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					   Billy Joel

The Nylon Curtain
      (1982)
   (a) It shall be an unlawful
   discriminatory practice …

(1) To refuse to sell, rent, lease or
otherwise to deny to or withhold from any
person or group of persons … a housing
accommodation because of the race,
creed, color, national origin, sex, or
disability or marital status of such person
or persons.
§1982 All citizens of the United
States shall have the same right …
as is enjoyed by white citizens
thereof to inherit, purchase, lease,
sell, hold, and convey real and
personal property.
§1982 All citizens of the United States shall have
the same right … as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.


• Denial of housing b/c Latino?
§1982 All citizens of the United States shall have
the same right … as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.


• Denial of housing b/c Latino?
• Denial of housing b/c Jewish?
§1982 All citizens of the United States shall have
the same right … as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.


• Denial of housing b/c Latino?
• Denial of housing b/c Jewish?
• Denial of housing b/c White?
§1982 All citizens of the United States shall have
the same right … as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.


•   Denial of housing b/c Latino?
•   Denial of housing b/c Jewish?
•   Denial of housing b/c White?
•   White tenant evicted b/c non-White
    guests?
              Unruh Act
All persons within the jurisdiction of this
  state are free and equal, and no matter
  what their sex, race, color, religion,
  ancestry or national origin are entitled to
  the full and equal accommodations,
  advantages, facilities, privileges or
  services in all business establishments …
DQ3. On what evidence does the
California Supreme Court rely for
its determination in Marina Point
that the California legislature
intended the list of protected
categories in the Unruh Act to be
Illustrative rather than exclusive?
 DQ3. What is the significance for
     this determination of the
legislature’s amending the statute
      to add “sex” to the list?
        SHOWBOAT
      Original Production 1927
        Music by Jerome Kern
Book & Lyrics by Oscar Hammerstein II
  1993-94 Broadway Cast Recording
Featuring Mark Jacoby, Rebecca Luker, Lonette
     McKee, Robert Morse & Elaine Strich
DQ4. Evidence in Marina Point about
what other kinds of discrimination the
 court would consider “arbitrary”?

• Defense of Particular Result
• Description of What’s Allowable
• Prior Cases
DQ4. Evidence in Marina Point about
what other kinds of discrimination the
 court would consider “arbitrary”?
• Defense of Particular Result
  – Can’t act based on “generalized prediction”
  – Can’t act based on statistical evidence
  – Can’t act based on personal experience w gp
  – Importance of housing for children
• Description of What’s Allowable
• Prior Cases
DQ4. Evidence in Marina Point about
what other kinds of discrimination the
 court would consider “arbitrary”?
• Defense of Particular Result
• Description of What’s Allowable
  – Deportment regs based on indiv. Conduct
  – Exclusion of indiv. Who
     • Conducts self improperly
     • Disrupts operation of business
  – Maybe: Housing for Special Classes or Purposes
• Prior Cases
DQ4. Evidence in Marina Point about
what other kinds of discrimination the
 court would consider “arbitrary”?
• Defense of Particular Result
• Description of What’s Allowable
• Prior Cases
  – Orloff: can’t exclude people w reputations for
    immoral char from racetrack
  – Stoumen: can’t exclude “homosexuals” from bars
  – Cox: can’t exclude from shopping ctr people w long
    hair/unconventional dress
DQ4. Arbitrary under Marina Point?
• College Student?
• Member of Particular Fraternity?
• Convicted Arsonist?
DQ4. Arbitrary under Marina Point?
•   College Student?
•   Member of Particular Fraternity?
•   Convicted Arsonist?
•   Lawyer?
DQ4. Arbitrary under Marina Point?
•   College Student?
•   Member of Particular Fraternity?
•   Convicted Arsonist?
•   Lawyer?
•   Particular Lawyer in Kramarsky?
 DQ1. What is the significance in
Kramarsky of the phrase, “Painting
   New Rulings” on page 12?
DQ4. Arbitrary under Marina Point?
•   College Student?
•   Member of Particular Fraternity?
•   Convicted Arsonist?
•   Lawyer?
•   Particular Lawyer in Kramarsky?
    – Legal Services Lawyer?
    – Likely Pain in the Neck?
DQ6. Harris v. Capital Growth Investors XIV


  Marina Point analysis limited to “discrimi-
  nation based on personal characteristics
  similar to the statutory classifications of
  race, sex, religion, etc.” Because “eco-
  nomic characteristics” are not covered, a
  landlord does not have to make a per-
  sonalized determination of ability to pay.
 Under Harris, can you exclude
based on occupation if based on
generalization re job security or
income stream? (e.g., author or
    free-lance programmer)
        ADMINISTRATIVE
       ANNOUNCEMENTS
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• READING AMERICAN APARTHEID
           SLAVERY &
      THE EARLY REPUBLIC

