Ms. Snyder also testified that the disciplinary nature of the housing program would be
jeopardized because the University cannot use expulsion as leverage with a continuing-education
student like it can with a student in a degree-granting program. (Id. at p. 34) And furthermore,
allowing continuing-education students and/or OPTIONS participants to live in the dorms would
change the basic nature of the housing program by taxing the already limited on-campus housing
capacity. (Jd. at p. 31)

The Sixth Circuit has pronounced that “when reviewing the substance of academic
decisions, courts should show great respect for the faculty’s professional judgment.”
Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432 (6" Cir. 1998). That
pronouncement applies with equal force to the University’s decisions about standards both in the
classroom and in on-campus housing. There should be no question that the University’s
eligibility requirements for on-campus housing are a necessary element of its overall academic
program for students pursuing degrees.*

B. Plaintiff's Accommodation Request is Unreasonable.

Given that the eligibility requirements for on-campus housing are a necessary element of
the University’s housing and academic programs, Plaintiff can only prove that he is a qualified
individual with a disability if there is some reasonable modification to those requirements that

would render him eligible to live in the dorms. There is no such reasonable modification.

* University housing being integral to academic programs is not unique to OU. The Court in
Poynter v. Dreydahl, 359 F. Supp. 1137, 1142 (W.D. Mich. 1972), stated that “[i]t is not
altogether necessary for a court to have before it extensive affidavits in order to conclude. . .
that there is more to learning than simply sitting in a classroom and that the living and learning
centers, afforded by dormitory, eating, student life and other similar facilities are just as
important as the classroom instruction itself.”

13



Amended Complaint asserted the following causes of action: Violation of the FHA, Disparate
Impact and Disparate Treatment; Violation of § 504, Disparate Treatment, Denial of Reasonable
Accommodation and Disparate Impact; and Violation of the ADA, Title II, Disparate Treatment;
For the reasons discussed in detail infra, all of these claims are ripe for summary judgment.

STANDARD OF REVIEW

Summary judgment is warranted where there is an “absence of a genuine issue of
material fact” as to an essential element of the respondent’s case, and where the respondent,
having had sufficient opportunity for discovery, has no evidence to support an essential element
of his or her case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d
202 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478-1480 (6" Cir. 1989). To defeat
summary judgment, the respondent must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Jd. The respondent “must present affirmative
evidence in order to defeat a properly supported motion for summary judgment,” Dollar Corp. v.
Zebedee (In re Dollar Corp.), 25 F.3d 1320, 1322 (6" Cir. 1994). Furthermore, “conclusory
allegations do not create a genuine issue of material fact which precludes summary judgment.”
Johari v. Big Easy Rests., Inc., 78 Fed. Appx. 546, 548 (6th Cir. 2003). Under these standards,
summary judgment is warranted in this case.

ARGUMENT
I. Plaintiff Disparate Impact Claim Fails Due to the Absence of Statistical Evidence.

In Count I of the Second Amended Complaint, Plaintiff is asserting a claim of disparate
impact discrimination under the FHA against Defendants Russi, Snyder and Maten in their

official capacities. To prove discrimination under a disparate impact analysis, Plaintiff must use



Plaintiff's disability is not the bar to Plaintiff's living in on-campus housing; the bar is the fact
that Plaintiff is not an enrolled student in a degree-granting program.

This case is similar to Schanz v. Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich.
1998). In Schanz the plaintiff was mentally disabled and sought a waiver or modification of the
landlord's minimum income and credit worthiness requirements. In holding that the requested
accommodation (specifically, having a relative guaranty the rent) was unreasonable, the court
stated:

[P]laintiff has no need for the Village to accept the Guarantor Agreement to
accommodate his handicap because his handicap is not preventing him from
obtaining an apartment at The Village, and it is plaintiff's financial situation
which he is requesting that defendants accommodate. The FHAA does not require
that this be done. Also, while plaintiff argues that his financial situation is directly
attributable to his handicap, such a contention is nothing more than an attempt by
him to transform his "financial status" into a "handicap" in order to secure relief
under the FHAA. This court cannot accept this argument because it clearly
stretches the FHAA beyond its intended bounds. Id. at 792.

Similarly, in a recent FHA case where the plaintiff alleged that a private apartment
complex discriminated against him because of his disability when it refused to waive its
requirement that residents maintain a certain credit rating, the Sixth Circuit held that the FHA
does not entitle disabled individuals to modifications that are unrelated to their disability:

The FHAA requires accommodation of a person’s disability when the rule in
question, if left unmodified, hurts handicapped people by reason of their
handicap, rather than by virtue of what they have in common with other people,
such as a limited amount of money to spend on housing. . . . Stated a different
way, the FHAA’s accommodation requirement is limited only to lowering barriers
to housing that are created by the disability itself. Sutton v. Piper, 2009 U.S.
App. LEXIS 17201 *3-*4 (July 30, 3009) (citations omitted) (Ex. 17)°

* The Sixth Circuit has held that courts should apply the same line of reasoning in FHA
reasonable accommodation cases as they do in Section 504 cases. Sinith & Lee Assocs. v. City of
Taylor, 102 F.3d 781, 795 (6th Cir. 1996)

17



Il.

iil.

Iv.

STATEMENT OF ISSUES PRESENTED

Is Summary Judgment warranted on Count I of Plaintiff’s Second Amended
Complaint where Plaintiff has no statistical evidence in support of his disparate
impact claim under the Fair Housing Act?

