The District argues that Plaintiffs have failed to allege any improper actions by the
District under the Act, because Sections 3604(a) and (b) do not apply to the District of Columbia
in this matter. Def. Mtn. p. 4. The District's Motion to Dismiss almost exclusively relies on
Clifton Terrace Assoc. v. United Technologies, 929 F.2d 714 (D.C. Cir. 1991) ("Clifton II") and
Clifton Terrace Assoc. v. United Technologies, 728 F.Supp. 24, 28 (D.D.C. 1990) ("Clifton I")
(hereafter collectively "Clifton cases"), a case that did not involve a municipality. Such a
reliance is not only contrary to long-established precedent specifically interpreting municipal
liability under the Act, but it is also a misapplication of the Clifton cases' findings to the facts
currently before the court.
- Plaintiffs Have Stated a Claim that the District Has Made Housing
Unavailable in Violation of Section 3604(a)
Section 3604(a) states that it shall be unlawful:
To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for
the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national origin. 42 U.S.C.
§3604(a) (emphasis provided).
First, the District has failed to identify, let alone address, the weight of authority holding
that municipalities can be liable under 3604(a) for making housing unavailable. See e.g.,
LeBlanc-Sternberg et al. v. Village of Airmont et al., 67 F.3d 412 (2nd Cir. 1995); Jackson v.
Okaloosa County, Florida, 21 F.3d 1531 (11th Cir. 1994); Huntington Branch NAACP v. Town
of Huntington, 844 F.2d 926 (2nd Cir. 1988); Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir.
1982); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283
(7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978); Resident Advisory Board v. Rizzo, 564 F.2d
126 (3rd Cir. 1977); Dews v. Town of Sunnyvale, Texas, 109 F.Supp.2d. 526 (N.D. Tx. 2000);
United States v. Town of Cicero, 1997 WL 337379 (N.D. Ill. 1997); Hispanics United of DuPage
v. Village of Addison, 958 F.Supp. 1320 (N.D. Ill. 1997); United States v. Yonkers Board of
Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), aff'd, 837 F.2d 1181 (2d Cir. 1987); United States v.
City of Birmingham, 538 F. Supp. 819 (E.D. Mich. 1982), aff'd, 727 F.2d 560 (6th Cir. 1984),
cert. denied, 469 U.S. 821 (1984); United States v. City of Parma, 494 F. Supp. 1049 (N.D. Oh.
1980). Several courts have also found that municipalities can be liable under Section 3604(f)(1),
the equivalent disability provision to Section 3604(a), of the Fair Housing Amendments Act of
1988, for making housing unavailable. See e.g., Hovsons, Inc. v. Township of Brick, 89 F.3d
1096, (3rd Cir. 1996); Arc of New Jersey, Inc. et al. v. State of New Jersey, 950 F.Supp. 637 (D.
N.J. 1996); Samaritan Inns, v. District of Columbia, 1995 WL 405710 (D.D.C. 1995);
Association for Advancement of the Mentally Handicapped, Inc. et al. v. City of Elizabeth et al.,
876 F.Supp. 614 (D. N.J. 1994); Oxford Housing, Inc. v. Town of Babylon, 819 F.Supp. 1179
(E.D.N.Y. 1993); McKinney Foundation Inc. v. Town Plan & Zoning Comm'n, 790 F.Supp.
1197 (D. Conn.1992); Horizon House Dev. Serv. v. Township of Upper Southampton, 804
F.Supp. 683 (E.D. Pa. 1992); United States v. Village of Marshall, 787 F.Supp. 872 (W.D. Wis.
1991); Baxter v. City of Belleville, 720 F. Supp. 720 (S.D. Ill. 1989). (4)
In Arlington Heights, the seminal case providing for municipality liability, the 7th Circuit
held that the Village had an obligation under the Act to refrain from engaging in zoning policies
with a discriminatory effect. 558 F.2d 1283 (7th Cir. 1977). Additionally, under Samaritan Inns,
an action brought in this court against the same defendant, the district court held that the
District's actions - issuing stop-work orders and rescinding building permits - under facially
legitimate zoning enforcement responsibilities, were ultimately found, as a matter of law, to
violate the Act under both intentional and impact analyses. Id. at 26. Here, the Plaintiffs'
Complaint alleges that the District has an obligation under the Act to refrain from engaging in
discriminatory enforcement of its housing code against Hispanic and Vietnamese tenants; and
that the District's actions - targeting dwellings for closure and/or code violations - under facially
legitimate housing code enforcement responsibilities violate the Act. Compl. ¶¶19-23.
