Soules v Downs Brief Amicus Curiae

    91 -4192
IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

No. 91-4192

SHERRY SOULES and HOUSING 
OPPORTUNITIES MADE EQUAL, INC.,

Petitioners,

SECRETARY. UNITED STATES DEPARTMENT 
OF HOUSING AND URBAN DEVELOPMENT. 

MARY JEAN DOWNS, and 
PROFESSIONAL REALTY SERVICES, INC..

Respondents.

ON APPEAL FROM THE UNITED STATES 
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 

OFFICE OF ADMINISTRATIVE LAW JUDGES

BRIEF AMICUS CURIAE OF THE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

AND THE NATIONAL FAIR HOUSING ALLIANCE 
IN SUPPORT OF PETITIONERS

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

January 27, 1992



TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................................................»

STATEMENT OF INTEREST OF AMICI C U R IA E .......................................................... 1

STATEMENT OF THE C A S E .................................................................................................3

ARGUMENT ............................................................................................................................. 3

I. RESPONDENT DOWNS’ COMMENTS ABOUT NOISY 
CHILDREN INDICATED A PREFERENCE FOR NON­
FAMILIES, IN VIOLATION OF SECTION 3604(c)
OF THE FAIR HOUSING ACT ....................................................................3

II. THE ADMINISTRATIVE LAW JUDGE ERRED IN RULING 
THAT RESPONDENTS DID NOT VIOLATE SECTIONS 3604(a)
AND (d) OF THE FAIR HOUSING ACT .................................................. 9

A. THE ADMINISTRATIVE LAW JUDGE ERRED IN
RULING THAT RESPONDENT ARTICULATED A 
LEGITIMATE REASON FOR INQUIRING ABOUT THE 
AGE OF COMPLAINANT’S DAUGHTER ...................................... 9

B. THE ADMINISTRATIVE LAW JUDGE ERRED IN 
GIVING DECISIVE WEIGHT TO THE TESTIMONY
OF CAMILLE PERRY .......................................................................11

l



TABLE OF AUTHORITIES

CASES PAGE

Betsey v. Turtle Creek Associates, 736 F.2d 983 (4th Cir.
1984) ......................................................................................................................................... 2

Brown v. Artery Organization, 691 F. Supp. 1459 (D.D.C.
1987) .........  1

Brown v. Board of Education, 347 U.S. 483 (1954)...............................................................1

Curtis v. Loether, 415 U.S. 189 (1974)........................................................................................ 1

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) ..............................................1

Fullilove v. Klutznick, 448 U.S. 448 (1980)................................................................................... 1

Gonzalez v. Home Insurance Agency, 909 F.2d 716 (2d Cir. 1990) .................................... 1

Halet v. Wend Investment Co., 672 F.2d 1305 (9th Cir. 1982) ........................................... 2

Houston v. Cocoa, Fair Hsg.-Fair Lending (P H.) 11 15,625
(M.D. Fla. Dec. 22, 1989)......................................................................................................1

Kirkland v. N.Y. State Department of Correc. Services, 711 
F.2d 117 (2d Cir. 1983), cert, denied, 465 U.S. 1005
(1984)   1

NAACP v. Button, 371 U.S. 415 (1963)...................................................................................... 1

Ragin v. The New York Times Co., 923 F.2d 995 (2d Cir.),
cert, denied, 116 L. Ed. 2d 54 (1991) ....................................................................  1, 7, 8

Saunders v. GSC, 659 F. Supp. 1042 (E.D. Va. 1987) ........................................................8

Spann v. Colonial Village, 899 F.2d 24 (D.C. Cir. 1990) ..................................................... 8

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1 (1971) ..................................................................................................................................  1

Trafficante v. Metropolitan Life Insurance Co, 409 U.S. 205
(1972) .......................................................................................................................................  1

ii



United States v. Hunter, 459 F.2d 205 (4th Cir. 1972).......................................................... 8

U.S. y. Long, 1 EOHC (D.S.C. 1974), remanded on other grounds, 537 F.2d
1151 (4th Cir. 1975), cert, denied, 429 U.S. 871 (1976) ................................................ 6

