Judge: University housing subject to Fair Housing Act

2013-04-19T15:50:00Z 2013-04-19T19:52:15Z Judge: University housing subject to Fair Housing ActBy LORI PILGER / Lincoln Journal Star JournalStar.com

A federal judge in Nebraska ruled Friday that university-owned housing is subject to the Fair Housing Act in the case of a University of Nebraska at Kearney student whose therapy dog wasn't allowed to live with her.

It is just the latest step in the case brought by the United States on behalf of former UNK student Brittany Hamilton and Butch, her 4-pound miniature pinscher.

Scott Moore, an attorney who represents UNK, said the university asked Hamilton to provide sufficient documentation that a dog was necessary because of a disability. It was the school's position she didn't do that.

But the government alleges the school violated the FHA when it denied her request to let her therapy dog live with her at the university-owned, apartment-style housing a mile off campus.

In 2010, Hamilton sought an exception to the university's no-pets policy for Butch, saying he helps her cope with anxiety and depression, as a disability-related "reasonable accommodation" under the FHA. The university said no.

In a lawsuit filed in 2011, the U.S. Department of Housing and Urban Development accused UNK, the University of Nebraska Board of Regents and five employees of violating the FHA.

At a hearing in Lincoln on Wednesday, it all came down to whether student housing qualifies as a "dwelling" within the meaning of the FHA.

Moore argued it shouldn't, comparing university housing to a hotel, or, perhaps most unexpectedly, jail. Neither are considered dwellings under the FHA.

He said many first-year students have to live in university housing, are assigned rooms and in some cases roommates, and have to follow certain rules and restrictions.

And he argued the purpose of university housing is educational, not to provide a residence.

But U.S. District Judge John M. Gerrard rejected the argument that, because students live in an environment conducive to learning, it changes the nature of the place "from a residence to something akin to a correctional center."

"While housing may have more rules than the average off-campus apartment, it is no more restrictive than many other places that people call home," he said.

Gerrard also rejected Moore's argument that students are transient visitors who don't intend to stay long.

"The very nature of student housing, the intent of students, the lack of intent to return, the fact that they're in a dorm room and that 99 percent of them have permanent residences elsewhere ... we believe in totality shows that these aren't to be considered residences," Moore said Wednesday.

He argued that Congress didn't intend for educational housing to be considered a "dwelling" because it would alter how colleges and universities operate.

UNK wasn't seeking an exemption from the FHA, Moore said. It simply wasn't covered by it.

Gerrard wasn't persuaded.

He said students who live in university housing eat meals, wash laundry, do schoolwork, socialize and sleep there, "just as people ordinarily do in the places they call home."

"Simply put, students live in university housing for a significant time period and while they do, they treat it like home," Gerrard wrote.

And he concluded university housing does qualify as a dwelling and, therefore, is covered by the FHA and anti-discrimination provisions.

"Essentially, UNK is exhibiting a parade of horribles that could purportedly ensue if UNK is subjected to the FHA," Gerrard wrote.

Even if the predictions were realistic, he said, he couldn't misconstrue the word "dwelling" to avoid them.

"If colleges and universities need to be exempted from the scope of the statutory language, they are free to ask Congress to amend the statute, or petition HUD to promulgate new regulations," he said.

On Friday, Moore said UNK still was reviewing the ruling before making a decision about an appeal to the Eighth Circuit Court of Appeals.

While Gerrard's decision dealt with a narrow question of whether UNK-owned housing, specifically University Heights, was subject to the FHA, Moore said it could have a major effect.

"This issue has never been addressed squarely by any other court before today," he said.

Moore said UNK already makes accommodations for service dogs in university housing under the Americans with Disabilities Act, which has a narrow definition of what qualifies as a service animal: specifically, dogs.

The FHA does not.

So schools could be asked to allow cats, birds, even in one case a guinea pig, Moore said.

And, if the FHA applies, universities may have problems segregating dorms based on gender or for families, he said.

If UNK doesn't appeal, the case will move toward trial to determine if UNK violated the FHA. If the university gets the OK to go forward with an appeal, it would put the case on hold.

Reach Lori Pilger at 402-473-7237 or lpilger@journalstar.com or follow her on Twitter at LJSpilger.

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