Property interest : something to which a person has a “legitimate claim of entitlement,” more than a “unilateral expectation”
Board of Regents v. Roth , 408 U.S. 564 (1972)
Liberty interest : an expectation that government will not interfere in a certain thing except by procedural due process, and which arises “from the Constitution…created by state laws or policies..or from ‘guarantees implicit in the word ‘liberty’”
Norman, who has always wanted to get into the hotel business, was recently accepted into the Hotel Management MBA program at Washington State University. After receiving his notice of acceptance, Norman travels to Pullman, Wash., and rents a room at Bates Motel for a week. Norman meets with students and professors and is impressed with the program, so he decides to enroll. However, before sending in his enrollment forms and required fees, Norman receives a letter from WSU stating: “We regret to inform you that, because of funding concerns, our Hotel Management program will be reduced by 25% this upcoming academic year. As a consequence, we must withdraw your acceptance letter at this time and transfer you to our waiting list.”
What, if any, of Norman’s property interests or liberty interests have been affected here?
Let’s assume Norman has a property interest in attending the Hotel Management MBA program at WSU, and was deprived of it by the withdrawal of his acceptance letter. How might we scrutinize WSU’s actions?
Dick is a bartender at “Packers,” a local sports bar named after a football team called the Green Bay Packers. Bret, who owns Packers, institutes a new rule requiring that all employees must wear a Green Bay Packers jersey on Sundays during football season. Dick, whose favorite team is the Chicago Bears, tells Bret he will not wear the jersey. Bret replies that he will fire Dick unless he complies with the rules of the bar. Despite Bret’s warning, Dick wears a Chicago Bears jersey to work on the first football Sunday of the season
Dick is a police officer for the City of Green Bay, home of a football team called the Packers. Bret, the Chief of Police, institutes a new rule requiring all police officers to wear Green Bay Packers jerseys on Sundays during football season, so as to support the local team. Dick, who grew up in Chicago and doesn’t like the Packers, tells Bret he will not wear a Packers jersey. Bret tells Dick that if he does not comply with the rules of the department he will be fired. Despite the warning, Dick wears a Chicago Bears jersey to work on the first football Sunday of the season.
Dick is a police officer for the City of Green Bay, home of a football team called the Packers. Bret, the Chief of Police, orders all officers to wear Green Bay Packers jerseys on Sundays during football season. The reason for the rule is to catch more crooks by blending in with fans attending the games. Dick, who grew up in Chicago and doesn’t like the Packers, tells Bret he will not wear the jersey. Bret tells Dick that if he does not comply with the rules of the department he will be fired. Despite this warning, Dick wears a Chicago Bears jersey to work on the first football Sunday of the season
Scenario #1: Bret can probably fire Dick for insubordination. There is no state action, and Dick’s right to free speech is not likely to protect him against a private employer.
Scenario #2: Bret probably cannot fire Dick because there is state action, and the rule requiring Dick to wear the Packer’s jersey appears arbitrary and potentially infringes on Dick’s freedom of speech.
Scenario #3: Bret can probably fire Dick. Here there rule is imposed for a non-arbitrary reason, and although the rule potentially infringes on Dicks’s freedom of speech, the speech does not involve a matter of public concern.
Albert Nuckolls of King County, Wash., enlists with the U.S. Navy. At boot camp, a drill sergeant accuses Albert of being a homosexual. Albert admits that his sexual preference is for men, but denies having engaged in any homosexual conduct. Albert’s court-martial finds that, because of his stated sexual preference, he is not fit to serve. Albert, dishonorably discharged from the Navy, returns to Kent and applies for a job with King County Metro Transit. His application is rejected “due to US Navy dishonorable discharge.”
Albert feels he has been unlawfully discriminated against on the basis of sexual orientation. What do you think?
How about RCW 49.60.030(1): “free[dom] from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of [a] disability [is] a civil right.”
Anti-Discrimination: Statutes Extend Civil Rights to Private Actors
Now Albert seeks assistance from Green Star, a temp agency that places unskilled workers into jobs in emerging “green collar” companies. GSV is a for-profit corporation that receives no government funding whatsoever. While filling out Green Star’s “Job-Match Worksheet,” Hal, the manger, asks Albert why he was in the Navy such a short period of time. Albert explains that he was discharged when his sexual preference became known. Over the next month, Albert is referred to only two temp jobs, each lasting three days, both doing office work for $9.00 per hour. Albert learns that Hal did not offer Albert several opportunities to work on outdoor, physical labor tasks paying $13.00 per hour. Albert calls Hal and asks why he wasn’t offered the outdoor labor tasks, and Hal replies that he “can’t afford to get a reputation of sending a bunch of gays to do a man’s job.”
