Legal Interpretation of Subsection 802(i)

Legal Opinion: GME-0002

Index: 9.215

Subject: Legal Interpretation of Subsection 802(i)

November 4, 1991

MEMORANDUM FOR: Jacquelyn J. Shelton, Director

Office of Fair Housing Enforcement

and Section 3 Compliance

FROM: Harry L. Carey, Assistant General Counsel

for Fair Housing

SUBJECT: Legal Interpretation of Subsection 802(i) - Standing

Case Number 06-90-0663-1

This responds to your memorandum regarding the above-

referenced case in which you raised questions regarding several

complainants\' standing to sue under Title VIII. The case raises

three separate standing questions: (1) whether a tenant whose

visitors are affected by her lessor\'s alleged discriminatory

action has standing; (2) whether non-resident visitors who are

directly affected by a housing provider\'s alleged discriminatory

action have standing; and (3) whether a non-resident whose

children have been directly affected by a housing provider\'s

alleged discriminatory action, but who herself has not been

directly affected by that action, has standing?

Complainants allege that Respondent Denton (Texas) Housing

Authority (DHA) selectively enforces its criminal trespass policy

in a manner which discriminates against Blacks. Complainant

Ollie Darrough (companion case) is a DHA tenant. Complainants

Connie and Jerome Madison, minors, are not DHA tenants. DHA,

allegedly because they are Black, caused them to receive criminal

trespass warrants and be arrested, allegedly while visiting their

aunt (Complainant Darrough) at DHA\'s property. Complainant Janet

Madison, the sister of Complainant Darrough, filed a complaint on

her own behalf, as well as on behalf of her minor children,

Connie and Jerome.1

Regarding the first issue, Complainant Darrough, as a DHA

tenant, has standing to challenge DHA\'s alleged discriminatory

application of its criminal trespass policy. Unlawful conduct

1 The record is unclear whether Complainant Janet Madison

was ever intimidated or otherwise directly affected by DHA\'s

allegedly discriminatory criminal trespass policy while

attempting to visit her sister at DHA\'s property. The discussion

that follows respecting her complaint assumes that she was not,

unless the contrary is expressly stated.

2

under section 818 of the Fair Housing Act (Act) includes

threatening, intimidating, or otherwise interfering with persons

in their enjoyment of a dwelling because of their race or the

race of their visitors or associates. 42 U.S.C. 3617; 24

C.F.R. 100.400(c)(2)(1991). Also, subsection 804(b) of the Act

prohibits limiting privileges, services, or facilities associated

with a dwelling because of the race of a tenant or a person

associated with her. 42 U.S.C. 3604(b); 24 C.F.R.

100.65(b)(4)(1991). DHA allegedly interfered with Complainant

Darrough\'s enjoyment of her dwelling by intimidating her

relatives when they come to visit.

With respect to the second and third standing issues, the

Act\'s definition of \"aggrieved person\" in subsection 802(i)

includes anyone who claims to have been injured by a

discriminatory housing practice or believes that he or she will

be injured by a discriminatory housing practice that is about to

occur. Courts interpreting this definition have construed its

coverage to be very broad. The Supreme Court has determined that

Title VIII standing is \"as broad as is permitted by Article III

of the Constitution.\" Gladstone, Realtors v. Village of

Bellwood, 441 U.S. 91, 109 (1979)(\"Bellwood\"), citing Trafficante

v\. Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972). In

order to satisfy the standing requirements of Article III, the

complainant must show that he has personally suffered some actual

or threatened injury which is fairly traceable to respondent\'s

conduct, and is likely to be redressed by a favorable decision.

Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 472 (1982).

Complainants Connie and Jerome Madison are persons directly

affected by DHA\'s alleged discriminatory criminal trespass

policy.2 Both Connie and Jerome, on separate occasions, were

warned, received trespass notices from DHA, and ultimately were

arrested by the police while they purportedly were visiting

Complainant Darrough or other relatives at DHA\'s property. If

proven that DHA had enforced its policy against these

Complainants in a racially discriminatory fashion, a court could

award them damages to redress their injury. Thus, because

actions traceable to DHA injured Complainants Connie and Jerome

Madison, and a court could redress those injuries, they satisfy

the requirements for standing.

Indirect victims of discrimination also may have standing to

challenge discrimination directed against others, so long as that

discrimination has caused the complainant some personalized

2 DHA participates with the Denton Police Department to

enforce its criminal trespass policy through a Community Oriented

Policing (COPS) program whereby tenants work with the police to

reduce crime in the housing projects.

3

injury, is traceable to the respondent, and a court could redress

the injury. As stated in Bellwood, 441 U.S. at 103 n.9, anyone

may sue who is \"genuinely injured by the conduct that violates

someone\'s rights.\" The issue to be decided in determining if

Janet Madison has standing is whether she has been \"genuinely

injured\" as a result of DHA\'s alleged discriminatory conduct and

if so, whether a court could redress that injury.

It is well established that complainants are entitled to

damages for out-of-pocket expenses and lost wages caused by a

housing provider\'s discriminatory conduct. See, e.g., Secretary

of HUD v. Blackwell, Fair Housing-Fair Lending (P-H) para.

25,001, 25,010-11 (Dec. 21, 1989), aff\'d, 908 F.2d 864 (11th Cir.

1990). Courts also have held that a complainant is entitled to

compensation for the damages inflicted on other members of

his/her family, to the extent that he/she is directly damaged by

the harm the discriminatory actions caused the other family

members. See Secretary of HUD v. Morgan, P-H para. 25,130,

25,138 n.20 (July 25, 1991), citing Davis v. Mansards, 597 F.

Supp. 334, 347-48 (N.D. Ind. 1984).

Assuming, arguendo, the validity of the allegations of

discrimination, Complainant Janet Madison would be \"genuinely

injured\" and, thus, have standing if: (1) She suffered any

economic loss proximately caused by DHA having her children

arrested, e.g., if she posted bail, incurred legal expenses or

medical expenses (due to injuries her children sustained during

arrest), lost wages (due to time spent consulting with a lawyer,

picking her children up at jail, visiting them in jail), or

incurred travel expenses (to pick her children up at jail, or to

visit them); (2) She was discouraged from visiting her sister or

other relatives who live at DHA\'s property because of DHA\'s

treatment of her children; or (3) She suffered emotional distress

resulting from DHA\'s alleged discriminatory conduct.

It appears that Janet Madison was genuinely injured as a

result of DHA\'s enforcement of its criminal trespass policy and

has standing. She stated in her affidavit, submitted

contemporaneously with her complaint, that she suffered emotional

distress resulting from Respondent denying her (and her family)

the opportunity to visit her relatives because of race. She also

stated that her daughter remains under a physician\'s care due to

serious neck and hip injuries that she sustained while being

arrested.3 It is reasonably foreseeable that a mother, with

custody of two minor children who have suffered the above-

described injuries as a result of DHA\'s actions, would suffer

3 It is not clear from the record provided, but these

physical injuries, allegedly the result of DHA\'s actions, may

have caused Ms. Madison emotional distress and/or out-of-pocket

expenses.

4

emotional distress. Since actions traceable to DHA injured Ms.

Madison, and a court could redress those injuries, she satisfies

the requirements for standing.

If you have any further questions relative to this matter,

please call Jonathan Strong, Deputy Assistant General Counsel for

Fair Housing Litigation at 708-0340 or Jon M. Seward at

708-2208.