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Judicial Watch • JW Amicus Brief AIA v. HUD

JW Amicus Brief AIA v. HUD

JW Amicus Brief AIA v. HUD

Page 1: JW Amicus Brief AIA v. HUD

Category:Legal Document

Number of Pages:7

Date Created:February 6, 2014

Date Uploaded to the Library:February 06, 2014

Tags:AIA, SHAUN DONOVAN, Fair Housing Act, AEF, hud

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Plaintiffs,  Case No. 1:13-cv-966-RJL  
and SHAUN DONOVAN, his official  
capacity Secretary Housing and Urban  

Proposed Amici Judicial Watch, Inc. (Judicial Watch) and the Allied Educational Foundation (AEF) believe that fidelity the rule law requires this Court overturn the Department Housing and Urban Developments (HUD) misinterpretation the Fair Housing Act (FHA) establishing liability the basis disparate impact.  HUDs new regulation unlawfully prohibits housing practices merely for having statistically disparate effect racial group other protected group. The imposition liability under the FHA for practices that are both facially neutral and unmotivated discriminatory intent violates the Administrative Procedures Act, and even did not, would violate the Fourteenth Amendments Equal Protection Clause. Amici urge the Court grant the Plaintiffs motion.  

Interests the Proposed Amici 
Amici are concerned that HUDs unlawful action poses special threat the rule law, and are concerned about the corrosive effect that violation American society.  HUDs broad, race-based housing regulation especially harmful because attempts further enshrine the intellectually impoverished concept race into law,1 and seeks use the law perpetuate culture racial politics the housing market, and more broadly, American public life. Such actions will serve increase racial polarization and resentment this country, perpetuating our domestic focus racial issues, and inevitably prolonging the misconception that persons race useful distinction for judging who person and what they are entitled to. Amici believe that the only mention the unscientific concept race the law should the prohibition its use basis for discrimination against others.   
Enshrinement affirmative racial considerations into the law helps ensure that our concepts race continue form significant part our perceptions others important characteristics, which problematic. the American Anthropological Association (AAA) has explained, racial categories are simultaneously too crude convey accurate information about individuals groups2 and too likely convey misinformation.  Id. Since the perpetuation scientific-sounding racial labels for official legal purposes not the ultimate solution the See Brief Amici Curiae Judicial Watch and Allied Educational Foundation, Fisher University Texas Austin, Case No. 11-345, pp. 6-8 (filed with U.S. Supreme Court May 29, 2012), available  American Anthropological Association, Statement Race, May 17, 1998, available (In the United States both scholars and the general public have been conditioned viewing human races natural and separate divisions within the human species based visible physical differences.  With the vast expansion scientific knowledge this century, however, has become clear that human populations are not unambiguous, clearly demarcated, biologically distinct groups). 
goal eliminating racial discrimination the U.S., the AAA recommended the government phase-out its use racial categories:     
Eventually, however, these [racial] classifications must transcended and 
replaced more non-racist and accurate ways representing the diversity the 
U.S. population. [U]ltimately, the effective elimination discrimination will 
require end such categorization, and transition toward social and cultural 
categories that will prove more scientifically useful and personally resonant for 
the public than are categories race.3 Rather than forcing all insurance companies start collecting and using data race for their business practices, HUD would require, the Court should adhere the broad prohibition racial discrimination the Equal Protection Clause, consistent with state insurance laws and the current practices the insurance industry. See Plaintiffs Brief, ECF 16-1 14, 42. HUDs Rule Violates the Administrative Procedures Act 
HUDs rule fails the Chevron test for determining whether federal agency regulations exceed the powers given them statute.  Chevron, U.S.A., Inc. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984); City Arlington FCC, 133 Ct. 1863, 1870, 1873 (2013). Under the first step Chevron analysis, HUDs actions not fall within the plain meaning the FHA, and are unlawful.  Chevron, 467 U.S. 842-843 (If the intent Congress clear, that the end the matter; for the court, well the agency, must give effect the unambiguously expressed intent Congress.). 
HUDs racial disparate impact regulation, codified C.F.R.  100.500, inconsistent with plain reading the text the FHA.  See Dean U.S., 556 U.S. 568, 572 (2009) ([W]e ordinarily resist reading words elements into statute that not appear its face.). Section 804(a) the FHA does nothing more than make unlawful refuse sell  American Anthropological Association, Response OMB Directive 15: Race and Ethnic Standards for Federal Statistics and Administrative Reporting, Sept. 1997, available 
rent after the making bona fide offer, refuse negotiate for the sale rental of, otherwise make unavailable deny, dwelling any person because race, color, religion, sex, familial status, national origin. U.S.C.  3604(a).  The phrase because race conveys the fact that race must the reason (or least reason) for the refusal.  Accordingly, under the statutes plain text, there must intent discriminate against member one the named classes order for the action unlawful.  HUDs interpretation inconsistent with the plain meaning the statute, and the regulation must stricken.  Chevron, 467 U.S. 842-843. 
However, even this Court found that FHA Section 804(a) were ambiguous (which not), HUDs interpretation cannot possibly constitute permissible construction the FHA under Chevron step two, and still unlawful.  467 U.S. 843. HUDs interpretation the FHA were permissible, then the FHA itself would likely violate the Equal Protection Clause the U.S. Constitution and struck down, voiding HUDs regulation with it.  

