UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MIKAH FIALKA-FELDMAN,

Plaintiff,

v. Case No. 08-14922

Honorable Patrick J. Duggan

OAKLAND UNIVERSITY BOARD

OF TRUSTEES, GARY D. RUSSI,

MARY BETH SNYDER, and LIONEL

MATEN,

Defendants.

____________________________/

OPINION AND ORDER

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on December 23, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

Plaintiff initiated this lawsuit against Defendant Oakland University Board of

Trustees on November 25, 2008, claiming that Defendant’s denial of his request for

housing in one of Oakland University’s on-campus dormitory living spaces violates the

Fair Housing Act (“FHA”), 42 U.S.C. § 3604(f)(3)(B), and § 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 794(a). Plaintiff has since, with the Court’s permission,

amended his complaint to add University officials Gary D. Russi, Mary Beth Snyder, and

Lionel Maten as defendants and the following claims:

(I) disparate impact discrimination in violation of the FHA;

Fialka-Feldman v. Oakland University Board of Trustees Doc. 53

Dockets.Justia.com
1

Defendants oppose Plaintiff’s request to substitute the new Director of Housing

for Mr. Maten. (Doc. 45 at 20 n.13.) Defendants indicate that the new director (whose

name is not provided by either party) had no role in the decision whether to afford

Plaintiff on-campus housing. Defendants further indicate that this individual’s inclusion

in the case is unnecessary because Mary Beth Snyder, as Oakland University’s Vice

President of Student Affairs and Enrollment Management, oversees student housing and

therefore is the person with the authority to direct the Housing Department to carry-out

any order granting Plaintiff relief. While this may be true, Federal Rule of Civil

Procedure 25(d) provides for the automatic substitution of a public officer who “ceases to

(continued...)

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(II) disparate treatment discrimination in violation of the

FHA;

(III) disparate treatment discrimination in violation of the

Rehabilitation Act;

(IV) denial of a reasonable accommodation in violation of the

Rehabilitation Act;

(V) disparate treatment discrimination in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12101-12213; and,

(VI) disparate impact discrimination in violation of the

Rehabilitation Act.

Presently before the Court is Defendants’ Motion for Summary Judgment pursuant

to Federal Rule of Civil Procedure 56(c), filed November 13, 2009 (Doc. 37). Also

before the Court is Plaintiff’s cross-motion for summary judgment pursuant to Rule 56(c),

filed November 16, 2009 (Doc. 39). In his motion, Plaintiff also requests a permanent

injunction pursuant to Federal Rule of Civil Procedure 65(d) and seeks to substitute the

current Oakland University Director of Housing as a defendant for Lionel Maten, who no

longer serves in that position, pursuant to Federal Rule of Civil Procedure25(d).1

 The
1

(...continued)

hold office while the action is pending” with his or her successor. Fed. R. Civ. P. 25(d). 

Nevertheless, the Court must know the person’s name to make the substitution and thus is

denying the request at this time.

3

parties’ motions have been fully briefed and the Court held a motion hearing on

December 17, 2009.

I. Applicable Standards

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate

if “the pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed R. Civ. P. 56(c). The central inquiry is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986). After adequate time for

discovery and upon motion, Rule 56(c) mandates summary judgment against a party who

fails to establish the existence of an element essential to that party’s case and on which

that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S. Ct. 2548, 2552 (1986).