First, in arguing against the weight of authority on this issue, the District attempts to rely
upon the Clifton cases, which did not involve a municipal defendant. Instead of interpreting the
plain meaning of the Act, the District strains to apply Clifton to the facts of this case. See e.g.,
Ernst & Ernst, v. Hochfelder, 425 U.S. 185 (1976) ("The starting point in every case involving
construction of a statute is the language itself"). In Clifton II, the Court of Appeals for this
Circuit held that an apartment complex owner's Complaint - that an elevator manufacturer
refused to provide elevator service for the complex - failed to state a claim under Section
(a) of the Act. The Court reasoned that "elevator service is a matter of habitability, not
availability, and does not fall within the terms" of Section (a)'s prohibition of making
housing unavailable. 929 F.2d at 719. This case is easily distinguishable from the Clifton cases. (5)
Allegations of closure, threatened closure, barricaded housing structures, and selective
and discriminatory housing code enforcement, Compl. ¶¶ 2,19, 24, 26-31, 39, plainly raise
matters of making housing unavailable, not just uninhabitable. Plaintiffs further allege that these
actions were taken by the District in areas of the city and buildings with high concentrations of,
and disproportionate effects suffered by, Hispanics and Vietnamese. Compl. ¶¶ 2, 20-25.
Accordingly, Plaintiffs have properly alleged that the District has made housing unavailable on
the basis of national origin, in violation of §3604(a).
Second, if the District's position is that, despite the overwhelming number of cases in
other courts that have held that Section 3604(a) is applicable to municipalities, the Clifton cases
stand for the proposition that, in this Circuit, §3604(a) applies only to landlords, then such an
interpretation is not supported. E.g., Wai v. Allstate Insurance Co., 75 F.Supp. 2d 1 (D.D.C.
1999); Samaritan Inns, 1995 WL 405710 (D.D.C. 1995).
In Wai, the district court held that an insurance company's refusal to provide standard
property insurance at ordinary rates to landlords with disabled tenants "makes unavailable or
denies a dwelling" in violation of §3604(f)(1) of the Act. 75 F.Supp. 2d at 7. The defendants in
Wai, like the District here, relied on Clifton II in support of its Motion to Dismiss. Id. The Wai
court's holding specifically rejected the defendants' contention that denial of insurance does not
make a dwelling unavailable pursuant to Clifton II. Id. at 6. The court went on to note that a
lack of or higher priced property insurance is a powerful disincentive to rent to disabled persons,
thereby making housing unavailable under §3604(f)(1). If the Wai court had interpreted Clifton
II as the District urges in this case, the action against the insurance company under §3604(f)(1)
would have been easily dismissed, as insurance companies are not landlords.
Similarly, the district court in Samaritan Inns, held that the District's issuance of a stop-work order and revocation of building permits for groups homes housing former drug and
alcohol abusers was, as a matter of law, a violation of the Act. 1995 WL 405710 at *29. Like
this case, the District in Samaritan Inns, was not "providing housing" in the sense that a landlord
does, rather it was exercising its authority and responsibility "for the development and
enforcement of this District's laws." Id. at 3. The discriminatory exercise of its authority was
found to be violative of the Act. Id. at 29. There can be no question that the alleged actions of
the District - exercising its sole authority to close or threaten to close buildings, and enforcing its
housing code in a selective manner - directly make housing unavailable. Further, the courts have
interpreted the term "otherwise make unavailable or deny" broadly to cover a wide variety of
discriminatory practices affecting the availability of housing. See, e.g., Heights Community
Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985) (real estate steering), cert.
