current space available Plaintiff would alter his request to this Court by requesting the
Court issue an injunction that would place him at the top of any waiting list for on-
campus dormitory housing.
3. Issuing An Injunction Would Be In The Public Interest

Finally, on the public interest factor, the United States Supreme Court has found the
Fair Housing Act serves an “overriding societal priority.” Meyer v. Holley, 537 U.S. 280,
290, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003). Additionally the U.S. Sixth Circuit has
found that eradicating housing discrimination serves the “public interest.” Price v. Pelka,
690 F.2d 98, 102 (6th Cir.1982).

Also attached is an affidavit from Richard Bernstein, Vice-Chairman of the Board
of Governors for Wayne State University, which speaks to the importance of diversity in
our state universities. He, as a statewide elected official, identifies diversity as being in
the public interest. Diversity plays an important role in preparing students for their future
and therefore serves an important public interest. EXHIBIT # 15.

CONCLUSION

Plaintiff has demonstrated a likelihood of success on the merits on at least one of
its claims in his complaint. Additionally, a balancing of the equities of this case would
call for an injunctive relief before Mr. Fialka-Feldman suffers irreparable harm and to
stop the continuing contravention of his civil rights.

WHEREFORE, Plaintiff requests the Court consider this motion on an expedited
basis due to the new semester starting on January 5, 2009. Plaintiff has been denied
housing by Defendant by its refusal to provide a reasonable accommodation and Plaintiff

can be made whole only if injunctive relief is provided promptly.

13


The two leading cases in the United States Sixth Circuit Court Of Appeals that
discuss reasonable accommodations under the Fair Housing Act are Smith & Lee Assocs.,
Inc. v. City of Taylor, 102 F.3d 781 6" Cir.1996) and Groner v. Golden Gate Gardens
Apartments, 250 F.3d 1039. What follows is an extensive quote from Groner discussing
the interplay between reasonableness, undue burden and which party bares the burden of

proof.

Discrimination prohibited by the Act includes the refusal to make
reasonable accommodations in "rules, policies, practices, or services,
when such accommodations may be necessary to afford [the handicapped
individual an] equal opportunity to use and enjoy a dwelling." 42 U.S.C. §
3604(f)(3)(B). Moreover, the Act "imposes an affirmative duty upon
landlords reasonably to accommodate the needs of handicapped persons."
United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413,
1416 (9th Cir.1994); see also H.R.Rep. No. 100-711 at 25 (1988), U.S.
Code Cong. & Admin. News at 2173, 2186.

Accommodations required under the Act must be both reasonable and
necessary to afford the handicapped individual an equal opportunity to use
and enjoy a dwelling. See Smith & Lee Assocs., Inc. v. City of Taylor, 102
F.3d 781, 795-96 (6th Cir.1996) (holding that the city had violated the Fair
Housing Act by failing to allow adult foster care homes to operate in areas
zoned for single-family neighborhoods). An accommodation is reasonable
when it imposes no "fundamental alteration in the nature of a program" or
"undue financial and administrative burdens." Jd at 795.

Whether a requested accommodation is required by law is "highly fact-
specific, requiring case-by-case determination." California Mobile Home
Park, 29 F.3d at 1418; Hovsons, Inc. v. Township of Brick, 89 F.3d 1096,
1104 (3d Cir.1996). Courts generally balance the burdens imposed on the
defendant by the contemplated accommodation against the benefits to the
plaintiff. See Smith & Lee Assocs., 102 F.3d at 795. In determining
whether the reasonableness requirement has been met, a court may
consider the accommodation's functional and administrative aspects, as
well as its costs. See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d
597, 604 (4th Cir.1997).

. . this court in Smith & Lee Associates stated in a footnote that
"[p]laintiffs bear the burden of demonstrating that the desired
accommodation is necessary to afford equal opportunity." Smith & Lee


INDEX OF AUTHORITIES

Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir.1997) ........007
California Mobile Home Park, 29 F.3d at 1418......ccscsssessesseessessesseseeneeseessestesne

CSX Transportation v. Tennessee State Board of Equalization, 964 F.2d 548 (6th
Cir. 1992) oieceeececessessesessssesssesseseesecuesessesucaesneseenesucerenesueaeseeseencsesaeseeesueareneeneneeneeees 11

Good Shepherd Manor Foundation, Inc. y. City of Momence, 323 F.3d 557
(7" Cir.2003)..

Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039 (6" Cir.2001)......7, 8
Hamad v. Woodcrest Condominium Ass'n, 328 F.3d 224, 6" Cir.2003)..... 6
Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1104 (3d Cir.1996).....cssssesee 7

Illinois Bell Telephone v. Illinois Commerce Comm'n, 740 F.2d 566 (7th
Ci OBA) a sscnsicisscssscsssvaracssscossessesnstssadeatierncet avenues oon aureaaarssrtasinysstbasiresteeneesaNestTse 11

Meyer v. Holley, 537 U.S. 280, 290, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003) ....... 13
Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996) oc. 8
Price’y. Pelka, 690 F:2d 98, 102 (6th, Cit. 1982) ....ssscsssavensosersessvenesteesseasseseseesesuneses
Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781 (6th Cir.1996)......0.+ 7,8

United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413 (9th
Cir.1994) .

U.S. v. California Mobile Home Park Management Co., 107 F.3d 1374 (9"

C10) en 6
US. v. Edward Rose & Sons, 384 F.3d 258, (6" Cit.2004) ceecssssssesssssssseeeesssseeee 11
United States v. Diapulse, 457 F.2d 25, 27-28 (2d Cir.1972)....ceccseeseeeeeereeeeed 1
United States v. Microsoft Corp., 147 F.3d 935 (D.C.Cir.1998)......ssseseeeeeeel


Additionally, Plaintiff requests this Honorable Court to issue a preliminary
injunction pursuant to the Fair Housing Act, 42 USC § 3613(c)(1), and Fed. R. Civ. P.
65, enjoining Defendant to admit, rent to, and otherwise make available to the Plaintiff a
space in one of its on-campus dormitory living spaces.

Plaintiff further requests any additional relief the Court deems just, appropriate,

and equitable under the circumstances.

Respectfully submitted,

Dated: December 15, 2008 s/Chris E. Davis
MICHIGAN PROTECTION &
ADVOCACY SERVICE, INC.
Attorney for Plaintiff
29200 Vassar Blvd., Suite 200
Livonia, MI 48152
(248) 473-2990

cdavis@mpas.org
P52159

14


by facsimile and by placing same in a sealed envelope, properly addressed as indicated
above with postage fully prepaid for First Class Mail and depositing same in a United
States Postal Service mail receptacle located in Livonia, Michigan.

7. fe f
Vai 2 Lhieper
© Daniel Cooper

Subscribed and sworn to before me on
December 15, 2008

Verna L. Lehane, Notary Public

Wayne County, Michigan
My Commission Expires: Jan. 26, 2015



Cc. THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION
WHERE THE PLAINTIFF HAS DEMONSTRATED A LIKELIHOOD OF
SUCCESS ON THE MERITS, THE BALANCE OF EQUITIES IS IN HIS
FAVOR, AND IT IS IN THE PUBLIC'S INTEREST.

In addition to the likelihood of success on the merits, discussed above, there are
three additional factors for the Court to consider when issuing a preliminary injunction

and each is discussed below.

1. Threat Of Irreparable Harm

The Sixth Circuit has suggested in one case, that if the Plaintiff makes a showing
that the Fair Housing Act has likely been violated the court should issue an injunction
and that the traditional equity principals do not necessarily apply.

Under the FHA, the court “may award” a temporary injunction “for a
violation” of the statute “as is necessary to assure the full enjoyment of the
rights granted.” 42 U.S.C. § 3614(d)(1)(A). Some circuits have ruled that
when a federal statute specifically provides for injunctive relief, traditional
equity principles do not apply, and a showing of irreparable harm is not
required. See, e.g., United States v. Diapulse, 457 F.2d 25, 27-28 (2d
Cir.1972). Other circuits find that the statute must have language
specifically changing the traditional standards, such as language
mandating that the court “shall” enjoin the activity if an agency order is
disobeyed. See, e.g., Illinois Bell Telephone vy. Illinois Commerce Comm'n,
740 F.2d 566, 571 (7th Cir.1984). Under this second approach, if a statute
confers a right to an injunction once a certain showing is made, the
plaintiff need show no more than the statute specifies. United States v.
Microsoft Corp. 147 F.3d 935, 943 (D.C.Cir.1998). In CSX
Transportation y. Tennessee State Board of Equalization, 964 F.2d 548
(6th Cir.1992), the court found that “since Congress has expressly
authorized the granting of injunctive relief to halt or prevent a violation of
[the statute], traditional equitable criteria do not govern the issuance of
preliminary injunctions.” Jd. at 551. Like the FHA, the statute read that
courts “may” grant preliminary injunctions “as may be necessary to
prevent, restrain, or terminate” any violations of the statute. Jd. at 550.
U.S. v. Edward Rose & Sons, 384 F.3d 258, 6" Cir.2004) This was dicta.