Is Summary Judgment warranted on Counts II, III, V, and VI of Plaintiff’s Second
Amended Complaint since Plaintiff has no evidence that he is an otherwise qualified
individual with a disability?

Is Summary Judgment warranted on Plaintiff’s disparate treatment claims since
Plaintiff has no evidence that Defendants’ legitimate, non-discriminatory reason for
declining his request for on-campus housing was a pretext for disability
discrimination?

Is Summary Judgment warranted on Plaintiff’s claim that Defendants failed to
provide him with a reasonable accommodation where the accommodation that
Plaintiff requested was unreasonable and unrelated to his disability?

Is Summary Judgment warranted on all of Plaintiff's claims where Congress has

implicitly recognized that cognitively impaired students in Transition Programs are
not legally entitled to on-campus housing?

Defendants answer “yes” to each of these questions.

ii



Indeed, the only modification that Plaintiff has proposed is a complete waiver of the eligibility
requirements, which is tantamount to bestowing upon him enrolled-student status. Such a
modification to the eligibility requirements would not cause Plaintiff to be a qualified individual
with a disability, since it is unreasonable as a matter of law.

This case is similar to McPherson v. Michigan High School Athletic Association, Inc.,
119 F.3d 453, 460-62 (6" Cir. 1997). In McPherson, the plaintiff sued the defendant after it
refused to waive its policy that any student who had completed eight semesters of high school
was ineligible to participate in interscholastic sports. The plaintiff had been diagnosed with a
cognitive impairment; he claimed that because of this impairment, he was unable to complete
high school in eight semesters. In his ninth semester in high school, the plaintiff sought a waiver
of the eight-semester rule, but the defendant denied his request. The plaintiff sued under the
ADA and Section 504, claiming that, by refusing to waive the eight-semester rule, the defendant
failed to provide him with a reasonable accommodation to his disability.

The Sixth Circuit rejected the plaintiff's claim, finding that waiving the eight-semester
tule would not be a reasonable modification, because it would alter the fundamental nature of the
high-school athletic program; a waiver would inject into high-school athletic competition
athletes who are older and more physically mature than the majority of other competing students.
The Court also held that to allow waivers on a case-by-case basis would create an administrative
burden on the defendant to sort out legitimate requests for waivers with requests calculated to
gain a competitive advantage.

Plaintiff's requested accommodation is not a reasonable modification to the University’s

housing policy, as it would inject into OU’s housing program individuals not engaged in

14



pronounced that integrated housing is an optional component of a transitional higher-education
program for intellectually disabled students, as opposed to a mandatory component, the
presumption is that this pronouncement is consistent with existing law, including the FHA,
ADA, and Section 504. This presumption belies Plaintiff's argument that OU had a legal
obligation in the OPTIONS program to provide Plaintiff with on-campus housing.

In short, if existing legislation obligated institutions that chose to implement such
Programs to treat participants in the exact same respect and grant them the exact same rights as
regularly enrolled students in degree-granting programs, Congress would not have gone through
the exercise of providing additional incentive for institutions to include a housing element in

such programs by granting a preference to their grant applications.

CONCLUSION

WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiff's
Complaint with prejudice and award Defendants their costs and fees incurred in defending this
meritless lawsuit.

Respectfully submitted,
BUTZEL LONG, a professional corporation

By: /s/ Robert A. Boonin
Robert A. Boonin (P38172)
Regan K. Dahle (P53975)

350 South Main Street, Suite 300

Ann Arbor, Michigan 48104

(734) 995-3110

boonin@butzel.com

dahle@butzel.com

Attorneys for Defendants
Dated: November 13, 2009

20



eligibility requirements. Plaintiff has no evidence to suggest otherwise. The amended contract is
not evidence of pretext.

Plaintiff has no evidence to Support an allegation that the real reason the University
declined his housing application is because he is disabled. As a result, he cannot prove pretext,
and his disparate treatment claims should fail.5

IV. _ Plaintiff's Requested Accommodation Is Unrelated to His Disability.

Plaintiff claims in Count IV that the University failed to provide a reasonable
accommodation to his disability under Section 504 by not waiving its requirement that he be
enrolled as a student in a degree-seeking program in order to be eligible for on-campus housing.
An accommodation under Section 504 is reasonable “unless it requires a fundamental alteration
in the nature of a program or imposes undue financial and administrative burdens." Smith & Lee
Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996) The accommodation that Plaintiff
requests is not reasonable since, as discussed in Section IL, supra, it would require a fundamental
alteration in the nature of the University’s housing program. See McPherson, supra.

Furthermore, the University is only obligated to provide Plaintiff with a reasonable
accommodation if his disability is the bar to living in on-campus housing, as opposed to some

other factor. Schanz y. Village Apartments, 998 F. Supp. 784, 791 (E.D. Mich. 1998) Here,

5 Similarly, Plaintiff's disparate treatment claims under Section 504 and the ADA should fail
because Plaintiff has no evidence that the University denied him on-campus housing solely
because of his disability. In fact, Plaintiff has no evidence that his disability had any reason to
do with the University’s decision. Zibbell v. Mich. Dep't of Human Servs., 313 Fed. Appx. 843,
849 (6th Cir. 2009); Jones v. City of Monroe, 341 F.3d 474, 477 (6th Cir. 2003); Stewart v.
Barnhart, 2005 WL 3088543 (Nov. 14, 2005 W.D. KY) (the plaintiff's Section 504 and ADA
claims failed because he had no evidence that he was denied student housing solely because of
his disability; he was denied housing because he was no longer enrolled as a student) (Ex. 18).

