QUESTION TYPE 2: COMMENTS & BEST STUDENT ANSWERS
QUESTION 2B: SAMPLE ONLY; NO MODELS
QUESTION 2C: COMMENTS
Almost everyone who answered this question made some interesting points, and a few of you had a lot of good ideas. I rewarded people who tried to address all four questions asked, who tried to see arguments on both sides of the first two questions, who read the amendment carefully, and who provided some thoughtful analysis or suggested changes.
On the question of legality under federal law, I was looking for recognition that any raceconscious remedy might be considered illegal, but that this remedy might pass muster because it didn’t directly exclude anyone from housing and applied to people of any race. In short, the amendment is more likely to pass muster than the program Starrett City, but is arguably somewhat more exclusionary than the program in South Suburban.
Among the technical changes I thought might be needed were definitions of “race” and of
“areas.” The structure of the amendment is also a bit peculiar in that Asian-Americans in
Missouri might be eligible for the additional subsidy in every single neighborhood in the state, which may not be the intended result.
The model answers do a good job suggesting some of the pros and cons and some possible substantive changes. Some of you got into trouble by raising complaints or suggesting changes that seemed to misunderstand what the amendment is trying to do. Several of you, for example, suggested eliminating all reference to race. Who then receives the additional subsidy?
Everyone? Then you have just increased the amount you are spending statewide without doing anything about segregation. If you mean the additional subsidy only goes to some people, you have to make clear who they are. Several others suggested the importance of putting time limits on the transfer payments so the recipients don’t become dependent. However, the subsidy is going to pay the downpayment on a house. The recipients only get it once. You hardly need to worry that they’ll become dependent. Moral of the story is read more carefully and think about what I’m asking. Those of you who started writing right away and left early may have hurt yourselves with errors like these.
QUESTION 2C: STUDENT ANSWER #1
I. FHA: The proposed amendment conforms with the goals and spirit of the FHA which is to prohibit discrimination and promote integration. The amendment’s awarding of additional percentages of money based on a two tiered race analysis helps to achieve this. Even though the awards are based on race, which would be prohibited under a literal reading of the act, this affirmative marketing with race conscious efforts to promote integration of the area is within the scope and spirit of the ad. The amendment seems to have the effect of “steering” certain races to particular areas, an act prohibited under §3604(a) & (d) of the act. It is not rejecting these people, though; and the end result is a more integrated area. There is a history of hypersegregation in the area which justifies taking an affirmative marketing approach to eradicate it. The awards act as remedies to the past history of discrimination of minorities financially. These incentives to purchase homes in the areas, based on your race, may not be as neutral a policy such as the deduction of mortgage interest for homeowners, but it pursues a noble goal too, and doesn’t indirectly exclude people with such damaging results. People who are of the rate that is more than 30% of the area are still entitled to a subsidy. The ten and five percent additional amounts

are not unreasonable or grossly disproportional to the social harm. They are meant to cure.
(Milliken)
II. Pros & Cons: The obvious “pro” of the amendment is that it tries to affirmatively address and cure a pervasive and devastating social ill. It is a creative approach to creating an integrated balanced community in a state with hypersegregation plaguing its major cities. The effect of this hypersegregation damages the state’s people and economy. Enacting this amendment would benefit people of all races and socio-economic backgrounds. The cycle of keeping segregated neighborhoods that abound with crime, unemployment, single parenthood, drugs, etc. would be attacked and broken.
There are some negative aspects of the amendment. If, through the program there becomes a population of 30% of a particular minority, so subsidies stop for that race, will additional members of that race be discouraged from living there? Does the subsidy system create an unfair advantage for the first come, first serve people that take advantage of the program first? This
“problem” can be viewed another way in that the later parties will be forced to seek out a new community where they will add to the minority base -- a possible “pro.”
Another con is that it discourages whites from moving into most communities because they will always be the majority. We have learned that most whites have indicated they would not be comfortable living in an area where they would be a 30% minority. Realistically then, you are not going to increase the number of whites that more to an all black area. The result may tend to be a “white flight” reaction to the integration of their existing neighborhoods.
III & IV. Substantive Changes/Drafting: There definitely needs to be a specific time period articulated to maintain control over the program. A second change would be a very expanded definition of the “area” in which the program would be in effect. As the “quotas” are filled the program should be discontinued so that it does not have an adverse effect of keeping out nonminorities that want both a particular area with the integrated result. Furthermore, I would replace the very forceful words “are entitled to” to a more flexible, “may be eligible for.” This could prevent fraudulent claims and allow to government a mechanism to deny certain groups who would try to take advantage or scam the program.
But, the most important substantive change I would suggest would be to expand the amount of the subsidy. I think that would have the most profound effect of ensuring the success of the program. The system is basically trying to pay off minorities to move into areas that may seem unfriendly, hostile and dangerous. So, make it really worth their while to do it. Increase the subsidies to 15 and 20 percent.
Then it would speed up the rate of integration, surely. The policies of the government, like allowing redlining, that created the situation must be redressed. Certainly enough money has historically been denied to minorities to more than justify an increase in these additional subsidies.
In terms of drafting, I would:

