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 Phyliss Craig-Taylor

excerpted from: Phyliss Craig-Taylor,  To Be Free: Liberty, Citizenship, Property, and Race, 14 Harvard BlackLetter Law Journal 45-90, 73-86 (Spring, 1998)(291 Footnotes)

The promise of the Fair Housing Act (FHA) and the Equal Credit Opportunity Act (ECOA) to widen the playing field to allow African Americans greater access to property hinges on court implementation and interpretation. Implementation, exclusively, has been left largely in the hands of courts just as interpretation of the standards required for a plaintiff to successfully assert a claim of discrimination prohibited by the acts has been the venue of the courts.

Two aspects of implementation of both the FHA and the ECOA have generated controversy. One is whether evidence of a disparate impact, without evidence of an intent to discriminate, is sufficient to establish a violation. The second involves the standard of proof a defendant must satisfy to rebut a plaintiff's prima facie case of illegal lending discrimination based on disparate impact.

Common law involving lending discrimination claims brought under the FHA and the ECOA has utilized analogies to employment discrimination law under Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating on the basis of certain factors, such as sex or race. The legal doctrines used by courts to determine whether a facially neutral practice has a disparate impact on a protected class in violation of Title VII were developed by the United States Supreme Court in a series of cases beginning with Griggs v. Duke Power Co. In Griggs, black employees challenged the requirement of high school education or the passing of a standardized general intelligence test as a condition of employment or transfer under Title VII.

The Supreme Court reversed the Court of Appeals, holding that neither good intent nor the absence of discriminatory intent on the part of an employer will "redeem" employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups. The court's opinion supported the view that Title VII was aimed not only at motivation, but at the consequences of employment practices. Hence, it ruled that the requirements violated Title VII because they did not bear "demonstrable relationship to successful performance of the jobs for which [they were] used." The practice, though appearing neutral, had a discriminatory impact on a protected class under Title VII. Griggs, along with its progeny, clearly sets forth standards of proof applicable to a plaintiff seeking to establish a prima facie case by showing disparate impact and a defendant seeking to rebut a violation of Title VII.

Eighteen years after the ruling in Griggs, the Supreme Court decided Wards Cove Packaging Co. v. Antonio. In Wards Cove, nonwhite employees sued their employer cannery under Title VII, alleging that the employers' hiring and promotion practices caused a racially unbalanced work force. Assignment of work at the cannery placed the vast majority of whites in the higher paying non-cannery jobs, causing non-white workers to be over-represented in lower-paying cannery positions. In holding that the lower-paid non-white employees had the burden of proving that the employer's hiring and promotion practices had a statistically disparate impact on them, the Supreme Court modified the Griggs standard. The plaintiff was required to designate which policy or practice caused the disparity. Justice Stevens, in the dissent, addressed this additional proof standard wherein the plaintiff was required to define the specific policy and how it caused the alleged disparate impact:

It is elementary that a plaintiff cannot recover upon proof of injury alone; rather, a plaintiff must connect the injury to an act of the defendant in order to establish prima facie that the defendant is liable. Although the causal link must have substance, the act need not constitute the sole or primary cause of harm. Thus, in a disparate impact case, proof of numerous questionable practices ought to fortify an employee's assertion that the practices caused racial disparities. Ordinary principles of fairness require that Title VII actions be tried like "any lawsuit." The changes the majority makes today, tipping the scales in favor of employers, are not faithful to those principles.

With the possible application of this higher standard to plaintiffs attempting to establish a prima facie case of disparate impact in housing and lending discrimination cases, the burden placed on the complainant rises substantially, placing access to housing and lending farther out of reach. The increased difficulty or "tipping of scales" in proving discrimination in lending would leave many previously disenfranchised Americans with considerably less than what full citizenship imparts.

To date, the federal courts have not uniformly employed the standards of Griggs or Wards Cove in deciding disparate impact claims of discrimination in lending and housing. A plethora of proof standards have emerged from the circuit courts because the Supreme Court and Congress have declined to explicitly set forth such standards in the context of lending and housing. Some circuits have adopted a burden-shifting approach similar to that used in Title VII cases. Others have established a four-factor approach to determining whether a plaintiff has established a violation of the FHA on a disparate impact theory. In addition, the standards within a particular circuit often vary depending on whether a case involves a public or private plaintiff or defendant.

