Subcommittee Hearing on H.R. 589: Fair Housing and Freedom of Speech Act of 1997
April 17, 1997
Testimony by Paul F. Hancock
Civil Rights Division
Acting Deputy Assistant Attorney General
Mr. Chairman and members of the Subcommittee, thank you for the opportunity to present the views of the Department of Justice on H.R. 589, a bill introduced by Congressman Bilbray of California to amend the Fair Housing Act. My name is Paul Hancock, and I am an Acting Deputy Assistant Attorney General for the Civil Rights Division. Before assuming this position last month, I served since 1988 as the Chief of the Housing and Civil Enforcement Section of the Division, and thus had responsibility for implementing and managing enforcement of the Fair Housing Act and its 1988 Amendments. As you know, the Department last year presented testimony regarding a similar bill by Mr. Bilbray before this Subcommittee, and before the Senate Banking Subcommittee on HUD Oversight and Structure on a bill introduced by Senator Faircloth.
The Administration's view on these bills remains the same. We strongly oppose enactment of H.R. 589. I have attached to this statement the testimony of former Assistant Attorney General Deval L. Patrick on the similar bill introduced last year by Senator Faircloth, as the testimony fully lays out the Administration's opposition to bills of this nature. Like the bills introduced in the last Congress, H.R. 589 would hamper our ability to enforce the Fair Housing Act to ensure equal opportunity in housing for all people.
I would like to provide the Subcommittee with a few additional observations on H.R. 589.
The first section of this bill would amend Section 807(b)(1) of the Act to enable localities to restrict the maximum number of unrelated persons in a dwelling and to restrict the proximity of dwellings "in connection with the occupancy of a dwelling unit by a convicted felon, sex offender, or recovering drug addict, if the purpose of the restriction is to restrict land use to single family dwellings."
This bill has the unfortunate effect of raising unwarranted fears that the Fair Housing Act currently forces single family neighborhoods to accept potentially dangerous individuals. Let me make clear that the Fair Housing Act has never restricted local communities from placing occupancy or spacing restrictions on single family dwellings with convicted felons and sex offenders. Convicted felons and sex offenders are not protected categories under the Fair Housing Act. The Fair Housing Act prohibits discrimination on the basis of race, color, national origin, religion, sex, handicap or familial status. Being a felon or sex offender is not a "handicap" as defined in the Fair Housing Act or in HUD's implementing regulations. The Fair Housing Act also provides additional protection for the safety of landlords and neighbors by explicitly excluding from coverage anyone "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."
Let me be clear: felons and sex offenders are not covered by the Fair Housing Act, and we know of no cases in which protections have been provided under the Act to these groups.
Let me also be clear about this: current drug users, drug dealers and drug manufacturers are not protected by the Fair Housing Act, and again, we know of no cases in which persons have been afforded protection under the Act on these bases.
The only real issue in this section is the Fair Housing Act's application to recovering drug addicts. When Congress amended the Fair Housing Act in 1988, it included the longstanding recognition of drug addiction as a handicap, and took steps to protect those who were recovering from addiction. At the same time, Congress made clear that current users of drugs are outside the definition of handicap in the Act, and would not be entitled to protection as persons with a handicap.
At the time Congress acted to protect persons recovering from drug addiction, many Members of Congress noted that drug addiction happens throughout society, without regard for race, gender, religion, class, or social standing. Many noted at the time that without this protection, even someone like a former First Lady who had been addicted to, but no longer used, prescription drugs, could be subject to discrimination.
The Administration opposes this section of H.R. 589 because it would seriously damage this nation's on-going fight against the scourge of drugs. A crucial component of this fight is allowing former drug addicts to live together in recovery in supportive, family-like settings. In the 1988 Anti-Drug Abuse Act, Congress provided funding to set up group homes, where former drug addicts live together in single-family dwellings, sharing household chores and household expenses, attending Narcotics Anonymous meetings together, and, most importantly, ensuring that each fellow resident maintains a drug-free lifestyle. Residents at these group homes know that if they relapse they will be expelled immediately.
Under this bill, a locality could limit the number of unrelated former drug users in a single family dwelling to as few as two persons, thereby making such rental housing unaffordable for recovering drug addicts who often work low-paying service sector jobs. In this way, a locality could effectively exclude all such group homes.
Providing the infrastructure necessary for recovery from addiction is a vital part of our national drug control strategy, and the current protections of the Fair Housing Act are an important part of that effort. We urge the Subcommittee to consult with other appropriate government agencies and private organizations that deal with this difficult issue before taking action that will have such a negative impact upon coordinated public and private efforts to provide treatment to individuals recovering from drug addiction.
