Fighting for our troops on the home front: disabled tenants in military housing sometimes face discrimination. Litigation can enforce their rights against the private companies that manage base housing.

Much of the housing on military bases is in poor shape. The U.S. Department of Defense (DOD) has made improving it a top priority, recognizing that quality military housing is crucial for troop morale, readiness to fight, recruitment, and retention. (1) In one of the largest privatization projects ever launched by a federal agency, DOD is giving private developers and management companies a chance to own, operate, maintain, and improve thousands of housing units on military bases across the country. (2)

At the same time that privatized military housing is becoming increasingly common, the population of disabled people living on military bases is likely to be growing. More than 17,000 U.S. soldiers have been wounded in Iraq and Afghanistan, and at least 450 have lost limbs, hands, or feet. (3) The military has announced that it will try to keep seriously wounded and disabled soldiers on active duty if they're still willing to serve. (4)

Although people living in privatized military housing are protected by the same civil rights, housing, and consumer protection laws that protect all citizens, (5) disabled tenants' legal rights may be neglected as the government hands over housing responsibility to private, for-profit firms. But these tenants' rights can be enforced through civil litigation, particularly since the legal immunity that the military enjoys under some circumstances does not protect the private firms that are taking over what once was a military function.

For example, in Parents Against Disability Discrimination v. Equity Residential several military families living on the Fort Lewis Army base in Washington state brought a lawsuit to stop disability discrimination by the private firm that began managing on-base housing in 2002. (6) The plaintiffs claimed that they could not get structural modifications needed to make their housing accessible and safe (such as the addition of grab bars in bathrooms or the remediation of mold infestation, which causes and exacerbates respiratory disabilities), that they could not get reasonable accommodations to housing policies, and that they experienced retaliation after requesting reasonable accommodations. (7)

The lawsuit resulted in a landmark settlement that, among other things, required the private firm to make 10 percent of the base's housing units accessible to people with disabilities. It also prompted creation of a fair, streamlined process for disabled residents to request structural modifications to housing and other reasonable accommodations. (8)

The growing privatization of military housing has been made possible by the Military Housing Privatization Initiative, (9) enacted by Congress in 1996 as part of the National Defense Authorization Act. The initiative gives DOD the authority to enter into long-term partnerships and contracts with private firms that agree to take over responsibility for on-base housing in exchange for a guaranteed stream of rent payments from the military. (10) The department, in turn, has delegated its authority under the initiative to each of the military services. (11)

Through privatization, the military hopes to remedy both the substandard condition of DOD-owned housing units--the average unit is 33 years old--and a shortage of affordable private housing for its servicemembers, especially for its junior enlisted personnel who have trouble affording quality housing within a reasonable commuting distance of many bases. (12) The department believes that by working with the private sector, it can improve housing for its troops for less money and in less time than it would spend to undertake the improvements itself. (13)

As of June 2006, the military services have awarded 62 privatization projects, which encompass more than 132,000 family housing units. (14) In 2005, about 11 percent of military families lived in privatized housing, and the number has continued to grow. (15) Bids for more than 30 privatization projects are being solicited, and 30 more projects are being planned. (16) DOD plans to privatize a total of about 185,000 units. (17)

As privatization spreads and the number of disabled people in military families grows, legal issues concerning the housing and related rights of these families are emerging. As the plaintiffs at Fort Lewis alleged, disabled tenants of recently privatized housing may experience discrimination in the form of unfair and unreasonable responses to requests for accommodation, or even harassment and retaliation by housing managers. To protect these tenants' rights, lawyers must be familiar with the relevant law and aware of factors unique to cases involving privatized military housing.

Possible defendants

If a potential client alleges disability discrimination in privatized housing, the list of potential defendants is extensive. Which entities or individuals are appropriate to name as defendants depends not only on your investigation of the facts, but also on legal doctrines of vicarious liability and immunity--as well as on political factors.

First, you should obtain the contract for the relevant privatization project through a public records request to DOD. Although DOD probably will claim that much of the contract is privileged and redact financial and other relevant data, the unredacted portion of the contract should help clarify who the responsible parties are and identify the primary defendants. Other investigation into corporate filings and building permits may yield additional potential defendants.

In the Fort Lewis case, for example, the Army collaborated with a private joint venture to create a community development and management plan, which set forth the joint venture's and the Army's specific obligations in the privatization project. This plan was incorporated into the overall contract between the two parties. The joint venture and various subsidiary entities that were responsible for the development and day-to-day management of Fort Lewis housing under the plan were named as defendants in the case. (18)

Related entities--such as owners of record, property managers, designers and architects, general contractors, subcontractors, and site engineers--also are potential defendants and should be investigated. The doctrine of respondeat superior may subject principals to liability for agents' acts or omissions. Individual agents or employees should be considered as potential defendants as well, especially if their actions are particularly egregious--if they make explicit discriminatory comments, for example.