16



(@(17). That report requires the disclosure of certain enrollment data. (Ex. 5)’ Per the National
Center for Education Services’ directive, students who are only engaged in non-credit bearing
activities, as is Plaintiff, are not to be included in enrollment figures. (Ex. 14, 2009-2010 NCES
Survey Materials) In other words, they are not considered “enrolled students.”

Similarly, OU’s financial aid office is subject to numerous federal reporting
requirements, including filing an annual Fiscal Operations Report and Application to Participate
(FISAP). (Ex. 15, 2008-2009 Sample FISAP Report) Similar to IPEDS requirement, in this
process the University is directed to not report students as enrolled if they are exclusively
engaged in non-credit bearing activity, such as auditing classes. (Ex. 16, 2010-2011 FISAP
Instructions)

Consistent with IPEDS and FISAP reporting requirements, OU does not include any
continuing-education students or OPTIONS participants as “enrolled” students in these reports.
OU’s classification of these individuals in this regard is consistent with OU’s classification of
them as non-enrolled students for purposes of on-campus housing eligibility.

A. The Eligibility Requirements are Necessary to the Housing Program.

Limiting on-campus housing to enrolled students in degree-granting programs is an
essential and necessary requirement to the University’s housing program. OU’s housing
program is an academic program, the focus of which is to move students forward to the
achievement of their academic degree. (Ex. 6 at pp. 9, 29) The Housing Department has

implemented special academic and social programs for on-campus housing with the purpose of

* Interestingly, the report also required disclosure of on-campus housing data, which is defined in
IPEDS as “faJny residence halls owned or controlled by an institution within the same
reasonably contiguous geographic area and used by the institution in direct support of or in a
manner related to, the institution’s education purposes.” (Ex. 21) (Emphasis added)

11



was ... even the dining program, it was an opportunity for those students to

intermingle, talk, discuss academic work and those needs. So we felt our program

and our efforts were geared towards creating an academic . . . program in a

residential environment. . .. We had movie nights, we had . . . Friday night live

where we had comedians that came in and talk to students. The RAs [Resident

Advisors] again provided those programs, but again those were we felt

opportunities for students to. . . engage and build relationships that could have led

to someone agreeing, some student social engagement, the student may find a

study partner. So all of those were social opportunities . . . they were underlying

goals of those students actually focusing on their... academic pursuits and that

was my vision for the department. (Ex. 4 at pp. 14-15)
As Vice President Snyder testified, “. . . housing is there to serve the interest of the University in
moving students through the pipeline to get their degree.” (Ex. 6 at p. 29)”
Il. _ Plaintiff Submitted a Contract for On-Campus Housing

In October 2007, Plaintiff applied to live in on-campus housing by submitting to the
Department of University Housing a contract for Residence Hall Services. When the Housing
Department receives housing contracts for processing, a staff member first verifies that the
individual has completed the contract in full and paid the deposit. (Ex. 7, Affidavit of R. Fisher)
After this step, the contract is forwarded to a second person in the Housing Department who
confirms that the individual meets the eligibility requirements for housing, and once confirmed,
mails out the housing assignment. (Jd.) The Housing Department received Plaintiff's housing
contract on or about October 30, 2007. Roxanne Fisher, the clerical employee in the Housing
Department responsible for the first step in the process described above, verified that Plaintiff

had completed the contract and submitted the deposit. (/d.)

? Other accoutrements of the University’s programs are reserved for students pursuing degrees,
including such services and programs as financial aid, student employment, Academic Skills
Center, Student Technology Center and Peer Mentoring. (Ex. 19)



Southeastern Community College v. Davis,
442 U.S. 397 (U.S. 1979) .srsecssssssssssesnesesssseessnssseconsessonsscsssssscssssscssssecesssnusesssssseseessens LO

Stewart v Barnhart
2005 WL 3088543 (W.D. Ky. Nov. 14, 2005) ...sssssscssssccssssscssssscssssesessssesssssssssessesees 16

Street v. J.C. Bradford & Co.,
886 F.2d 1472 (6" Cir. 1989)

Sutton v. Piper,
2009 U.S. App. LEXIS 17201 *3-*4 (July 30, 3009)......sssssssssssscsssssscssssseessssseesseese 17

Wilson v. Glenwood Intermountain Properties, Inc.
98 F.3d 590 (LOth Cir. 1996).....ssssccssssssssccssesercnsssssssscesssscesssnssssssseessssseeessssssessesaseeeee 18

Zibbell v. Mich. Dep't of Human Servs.,
313 Fed. Appx. 843 (6th Cir. 2009).....ccssssssssesssesssssssssssssssssseosssessnnneeesessssesssseseees 9, 16

STATUTES
20 USC § 1001 .cssssssnsescesnseeeserseesesstsssssssnsensssnsssseesessessnsssentsasesasesnesteeteceteeseee 18
20 USC § 1094 (A) (17) cescosscsersessssssnsssnssesanesanessnssssnesssnsssnansssnsensecestnsenesessasssenes 1)
20 USC § 1140.

20 USC § 1140g...nsssccccssssssssscscsssnseeesssssscsnsnssonsssssssssseosesccrsnsssceseessnussssessssssnssseeeesesssnssessee 19
42 U.S.C. § 12131.

