The Fair Housing Amendments Act (FHAA) which in 1988 amended the Fair Housing Act (FHA), is the principal federal law dealing with housing discrimination against people with disabilities. The FHAA's statement of policy, found at 42 U.S.C. § 3601, says, "It is the general policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States." The FHAA was the result of an increasing federal role in addressing housing discrimination that began in the civil rights movement of the 1960s with the FHA, and expanded for 20 years thereafter to eventually result in prohibitions against discrimination toward people with disabilities. This chapter gives a brief history of the FHA and the FHAA, and provides an overview of the mechanics of the FHAA and the prohibitions and requirements contained in the act. This chapter further discusses other important laws—the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, the Fourteenth Amendment to the U.S. Constitution, and a variety of state laws—which have significant bearing on discrimination against people with disabilities.
History of the Fair Housing Act and FHAA
The FHA is codified at 42 U.S.C. §§ 3601-3619 and § 3631, or Title VIII of the Civil Rights Act (the FHA and FHAA are commonly referred to as simply "Title VIII"). The portion of the act dealing specifically with discrimination based on disability is codified at 42 U.S.C. § 3604(f), and is frequently referred to as the FHAA, because the disability provisions were added after the passage of the initial FHA.
General Structure of the Federal Housing Amendments Act
The FHA has three major sections. The first section contains general provisions. These general provisions include the statement of policy, as well as definitions of 15 terms or phrases. Terms or phrases with definitional importance for this book include "dwelling," "discriminatory housing practice," and "handicap." The second section of the FHA sets forth the substantive provisions of the act. The key substantive provisions of the law are the prohibition against "mak[ing] unavailable or deny[ing]" housing to a prospective resident on the basis of "race, color, religion, sex, familial status or national origin."1 Substantive provisions relating to housing discrimination against people with disabilities can be found at section 3604(f), which also requires that the parties make "reasonable accommodation" for those people with disabilities to obtain housing.2 The third major section of the act details the enforcement provisions of the act, including options for legal action by those discriminated against, and their right to attorneys' fees. All of these major sections of the act are covered in greater detail in this chapter.
History of the Fair Housing Act
The original FHA was passed in 1968 following three years of legislative wrangling between the White House and Congress over housing discrimination.3 The three-year period leading up to the act's passage was marked by several significant events in the civil rights movement. Violent race riots swept through major American cities, including Newark and Detroit, in the summer of 1967. In 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis. Racial unrest was at its peak during the time in which the FHA was being considered.
President Lyndon B. Johnson proposed fair housing legislation as early as 1966, but that legislation was eventually filibustered in the Senate and failed to move forward. In 1967, a similar legislative package was taken up by the House Judiciary Committee but failed to receive favorable action. The bill that eventually passed the House of Representatives was a limited one containing special provisions for civil rights workers but nothing more. That bill was not considered by the Senate in the 1967 session. In 1968, the Senate took up consideration of the 1967 legislation, and Senator Everett Dirksen of Illinois eventually drew up a compromise bill for the House and Senate. The Dirksen bill, however, was again filibustered in the Senate.
A major milestone in the fight for the passage of a fair housing law occurred on March 1, 1968, when the Report of the National Advisory Commission on Civil Disorders, commonly known as the Kerner Report, was released.4 The report highlighted the massive racial tensions that existed across the United States, and found that one of the greatest problems facing American cities was inadequate housing conditions for inner-city black families. The report recommended major policy initiatives toward removing barriers to fair housing.5 Quick action in Congress followed the report's release. After just three days of consideration, the Senate voted cloture on the filibuster blocking the proposed Dirksen bill, making way for the Senate to pass the FHA on March 11, 1968, by a 71—20 margin. The bill passed the House of Representatives on April 10, 1968, by a 250—172 vote. Because both houses of Congress considered the FHA for such a short time period, the act has a famously sparse legislative history, which has troubled many courts dealing with FHA challenges.
Legal Treatment of Housing for People with Disabilities Before the FHAA
People with disabilities did not receive fair housing protection under the original Title VIII passed in 1968. However, courts, state legislatures, and even the federal government were dealing with housing discrimination against those with disabilities prior to congressional involvement. As discussed in Chapter 1, President John F. Kennedy was responsible for drawing federal attention to the problems faced by people with disabilities in the early 1960s. In 1966, President Johnson signed an executive order creating the President's Commission on Mental Retardation,6 which was responsible for analyzing and reporting on the status and conditions of people with disabilities in the United States. The first major federal legislative action dealing with disabilities was the Rehabilitation Act of 1973, which, among other things, disallowed discrimination against people with disabilities in federal programs (see more on the Rehabilitation Act below).
The courts took a proactive stance toward housing discrimination against people with disabilities. The most notable pre-FHAA court case came in 1985, when the U.S. Supreme Court considered City of Cleburne v. Cleburne Living Center.7 The City of Cleburne, Texas, had enacted a special use permit requirement in its zoning code for "homes for the feeble-minded" in an apartment zoning district that otherwise permitted hospitals and sanitariums. The city denied a special use permit to the plaintiff, a group living center for individuals with cognitive disabilities. The group home operator challenged the municipality's code on Fourteenth Amendment Equal Protection Clause grounds and sought a determination that people with disabilities were a "quasi-suspect" class,8 and thus that regulations aimed specifically at people with disabilities should be entitled to heightened judicial scrutiny.9
After the Fifth Circuit Court of Appeals determined that disability was a quasi-suspect class demanding a higher level ofjudicial scrutiny, the case was appealed to the Supreme Court. The U.S. Supreme Court reversed the Fifth Circuit's decision, and instead found that people with disabilities were not a quasi-suspect class,10 imposing a lower level of scrutiny and a presumption in favor of the governmental regulation in question—requiring only a showing that the regulation was rationally related to a legitimate governmental interest. Despite the Court's finding that people with disabilities were not a quasi-suspect class, the Court held that the city's denial of a special use permit did not meet rational-basis scrutiny because the city failed to demonstrate a legitimate governmental interest for the denial. Furthermore, the denial of the permit to the group home did not meet the rational relationship prong of the test, because the city allowed hospitals and sanitariums in the district while disallowing group homes. Justice Byron White, writing for the majority, said, "mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like."11 Cleburne was thus only a partial victory for people with disabilities facing housing discrimination; although the Constitution barred blatant and unsubstantiated discrimination against people with disabilities, the Supreme Court found that the Constitution does not grant people with disabilities the additional protection granted to other suspect or quasi-suspect classes, such as race or sex.12
State legislatures were also active in the fight against housing discrimination based on disability. By the mid-1980s, some states had passed laws prohibiting local zoning codes from actively discriminating against people with disabilities.13 The legislatures in some states found that, in the wake of the deinstitutionalization of people with mental health issues and cognitive disabilities, group homes were being restricted from residential areas, and many states took action. While these statutes varied in their requirements, many of them limited the ability of local governments to exclude small group homes from residential zoning districts.14 Furthermore, state antidiscrimination statutes, many of which were modeled after the 1968 FHA, expressly barred and voided restrictive covenants attached to deeds and other property transfer instruments that restricted the establishment of group homes.15 Current state laws dealing with discrimination against people with disabilities are discussed later in this chapter.
Passage of the Fair Housing Amendments Act
The FHAA—used interchangeably in this book with the terms "Amendments Act" and "the act"—was passed...