The movant has an initial burden of showing “the absence of a genuine issue of

material fact.” Id. at 323, 106 S. Ct. at 2553. Once the movant meets this burden, the

“nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
4

106 S. Ct. 1348, 1356 (1986) (quoting Fed. R. Civ. P. 56(e)). To demonstrate a genuine

issue, the nonmoving party must present sufficient evidence upon which a jury could

reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby,

477 U.S. at 252, 106 S. Ct. at 2512. The court must accept as true the non-movant’s

evidence and draw “all justifiable inferences” in the non-movant’s favor. See id. at 255,

106 S. Ct. at 2513.

A plaintiff seeking a permanent injunction pursuant to Federal Rule of Civil

Procedure 65 must demonstrate the following: “It has suffered irreparable injury, there is

no adequate remedy at law, ‘that, considering the balance of hardships between the

plaintiff and defendant, a remedy in equity is warranted,’ and that it is in the public’s

interest to issue the injunction.” Audi AG v. D’Amato, 469 F.3d 534, 550 (6th Cir. 2006)

(quoting eBay, Inc. v. MercExchange LLC, 547 U.S. 388, 126 S. Ct. 1837, 1839 (2006)). 

Additionally, to be entitled to a permanent injunction, the plaintiff actually must succeed

on the merits of his or her claim(s). See Kallstrom v. City of Columbus, 136 F.3d 1055,

1067 (6th Cir. 1998); Duer Constr. Co. v. Tri-County Building Trades Health Fund, 132

Fed. App’x 39, 45 (6th Cir. 2005) (unpublished opinion).

II. Factual and Procedural Background

Plaintiff is a twenty-four year old male with cognitive impairments that

substantially limit a major life activity, specifically his ability to learn. Plaintiff has been

attending classes at Oakland University (hereafter “Oakland” or “University”) since 2003. 

He has been enrolled in the University’s OPTIONS program since Fall 2007, when the
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University established the program “. . . to provide a fully inclusive, age appropriate postsecondary education experience for students with mild cognitive disabilities.” (Doc. 39,

Ex. 6.)

Participants in the OPTIONS program are required to take a minimum of twelve

credits per semester and pay the regular University tuition rate for undergraduate

students; however, the program is not a degree-granting program. (Id.) Students in the

program are categorized as “continuing-education” students. The proposal for the

program developed and presented to the University by Robert Wiggins, the University’s

Associate Dean in the School of Education and Human Services, identified the various

housing configurations available on-campus as one rationale for University involvement

in the program. (Doc. 39, Ex. 3 at 2-3.) When the University approved the OPTIONS

program, however, it did not consider on-campus housing as part of the program. (Doc.

45, Ex. 14 at 62-63.) 

In Spring 2007, at Plaintiff’s Person Centered Planning meeting, housing was

discussed as a goal for the coming year. Thereafter, Plaintiff and his father, Rich

Feldman, took a pre-arranged tour of Oakland’s dormitory housing. At the start of the

tour, they were greeted by Defendant Lionel Maten, then the Director of University

Housing. Plaintiff submitted a completed housing application on November 1, 2007. 

(Doc. 39, Ex. 7.) The “Terms and Conditions” on the back of the application provide,

with respect to “ELIGIBILITY”: “To be eligible for University housing a student must be

enrolled as a student at the University throughout the entire period of the Contract.” (Id.)
6

In response to an inquiry from Mr. Feldman on November 8, 2007, Dean Wiggins

indicated that he had spoken with Roxanne Fisher in the Housing Department and learned

that Plaintiff’s application “has been accepted and is being processed.” (Doc. 39, Ex. 8.) 

Ms. Fisher is an Office Assistant in the University Housing Department who is

responsible, when applications are first received by the department, for verifying that it is

complete and that the required deposit has been submitted. (Doc. 37, Ex. 7.) Ms. Fisher

does not determine whether applicants meet the eligibility requirements to live in oncampus housing. (Id.)

Mr. Feldman thereafter sent an e-mail to Ms. Fisher, inquiring as to whether there

was anything more he needed to do so Plaintiff could begin living in on-campus housing

in January 2008. On November 14, 2007, Ms. Fisher responded that “there is nothing

else [Plaintiff] needs to do. He is all set.” (Doc. 37, Ex. 8.) She then described the

University’s schedule for making housing assignments, the move-in procedure, and some

of the personal items residents can possess in their dormitory rooms. (Id.) In an affidavit

submitted in support of Defendants’ motion, Ms. Fisher states that she did not intend to

indicate that Plaintiff was qualified for on-campus housing when she wrote that he was

“all set” in her e-mail to Mr. Feldman. (Id., Ex. 7.) Rather, she only intended to convey

that Plaintiff’s application was “all set” for her purposes (i.e. it was complete and a

deposit had been paid). (Id.)