Further, bank regulatory agencies, the Department of Justice and the Department of Housing and Urban Development acknowledge the existence of these variant legal standards. The Policy Statement on Discrimination in Lending issued by ten federal agencies in April 1994 (the "Policy Statement") states that "the precise contours of the law on disparate impact as it applies to lending discrimination are under development."

B. The Establishment of a Prima Facie Case Based on Disparate Impact: Confusion in the Circuit Courts

Several circuits have analyzed disparate impact discrimination using a burden-shifting approach in Fair Housing Act (FHA) and Equal Credit Opportunity Act (ECOA) cases. The burden-shifting approach allows plaintiffs to establish a prima facie case of disparate impact discrimination using statistics to demonstrate that a facially neutral policy has a disproportionately adverse effect on a protected class. Courts addressing the issue of disparate impact analyze this statistical proof of discrimination in a variety of ways. For example, in Betsey v. Turtle Creek Associates, the Fourth Circuit held that disparate impact is established when "the policy in question had a disproportionate impact on the members of a protected class in the total group to which the policy was applied." In Betsey, the defendant partnership purchased the apartment buildings where the plaintiffs resided and instituted an all-adult policy in an effort to upgrade the property. Specifically, the defendant partnership attempted to prohibit children from living on the property. The plaintiffs argued that the policies were a deliberate and systematic effort to alter the racial composition of the complex and had a disproportionate impact on the minority tenants. In reviewing the record, the court stated that there is little question that the all-adult policy in question had a substantially greater adverse impact on the minorities in the total group of tenants to which the policies were applied. The percentage of non-whites harmed was greater than the percentage of whites harmed by adoption of the policy.

On the other hand, in Edwards v. Johnston County Health Department, another Fourth Circuit panel took an alternate approach. It found that in order for a facially neutral housing-related practice to have disparate impact on a protected class, the practice must have a greater negative effect on one group than another. The percentage of non-whites and whites harmed by the practice as compared to the percentage of non-whites and whites in the population is irrelevant. Instead, the critical question is whether the practice affects the non-whites more harshly than the whites. Assessment requires looking beyond the absolute numbers to analyze the disproportionate burden on minorities.

At issue in Edwards was whether the practice of issuing permits for the establishment of substandard migrant housing for non-white workers, despite the facilities' failure to meet state health and safety standards, violated the FHA. The Fourth Circuit court explained that in order to establish that a facially neutral, housing-related policy violates the FHA, the non-white plaintiffs must demonstrate that the policy either has a "greater adverse impact on one race than another or [that] it may perpetuate [ ] segregation and thereby prevent [ ] interracial association ...." Applying the Betsey test, the court reasoned that because white and non-white migrant workers suffered the same degree of harm by sharing the same housing, the plaintiff failed to make a showing of the first form of impact. The court further decided that "demonstrating a mere statistical imbalance" was insufficient to prove a policy has disparate impact where the majority of migrant workers are non-white, thereby necessarily affecting more non-whites than whites.

Furthermore, some of the courts that do accept a statistical showing of discrimination also require evidence that the defendant acted with discriminatory intent or purpose, which in effect nullifies disparate impact claims. Plaintiffs with evidence of discriminatory intent could establish a claim under the amendment without asserting disparate impact. The discriminatory intent or purpose requirement is inconsistent with the Policy Statement, which states that "[e]vidence of discriminatory intent is not necessary to establish that a policy or practice adopted or implemented by a lender that has disparate impact is in violation of the Fair Housing Act or the Equal Credit Opportunity Act."

Requiring a finding of discrimination further counters Congress's intent with respect to the ECOA. Unlike the FHA, which does not explicitly provide for a disparate impact claim, the disparate impact theory or the "effects test" of Griggs was expressly incorporated into the ECOA. In fact, the Board of Governors of the Federal Reserve System incorporated the disparate impact theory or the Griggs "effects test" into the ECOA, pursuant to Congressional instruction.

Unfortunately, when Congress amended the ECOA in 1976, it did not amend the text of the statute to provide for an effects test, leaving room for debate over the appropriate standard to be applied. The House and Senate committee reports indicate, however, the committees' desire that the Griggs "effects test" be applied by courts and administrative agencies in enforcing the ECOA. In its official commentary to Regulation B, the Federal Reserve Board states that it is not necessary for a plaintiff to show that a defendant has acted with intent to discriminate in order to prevail in a disparate impact claim. A facially neutral practice may violate the ECOA and Regulation B "even though the creditor has no intent to discriminate."