Also consider whether to sue the military itself. While it has attempted to relieve itself of responsibility for family housing through privatization, the military still retains significant control over many aspects of on-base housing. For instance, military housing is generally segregated according to rank. Military police investigate conflicts and disturbances occurring in military housing, and numerous rules regulating everything from the content of political signs to the length of grass on front lawns apply on base. At Fort Lewis, the military retained explicit authority to enforce rules such as those related to rank-segregated housing and even, at times, to approve requests for disability-related accommodations.

Military immunity may prevent you from bringing the services into a lawsuit, however. Under the Feres doctrine, servicemembers generally cannot seek monetary damages from the government for injuries that "arise out of or are in the course of activity incident to service." (19) Servicemembers are nonetheless allowed to bring constitutional claims against the government for nonmonetary relief. (20) Courts have clearly applied the Fetes doctrine to bar litigation only when servicemembers have sought damages. (21) Thus, the doctrine bars damages suits brought by servicemembers, but not those brought by civilians--and bars suits against the government, but not those against private entities.

You should consider the political vulnerabilities of your client and of the defendants when deciding whom to sue. If the military is directly implicated in a lawsuit, a client who depends on the military for his or her livelihood will be vulnerable to military pressure not to "rock the boat," given the military's traditional emphasis on solidarity and stoicism. Some potential defendants--whose stock prices or bids on other projects might be jeopardized by negative publicity--may be vulnerable to media coverage stemming from a lawsuit over housing practices. In the current political climate, almost any news relating to military families can generate media interest.

Causes of action

Housing law, particularly as it pertains to issues of access for people with disabilities, can be intimidating to a lawyer who does not have significant experience in this specialized area. If you fall into that category, seek assistance from co-counsel with expertise in the nuances of housing law.

For a disability discrimination case involving privatized military housing, consider a variety of federal and state statutes. Under federal law, claims under the Fair Housing Act (FHA), the Americans with Disabilities Act of 1990 (ADA), the Rehabilitation Act of 1973, and 42 U.S.C. [section] 1983 may be appropriate. State laws vary, but almost all states have antidiscrimination laws that could support claims.

The Fair Housing Act. The primary cause of action in the Fort Lewis case was brought under the FHA, which was enacted as part of the Civil Rights Act of 1968 to prevent discrimination in the sale, rental, and terms and conditions of private and public housing. (22) It was amended in 1988 to address housing discrimination against people with disabilities. (23) Specifically, the FHA prohibits housing discrimination on the basis of the disability of a current or potential buyer or renter, a current or prospective resident, or anyone associated with a current or potential buyer or renter. (24)

Discrimination under the FHA can include the refusal to permit or make reasonable modifications to a covered property; the refusal to make reasonable accommodations to rules, policies, practices, or services; and, for new construction, the refusal to design or construct accessible housing. (25) The FHA expressly applies to housing that is owned and operated by the federal government or that is provided in whole or in part by federal funds. (26)

While neither the FHA nor the regulations promulgated under it define "reasonable modifications" or "reasonable accommodations" in precise detail, the statute states that reasonable accommodations are those necessary to afford someone with a disability an "equal opportunity to use and enjoy a dwelling." (27) The applicable regulations state that reasonable modifications must be allowed if they "may be necessary to afford the handicapped person full enjoyment of the premises." (28)

Title III of the Americans with Disabilities Act. Beyond housing law, your client may have a cause of action under the ADA. Title III requires all places of public accommodation to provide full and equal access to people with disabilities. (29) Housing facilities are exempt from Title III's requirements because they are covered by the FHA, (30) but many of the common areas and services on military bases are likely to be considered places of public accommodation under Title III, including playgrounds, parks, bus stops, and grocery stores. (31) Such areas are subject to the strict accessibility regulations promulgated under Title III, (32) and a cause of action against a private entity that fails to comply with them would be proper.

