Legislative History

1. Legislative History • Last statutory technique in course. • Common to look at: • Statements from floor debates • Committee reports • Earlier drafts of statute • Amendments (both adopted and rejected)

2. Legislative History • Keen/Scalia Objection: • Legislature only voted on final text, not on any of the background statements • Impossible to know if a majority of legislators agreed with any interpretive comment

3. Legislative History • Factors that go to weight given: • Consistent with text of statute? • Likelihood that legislators considered • Committee Reports > Indiv. Statements • Bill Sponsor > Other Speakers

4. Legislative History • Factors that go to weight given: • Blatt Policy Community more likely than others to create reliable legisl. history • Where Political Community/negotiated compromises at issue, less useful

5. Legislative History • Factors that go to weight given: • Type of point made from legis. history • Good evidence that legislators aware of a particular problem • Less good on how problem should be resolved, especially indiv. statements

6. Legislative History DQ 111: For Wednesday • Imagine a debate between Keen and Foster: Should courts use legislative history (LH) to interpret statutes? • Be prepared to argue whether/why the use of LH in each of the listed cases seems sensible (helpful for Foster) or problematic (helpful for Keen). Qs?

7. FHA Definition of “Handicap”: Recap FHA §3602(h): "Handicap" means, with respect to a person— • a physical or mental impairment which substantially limits one or more of such person's major life activities, • a record of having such an impairment, or • being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance….

8. FHA Definition of “Handicap”: Recap FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: • Perception re existence of impairment: A perception that someone has an impairment that substantially limits a major life activity (SLMLA) when the person doesn’t have (or may not have) the impairment in question (Franklin Building).

9. FHA Definition of “Handicap”: Recap FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: • Perception re existence of impairment • Perception re effect of impairment: When someone actually has an impairment, a perception that the impairment SLMLA when it doesn’t (or may not).

10. FHA Definition of “Handicap”: Recap FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: • Perception re existence of impairment • Perception re effect of impairment • Limitations due to prejudice: When someone has an impairment that SLMLA because of the irrational prejudices of others (Arline; Baxter; Southern Management).

11. FHA Definition of “Handicap”: Recap FHA §3602(h)(3): “Handicap means, with respect to a person … being regarded as having such an impairment….” Can include: Limitations due to prejudice: • Baxter: Congress intended FHAA to follow USSCt interpretation of Rehab Act in Arlinethat adopted this reading of “regarded as” clause • Now Arlinerule well-established for FHAA both in cases and in HUD regulation

12. FHA Definition of “Handicap”: Baxter HIV & Public Safety Defense FHA §3604(f)(9): Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”

13. FHA Definition of “Handicap”: Baxter HIV & Public Safety Defense • D raised §3604(f)(9) as a defense, arguing that having HIV positive individuals (especially drug users) in neighborhood would pose a threat to health of others. • TCt made findings of fact • In this context, HIV created no threat to health or safety • No threat from current drug users, because not accepting them as residents.

14. FHA Definition of “Handicap”: Baxter Evidence of Discriminatory Intent • Lot of evidence of improper concerns by Board • Can add to info from Rizzo re proving intent by gov’t entity

15. FHA Definition of “Handicap”: Baxter Evidence of Discriminatory Intent: Some Highlights • Evidence Not Deciding Based on Record • Repeated Qs re IV Drug Users, Although Told Would be Screened Out • Expressed Concern re Director’s Lack of Qualifications, But Had No Info • Heavy Focus on Danger to Nearby Junior High (Stereotyping v. Evidence • Board’s Findings Look Like Conclusory Application of Legal Tests • Abnormal Procedure: • Overruling Local Alderman • At Zoning Board, No Spoken Opposition, But Unanimous Denial

16. FHA Definition of “Handicap”: Franklin Building Theory of Case • P wants to build housing for the elderly • D (City) denies P certificate necessary for project • P argues discrim. against elderly can fall under “regarded as” prong of definition of “handicap” • First type of “regarded as claim” • Perception re existence of impairment • Claim is that D rejects elderly b/c of belief that they will be significantly disabled

17. FHA Definition of “Handicap”: Franklin Building Theory: First type of “regarded as” claim: D rejects elderly b/c of belief that they will be disabled. Problem with: Is every case of housing discrim. against elderly actionable as FHA “handicap” case?