denied, 475 U.S. 1019 (1986); Kennedy Park Homes Ass'n, Inc. v. City of Lackawanna, N.Y.,
436 F.2d 108 (2d Cir. 1970) (refusal to permit sewer hookup), cert. denied, 401 U.S. 1010
Third, in its Motion to Dismiss, the District erroneously asserts that "the U.S. Court of
Appeals for the District of Columbia Circuit and this Court have made clear, §3604(a) is 'clearly
confined to discrimination by providers of housing.' [Clifton II]." This is not an accurate
portrayal of the Clifton cases. The quotation that the District attributes to the Court of Appeals
as having made "clear" is merely the Court of Appeals' recitation of the lower court's
conclusions, and not the Court of Appeals own holding. Clifton II at 719. Additionally, the
Clifton cases do not support the District's argument. While the Court of Appeals did agree with
the district court that the Act "does not cover claims of the type raised by Clifton," the Court of
Appeals explained that the elevator company was not liable under §3604(a) because the elevator
company's refusal to service the Clifton Terrace elevators did not "adversely affect the
availability of housing." Id. at 719. Likewise, the district court stated, "Otis's alleged refusal to
service the Clifton Terrace elevators did not affect the availability of housing in a manner
implicating §3604(a) of the Fair Housing Act." Clifton I at 29. Thus, the defendant's act of
refusing to service plaintiff's elevators did not make a dwelling unavailable. Id. at 719. The
Court of Appeals went on to note that the duty to furnish housing services in a nondiscriminatory
manner "resides primarily with their landlord." Id. (emphasis added). The Court of Appeals did
not, however, state that Section 3604(a), therefore, applied only to landlords. Here, the District
has a duty, irrespective of any duties the landlords may have, (6) to refrain from making housing
unavailable on the basis of national origin. The Complaint alleges that the District's exercise of
its exclusive housing code enforcement authority against Hispanic and Vietnamese tenants and in
highly concentrated Hispanic and Vietnamese areas of the District adversely affected the
availability of housing in violation of Section 3604(a). Construing all material allegations of the
Plaintiffs' Complaint as true, the Plaintiffs have alleged a claim against the District under
§3604(a) and the District's Motion to Dismiss must be denied.
- Plaintiffs Have Stated a Claim that the District's Actions Discriminate
in the Terms, Conditions, or Privileges of Rental of a Dwelling, or in
the Provision of Services in Violation of Section 3604(b)
Section 3604(b) states that it shall be unlawful:
To discriminate against any person in the terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services or facilities in connection therewith, because
of race, color, religion, sex, familial status, or national origin. 42 U.S.C. §3604(b).
The District's assertion that it is not a housing or municipal service provider, and
therefore, not liable under Section 3604(b) of the Act is similarly problematic. Several cases
have successfully alleged violations of the Act under Section 3604(b) against cities or
municipalities. See e.g., United Farmworkers of Florida Housing Project v. City of Delray
Beach, FL, 493 F.2d 799 (5th Cir. 1974) (allegation that failure to provide water and sewer system
violated 3604(b) satisfied prima facie case under the Act); Campbell v. City of Berwyn, 815 F.
Supp. 1138, 1143-1144 (N.D. Ill. 1993) (termination of police protection by city violates 3604(b)
as discriminatory provision of services or facilities); cf. McKinney Foundation, 790 F.Supp. 1197
(D. Conn. 1992) (stating, generally, discriminatory terms and conditions for HIV-infected
persons violate the Act); United States v. Schuylkill Township, 1990 WL 82089 (E.D. Pa. 1990)
(allegation that town's zoning ordinance violates 3604(b), among others, survives motion to
dismiss); Dunn v. Midwestern Indemnity Mid-America Fire and Casualty Co., 472 F.Supp. 1106,
1110 (S.D. Oh. 1979) (stating that provision of services or facilities in connection with the sale
or rental of dwelling has been broadly construed); But see, Puglisi v. Underhill Park Taxpayer
Assoc., 947 F.Supp. 673 (S.D.N.Y. 1996) (actions such as selectively enforcing ordinances,
housing codes, and zoning regulations trigger §3604(a) and not §3604(b)).
