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    This is an action under the Fair Housing Act, 42 U.S.C. §§3601 et seq. ("the Act"). Plaintiff, a provider of housing for persons with Alzheimer's disease, alleges that the defendant Parish refused to make a reasonable accommodation to its zoning ordinance, as required by section 804(f)(3)(B) of the Act, 42 U.S.C. §3604(f)(3)(B), in order to permit plaintiff to open a residence for five persons with Alzheimer's at 5109 Elmwood Parkway in the Parish. Defendant's action (or inaction) is alleged to constitute discrimination on the basis of handicap.1

    In its Answer, the Parish contends (Answer at 2, Fifth Defense) that the Act is unconstitutional. The accompanying Notice pursuant to Local Rule 10.3 amplifies this assertion by reciting that the Act's "requirement that local governments make reasonable accommodations is unconstitutionally vague and constitutes an impermissible intrusion into the sovereignty of state and local government." As this brief demonstrates, the defense is not well founded.


    As Congress has recognized, the Attorney General has a paramount responsibility for defending the constitutionality of statutes enacted by Congress. 28 U.S.C. .2403(a) gives the United States an unqualified right "to intervene . . . for argument on the question of constitutionality" in any case in which such an issue is joined. As we have explained in a letter to this Court, we have not chosen to exercise this right at this time, because we do not wish to delay the early hearing on the merits which the Court has set. Instead, we hereby submit our defense of the statute as amicus curiae.2

    1. Section 804(f)(3)(B), which requires reasonable accommodations for the benefit of persons with handicaps, is not unconstitutionally vague

      Section 804(f)(3)(B) makes it illegal to refuse

      to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.3

      There is nothing vague about this provision.

      A statute is unconstitutionally vague if it does not give a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); United States v. Bird, 124 F.3d 667, 683 (5th Cir. 1997). A civil statute like the Fair Housing Act will be invalidated for vagueness only "where 'the exaction of obedience to a rule or standard . . . was so vague and indefinite as really to be no rule or standard at all . . .'" Boutilier v. INS, 387 U.S. 118, 123 (1967), quoting Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239 (1925).

      In the absence of any specification by defendant as to which part of the quoted language it believes to transgress this standard, we focus on the central phrase "reasonable accommodation." As Congress said when it enacted this provision, "[t]he concept of "reasonable accommodation" has a long history in regulations and case law dealing with discrimination on the basis of handicap," H.R. Rep. 100-711, Fair Housing Amendments Act of 1988 at 25, House Committee on the Judiciary (June 17, 1988); the report specifically cites the Rehabilitation Act and cases interpreting it, particularly Southeastern Community College v. Davis, 442 U.S. 397, 410, 412 (1979), which holds that an accommodation is reasonable if it does not impose "undue financial and administrative burdens" on the municipality or require a "fundamental alteration in the nature" of the program affected.

      In the past ten years, a number of courts have successfully applied the Southeastern Community College standard to situations such as this one, in which a provider of housing for persons with disabilities seeks an accommodation to a zoning ordinance. A clear consensus has emerged: an accommodation does not cause a fundamental alteration to the zoning scheme if its impact on its surroundings will be no greater than that of uses permitted by the ordinance. See, e.g.ReMed Recovery Care Centers v. Township of Willistown, 36 F.Supp.2d 676, 684-85 (E.D. Pa. 1999); Judy B. v. Borough of Tioga, 889 F. Supp. 792, 800 (M.D. Pa. 1995); United States v. City of Philadelphia, 838 F. Supp. 223, 228 (E.D. Pa. 1993), aff'd w/o opinion, 30 F.3d 1488 (1994).

      Moreover, Jefferson Parish could be expected to be more aware than a typical municipality of the judicial consensus as to the meaning of section 804(f)(3)(B), having been the defendant in one of the first cases applying this provision to a zoning ordinance. Parish of Jefferson v. Allied Health Care, Inc., C.A. No. 91-1199, 1992 U.S. Dist. LEXIS 9124 (E.D. La, June 10, 1992).4 We submit that the Parish, having had the benefit of Judge McNamara's interpretation of the statute, is in a very poor position to argue that it has not been given "a reasonable opportunity to know what is prohibited." Graynedsupra, 408 U.S. at 108. Section 804(f)(3)(B) is not vague.

    2. Congress was authorized by the Constitution to extend the protection of the Fair Housing Act to persons with disabilities.