II.	 Any Interpretation the FHA That Would Allow HUDs Rule Would Violate the Equal Protection Clause 
Any interpretation the FHA Section 804(a) which allows HUDs regulation would render the FHA unconstitutional.  HUD interprets FHA Section 804(a) allowing HUD impose racial classification obligation entire industry.  Such expansive reading would subject the FHA strict scrutiny, requiring judicial finding that was narrowly tailored achieve compelling state interest order upheld.  See Johnson California, 543 U.S. 449, 505 (2005). A core purpose the Fourteenth Amendment was away with all governmentally imposed discrimination the basis race.  Palmore Sidoti, 466 U.S. 429, 432 (1984). Classifications persons according their race are subject the most exacting 
scrutiny; pass constitutional muster they must justified compelling governmental 
interest and must necessary the accomplishment their legitimate purposes.  Id., quoting McLaughlin Florida, 379 U.S. 184, 196 (1964); see also Adarand Constructors, Inc. Pena, 515 U.S. 200, 227 (1995).  All racial classifications [imposed government] must analyzed reviewing court under strict scrutiny. Johnson, 543 U.S. 505.  Strict scrutiny the appropriate standard, even for so-called benign racial classifications. Parents Involved Cmty. Sch. Seattle Sch. Dist. No. 551 U.S. 701, 741 (2007). 
Finally, HUDs interpretation the FHA would unlikely survive strict scrutiny, the Supreme Court does not view racial balancing compelling state interest. fact, the Supreme Court has found quite the opposite: At the heart the Constitutions guarantee equal protection lies the simple command that the Government must treat citizens individuals, not simply components racial, religious, sexual national class.  Miller Johnson, 515 
U.S. 900, 911 (1995). The Supreme Court recently found that [t]his working backward achieve particular type racial balance fatal flaw under our existing precedent, Parents Involved, 551 U.S. 729, and held that [r]acial balance not achieved for its own sake. Freeman Pitts, 503 U.S. 467, 494 (1992). The Court should refuse HUDs attempt overturn evade this precedent under the Equal Protection Clause.  
Dated:  January 30, 2014 Respectfully submitted, Chris Fedeli 
Chris Fedeli Bar No. 472919 

425 Third Street, SW, Ste. 800 Washington, 20024 202-646-5172 office 202-646-5199 facsimile 
Attorney for Amici Curiae Judicial Watch and Allied Educational Foundation 

CERTIFICATE SERVICE hereby certify that this 30th day January, 2014, transmitted the foregoing 
document email the following addresses: 
/s/ Chris Fedeli 
Chris Fedeli