For example, in Schuylkill, the plaintiff alleged, inter alia, that the town had violated the
Act when, through enforcement of its zoning code, it denied a use permit to a group home for
persons with disabilities. The court denied defendant's motion to dismiss and stated that the
complaint contained the requisite factual specificity that the town's actions in amending and
enforcing its zoning ordinance discriminates against persons with disabilities "as to the terms and
conditions of rental." Id. at *3. Similarly, in Berwyn, plaintiffs alleged, inter alia, that the city's
decision to terminate police protection was based upon their race and denied plaintiffs the
services and facilities provided in connection with residency in the town, in violation of Section
3604(b). The court in Berwyn denied the defendants' motion to dismiss as to this claim because
this "subsection applies to services generally provided by governmental units such as police and
fire protection or garbage collection." Id. at 1143 quoting, Southend Neighborhood Imp. v.
County of St. Clair, 743 F.2d 1207, 1210 (7th Cir.1984).
The actions taken by the District, as alleged by the Plaintiffs, qualify as sufficiently pled
allegations of discriminatory terms, conditions, or privileges, or provision of services in violation
of Section 3604(b), consistent with the plain language of the statute, the Clifton cases, and legal
precedent. First, selective enforcement of the District's Housing Code creates more onerous
terms, conditions, or privileges of renting a dwelling in the District for Hispanics and Vietnamese
than similarly situated non-Hispanic and non-Vietnamese renters. For example, Plaintiffs'
allegation that the District's targeted buildings are predominantly located in and around the
newly constructed Columbia Heights Metro Station, Compl. ¶24, which has three times the
Hispanic population than throughout the District, Compl. ¶¶17, 24, supports their argument that
Hispanics' terms, conditions, or privileges of renting an apartment in the District are
disproportionately compromised by the District's housing code enforcement actions.
The Plaintiffs allege that Hispanic and Vietnamese renters are subjected to actual or
threatened homelessness; displacement with little to no advance notice; removal from
neighborhoods with convenient transportation services, community centers, schools and
daycares, and places of worship, Compl. ¶¶ 18 and 40. With nearly 70% of the properties on the
District's Properties List located in the Columbia Heights' area, Compl. ¶24, and the fact that the
Hispanic population is concentrated in the Columbia Heights and surrounding areas, Compl.
¶¶17 and 24, such actions and/or threatened actions disproportionately fall on Hispanics and
Vietnamese in the Columbia Heights area and compromise their ability to maintain their housing
free from discriminatory terms, conditions, or privileges.
Alternatively, the Plaintiffs have properly stated a claim against the District for
discriminatory provision of services, in violation of Section 3604(b). The opinions of this court
and the Court of Appeals for this Circuit in the Clifton cases are consistent with the United
States' position. In Clifton II, the Court of Appeals for this Circuit noted that Section 804(b)
applies to "those who otherwise control the provision of housing services and facilities." 929
F.2d at 720. The Court of Appeals went on to note that "the provision of such services
primarily falls under the control of the provider of housing - the owner or manager of the
property." Id. (emphasis added). The Court of Appeals did not, however, state that Section
3604(b) applied only to landlords. The District tries to make such a restriction appear in the
Clifton case opinions for both 3604(a) and (b) of the Act. But no such restriction exists. The
District has demonstrated its control over the provision of services, in this case, by exercising its
exclusive housing code enforcement authority to shut down or threaten to shut down apartment
Additionally, courts, including the courts in the Clifton cases, have recognized that
municipal service providers, such as the District, may be liable under 3604(b). Clifton I at 719;
Southend Neighborhood, 743 F.2d 1207 (7th Cir. 1984); Mackey v. Nationwide Ins. Cos., 724
F.2d 419 (4th Cir. 1984). Despite the District's creative protestations to the contrary, the District
is a municipal service provider under 3604(b). While the Court of Appeals for this Circuit
questioned, without deciding, the applicability of Section 3604(b) to municipal services, such as
the ones identified in Southend, 743 F.2d at 1209-10 (7th Cir. 1984) (police and fire protection or
garbage collection), and Mackey, 724 F.2d at 424 (4th Cir. 1984) (garbage collection and other
services of the kind usually provided by municipalities), Clifton II at 720, it did recognize that
municipalities that provide the "sole source of a service essential to the habitability of a dwelling.