This court should follow the dicta in Edward Rose & Sons and apply its

reasoning to the Fair Housing Act in this case. 42 U.S.C. § 3613(c)(1) specifically

11


Additionally, Mr. Fialka-Feldman as a student at Oakland participates in
numerous school activities, the same as do other students admitted to other programs at
Oakland, including: attending over 25 courses at the university, member of Alpha Phi
Omega fraternity, member of Hillel student organization, member of the leadership
retreats at Oakland University, Up Until Dawn, Peace Group, active in the student
government election 2008, and Social Work Club. EXHIBIT # 1. The University issued
him a student identification card once he entered the OPTIONS Program. EXHIBIT # 4.

Mr. Fialka-Feldman must take several buses each day from his home in
Huntington Woods, Michigan, to Oakland’s campus in Rochester, Michigan. Because of
the long commute and because he wanted a complete university experience the same as
other students, Mr. Fialka-Feldman began making inquires about living on-campus in the
spring of 2006. EXHIBIT # 1.

In the spring of 2007, Micah Fialka-Feldman and his father, Rich Feldman, took a
pre-arranged tour of the dormitory housing at Oakland that was arranged by the Director
of Housing, Lionel Matten. EXHIBIT # 1.

In the fall of 2007, Micah Fialka-Feldman applied for on-campus housing in the
dormitories at Oakland. On October 6, 2007, Rich Feldman submitted a check for
$100.00 to Oakland for deposit on a dormitory room for Micah.

On November 14, 2007, Rich Feldman received an e-mail confirming Micah
Fialka-Feldman was approved and he could begin living in a dorm room on-campus on
January 6, 2008. EXHIBIT # 5.

Then, on November 29, 2007, Micah Fialka-Feldman and his family were

informed, by e-mail, that he was not eligible to live in the dorm. EXHIBIT # 6. This was


ISSUES PRESENTED
IS THERE LIKELIHOOD OF SUCCESS ON THE MERITS WHEN
THE PLAINTIFF HAS REQUESTED AS A REASONABLE
ACCOMMODATION, PURSUANT TO THE FAIR HOUSING ACT,
THAT THE UNIVERSITY WAIVE A HOUSING POLICY THAT IN
DOING SO WILL NOT CREATE ANY UNDUE FINANCIAL OR
ADMINISTRATIVE BURDAN ON THE DEFENDANT?
PLAINTIFF’S ANSWER: YES
THE COURTS ANSWER SHOULD BE: YES
IS THE REQUESTED ACCOMMODATION TO WAIVE THE
MATRICULATING STUDENT REQUIREMENT A FUNDAMENTAL
ALTERATION OF THE UNIVERSITY’S HOUSING PROGRAM?
PLAINTIFF’S ANSWER: YES
THE COURTS ANSWER SHOULD BE: YES
SHOULD THE COURT ISSUE A PRELIMINARY INJUNCTION
WHERE THE PLAINTIFF HAS DEMONSTRATED A LIKELIHOOD
OF SUCCESS ON THE MERITS, BALANCE OF EQUITIES IS IN HIS
FAVOR, AND IT IS IN THE PUBLIC’S INTEREST?
PLAINTIFF’S ANSWER: YES

THE COURTS ANSWER SHOULD BE: YES

iv


Statutes
28 U.S.C. §1331.

28 U.S.C. § 1343

.6, 7,9

1,5, 11, 14

IMGE S905 a senescneccnecrsseeducsonsesnsccnsstnnsnenersasennssannsansessnseeateenrssaseesuasnastessesesotasesnseedessbesenteen 2

Fed. R., Civ. P65 ssssssussnssssscesnsveasousrtsensssussnscevenssessanacisessrovssssarsassntossonssecnsusscveesstoses

Other Authorities

H.R.Rep. No. 100-711 at 25 (1988).