On November 29, 2007, Mr. Wiggins sent an e-mail to Mr. Feldman, indicating

that he had been told that Plaintiff is not eligible for on-campus housing and that Plaintiff
7

would be receiving a letter informing him of this. (Doc. 39, Ex. 9.) In a subsequent email to Mr. Feldman on January 7, 2008, Mr. Wiggins wrote that he “had a conversation

with our university council and found out that it has been university practice for some

time that the dorm facilities are restricted to students who are pursuing a degree” and that

“they have held to this firmly . . .” (Id.) Mr. Wiggins further wrote:

This is sort of what our VP for Student Affairs [Ms. Snyder]

told me initially, but she either didn’t explain it as well or I

was not really hearing it. I am surprised that the folks in the

housing office didn’t recognize the conflict before we got so

far but Lionel [Mr. Maten] is new and perhaps the others were

not aware that OPTIONS was not a degree program.

(Id.)

Plaintiff and his representatives lobbied University officials throughout 2008,

requesting that the University waive its policy of limiting housing to students enrolled in

degree-granting programs and allow Plaintiff to live on campus. Plaintiff’s request was

denied at various levels. In the interim, in March 2008, the University modified the

“Terms and Conditions” on the back of its “Contract for Residence Hall Services” to

specify that residents are required to be enrolled as matriculating students. (Doc. 39, Ex.

13.) Plaintiff filed this lawsuit on November 25, 2008.

On December 15, 2008, Plaintiff filed a motion for preliminary injunction based

on his FHA claims. (Doc. 4.) At that time, Plaintiff had only named the Oakland

University Board of Trustees (“Board of Trustees”) as a defendant. In an opinion and

order issued on February 5, 2009, this Court held that Plaintiff’s FHA claims against the
8

Board of Trustees were barred by the Eleventh Amendment to the United States

Constitution. (Doc. 12 at 12.) The Court also indicated that Plaintiff was not likely to

succeed on his FHA claims because his requested accommodation “[was] not necessary to

afford him an ‘equal opportunity’ to use and enjoy on-campus housing because all

students not enrolled in a degree-granting program (whether they are or are not

handicapped) are ineligible for such housing.” (Id. at 13.) The Court therefore concluded

“that Plaintiff’s requested accommodation [was] not necessary to ameliorate the effects of

his disability and to afford him an opportunity equal to non-disabled students to use and

enjoy University on-campus housing.” (Id. at 15-16.) The Court now will reevaluate its

conclusions with respect to Plaintiff’s FHA claims and evaluate Plaintiff’s other claims

pursuant to the summary judgment standard.

III. Applicable Law and Analysis

As indicated earlier, both parties move for summary judgment. Defendants argue

that they are entitled to summary judgment with respect to all of the claims asserted in

Plaintiff’s Second Amended Complaint. Plaintiff argues that he is entitled to summary

judgment with respect to his disparate treatment discrimination claims brought pursuant

to the FHA, Rehabilitation Act, and ADA (Counts II, III, and V, respectively) and his

reasonable accommodation claim under the Rehabilitation Act (Count IV). At the motion

hearing, Plaintiff’s counsel informed the Court that Plaintiff is no longer pursuing his

disparate impact discrimination claims brought pursuant to the FHA and Rehabilitation

Act (see Doc. 42). Therefore, the Court is dismissing those claims (Counts I and VI,
9

respectively).

A. Failure to Accommodate

Section 504(a) of the Rehabilitation Act provides that “[n]o otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of his or her

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 . .

