Legislative History Last statutory technique in course

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)

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

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

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

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

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?

FHA Definition of “Handicap”: Recap FHA § 3602(h): "Handicap" means, with respect to a person— 1. a physical or mental impairment which substantially limits one or more of such person's major life activities, 2. a record of having such an impairment, or 3. being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance….

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).

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).

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).

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 Arline that adopted this reading of “regarded as” clause • Now Arline rule well-established for FHAA both in cases and in HUD regulation

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. ”

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.

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

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

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

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?

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?

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

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? )

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

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

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.

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

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”?

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

MAY & JUNE 1968

Sirhan

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

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…

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 • Dfdt refused to allow.

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…

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

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

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 Dfdt OK – Three part test

REASONABLE ACCOMMODATIONS Davis test: Requested accommodation is unreasonable if: 1. Undue Hardship (harm to others disproportionate to benefit to claimant) 2. Substantial Burden 3. Fundamental Alteration in Nature of Program

REASONABLE ACCOMMODATIONS Davis test: Requested accommodation is unreasonable if: 1. Undue Hardship 2. Substantial Burden (Harm to others too great) 3. Fundamental Alteration in Nature of Program

REASONABLE ACCOMMODATIONS Davis test: Requested accommodation is unreasonable if: 1. Undue Hardship 2. Substantial Burden 3. Fundamental Alteration in Nature of Program (effects of having exceptions to policy too great)

REASONABLE ACCOMMODATIONS As Congdon makes 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”

REASONABLE ACCOMMODATIONS: Shapiro v. Cadman Towers • Ptff has Multiple Sclerosis • Co-op where she lives: some parking spaces, allocated 1 st come 1 st serve • Ptff requests parking space immediately. • Denied by Co-op Board (must stay on wait list) • DCt grants prelim inj. on reas accom claim

REASONABLE ACCOMMODATIONS: Shapiro v. Cadman Towers DQ 104: 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

REASONABLE ACCOMMODATIONS: Shapiro v. Cadman Towers DQ 104: 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?

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 1. Nearby parking is substantial part of use & enjoyment of dwelling: 2. W/o parking: risk of injury, infection, humiliation

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

REASONABLE ACCOMMODATIONS: Shapiro v. Cadman Towers DQ 108: 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?

REASONABLE ACCOMMODATIONS: Shapiro v. Cadman Towers DQ 108: 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?

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

REASONABLE ACCOMMODATIONS: Congdon v. Strine Reas. Accom. Analysis • Not clear any accomm requested besides fix elevator • Ct characterizes request as replace elevator • Ct doesn’t analyze tightly with respect to language of the three prongs of Davis test, but concludes not reasonable

REASONABLE ACCOMMODATIONS: Congdon v. Strine Reas. Accom. Analysis • Court focuses on 3 facts: 1. Offer of 1 st floor apt 2. Cost of new elevator too great 3. Ps have month-to-month tenancy, so no commitment to staying in complex • Suggests doing “undue hardship” (weighing burden on others ag benefits to Ps) – low benefits from new elevator b/c good alternative and can leave at any time – v. High cost to O and other tenants

REASONABLE ACCOMMODATIONS: Congdon v. Strine Questions?

COURSE SELECTION: PREPARATION • Become Familiar with Registration Procedures – Especially Wait Listing • Become Familiar with Graduation Requirements • Read Course Descriptions (on line) • Read Course Evaluations (Circulation Desk)

COURSE SELECTION: 2 L FALL SEMESTER • Not Sophomore Year in College – No Need to Get All “Basic Courses” Out of the Way Early – No Need to Take Heavy Load • You Won’t Get Everything You Want, Especially if Afternoon Registration Time –. Basic Courses very thin right now (could change later) – Check My. UM in advance for course status – Prepare Alternatives

COURSE SELECTION: HOW TO CHOOSE 1. Becoming a Well-Rounded Lawyer 2. Resume Management 3. Taking Care of Yourself

Becoming a Well-Rounded Lawyer Administrative Law: Business Associations: Evidence: Federal Income Tax I: Substantive Criminal Law: Trusts & Estates: U. S. Constitutional Law II: At Least One Comparative/International Course (E. g. , International Law, Comparative Law, International Business Transactions) • At Least One Course Addressing a Complex Statute: (E. g. , Commercial Law, Bankruptcy, Environmental Law, Employment or Housing Discrimination) • •

Becoming a Well-Rounded Lawyer The Bar Exam: Becoming a Practicing Lawyer • Bar Review Courses Will Give You Version You Need for Bar • Mildly Helpful to Have Had the Material Before • Matters Less the Better You Are at Law School Exams

RESUME MANAGEMENT • Preparing for a Specialty Area – Check Lists On Registrar’s Page – Not a College Major • Putting Yourself in the Best Light – Alternate Forms of Evaluation • Writing Papers • Lawyering Skills – Schedules That Facilitate Your Doing Well

TAKING CARE OF YOURSELF • Balance in Course Selection – # of Exams or Papers – Likely Size of Classes – One Subject You Really Want to Take • Comfortable Daily/Weekly Schedule • Choose Professors Rather Than Course Titles – Check course evaluations if available

FINAL POINTS • There’s likely to be a lot of Wait List movement this fall • Employers Care Much Less Than You’d Imagine • Talk to Me & Other Faculty

Happy Holidays!