U.S. Code Cong. & Admin. News at 2173, 2186

iii



authorizes the Court to grant injunctive relief to halt a violation of the Fair Housing
Act. It permits the Court to order the Defendant to take affirmative action the
Court deems appropriate to halt or remedy violation of the act. As discussed below,
enforcement of civil rights law serve an important public interest. The Court should
issue an injunction when there is showing of a likelihood of success on the merits
involving a violation of the Plaintiff's civil rights under the Fair Housing Act.

Additionally, because Mr. Fialka-Feldman must take two buses each day to
school, we believe there is considerable risk of harm to him both due to inclement
weather, the loss of time, and considerable inconvenience. The public
transportation system in Southeast Michigan is notorious for its inefficiency and
during inclement weather it can pose a considerable health risk.
2. There Is No Threat Of Substantial Harm To Others

Plaintiff is not aware of any risk of harm to anyone if this court issues an
injunction. The Plaintiff is ready and able to live on-campus. At this time he does not
require any special supports to live on-campus and we do not anticipate he will need any.
Exhibit #1.

Additionally, the University’s housing program was advertising in the student
paper as late as November that they still have living spaces available on-campus and was
encouraging students to apply. EXHIBIT # 14.' Therefore, we do not believe there

would be any need to displace any students already living on-campus. If there is no

' The advertisement mentions the many benefits to living on-campus and states; “if you are looking for the
ultimate college experience, then place yourself in the heart of all the excitement. Living on campus puts
you only minutes away from all the activity, and eliminates the time and anxiety that accompany your long
commute. Choose to live in the residence halls and find yourself only steps away from classrooms, the
library, the RAC and the Oakland Center. Along with the independence and freedom that come with
residence life, residents enjoy endless opportunities for campus involvement, recreation and academic
success.”

12


The Defendant, Oakland University Board Of Regents, is the governing body of
Oakland University (Oakland). The Board’s authority to act is done pursuant to state law,
MCL 390.151 et. seq., which grants the board full authority to make all decision relevant
to this matter.

Mr. Fialka-Feldman has attended classes at Oakland since 2003. Beginning in the
fall term of 2007, Mr. Fialka-Feldman was admitted to Oakland’s OPTIONS Program.
The OPTIONS program was a new program at that time and Mr. Fialka- Feldman was
one of the original members. EXHIBIT # 1.

The OPTIONS program is part of the School of Education and Human Services at
the University. The program was designed for students with cognitive impairments that
could not be admitted to Oakland through the regular admissions process. “The
OPTIONS Program at Oakland University is designed to provide a fully inclusive, age
appropriate post-secondary education experience for students with mild cognitive
Impairments.” EXHIBIT # 2.

Mr. Fialka-Feldman was admitted as a student in the program and, like all
students in the program, takes at least 12 credit hours of courses each semester at
Oakland. EXHIBIT # 2.

On April 25, 2008, Mr. Fialka-Feldman’s parents paid his tuition for the Winter
Term 2008 to the University. They also paid his tuition for the Fall 2008 semester.
EXHIBIT # 3. In fact, all students in the program pay tuition;“OPTIONS is a tuition-
based program. Students are required to take a minimum of 12 credits per semester.
Credits are billed at the regular OU tuition rate for undergraduate students.” EXHIBIT

#2.


UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

MICAH FIALKA-FELDMAN

Plaintiff,
Case No. 2:08-cv-14922-PJD-VMM
v. Hon. Patrick J. Duggan
OAKLAND UNIVERSITY BOARD
OF TRUSTEES EXPEDITED CONSIDERATION
REQUESTED
Defendant.

Chris E. Davis (P52159)
Michigan Protection & Advocacy Service, Inc.
29200 Vassar Blvd., Suite 200
Livonia, MI 48152
Phone: (248) 473-2990
Email: cdavis@mpas.org
Attorney for Plaintiff
/

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND
EXPEDITED CONSIDERATION

Plaintiff respectfully requests a preliminary injunction pursuant to the Fair Housing
Act, 42 USC § 3613(c)(1) and Fed. R. Civ. P., 65, enjoining Defendant to admit, rent to,
and otherwise make available to the Plaintiff a space in one of its on-campus dormitory
living spaces. In support of this motion, Plaintiff states:

1. Plaintiff is likely to succeed on the merits. This case challenges the

discriminatory practices of the Defendant, a refusal to provide a reasonable
accommodation, which has resulted in the denial of renting a dwelling space to

the Plaintiff.


