trained in how to evacuate the house and how to use the fire extinguishers; and all staff members are trained in first aid and CPR. (Pls.' 12(M) PP 28; Pls.' 12(M), Ex. I, Samuel test. at 42.)
Before the County Health Department selects a person to live at 408 Braemer Court, the Department assesses his or her ability to function appropriately in the home. When a new resident arrives at the home, the staff administers a "capability for self-preservation" test, which involves recognizing danger signals, knowing what to do in the event of a fire, and running through evacuation procedures. A new resident must repeat this test until he or she passes. The home conducts an initial evacuation drill for all residents. Within sixty days of the initial drill, the home conducts an unannounced evacuation from the house, usually from a sleeping area.
The longest it has ever taken to evacuate a group home run by the County Health Department was one and one-half minutes. The home at 408 Braemer Court was evacuated in 25 seconds, from sleep. (Pls.' 12(M) PP 29-30; Pls.' 12(M), Ex. I, Samuel test. at 43, 46.)
The Alliance, Chris Doe, and Judy Doe allege that Naperville, its fire chief, its mayor, and six members of its City Council have violated the Fair Housing Amendments Act of 1988. Plaintiffs move for summary judgment. Defendants move for dismissal or summary judgment.
A court renders summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The court will not render summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
On a motion for summary judgment, the movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant must then "set forth specific facts demonstrating that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). In determining whether a genuine issue of material fact precludes summary judgment, the court reviews the evidence and draws all inferences "in the light most favorable to the nonmovant." Bank Leumi, 928 F.2d at 236; FDIC v. Knostman, 966 F.2d 1133, 1140 (7th Cir. 1992).
I. THE FAIR HOUSING AMENDMENTS ACT
Plaintiffs allege that defendants have violated the Fair Housing Amendments Act of 1988 ("FHAA"), codified as 42 U.S.C. §§ 3601 to 3631. Congress passed the original Fair Housing Act as Title VIII of the Civil Rights Act of 1968. The FHAA of 1988 expanded the Fair Housing Act by extending "the principle of equal housing opportunity to handicapped persons." H.R. Rep. No. 711, 100th Cong., 2nd Sess., at 13 (1985) ("House Report"). The FHAA does this by making handicapped persons a protected class under the statute. Id. at 17; Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir. 1995).
The FHAA makes it unlawful to discriminate in the sale or rental of a dwelling because a buyer, renter, or prospective resident has a handicap. 42 U.S.C. § 3604(f)(1). The FHAA also makes it unlawful "to otherwise make unavailable or deny" a dwelling to a buyer, renter, or prospective resident because of handicap. Id. Unlawful discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Under the FHAA, a person is "handicapped" if he or she has "a physical or mental impairment which substantially limits one or more of [his or her] major life activities," or if he or she has "a record of having such an impairment" or is "regarded as having such an impairment." 42 U.S.C. § 3602(h).
The FHAA is "a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals." Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir. 1995). In passing the FHAA, Congress recognized that "the right to be free from housing discrimination is essential to the goal of independent living." House Report at 18. To further this goal, the FHAA represents
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. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion.
Id. In light of the FHAA's broad mandate, courts have accorded a "generous construction" to its antidiscrimination prescriptions. City of Edmonds v. Oxford House, Inc., 131 L. Ed. 2d 801, 115 S. Ct. 1776, 1783 n.11, 1780 (1995) (citation omitted). Applying the FHAA, "courts have consistently invalidated a wide range of municipal licensing, zoning and other regulatory practices affecting persons with disabilities." Potomac Group Home Corp. v. Montgomery County, 823 F. Supp. 1285, 1294 (D. Md. 1993) (citations omitted).
In an action under the FHAA, a plaintiff may prevail on any one of three theories: (1) disparate treatment, also called intentional discrimination, (2) disparate impact, also called discriminatory effect, or (3) failure to accommodate. Bangerter, 46 F.3d at 1500-02; Schwemm, Housing Discrimination § 11.5(3)(c) at 11-58 to 11-59 (1995). In this case, plaintiffs prevail on the first theory as well as the third theory.
II. IDENTIFYING FACIAL DISCRIMINATION
Plaintiffs allege that the Naperville fire prevention code violates the FHAA on its face because it "stereotypes all persons with mental disabilities and does not allow for consideration of the unique or special needs of the individual residents." (Pls.' Br. in Supp. at 2; see also id. at 15-16.) A plaintiff who challenges a law that "facially single[s] out the handicapped and applies different rules to them" states a claim for disparate treatment. Bangerter, 46 F.3d at 1500. In such a case, "a plaintiff need not prove the malice or discriminatory animus of a defendant." Id. at 1501 (citations and footnote omitted); see International Union v. Johnson Controls, Inc., 499 U.S. 187, 199, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991) ("Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination."). Thus, "a plaintiff makes out a prima facie case of intentional discrimination under the FHAA merely by showing that a protected group has been subjected to explicitly differential--i.e. discriminatory--treatment." Bangerter, 46 F.3d at 1501.
Some facially discriminatory laws are easy to identify because they use the word "handicapped" or the word "disabled." For example, a law requiring that "group homes for the mentally or physically handicapped" obtain a special permit expressly singles out the handicapped for special treatment. Id. at 1494, 1500. Other facially discriminatory laws do not use the word "handicapped" or the word "disabled" but discriminate on their face nonetheless. An example would be a law that (1) prohibits any new "family care home" from locating within 1000 feet of any existing "family care home" and (2) defines "family care home" as a facility where "permanent care" or "professional supervision" is present. See Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 687-90, 694 (E.D. Pa. 1992), aff'd, 995 F.2d 217 (3rd Cir. 1993). Such a law does not use the word "handicap" or "disability," yet the reach of the law clearly "coincides with the breadth of the definition of 'handicap' under the [FHAA]." Id. at 694. For this reason, such a law discriminates on its face against the handicapped. Id. That such a law "may incidentally catch within its net some unrelated groups of people without handicaps, such as juveniles or ex-criminal offenders" does not alter this conclusion. Id. (citations omitted).
The Seventh Circuit adopted a similar approach to identifying facial discrimination in McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992). Writing for the court, Judge Cudahy stated that an employer may not "use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination." Id. at 228. For example, a company that fired all employees with gray hair would commit intentional age discrimination because gray hair serves as a proxy for age. Id. Although a few young people have gray hair, Judge Cudahy explained,
the "fit" between age and gray hair is sufficiently close that they would form the same basis for invidious classification. Similarly, discrimination "because of" handicap is frequently directed at an effect or manifestation of a handicap rather than being literally aimed at the handicap itself. Thus, a school's exclusion of a service dog has been held to be discrimination "because of" handicap, and no doubt a policy excluding wheelchairs would be such discrimination, even if the stated purpose of the policy were a benign one.