Eliminate #2, combining it into #1. The two of them are repetitious and verbose.

The order of the wording in #2 is also confusing. It is more clear to say more than 15% but less than 30%, not vice versa.

 Need definitions of “area” and “population.” Does, for example, the population include people that commute to and from “The area for work or just home owners? What about apartment dwellers? Does their transient nature preclude them from being counted?”
All of these definitional issues need clarification. The last idea would be to add a length of residency requirement so minorities couldn’t just churn homes because of subsidies.
QUESTION 2C: STUDENT ANSWER #2
FHA: The proposed statute would likely pass FHA muster. A major purpose of the FHA is to affirmatively promote integration. (See also Starrett City, Otero, & SSHC). This act does no harm to any party -- it only aids parties. Although its possible that a white party may claim harm to his property rights/values, its unlikely that the courts will give credence to such an argument.
1982: Unlike FHA, 1982 requires discriminatory intent (See Arlington Heights). Similar to
FHA, §1982 purpose was to extend rights to African American citizens. The proposed legislation appears consistent with that purpose.
Pros & Cons: The proposal is facially neutral -- a big plus. One scholar, Roisman, suggests that white integration of predominately black areas is an important step in addressing this segregation problem. The Act uses both class and race for its underpinnings. This is a critical link to achieving true success in the public policy efforts to promote integration according to American
Apartheid. The program also is similar to the Gatreaux mobility program in the Chicago area.
That program has been almost universally applauded by scholars.
On the con side some such as Roisman may criticize the program as not going far enough. Although ECHO may assist higher income African Americans who can qualify and afford mortgages the poor ghettoized areas would likely become further isolated and concentrated. Roisman would also argue that the subsidies should be deep. The ECHO plan, which only addresses the down payment, may be considered too shallow.
Also, ECHO does not include those who rent -- any significant impact on segregation would need to include rental housing as well. (See American Apartheid) Some of the other cons are those often heard on similar legislation - this is costing the taxpayers money -- too much -- or that this is nothing more than another liberal attempt at social engineering bound to fail. I suggest we look at ways to cost shift to builders and/or those who discriminate and ignore those who criticize without a better plan of action of their own.
Drafting Changes: I recommend that the “or” in #2 be changed to an “and.” A loophole would otherwise be created defeating the purpose of the act. Also, the term “area” should be defined narrowly with a relatively small unit to prevent sub-area segregation.
Substantive Changes: I would recommend the deeper subsidies (i.e. to mortgages payments.) and extending the program to renters. Also, you should consider adding specific protections to people who use vouchers and subsidies to pay for housing. Rosenbaum (cited in Roisman’s piece) recommends additional assistance with employment, educational or job counseling, childcare, transportation, etc. to produce even more encouraging results than Gautraux.
QUESTION 2F: SAMPLE ONLY; NO MODEL ANSWERS