Section 504 of the Rehabilitation Act of 1973. A cause of action may also lie under this provision, which states that "no otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." (33)

Case law indicates that the applicability of [section] 504 to privatized military housing might depend, at least to some extent, on the contractual relationship between the private housing company and the military. For example, if the private firm is receiving any government subsidy to perform its contractual responsibilities, or paying a below-market rate for the right to manage the housing at issue, then a cause of action under [section] 504 probably is viable. But if the private firm is paying the military a market rate, a plaintiff may have a more difficult time maintaining a cause of action under [section] 504. (34)

The requirements of [section] 504 are largely consistent with those of the FHA and ADA. Numerous federal regulations have been issued to effectuate [section] 504's prohibition against disability discrimination. Most relevant to cases involving privatized military housing are those that relate specifically to programs that receive funds or subsidies from, or are operated by, DOD and each of the military branches. They define what practices are discriminatory in violation of [section] 504, including

* providing different benefits or services to people with disabilities than are provided to others, unless such action is necessary to provide people with disabilities with benefits or services that are equal to those provided to others

* providing unequal benefits to people with disabilities

* denying people with disabilities the opportunity to participate in or benefit from benefits or services

* limiting a person with a disability in the enjoyment of any right, privilege, advantage, or opportunity granted to others. (35))

As with the FHA and ADA, the failure to provide reasonable accommodations may constitute discrimination under [section] 504. (36)

42 U.S.C. [section] 1983. To the extent that an entity is acting "under color of state law," its discriminatory practices may be actionable under [section] 1983 if they rise to the level of a constitutional violation. In the Fort Lewis case, the plaintiffs alleged that the private joint venture arbitrarily intimidated, harassed, and retaliated against them for asserting their rights, which resulted in their equal protection rights being denied. They also alleged that the venture's failure to create and implement clear, consistent, and understandable policies and procedures regarding housing for military families with disabled members constituted a violation of their due process rights. (37)

State causes of action. Potential claims under state law should be considered in any civil rights lawsuit, and housing discrimination cases are no exception. While antidiscrimination laws differ from state to state, all states have statutes or regulations that might be applicable in the context of military housing.

The Fort Lewis plaintiffs brought a cause of action under the Washington Law Against Discrimination, a state statute prohibiting discrimination on the basis of disability in places of public accommodation and amusement, in real property transactions, and in other situations. (38) The plaintiffs also brought separate claims for violations of their equal protection and due process rights under the Washington state constitution. (39)

Military reaction

You and your client will need to be prepared for the possibility that the military command structure will not view the lawsuit sympathetically, even if the military itself is not a named defendant. Being an outspoken advocate of individual rights generally is not consistent with military culture. And the military has substantial influence over major aspects of a military family's life, controlling careers, paychecks, health care, and retirement plans.

Your client should understand that filing a lawsuit may well cause the military to label his or her family "troublemakers," to scrutinize their every move, and perhaps even to introduce more difficulties and stress into their lives at a time when stress already may be high because loved ones are deployed abroad and in harm's way. While it is difficult, if not impossible, for lawyers to prevent retaliation before it occurs, your clients can try to reach out to any sympathetic military or civilian officials who might help their cause. Also, any acts of retaliation should be documented, since the FHA and other laws protect against retaliation. The private firms you name as defendants will have contractual obligations to the military. A private defendant may try to use the military to deflect responsibility for violations of tenants' rights by claiming that the military required the actions about which your client complains. It may also invoke the military as an obstacle to changing its practices. Generally, however, be wary of such arguments, since the military should be interested in ways to improve--not worsen--the lives and morale of its troops.

Because the military commonly regulates the behavior of base residents, military involvement in negotiations to reform housing policies and practices is crucial. Your best bet is to establish friendly contacts with relevant military personnel so that you can confirm or refute the defendant's claims and to insist that military representatives be present at any serious settlement negotiations.

As the military privatizes on-base housing throughout the country in hopes of improving its housing stock, servicemembers and their families with special needs may be overlooked. They need advocates who will protect their legal rights to safe, fair, and accessible housing. Those who defend our country deserve no less.

Notes

(1.) Office of the Deputy Under Secretary of Defense, Installations and Environment, Military Housing Privatization, FAQs, available at www.acq.osd.mil/housing/faqs.htm [hereinafter FAQs] (last visited July 28, 2006).

(2.) George Cahlink, Home Improvements, GOV'T EXECUTIVE MAG., Apr. 1, 2001, available at www.acq.osd.mil/housing/docs/govexec.htm (last visited July 28, 2006).

(3.) Joan Ryan, War Without End, S.F. CHRON., Mar. 26, 2006, at A1 (citing statistics from the Walter Reed Army Medical Center, Brookings Institution, and DOD).

(4.) Anne Hull, Wounded or Disabled but Still on Active Duty, WASH. POST, Dec. 1, 2004, at A23.

(5.) Office of the Deputy Under Secretary of Defense, Installations and Environment, Military Housing Privatization, Overview: Military Housing, available at www.acq.osd.mil/housing/housing101.htm [hereinafter Overview] (last-visited July 28, 2006).

