A HERCULEAN LEAP FOR THE HARD CASE OF POST-ACQUISITION CLAIMS: INTERPRETING FAIR HOUSING ACT SECTION 3604(b) AFTER MODESTO

On October 8, 2009, Committee Concerning Community Improvement v. City of Modesto created a split in federal circuit courts over whether FHA § 3604(b) applies to discrimination that occupants suffer after acquiring their dwelling. The question is whether the FHA only applies to discrimination in acquiring their property or afterwards as well. This Note examines the split in federal circuit courts created by Modesto. Part I examines the history of the FHA and theories of statutory interpretation.

Part II discusses the split in federal authority and both sides’ interpretative methodologies and rationales. . Part III.A maintains that meaning-based and intent-based theories are unavailing because the disagreement between the circuits arises from a fundamental ambiguity in the statute regarding what constitutes housing access, integration, and the “privileges of sale or rental.” Because traditional interpretive theories fail to resolve this ambiguity, Part III.B offers a solution based on an alternative interpretative theory, the Coherence Theory, developed by Ronald Dworkin. This Note suggests that the Supreme Court should resolve the split in authority by interpreting the FHA to advance the “policies or principles that furnish the best political justification for the statute” as maintained by Dworkin. It analyzes the related principles and policy issues concerning housing discrimination underlying the FHA and posits that the Supreme Court should recognize that the distinction between pre- and postacquisition discrimination is arbitrary because housing availability, access, and integration involve ongoing rights that do not end at the point of acquisition.

This Note concludes that the Supreme Court should abolish the distinction between pre- and post-acquisition discrimination by adopting the Ninth Circuit’s interpretation and by allowing occupants to seek redress under § 3604(b) for discriminatory treatment that occurs after acquiring their dwelling not amounting to constructive eviction.