Tony and Pete are 16-year-old, African-American twins. Both are straight-A high school students. Tony wants to be a doctor, and spends most of his afternoons volunteering at a local hospital. Pete is interested in politics and participates in the school debate team and forensics club. Neither have ever been in trouble with the law, but they do listen to gansta’ rap and like to use slang and “street” language between themselves. One day, Tony and Pete stopped at Bob’s Market on the way home from school, hoping to purchase Coca-Cola. However Bob, the proprietor, who had posted a sign above his cash register reading “We refuse the right to refuse service to anyone!!”, refused to permit Tony and Pete from entering the store. When Tony protested, Bob pointed to the sign and said, “No gang-banging in my store.”
Tony & Pete feel that Bob violated their civil rights. Do you agree?
(a) Statement of equal rights All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
“ I didn’t let those kids in because they looked like gang-bangers to me. I can tell by the way they look, the way they talk. Shoplifting’s a big problem in my business. Plus, you get the gangs in here, next thing you got drug deals on your doorstep, drive-by shootings, the whole nine. It don’ had nothing to do with race, color, nothing like that—I see two kids acting and talking the way they do, they don’t come in, end of story. I’ve kept out white kids, ‘spanic kids, Asian, it don’t make no difference to me. I got one rule: no gangs in my store, ever.”
Joe owns a studio unit at Immaculata Towers, a co-op project in Everett. Joe signs a contract to sell his unit to Yoon, a Korean-American woman. However, the contract falls through when Immaculata’s Co-Op Association denies Yoon permission to live in the building, on the grounds that Yoon was arrested in 2007 for burglary. The charges against Yoon were dismissed, but Immaculata’s resident policy prohibits anyone with “a felony arrest less than 5 years old” from living there. Snohomish County crime statistics show that for every white person arrested, 4 blacks, 2.5 Latinos, and 1.8 Asian-Americans are arrested. The same statistics show that only 1 woman was arrested for every 6 men in Snohomish County.
If Joe & Yoon challenge Immaculata’s policy on disparate impact grounds, how would a court evaluate their claim?
After moving to his new house in Bellevue, Joao asks his girlfriend Bebel to call Bellevue Water Department and set up a residential water service account. Judy, a customer service representative, answers. Judy asks why Joao did not call himself, and Bebel explains that Joao only speaks Portuguese. Judy replies that, per department policy, only the account holder can establish the account, and since Joao is unable to speak directly with Judy, he cannot establish the account by phone. Bebel offers to interpret but Judy refuses. Joao and Bebel then travel to the water department in person, and ask to set up the account. There, another customer service representative, Jodie, states that because Joao does not speak English, he cannot establish a water service account until he provides “proof of being here legally.” When Joao presents his Lawful Permanent Resident card, his water service is finally activated, but he is required to pay a $150 “high-risk surcharge.” When Joao asks why the reason for the surcharge, Jodie replies that “we consider non-citizens ‘high-risk’ because if people are deported they usually don’t pay the water bill.’”
Might Joao have any disparate impact claims in this situation?
Unlawful: “[t]o refuse to make reasonable accommodation in rules, policies, practices, or services when such accommodations may be necessary to afford a person with the presence of any sensory, mental, or physical disability and/or the use of a trained dog guide or service animal by a person who is blind, deaf, or physically disabled equal opportunity to use and enjoy a dwelling”
Reasonable Modifications: change the facility
Unlawful to “refus[e] to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the dwelling”
. . . that substantially impairs one or more major life activities . . .
. . . and which, in the instant case, is keeping a person from having equal access or enjoyment of housing (or services in connection therewith)
Reasonable Accommodations: Interactive Process
Duty to offer reasonable accommodation arises when housing provider becomes aware of facts that would cause a reasonable person to believe that the tenant’s disability interferes with equal access or enjoyment of dwelling
Usually, when tenant requests accommodation
Housing provider must make accommodation or offer an alternative, unless no reasonable accommodation is possible
Accommodation is “reasonable” if”
“ Could plausibly” overcome the problem posed by the disability;
No “undue financial or administrative burden” on provider;
No “fundamental alteration in program or service”
Parties to engage in good faith dialogue to come up with a suitable accommodation
In 2003, Darrell experienced an acute depressive episode, as a result of which he paid his rent late several months in a row, and was sued in landlord-tenant court. The case was settled and Darrell resumed that tenancy after a conservator was appointed to manage Darrell’s finances and pay his bills on time. In 2008, Darrell applied for rental housing from Larry’s Apartments, but his application was denied based on “poor rent-paying history,” solely because of the late payments in 2003. Upon learning of the denial, Darrell informs Larry that he suffers from certain mental health disorders that make him unable to work, and that caused the late rent payments in 2003, but Darrell explains that has paid his rent on time ever since with the help of the conservator. Darrell asks Larry to reconsider the rental application in light of this new information. Larry’s reply letter states: “Application to denied for poor rent-paying history. All decisions are final. “
How might Larry’s decision have run afoul of fair housing laws?