University of California Regents v. Bakke. 438 U.S. 265 
(1978) .......................................................................................................................................  1

STATUTES

The Fair Hosuing Act, 42 U.S.C. § 3601 et seq............................................................passim

LEGISLATIVE HISTORY

134 Cong. Rec. H4688 (1988) (remarks of Rep. Dellums) ................................................ 2

REGULATIONS

HUD Regulations, 24 C.F.R. § 100.60(b)(4)  6

HUD Regulations, 24 C.F.R. § 100.65(b)(1)............................................................................ 7

HUD Regulations, 24 C.F.R. § 100.75(b)................................................................ 8

HUD Preamble II, 24 C.F.R. ch. 1 ..................................................................................5

MISCELLANEOUS

R. Schwemm, Housing Discrimination Law and Litigation (1990) ..................................2

iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT
No. 91-4192

SHERRY SOULES and HOUSING 
OPPORTUNITIES MADE EQUAL. INC.,

Petitioners,

v.

SECRETARY. UNITED STATES DEPARTMENT 
OF HOUSING AND URBAN DEVELOPMENT, 

MARY JEAN DOWNS, and 
PROFESSIONAL REALTY SERVICES, INC.,

Respondents.

ON APPEAL FROM THE UNITED STATES 
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 

OFFICE OF ADMINISTRATIVE LAW JUDGES



Statement of Interest of Amici Curiae

The NAACP Legal Defense and Educational Fund, Inc., is a non-profit corporation 

which was established for the purpose of assisting African American citizens in securing 

their civil rights. It has been cited by the Supreme Court as having "a corporate reputation 

for expertness in presenting and arguing the difficult questions of law that frequently arise 

in civil rights litigation." NAACP v. Button, 371 U.S. 415, 422 (1963). The Legal Defense 

Fund has appeared before the Supreme Court and this Court on numerous occasions 

representing parties or as amicus curiae in cases involving the meaning and scope of 

constitutional and statutory guarantees of equality and non-discrimination.1 2 Attainment 

of fair housing opportunity for African Americans has long been a very high priority of the 

Legal Defense Fund. The Legal Defense Fund has participated in numerous cases raising 

crucial issues of interpretation and application of the Fair Housing Act.'

The Court’s resolution of the issues presented by this case will materially affect the 

ability of the Legal Defense Fund to advance its program of vindicating the fair housing 

rights of African American citizens. Complainant in this case is an African American

lE.g., Brown v. Board of Education, 347 U.S. 483 (1954); Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971); Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976); University of California Regents v. Bakke, 438 U.S. 265 (1978); Fullilove v. Klutznick, 
448 U.S. 448 (1980); Ragin v. The New York Times Co., 923 F.2d 995 (2d Cir.), cert, denied, 
116 L.Ed.2d 54 (1991); Gonzalez v. Home Ins. Agency, 909 F.2d 716 (2d Cir. 1990); Kirkland 
v. N.Y. State Dept, o f Correc. Services, 711 F.2d 117 (2d Cir. 1983), cert, denied, 465 U.S. 
1005 (1984).

2E.g., Curtis v. Loether, 415 U.S. 189 (1974); Trafficante v. Metropolitan Life Ins. Co., 409 
U.S. 205 (1972); Ragin v. The New York Times Co., supra note 1; Houston v. Cocoa, Fair 
Hsg.-Fair Lending (P.H.) H 15,625 (M.D. Fla. Dec. 22, 1989); Brown v. Artery Org., 691 
F. Supp. 1459 (D.D.C. 1987).

1



woman who claims that she was denied housing for herself, her twelve-year old daughter 

and her mother because of familial status. One reason for the Fair Housing Act’s 

protection of families with children is that this form of discrimination has a 

disproportionate adverse effect on African American and Hispanic households3 and "is 

often used as a smoke screen to exclude minorities from housing."4 Therefore, the Legal 

Defense Fund has a strong interest in ensuring that the familial status provisions of the Fair 

Housing Act are vigorously and properly enforced. In addition, the principles adopted in 

familial status cases also govern claims of racial discrimination under the Fair Housing Act. 