Plaintiff's counsel requested as a reasonable accommodation that the university waive the
housing program’s policy for Mr. Fialka-Feldman because he could not enroll in a
program leading to a degree due to his disability. EXHIBIT # 10.

Ina letter on November 7, 2008, Oakland’s legal counsel denied the request for
reasonable accommodation and denied the policy was discriminatory. EXHIBIT # 11.

In a letter dated and faxed on November 14, 2008, Plaintiff's counsel repeated the
request for a reasonable accommodation on behalf of Mr. Fialka-Feldman and clarified
the fact that the accommodation request related to the housing policy not the nature or
requirement of the OPTIONS program. EXHIBIT # 12.

Oakland’s legal counsel again denied the requested reasonable accommodation by
letter dated November 17, 2008. EXHIBIT # 13.

IV. STANDARD OF REVIEW

The Fair Housing Act authorizes this Court to issue “permanent or temporary
injunction, temporary restraining order, or other order (including an order enjoining the
defendant from engaging in such practice or ordering such affirmative action as may be
appropriate.)” 42 U.S.C. § 3613(c)(1).

This Court may issue a preliminary injunction pursuant to Fed. Rule Civ. Pro.,
Rule 65. When doing so there are four factors the court must consider: “(1) whether the
plaintiff has established a substantial likelihood or probability of success on the merits;
(2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of
the injunction would cause substantial harm to others; and (4) whether the public interest
would be served by granting injunctive relief.” Additionally, “The four considerations

applicable to preliminary injunction decisions are factors to be balanced, not prerequisites


the first time he was told he was not eligible, despite the fact that he and his family had
been speaking with University officials for over six months about living on-campus.
EXHIBIT # 1.

On December 3, 2007, the $100.00 was refunded to Rich Feldman from the
student account. EXHIBIT # 7.

On May 5, 2008, Mr. Fialka-Feldman and his family provided Oakland officials
with numerous letters of support, which resulted in a meeting being arranged with
Oakland’s Vice President for Student Affairs, Mary Beth Snyder. On May 23, 2008, Ms.
Snyder sent a letter that stated: “The University maintains resident halls for individuals
who meet our admissions requirements and are enrolled in coursework leading to a
degree. From time to time we do house students from other universities who are earning
credits for transfer to another institution . . .” EXHIBIT # 8.

In August 2008, Mr. Fialka-Feldman’s parents met with Vice President Snyder
but were unable to persuade her to change her mind.

At a meeting of the Board of Trustees on September 17, 2008, Mr. Fialka-
Feldman presented a petition to the Board asking that the University change its decision
and allow him to live on campus. On September 24, 2008, Vice President Snyder sent a
letter to Mr. Fialka-Feldman informing him that she would not change her decision.
EXHIBIT # 9.

On October 7, 2008, legal counsel for Mr. Fialka-Feldman, contacted legal
counsel for Oakland University, Victor A. Zimbardi, by letter advising him that it was
Plaintiff's belief that Oakland’s housing policy was discriminatory due to its disparate

impact on persons with disabilities, specifically persons with cognitive impairments.


INTRODUCTION
Plaintiff requests this Court issue a preliminary injunction pursuant to the Fair
Housing Act, 42 U.S.C. § 3613(c)(1), and Fed. R. Civ. P. 65 (West 2008), enjoining
Defendant to admit, rent to, and otherwise make available to the plaintiff a space in one
of its on-campus dormitory living spaces. Plaintiff requests the Court consider this
motion on an expedited basis due to the new semester starting in January 5, 2009.
Plaintiff has been denied housing by Defendant by its refusal to provide a reasonable

accommodation and Plaintiff cannot obtain full relief if injunctive relief is not provided.