(6.) No. C04-cv-05267 (W.D. Wash. filed May 10, 2004). The authors represented the plaintiffs--a group of military families with disabled family members--in this case.

(7.) See First Amended Complaint at 9-10, Parents Against Disability Discrimination v. Equity Residential (W.D. Wash. filed May 10, 2004) (No. C04-cv-05267 RBL), available at www.dralegal.org/downloads/cases/padd/complaint.pdf (last visited July 28, 2006).

(8.) See Memorandum of Understanding at 4-14, Parents Against Disability Discrimination v. Equity Residential (W.D. Wash. effective Sept. 22, 2005) (No. C04-cv-05267 RBL), available at www.dralegal.org/downloads/cases/padd/memorandum_of_understanding.pdf (last visited July 28, 2006).

(9.) 10 U.S.C. [subsection] 2871-2884 (2006).

(10.) Cahlink, supra note 2.

(11.) Office of the Deputy Under Secretary of Defense, Installations and Environment, Military Housing Privatization, Welcome, available at www.acq.osd.mil/housing/mhpi.htm (last visited July 28, 2006).

(12.) Overview, supra note 5; FAQs, supra note 1.

(13.) FAQs, supra note 1.

(14.) Office of the Deputy Under Secretary of Defense, Installations and Environment, Military Housing Privatization, Housing Projects: Project Award, at www.acq.osd.mil/housing/projawarded.htm (last visited July 28, 2006).

(15.) Overview, supra note 5.

(16.) Office of the Deputy Under Secretary of Defense, Installations and Environment, Military Housing Privatization, Housing Projects: Project Award Summaries, at www.acq.osd.mil/housing/projsumm.htm (last visited July 28, 2006).

(17.) FAQs, supra note 1.

(18.) See First Amended Complaint, supra note 7.

(19.) Feres v. United States, 340 U.S. 135, 146 (1950).

(20.) See, e.g., Wilkins v. United States, 279 F.3d 782, 787-89 (9th Cir. 2002).

(21.) See Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 GEO. WASH. L. REV. 1, 21 (2003).

(22.) 42 U.S.C. [subsection] 3601-3619 (2006).

(23.) Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (codified as amended at 42 U.S.C. [subsection] 3601-3602, 3604-3608, 3610-3614a).

(24.) 42 U.S.C. [section] 3604(f) (2006).

(25.) Id. [section] 3604(f) (3).

(26.) Id. [section] 3603(a) (1).

(27.) Id. [section] 3604(f) (3) (B).

(28.) 24 C.F.R. [section] 100.203(a) (2006). For a more comprehensive discussion of the possible causes of action for disability discrimination under the FHA, including those seeking reasonable accommodations and modifications, see Edward G. Kramer et al., Cause of Action for Handicapped Discrimination in Housing in Violation of the Federal Fair Housing Act, 22 CAUSES OF ACTIONS 2d 1 (2005 & Supp. 2006).

(29.) 42 U.S.C. [section] 12182 (2006).

(30.) 28 C.ER. [section] 36.104 (2006).

(31.) 42 U.S.C. [section] 12181 (7) (2006).

(32.) See, e.g., 28 C.F.R. [section] 36.304 (requiring places of public accommodation to make curb cuts in sidewalks and entrances to the extent it is readily achievable).

(33.) 29 U.S.C. [section] 794 (2006).

(34.) See, e.g., DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1382-83 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991); Hingson v. Pac. Southwest Airlines, 743 F.2d 1408, 1414-15 (9th Cir. 1984).

(35.) 32 C.ER. [section] 56.8 (2006).

(36.) See Alexander v. Choate, 469 U.S. 287, 301 (1985) ("[T]o assure meaningful access, reasonable accommodations in the ... program or benefit [receiving federal financial assistance] may have to be made."); cf. 24 C.ER. [section] 8.11 (a) (2006) (specifically requiring reasonable accommodations in the employment context).

(37.) See First Amended Complaint, supra note 7 at 30.

(38.) Id.; see WASH. REV. CODE [subsection] 49.60.010-49.60.390 (2006).

(39.) See First Amended Complaint, supra note 7 at 31.

MONICA GORACKE, previously an attorney at the nonprofit Disability Rights Advocates in Berkeley, California, is a staff attorney at the Oregon Law Center in Portland, Oregon. ROGER HELLER is a staff attorney at Disability Rights Advocates. VICTORIA NI is a staff attorney in the Oakland, California, office of Trial Lawyers for Public Justice, a national public interest law firm.