incentive payments at lincoln at least rents to corporate sublease s and they rent to tenants a mind not otherwise rent to this includes students been subsidized by their parents parents with a regular predominantly white compared to about your population this disparate treatment and refusing to read with the same practices is set out in the complaint paragraphs nine to ninety no response was given the request and the units remain available and advertises available for it on the trip and there was supporting evidence in terms of the client what did i mean you're alleging that but what do you their position is that they didn't rent to any section eight vouchers i mean i think you might have been able to support your case if the in other words they're saying this is not disparate treatment this is pure disparate impact because after all the law gives them the right not to participate in this program there is no law  property owner or the management company that's not our argument or our argument is as i misunderstood your answer to judge jones question well i mean it's that decision whether to refer to a specific  is a voluntary decision just like lots of decisions are voluntary that doesn't mean they're exempt from the fair housing so it's a disparate impact argument i think i think her question was and she can certainly correct me but i think i have the same both under all the authority they can you can challenge the same practice or policy under disparate impact and that are disparate treatment so you think the requirement for state your client for disparate impact and disparate whether to rent to someone and that that decision is based on a motive that takes into account race and that that is the major difference between that it can both can apply for example allege robust causation on your disparate impact but it seems to me i could have it would be much easier to have demonstrated your disparate treatment claim if you had said to lincoln and here is some section eight voucher holders who are white are you going to rent to them and if lincoln had said yes we will consider it and then you have the majority of your section eight holders and you bring one of one or two of them who are minorities to lincoln and they say no that to me is disparate treatment different treatment of similarly situated individuals but lincoln says we at all and this is one apartment house or series of apartment houses in a heavily populated urban area and you're trying to use the fact that they have a facially nondiscriminatory policy which is nobody would hold those who are similarly situated i mean in title seven we have rules on who similarly situated in a corporate you know person who's come to work somewhere for six months is not similarly situated you know getting paid a certain amount of it also works between doing business with the government you keep making the analogy of as zoning ordinance wouldn't couldn't you also make the analogy let's say a grocery store that doesn't want to accept snap benefits and i don't know what the demographics are on snap benefits in that area or any other area but couldn't you make the same argument wouldn't it wouldn't it be a poor argument to say that if i don't take snap benefits because i don't want to do business with the government but i will take a credit card or i will take a debit card of course i'll take cash you keep analogizing other sources of support i think you mentioned even michael parents pays for the unit it's i c p who provides the choices of tenants for the for the landlord to pick it's i c p who contracts with the housing authority the landlord does not contract back to an impact claim and i know your time is running short but it doesn't seem like a treatment claim it seems more like more of an impact it would be like i don't want to take government snap and somebody says well my mother will pay cash and they would say no we won't take your mother's cash either because you are a snap client let me know you don't want them judging mark where he does it make i answer or complaint provision that i c p has past clients who are in fact eligible under the application criteria we support that by showing that lincoln does rant about your clients in minority areas premises i mean if if someone were actually going to do this did i see people provide financials that would back up the claim that you were going to guarantee the shortfall just never got here and we got no response well suppose this were and i'm sorry you have used up all your time but i would give you a couple more minutes oppose this were a disparate impact claim as you have alleged then how do you allege robust causation as the supreme court required it drove us causation we're claim is there is that their policy is talking about i mean if you can if you are you going to go landlord by landlord and in other words even if lincoln accepted your program what kind of impact themselves and their families may be in any apartment complex and only three to five in any of these cases the impact of any of the disparate impact races never changes the racial composition of a metropolitan area of a city a a disparate impact claim if the landlord will not accept housing vouchers and there is less than the statistical percentage of minorities on a particular census track though that would be causation requirement is designed to keep that from happening just because there's a racial imbalance and the landlord hasn't done it isn't this exactly the same argument transferred to section eight that you made in regard to the tax policies of the state in the in the case went to the supreme court i mean basically you said i can show differential statistics and that means disparate impact you know  impact purposes in that case and that's a big difference here we have a policy as well and then we also are saying as a decision i'm i'm way over time you know you have time for about in the complaint about corporate models there was no discussion about the racial composition of the participants and as judge jones is noted doing in all areas of the law and it's not just title seven we look at this an equal protection context we look at it in the select prosecution context the hallmark of disparate treatment is some other similarly situated person or entity is being treated differently and here there was no allegation and and still really is no no plausible argument of in any similarly situated entity i think as as judge jones points out coca cola is not similarly situated to i c p a college student having a guarantee from a period is not similarly sort of and let me clarify that because it gets tossed around i think all of the up and get put into one jumble and your honor as you pointed out lincoln soleus a property manager i mean the acceptance of the dodgers is up to the property owners not to lincoln as the manager it does manage some complexes where vouchers are accepted because they are required to be accepted by federal law when it when a complex accepts certain housing tax credits as a condition of receiving those credits it must accept handle leasing to my understanding that's always a