The rulings of law made by the Administrative Law Judge in this case severely threaten the 

protections afforded by the Fair Housing Act to African Americans.

The National Fair Housing Alliance, Inc. (NFHA) is a non-profit corporation 

representing private fair housing centers throughout the United States. NFHA’s 

membership includes 60 private, non-profit fair housing organizations, one of which is 

Complainant HOME. The purpose of NFHA is the achievement of "the policy of the 

United States to provide, within constitutional limitations, for fair housing throughout the 

United States." 42 U.S. §3601. It attempts to fulfill this purpose by, inter alia, conducting 

research into the nature and effects of housing discrimination, advocating for effective 

programs of fair housing enforcement and sponsoring national educational conferences on 

fair housing issues and fair housing litigation. NFHA also attempts to identify and

3See Betsey v. Turtle Creek Associates, 736, F.2d 983 (4th Cir. 1984); Halet v. Wend Inv. 
Co., 672 F.2d 1305, 1311 (9th Cir. 1982). See also, R. Schwemm, Housing Discrimination 
Law and Litigation § 11.6(1), at 11-66 (1990).

4E.g., 134 Cong. Rec. H4688 (1988) (remarks of Rep. Dellums).

2



eliminate housing practices that are discriminatory and that constitute barriers to equal 

access to housing.

NFHA has a direct interest in the construction and application of federal statutes 

protecting against discrimination in housing. To this end, NFHA often participates as 

amicus curiae in cases that involve important interpretations of these laws.

STATEMENT OF THE CASE

Amici adopt the Statement of the Case and the Factual Background set out in the 

Petitioners' Brief on Appeal.

ARGUMENT

I. RESPONDENT DOWNS’ COMMENTS ABOUT NOISY CHILDREN 
INDICATED A PREFERENCE FOR NON-FAMILIES, IN VIOLATION OF 
SECTION 3604(c) OF THE FAIR HOUSING ACT

The Administrative Law Judge made the following findings of fact concerning

Respondent Downs' statements to Complainant Soules:

Ms. Downs . . . asked the number of persons who would live in the 
apartment and the number of adults. Ms. Soules replied that two adults and 
a child would reside there. Tr. p. 27. At this point Ms. Downs posed the 
question, "How old is your child", or words to that effect. Ms. Soules then 
asked Ms. Downs why she needed to know the child’s age. Ms. Downs 
replied that an elderly woman lived in the first-floor unit and she did not 
want "anvone in there" who was going to make too much noise.

Initial Decision and Order at 5. The Administrative Law Judge made additional findings

of fact concerning statements made by Respondent Downs to Robin Barnes, a volunteer

tester from HOME:

3



[Ms. Downs] asked Ms. Barnes who would be living in the unit and was told 
that she. her roommate, and her seven-year old son would be living there.
Ms. Downs asked if her son was quiet, to which Ms. Barnes replied that he 
was. Ms. Downs mentioned that an elderly couple lived downstairs and
"would probably not be able to take a noisy child or a loud child running 
around."

Initial Decision and Order at 7 (emphasis added). Respondent Downs did not ask either 

of the childless prospective tenants whether they were noisy. Downs "told both Ms. Soules 

and Ms. Barnes that she was concerned about noisy children because elderly tenants lived 

in the lower unit," she "did not volunteer information to Ms. Barnes about the Bird 

apartment" and "she also failed to have Ms. Anderson contact Ms. Barnes to schedule an 

appointment as she had agreed to do." Initial Decision and Order at 12.

Section 3604(c) of the Fair Housing Act makes it unlawful to "make . . .  any notice, 

statement, or advertisement, with respect to the sale or rental of a dwelling that indicates 

any preference, limitation, or discrimination based on race, color, religion, sex, handicap, 

familial status, or national origin." Despite numerous, undisputed statements in which 

Respondent Downs expressed a concern about the noisiness of children, but not about the 

noisiness of any other category of prospective tenants, the Administrative Law Judge found 

that Downs’ remarks did not violate § 3604(c). This decision, unless reversed by this Court, 

will severely weaken the protections afforded by the Fair Housing Act, not only to families, 

but to racial minorities, the disabled and other protected groups.

