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Magner v. Gallagher

What Constitutes Housing Discrimination?


The U.S. Supreme Court was set to consider whether a policy that appears neutral on its face but in implementation disproportionately affects protected classes of people (a legal test known as “disparate impact”) violates federal housing law. However, before oral argument occurred the petitioner dismissed its appeal.


AARP’s friend of the court brief in Magner v. Gallagher argued that disparate impact should be included under the federal Fair Housing Act (FHA) because it is necessary to affect the law’s intent. As the brief notes, Congress explicitly intended the FHA to address discrimination in zoning and land use policies that “have the effect of limiting the ability of such individuals to live in the residence of their choice in the community” even if the offending laws were not intended to discriminate.

The FHA’s prohibition against discrimination based on disability is especially important to the goal of aging in place. AARP’s brief cited cases (including those brought by AARP attorneys) in which older residents in rental housing, age restricted, assisted living and continuing care retirement communities challenged exclusionary rules that appeared nondiscriminatory but had a discriminatory effect.

In addition to submitting AARP’s brief in Magner, AARP Foundation Litigation attorneys represent residents challenging a 2003 Mount Holly, N.J., redevelopment plan that calls for the acquisition by eminent domain and subsequent demolition of hundreds of homes in “the Gardens,” a cohesive, racially integrated, ethnically diverse community built in the 1950s. Only 20 percent of Gardens residents are white (compared with 66 percent for all of Mount Holly), 90 percent have annual incomes of less than $40,000, one in seven is age 65 or older. The redevelopment plan hits the older homeowners (especially those on fixed incomes who have paid off their mortgages) particularly hard because they will never find a replacement house for the value of their current paid-off house. Despite challenges to the plan, the Township began acquiring and vacating properties, causing neighborhood deterioration and dropping property values of the holdout homeowners.

Under the disparate impact analysis, the residents established that there was an adverse disparate impact on African American and Hispanic residents. Following the logic argued in Magner, the Township would now be required to show that there was a legitimate justification for the redevelopment plan. If it could, the next step would be to determine if there are any less discriminatory alternative methods to accomplishing that purpose. This was precisely what the U.S. Court of Appeals for the Third Circuit’s ruled in the Mount Holly case, but then stayed that decision pending a ruling on Magner.

After the appeal to the Supreme Court was withdrawn, taking Magner off the table, the Mount Holly case will now proceed in the District Court.

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Find the most recent cases in which AFL has advocated in courts nationwide for the rights of older persons, and filed AARP’s amicus curiae (“friend of the court”) briefs that help courts decide precedent-setting cases.

Strengthening Law and Policy through
Legal Advocacy

Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect more than 15 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four priority areas: Hunger, Income, Housing and Isolation, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.