. .could conceivably violate the (b) rights of the tenants." Id.
The District attempts to escape the designation of "municipal service provider" by stating
that "[i]nstead, the District is attempting to ensure that individual property owners maintain their
properties in compliance with the Housing Code." Deft. Mot. p. 5. Such a semantical exercise is
without distinction. As the District concedes, it is "attempting to ensure compliance" with its
housing code. (emphasis added). Such ensurance is an exclusive service the District government
provides to its residents. Whether or not its "attempts" are successful has no bearing on the fact
that the District is the sole and exclusive enforcer of its code. By enacting its housing code, it
has established a threshold standard by which all of its dwellings must comply. (7) Indeed no other
individual or entity has that sole power or control over such designation of housing. Concurrent
with this exclusive service is the duty to provide and enforce the code in a nondiscriminatory
manner. Because the District is the "sole source" of enforcement of its housing code, and
Plaintiffs have alleged that the District enforces this exclusive service in a discriminatory
manner, the Plaintiffs have properly asserted a claim against the District under Section 3604(b).
Construing all material allegations of the Plaintiffs' Complaints as true, the Plaintiffs have
alleged a claim against the District under §3604(b) and the District's Motion to Dismiss must be
- Plaintiffs' Allegations Establish Claims for Either Intentional
Discrimination or Discriminatory Impact
As this court observed in Samaritan Inns, a violation of the Act can be proven by showing
either "discriminatory intent" or "disparate impact." 1995 WL 405710 at *26, citing Town of
Huntington, 844 F.2d 926, 934-935 (2nd Cir. 1988); Support Ministries for Persons with AIDS,
Inc. v. Village of Waterford, N.Y., 808 F.Supp. 120, 133 (N.D.N.Y. 1992); McKinney 1210-19;
Oxford House v. City of Saint Louis, 843 F.Supp. 1556, 1575 (E.D. Mo. 1994).
Under the Fair Housing Act, one way to prove that an action was taken "because of
national origin" is to establish that the defendant acted with a racially discriminatory purpose or
intent. However, a plaintiff "need not show that the decision-maker was motivated solely,
primarily, or even predominantly by concerns that were racial." Yonkers, 837 F.2d at 1216-1217
(2d Cir. 1987), cert. denied, 486 U.S. 1055 (1988); accord Village of Arlington Heights, 429 U.S.
252, 265 (1977); Town of Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982). Indeed, "[r]arely can it
be said that a legislature or administrative body operating under a broad mandate made a decision
motivated solely by a single concern, or even that a particular purpose was the 'dominant' or
'primary' one." Arlington Heights, 429 U.S. at 265. It is sufficient to show that national origin
was "a motivating factor" in the decision. Arlington Heights, 429 U.S. at 266; Yonkers, 837 F.2d
Determining whether an entity has acted with a discriminatory purpose "demands a
sensitive inquiry into such circumstantial and direct evidence of intent as may be available."
Arlington Heights, 429 U.S. at 266-268. Courts allow intentional discrimination to be "'inferred
from the totality of the relevant facts, including the fact, if it is true, that the [governmental
action] bears more heavily on one race than another.'" Yonkers, 837 F.2d at 1221 (quoting
Washington v. Davis, 426 U.S. 229, 242 (1976)). Recognizing that public officials seldom make
openly discriminatory statements, (8) the Supreme Court has identified a number of factors that may
be examined for circumstantial evidence of intentional discrimination, including: (1) the effect of
the action, (2) the historical background of the decision, (3) the specific sequence of events
leading up to the decision, (4) departures from the normal procedural sequence, (5) departures
from normal substantive criteria, and (6) the legislative and administrative history of the
decision. Arlington Heights, 429 U.S. at 266-268; Yonkers, 837 F.2d at 1221; City of
Birmingham, 727 F.2d 560, 565 (6th Cir. 1984), cert. denied, 469 U.S. 821 (1984).