      We take the Parish's claim that section 804(f)(3)(B) is "an impermissible intrusion into [its] sovereignty" as an assertion that the Constitution gives Congress no power to require that municipalities make reasonable accommodations to their zoning ordinances for the benefit of persons with disabilities. If this is what the Parish proposes to argue, it is wrong. Two separate portions of the Constitution authorized Congress to legislate to protect housing rights for persons with disabilities: The Fourteenth Amendment, and the Commerce Clause.5

      1. Prohibiting housing discrimination on the basis of handicap was a valid exercise of Congress's Fourteenth Amendment power.

        Section 5 of the Fourteenth Amendment empowers Congress to enact "appropriate legislation" to "enforce" the Equal Protection Clause. As the Supreme Court explained over a hundred years ago: Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

        Ex parte Virginia, 100 U.S. 339, 345-46 (1879). A statute is thus "appropriate legislation" to enforce the Equal Protection Clause if the statute "may be regarded as an enactment to enforce the Equal Protection Clause, [if] it is 'plainly adapted to that end' and [if] it is not prohibited by but is consistent with 'the letter and spirit of the constitution.'" Katzenbach v. Morgan, 384 U.S. 641, 651 (1966); Abril v. Virginia, 145 F.3d 182, 187 (4th Cir. 1998).

        The Parish asserts in its trial brief, at page 7, that The Act must stand or fall on the Commerce Clause, because the Fourteenth Amendment gives Congress no power to extend protection to persons with disabilities. This is wrong. The Supreme Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985), made clear that arbitrary government discrimination on the basis of disability is prohibited by the Equal Protection Clause. Although a majority declined to deem classifications on the basis of mental retardation as "quasi-suspect," it held that this did not leave persons with such disabilities "unprotected from invidious discrimination." id. at 446. Neither the Equal Protection Clause nor Congress' Section 5 authority is limited in its reach to suspect or quasi-suspect classifications. "The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918). Thus "arbitrary and irrational discrimination violates the Equal Protection Clause under even [the] most deferential standard of review." Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988).

        In Cleburne, the Supreme Court unanimously declared unconstitutional as invidious discrimination a decision by a city to deny a special use permit for the operation of a group home for people with mental retardation. A majority of the Court recognized that "through ignorance and prejudice [persons with disabilities] 'have been subjected to a history of unfair and often grotesque mistreatment.'" id. at 454 (Stevens, J., concurring); see id. at 461 (Marshall, J., concurring in the judgment in part). The Court acknowledged that "irrational prejudice," id. at 450, "irrational fears," id. at 455 (Stevens, J.), and "impermissible assumptions or outmoded and perhaps invidious stereotypes," id. at 465 (Marshall, J.), existed against people with disabilities in society at large and sometimes inappropriately infected government decision making.6

        Moreover, the Court of Appeals for this Circuit has held that the Fourteenth Amendment authorized Congress to prohibit discrimination on the basis of disability in a wide variety of contexts, in the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. Coolbaugh v. Louisiana, 136 F.3d 430, 438 (5th Cir.), cert. denied, 119 S.Ct. 58 (1998).7 Like the ADA, the Fair Housing Act is a constitutional exercise of Congress's power to enforce the Equal Protection Clause.

        As noted above, the reasonable accommodation provision of the FHA is drawn from the Rehabilitation Act. The ADA also borrows the reasonable accommodation requirement from the Rehabilitation Act, and also applies to zoning decisions. See Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997); Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, ___ F.3d ___, 1999 WL 351126 (9th Cir., Jun. 3, 1999).

        In Coolbaugh, the court upheld the entire ADA, including its various reasonable accommodation provisions, as valid Section 5 legislation. It noted Title I's reasonable accommodation provision and held that "Congress made specific judgments in particular circumstances as to what it perceived to be reasonable and appropriate to prevent unconstitutional discrimination," and that "[w]e cannot say, however, in light of the extensive findings of unconstitutional discrimination made by Congress, that these remedies are too sweeping to survive the [City of Boerne v.] Flores proportionality test for legislation that provides a remedy for unconstitutional discrimination or prevents threatened unconstitutional actions." 136 F.3d at 437.

        The Coolbaugh court quoted extensively from the detailed findings made by Congress as to the scope of the discrimination faced by persons with disabilities. Congress found that "some 43,000,000 Americans have one or more disabilities"; that "historically, society has tended to isolate and segregate individuals with disabilities," and this continues to be a problem"; that "discrimination against individuals with disabilities persists in such critical areas as . . . housing"; and that "individuals with disabilities continually encounter various forms of discrimination, including . . . failure to make modifications to existing . practices . . ." 42 U.S.C. §12101(a), quoted at 136 F.3d 435.