.”

29 U.S.C. § 794(a). The Rehabilitation Act does not contain an accommodation

requirement. See Wisconsin Cmty. Servs. v. City of Milwaukee, 645 F.3d 737, 746 (7th

Cir. 2006). However, the federal regulations implementing the statute specifically set

forth such a requirement:

A recipient [of Federal funds] shall make reasonable

accommodation to the known physical or mental limitations

of an otherwise qualified handicapped applicant or employee

unless the recipient can demonstrate that the accommodation

would impose an undue hardship on the operation of its

program.

28 C.F.R. § 41.53.

Defendants do not dispute that Plaintiff is disabled. Defendants contend that

Plaintiff is not an “otherwise qualified individual” with a disability because he is not

enrolled at the University in a degree-granting program and only degree-granting students

are eligible to live in on-campus housing. For purposes of the Rehabilitation Act, “[a]n

otherwise qualified person is one who is able to meet all of a program’s requirements in
10

spite of his handicap.” Southeastern Cmty. Coll. v. Davis, 44 U.S. 397, 407, 99 S. Ct.

2361, 2367 (1979) (emphasis added). The Supreme Court’s subsequent decisions,

however, have clarified what “all” means in this definition. See, Wynne v. Tufts Univ.

Sch. of Med., 932 F.32d 19, 24 (1st Cir. 1991); Doherty v. Southern Coll. of Optometry,

862 F.2d 570, 574 (6th Cir. 1988) (en banc).

In Alexander v. Choate, the Supreme Court provided: 

. . . an otherwise qualified handicapped individual must be

provided with meaningful access to the benefit that the

grantee offers. The benefit itself, of course, cannot be defined

in a way that effectively denies otherwise qualified

handicapped individuals the meaningful access to which they

are entitled; to assure meaningful access, reasonable

accommodations in the grantee’s program or benefit may

have to be made.

469 U.S. 287, 301, 105 S. Ct. 712, 720 (1985). As subsequently understood by lower

courts:

“After Alexander . . . it is clear that the phrase ‘otherwise

qualified’ has a paradoxical quality; on the one hand, it refers

to a person who has the abilities or characteristics sought by

the grantee; but on the other, it cannot refer to those already

capable of meeting all the requirements– or else no

reasonable requirement could ever violate § 504, no matter

how easy it would be to accommodate handicapped

individuals who cannot fulfill it. This means that we can no

longer take literally the assertion of Davis that ‘an otherwise

qualified person is one who is able to meet all of a program’s

requirements.’”

Doherty, 862 F.2d at 574-75 (quoting Brennan v. Stewart, 834 F.2d 1248, 1261 (5th Cir.

1988) (emphasis in original). The relevant question, therefore, is “‘whether some
11

‘reasonable accommodation’ is available to satisfy the legitimate interests of both the

grantee and the handicapped person.’” Id. at 575 (quoting Brennan, 834 F.2d at 1261-62). 

As a result, the “otherwise qualified” and “reasonable accommodation” inquiries merge. 

Id.

One element of the “otherwise qualified-reasonable accommodation” analysis is

whether an accommodation is “necessary.” See Smith & Lee Assoc. v. City of Taylor, 102

F.3d 781, 795 (6th Cir. 1996). An accommodation is necessary 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.’” Sutton v. Piper, No. 08-2377, 2009 WL 2341491, at *1

(6th Cir. July 30, 2009) (unpublished opinion) (quoting Wis. Cmty. Servs., 465 F.3d at

749); see also Smith & Lee Assoc., 102 F.3d at 795 (citing Bronk v. Ineichen, 54 F.3d

425, 429 (7th Cir. 1995) (“The concept of necessity requires at a minimum the showing

that the desired accommodation will affirmatively enhance a disabled plaintiff’s quality of

life by ameliorating the effects of the disability.”) Stated differently, there must be a

“direct nexus” or “direct correlation” between the plaintiff’s handicap and the barrier to

his or her equal access to the program or benefit at issue. See Schanz, 998 F. Supp. at

792.