Under the Arlington Heights factors, Plaintiffs' Complaint states a claim of intentional
discrimination by the District:
- Effects: the District's actions disproportionately affect Hispanics, by closing or
noticing for closing buildings in areas of the District with three times the concentration of
Hispanics than located throughout the entire District, Compl. ¶¶17, 24.
- History: the District's actions against the Plaintiffs' buildings were taken subsequent
to its agreements to commercially develop the area surrounding the Columbia Heights Metro
Station area. Compl. ¶ 18.
- Sequence: the District's enforcement efforts in this area began five months after its
commercial agreements, Compl. ¶¶18-19, and the District began criminal prosecutions of
landlords for code violations three weeks after threatening tenants with wholesale eviction.
Compl. ¶2 (emphasis in original).
- Procedural Departures: notices to tenants were not given and when they were given,
they were deficient, Compl. ¶¶27-32, and the District initiated criminal prosecutions of landlords
for housing code violations-the first such prosecutions since 1995. Compl. ¶¶2, 37. Moreover,
previous criminal prosecutions of landlords in 1995 did not threaten tenants with closure of their
building. Compl. ¶37. The District also failed to take less drastic and less discriminatory
measures to ensure the health and safety of the tenants available to it before placarding buildings
for closure. Compl. ¶35.
- Substantive Departures: the District's actions were against buildings that are
currently operating under valid licenses and certificates of occupancy which were issued by the
District. Compl. ¶ 26. In fact, less than a week before the District placarded 1418 W Street with
a closure notice, it had issued the building a license. Compl. ¶26. The majority, if not entirety,
of the buildings are fit for human habitation. Compl. ¶27.
- Legislative History: the District has refused to produce records of its decisions or
reports for the majority of its buildings listed on its Properties List. Compl. ¶33.
At a minimum, Plaintiffs have stated a claim against the District for intentional
discrimination under the Act.
Even if this court finds that Plaintiffs did not state a claim for intentional discrimination,
Plaintiffs' complaint sufficiently alleges a claim for discriminatory impact under the Act. It is
well established that the "because of national origin" prong under the Act can also be satisfied
without establishing intentional discrimination. See, e.g. Okaloosa County, 21 F.3d 1531, 1543
(11th Cir. 1994) (quoting United States v. Mitchell, 580 F.2d 789, 791 (5th Cir. 1978)); accord
United States v. Pelzer Realty, Inc., 484 F.2d 438, 443 (5th Cir. 1973); United Farmworkers, 493
F.2d 799, 808 (5th Cir. 1972). Indeed, every federal circuit that has examined the issue has
agreed that the Fair Housing Act includes an effects test. See, e.g., Town of Huntington, 844
F.2d 926, 934-37 (2d Cir.), aff'd per curiam, 488 U.S. 15 (1988); Rizzo, 564 F.2d. 126, 149-50
(3rd Cir. 1977), cert. denied, 435 U.S. 908 (1978); Town of Clarkton, 682 F.2d 1055, 1065-66
(4th Cir. 1982); Arthur v. City of Toledo, 782 F.2d 565, 574-575 (6th Cir. 1986); Village of
Arlington Heights, 558 F.2d 1283, 1287-1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978);
City of Black Jack, 508 F.2d 1179, 1184-1185 (8th Cir. 1974), cert. denied, 422 U.S. 1042
(1975); Keith v. Volpe, 858 F.2d 467, 482-484 (9th Cir. 1988), cert. denied, 493 U.S. 813 (1989);
Mountain Side Mobile Estates v. HUD, 56 F.3d 1243, 1250-1251 (10th Cir. 1995); see also Casa
Marie, Inc. v. Superior Court of Puerto Rico, 988 F.2d 252, 269 n.20 (1st Cir. 1993) (dicta).
Furthermore, the legislative history of the Act supports this interpretation. See generally
Rizzo, 564 F.2d at 147. As recognized in Rizzo, Congress rejected a proposed amendment to the
Act which would have required proof of discriminatory intent. Id.