• Slavery embedded in US Constitution
• Slave System in US Unusual
  – Discouraged, then banned freeing slaves
  – Slaves generally couldn’t own property
• No taboo on physical proximity in South
• Some restrictions on property ownership
  by free blacks in North
RECONSTRUCTION ERA LEGAL
     DEVELOPMENTS
• Protective Enactments
  – 13th Amdt
  – Civil Rights Act of 1866
  – 14th Amdt
• Limited Effectiveness
  – Private Decisions & Social Pressure
  – Civil Rights Cases
  – Plessy v. Ferguson
    GOV’T RACE-BASED ACTS
           1868-1968
• Chinese Exclusion in California
    GOV’T RACE-BASED ACTS
           1868-1968
• Chinese Exclusion in California
• Race-Based Zoning
   Buchanan v. Warley (1917)
• Louisville racial zoning ordinance
• Lochner-era case strikes down
  – Some reference to Equal Protection Clause &
    Civ Rts Act of 1866
  – BUT seems to rest on Property Rights
  – Treats racial purity as legit. State interest
• Later cases allow limits on property
  ownership aimed at non-citizens
   GOV’T RACE-BASED ACTS
          1868-1968
• Chinese Exclusion in California
• Race-Based Zoning
• Jim Crow Legislation pre-Brown
        Florida Jim Crow 1950
• State Constitution:
  – required separate schools by race
  – forbade miscegenation
• Statutes
  – Criminalized interracial cohabitation (1yr sentence)
    & miscegenation (10 yrs)
  – prohibited white teachers from teaching in black
    schools & vice-versa
  – Required segregation in jails, RR cars, Univ of Fla
      GOV’T RACE-BASED ACTS
             1868-1968
•   Chinese Exclusion in California
•   Race-Based Zoning
•   Jim Crow Legislation pre-Brown
•   Supreme Court strikes down: Brown 
    Loving
        Music:
Billboard Magazine’s
Top Rock’n’Roll Hits of
    THE
CONSTRUCTION
   OF THE
  “GHETTO”
  WATERSHED: SPAIN 1492
• Islamic Community of Moors Driven Out
• Jews Expelled
• Ships Land in Western Hemisphere
  – Day of the Races
  – Disease & Immunity
  WATERSHED: USA 1968
• Consensus Forms Against Vietnam War
• MLK & RFK Assassinated
• Racial Tensions High
 – Segregation Measures at All-Time High in ’70
   Census (incl. Southern Cities)
 – Complex Economic & Social Consequences
 – Riots of Previous Summer would Break Out
   Again
   Private Discriminatory Acts
• Prevalent Belief in Segregation by Whites
   Private Discriminatory Acts
• Prevalent Belief in Segregation by Whites
• Individual Acts
  – Refusals to Sell or Rent (Wrong Robinson)
  – White Flight from Integrating Neighborhoods
  – Violence if Transgress Boundaries
   Private Discriminatory Acts
• Prevalent Belief in Segregation by Whites
• Individual Acts
  – Refusals to Sell or Rent (Wrong Robinson)
  – White Flight from Integrating Neighborhoods
  – Violence if Transgress Boundaries
• Institutional Behavior
  – Real Estate Industry
  – Banks
  – Neighborhood Associations
     RACIAL COVENANTS
• Common before Shelley
         Example:
    Fresno, CA Covenant:
Premises can’t be “used or occupied by
any Negro, Chinese, Japanese, Hindu,
  Armenian, Asiatic, or native of the
Turkish Empire or descendant of any of
   the named persons” except as a
     servant for the legal resident.
      RACIAL COVENANTS
• Common before Shelley
• State courts had upheld
      RACIAL COVENANTS
• Common before Shelley
• State courts had upheld
• Shelley holds that enforcement by state is
  Equal protection violation
           Shelley: Context
• Three Justices Recused Themselves
• States Made Separate but Equal Argument
• Allowed Many Transactions
  – Chicago: in 4 years, 21,000 families move into
    formerly segregated housing
  – D.C.: 10% of residential blocks integrated by
    1950 Census
      RACIAL COVENANTS
• Common before Shelley
• State courts had upheld
• Shelley holds that enforcement by state is
  Equal protection violation BUT
  – Doesn’t make covenants illegal
  – Doesn’t prevent voluntary compliance
GOV’T FACILITATION OF
SEGREGATION 1917-1968

           1935-1950:
 Nine million new private dwellings
        constructed in US;
Fewer than 1% open to purchase by
           people of color.
      GOV’T FACILITATION OF
      SEGREGATION 1917-1968
• Judged Loan-Worthiness of N-hoods by
  Racial Content
• Encouraged Restrictive Covenants til 1950
• Favored New Single-Family Homes over
  Renovation or Multi-Family Dwellings
• Urban Renewal & Highway Construction
  Destroy Existing N-hoods
• Segregation of Public Housing
  Anti-Discrimination Laws to 1968
• § 1982 Not Read to Reach Private Discrim
• JFK Exec. Order bans Race Discrim in
  Fed’lly Funded Programs
• 1964 Civil Rights Act bans Race/Relig/Sex
  Discrim in Employment & Public Accom.
• Fair Housing Legislation Defeated in 1966
                Jones

• Interprets §1982 to reach private
  discrim.
• Finds authority in 13th Amdt
• DGS CCR: Examples to show it’s
  reasonable to talk about “Badges &
  Incidents of Slavery” in 1968
    GENDER & PROPERTY
• Common Law: All Marital Property
  Controlled by Husband
• State Laws Giving Husband Exclusive
  Management Rts Last into 20th Century
  – A Streetcar Named Desire
  – Held Unconstitutional in 1981
• “Sex” Added to FHA in 1974
    1988 AMENDMENTS

• Add HUD Enforcement
• Add “Familial Status”
• Add “Handicap”
          ANNOUNCEMENTS
• Updated Assignment Sheet Online
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    Week (Two Working Weekends)
  – Midterm Shifted to Thu Oct 19
  – Set Make-Up Class Later
• Paper/Project Topic & Format Suggestions
  Online
• Panels: Up to Six People

				
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