Subsequently, there have been attempts to amend the FHA and the ECOA in order to directly address the question of whether a plaintiff can prove a violation of either act based solely on a showing of disparate impact. One attempt was the McCollum Amendment, which sought to preclude proof based solely upon a disparate impact theory.

Although the McCollum Amendment was approved by the House Banking Subcommittee on Financial Institutions on June 14, 1995, it was rejected by the House Banking Committee. Therefore, the Amendment was not included in the Financial Institutions Regulatory Relief Act of 1995, adopted by the Pursuant to the proposed McCullom Amendment, a plaintiff asserting violations of the FHA or the ECOA based on disparate impact must also present evidence that the defendant acted with discriminatory intent.

Although the language of the proposed amendment raised the evidentiary burden for plaintiff's in housing and lending discrimination cases, it did not indicate the amount or type of evidence of discriminatory intent a plaintiff must present in order to prevail in a lending discrimination claim brought under the FHA or the ECOA. The requirement that a plaintiff present even a minimal amount of evidence of discriminatory intent might have a "chilling effect" on discrimination claims, since many plaintiffs would find it difficult to produce the "smoking gun" required to prove the defendant's intent. In these cases, it is the disproportionate negative impact that compels a finding of discrimination. In fact, it is this difficulty in proving discriminatory intent that allowing for a showing of disparate impact is designed to remedy.

Prior to Wards Cove, courts allowed plaintiffs to establish FHA violations without presenting any evidence of discriminatory intent expressly because of the practical difficulties in proving a defendant's motive. For instance, in Huntington Branch, NAACP v. Town of Huntington, the Second Circuit held that practical concerns militate against inclusion of intent in any disparate impact analysis. In Robinson v. 12 Lofts Realty, Inc., the Second Circuit pointed out that "clever men may easily conceal their motivations." Concealed motivation is especially relevant in disparate impact cases where facially neutral rules are being challenged. "Often, such rules bear no relation to discrimination upon passage, but develop into powerful discriminatory mechanisms when applied."

In light of the historical importance of property ownership, any mechanism that disproportionately impedes the access of a protected group of citizens to property necessitates a stabilizing remedy. The relevant issue is disparate impact, even without proof of discriminatory intent. Most courts before Wards Cove interpreted the FHA and the ECOA as potentially holding a creditor liable for unequal outcomes with respect to different groups, even if such outcomes were not the result of any discriminatory intent. However, a few courts have taken the position espoused by the McCollum Amendment. They contend that a defendant should not be liable for illegal lending discrimination unless there is some evidence that the defendant acted with discriminatory intent. For example, the district court in Brown v. Artery Organization, Inc., reasoned that the FHA requires proof that a private defendant acted with discriminatory intent. The court questioned the soundness of a rule that made private defendants liable for the discriminatory effects of their housing-related actions, irrespective of their purpose or intent. It would, in effect, "render them responsible for consequences over which they have no control." This approach disregards the private defendant's role in the development of the policy or practice in question, and his power to modify for a less discriminatory result.

Commentators and courts disagree on the extent to which to hold an actor responsible for the unintended, disparate impact of a practice or policy. However, when considering the equities involved, the argument that a creditor is liable for a facially neutral policy that has a disparate impact becomes stronger when one considers what is at stake--the dilution of citizenship. When disproportionate numbers of a protected class are locked out of essential mechanisms to access property, purposeful discrimination is not the central determination. The gravity of the harm to the protected group becomes the critical factor. If there is a neo-republican goal, requiring a plaintiff to prove that the defendant acted with discriminatory intent in order to establish a violation of the FHA or the ECOA contradicts a fundamental premise of fair lending policy. This area is one of such significance that defendants should be potentially liable for the discriminatory effects of facially neutral practices and policies that have a disparate impact on protected classes, regardless of intent or purpose. The McCollum Amendment drew a strong reaction from some members of Congress, including Rep. Maxine Waters (D-Cal.), who characterized the amendment as "[an] attack on our civil rights ... [which] would have created a loophole for a single industry from [sic] the standards Congress and the Federal Courts have determined are necessary to prohibit discrimination."