Question 2G: Comments: I read through your answers to this question two times each. The first time through, I put a check mark next to each correct relevant point you made. As with the midterm, this “quantity score” is a way to try to distinguish the pithy from the verbose and is a small consideration in your ultimate grade. Your quantity is listed on the top of first page of your answer after the letter Q. The highest score (the first model) was 73; the median was in the low
30s and the mean was about 35. Several of you had fewer than 20 checks, which is very very weak for a one hour question. Do not fret about places where you think I left off a check or two; differences of fewer than ten checks would not affect your grade.
Although I thought this was the easiest of the three questions, only 16 of you chose it and many who did provided quite short and superficial answers. As always on Question II, I rewarded careful work identifying technical deficiencies in the proposed statute and thorough evaluation of the substance of the proposal. Both models provide good analysis of the technical issues. The first model answers provides serious pros and cons for all three provisions. Many students gave only pros or only cons regarding at least one of them.
General Concerns: The three sections of the amendment are different in kind. The first two are clarifications of the kinds of evidence that are relevant to a §3604(c) claim. The third is a defense. Several of you, including the first model, usefully restructured the amendment to emphasize this difference.
Several of you suggested changing or defining phrases that I took from other parts of the FHA.
Careful drafters crafting amendments will incorporate terms used elsewhere in the statute, precisely so that no further explanations are needed. The drafters know that courts can and will rely on existing cases and definitions to clarify the meaning of the meaning of these terms. For example, §3604(c) already includes the terms “notice or advertisement,” so they probably don’t need any definition.
Many of you made changes to the language of the amendment and either provided a very general explanation (“this will make the statute clearer”) or provided no explanation at all. I tried to figure out what you were doing and give you credit if I thought your changes were sensible.
However, I am certain I would have given more credit if you gave a specific pertinent rationale.
As with any other type of exam question, the better answers explain what they are doing.
Several of you spotted the issue from the readings that drafters often misuse “shall.” However, you need to replace it with something more certain than “may be” (as in: “use of human models may be relevant” to determining whether 3604(c) is violated; or “undue expense may be a defense.” What you probably mean is that the models will be relevant or the defense will be available in the appropriate cases only. However, that is true of any factor or defense. Using
“may be” suggests some other condition must be met and will leave courts wondering when they should allow the evidence or the defense.
Section 1: This section had two purposes. First, it made clear that one could base a §3604 (c) claim on human models, codifying the existing caselaw. Many of the answers noted the reasons from the cases for allowing these claims and pointed out that it might be useful to demonstrate that Congress supports the results in Ragin and its progeny.
Second, this section limited the characteristics for which a human models claim is available. The first model provides the kind of particularized discussion of pros and cons of excluding
“handicap” that I was hoping for. Some of the other answers did some similar analysis of sex and religion.
Many of the answers suggested that it simply runs contrary to Congress’s intent to treat protected characteristics differently. This seems overly simplistic to me. First, Congress does treat some characteristics differently. The religious exemption does not apply to race claims. The senior

citizen housing exemption only applies to familial status claims. Several provisions apply only to claims based on “handicap.” Second, the nature of statutory amendments is that Congress is allowed to change its mind and have new intent about certain issues. To argue against the provision convincingly, you must make a substantive case that coverage for one or more of excluded characteristics is important.
Section 2: This section codifies the rule developed by the HUD regulations that choice of media is relevant in determining whether an advertiser has indicated a preference. We discussed some of the pros and cons of this in class. You should have been aware that this is not a new idea, but something HUD already does.
Some of you seemed to think §2 would prevent developers from targeting upscale buyers with, e.g., direct mail. I don’t see why it would unless the targeting tended to exclude people who could afford the housing in question on the basis of one of the prohibited characteristics (e.g., by targeting upscale zip codes that are predominantly Anglo but not upscale zip codes that are predominantly Latino).
Some of you saw in the “target audience” language an attempt to regulate affirmative marketing plans. I think the statute would have to be much more clear if it were doing that. The affirmative marketing cases seem to allow advertising that, at least in terms of placement, indicates a preference. Thus, a provision designed to permit affirmative marketing would probably have to take the form of an exception.
Section 3: This section would have codified the possibility we discussed in class of having the equivalent of a smallholders’ exemption for certain kinds of advertising claims. You would not be expected to show multiple models or run your ad in more than one media outlet if you were only advertising for a couple of units and the additional expense would be significant compared to your overall budget. As several of you noted, the provision as written might also be used by defendants like Saunders who might claim that it was too expensive for them to rerun existing advertising stock.
Many of you argued without out (much supporting analysis) that this loophole would eviscerate the statute. That seems to me unlikely. Any ad with several models in it already would seem to fall outside the defense as would the advertising for any very large development or apartment complex.
Many of you thought that “unduly expensive” was too vague or needed to be defined. Keep in mind that courts utilize tests like “unreasonable” and “undue burden” all the time and are used to weighing pros and cons. You need to discuss why it might be preferable to have a less flexible standard, rather than assuming that these standards are inherently a problem.
Question 2G: Student Answer #1: Technical Drafting Changes : I might propose the following:
For the purpose of this subsection, relevant factors may include –
(1) The selection of human models for discrimination claims based on race, color, national origin, or familial status.
(2) The particular form of media, location of distribution, or target audience.
Nothing in this subsection requires an advertiser to incur unreasonable expenses to include additional models or advertise in additional forms of media or locations.
The reasons for these technical changes are to ensure that the courts understand exactly the purpose of the amendment. In terms of consistency, I proposed to include the phrases: “For the purposes of this subsection” and “ Nothing shall…”, this helps the amendment to match the rest