        The findings relied on by the Coolbaugh court provide equally compelling support for the 1988 Act. As courts have recognized, these two statutes are to be taken as mutually reinforcing parts of a whole. See United States v. Southern Management Corp., 955 F.2d 914 (4th Cir. 1992). While the Fair Housing Act does not contain explicit findings like those in the ADA, the legislative history makes clear that the legislative purpose was the same to overcome indivious discrimination based on stereotypes and prejudice and thus permit the integration of persons with disabilities into the larger society:

        The Fair Housing Amendments Act, like Section 504 of the Rehabilitation Act of 1973, as amended [footnote omitted], is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals.

        H.R. Rep. 100-711, supra, at 18.

        The Coolbaugh court went on to observe that the ADA was an appropriate Congressional response to the decision in Cleburne, which, it said, "identified Congress as the ideal governmental branch to make findings and decisions regarding the legal treatment of the disabled." 136 F.2d at 486, citing 473 U.S. at 442-43. Since the Fair Housing Act, as well as the ADA, specifically addressed the practice held to be unconstitutional in Cleburne - invidious discrimination in zoning against persons with disabilities - the rationale supporting the one equally supports the other. In short, the decision in Coolbaugh controls the outcome here. This Court should hold that the "reasonable accommodation" provision of the Fair Housing Act was an appropriate exercise of congressional power under the Fourteenth Amendment.

      2. Congress had power under the Commerce Clause to prohibit discrimination on the basis of handicap.

        Every Court of Appeal that has considered the issue has held that the 1888 Act, in extending the protection of the Fair Housing Act to new classes of persons, was a valid exercise of Congress's power under the Commerce Clause. Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.), cert. denied, 117 S.Ct. 65 (1996); Morgan v. HUD, 985 F.2d 1451 (10th Cir. 1993); Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030 (11th Cir. 1992).

        In United States v. Lopez, the Supreme Court recognized the continuing validity of its decisions holding that Congress may regulate conduct which, while strictly intrastate in character, has a cumulative effect, when taken as a whole, on interstate commerce. See, e.g.Wickard v. Filburn, 514 U.S. 111 (1942), which sustained Congress's power to regulate the production of wheat for the grower's own use. As the Lopez Court characterized that holding: "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." 514 U.S. at 560.8

        Congress in fact relied on the Commerce Clause, together with the Thirteenth and Fourteenth Amendments, as a principal basis for the original enactment, in 1968, of the Fair Housing Act. The legislative history of the original Act contains many references by its sponsors and supporters to both the Commerce Clause and the Fourteenth Amendment as authority for its enactment. In Senate hearings, the Attorney General testified that the legislation was independently authorized by both the Commerce Clause and Section Five of the Fourteenth Amendment, and submitted a memorandum from the Department of Justice in support of that conclusion. Fair Housing Act of 1967: Hearings on S. 1358, S. 2114, and S. 2280 Before the Subcomm. on Housing and Urban Affairs of the Senate Comm. on Banking and Currency, 90th Cong., 1st Sess. 6-14, 23-24 (1967) (1967 Senate Hearings) (statement of Ramsey Clark, Attorney General of the United States).9 The Attorney General testified that "the housing business is substantially interstate and subject to the commerce clause" because of the interstate movement of building materials, mortgage funds, and advertising, as well as the interstate movement of workers and their families. id. at 6; see also 13-14, 23-24.10

        The Subcommittee heard evidence of the effect of housing discrimination on interstate commerce. Robert C. Weaver, Secretary of Housing and Urban Development, testified that "racial restraints upon the housing market inhibit the free enterprise system and the natural growth of the housing sector of the economy." 1967 Senate Hearings at 37. Weaver and others also testified that local fair housing legislation was inadequate, and that federal fair housing legislation was needed in order to impose uniform requirements throughout metropolitan housing markets, which generally crossed municipal and even state boundaries. id. at 74-75.11 And the Subcommittee heard of difficulties individuals experienced due to housing discrimination after moving across state lines. id. at 112, 120- 26 (statement of Joseph L. Rauh, Jr., counsel for Leadership Conference on Civil Rights); 193-204 (statement of Lt. Carlos Campbell, U.S. Navy).