The fact that the House Banking Committee did not adopt the McCollum Amendment supports the position that plaintiffs do not have to offer evidence of a defendant's discriminatory intent to prove a violation of the FHA or the ECOA. However, in the absence of a ruling on this issue from the Supreme Court or a definitive statement from Congress as a whole, the debate over discriminatory intent remains unresolved.

C. Rebutting a Prima Facie Case Based on a Disparate Impact

Current regulatory and case law interpretations of the Federal Housing Act (FHA) and the Equal Credit Opportunity Act (ECOA) provide that not every practice or policy that has a disparate impact on a protected class constitutes illegal discrimination. Once a plaintiff has established a prima facie case of lending or housing discrimination based on disparate impact, the defendant has the opportunity to justify its use of the practice that produced the disparate impact. The burden of proof that the defendant must satisfy to rebut the plaintiff's prima facie case has been the subject of intense debate. Depending on the court or agency involved, defendants in FHA cases are required to meet standards of proof ranging from articulating a legitimate business reason for the challenged practice or policy to proving the policy serves a compelling interest. To date, the majority of ECOA case law indicates that defendants are required to prove that a challenged practice is a legitimate business need. The Policy Statement issued by the federal agencies provides that, in disparate impact claims under either the FHA or the ECOA, a lender must demonstrate that a challenged practice is a business necessity.

Initially, in the field of employment discrimination, Griggs established that a defendant could rebut a prima facie case of employment discrimination based on disparate impact by demonstrating that the challenged practice was a "business necessity." However, in 1989, the Supreme Court significantly modified the disparate impact standard as applied in Title VII cases in a controversial five-to-four decision in Wards Cove Packaging Company, Inc. v. Antonio. Wards Cove held that a defendant in a Title VII case could rebut a prima facie case of disparate impact by producing evidence that the challenged practice significantly served legitimate employment goals. Wards Cove expressly rejected a strict application of the business necessity standard, stating instead that a defendant need not prove that the challenged practice was "essential" or "indispensable" to its business.

In 1991, Congress enacted the Civil Rights Act and provided statutory guidelines for the adjudication of disparate impact suits under Title VII in order to reverse the more lenient standards set out in Wards Cove. The Civil Rights Act of 1991, although a compromise, was an attempt to raise the standard from merely any "legitimate employment goals" to a "business necessity." Congress believed that this and other rulings in Wards Cove had to be modified because they cut back drastically on the scope and effectiveness of civil rights protections, making existing protections and remedies inadequate to deter unlawful discrimination. Concerned that the "legitimate employment goals" standard announced in Wards Cove "seriously undermined the effectiveness of Title VII," Congress restored "business necessity" as the applicable legal standard in Title VII disparate impact cases.

The Civil Rights Act of 1991 mandated that an employment practice that has a disparate impact will not be deemed unlawful under Title VII if the defendant can "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity." Significantly, the Act is silent as to its applicability to cases of housing discrimination under the FHA. Because the courts have largely developed the current body of housing discrimination law under the FHA by analogy to the law of employment discrimination under Title VII, the Wards Cove holdings are potentially applicable to FHA cases.

The legal effect of the Civil Rights Act of 1991 on Wards Cove's applicability to FHA cases remains undetermined because Congress did not amend the Act to reflect the 1991 enactments in the employment area. It can be argued that Wards Cove is not binding authority since it was implicitly overturned by the Civil Rights Act of 1991. The current body of case law under the ECOA was also developed by analogy to Title VII case law. Therefore, the arguments regarding the applicability of Wards Cove and the Civil Rights Act of 1991 to the FHA can also be made regarding their applicability to the ECOA.

D. Recent Developments

Three recent developments--a regulatory revision to the Federal Reserve Board's (FRB) interpretations of Regulation B, a proposed amendment to the Equal Credit Opportunity Act (ECOA), and a decision by the Court of Appeals for the Tenth Circuit--have begun addressing the implications of Wards Cove and the Civil Rights Act of 1991 for the Fair Housing Act (FHA) and the ECOA. On December 29, 1994, the FRB published for comment proposed revisions (the "Proposal") to its official staff commentary (the "Commentary") to Regulation B, which implements the ECOA. The FRB proposed to add the following sentence to the Commentary:

[C]redit scoring systems that employ neutral factors could violate the act or regulation if there is a disparate impact on prohibited basis, unless the practice is justified by business necessity with no less discriminatory alternative available.

