Ninth Circuit Weighs in on Split Re Standard for Determining the Propriety of Justifications for Facial Discrimination under the Fair Housing Act

Per Community House, Inc. v. City of Boise, Idaho, 468 F.3d 1118 (9th Cir. Nov. 09, 2006):

We have not previously adopted a standard for determining the propriety or acceptability of justifications for facial discrimination under the Fair Housing Act. The circuits that have addressed this issue are split. The Eighth Circuit employs the same standards for analyzing a defendant's rationales in challenges under the Fair Housing Act as it applies to claims under the Equal Protection Clause. See Oxford House-C v. City of St. Louis, 77 F.3d 249, 252 (8th Cir.1996) (applying rational basis review to a defendant's proffered justifications for an ordinance that facially discriminated against disabled persons); Familystyle of St. Paul v. City of St. Paul, 923 F.2d 91, 94 (8th Cir.1991) (same). The Sixth and Tenth Circuits employ a more searching method of analysis. To allow the circumstance of facial discrimination under the Sixth and Tenth Circuits' approach, a defendant must show either: (1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes. See Larkin, 89 F.3d at 290; Bangerter, 46 F.3d at 1503-04.

We will follow the standard adopted by the Sixth and Tenth Circuits, which standard is, we believe, more in line with the Supreme Court's analysis in Johnson Controls. Moreover, the Eighth Circuit's approach is inappropriate for Fair Housing Act claims because some classes of persons specifically protected by the Fair Housing Act, such as families and the handicapped, are not protected classes for constitutional purposes. See Bangerter, 46 F.3d at 1503; Children's Alliance, 950 F.Supp. at 1497-98.