.]
  • New “fair-housing” assessment and planning process propels federal government into social engineering [IBD editorial via AEI Ideas, HUD]

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A video from the humor site The Chive has been making the rounds with a landlord’s narration of the ghastly extent of damage to a family home done by a single really bad tenant participating in the federal Section 8 housing-voucher program (and not responsible for most of the rent). Some landlords might react to such an experience by becoming more wary of Section 8 tenants and subjecting them to extra screening or interviewing, while others might be more convinced by assurances (from various quarters supportive of the Section 8 program) that horror stories are in no way typical and that tenants using the vouchers are no more likely to trash a property than any other tenants.

Such a difference of opinion might be of relatively limited interest — some landlords could follow one strategy, others the opposite, and experience would tell which was the more successful — except that the Obama administration and its allies are taking the position that “discrimination” against Section 8 tenants, whether in the form of extra scrutiny of their applications, turning them away as applicants, or anything else, should be illegal. That is one of the major demands of HUD’s lawsuit against Westchester County, N.Y., and it is the substance of laws passed in Cook County, Ill. and elsewhere lately, at the urging of “fair housing” groups, banning so-called source-of-income discrimination. [Chicago Reporter, Courier News, Tenants Union of Washington State] The message of these laws to hapless landlords like the one who narrates the Chive video is: sorry about your house getting trashed, but tough luck, see you in court if you try to protect yourself. (& welcome Above the Law readers).

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Under the “disparate impact” theory of housing discrimination, private business decisions or local government policies not motivated by race are deemed unlawful anyway because they have a differential statistical impact on housing transactions by members of a given racial group. A mortgage lender’s policy of lending only to borrowers with high down payments or sterling credit ratings, for example, might be subject to attack on the grounds that it tended to screen out minority borrowers, even if such was not its intention, and was not justified by business necessity. The U.S. Supreme Court has never ruled on this theory; two years ago, in a case called Magner v. Gallagher, it was widely speculated that the Court would disapprove disparate-impact claims, a prospect the Obama administration (which is deeply invested in the theory) managed to dodge only by arranging to moot the case through settlement.

In the new Supreme Court case of Township of Mount Holly v. Mount Holly Gardens Citizens in Action, Inc., plaintiffs claim that it is illegal for a New Jersey township to slate a tract of development land for detached single-family housing because poorer persons are less likely to be able to afford such housing and minority persons are more likely to be poorer. The Obama administration is backing the claim. [earlier] The Cato Institute, along with the Pacific Legal Foundation and several other groups, has filed an amicus brief defending the township. Writes Ilya Shapiro at Cato at Liberty:

The Gardens’ residents can’t afford the new housing not because of their race but because of their poverty. While it’s a harsh truth that a disproportionate number of minorities live in poverty, claiming that making expensive products is racist and that these “racists” have an obligation to compensate the victims of poverty is absurd. The FHA was intended, in the words of Senator Walter Mondale, “to permit people who have the ability to do so to buy any house offered to the public if they can afford to buy it. It would not overcome the economic problem of those who could not afford to purchase the house of their choice.”

For following the law as it was written and attempting to improve a blighted neighborhood without resorting to eminent domain abuse, Mount Holly was rewarded with a decade’s worth of vexatious litigation — which the Supreme Court should now end once and for all.

More: Hans Bader, Examiner.

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An Ohio jury found in 2011 that an apartment owner “had not violated federal law in running the Craigslist ad that read: ‘Our one-bedroom apartments are a great bachelor pad for any single man looking to hook up.'” Now an appeals court has ruled that the judge gave improper jury instructions and that the nonprofit Miami Valley Fair Housing Center, which claimed the ad violated the rights of families and women, can get another trial. [Associated Press]

