Housing Discrimination and the Mentally Ill: The Impact of Federal Law
Petrila, John, Developments in Mental Health Law
In 1984, the American Psychiatric Association (APA) published a report on housing and the treatment of people who were homeless and mentally ill (Lamb, 1984). The APA report stressed the importance of housing in enabling people with mental illness to live successfully in the community. Prior to the report's publication, many mental health professionals viewed housing as a social welfare issue: important, but not a responsibility of treating professionals. The report effectively eliminated that distinction.
Since then, a number of studies have reaffirmed the critical role that housing plays in community-based treatment (Baker and Douglas, 1990; Fields, 1990; Ridgway and Zipple, 1990). Surveys of primary consumers of mental health services and their families consistently suggest that stable housing is often more important than mental health treatment to successful community residence (Harp, 1993; Tanzman, 1993; Tanzman, Wilson, and Yoe, 1992).
Despite the critical importance of housing, people with mental illness often have difficulty in obtaining access to it. A major obstacle to access is discrimination (Alisky and Iczkowski, 1990; Trute, Tefft, and Segall, 1990) often based on fear of people with disabilities and on concern that property values will decrease if people with mental illness move into a neighborhood (Ellis, 1992; Boydell, Trainor, and Pierri, 1989). State and municipal laws also have created barriers to housing by imposing special requirements and restrictions for the location and operation of housing for people with disabilities; the United States Supreme Court created a legal environment in which at least some restrictions might survive legal challenge by ruling in 1985 that it would review equal protection challenges to such restrictions under the "rational basis" test, the judicial test most likely to result in the upholding of governmental action (City of Cleburne, 1985).
In 1988, Congress enacted the Fair Housing Act Amendments (FHAA) in an effort to counter such discrimination. The FHAA is one of two major civil rights bills passed by Congress in recent years. The other is the Americans with Disabilities Act (ADA), enacted in 1990 and barring discrimination on the basis of disability in employment, public accommodation, transportation, and telecommunication. These statutes represent a marked philosophic change toward people with disability. The FHAA and the ADA assume that people will be able to live successful lives despite a disability. In contrast, the underlying paternalistic stance of traditional social welfare legislation assumes that people will be wards of the state because of disability (Morin, 1990).
Congress enacted the FHAA for two reasons. First, it intended to strengthen enforcement of the original Fair Housing Act of 1968, which had prohibited discrimination in housing on the basis of race, color, religion, or national origin. In a typical year, the Department of Housing and Urban Development (HUD) receives fewer than 5,000 complaints alleging housing discrimination, a figure estimated to be less than one percent of the annual incidents of housing discrimination (Recent Developments, 1989). Senator Kennedy, one of the sponsors of the FHAA, referred to the enforcement provisions of the original Fair Housing Act as a "toothless tiger." In response, the FHAA provides HUD and the United States Attorney General's Office with additional enforcement powers.
Second, Congress extended the protections of the Fair Housing Act to people with a "handicap" (the ADA uses the term "disability" rather than "handicap" though the words are given identical definitions in the FHAA and the ADA). Congress had two goals in prohibiting discrimination on the basis of handicap. The first was to enable people with disabilities to gain access to housing in the community of their choice free from discrimination, and the second was to create a "national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream," using housing as a vehicle for accomplishing this objective (Kushner, 1989; House Report, 1988). …