        The Senate and House sponsors of the legislation also argued during debate that it was authorized by the Commerce Clause and the Fourteenth Amendment. Senator Mondale, one of the Senate co- sponsors, submitted summaries of the constitutional arguments supporting the bill when he introduced it (114 Cong. Rec. 2273-74 (1968)) and during floor debate (id. at 2698-2703); see also 3421-22). Senators Tydings and Javits, supporters of the bill, also argued that it was authorized by the Fourteenth Amendment and the Commerce Clause. 114 Cong. Rec. 2534-2537 (1968) (Tydings); id. at 2705-2706 (Javits).

        Supporters of the bill in the House likewise argued that it was authorized by the Fourteenth Amendment and the Commerce Clause, both during hearings in the House Rules Committee and during floor debate. See To Prescribe Penalties for Certain Acts of Violence or Intimidation: Hearings on H. Res. 1100 Before the House of Representatives Committee on Rules, Pt. I, 90th Cong., 2d Sess., at 45-47 (statement of Rep. Emanuel Celler, Chairman, House Committee on the Judiciary) (Fourteenth Amendment); id. (Fourteenth Amendment and Commerce Clause); id.Pt. II, at 80-81 (1968) (Ray J. Madden) (Fourteenth Amendment and Commerce Clause); id. at 89-90 (Wm. M. McCulloch) (Commerce Clause); 114 Cong. Rec. 9561-9564 (Celler).

        When Congress amended the Fair Housing Act in 1988 to prohibit discrimination against handicapped persons, it was not necessary to examine anew the effect of discriminatory housing practices on interstate commerce. See Fullilove v. Klutznick, 448 U.S. 448, 503 (1980) (Powell, J. concurring). The Lopez court acknowledged the continuing validity of this principle while denying its applicability to the statute at issue there. 514 U.S. at 560. Congress's findings in this area are entitled to continuing deference by this Court.

        While the Supreme Court has never addressed the constitutional basis for the Fair Housing Act, it held in Russellv. United States, 471 U.S. 858 (1985) that the market in housing is in fact interstate in nature. There, the Supreme Court unanimously upheld a conviction under a federal criminal statute for the attempted arson of a two-unit apartment building:

        The rental of real estate is unquestionably [an activity that affects commerce.] We need not rely on the connection between the market for residential units and "the interstate movement of people," to recognize that the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties. The congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class.

        471 U.S. at 862 (footnotes omitted). The Court of Appeals for this Circuit, in United States v. Nguyen, 117 F.3d 796 (5th Cir. 1997), agreed that the validity of Russell was not undermined by the Supreme Court's subsequent decision in Lopez. See also United States v. Bird, 124 F.3d 667, 681-82 (5th Cir. 1997) (upholding constitutionality of Freedom of Access to Clinic Entrances Act on the basis of congressional findings regarding national market in abortion-related services).

        In Lopez, the Court held that the Commerce Clause could not sustain a statute which prohibited anyone to possess a firearm in a school zone. In the Court's opinion, Chief Justice Rehnquist observed that under the rationale put forward to support the challenged statute, "Congress could regulate any activity that it found was related to the economic productivity of individual citizens . . ." 514 U.S. at 564. Possession of a firearm in a school zone, he said,

        has nothing to do with "commerce" or any sort of economic enterprise . . . . It therefore cannot be sustained under our cases upholding regulations of activities that arise out of our are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

        id. at 561.

        By contrast, this case involves restrictions on the provision of housing, which is undoubtedly a commercial activity. As we understand the circumstances, the Parish's action is preventing plaintiff from completing the purchase of the Elmwood Parkway home, a commercial transaction, as well as from providing housing on the property, for money, to persons with Alzheimer's, an activity which is also commercial in nature.12

        We therefore submit that, in light of this Circuit's decisions in Nguyen and Bird, this Court should follow the Eighth, Tenth, and Eleventh Circuits in holding that the Fair Housing Act is a valid exercise of Congress's Commerce Clause powers.


    This Court should reject the Parish's contention that section 804(f)(3)(B) of the Fair Housing Act is unconstitutional, and should proceed to decide this case on the merits. We express no view as to what the outcome should be.

Respectfully submitted,

Brian F. Heffernan
Harvey L. Handley III
Housing and Civil Enforcement Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
(202) 514-4756

1 The Fair Housing Act gives the term "handicap" exactly the same meaning afforded the generally preferred term "disablity" in the subsequent American with Disabilities Act. The two terms are used interchangeably in this brief.