AZ U.S.C. § 130. cessssscscssssssseecssssssnsssssssescsssssnscsossccsssuneseeseessnsssceessesesssssecssesessvssesssssssesessnees 1

iv



CONTROLLING AUTHORITY

CASES

Alexander v. Choate,
469 U.S. 287 (U.S. 1985) .sesscssssssnsssensesenssensessnneensvcsenecsssesssnesenessssvssssnssensssssesesseessesssse 9

Anderson v. Liberty Lobby, Inc.,
477 US. 242, S.Ct. 2505, 91 L.Ed.2d 202 (1986) ....cseccosssscssescsssccscssscesssscnesenecsescseee 7

Dollar Corp. v. Zebedee (In re Dollar Corp.),

25 F.3d 1320 (6" Cir. 1994)... 7

Graoch Assocs. # 33, L.P. v. ponisville/Tefferson County M Metro Human Rels. Comm'n,
508 F.3d 366 (6th Cir. 2007).... avesensseneses ase srsssnsensesasceneesees 8

Johari v. Big Easy Rests., Inc.,
78 Fed. Appx. 546 (6th Cir. 2003)....sssssssessssesssssscsessssessssssssseerssessnsessssssssvesensessesesseees 7

Jones v. City of Monroe,
341 F.3d 474 (6th Cir. 2003)....sssssssssssssssesessessseserseessssssssesssssssssssssssssseesseessseeeese 95 16

Kaltenberger v. Ohio College of Podiatric Medicine,
162 F.3d 432 (6" Cir. 1998)....ccscssesssssssssseecssssesescscecceesesesseecescecessssaseees 13

Marbly v. Home Props. of N.Y.,
205 F. Supp. 2d 736 (E.D. Mich. 2002)...

McPherson v. Michi: igan. High School Athletic Association, Inc.,
119 F.3d 453 (6" Cir. 1997) sssssesssnnsscesccscsssessesesessonsnnsnnsnnercessesensessssesanassnenenenee 14, 16

Miles v. Apex Marine Corp.,
498 U.S. 19, 111 S. Ct. 317, L. Ed. 2d 275 (1990) ..sssccccsssscssssssessssssessssessesssssvesseene 19)

Poynter v. Dreydahl,
359 F. Supp. 1137 (W.D. Mich. 1972)

Schanz v. Village Apartments,
998 F. Supp. 784 (E.D. Mich. 1998)....sssssssssssssssessssessssvsesseesenssssseesesseeeseene 16, 17, 18

Smith & Lee Assocs. v. City of Taylor,
102 F.3d 781 (6th Cir. 1996).....sssssssssssssesssesssnesssseersnssssnssssnnsersnesssscssesesseneess 10, 16, 17

iii



supporting and encouraging students in their pursuit of an academic degree. (Ex. 4 at pp. 14-15)
In fact, the Housing Department has designated certain residence halls and even specific floors in
residence halls for students engaged in common academic pursuits, like pre-nursing, the honors’
college, business students, etc. One dorm is even reserved solely for freshmen. (Ex. 4 at pp. 8-
13) If non-degree-seeking students were permitted to live in the dorms, the academic focus of
the housing program would be jeopardized in several different ways, many of which have been
described by Mary Beth Snyder:

Q: Would waiving this rule about being enrolled in the university as a
matriculating student, waiving that housing condition for eligibility, would that
change or alter the nature of the housing program?

A: Yes it would. ... You would have individuals living in housing who have a
very different purpose for being there then for what housing is designed for. . . .
Their purpose would be different because they would not be continuously enrolled
in courses that are important to their degree aspirations. They would have very
different needs for services. It would be hard to say for anybody that wasn’t a
student what their requirements would be. Right now we’ve designed the
programs and services to keep students focused on achieving the academic degree.

eR

Q: What about the housing program, in terms of what it offers, would be changed
by allowing a person from the OPTIONS program to live in housing on campus?

A: The culture itself would change. You’ve got a culture with undergraduates
who all have the same goals, and that is to move toward degree completion.
Having individuals who aren’t of a similar mind set, who don’t have that goal,
changes the nature of the program.

eR
Q: What undo administrative burden are they going to create?

A: Just take an example, you have study floors, you’ve got quiet hours, you’ve got
all kinds of rules that are designed to work well and keep students who have
serious degree aspirations on task. And if you’ve got individuals, OPTIONS or
otherwise, who are not [in] degree programs, student staff... would have to have
multiple sets of rules and policies that would guide their interactions with these
different segments of the residential population. (Ex. 6 at pp. 28-32)

12



social skills. (Ex. 1, Dep. of R. Wiggins, p. 23) Robert Wiggins, OU’s Associate Dean of the
School of Education and Human Services (“SEHS”), first proposed the OPTIONS program to
the Dean of the SEHS in March 2007. In his proposal, Wiggins described on-campus housing as
a possible element of the program. (Ex. 2, Proposal) However, Wiggins did not consult with the
Housing Department to verify whether OPTIONS participants were eligible for on-campus
housing. (Ex. 1 at p. 42) The Proposal was ultimately approved by the Dean without a housing
component. (Id. at pp. 62-63)

OPTIONS is not an academic program, and, as with all continuing-education students, its
participants do not earn credits applicable toward any degree. (Ex. 3, Dep. of J. Fialka, pp. 83-
84) OU did not intend that OPTIONS participants become enrolled as students in degree-
granting programs. (Ex. | at p. 10) This was clear by the Provost’s August 2007 order. (Ex. 20)