I JURISDICTION

This Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. § 1331 and 28 U.S.C. § 1343. Plaintiff's claim for injunctive relief is authorized
under 42 U.S.C. § 1983 and 42 U.S.C. § 3613(c)(1).
IL. PROCEDURAL BACKGROUND

This action was filed in the U.S. District Court for the Eastern District of
Michigan on Novembers 25, 2008. Defendant was served December 1, 2008.
Concurrence on this motion was sought and denied on December 11, 2008, in a telephone
conversation with Victor Zambardi, General Counsel for Oakland University.
Il. FACTUAL BACKGROUND

The Plaintiff, Micah Fialka-Feldman, is a 24-year-old man with cognitive
impairments that substantially limit a major life activity. Specifically, they limit his
ability to learn and are the reason he was not admitted to Oakland University through its
normal admissions process. However, he is a student in the OPTIONS program at

Oakland University. EXHIBIT # 1.


UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

MICAH FIALKA-FELDMAN
Plaintiff,
Case No. 2:08-cv-14922-PJD-VMM
v. Hon. Patrick J. Duggan

OAKLAND UNIVERSITY BOARD
OF TRUSTEES

Defendant.

Chris E. Davis (P52159)
Michigan Protection & Advocacy Service, Inc.
29200 Vassar Blvd., Suite 200
Livonia, MI 48152
Phone: (248) 473-2990
Email: cdavis@mpas.org
Attorney for Plaintiff
/

PROOF OF SERVICE

STATE OF MICHIGAN )
COUNTY OF WAYNE “a
Daniel Cooper being first duly sworn, deposes and says that on the 15th day of

December, 2008, he served Plaintiff's Motion for Preliminary Injunction and Expedited
Consideration, Brief in Support of Plaintiff's Motion for Preliminary Injunction, and
Proof of Service on the following:

Victor Zambardi

Oakland University General Counsel

203 Wilson Hall
Rochester, MI 48309


TABLE OF CONTENTS

INDEX: OF AUTHORITIES. sasescssscssesnisseasoovevsnvsstseasissensovsssrsansdsosaoervestasssassteesoneveneroriondly AM
ISSUES PRESENTED sssssssscsvveessvsansscessswusosescassssewestwnsssestopsvssswsvasnsovtstss eves shes eas aves EEG iv
TL. JURISDICTION... sccsosvssscsssssansvsensosonss ansenaespennsenssnsscsenuccusnusenpsenvossauenssnsetestsssnsrssssnetsttes 1

Il. PROCEDURAL, BACKGROUND wii isssicssssccssscsssonsesisssasssorsiseessvssnsenvansssvssoscvesseresesnseeco

IIL, FACTUAL BACKGROUND. wissssssessesseseustntereiteeeeuiieasesses 1
IV. STANDARD OF REVIEW. wssssssssessestvistnintuistniiinintntnsniintenese 5
V. ARGUMENT. vssssssssntstnntunneninnannennnunnneniiniiesnts 6

A. THERE IS A LIKELIHOOD OF SUCCESS ON THE MERITS WHEN
THE PLAINTIFF HAS REQUESTED AS A REASONABLE
ACCOMMODATION, PURSUANT TO THE FAIR HOUSING ACT,
THAT THE UNIVERSITY WAIVE A HOUSING POLICY THAT IN
DOING SO WILL NOT CREATE ANY UNDUE FINANCIAL OR
ADMINISTRATIVE BURDAN ON THE DEFENDANT. .........0-00000006

B. THE REQUESTED ACCOMMODATION TO WAIVE THE
MATRICULATING STUDENT REQUIREMENT IS NOT A
FUNDAMENTAL ALTERATION OF THE UNIVERSITY’S HOUSING
PROGRAM ve. cinscirinceosmennrssionmenorianasamenumnn merry sseavees 10

C. THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION
WHERE THE PLAINTIFF HAS DEMONSTRATED A LIKELIHOOD
OF SUCCESS ON THE MERITS, THE BALANCE OF EQUITIES IS IN
HIS FAVOR, AND IT IS IN THE PUBLIC’S INTEREST..........:0000000011

ICONGCIUSION( ..:...cccnsseasencserssecnsssnersszreensesnsgerasengencascantsnasendsceosysossstssoehoeessabisereseinesartooteed 13


Assoc., 102 F.3d at 796 n. 11, Although Smith & Lee Associates limited its
discussion to the necessity of an accommodation, it follows that the same
analysis applies to our reasonableness determination.

