Ninth Circuit Notes Split Re Standard for Determining the Propriety of Justifications for Facial Discrimination under the FHA

Per Community House, Inc. v. City of Boise, --- F.3d ----, 2007 WL 1651315 (9th Cir. June 08, 2007):

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.