In Sutton, the Sixth Circuit determined that an accommodation was not necessary

because a federally subsidized apartment complex rejected Plaintiff’s housing application

due to his poor credit history– which “[a] review of [his] credit report confirm[ed]
12

. . . resulted from his own financial mismanagement and not his disability.” Id. at *2; see

also Schanz v. The Village Apartments, 998 F. Supp. 784, 791-92 (E.D. Mich. 1998)

(finding no direct nexus between the plaintiff’s disability and the rejection of his housing

application because his financial status, not his disability, rendered him ineligible). 

Similarly, in Alexander, the Supreme Court determined that an accommodation to the

proposed rule challenged by the disabled plaintiffs was not necessary because it did not

impact the plaintiffs by reason of their disabilities. 469 U.S. at 302-03, 105 S. Ct. at 720-

21.

The Alexander Court wrote:

The new limitation does not invoke criteria that have a

particular exclusionary effect on the handicapped; the

reduction neutral on its face, does not distinguish between

those whose coverage will be reduced and those who

coverage will not on the basis of any test, judgment, or trait

that the handicapped as a class are less capable of meeting or

less likely of having . . .

469 U.S. at 302, 105 S. Ct. at 720-21. This reasoning, which suggests that an

accommodation is not “necessary” whenever it would grant a “preference” to the disabled

over the non-disabled, was applied by the district court in Schanz and the Second Circuit

Court of Appeals in Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (1998). 

Defendants rely on these cases for that proposition. The Supreme Court, however,

expressly disavowed such a rationale for rejecting an accommodation in U.S. Airways,
2

The failure to consider Barnett in previous decisions in this case flawed the

Court’s analysis.

3

It is not significant that Barnett involved a failure to accommodate claim under

the ADA instead of the Rehabilitation Act. As the Sixth Circuit observed when applying

ADA standards to a Rehabilitation Act claim that did not involve employment

discrimination:

It is well-established that the two statutes are quite similar in

purpose and scope. “The analysis of claims under the [ADA]

roughly parallels those brought under the Rehabilitation Act”

. . . Further, “by statute, the [ADA] standards apply in

Rehabilitation Act cases alleging employment

discrimination.”

McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459-60 (6th Cir. 1997)

(internal citations omitted).

13

Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516 (2002).2

In that case, U.S. Airway argued that an accommodation under the ADA’s

reasonable accommodation requirement should be deemed unreasonable whenever it

violates a “disability-neutral workplace” rule (such as a seniority rule) and grants a

“preference” to disabled employees.3

 The Supreme Court rejected this argument,

explaining:

While linguistically logical, this argument fails to recognize

what the Act specifies, namely, that preferences will

sometimes prove necessary to achieve the Act’s basic equal

opportunity goal. The Act requires preferences in the form of

“reasonable accommodations” that are needed for those with

disabilities to obtain the same workplace opportunities that

those without disabilities automatically enjoy. By definition

any special “accommodation” requires the employer to treat

an employee with a disability differently, i.e., preferentially. 

And the fact that the difference in treatment violates an
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employer’s disability-neutral rule cannot by itself place the

accommodation beyond the Act’s potential reach.

. . .

The simple fact that an accommodation would provide a

“preference”– in the sense that it would permit the worker

with a disability to violate a rule that others must obey–

cannot, in and of itself, automatically show that the

accommodation is not “reasonable.”

Id. at 397-98, 122 S. Ct. at 1521 (emphasis in original). The Sixth Circuit has applied

similar reasoning in holding that an accommodation of a city’s zoning law prohibiting

more than six residents from living in property zoned for single-family use was necessary

and reasonable to provide disabled elderly individuals equal access to housing in singlefamily residential neighborhoods. Smith & Lee Assoc., 102 F.3d at 795-96. In that case,

the court reasoned: “[T]he phrase ‘equal opportunity,’ . . . is concerned with achieving

equal results, not just formal equality.” Id. at 795.