Because the Fair Housing Act adopted the concept of a "reasonable

accommodation" from § 504 of the Rehabilitation Act, 29 U.S.C. § 791,

cases interpreting that term under the Rehabilitation Act also apply to

claims under the Fair Housing Act. See Smith & Lee Assocs., 102 F.3d at

795. Under the Rehabilitation Act, our circuit requires a plaintiff seeking

an accommodation to show that it is reasonable. See Monette v. Elec. Data

Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996) ("[T]he disabled individual

bears the initial burden of proposing an accommodation and showing that

that accommodation is objectively reasonable.") (emphasis in original).

The employer then has the burden of persuasion on whether the proposed

accommodation would impose an undue hardship. See id. at 1183-84.

Groner y. Golden Gate Gardens Apartments, 250 F.3d 1039, 1044. (6"

Cir.2001).

In the present case, Mr. Fialka-Feldman is a person with cognitive impairments
that substantially limit his ability to learn. In fact, the University has admitted him to a
university program specifically designed and intended for persons with disabilities.
EXHIBIT # 2.

Mr. Fialka-Feldman is a full time student at the University, taking 12 — 15 credits
a semester. EXHIBIT # 1. His family pays the same amount of tuition as other students
at the University. EXHIBIT #3. He has done what is expected of him as a student of the
University and under the requirements of the OPTIONS Program. He is committed to his
studies and is determined to continue them. He is prepared, ready, and able to live on-
campus. He has met his responsibilities to the University and demonstrated a

commitment to the University’s community through various student activities. EXHIBIT

#1.


Fialka-Feldman is not asking to pay less in rent then non-disabled students, or for
the University to waive any of its usual application fees for the housing program.
He has not asked and at this time we do anticipate needing the University to
provide any services that are not provided for non-disabled students. EXHIBIT #
1. This requested accommodation is reasonable because it does not create any
additional financial or administrative burdens for the University and should have
been granted as the Fair Housing Act requires.

B. THE REQUESTED ACCOMMODATION TO WAIVE THE

MATRICULATING STUDENT REQUIREMENT IS NOT A

FUNDAMENTAL ALTERATION OF THE UNIVERSITY'S HOUSING

PROGRAM.

The accommodation requested by the plaintiff does not fundamentally alter
Oakland University’s housing program. Mr. Fialka-Feldman is a student enrolled in a
program of the University. He is required to take a minimum of 12 credit hours each
semester to remain in the program. He is a full-time student at the University. He is not
asking the University to open the housing program to students taking only a minimal or
cursory amount of classes at the University. This past semester he took 15 credit hours
and paid full rate of tuition at the University. EXHIBITS #1 & 3.

The University claims the reasonable accommodation requested by Plaintiff, if
granted, would be a fundamental alteration of the University’s OPTIONS Program.
EXHIBIT # 11. But Plaintiff's request was to waive a requirement of the housing
program not the OPTIONS Program. Plaintiff is not requesting any alterations in the
OPTIONS Program. The University’s claim is a poor attempt to divert attention from the

real issue — its failure to provide a reasonable accommodation regarding its housing

program that was requested pursuant to the Fair Housing Act.


UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

MICAH FIALKA-FELDMAN

Plaintiff,
Case No. 2:08-cv-14922-PJD-VMM
v. Hon. Patrick J. Duggan
OAKLAND UNIVERSITY BOARD
OF TRUSTEES EXPEDITED CONSIDERATION
REQUESTED
Defendant.

Chris E. Davis (P52159)

Michigan Protection & Advocacy Service, Inc.
29200 Vassar Blvd., Suite 200

Livonia, MI 48152

Phone: (248) 473-2990

Email: cdavis@mpas.org
Attorney for Plaintiff

BRIEF IN SUPPORT OF
PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION
AND EXPEDITED CONSIDERATION



2. Because this case involves a violation of a civil rights statute that provides for
injunctive relief, it is presumed Plaintiff will suffer irreparable harm without
injunctive relief.

3. Plaintiffs need for the injunction outweighs the potential harm to Defendant. The
Plaintiffs need is substantial and will impose no cost on the Defendant, in that
Plaintiff is willing, ready and able to pay the usual and reasonable rent for the
housing unit.