2 In this brief, we address only the issue of the constitutionality of the Fair Housing Act.

3 This provision was added to the Act, together with other protections for persons with disabilities, be the Fair Housing Amendments Act of 1988, sometimes referred to herein as "the 1988 Act." Neither section 804(f)(3)(B) nor its legislative history make specific references to zoning and land-use ordinances in connection with this provision. However, the Supreme Court's 1995 decision in City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) establishes that the statute's command applies to such regulations.

4 Since we understand that plaintiff in this action has furnished the Court with a copy of this decision, we will not add poundage to the Court's file by doing so again.

5 While Congress is not required to identify the constitutional authority by which it enacts legislation, see Ussery v. Louisiana, 150 F.3d 431, 436 (5th Cir. 1998), cert. dismissed, 119 S. Ct. 1161 (1999), the legislative history makes clear that Congress intended to exercise both its Section 5 and Commerce Clause authority in enacting the FHA, see infra, and in extending its protections to persons with disabilities, see H.R. Rep. No. 865, 96th Cong., 2d Sess. 8 n.32 (1980) ("extending the Fair Housing Act to cover the handicapped constitutes a permissible congressional enactment under both the 14th Amendment and the Commerce Clause")

6Cleburne dealt specifically with municipal discrimination against a residence for persons with mental retardation. The decision acknowledged, however, that persons with other disabilities, including those associated with aging, are subject to the same societal prejudices. See Coolbaugh v. State of Louisiana, 136 F.3d 430, 433 n.1 (5th Cir. 1998)

7 The specific question addressed in Coolbaugh — whether ADA was a valid abrogation of the immunity afforded states by the Eleventh Amendment, in light of City of Boerne v. Flores, 521 U.S. 507 (1997) and Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59, 65, 71 n.15 (1996) — does not arise in this case. A municipality such as Jefferson Parish is not protected by the Eleventh Amendment. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979); United States v. St. Bernard Parish, 756 F.2d 1116, 1126 (5th Cir. 1985), cert. denied, 474 U.S. 1070 (1986) ("It is settled law that the parishes are not protected from suit by the eleventh amendment.")

8 There is no basis for the Parish's assertion (Br. at 11) that because the land affected by zoning is "immovable," zoning is beyond the reach of the commerce clause. A minute's consideration will show that the impact of zoning on commerce is immense. The Parish's argument would lead to the conclusion that a municipality would be free to use its zoning authority to prohibit all interstate commerce within its borders.

9 The Department of Justice memorandum, which was later inserted into the record during floor debate in the Senate (114 Cong. Rec. 2534-2537 (1968)), cited data on the size of the housing industry ($27.6 billion in 1965 — more than the agriculture, forestry and fisheries industries combined), the "large portion of housing materials * * * shipped in interstate commerce," the significance of interstate mortgage lending, and the movement of American families across state lines (1 family in 30 each year). The memorandum found that housing discrimination restricted the number of new homes built and thus affected interstate commerce by limiting the interstate movement of materials and financing; and that discrimination inhibited the interstate movement of minority families and thus "the efficient allocation of labor among the interstate components of the economy." id. at 2536.

10 The Subcommittee also heard testimony from legal scholars and fair housing advocates that the Act was authorized by the Commerce Clause. 1967 Senate Hearings at 130-32 (statement of Rev. Robert F. Drinan, Dean, Boston College Law School); 132-33 (statement of Jefferson B. Fordham, Dean, University of Pennsylvania Law School); 162-64 (statement of Louis H. Pollak, Dean, Yale Law School); 228-31, 249-69 (statement of Sol Rabkin, National Committee Against Discrimination in Housing (NCDH)). A legal memorandum, submitted to the Subcommittee by NCDH, and concluding that the Act was authorized by the Commerce Clause and the Fourteenth Amendment, was later inserted into the record during floor debate in the Senate. 114 Cong. Rec. 2699-2703 (1968).

11 See 1967 Senate Hearings at 102 (statement of Roy Wilkins, Executive Director, NAACP); 366-67 (statement of Marvin Braiterman, Counsel for Commission on Social Justice of Reformed Judaism in America); 431-32 (statement of James H. Harvey, American Friends Service Committee); 487 (statement of William J. Levitt).

12 We hasten to add that we do not believe the undoubtedly commercial nature of the relationship between plaintiff and the prospective residents has a significant bearing on the issue of whether it is an appropriate activity for zoning purposes. Rental of homes to a families and individuals is undoubtedly a commercial transaction, but is universally regarded as an appropriate use in residential zones. > >

Updated August 6, 2015

Updated May 25, 2023