The second element of the “otherwise qualified-reasonable accommodation”

inquiry is whether the accommodation is “reasonable.” “[A]n accommodation is

reasonable unless it requires ‘a fundamental alteration in the nature of a program’ or

imposes ‘undue financial and administrative burdens.’” Smith & Lee Assoc., 102 F.3d at

795 (quoting Davis, 442 U.S. at 410, 412, 99 S. Ct. at 2369, 2370). The Supreme Court

has indicated that, “in most cases,” determining whether an accommodation is

“reasonable” will require the district court “to conduct an individualized inquiry and

make appropriate findings of fact.” Sch. Bd. of Nassau County v. Arline, 480 U.S. 273,

287, 107 S. Ct. 1123, 1130 (1987) “In cases involving waiver of applicable rules and
4

In its pleadings and at oral argument, Defendants repeatedly state that Plaintiff is

not a “student” at the University. Clearly Defendants are using that term in a narrow

sense to refer only to individuals enrolled in a degree-granting program. In fact, Plaintiff

is a “student”– albeit not a matriculating student. By contending that Plaintiff is not a

student at all, Defendants are trying to suggest that requiring an accommodation in this

(continued...)

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regulations, the overall focus should be on ‘whether waiver of the rule in the particular

case would be so at odds with the purposes behind the rule that it would be a fundamental

and unreasonable change.’” Jones v. City of Monroe, 341 F.3d 474, 480 (6th Cir. 2003)

(emphasis added) (quoting Dadian v. Vill. of Wilmette, 269 F.3d 831, 838-39 (7th Cir.

2001)). The burden of proving that an accommodation is not reasonable lies with the

public entity. Id.

Turning to the present matter, Plaintiff has requested an accommodation in the

form of a waiver of the University’s policy limiting on-campus housing to students

enrolled in a degree-granting program. Unlike Sutton, the undisputed evidence indicates

that this barrier to housing is created “by reason of” Plaintiff’s disability (i.e., his

cognitive impairments that substantially limit his ability to learn). The University may

have denied Plaintiff’s housing request based on a characteristic that he has in common

with non-disabled students– his status as a continuing-education student and nonenrollment in a degree-granting program. However there is no dispute that, unlike other

continuing-education students (except other OPTIONS program participants), it is

because of Plaintiff’s disability (not some other factor) that he is unable to enroll in a

degree granting program.4

 In that sense, the Court finds Plaintiff’s situation more akin to
4

(...continued)

case would mean that any “non-student” can seek housing on Oakland’s campus. What

the Court is concluding, however, is that a student at the University whose disability

prevents him or her from enrolling in a degree-granting program may be entitled to a

reasonable accommodation to provide the student with access to housing equal to that of

students able to enroll in such programs.

16

the plaintiff in the case cited by his counsel at the motion hearing: Giebeler v. M & B

Associates, 343 F.3d 1143 (9th Cir. 2003).

In Giebeler, the Ninth Circuit concluded that there was “a direct causal link”

between the plaintiff’s impairment and the barrier to housing based on the court’s finding

that “if [the plaintiff] were still able to work in the position he held before becoming ill,

he would have met [the apartment complex]’s financial requirements.” Id. at 1147. The

court therefore held that the plaintiff was entitled to the protections of the FHA. Id. 

Similarly, this Court finds that Plaintiff’s cognitive impairments prevent him from

enrolling in a degree-granting program and therefore the protections of the Rehabilitation

Act are necessary to provide him with an “equal opportunity” to live in the University’s

on-campus housing. The remaining question is whether Plaintiff’s requested

accommodation is reasonable.