Imagine how the transcript would read if this were a case alleging racial 

discrimination:

THE RENTAL AGENT: "I noticed that your husband is black."

THE VICTIM: "Yes, does that matter?"

4



THE RENTAL AGENT: "Does he play loud music or make a lot of noise?
An elderly woman lives in the first-floor unit and I do not want anyone in 
there who is going to make too much noise."5

Clearly, the above-quoted dialogue would be interpreted by a reasonable African American

hearer as indicating a preference for white tenants. The fact that another characteristic —

noisiness — is linked to the racial characteristic does not purge the illegality. Indeed, it is

the linkage between race and noisiness that subtly indicates a preference, by expressing the

rental agent’s belief that African American persons are more likely to be noisy than are

white persons. A message is sent that, because the prospective tenant is African American,

he will, at a minimum, be scrutinized more carefully for noisiness. Although expression of

such a racial stereotype discourages prospective African American tenants, under the

reasoning of the Administrative Law Judge these statements by a rental agent would not

violate the Fair Housing Act.

Congress has made clear that, except for a limited category of housing for older 

persons, families with children are entitled to the same protections against discrimination 

as racial minorities and other protected classes. HUD Preamble II, 24 C.F.R. ch. 1, 

subch. A, app. I, at 545, 568 (1989). The Fair Housing Act does not distinguish a 

stereotype about noisy children from a stereotype about noisy African Americans, noisy 

Catholics or noisy men. Therefore, if the decision of the Administrative Law Judge is 

upheld, housing providers will be authorized to make statements indicating irrational and

5This dialogue is recast into racial terms from the description in the Initial Decision and 
Order, at 5.

5



insulting prejudices and stereotypes on the basis of race, ethnic origin, sex, religion and 

disability, as well as familial status.

Moreover, if the Act permits statements indicating a belief that members of a 

protected group are likely to be noisy, there would seem to be no basis on which to 

prohibit statements reflecting other types of stereotypes. All of the following statements 

would be legal:

"I see that you’re black. Have you ever been convicted of a crime? I do not 
want any criminals living here."

"I see that you’re a woman. Are you going to be able to mow the grass? I 
only want a tenant who can take care of the yard."

"I see that you speak Spanish. Are you a U.S. citizen? I do not want any 
illegal aliens living here."

"I see that you’re disabled. Do you have a steady job? I only want tenants 
who are able to pay the rent."

It is possible for housing providers to obtain information about the qualifications of 

prospective tenants in a manner that does not insult and discourage tenants on the basis 

of race, sex, familial status, etc. Questions to ascertain whether a prospective tenant is 

qualified may include inquiries about noisiness, ability to perform yard work, credit 

worthiness, employment history and immigration status. However, such questions and 

inquiries cannot be linked to race, sex, national origin, religion, disability or familial status. 

All applicants must be treated equally with regard to qualifications criteria.6

6U.S. v. Long, 1 EOHC U 13,631 at 14,090-91 (D.S.C. 1974), remanded on other grounds, 
537 F.2d 1151 (4th Cir. 1975), cert, denied, 429 U.S. 871 (1976) (checking credit rating of 
black, but not white, applicants violates Fair Housing Act); HUD Regulations, 24 C.F.R. 
§ 100.60(b)(4) (qualification criteria, such as income standards, application requirements,

(continued...)

6



The Administrative Law Judge concluded that the questions and inquiries in this 

case did link familial status with an undesirable characteristic.6 7 The Administrative Law 

Judge also found that Respondent Downs’ numerous statements about noisy children 

"implied] a preference, limitation, or discrimination based upon familial status." Initial 

Decision at 16. Nonetheless, the Administrative Law Judge ruled that the statements are 

not discriminatory on their face8 and thus are illegal only if a discriminatory intent is 

proven.