Indeed, this court specifically acknowledged the sufficiency of discriminatory impact
claims against governmental bodies in Brown v. Artery Organization Inc., by stating that "[i]f the
defendant is a governmental body, proof of discriminatory impact of its actions on the
community for which it serves suffices to establish a prima facie case of violation of the Fair
Housing Act." 654 F.Supp.1106, 1115 (D.D.C. 1987). The court went on to observe that, "it
makes perfect sense to charge a governmental entity with violations of the statute if its actions -
by way of regulations, ordinances, zoning decisions or the like - [have a discriminatory effect]."
Plaintiffs may establish a prima facie case of disparate impact discrimination by showing
that the defendant's actions have an adverse impact on a particular minority group. Town of
Huntington, 844 F.2d at 937; Village of Arlington Heights, 558 F.2d at 1290; Rizzo, 564 F.2d at
149; See also, Trafficante v. Metropolitan Ins. Co., 409 U.S. 205, 211 (1972); Havens Realty
Corp. v. Coleman, 455 U.S. 363, 377 (1982); Village of Bellwood, 441 U.S. 91, 114 (1979).
Once adverse impact is established, the burden shifts to the defendant to prove that there
is a "bona fide and legitimate justification" for the action and that there is "no less discriminatory
alternative" which can serve those ends. Town of Huntington, 844 F.2d. at 939; Rizzo, 564 F.2d
at 149. The Eighth Circuit has elaborated on the factors to be examined in determining whether
an action that results in a discriminatory effect is nonetheless justified under the Fair Housing
first, whether the [act] in fact furthers the governmental interest asserted; second, whether
the public interest served by the ordinance is constitutionally permissible and is
substantial enough to outweigh the private detriment caused by it; and third, whether less
drastic means are available whereby the stated governmental interest may be attained.
City of Black Jack, 508 F.2d at 1186-1187. The justification must actually be reflected in the
record; post hoc rationalizations cannot establish a bona fide and legitimate justification for a
discriminatory effect. Town of Huntington, 844 F.2d. at 939, 940.
Plaintiffs' Complaint provides extensive census tract information regarding the racial or
ethnic composition of the area affected by the District's actions. For example, while the total
Hispanic population for the District is 7%; the buildings are located in areas ranging from 16-55% Hispanic; almost 70% of the properties listed on the District's Substandard Properties List
are located in disproportionately Hispanic areas of the District; and the total population of the
census tracts in which the identified buildings are located is 21% Hispanic. Compl. ¶¶17, 23-24.
Thus, the areas for the Plaintiffs' buildings targeted and/or affected by the District's actions
contain, on average, four times the proportion of Hispanics throughout the District. The
Plaintiffs also include the racial or ethnic make-up of the allegedly targeted buildings: 2922
Sherman Avenue occupied by 93% Hispanic households; 1458 Columbia Road occupied by 89%
Hispanic households; and 1418 W Street occupied by 92% Hispanics; 1611 Park Road occupied
by 19% Hispanic and 34% Vietnamese households. Compl. ¶¶21-23, 25. Such a stark impact on
the Hispanic and Vietnamese population has been sufficiently alleged. In addition, the Plaintiffs'
Complaint provides extensive factual allegations regarding the number of less drastic and less
discriminatory measures that the District had available to it but failed to take. Compl. ¶¶2, 33-36.
Not only did the District fail to take less discriminatory alternatives in regards to the
Plaintiffs, its failure to provide information in Spanish or Vietnamese exacerbated the
discriminatory effects on Hispanic and Vietnamese residents. See e.g., Village of Addison, 988
F.Supp. 1130, at 1155 (recognition that failure to provide Spanish-language notices to residents
exacerbated discriminatory effect on Hispanics) (N.D. Ill. 1997). According to the Plaintiffs'
Complaint, on the rare occasions when the District provided notice to the tenants, it provided
such notices in English, Compl. ¶ 28-29, 32; limited notices in Spanish omitted crucial
information or contained inaccurate or misleading information, Compl. ¶30-31; and tenants in
the targeted buildings have not been notified, in any language, about relocation assistance or
relocation plans. Compl. ¶38.
Based on the foregoing, the Plaintiffs' Complaint has sufficiently stated a claim against
the District for intentional and impact discrimination in violation of Sections 3604(a) and (b) of