18. FHA Definition of “Handicap”: Franklin Building Theory: First type of “regarded as” claim: D rejects elderly b/c of belief that they will be disabled. Problem with: Is every case of housing discrim. against elderly actionable as FHA “handicap” case? Statutory interpretation concern: • Congress has explicitly prohibited age discrimination in employment (ADEA) but hasn’t done so for housing. • Is theory in Franklin really an attempt to create a claim Congress didn’t want?

19. FHA Definition of “Handicap”: Franklin Building Theory: First type of “regarded as” claim: D rejects elderly b/c of belief that they will be disabled. Problem with: Is every case of housing discrim. against elderly actionable as FHA “handicap” case? Statutory interpretation concern: • Congress has explicitly prohibited age discrimination in employment (ADEA) but hasn’t done so for housing. • Is Franklin really an attempt to create a claim Congress didn’t want? Maybe OK if require specific evidence tying rejection of elderly to concerns about disabilities. Here there is: • Statements re likely disabilities of residents • Qs as to how medical needs would be met

20. FHA Definition of “Handicap”: Franklin Building Specific evidence tying rejection of elderly to concerns about disabilities: Could examine D’s stated reason for rejecting project: “inconsistent w economic development of Ocean City as a resort community.” Why inconsistent? • Maybe about perceived disability • Maybe about inconsistency w marketing as fashionable resort • Maybe: “Last resort” argument: “Whether they’re healthy or not, old people are depressing to younger people; remind people of aging & death; not consistent w resort atmosphere” (Is this perceived disability or something else?)

21. FHA Definition of “Handicap”: Southern Management Treats discrim against recovering addicts as an Arline-type “regarded as” claim: SLMLA b/c of prejudice of others. • As evidence of this, the court uses the interference with access to housing in the case itself. • Feels circular b/c suggests that any discrim against a group with a real or perceived impairment will be enough to create claim

22. FHA Definition of “Handicap”: Southern Management Treats discrim against recovering addicts as an Arline-type “regarded as” claim: SLMLA b/c of prejudice of others. • As evidence, court uses interference with access to housing in the case itself. • Feels circular However, although court doesn’t say this explicitly, definition requires a “substantial limitation.” • Thus, a single idiosycratic rejection not enough to be SLMLA • Would need to show that prejudice pretty widespread • Likely true for recovering addicts or for HIV in 1980s

23. FHA Definition of “Handicap”: Southern Management To fit definition even under Arline theory, need to show that addiction is an “impairment” • Condition must be one Congress intended to cover. • Might argue that addiction is a kind of immorality or character flaw rather than a physical or mental impairment.

24. FHA Definition of “Handicap”: Southern Management Evidence that addiction is an “impairment”: • Explicit statutory exclusion suggests Congress believes addicts would covered otherwise • Legislative History suggests addicts covered • HUD Regs include on list of impairments • Almost certainly current consensus of med/psych establishment

25. FHA Definition of “Handicap”: Southern Management Meaning of Statutory Exclusion: FHA §3602(h): “‘Handicap’ … does not include current, illegal use of or addiction to a controlled substance….” Does someone who has had an addiction but is currently not using have a “handicap”?

26. FHA Definition of “Handicap”: Southern Management “‘Handicap’ … does not include current, illegal use of or addiction to a controlled substance….” Does someone who has had an addiction but is currently not using have a “handicap”? • Does “current” modify “addiction” or just “illegal use”? • We use “addict” in two ways, like “alcoholic.” • Can mean currently using • Can mean a permanent condition (regardless of behavior) • Court is comfortable that legisl history shows intent to protect addicts who aren’t currently using

27. MAY & JUNE1968

30. Sirhan Sirhan

31. RFK Waiting for the Ambulance at the Ambassador Hotel (6/5/68)

33. REASONABLE ACCOMMODATIONS FHA §3604(f)(3): For purposes of this subsection, discrimination includes— (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling…

34. REASONABLE ACCOMMODATIONS Basic Structure of Claim • People w X disability do not have equal opportunity to obtain and enjoy housing under existing neutral policy • Claimant requested a specific exception to policy to make use of the housing possible • Dfdtrefused to allow.