of the FHA and also helps to clarify that these provisions only apply to 3604 (c). The word
“shall” should normally not be used (it tends to be verbose and can usually be replaced with a better word). However, because it is used throughout FHA, I erred on the side of being consistent.
In addition, these technical amdts. makes the statute more precise and clear.
Furthermore, it is important to get rid of vague or ambiguous words like “unduly.” Instead, I used “unreasonable” which is also consistent with the statute (see 3604 (F)(3)(B). Although
“unreasonable” may also raise some questions of meaning, the courts are equipped to deal with that consideration based on the frequency of its use. Using the word “unreasonable” instead also does not alter the meaning of the proposed amendment by replacing “unduly”.
I was also able to exclude lengthy word choices or phrases that did not add much to the statute; for example: “at the present time”, “that results from that also”. It is important to be as clear and simple as possible so the statute/amendment is easy to follow and interpret. The language should be no more complicated than is necessary. Also the proposed amendment only cited two forms of advertising: notice or advertisement, where 3604 (c) included another type of publication – statements. I was able to phrase the amendment in a way that included all forms of publications
(consistency).
Pros for the substance to the amendment: The amendment is a good step toward clarifying what factors should be considered in an advertising claim. The amendment acts as a better guide for judges/jury instructions. This will not only make the interpretation of the advertising provision easier but will also aid in the uniform application of the law. In addition, the amendment ensures that a fundamental form/means of advertisement is examined in these cases: use of/selection of human models. A picture may actually sell the product more and actually draws a connection to the product, so it is important that they are considered.
The amendment also makes a good point in excluding “handicap” from the list. Although excluding another selection of models (based on race, national origin, etc.) may raise serious
FHA concerns, excluding handicapped individuals is really a different matter. The outright nonuse of handicapped models doesn’t necessary indicate a preference for non-disabled (in a way that excluding Blacks would) people don’t just normally consider handicap as a class of people to be represented, but that decision is not based on their disability (necessarily). In addition, it would impose too great of a burden on advertisers to include all categories (including handicapped) – that would just be unrealistic. In addition, the other categories (race, national origin, familial status) have a huge history of discrimination that requires their extra protection
(see apartheid) where in terms of the disabled, the problem is not as frequent/historically evident.
The categories are all about different problems so it is okay to treat them differently – and here is an example of where the disabled really don’t need that kind of protection (especially in terms of burden on advertisers).
The second clause is also beneficial because it ensures courts consider what form of media is used and the target audience. If not for this factor, LL could advertise in all white areas, so even by including ½ of models of another race, it would not reach that other race and so the purpose of using black models (e.g.) would be defeated. If not for this provision, LL could get around 3604
(c) easily by just targeting a group according to the area.
Furthermore, the unreasonable clause is also a good idea because it reflects the same idea as in a reasonable accommodations claim. The clause allows for the courts to determine where they would pose too much of an undue burden on the advertiser. This will be especially true in terms of a small business owner, we don’t want the FHA requiring small business to go bankrupt or feel financial instability for their little ad. This clause ensures the policy behind FHA 3604(c) is satisfied without imposing an undue burden on advertisers.