I. The Academic Focus of On-Campus Housing at Oakland University

It is OU’s policy to offer on-campus housing to those enrolled as students in degree-
granting programs. (Ex. 4, Dep. of L. Maten, pp. 48, 64-65)! Oakland University has on-
campus housing capacity for approximately 1,900 students; the University has approximately
18,000 enrolled students. (Ex. 5, IPEDS Report)

OU’s housing eligibility policy is premised on the fact that on-campus housing at OU is
an integral part of the University’s academic program (Ex. 6, Dep. of M. Snyder, p. 9), and the
focus of the Housing Department is to further that academic program:

We like to believe that our entire focus as a department was geared towards

creating an academic program for students. So everything we did . . . we like to
believe that we were enhancing or creating an academic program. Whether that

' During the summer, the University permits certain external summer camp programs and hostel
services limited access to certain dormitories. (Ex. 6)



The holdings in both Schanz and Sutton support dismissal of Plaintiff's claims. Here, the
accommodation that Plaintiff is Tequesting is a waiver of the University’s requirement that, to
live in the dorms, one must be enrolled as a student in a degree-granting program. However,
waiving that requirement does nothing to accommodate Plaintiffs disability; waiving the
requirement would only accommodate the fact that Plaintiff is not enrolled as a student in a
degree-granting program. The accommodation that Plaintiff seeks would, because of his
disability, grant him a preference or “privilege” over non-disabled continuing-education students,
and just as in Schanz, transform his non-enrolled student status into a disability. Such a result is
not favored or required. Schanz at 792, n.15,.7

The accommodation that Plaintiff is requesting under Section 504 is not reasonable. It is
unrelated to his disability and would fundamentally alter the nature of the University’s housing
program. This claim should be dismissed.

Vv. Congress Implicitly Rejected the Idea that Cognitively-Impaired Students in
Transition Programs Are Entitled to On-Campus Housing.

Congress amended the Higher Education Act (HEA), 20 USC § 1001, et seq., on August
14, 2008 to include a subpart “to support model demonstration programs that promote the
successful transition of students with intellectual disabilities into higher education.” 20 USC §

1140f. The statute authorizes the award of federal grants “on a competitive basis, to institutions

7 See also the court’s dicta in Wilson v. Glenwood Intermountain Properties, Inc. 98 F.3d 590,
592 (10th Cir. 1996), where two non-students challenged the gender-segregated housing program
of Brigham Young University: “The Fair Housing Act does not make it unlawful for landlords to
give preference to college students over non-students.” dd. at 594 The same can be said in this
case---that the Fair Housing Act does not make it unlawful for OU to give preference to those
enrolled as students in degree-granting programs over individuals not enrolled as students in
degree-granting programs. It is their status as students who are not enrolled and in degree-
granting programs that is the determining factor, not their membership in a protected class.

18



UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICAH FIALKA-FELDMAN,
Case Number 08-CV-14922
Plaintiff, Hon. Patrick J. Duggan

Vv.

OAKLAND UNIVERSITY BOARD

OF TRUSTEES, GARY D. RUSSI, MARY BETH
SNYDER, and LIONEL MATEN, in their

official capacities,

Defendants.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Defendant Oakland University Board of Trustees and Defendants Gary D. Russi, Mary
Beth Snyder and Lionel Maten, in their official capacities, by their attorneys, Butzel Long, a
professional corporation, in accordance with Rule 56 of the Federal Rules of Civil Procedure,
hereby request that this Court enter an Order dismissing Plaintiff's Second Amended Complaint.
As is demonstrated in detail in the Brief accompanying this Motion, there are no genuine issues
of material fact in this case, and Defendants are entitled to judgment in their favor as a matter of
law.

WHEREFORE, Defendants respectfully request that this Court dismiss Plaintiff's Second
Amended Complaint with prejudice and award Defendants their costs and fees incurred in

defending this meritless lawsuit.



its policy of offering housing to only those enrolled as students in degree-granting programs, but
the University opted not to waive its policy.
IV. Modifications to the Housing Contract

Mr. Maten became the Director of University Housing in October 2006. After the
customary settling-in period to become oriented with his new post, he began the process to revise
the University’s housing contracts in two principle ways. First, the University had separate
contracts for its student apartments and traditional residence hall facilities, and Mr. Maten
wanted to combine those two contracts into a single contract for efficiency reasons. (Ex. 4 at pp.
19-22) Second, Mr. Maten believed that OU should amend the contract so that students had to
maintain a higher academic standard to remain in on-campus housing. As he explained:

There was always a credit requirement to live in our residential facilities.

However, that requirement was one students could initially start with, with what

the university termed a full load for the undergraduate student, which was twelve

hours, and they could actually reduce their number of hours all the way down to

one hour and could continue to live in the residential facilities. That student was

not focused on their academic pursuit, making academic progress I felt towards a

degree. And our goal in continuing to grow the academic program in the

residence halls was for students to . . . focus on academic pursuits. (Cd. at p. 22)

To accomplish this, Mr. Maten advocated a strict credit-hour requirement for housing
eligibility. In the Summer of 2007, Mr. Maten received approval from Vice President Snyder to
include a strict credit-hour requirement in the housing contract forms that would become
effective for the 2008-2009 academic year. (Ex. 10, §9) The revised version clarified the
eligibility requirements to include very specific credit-hour and grade-point average
requirements, among other eligibility criteria:

To be eligible to reside in Residence Halls or Apartments, students must be: (a)

formally admitted to the University as matriculated or conditionally admitted
students in a degree program at the University and enrolled in a minimum of 8