The legal standard applied by the Administrative Law Judge contradicts the holdings 

of this Court and every other Court that has interpreted § 3604(c). Under § 3604(c), the 

issue is not whether the statement is discriminatory on its face or in its intent, but whether 

the statement indicates a preference to the ordinary hearer. In addressing a claim of 

discriminatory advertising, this Court ruled: "[T]he statute prohibits all ads that indicate 

a racial preference to an ordinary reader whatever the advertiser’s intent." Ragin v. The New

6(...continued)
application fees and credit checks must be applied on a nondiscriminatory basis); 24 C.F.R. 
§ 100.65(b)(1) (families and other protected groups may not be required to provide a 
higher security deposit than other tenants).

7The Administrative Law Judge found that Downs’ statements "convey information 
about the undesirability of a characteristic which the hearer reasonably may associate with 
familial status." Initial Decision and Order at 15-16.

8Amici disagree that these statements are not discriminatory on their face. The 
statements made in this case are equivalent to explicit racial statements, such as "the 
tenants probably would not be able to take noisy black persons running around." Where 
the speaker links an undesirable characteristic and a protected group in a manner that 
suggests the protected group is more likely than others to possess the characteristic, the 
statement is discriminatory on its face. An example of a statement that is neutral on its 
face is "the tenants probably would not be able to take noisy neighbors." In any event, 
whether the statement is facially discriminatory is irrelevant, since the statute prohibits 
statements which "indicate" a preference.

7



York Times, 923 F.2d 995, 1000 (2d Cir.), cert, denied, 116 L.Ed.2d 54 (1991) (emphasis 

added). The question in Ragin was whether newspaper advertisements for housing which 

included virtually all-white human models could violate § 3604(c). A newspaper 

advertisement with all-white human models does not state an explicit preference on its face. 

The message is more subtle, just as it is when race is linked with an undesirable 

characteristic. Yet, the Court held that such subtle statements of preference violate the 

Act: "Neither the text of the statute nor its legislative history suggests that Congress

intended to exempt from its proscriptions subtle methods of indicating racial preference." 

923 F.2d at 1000.

Section 3604(c) applies the same prohibitions to oral statements as to real estate 

advertising.9 Thus, the decision of the Administrative Law Judge, unless reversed, will 

wipe out the holdings in Ragin and scores of other precedents applying § 3604(c) to 

racially-discriminatory housing advertising.10

In applying the erroneous "intent" standard, the Administrative Law Judge reasoned 

that Respondent Downs did not engage in illegal stereotyping because she asked two 

questions: 1) do you have children: and 2) are they noisy? Initial Decision and Order at 

17 n.25. The Administrative Law Judge therefore concluded that Ms. Downs did not 

stereotype all children as noisy. As discussed above, whether a stereotype was intended is 

not the issue. The question is whether the statement indicated a preference or discouraged

9See HUD Regulations, 24 C.F.R. § 100.75(b).

l0E.g., Spann v. Colonial Village, 899 F.2d 24, 29 (D.C. Cir. 1990); United States v. 
Hunter, 459 F.2d 205 (4th Cir. 1972); Saunders v. GSC, 659 F. Supp. 1042, 1059 (E.D. Va. 
1987).

8



members of a protected group. In any event, it is not necessary that a speaker stereotype 

all individuals of a particular protected class as noisy, uncreditworthy or possessing of any 

other undesirable characteristic, to violate the Fair Housing Act. It is illegal for the 

speaker to indicate or to act on the belief that members of a protected group are more likely 

to possess a disqualifying characteristic than other persons. In this case, the Administrative 

Law Judge found that the statements made by Respondent Downs did imply a preference 

to an ordinary hearer. See Initial Decision and Order at 15-16. Therefore, the ruling on 

§ 3604(c) should be reversed and judgment should be entered for both Complainant Soules 

and Complainant HOME."11

II. THE ADMINISTRATIVE LAW JUDGE ERRED IN RULING THAT
RESPONDENTS DID NOT VIOLATE SECTIONS 3604(a) AND (d) OF THE
FAIR HOUSING ACT

A. THE ADMINISTRATIVE LAW JUDGE ERRED IN RULING THAT 
RESPONDENT ARTICULATED A LEGITIMATE REASON FOR 
INQUIRING ABOUT THE AGE OF COMPLAINANT’S DAUGHTER

The Administrative Law Judge’s error in interpreting § 3604(c) was directly carried 

over to and tainted his conclusion that Respondents did not violate § 3604(a) or (d). 

