Billy Joel The Stranger (1977)

1. Billy JoelThe Stranger(1977)

2. Ps’ Evidence in Sorenson • Responding “Yes” to P’s Question • Timing (eviction right after saw Afr-Am girls in apt.) • Said to “anxious” neighbor: he did not intend to rent to 2 Afr-Am girls • Admitted preference for no Afr-Am tenants • No Afr-Am residents in complex

3. D’s Evidence in Sorenson • Testimony re fury re former tenant & party • Parties, noise, complaints, harm to apt. • Explanation of “yes”: to annoy Sorenson • Explanation of “ no intent to rent”: they hadn’t asked to rent • Explanation of no Afr-Am residents: none had ever applied • D’s involvement in civic race relation projects

4. P’s Additional Evidence in Marable • History: No Afr-Am tenants ever • HUD conclusion: Race was reason • Changing stories • D’s admissions of racial exclusion to prior employee (Trial Court found not credible)

5. P’s Difficulties in Marable • Changed testimony re deposit • Contradicted by manager re statement re marital status • Contradicted by Mrs. Sims at credit service

6. Jury: No Reasonable Juror could find … Judge: Clear Error definite & firm impression mistake was committed can reverse even if some evidence supporting STANDARDS OF REVIEW OF FINDINGS OF FACT

7. Application of Clear Error Test • D’s intent = finding of ultimate fact • Not clear error test • Only give deference on intermediate findings • Must concede all credibility issues to D • CtApp: Undisputed documentary evidence shows Ds treated White applicants differently.

8. DQ22: Why might the same court that affirmed in Sorenson feel comfortable reversing in Marable?

9. DQ22: Why might the same court that affirmed in Sorenson feel comfortable reversing in Marable? • Judge v. Jury • Trial Judge not very credible (mis/overstates record) • Note that Marable may have foregone jury trial b/c of concerns w all White jury as in Sorenson

10. Both cases: Statutes violated if race is “one significant factor.” • Not the standard anymore for non-govt defendants!! • More complex mixed motive analysis we’ll do next week in Cato

11. DISCRIMINATION HARD TO PROVE • Hard to get evidence of motives • Clients not perfect • Ds who are regular players likely to be more sophisticated than in Marable • Decision-makers may be disinclined to recognize discrimination

12. ANNOUNCEMENTS • Paper/Project Proposal Due Tomorrow Noon

13. ANNOUNCEMENTS • Paper/Project Proposal Due Tomorrow Noon • Assignment I Due Next Tuesday • Video on Reserve at Circulation Desk • Date of Ordinary Moments is 1985 • Qs?

14. ANNOUNCEMENTS • Paper/Project Proposal Due Tomorrow Noon • Assignment I Due Next Tuesday • Information Memo #1 Posted Online • Write-Up of 1st Set of Discussion Groups • Short Problems Applying Marina Point • Excerpt from Fall River (Govt Intent Case) • List of Discussion Groups & Tasks for Next Tuesday

15. ANNOUNCEMENTS • Paper/Project Proposal Due Tomorrow Noon • Assignment I Due Next Tuesday • Information Memo #1 Posted Online • Quick Return to Student Insights • Robert: Blatt & Lack of Attention to Powerless • Oren: Significance of State Landlord-Tenant Rules

16. RIZZO HIMALAYAS

17. SPECIAL PROBLEMS OF GOVERNMENT INTENT DQ23: What does it mean to say that a legally-created corporate entity like the City of Philadelphia had a discriminatory purpose? Whose state of mind is relevant to determining the City’s “purpose?”

18. SPECIAL PROBLEMS OF GOVERNMENT INTENT DQ24: The Supreme Court does not require the plaintiff to prove that racial animus is the city’s sole motive, but only “a motivating factor” Try to elaborate in your own words what this standard means in the context of a decision by a city.?

19. SPECIAL PROBLEMS OF GOVERNMENT INTENT We could use a higher standard (primary, dominant, significant, etc.). Sensible to just say “motivating”?

20. SPECIAL PROBLEMS OF GOVERNMENT INTENT We could use a higher standard (primary, dominant, significant, etc.). Sensible to just say “motivating”?

21. SPECIAL PROBLEMS OF GOVERNMENT INTENT DQ26: Suppose a city council votes 8-5 to pass a measure. To prevail under the ‘motivating factor’ test, how many councilmembers must a plaintiff show had a discriminatory purpose?