H.R. 589 also proposes adding a new section to the Fair Housing Act to protect persons who file lawsuits, or engage in otherwise lawful activity, "solely for the purpose of -- (1) achieving or preventing action by a governmental entity or official; or (2) receiving an interpretation of any provision of this Act in a court of competent jurisdiction."
We understand this section is designed to address the concern that the Fair Housing Act has been used to infringe upon the First Amendment rights of persons to express their views to government officials, a concern first brought to national attention by the Department of Housing and Urban Development's investigation in a Berkeley, California case. In response to that justifiable concern, HUD issued guidelines in September 1994 covering the interplay of the First Amendment and its fair housing investigations. As we stated last year, the Department of Justice agrees with those guidelines and follows the same principles in enforcing the Fair Housing Act.
Let me again repeat the standards that govern our work in this sensitive area. The First Amendment plainly protects the rights of all citizens to express their views on housing issues in a peaceful manner by speaking out at public meetings, submitting petitions to government agencies, writing letters to elected officials, or filing legitimate lawsuits. Thus, we have never, and will never, challenge those activities as violations of the Fair Housing Act. No statutory amendment is necessary to protect the First Amendment rights of citizens who seek legitimately to use the judicial process.
However, this does not mean that all lawsuits enjoy First Amendment protection. As a unanimous Supreme Court stated: "Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). Indeed, it is well established that courts may sanction litigants and their attorneys for filing baseless, malicious or abusive lawsuits under existing tort law and under Rule 11 of the Federal Rules of Civil Procedure.
In only four cases over the past eight years, the Department of Justice has enforced the Fair Housing Act against individuals who filed lawsuits that lacked a reasonable basis in law or fact and that sought an illegal objective -- precisely those type of lawsuits that are not protected by the First Amendment. We have not, and will not, contend that a meritorious lawsuit, or one that reasonably could have been thought to be meritorious, was filed in violation of the Fair Housing Act. This standard provides ample protection for First Amendment rights while ensuring our ability to safeguard housing opportunities for all individuals.
However, the sweeping language of H.R. 589 would have the unintended consequence of protecting any lawsuit -- no matter how baseless, and even where filed solely to intimidate persons of another race from obtaining housing -- from a Fair Housing Act challenge. Every lawsuit is brought to "achiev[e] * * * action by a governmental entity or official" namely, a ruling by a court or judge. Every lawsuit implicating fair housing issues can be characterized by plaintiffs and their attorneys as an effort to "receiv[e] an interpretation of any provision of this Act." This bill appears to give Congressional imprimatur to the filing of frivolous and baseless lawsuits.
For example, this bill would protect just the sort of lawsuit that the Department successfully challenged in United States v. Wagner. In that case, a group of Fort Worth neighbors filed a state court lawsuit to block a family from selling their house to a non-profit county mental retardation agency, which wanted to use it as a group home for six retarded children. The neighbors' attorney, who lived next door to the proposed group home, filed that lawsuit even though he and the neighbors knew beforehand that both the Texas Property Code and the Fair Housing Act gave persons with retardation the right to live in neighborhoods with single family deed restrictions. The neighbors dropped their baseless lawsuit only after the sellers hired an attorney to defend their interests. By that time, however, the sellers had incurred over $3500 in legal expenses and suffered emotional distress. After hearing all the evidence in a three-day trial, the federal court ruled that the neighbor's lawsuit violated the Fair Housing Act and was not entitled to First Amendment immunity because it had been filed without a reasonable basis in law or fact and with an illegal objective. The court subsequently awarded damages to the sellers for their out-of-pocket expenses and emotional distress, as well as punitive damages against three of the defendants.
Finally, let me stress, as we did in testimony last year, that the Department has made efforts to work with municipalities to address their concerns about what is required by the Fair Housing Act. We met with representatives of the National League of Cities and the National Conference of Mayors, and sent a very detailed letter to the League of Cities answering their questions on the basic requirements of the Act. I have attached this letter to my statement. We believe that any misunderstandings regarding the scope or application of the Act are more effectively addressed by cooperative efforts between units of government rather than by additional unnecessary legislation. We welcome the opportunity to provide further assistance in the future.
In conclusion, H.R. 589 would limit sharply the ability of former drug addicts to form the stable, supportive living arrangements in single-family neighborhoods that have proved to be highly effective in advancing recovery and preventing relapse. In addition, H.R. 589 would be overly protective of baseless lawsuits at the expense of victims of housing discrimination. We believe both changes are unwarranted and strongly oppose enactment of H.R. 589.
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