Plaintiff's father emailed Ms. Fisher on November 14, 2007, just two weeks after
Plaintiff submitted the contract, and inquired whether there was anything else he needed to do so
that Plaintiff would be available for January dormitory living. Ms. Fisher notified Mr. Feldman
that they were “all set” and proceeded to provide the Department’s boilerplate schedule for the
making of housing assignments. (Ex. 8, Email from Feldman to Fisher) By telling Mr. Feldman
that Plaintiff was “all set,” Ms. Fisher only meant that the contract was completed and the
deposit had been submitted. She did not intend her response to indicate that Plaintiff was
qualified for on-campus housing. That is not her job, and she does not have the authority to
make that representation or decision. (Ex. 7)

Lionel Maten was, at that time, OU’s Director of University Housing. Soon after
Plaintiff submitted his housing application, Mr. Maten learned that Plaintiff had informed others
at the University that he had been approved to move into the dorms. Based on his previous
contact with the OPTIONS program, specifically his attendance at meetings where he told
OPTIONS participants, administrators and parents that the participants were not eligible for on-
campus housing, it was Mr. Maten’s understanding that said participants were not enrolled as
students in degree-granting programs. (Ex. 4 at pp. 32-38) Mr. Maten then contacted Vice
President Snyder to confirm that his previous understanding was correct. (Jd. at p. 47) When
Vice President Snyder confirmed that Plaintiff had not gone through the admissions process and
qualified himself as a student enrolled in a degree-granting program, Mr. Maten immediately
notified Plaintiff that his contract was being returned because he did not meet the eligibility
requirements for student housing. (Ex. 4 at p. 48, Ex. 9, Letter from L. Maten to Plaintiff)

Plaintiff then met with several University administrators and requested that the University waive



INTRODUCTION
Plaintiff is a participant in Oakland University’s OPTIONS program. The OPTIONS

ptogram is a program for individuals with cognitive disabilities. Administratively, Oakland
University (“OU” or the “University” classifies OPTIONS participants as continuing-education
students. Pursuant to OU’s housing policy only those enrolled as students in degree-granting
programs are eligible to live in on-campus housing; continuing-education students are not.

In October 2007, Plaintiff applied to live in OU’s dorms. OU denied Plaintiff's
application because Plaintiff was not enrolled as a student in a degree-granting program.
Plaintiff claims that the University’s failure to waive this eligibility requirement amounts to
disability discrimination in violation of Title II of the Americans with Disabilities Act (ADA), 42
U.S.C. § 12131, et seq., Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. §
794 (a) and the Fair Housing Act (FHA), 42 U.S.C. § 1301, et seq. Plaintiff's discrimination
claims have no merit. Just like the other 1,400 continuing-education students, and all other
individuals not enrolled as students in degree-granting programs at OU, Plaintiff is not eligible to
live in on-campus housing, because he is not enrolled as a student in a degree-granting program;
his ineligibility has nothing to do with his disability.

There are no genuine issues of material fact in this case, and no legal grounds for
granting Plaintiff relief. Summary judgment is warranted.

STATEMENT OF FACTS

I Background of the OPTIONS Program

The OPTIONS program is designed to allow young adults with cognitive impairments to

experience an academic setting after high school, meet interesting people, and improve their



academic degree-seeking pursuits. And, since it is the only modification that would render
Plaintiff eligible to live in the dorms, Plaintiff is not “qualified.” Consequently, Counts II, III, V
and VI of the Second Amended Complaint should be dismissed.

II. Plaintiff's Claims Fail because Plaintiff Has No Evidence of Pretext.

Even if Plaintiff could establish a prima facie case of disparate treatment discrimination,
his claim should still fail because he has no evidence that the University’s reason for denying
him on-campus housing, namely that he is not enrolled as a student in a degree-granting
program, is a pretext for disability discrimination. Marbly v. Home Props. of N.Y., 205 F. Supp.
2d 736, 740 (E.D. Mich. 2002). As an initial matter, Plaintiff has no evidence that the University
has ever allowed anyone other than those enrolled as students in degree-granting programs to
live in on-campus housing. Moreover, one former OPTIONS participant who has since become
enrolled as a student in a degree-granting program is now eligible to live in on-campus housing.
(Ex. 10, § 14) And finally, as discussed in Section I supra, there are currently 76 disabled
individuals enrolled as students in degree-granting programs living in on-campus housing. All of
these facts, which are undisputed, dispel any finding that the University’s reason for not
accepting Plaintiff's housing application was a pretext for disability discrimination.

Plaintiff will likely argue that the fact that the University revised the housing contract
after he submitted his application for housing is evidence of pretext. However, Plaintiff's
argument fails, because Plaintiff would not have been eligible for on-campus housing under the
terms of either the contract he submitted or the revised contract. The amendments to the contract

had absolutely no effect on Plaintiff's eligibility for housing; they merely clarified the housing

15



Certificate of Service

I, Robert A. Boonin, hereby certify that on November 13, 2009, I electronically filed the
foregoing document with the Clerk of the court using the ECF system, which will send
notification of such filing to all counsel of record.

BUTZEL LONG, a professional corporation

By: /s/ Robert A. Boonin
Robert A. Boonin (P38172)

350 South Main Street, Suite 300
Ann Arbor, Michigan 48104
(734) 995-3110
boonin@butzel.com

Attorneys for Defendants

21



TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED .....sssssssssssssssssessesssesessnssssssesensssesesssssersesseeesese id

INTRODUCTIO)

L
IL.