22. SPECIAL PROBLEMS OF GOVERNMENT INTENT

23. SPECIAL PROBLEMS OF GOVERNMENT INTENT

24. Arlington Heights I (U.S. 1977): Evidence Needed to Prove Intent in a Disparate Treatment Case Against the Govt Arlington Heights II (7th Cir. 1977) (on remand): Test for Disparate Impact in a Case Against the Govt

25. Arlington HeightsI Factors • Discriminatory Impact • Historical Background • Sequence of Events Leading to Decision • Departures from Normal Procedures • Departures from Normal Substantive Criteria • [Legislative or Administrative History]

26. THE MANHATTAN TRANSFER the offbeat of avenues (1991)

27. Pinchback (ALPS) DQ32: Plaintiff’s Evidence of Discrimination?

28. Pinchback (ALPS) Good Case to Attribute to Board: • Board Acting Collectively & Explicitly • President has Authority to Act • Note Court Doesn’t Treat as Vicarious Liability (Agent Not Treated As Employee)

29. DQ33: FUTILE GESTURE DOCTRINE Failure to apply for job doesn’t preclude recovery if deterred from applying by accurate knowledge of employer’s discriminatory policies.

30. DQ33: FUTILE GESTURE DOCTRINE Failure to apply for housing doesn’t preclude recovery if deterred from applying by accurate knowledge of housing provider’s discriminatory policies.

31. DQ33: FUTILE GESTURE DOCTRINE Failure to apply for housing doesn’t preclude recovery if deterred from applying by accurate knowledge of housing provider’s discriminatory policies. Purpose?

32. Supreme Court: “[I]f desire for a job [or housing] is not translated into a formal application solely because of his unwillingness to engage in a futile gesture, he is as much a victim of discrimination” as those who apply and are rejected.

33. DQ33: FUTILE GESTURE DOCTRINE Failure to apply for housing doesn’t preclude recovery if deterred from applying by accurate knowledge of housing provider’s discriminatory policies. Why not require the plaintiff to apply and be rejected in order to get standing to sue?

34. Supreme Court: People shouldn’t have to subject themselves to the humiliation of explicit & certain rejection. JUSTIFY DOCTRINE?

35. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Mcd-Dgs Prima Facie Case

36. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Futile Gesture Protected Class Reliably Informed of Discrim Policy/Would Have Applied Qualified Would Have Been Rejected Mcd-Dgs Prima Facie Case

37. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Futile Gesture Protected Class Reliably Informed of Discrim Policy/Would Have Applied Qualified Would Have Been Rejected PROS & CONS? Mcd-Dgs Prima Facie Case

38. DQ35: D’s Claim: Futile Gesture Doctrine Inapplicable; Employment Different from Housing • Defendant’s Arguments Why?

39. DQ35: D’s Claim: Futile Gesture Doctrine Inapplicable; Employment Different from Housing Defendant’s Arguments Why? • Employees have better info re employer policies than housing seekers do re housing policies • Too attenuated; leads to many frivolous suits Court’s Response?

40. DQ35: D’s Claim: Futile Gesture Doctrine Inapplicable; Employment Different from Housing Defendant’s Arguments Why? • Better info re employer policies • Too attenuated  frivolous suits Court’s Response? • Elements sufficient protection ag. frivolous suits • Policy: Shouldn’t Have to Apply Satisfactory?

41. CATO v. JILEK ANDES

42. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Mcd-Dgs Prima Facie Case

43. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Variations So Far - Futile Gesture or Tried to D Unaware of Qualifications Futile Gesture or Effective Denial - Mcd-Dgs Prima Facie Case

44. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Variations in Cato + D aware of (Probably Always Implicit) - - - Skips (Probably Implicit) Mcd-Dgs Prima Facie Case

45. Ordinary Version Protected Class Applied Qualified Denied Stayed Open/Went to Non-Class Member Variations: All 4 Cases + D aware of Futile Gesture or Tried to D Unaware of Qualifications Futile Gesture or Effective Denial - Mcd-Dgs Prima Facie Case

46. DQ36:Why does the court say the Mcd-Dgs prima facie test is unnecessary in this particular case?

47. DQ37: Plaintiff’s Evidence?

48. DQ37: Plaintiff’s Evidence? • D lied re reason for denial • Testers Evidence • D asks testers re race • D says “Well, that’s fine” • D expresses concern re Afr-Ams to testers • D admits said no because of fear of other tenants’ response to Ps because of race Court says fear of trouble in complex or neighborhood is not a defense. Why?

49. DQ37: Ds’ Atty: Ds Choice: Married Couple v. Couple Who Might Not Marry • He said not sure if Ps were really getting married • He asked Ps & testers re marital status • She preferred not to rent to Ps & said one reason was marital stat Why isn’t this sufficient evidence to take the case to trial?

50. Problems w Ds’ Atty’s Story • Impossible for him to have known of that choice when he lied to Ps re availability • He had offered them an application day before; suggests concern w race, not marital status • Her thoughts irrelevant • She deferred to him • They had allowed unmarried couples • Story inconsistent with interrogatory answers Why is the court unhappy with the Ds’ atty?