The Equal Protection Project (EqualProtect.org) has challenged over 275 institutions regarding over 800 programs and scholarships.We have paved the way to also challenge campus race- and ethnicity-based housing by filing complaints under the Fair Housing Act (FHA) at the Department of Housing and Urban Development, which has jurisdiction over FHA violations. Two of our complaints, against the University of Connecticut and University of Minnesota (Twin Cities) already have resulted in HUD opening formal investigations, the first big step in any case. See our prior post, HUD Moves Against Race-Focused College Housing After Complaints by Equal Protection Project.We have filed a third complaint, against the University of Nevada, Reno (UNR).From the UNR HUD Complaint:
This is a federal civil rights complaint and request for investigation against the University of Nevada, Reno (“UNR”) submitted pursuant to the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity (“FHEO”) discrimination complaint resolution procedures….We bring this complaint and request for investigation against UNR for operating four discriminatory university housing programs that use race- and ethnicity-based descriptions and promotional materials to steer students based on race, color, and national origin, in violation of the Fair Housing Act (“FHA”). Moreover, the programs are each named utilizing the racial identities of their suggested racial participants:
• Asian Pacific Islanders;• Black Scholars;• “Indigenous;” and• Latinx.2
These discriminatory housing programs violate the FHA, Title VI of the Civil Rights Act of 1964, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
We go on to detail the facts as to each program, and why such programs constitute unlawful “steering” even if other racial and ethnic groups are not physically barred.
Under the FHA, it is unlawful to “make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.”6 Under applicable Department of Housing and Urban Development (HUD) regulations enforcing the FHA, this kind of “steering” toward or away from housing based on race is strictly prohibited.7 Steering liability attaches even if the housing program does not physically bar members of other racial or ethnic groups from participating.Specifically, where ads or other publicly available information to potential applicants would cause a reasonable non-member of a given group to conclude that a given program is not intended for them, likely causing them to forgo applying, such steering violates the FHA. Even subtle messaging can convey these kinds of discriminatory preferences and steer potential applicants away. Ragin v. New York Times Co., 923 F.2d 995, 999–1000 (2d Cir. 1991); Jancik v. Dep’t of Hous. & Urb. Dev., 44 F.3d 553, 556 (7th Cir. 1995); Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th Cir.1991); Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.Cir.1990); United States v. Hunter, 459 F.2d 205, 215 (4th Cir. 1981)….UNR’s identity-based Living Learning Communities (“ILLCs”) are university-sponsored residential programs that allow students to live together while participating in shared programming centered on a common identity. According to UNR, these communities are intended to create spaces where students can “engage in an appreciation of a shared identity” and “boost students’ sense of belonging” by connecting them with peers, the Multicultural Center, identity-based affinity groups, and other campus resources. Although UNR offers many residential communities organized around academic disciplines or other broadly shared interests, it also operates several identity-based ILLCs whose stated missions and promotional materials are directed toward students of particular racial or ethnic backgrounds.8In 2021, the Executive Director of Residential Life, Housing and Food Services stated that, for UNR’s identity-based communities, only students “who hold that identity” would be considered because, “for the safety of student participants, it is important only students who hold that identity are considered.”9 After that statement became public, the University asserted that the official had “misspoke” and clarified that the identity-based ILLCs are “open to any and all students living on campus.”10 Nonetheless, as discussed below, UNR’s current promotional materials continue to use race- and ethnicity-based descriptions and identity-specific messaging that would lead an ordinary prospective student to understand these communities as intended for students of particular racial or ethnic identities.
In many programs at UNR and elsewhere we encounter a perfunctory statement that the housing is open to all students. But such a defense in the face of racial and ethnic steering, is not a legal excuse under the FHA:
UNR’s discriminatory ILLC Programs encourage, and/or deter, students from dormitory housing based on race, color, national origin, and therefore violate multiple provisions of federal law. Most obviously, these programs violate the Fair Housing Act because they classify and promote university housing based on race and national origin. Even if HUD were to conclude that the programs are not formally exclusionary, they independently violate the Act’s prohibition on discriminatory housing statements and racial steering.Steering is “not an outright refusal to rent to a person within a class of people protected by the statute; rather it consists of efforts to deprive a protected home seeker of housing opportunities in certain locations.” Fair Housing Congress v. Weber, 993 F. Supp. 1286, 1293 (C.D.Cal.1997). Instead, as applicable here, illegal steering consists of “communicating to any prospective [resident] that he or she would not be comfortable or compatible with existing residents of a community, neighborhood or development.”20Under this standard, no discriminatory intent is required by the seller or renter. Jancik v. HUD, 44 F.3d 553, 556 (7th Cir. 1995). Instead, whether a given statement constitutes illegal steering is whether the statement suggests a preference to “the ordinary reader or listener.” United States v. Hunter, 459 F.2d 205, 215 (4th Cir.); Ragin, 923 F.2d at 1002 (An “ordinary reader is neither the most suspicious nor the most insensitive of our citizenry.”); Hous. Rts. Ctr. v. Donald Sterling Corp., 274 F. Supp. 2d 1129, 1138 (C.D. Cal.), aff’d sub nom., Hous. Rts. Ctr. v. Sterling, 84 F. App’x 801 (9th Cir. 2003) (quoting Ragin, 923 F.2d at 999.The disclaimer that the ILLCs are “open to all students living on campus” is not legally exculpatory given the pervasive race- and ethnicity-based promotion and signaling. Race- and ethnicity-based signaling is unlawful even if other groups are not absolutely excluded, much like the Asian students in the SFFA case, infra, suffered unlawful discrimination even though not completely excluded. If anything, this perfunctory disclaimer reflects a consciousness of guilt that UNR recognizes its housing practices are unlawful.Despite the University’s claim that these housing programs are “open to any and all students,” all information that UNR provides on its housing website describing its discriminatory ILLC Programs clearly suggests a preference for a particular race, color and/or national origin. This information steers individuals (“ordinary readers”) towards and away from dormitory housing based on these preferences in violation of the FHA. This is true even if UNR in fact has no discriminatory intent.
The use of the FHA through HUD complaints reflects how innovative EPP is in rooting out the DEI discrimination that permeates campuses.
Reminder: we are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.
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