Therefore, the ruling on those claims must be reversed as well.

The Administrative Law Judge correctly concluded that the Secretary had established 

a prima facie case of discrimination in violation of §§ 3604(a) and (d). Initial Decision and 

Order at 10, 14. The burden then shifted to the Respondents to articulate a legitimate, 

nondiscriminatory reason for the adverse treatment of Complainant Soules. The only reason

“ Respondent Downs’ statements to HOME’S tester, Robin Barnes, also violated § 
3604(c), and HOME can recover for this injury to its tester and its mission.

9



offered by Respondent Downs for her adverse treatment of Complainant Soules was that 

Soules questioned why Downs asked the age of her child. Initial Decision and Order at 

10-11. The Administrative Law Judge correctly recognized: "In order for Ms. Downs' 

negative impression of Ms. Soules to be legitimate and nondiscriminatory, . . . the chain of 

events resulting in her negative view of Ms. Soules as a tenant in the Bird apartment cannot 

have originated with unlawful statements or questions posed by Ms. Downs." Id. at 11. 

The Administrative Law Judge thus went on to consider whether Ms. Downs had a 

legitimate, nondiscriminatory reason for asking the age of Ms. Soules child.12 The 

Administrative Law Judge erred in this last step of the analysis, concluding that

lzThe Administrative Law Judge concluded that Respondent Downs had a legitimate 
reason for asking whether Complainant Soules had any children, because an alleged City 
ordinance prohibited children of different sexes from sharing a bedroom. Initial Decision 
and Order at 4 n.4. Amici submit that this was not a legitimate reason for the question. 
First, a post-hoc rationalization cannot constitute a legitimate, nondiscriminatory reason. 
The reason articulated must be the actual factor that motivated the Respondent at the 
time. In this case. Respondent Downs' numerous references to noisy children leave no 
doubt that this concern, and not an occupancy ordinance, actually motivated Downs’ 
questions about the existence of children as prospective tenants. Furthermore, once Downs 
ascertained from Soules that there would be only three occupants in the Bird apartment, 
there was no reason to be concerned about shared bedrooms, since it is a three-bedroom 
unit.

Second, the alleged local ordinance, even if it exists, itself would violate the Fair 
Housing Act. The only relevant exemption for state and local ordinances is set out in § 
3607(b)(1): "Nothing in this title limits the applicability of any reasonable local, state, or 
Federal restrictions regarding the maximum number of occupants permitted to occupy a 
dwelling." This exemption does not authorize outright sex discrimination of the type 
required by the alleged local ordinance, but instead authorizes reasonable limits on "the 
maximum number of occupan tswithout regard to the race, sex, familial status, etc., of the 
occupants. A housing provider may not rely on an illegal ordinance as a legitimate, non­
discriminatory reason for denial of housing. In any event. Respondent Downs’ questioning 
went even further than the initial inquiry about children, to ask the age of Complainant 
Soules' child and the Administrative Law Judge found that this question could not be 
explained by the alleged ordinance. Initial Decision and Order at 11.

10



Respondent Downs’ desire "to insure that any new tenants in the Bird apartment would not 

disturb [the downstairs’ tenants]" was a legitimate and nondiscriminatory reason, "ff]or the 

reasons discussed . . .  in connection with § 3604(c)." Id.

As discussed in Point I above. Respondent Downs’ statements linking noise with 

children are illegal under § 3604(c) of the Fair Housing Act. As found by the 

Administrative Law Judge, these same statements started the chain of events which resulted 

in Respondent Downs’ dislike of Complainant Soules. Therefore, Downs’ dislike of Soules 

is not a legitimate, nondiscriminatory reason for rejecting Soules as a tenant, but rather the 

direct result of an illegitimate, illegal inquiry into familial status. It is the same as if Downs 

had asked Soules whether she is black, and then come to dislike Soules because she 

questioned why that information was relevant. The Administrative Law Judge explicitly 

relied on his interpretation of § 3604(c) in ruling on the legitimacy of the alleged 

nondiscriminatory reason. Because the Administrative Law Judge’s decision on § 3604(c) 

is incorrect, the ruling on §§ 3604(a) and (d) must also be reversed.