35. REASONABLE ACCOMMODATIONS KEY ELEMENTS OF CLAIM: NECESSITY & REASONABLENESS FHA §3604(f)(3): For purposes of this subsection, discrimination includes— (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling…

36. REASONABLE ACCOMMODATIONS NECESSITY & REASONABLENESS Necessity: Is some accommodation necessary for person w particular disability to enjoy or have = access to housing

37. REASONABLE ACCOMMODATIONS NECESSITY & REASONABLENESS Necessity: Is some accommodation necessary for person w particular disability to enjoy or have = access to housing

38. REASONABLE ACCOMMODATIONS NECESSITY & REASONABLENESS • Reasonableness: Is the suggested accommodation reasonable • Leading case on meaning: Davis (Rehab Act §504) cited in Shapiro & Congdon: • Some costs on DfdtOK • Three part test

39. REASONABLE ACCOMMODATIONS Davis test: Requested accommodation is unreasonable if: • Undue Hardship (harm to others disproportionate to benefit to claimant) • Substantial Burden • Fundamental Alteration in Nature of Program

40. REASONABLE ACCOMMODATIONS Davis test: Requested accommodation is unreasonable if: • Undue Hardship • Substantial Burden (Harm to others too great) • Fundamental Alteration in Nature of Program

41. REASONABLE ACCOMMODATIONS Davis test: Requested accommodation is unreasonable if: • Undue Hardship • Substantial Burden • Fundamental Alteration in Nature of Program (effects of having exceptions to policy too great)

42. REASONABLE ACCOMMODATIONS As Congdonmakes clear: • Dfdt can also prevail by providing alternative accommodation that reasonably takes care of problem • Implicit: alternative makes claimant’s proposed accommodation no longer “necessary”

43. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers • Ptffhas Multiple Sclerosis • Co-op where she lives: some parking spaces, allocated 1st come 1st serve • Ptffrequests parking space immediately. • Denied by Co-op Board (must stay on wait list) • DCtgrants prelim inj. on reasaccom claim

44. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers DQ104: Challenges to Findings of Fact (Clearly erroneous standard. See Marable) • P is not disabled • Accomm. not necessary; she can get an operation • Accomm. not necessary; street parking is available

45. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers DQ104: Challenges to Findings of Fact (Clearly erroneous standard. See Marable). D claims: • P is not disabled • Accomm. not necessary; she can get an operation • Accomm. not necessary; street parking is available Why might a lawyer choose not to raise these on appeal? Any harm in trying?

46. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers “Necessary” is easy here given Findings of Fact • P is disabled • Operation is dangerous • Street parking is not available • Nearby parking is substantial part of use & enjoyment of dwelling: • W/o parking: risk of injury, infection, humiliation

47. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers Court decides meaning of “Reasonable” • Chooses to follow Rehab Act (not Title VII) • Explicitly adopts Davis standards • Rejects D argument that regs only allow for trivial burdens

48. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers DQ108: Hard Q: Does FHA require the coop to give her parking space if it displaces another resident. Absent creative work by Co-op: Either • Some other resident tenant has to lose parking space & go back on wait list OR • Some resident who was about to get spot has to wait for next opening Should court force co-op to do this?

49. REASONABLE ACCOMMODATIONS:Shapiro v. Cadman Towers DQ108: Hard Q: Does FHA require the coop to give her parking space if it displaces another resident. Should court force co-op to do this? • Jumping in front of line pretty common accomm. • BUT employment cases protect job seniority • If Co-op has to spend money … • spread over a lot of owners, so likely small amt each • but nothing in statute or regs tells you how much $$ is unreasonable. Qs on Shapiro?

50. REASONABLE ACCOMMODATIONS:Congdon v. Strine Significance of Offer of First Floor Apt.: Review of Fact Issues • Costs of moving ($ + time& who pays) • Differences betw the apts (noise; view; size; amenities) • Ct doesn’t appear to have relevant info before it: lawyering failure