property owner decision obviously lincoln brings a wealth of expertise in that area and i'm sure there's consultation but ultimately that decision is with the property but they don't make a decision on whether or not to accept or a recommendation on whether or not to accept that property owner i suspect and i will candidly tell you i don't know the answer to that question i'm sure that lincoln is consulted in the process the decision always has with the proper and again that's a very different situation given the repeated allegation of this pointed policy but that they do allege that there is intentional discrimination i mean i don't know how much you have i don't know complaint the two pages of the complaint where the disparate treatment claims actually is pleaded it's really just recitation of elements there's no allegation of intentional discrimination in there so in in our view if they've alleged that they've not pla bly alleged under it all and twamley the other problem and i don't want to spend too much time on disparate treatment but the other problem is really that they've got sort of the same problem the detainees had a nickel you know it's not that this policy exists because of those things or it could well be that this policy exists in spite of those things both of those would be consistent and that is the supreme court put it that allegation as a result of that situation isn't enough to nudge the ball past the plausibility line and i c p really has the same problem in this case it alleges the blanket policy it concedes that landlords have issues under you know a variety of issues under section eight and so there's nothing to suggest whether this policy is because of race or in spite of race it's exactly the problem that exists if there been any change in our you here you're here for lincoln that i believe representing lincoln but has there been any change in terms of the defendants any of the defendants position where they were accepting and then made a decision for whatever reason to discontinue it and does that even make a difference to my not the answer to question my knowledge is no there has not been such a change and it might i think the gross  decision is a case where that's a little bit different where there might be circumstances where you participate and then withdraw i think that's a very very different situation than what we have here and perhaps that's a good place to go to pivot and talk for a minute about disparate impact certainly i want to start with the robust causation requirement because as we understand what the supreme court said i c p just does not come close to meeting that causation standard justice kennedy was very clear in saying that when you're disparate impact claim is based on statistical disparity the plaintiffs must allege the defendant's causation about that disparity and i thought that was the reason they were going into census tracts and block figures and all that but they were saying that the impact of the disparity is in a larger area than just the single apartment house that is my understanding of the ice here i infer that he is saying well if you even get three to five tenants in one project in my apartment building you're never going to affect the overall sentence tracked figures in which case weiss why even bother to cite census track in and there's some conflation i think two separate arguments there because you have at least under the hood regulations very unclear as to whether there is such a claim as perpetuation of segregation but under the hood regulations that's a that's a different species of coins and i think sometimes in the briefing that to get blurred i mean don't you agree that the the regulation and twenty four c f r it is the governing standard for m aim and so we sent it back to the district court and then it went up from there to the supreme court and they have firmed up so i mean what is an end that pretty solid authority that the regulation sets sets up that that claim is not implicated on this record that claim suffers from exactly the same defect either way under disparate impact they've got the same problem which is the causation huntington branch is a great example that's one of the lead early perpetuation of segregation persons or create increases reinforces or perpetuate segregated housing patterns because of race and of the read i'm so don't you read that his sand that what you have to show  is that the policy results in a disparate impact omh the group of persons who are who are involved here the minorities who are trying to direct with a voucher well yes but i also read i c p unequivocal and to say that you must show causation to the distance to the housing community disparity you are relying on for the claim i mean that and that goes all the way back towards coke here on i mean remember in justice white said if if there are other reasons for example if there's simply a shortage of applicants it's just nobody applies than the defendants policy has not caused the racial stratification in the workforce in here we sort of see the same defect remember very interesting i c p never alleges an applicant base in this case the problem i think that's the problem that i see in what the different through the i c p cases the i c p case was challenging the state policy of offering certain tax credits to low income housing and therefore were based on the statistics did that have a disparate impact and the supreme court only finding the least the damages finding goes up to supreme court and they say theoretically you can have a disparate impact claim but the but what do you impacting is the question and what they allege i is if they are impacting adversely the housing situation on a centrist track basis that is health care they're saying that a disparate impact can apply to one apartment policy here we we've got a policy i mean you advertise your policy we have an alleged policy in this case but even at that it's a policy although it is saying we do not choose to accept this program so that's a if our policy is consistent with what the law provides i don't see how you can say it has a disparate income file that have disappeared in and that's a separate concern for us is that a couple of separate concerns actually in addition to the robust causation issue one is that very point that in our view this would effectively by judicial thiago make section eight participation mandatory for every property owner in a nonwhite refuse to rent to an individual on the basis of race but you can refuse can you not to rent to an individual who can't afford to pay for it and again that the flaw in all of this in our view is conceptual or theoretical because as alleged in this case we don't have an applicant population i c p again i want i want to make this point as clearly as i can i see pete did not allege the existence of an actual applicant population here see piece it and remember we're dealing with a number of units here some of them substantial in size all i c p said was very carefully it's complete we have some african american clients who want to move into some  nspecified neighborhoods some of these complexes