The Proposal was consistent with the language and interpretations of the Civil Rights Act of 1991, yet was inconsistent with a large portion of ECOA case law addressing this issue. The ECOA itself states that a creditor must show that a challenged practice meets "a legitimate business need," presumably a lower standard than "business necessity." Although "business necessity" has been defined in numerous ways, in this context it is given the Griggs interpretation. The Proposal would have clarified business necessity as the standard by which facially neutral practices with a disparate impact would be evaluated under the ECOA, without any direct action from Congress.

Commentators generally commended the FRB for attempting to clarify the doctrine of disparate impact, but expressed concern that the Proposal was an oversimplification of a complex evolving doctrine that could mislead examiners, private litigants and possibly the courts. On June 5, 1995, the FRB adopted final revisions to the Commentary, but the amendment did not include the proposed business necessity standard. Instead, the FRB added language to the Commentary, which referenced the burdens of proof contained in the Civil Rights Act of 1991. This reference to the Act indirectly appears to impose the same business necessity standard mentioned in the Proposal. The section into which this reference was placed, however, continues to refer to legitimate business need as the relevant standard for defending an ECOA claim. Despite this apparent conflict, the amendment to the Commentary does not discuss the FRB's view of the interplay between a "business necessity" standard and a "legitimate business need" standard.

Since the FRB, ultimately, did not adopt the Proposal to the Commentary, the debate on the Commentary revisions and the sequence of events around it is of uncertain significance. The debate around clarification continues. Legislation to amend the ECOA by adopting a business necessity standard (the Hinchey Amendment) was proposed during the 104th congressional session. The Hinchey Amendment was approved by the House Banking Committee and was included in H.R. 1858, the Financial Institutions Regulatory Relief Act. The Hinchey Amendment would amend the ECOA.

As proposed, the Hinchey Amendment would require a creditor who used a credit-scoring system that included a factor that had a disparate impact on a prohibited basis to prove that the use of the challenged factor was a business necessity and that no less discriminatory alternative to the challenged factor was available. If enacted, the amendment would change the ECOA in a way that is arguably inconsistent with the current FRB and judicial interpretations of the ECOA by imposing a business necessity, rather than a legitimate business need, standard on creditors. The Hinchey Amendment is also significant in that, if enacted, it would provide express support for the proposition that the ECOA could be violated on a disparate impact theory of discrimination, which in the context of the FHA and the ECOA has existed only as a court-made rule. The Amendment would also resolve the question of which party in a disparate impact suit under the ECOA bears the burden of proving that no less discriminatory alternatives to a challenged practice exist by placing this burden on the plaintiff. The House Banking Committee report that accompanies H.R. 1858 states that, with respect to the Hinchey Amendment:

The term business necessity as well as the duty of showing a less discriminatory alternative shall be construed consistent with U.S. Supreme Court precedent such as v. Duke Power Company, 401 U.S. 424 (1971) and Albemarle Paper Company v. Moody 422 U.S. 405 (1975).

In Albemarle Paper Company, a Title VII case, the Supreme Court ruled that once an employer has demonstrated that the challenged employment criteria are job related, the plaintiff may then "show that other tests or selection devices, without a similarly undesirable [discriminatory] effect, would also serve the employer's legitimate interest ...." In this case, a class of African American paper mill employees brought suit, contending that the defendant plant owner used a pre-employment testing program in a discriminatory manner. At issue was whether the defendant had shown its tests to be job related, that is, whether the tests had a manifest relationship to the employment in question. The court held that while the complainant has the initial burden of showing that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants, the employer has the burden of proving that its pre-employment tests are job related. If the employer can do this, the burden shifts back to the complainant who must then show that other tests or selection devices would serve the employer's legitimate interest without a racially discriminatory effect.

Although the majority of decisions in both the employment and housing discrimination fields have held that the plaintiff must prove that a less discriminatory alternative exists, a few courts have placed this burden on the defendant. In addition, even the Hinchey Amendment did not specify which party in an FHA or ECOA case has the burden of proving that no less discriminatory alternative exists. Placing this burden on the defendant is both fair and logical. The plaintiff has the manageable burden of proving a positive--that the act has a disparate impact. The defendant shoulders the burden of proving the action taken was a necessity.