Cons for the amendment: Although the amendment may be attempting to give relevant factors to consider, it is important they aren’t read to be restrictive/exclusive. We don’t want judges to only examine those two clauses (see technical changes – so it wouldn’t likely be a problem).
The amendment is also contrary to the policy of FHA by failing to provide protection for the disabled. In the past, we have if anything, singled out the handicap to provide additional protection be we have never outright excluded them. The handicapped are excluded as a group under the FHA because of the frequency of discrimination against them. Therefore, they should also be protected in the advertising arena. Although it is true that historically other groups (like race) have had more historical discrimination, that doesn’t mean the disabled shouldn’t be afforded the same protection. Who knows how the trend in discrimination will shift? We need to protect all groups from this form of advertising. In addition, just because other people don’t think of the handicapped as a group that needs to be represented, doesn’t mean we should go along with that ignorance. Furthermore, as clearly indicated by the amendment, the selection of models would only be one factor to consider. So it doesn’t mean that all ads would require a person with a disability, by including the handicap in the list it just means the lack of them will be considered
(but it wouldn’t be dispositive)
The second provision is just an added burden on small advertisers. Notice there is no small holders exemption to 3604 (c), so a small business owner can be required to place very expensive ads in 2 or 3 different newspapers (e.g.) if in a large city.
The statute is also not a good idea because of the major loophole it leaves open in the
“unreasonable clause”. This clause will allow a small (and possibly large apartment complex/advertiser) to openly discriminate by excluding all African Americans (e.g.) from its ads on the simple basis that it couldn’t afford to reprint them. This provision allows for a wide distribution of discriminating ads for an endless amount of time (so long as the advertiser can claim it would be unreasonable to change their ad to include minorities). Now it is true that this situation may not come up that frequently but really that isn’t the point. If it can happen at all, it should be prevented. If the advertiser is really in such a dire financial position, then he should have to come up with another form of non-discriminatory advertising other than publishing 68 whites in a brochure.
Substantive Changes: Aside from possibly adding handicap to the amendment (see argument above) I would probably list out other possible, relevant factors to consider. Such as, # of times the ad was published or distributed, the size of the ad, quality of ad, actual # of models used (as opposed to just the selection of them). A more detailed list of factors to consider would provide better guidance and uniformity of applying the law.
Question 2G: Student Answer #2 (Technical Drafting Issues Only):
Subsection 1
 Replace “selection” with use. It is the use not the selection of the human models that gives rise to the claim for discrimination because the preference is inferred from the use.
 Remove word “appearing”. If the term “use” replaces “selection” then “appearing” is redundant.
 Include “statement” along with notice and advertisement to be consistent with 3604(c).
(do same in §2)
 Add language to clarify “relevant consideration”; it is unclear whether the use of the models will be a relevant consideration in determining whether the ad/notice indicates a preference and is therefore a violation or whether it is a relevant consideration that the ad/notice is a violation. One sure way to defeat the purpose of a statute is to use language that could be considered ambiguous.

 Replace “but only for” with the term provided. Simple language is preferred in statutory drafting.
 Remove the word “relevant” prior to listing the protected classes to which the subsection will apply. Use of the word relevant is redundant. If a claim has been made, it is made in regard to one of the protected classes.

List the protected classes that are included, not those that are excluded; this will give you a shorter list to work with.
Resulting subsection:
The use of human models in any notice, statement or advertisement shall be a relevant consideration in determining whether such notice, statement or advertisement indicates a preference, limitation or discrimination, provided the claim is not based upon religion, sex, or handicap.
Subsection 2
 Replace particular media or location with “means”. “Means” will be more inclusive of all possible media outlets; probably helpful to include an illustrative list defining “means”.
 Replace “displayed/distributed” with communicated. Less words are used to convey same meaning – easier to read. Also communicated a more “catch-all” term.
 Place “resulting” in front of audience and remove “that results from that”. Use less words to convey same meaning; you also know that “resulting” is modifying audience – removes any ambiguity.
 Replace may with “shall be” prior to relevant in second to last line. The term shall was used in (1) – this will allow you to maintain consistency in the use of language.
Resulting subsection:
The means by which any notice, statement or advertisement is communicated and the likely resulting audience shall be relevant in determining if such notice, statement or advertisement is in violation of this subsection.
Subsection 3
 Replace “it is a defense…” with “Nothing in this subsection…”; this will allow for consistency in way other defense are drafted (e.g. 3604 (f)(a)
 Remove term “defendant”; this term is not used anywhere else in the FHA; should be replaced with “respondent” as defined in §3602(h).
 Replace media or locations with “means” for same reason cited in changes to (2).
Resulting subsection:
Nothing in this subsection requires a respondent to use more models or advertise by additional means, where such use or advertisement imposes would constitute an undue expense upon the respondent.