have some units available those were the weeded facts in front of the district or in their lead to that they represented about her home or who who were eight percent black they as i read their complaint they represent between one and one billion boettcher holders you have that's exactly our problem with the complaint your honor they didn't give us any indication of this applicant pool if it's one person i think judge jones had it right and he sort of flip the switch the other way and say well if you took away the policy wouldn't a million or eight the problem on these allegations we have no idea they've not alleged that they've not alleged anyway that we need in fully perpetuate segregation even assuming that that is a viable claim because we don't know we don't know what complex is we don't know anyone seeking to move in the street a five number that's in the brief there was no allegation that they had one hundred twenty six families ready willing and able so so there's a real breakdown in our supplemental authorities what are we cited some cases them indicate that that in addition to alleging the disparity you've got to tie it to the act actual applicant flow at the complex for this very please the court my name is valerie williams i represent defendant apple e brick road which is one of the property owners brick row in the other apple e's are all unified on the on the on their the fronts that have to do with the pleading deficiencies and i see peace complaint for the record because this came up earlier none of the property owners have ever accepted the outers where brick row is separate from the herd in this particular case is that as true that there are proximately thirty thousand dr households in the dallas metropolitan area and that eighty one percent are african american and ten percent are caucasian i c p combine hundreds of census tracks from several cities in the dallas metropolitan area to formulate these statistics which i c p then apply globally to all defendants regardless of where the defendant's have to move into an apartment house where they live it's a good question your honor a similar situation occurred in haven realty versus coleman this is a case that cited by i c p on page fifty four it's of it's appellate brief and haven sought to use to to stick from the entire richmond virginia metropolitan area against an apartment owner accused of discrimination against african americans the supreme court expressed a strong skepticism of the lack of the validity of the statistical base of the court held it is indeed implausible to argue that defendants discrimination could have powerful bow effects throughout the entire richmond metropolitan area likewise the municipality is in the dallas metropolitan area each have their own city councils which govern building and zoning ordinances impacting the location and construction of all types of housing and this is the first red flag that a reasonable inference cannot be drawn between the statistical data led by i c p and its disparate impact claim against road or grow is only located in the city of richardson the combination of statistics from across multiple governing jurisdictions spread out over many miles should be the first indication that a pla a disparate impact case does not meet the robust causation requirement as set forth by the supreme court in the hartland cases cited by i c p the defendants were cities that exercised governance over zoning ordinance affecting property within their boundaries and control the statistical evidence produced presented by plaintiffs in those cases directly correlated to those census tracks and the city were both the impacted property and the impacted population were located in essence and reasonably defined area for statistical comparison might be inferred by the court by comparison i use census and hud data from multiple cities merely to demonstrate racial imbalance but it sought to limit brick road to a single census trot out of nine census trucks simple single zip code and one city to support its disparate impact claim this type of apples to oranges comparison in an overly broad multi jurisdictional market area can never support robust causation at the planning stage if a municipality such as plano texas cannot be liable for discriminate discriminatory zoning ordinances and acted by and  city of dallas that a private property owner should not be held different to a different standard i see piece cherry picking of statistics is evident when the hod and census data is examined at the city by brick road and do we use the exact same census and hard data that i c p use and therefore the court was entitle to examine that evidence and further  its ruling the data from the city or even the zip code level where the brick row complex is located shows that and that the number of available section eight housing units occupied by thousand and nine to two thousand and fifteen the number of section eight housing units in the city of richardson increased by thirty four percent there primarily occupied by african americans as this court held in good reverses bankable plus conclus allegations and on warrant to deductions a fact are not admitted as true i see a piece contrived statistical to this the dutchman masquerading as fact is nowhere near the robust causation demanded by the supreme court making would essentially require every landlord in a neighborhood that doesn't have x percent of minorities to engage in section eight voucher housing is that correct is incorrect how can that be incorrect based on what you have alleged because number one a lot of those landlords may not have rents the payable under the voucher program to  that you have clients or whatever who can meet the landlord selection criteria why are we supposed to accept that they go allegation for purposes of establishing a claim well because we have the facts in there but you don't allege facts about these in other words if they have selection criteria that are published in some way apart from voucher section eight  children no pets did you take that we no children no pets are not part of our case it was no children and it's not the judge in the elderly project that policy violates another part of the  which i don't think they would do that no pet owner i don't i don't think no pets and that you can tell somebody but i'm certain they think somebody doesn't have a seeing eye dog in the g d well that's a different part of her house and there are criteria that a landlord might have and you just a legend general terms we have clients who meet whatever criteria you want because we because i see people records more than i can be as a landlord number one get help well here in the same application you're still talking about money not you know on the one hand you're just talking about minorities but then on the and in such a way that it did appear so you're excluding other parts of your group that you're to the question is is it more disproportionate minority that's in there ok going to show that it's all one hundred percent minority for just proportionate impact case you like to show it for a disparate treatment case