Til.
IV.

Background of the OPTIONS Program .....ssssssssssssssessssssssssessecssssessseessecsssecssees 1
The Academic Focus of On-Campus Housing at Oakland University.............2
Plaintiff Submitted a Contract for On-Campus Housing..........sssssesescesesesseeee 3
Modifications to the Housing Contract.......c..sssssssssssssssssscssssescnssctssnsesesssecsnseseseee 5

Procedural History.

L

I.

=

Plaintiff Disparate Impact Claim Fails Due to the Absence of Statistical
Evidence.....sesscsssscssssesseesonesssssssssecesnccsssessnssssscsenseessuensnssssnsesenssssesesssecsnsecsnsecssecersees 7

Plaintiff’s Claims in Counts I, III, V and VI Fail, because Plaintiff Is
Not an Otherwise Qualified Individual with a Disability.

A. The Eligiblity Requirements are Necessary to the Housing Program.11
B. Plaintiffs Accommodation Request is Unreasonable............sssesssee 13

Plaintiff’s Claims Fail because Plaintiff Has No Evidence Of Pretext..

Plaintiffs Requested Accommodation is Unrelated to His Disability............ 16

Congress Implicitly Rejected the Idea that Cognitively-Impaired
Students in Transition Programs Are Entitled to On-Campus Housing....... 18

CONCLUSION ....cssssssscsssssssscssonessnsessssesesnscsssessssssssnecesssessouecesossenesssssesonsecsnsessusessaseerseces 20



statistical evidence to show that Oakland University’s facially neutral policy of allowing only
students enrolled in degree-granting programs access to on-campus housing has a significant
adverse impact on disabled individuals. Graoch Assocs. # 33, L.P. v. Louisville/Jefferson County
Metro Human Rels. Comm'n, 508 F.3d 366, 378 (6th Cir. 2007); Oti Kaga, Inc. v. S.D. Hous.
Dey. Auth., 342 F.3d 871, 883 (8th Cir. 2003).

Summary judgment is warranted on Plaintiff's disparate impact claim under the FHA
because Plaintiff has no statistical evidence to support his theory that the University’s policy has
a significant adverse impact on disabled individuals. In fact, the only disabled individuals whom
Plaintiff can demonstrate may be denied on-campus housing by operation of the University’s
policy are the participants in the OPTIONS program—at no time numbering more than twelve
individuals. This “statistic” certainly does not demonstrate that the University’s policy had a .
significant impact on disabled individuals, especially considering that there are approximately
1,400 other continuing-education students who are also not eligible for housing under the
University’s policy. Granted, some of the other continuing-education students might also be
disabled, but Plaintiff has no statistical evidence identifying the number of disabled continuing-
education students denied housing as opposed to the number of non-disabled continuing
education students denied housing. Without this statistical evidence, Plaintiff cannot prove his
disparate impact claim.

Furthermore, Oakland University currently has 383 self-identified disabled students
enrolled in degree-granting programs, and 76 of those students live in on-campus housing. (Ex.
13, Affidavit of L. Sisson) These statistics demonstrate that nearly 20% of Oakland University’s

disabled students live in on-campus housing. (/d.) In contrast, of the approximately 18,000



meets the essential eligibility requirements for receipt of services or the participation in programs
or activities provided by a public entity." 42 U.S.C. § 12131 (emphasis added); Southeastern
Community College v. Davis, 442 U.S. 397, 406 (1979). A modification is only “reasonable” if
it does not amount to a fundamental alteration in the nature of the program at issue. Smith & Lee
Assocs. v. City of Taylor, 102 F.3d 781, 795 (6th Cir. 1996). Plaintiffs claims under these
statutes fail because: (1) the eligibility requirements to live in on-campus housing are necessary
and essential to the University’s academic and housing programs; and (2) the modification that
Plaintiff is proposing to. render him eligible to live on-campus is unreasonable, as it would
fundamentally alter the academic nature of the housing program.

Plaintiff will likely maintain that the essential eligibility requirements at issue should be
limited to those set forth on the housing contract he submitted and argue that he satisfies such
requirements by virtue of being classified as a continuing-education student and participating in
the OPTIONS program. Any such argument will fail.

In OU’s Housing Department the term “enrolled student” means a student who is
enrolled as a student in a degree-granting program. (Ex. 4 at p. 24) Vice President Snyder
testified that “enrolled students” are those that are pursuing an academic degree. (Ex. 6 at p. 9)

The term “enrolled” is a term of art within the context of higher education. The
University’s various government-mandated reporting requirements are evidence of this fact. For
example, all institutions of higher education which participate in any Federal financial assistance
program authorized by Title IV of the Higher Education Act of 1965, as amended, are required to

complete an IPEDS (Integrated Postsecondary Education Data System) report. 20 U.S.C. § 1094

10



UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICAH FIALKA-FELDMAN,
Case Number 08-CV-14922
Plaintiff, Hon. Patrick J. Duggan

v.

OAKLAND UNIVERSITY BOARD

OF TRUSTEES, GARY D. RUSSI, MARY BETH
SNYDER, and LIONEL MATEN, in their

official capacities,

Defendants.

DEFENDANTS’ BRIEF IN
SUPPORT OF MOTION FOR SUMMARY JUDGMENT:



of higher education . . . to enable the institutions . . . to create or expand high quality, inclusive
model comprehensive transition and postsecondary programs for students with intellectual
disabilities.” 20 USC § 1140g.