Only eight students out of nineteen answered this question. I was a little disappointed overall. The answers showed very little indication that students had looked at the materials on statutory drafting and, despite specific warnings at the review session, included a lot of unexplained redrafting of the amendment.
In addition, several students did not seem to understand Marina Point very well. Comments below are tied to the three paragraphs of the amendment.
(1) As used in this section, the lists of protected classes other than in subsection (f) shall be read
inclusively instead of exclusively, barring all arbitrary discrimination. This provision was designed to turn the FHA into the kind of inclusive statute that California uses. In this context, “arbitrary discrimination” does not refer to the types of conduct that are forbidden but to the characteristics that trigger statutory protection. Thus, the exception for section (f) would not create less protection for people with disabilities, but would prevent other characteristics from being the basis of reasonable accommodations and modifications claims. As several of you realized, this was an opportunity for you to discuss the pros and cons of inclusive statutes that were laid out in one of the Info Memos. (See 1st model answer). Ideally, you might have discussed whether this kind of tinkering would make sense with the FHA in particular.
(2) Arbitrary discrimination includes the use of blanket stereotypes and relying on broad or statistical generalizations, but not a person’s relevant improper conduct. This definition incorporates ideas directly from Marina Point . You could have discussed whether these were good ways to define the term, whether some other definition would be better, or whether it would be best (as some of you suggested) to eliminate this definition and leave the scope of the term to the courts to develop. A number of you argued that this belonged in the definition section and not in §3604. However, it is structurally parallel to some of the definitional passages in §3604(f).
(3) Economic characteristics are not intended to be considered as forms of arbitrary discrimination under the meaning of this subsection. This section incorporates the limit on Marina Point created by
Harris. You might have discussed whether the distinction between personal and economic characteristics makes sense at all or in the context of the FHA.
Question 2J: Best Student Answer #1
This answer had the best combination of thoughtful substantive work and useful technical suggestions.
Initially, there are some important benefits and drawbacks to altering the list of protected characteristics in the FHA by making the list inclusive and thereby adding or allowing arguments to be made to add additional classes to gain protection.
There are many reasons to carefully consider changing the FHA list. The current exclusive list allows predictability in bringing lawsuits. Furthermore, predictability makes it easier to comply with the FHA because the public knows who it can and cannot discriminate against. On the other hand, however, this knowledge may allow the public to get around the FHA through indirect discrimination by using an UNPROTECTED classification as a pretext to discriminate against protected classes and this argument favors an inclusive list. This would keep the public on it toes and hopefully encourage fairness in housing due to fear of unpredictable liability for unlawful discrimination.
Also, allowing new classes would arguably increase strain on the courts and increase waiting time for plaintiffs due to the new litigation arguing for the protection of new classes.
However, everyone currently fits into one of the protected classes, so making the list inclusive wouldn’t really give any additional people standing as a potential plaintiff. Increased litigation, would, however, possibly raise costs to landlords-owners who will have more lawsuits to defend

(arguably) and this ma lead to increased rents, thereby harming the very people that the FHA is trying to protect (renters/buyers).
Allowing additional classes to the list also raises concerns about enforcement resources.
HUD and other agencies often have fixed budgets and will have to process more claims with same resources. This could result in weaker claims (or claims that appear weaker because a sophisticated landlord left behind little or no evidence of discriminating) being ignored by the
HUD who would have to be more “choosy” in taking cases to court. Thus the most helpless victims of housing discrimination may suffer.
There is also a public concern to consider. Some of your voters may feel that adding more characteristics will dilute the importance of the current categories by lessening their historical and symbolic significance. Alternately, some members of the public may feel that adding new characteristics will inappropriately elevate the significance of the new additions
(common feeling for adding “marital status” and “sexual orientation”)
Despite these concerns, adopting the open-ended UNRUH approach will offer protection for a wider range of classes by adding flexibility without the timely/costly process of amending the FHA. Furthermore, courts will now have the option of adding to the list, which takes the pressure off of you (as a Congressman) to respond to popular prejudice and bill (Handy)! This is good for your career.
If you chose to adopt the substance of this proposed amendment, considering the foregoing policy discussion, I would recommend the following changes…
(1) leave the same until “shall”. After shall add the following provision to replace the remainder of (1)… “not be read to be exclusive, but instead shall prohibit all discrimination covered in this section that is ARBITRARY.”
 1 deleted “instead of inclusive” because this is implied and is extra un-needed language
→ Ockham’s Razor → I cut it out.
(2) & (3) → I’m starting fresh because these ideas need clarification and organization to be better understood…
(2). “ARBITRARY” discrimination means decisions based on a) blanket stereotypes; and b) statistical generalizations; except that
(3). Nothing in this section prohibits decisions based on. a) Economic characteristics; b) Particular conduct of and individual that is relevant and improper; c) Special-purpose housing qualifications, such as those listed in §3607 herein; d) Any other factor or characteristic otherwise allowed in this Section
I wanted to separate what is arbitrary and what is not (for this section) to make the amendment easier to use and understand. I felt it was important to specify what generalizations can be used for special purpose housing or qualifications found elsewhere in the statute like
“direct threat” or “convicted substance abuser”. This adds some limits back to the inclusive list and as a bonus, allows for future amendments to the Act that might specifically allow discrimination/broad generalizations to be used to exclude certain groups from the list (assuming that the inclusive results in the future). This may help the amendment pass by appeasing its opponents who want to leave the list exclusive; but it still sticks with the spirit of the amendment.
I realized that leaving “relevant” and “improper” in the amendment adds some confusion and ambiguity, but I feel that those terms are best left undefined by the legislature. HUD can perhaps provide examples and interpret the bounds of those words to add clarity or the courts can