B. THE ADMINISTRATIVE LAW JUDGE ERRED IN GIVING DECISIVE 
WEIGHT TO THE TESTIMONY OF CAMILLE PERRY

The Administrative Law Judge concluded that, except for the testimony of Camille 

Perry, the weight of all of the evidence "would be sufficient to establish that Respondents’ 

articulated reason for denying the Bird apartment is pretextual." Initial Decision and Order 

at 13. In April 1989, Ms. Perry was a current tenant in another apartment managed by 

Respondent Downs. Ms. Perry was searching for another place to live and testified that 

Respondent Downs briefly mentioned the Bird apartment in a list of several apartments 

that were available. The Administrative Law Judge concluded, erroneously in our view,

11



that "the testimony of Ms. Perry conclusively establishes that Ms. Downs was willing and, 

in fact, attempted to rent the Bird apartment to a family with children" and therefore that 

the Secretary "failed to demonstrate that . . . Ms. Soules was denied the Bird apartment 

because of her familial status." Initial Decision and Order at 13.

Amici adopt and support the argument made by Petitioners concerning the undue 

weight given to the testimony of Camille Perry. The evidence clearly establishes that 

Respondent Downs only briefly mentioned the Bird apartment to Ms. Perry, in a passing 

reference. Ms. Perry's testimony was very vague on precisely what Downs said about the 

Bird apartment. This testimony is insufficient to establish that Respondent Downs either 

attempted to rent the Bird apartment to Perry or was willing to do so.

In addition, even assuming that Respondent Downs might have been willing to rent 

the Bird apartment to Ms. Perry, the Administrative Law Judge failed to recognized that 

it is illegal to discriminate against a protected group as a class, even though an exception 

may be made for a member of the group who is personally known to the decisionmaker. 

A key fact distinguishes Ms. Perry from the other families with whom Respondent Downs 

had dealings. Both Ms. Perry and her children were personally known to Downs. 

Therefore, Downs’ reliance on a stereotyped view of children as noisy was overcome in the 

case of the Perry family by her personal knowledge of the mother and children. Because 

Ms. Perry and her children were personally known to Respondent Downs, the Perrys were 

not analogous to Complainant Soules or Ms. Barnes. Downs’ treatment of Ms. Perry sheds 

no light on how Respondent would treat a family with children whose members were not 

personally known to her. Thus, the Administrative Law Judge’s finding that the evidence

12



"conclusively establishes" that Respondent was willing to rent the Bird apartment to a 

family that was personally known to her is not entitled, as a legal matter, to the dispositive 

weight given to it.

Because the Perry evidence did not present a situation comparable to that of 

Complainant Soules and Ms. Barnes, this testimony must be considered as inconclusive on 

the key issue raised by this case — whether Respondent Downs discriminated against 

families whose members were unknown to her. In the absence of the undue weight given 

to this testimony, there is no doubt that the Administrative Law Judge would have ruled 

in favor of Complainants on the §§ 3604(a) and (d) claims. Therefore, the Administrative 

Law Judge’s decision on these claims should be reversed and judgment should be entered 

for Complainants Soules and HOME.

Respectfully submitted.

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.
99 Hudson Street 
Sixteenth Floor 
New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

January 27, 1992

13



CERTIFICATE OF SERVICE

I hereby certify that a copy of the attached Brief Amicus 
Curiae of the NAACP Legal Defense and Educational Fund, Inc. and 
the National Fair Housing Alliance in Support of Petitioners was 
served on January 24, 1992, by first class mail, postage prepaid, 
to the following counsel:

Timothy A. McCarthy, Esq.
Burd & McCarthy 
76 Church Street 
Buffalo,NY 14202
William Yeomans, Esq. 
Department of Justice 
P.0. Box 66078Washington, D.C. 20035-6078
John Reiman, Esq.
Washington's Lawyers Committee 
1400 I Street, N.W.
Suite 450
Washington, D.C. 20005

PENDA D. HAIR