4. The public interest would be served by issuing preliminary injunctive relief.
Plaintiff's counsel has prepared a Brief in Support, attached, that further explains
the legal and factual grounds for the preliminary injunction.

5. Plaintiff requests expedited consideration of his motion.

6. The start of the new semester is January 5, 2009, less than a month from now.

7. Without expedited consideration, Plaintiff will suffer irreparable injury by having
his rights abridged and/or denied.

Plaintiff's counsel has prepared a Brief in Support, attached, that further explains
the legal and factual grounds for the preliminary injunction.
WHEREFORE, Plaintiff respectfully requests this honorable Court issue a
preliminary injunction.
Respectfully submitted,
Dated: December 15, 2008 s/Chris E. Davis
MICHIGAN PROTECTION &
ADVOCACY SERVICE, INC.
Attorney for Plaintiff
29200 Vassar Blvd., Suite 200
Livonia, MI 48152

(248) 473-2990

cdavis@mpas.org
P52159



that must be met.” Hamad v. Woodcrest Condominium Ass'n, 328 F.3d 224, 6"
Cir.2003) [citations omitted].
Vv. ARGUMENT

A. THERE IS A LIKELIHOOD OF SUCCESS ON THE MERITS
WHEN THE PLAINTIFF HAS REQUESTED AS A REASONABLE
ACCOMMODATION, PURSUANT TO THE FAIR HOUSING ACT, THAT
THE UNIVERSITY WAIVE A HOUSING POLICY THAT IN DOING SO
WILL NOT CREATE ANY UNDUE FINANCIAL OR ADMINISTRATIVE
BURDAN ON THE DEFENDANT.

1. Reasonable Accommodations Under FHA & Section 504

The failure to provide reasonable accommodations is discrimination under the
Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B), and is unique in that it does not require a
showing of animus toward the plaintiff.

. we consider that reasonable accommodation is a theory of liability
separate from intentional discrimination. . .. The theory would be entirely
redundant if it required proof that the defendants' actions were motivated
by animus towards the handicapped. Indeed for the reasonable
accommodation theory to be meaningful, it must be a theory of liability
for cases where we assume there is a valid reason behind the actions of the
[defendant], but the [defendant] is liable nonetheless if it failed to
reasonably accommodate the handicap of the plaintiff. Good Shepherd
Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 562 (7"
Cir.2003)

There are four elements to a claim under 42 U.S.C. § 3604(f)(3)(B). They are as
follows: (1) the plaintiff is a person with a disability; (2) the defendant knew or should
have reasonably known of the disability; (3) the requested accommodation is necessary to
afford the plaintiff equal opportunity to use and enjoy the dwelling; and (4) the defendant
refused to make the accommodation. U.S. v. California Mobile Home Park Management

Co., 107 F.3d 1374, 1380 (9" Cir.1997)


Oakland University has an “affirmative duty” to provide reasonable
accommodations to students with disabilities and in this case it has failed to meet its
responsibility under the Fair Housing Act.

Mr. Fialka-Feldman, through his counsel requested that the University’s housing
program drop its requirement that students living in the dormitories be enrolled in
coursework leading toward a degree. Additionally, if the University would not drop this
requirement of the housing program completely, then the University was asked to waive
the housing requirement for Mr. Fialka-Feldman as a reasonable accommodation.

This requested accommodation was necessary and related directly to his
disability. Its due to Mr. Fialka Feldman’s disability that he cannot be admitted to the
University through its regular admissions process or be in a program that leads toward a
degree. Students without disabilities choose for a variety of legitimate reasons to enroll
in course work that does not lead toward a degree. But for Mr. Fialka Feldman and other
students in the OPTIONS program, they do not have a choice. The OPTIONS program is
the only program available to them at the University and it does not offer a degree.
Without this requested accommodation Mr. Fialka-Feldman is denied any opportunity to
live in the dormitory residence much less have an “equal opportunity to use and enjoy a
dwelling” as is required by the law. The University’s denial of this requested
accommodation therefore is a violation of the Fair Housing Act, 42 U.S.C. §
3604(f)(3)(B).

2 The Reasonableness of the Requested Accommodation.

Additionally, the requested accommodation is reasonable because it

creates no additional expense or administrative burden for the University. Mr.