Although you wouldn’t know it from watching the news many of the 677 federal judges in the U.S. are working on cases that don’t deal with how to count votes. Here’s a look at what they’ve been up to.
Eleventh Amendment abrogation for ADA claims
In Natl. Assn. of the Deaf v. Fla., 2020 WL 6575040 (11th Cir. Nov. 10, 2020) the Eleventh Circuit held that Congress validly abrogated 11th Amendment immunity with respect to the State of Florida’s legislature, a holding that may eventually lead to a requirement that public legislative sessions be made accessible to those with hearing disabilities. The arguments are too complex for a Quick Hits blog, but it is notable that the Court found that Congress had the power to abrogate state immunity even when no fundamental right is at issue. The case seems destined for a newly constituted Supreme Court, so stay tuned. More
On October 9, which seems like an eternity ago based on the number of emails and texts I’ve gotten asking for contributions to various political parties and politicians, I reported on HUD’s new regulations on disparate impact claims published on September 24. It was a counterpoint to the decision in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) holding that third party service providers could violate the FHA. I had to update the blog on October 22 when the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. That lawsuit attacked the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It wasn’t the only lawsuit in the works though. On October 25, 2020 the United States District Court for the District of Massachusetts entered a Preliminary Injunction staying the effect of the new HUD rule. Massachusetts Fair Housing Center et al v. United States Department of Housing and Urban Development, Case No. 3:20-cv-11765 (October 25, 2020). Judge Mastoianni found that the changes constituted a “massive overhaul of HUD’s disparate impact standards” to the benefit of housing providers and the detriment of buyers and renters. Of the three grounds for ultimately overturning the regulation Judge Mastoianni relied on only one; that the new rule was “arbitrary and capricious.” He found that the regulation went beyond the Supreme Court’s decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015), the leading case on disparate impact under the Fair Housing Act. Thus, it could not be justified as an effort to align regulations with case law. He also rejected HUD’s other reason for the regulation – that it provided greater clarity – on the ground that the new rule was far from clear.
On October 7, 2020 HUD filed a charge of discrimination against Fairfield Properties and Pinewood Estates at Commack Condominium because they denied an accommodation for two emotional support dogs. FHEO No. 02-17-5246-8. The Charge includes the facts, which don’t seem to be disputed. It does not include an explanation of how HUD thinks these facts constitute discrimination, but HUD’s thinking on the subject can be inferred from the Charge and shows why landlords and condominium or owners associations must be careful even when dealing with truly meritless requests. HUD is perfectly capable of making a charge of discrimination that cannot be reconciled with the text of the Fair Housing Act or the case law interpreting it. That’s hardly news, but it is worth remembering. 
The recent decision from Judge Vanessa Bryant in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) was followed only weeks later by HUD’s final regulation on disparate impact claims, 85 FR at 60288, September 24, 2020.¹ The CoreLogic decision’s most important holding was that a third party tenant screening service could be liable for providing information that had a disparate impact on a protected class, but Judge Bryant’s denial of a slew of defense motions for summary judgment was a reminder of the potential power of disparate impact claims. HUD’s new regulation, titled “HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard” creates a set of landlord friendly rules for disparate impact claims that may make CoreLogic irrelevent.
On October 2, while the news covered President Trump’s admission to Walter Reed for treatment of Covid-19, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act, which they claim will “increase website accessibility and reduce predatory lawsuits filed against businesses.”¹ Will it work? That’s a reasonable question.