use those words as wiggle room for extraordinary unpredictable cases and situations. In fact, Cox already has done such a thing by allowing exclusion based on disruption of business, property damage, and injury to others. These types of relevant and improper actions are too numerous to list out in a definition – so they should be left undefined.
One last thought…perhaps a provision should be added to limit new additions to classes that “are like” those already listed… that are “of the same nature” ← vague, I know but it is important to stick with the spirit of the Section and to avoid absurd claims, like adding weight, intelligence, etc.
Question 2J: Best Student Answer #2
This answer had a number of good ideas on the technical changes and some good points (although not as
much discussion as I’d like) in the pros and cons.
Technical Changes and Substantive Issues: Regarding the overall premise that these subsections should be added as §3604(g), this seems improper given the essential message of these amendments as both rules for interpreting the statute and a huge overall policy change. Thus, I would place these amendments more towards the beginning of the FHA, such as in §3601.
First Paragraph:
Given that change, I would alter “as used in this section” to a statement that reflects the above comments – such as – “This Act is intended to …” Also, confusing in the 1 st paragraph is “the list of protected classes” and then the inclusion of the exception for handicap – subsection (f), and the use of “inclusively instead of exclusively.” As statutes ought to be easy on the eyes for even the layman and because of this amendment’s overall policy objectives, this paragraph ought to simply state:
This Act is intended to protect against all forms of arbitrary discrimination, and the protected classes listed herein are merely illustrative, except if otherwise indicated.
Then, a new sentence ought to be placed in the beginning of section (f) that explains that the categories defining handicapped discrimination are not illustrated and instead are to be interpreted precisely. Example:
The rules provided under this section shall be applied only to claims arising under this section.
The next paragraph, which defines
1
“arbitrary discrimination”
2
: “blanket” stereotypes is confusing and overly vague and redundant. The same goes for “broad or statistical” generalizations. The clause regarding a person’s “relevant improper conduct” is easily combined with the next paragraph, which describes another exception to the “arbitrary discrimination of paragraph one. An easy way to combine these clauses and make the presentation much smoother for the reader would be to have either a follow-up sentence to the one crafted on the previous page – or to add these exceptions into the “exceptions” section of the Act. It could read as follows:
No claim exists under this Act against a defendant who acted solely in consideration of
1.
the claimant’s improper conduct; or
2.
the plaintiff’s risky economic standing
“Risky” militates against discrimination of the poor simply because of that status.
Pros and Cons: I think this is a worthy amendment because in reality the same type of harm may be inflicted on people – despite not belonging to a defined “class”. It is difficult to predict all forms of such harm and this Amendment allows the Courts to dynamically apply this essential
1 This is really a policy statement and defining it may be necessary.
2 Further, it’s unnecessary because vagueness here would place the definition of this term in the hands of the courts.

fair housing law. Some examples of categories that currently are harmed – but do not have causes of action under the federal Act are age and marital status. Unfortunately, the Act in its current form would require a significant procedural step – just to include these arguably worthy categories. The 1988 Amendments are a good example of this – as it partly was designed to add
“family status”, it took years! And it gets ever more slowed down by accompanying changes.
This is for more efficient. The only problem is a risk of a whole lot more of litigation.