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June 21 roundup

by Walter Olson on June 21, 2013

  • What could go wrong? “Moving into F.B.I. turf, local police are assembling databases of DNA records” [NYTimes, earlier here, here, and here]
  • Toyota pays Orange County D.A. $16M to go away: $4M to locally influential attorney Robinson and friends, $8M to… gang prevention?! [NLJ]
  • Mt. Holly: “Supreme Court Takes Up Challenge To Disparate-Impact Discrimination Theory” [housing; Daniel Fisher, Forbes]
  • UFCW: legalizing private liquor stores to compete with our guys’ state-run Pennsylvania stores would be just like killing people [Malanga]
  • Prattling on about Lochner v. New York decision, Michael Lind appears to lack first clue as to what it actually said [David Bernstein; more on "Where's your country, bub?" anti-libertarian flap, Max Borders (on E.J. Dionne), Will Wilkinson ("Why does Michael Lind keep asking questions that have obvious answers?"), Marlo Lewis/Open Market.]
  • The other day the editorialists of the New York Times sat down and wrote that “there is no persuasive evidence of any significant fraud or abuse” in asbestos claiming. Yes, they actually wrote that. In 2013. Paging Lester Brickman!
  • Supreme Court: feds can’t require beneficiaries of overseas grant programs to sign pledge to oppose legalizing prostitution [Ilya Shapiro] “How Calling Sex Work ‘Human Trafficking’ Hurts Women” [Cathy Reisenwitz, Sex and the State, more]
  • “The utterly frivolous and offensive complaint against the honorable Judge Edith Jones” [@andrewmgrossman on this Andrew Kloster piece, earlier here and here]

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When local governments lack a properly compliant attitude:

The federal monitor overseeing Westchester’s much-debated court settlement with the U.S. Department of Housing and Urban Development over affordable housing asked County Executive Rob Astorino on Wednesday to remove a news release from the county’s website, saying it contains falsehoods….

[Manhattan-based attorney James] Johnson cast doubt on whether Astorino can say whatever he wants about the controversial 2009 settlement.

During a conference call with journalists shortly before Astorino’s news conference, Johnson said the settlement calls for the county to educate the public about the benefits of integration. Astorino, on the contrary, has been antagonistic toward much of the agreement, Johnson said.

Johnson says Astorino wrongly suggests that HUD is pressing for construction of more than the 750 units of “affordable” housing specified in the settlement; Astorino responds that HUD officials keep citing a study under which a much larger number of units would be required to bring the towns into compliance. Westchester voters elected Astorino in part because of his criticism of the much-disliked deal. [Newsday, paywall; earlier here, here, here, etc.]

Housing roundup

by Walter Olson on June 12, 2013

  • Danegeld: Wells Fargo agrees to pay $42 million to settle activist groups’ exotic legal claims re: REO property; much will directly go to support the groups [BLT]
  • On horrors of San Francisco landlordship, “Pacific Heights” still all too realistic [David Boaz, Cato]
  • Problem in Thomas Perez/HUD/St. Paul affair was not that DoJ chose to settle in such a way as to minimize its losses, but that it had pursued such a weak case in the first place [Richard Painter]
  • Dean Zarras on HUD v. Westchester [Forbes; our two cents] HUD embraces disparate-impact theory [Kevin Funnell, Arnold Kling]
  • Why did the mortgage market collapse? [Foote et al via @tylercowen]
  • Shorter Ta-Nehisi Coates: flaws of rent-to-own housing in ’50s Chicago prove US economic arrangements are a plot to immiserate blacks [The Atlantic] Yet Sinclair’s The Jungle, set 40 years before, showed very similar housing scams being played on Slavic newcomers.
  • Minnesota high court dodges Fourth Amendment worries re: rental inspection program [Ilya Shapiro, Cato, link fixed now]

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By a 12-4 vote, the board of legislators of the suburban New York county has approved going to court against the federal Department of Housing and Urban Development in the long-running dispute. HUD is still insisting that the county enact a “source of income discrimination” law barring private landlords from turning away Section 8 federally aided tenants, as well as critically reexamine zoning rules in its various towns. [Peter Applebome, NYT, Journal-News, Newsday] Earlier here, etc.

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I’ve got a new piece at Reason on the long-running dispute between the federal Department of Housing and Urban Development and the government of Westchester County in suburban NYC. Claiming that Westchester has failed to follow through on promises of attracting more minority homeowners, HUD is suing the county and wielding funding cutoffs to get it to step up a large commitment to subsidized housing, override town zoning rules, and enact an ordinance forbidding private landlords from turning away Section 8 tenants. The WSJ editorialized yesterday on the subject. Further background: ironic that county is being penalized after seeking to cooperate [Gerald McKinstry, Newsday; Joanne Wallenstein, Scarsdale 10583]; former Democratic county legislator backs county executive Rob Astorino on so-called “source of income” legislation [Journal-News]; similar law already in effect in Washington, D.C. [Examiner]; earlier coverage here, here, etc., and my 2009 City Journal account.

P.S. Shortly after our piece, a Second Circuit panel ruled the county out of compliance. ProPublica, the foundation-supported reporting-and-opinion outfit, has been doing a series of reporting-and-opinion pieces taking the plaintiffs’ side, including this latest.

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