In awarding grants under the amended HEA, the Department of Education “give[s]
preference to applications submitted . . . that agree to incorporate into the model comprehensive
transition and postsecondary program for students with intellectual disabilities carried out under
the grant one or more of the following elements:

(A) The formation of a partnership with any relevant agency serving students with
intellectual disabilities, such as a vocational rehabilitation agency.

(B) In the case of an institution of higher education that provides institutionally
owned or operated housing for students attending the institution, the integration of

students with intellectual disabilities into the housin; offered to nondisabled

Sucents with intellectual disabilities into the housing

students.

(C) The involvement of students attending the institution of higher education who

are studying special education, general education, vocational rehabilitation,

assistive technology, or related fields in the model program.
20 USC § 1140g (emphasis added). On its face, the statute does not require an institution to
integrate the participants in such model comprehensive transition and postsecondary programs
into housing offered to regular students in order to qualify for federal grant money; housing
integration is merely one element that a program could include to ensure that its grant application
teceives preference.

Congress is presumed to enact legislation with knowledge of the law, and a newly-enacted
statute is presumed to be harmonious with existing law and judicial concepts. Miles v. Apex

Marine Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990) ("We assume that

Congress is aware of existing law when it passes legislation"). Consequently, when Congress

19



Concurrence in this motion was sought, but denied, on November 12, 2009.

Dated: November 13, 2009

, BUTZEL LONG, a professional corporation

By:__/s/ Robert A. Boonin
Robert A. Boonin (P38172)
Regan K. Dahle (P53975)
350 S. Main St., Suite 300
Ann Arbor, MI 48104
(734) 995-3110
boonin@butzel.com
dahle@butzel.com
Attorneys for Defendants



credit hours during each fall or winter semester, and 4 credit hours for each spring

or summer semester, in which they reside in Residence Halls or Apartments; (b)

matriculated students in a degree program in another college or university that has

an affiliation agreement with the University; or (c) participating in the

University’s hostel program or authorized summer camp programs. Students

enrolled in continuing education classes or other non-degree programs are not

formally admitted to the University. (Ex. 11, 2008-2009 Contract for Residence

Hall Services)

As this Court is aware, the version of the housing contract submitted by Plaintiff stated
that to be eligible for on-campus housing, an individual had to be “enrolled as a student.” (Ex.
12, 2007-2008 Contract for Residence Hall Services) . Plaintiff, ignoring the uncontroverted
evidence that Mr. Maten had been seeking to include a strict credit-hour requirement so as to
increase the academic focus of the residence halls, makes much ado about the timing of the
modification of the contract language: and argues it is evidence of pretext. However, the
amendments to the housing contract had absolutely no effect on Plaintiff's eligibility to live in
on-campus housing. Plaintiff did not qualify for housing under the 2007-2008 housing contract
because he was not “enrolled as a student,” as discussed in detail in Argument Section II infra,
and he also did not qualify for housing under the 2008-2009 housing contract.

V. Procedural History

On November 25, 2008 Plaintiff filed the initial Complaint in this matter. On December
15, 2008, Plaintiff filed a Motion for Preliminary Injunction and Expedited Consideration. On
February 5, 2009, this Court denied Plaintiff's Motion.

On February 26, 2009, Plaintiff filed a Motion for Leave to File Amended Complaint.
This Court granted in part and denied in part Plaintiff's Motion. On April 30, 2009, Plaintiff
filed a Motion for Leave to File Second Amended Complaint. This Court granted Plaintiff's

Motion and Plaintiff filed the Second Amended Complaint on June 19, 2009. The Second



enrolled students in degree-granting programs at the University, only approximately 1,700--or
about 9.4 %--live in on-campus housing. (Ex. 10, Maten Affidavit, §93, 4) In sum, a higher
percentage of disabled students in degree-granting programs live in on-campus housing than
non-disabled students in degree-granting programs. This statistic certainly does not support a
finding that the University’s housing policy has an adverse impact on disabled students.

Plaintiff simply cannot meet his burden of proving with statistical evidence that
significantly more disabled students than non-disabled students are denied housing under the
University’s policy. Consequently, summary judgment is warranted.

I. Plaintiff’s Claims in Counts II, III, V and VI Fail, because Plaintiff Is Not an
Otherwise Qualified Individual with a Disability.

In Counts Il, III and V, respectively, Plaintiff is asserting claims of disparate treatment
disability discrimination under the FHA, Section 504 and Title II of the ADA. In Count VI he is
asserting a claim of disparate impact discrimination under Section 504. Under each of these
statutes, at a minimum, Plaintiff must prove that he is an “otherwise qualified” individual with a
disability. Marbly v. Home Props. of N.Y., 205 F. Supp. 2d 736, 740 (E.D. Mich. 2002) (setting
forth the standard for disparate treatment claim under the FHA); Jones v. City of Monroe, 341
F.3d 474, 477 (6th Cir. 2003) (setting forth the standard for disparate treatment claim under the
ADA); Zibbell vy. Mich. Dep't of Human Servs., 313 Fed. Appx. 843, 849 (6th Cir. 2009) (holding
that ADA and Section 504 claims are subject to the same analysis); Alexander v. Choate, 469
U.S. 287, 300-302 (1985) (setting forth standard for disparate impact claim under Section 504).

The FHA, ADA and Section 504 employ the same basic definition for determining
whether an individual is “qualified.” A "qualified individual with a disability" is "an individual

with a disability who, with or without reasonable modifications to rules, policies, or practices . . .