On May 30, 1995, the Court of Appeals for the Tenth Circuit issued a decision in Mountain Side Mobile Estates Partnership v. Secretary of Housing and Urban Development, which addressed, among other things, the appropriate standard of proof in a housing discrimination claim under the FHA based on disparate impact. In a two-to-one ruling, the Tenth Circuit panel found that HUD Secretary Cisneros had correctly concluded that the defendant in a disparate impact case needed to demonstrate that a challenged practice was a "business necessity" but had improperly exceeded the "business necessity" standard enunciated in Title VII cases when it required the defendant trailer park in Mountain Side to demonstrate that the challenged practice, an occupancy limit, was a "compelling need or necessity." Instead, the Tenth Circuit held that Griggs and the Civil Rights Act of 1991 require that "the defendant must demonstrate that the discriminatory practice has a 'manifest relationship' to the housing in question. A mere insubstantial justification in this regard will not suffice, because such a low standard would permit discrimination to be practiced through the use of spurious, seemingly neutral practices." At the same time, there is no requirement that the defendant establish a "compelling need or necessity" for the challenged practice to pass muster since this degree of scrutiny would be almost impossible to satisfy.

Thus, if a plaintiff in a lending discrimination case under the FHA first established a prima facie case based on a disparate impact, then the Tenth Circuit would require the lender to show that the challenged lending practice had a "manifest relationship" to the credit product(s) in question. For example, if it were found that a lender's policy of refusing to offer home mortgages with a loan-to-value ratio greater than 80% had a disparate impact on a protected class of mortgage applicants, a lender could justify its use of this policy by demonstrating that applicants who made a 20% down payment on a home were less likely to default than those who did not. Therefore, the 80% loan-to-value ratio requirement has a "manifest relationship" to home mortgages. However, a lender might encounter difficulty in proving that an 80% loan-to-value ratio policy was a business necessity in areas where other lenders extended home mortgages with a ninety or 95% loan-to-value ratio and whose operations remained viable. Thus, any remote risk of default, although having a "manifest relationship" to lending, would not reach the level of "business necessity." Even though the Tenth Circuit stated that the "manifest relationship" standard was required by the Supreme Court and by the Civil Rights Act of 1991, the Act clearly could be interpreted as imposing a more demanding standard on a defendant.

The McCollum and Hinchey Amendments have posed questions for Congress concerning what standards a plaintiff and a defendant must meet to establish or rebut a violation of the FHA or the ECOA. These questions have focused attention on issues that are the subject of conflicting circuit court opinions. In addition, developments such as the FRB's revisions to the Commentary and the Mountain Side decision may lead to further consideration by the courts of the implications of the Civil Rights Act of 1991 for the FHA and the ECOA. Hopefully, this consideration will yield some meaningful guidance for the future.

The passage of a series of anti-discrimination laws provided a framework of negative sanctions and penalties for proven discriminatory behavior in the public and private sectors. However, the approach seems to embody significant practical limitations and philosophical weaknesses.

Negative sanctions are an extremely weak method for deterring institutionalized discriminatory actions, which are deeply ingrained and practiced by an overwhelming majority of institutions and individuals. Applying the sanctions becomes increasingly problematic when the behavior is so long standing that it becomes "normal." Given the multiple opportunities for discriminatory actions throughout the lending and real estate process, discrimination is often difficult and costly to prove. The costs and difficulties increase when the acts are not overt or intentionally discriminatory, but instead are omissions or failures to take the next steps or provide options or new information.

One important method for proving unintentional institutional discrimination is disparate impact. The use of disparate impact methodology seems to have a limited theoretical underpinning to center its empirical analysis. This limitation undermines the confidence of some courts to use it as a proxy for finding discrimination.

To situate the anti-discrimination law framework in an individually initiated complaint context fails to address the accumulated economic and social capital accumulation of white Americans that was achieved as a result of the multi- generational system of discrimination in property accumulation. This may represent the most telling limitation of the legal complaint strategy: how to level the playing field after nearly 200 years of inequality and discrimination.

[a1]. This work is one in a series that will explore issues of wealth and property ownership in the African American community. It explores the historical interplay of social norms, discrimination, executive branch policies and judicial decisions affecting accumulation of property in the African American community. Subsequent pieces will focus in more detail on specific and crucial time frames.

[aa1]. Assistant Professor of Law, University of Florida College of Law.

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