Defendants contend that allowing continuing-education students to live in the

University’s dormitories will require “a fundamental alteration in the nature of [it’s

housing] program.” (Doc. 45 at 16.) Ms. Snyder, who oversees the University’s Housing

Department as the University’s Vice President of Student Affairs and Enrollment

Management, testified during her deposition in this matter that the housing program is “an
17

academic program” that is “focused on the purpose of moving students toward an

academic degree.” (Doc. 37, Ex. 6 at 9.) Ms. Snyder conveys that allowing non-degree

seeking students into University housing will change the “culture” and “the entire nature

of the relationship between the university and the people in housing to the point where

it’s, it’s no longer an academic program per se.” (Id. at 28-29.) When asked to explain

how the presence of OPTIONS program students in the dormitories would affect the

University’s housing program, Ms. Snyder referred to some unspecified impact on “study

floors” and “quiet hours.” (Id. at 31.) She further indicated that expulsion cannot be used

as a leverage with continuing-education students like it can with students in degreegranting programs and that there would be “a whole set of issues if the halls were opened

to community members who weren’t enrolled where the university has limited [housing]

space on campus.” (Id.)

Courts have held that deference should be extended to an educational institution’s

academic decisions. See, e.g., Zukle v. Regents of Univ. of Calif., 166 F.3d 1041, 1047

(9th Cir. 1999) (citing cases). As the Ninth Circuit summarized in Zukle:

These courts noted the limited ability of courts, “as contrasted

to that of experienced educational administrators and

professionals,” to determine whether a student “would meet

reasonable standards for academic and professional

achievement established by a university,” and have concluded

that “courts are particularly ill-equipped to evaluate academic

performance.”

Id. (quoting Doe v. New York Univ., 666 F.2d 761, 775-76 (2d Cir. 1981)). This Court

questions whether this reasoning applies equally to a university’s decisions with respect
18

to its housing policies and therefore whether such deference should be accorded to those

decisions. The Court finds it unnecessary to resolve that issue in this case, however. This

is because the rationale Defendants offer for why Plaintiff’s requested accommodation is

not reasonable is premised on an overstatement of the accommodation the University is

being asked to make, is not based on the facts presented, and reflects a failure to engage

in an “individualized inquiry.”

First, Plaintiff’s requested accommodation would not require the University to

open its on-campus housing to all continuing-education students. The Rehabilitation Act,

like the ADA and FHA, only mandate reasonable accommodations to provide equal

access to disabled individuals. The University is being asked to provide an

accommodation to Plaintiff, only. The Court only is determining whether he is

“otherwise qualified” for on-campus housing and whether allowing him to live in the

University’s dormitories would impose “a fundamental alteration in the nature of [the

University’s housing] program.”

With respect to the latter determination, the evidence indicates that Defendants did

not make an individualized inquiry to determine whether allowing Plaintiff to live in one

of its dorm rooms would in some way alter the purported academic-fostering environment

of its housing program. As the Supreme Court stated in Arline, “[s]uch an inquiry is

essential if § 504 is to achieve its goal of protecting handicapped individuals from

deprivations based on prejudice, stereotypes, or unfounded fear . . .” 480 U.S. at 287, 107

S. Ct. at 1131. Defendants argue that an individualized analysis of Plaintiff’s requested
5

As it became clear at the motion hearing, Defendants are asking the Court to look

at whether any accommodation would render Plaintiff qualified to enroll in a degreegranting program. However, the benefit or program to which Plaintiff is seeking equal

access is the housing program. Thus the question is more properly framed as whether

Plaintiff can qualify for this program with or without a reasonable accommodation.

19

accommodation was unnecessary because it was obvious, without engaging in such an

inquiry, that no accommodation would render Plaintiff eligible for on-campus housing.5

(Doc. 48 at 3-4.) Defendants analogize Plaintiff’s case to that of a blind person who

seeks an accommodation of a school district’s sight requirement for its bus drivers. (Id.) 

However this analogy fails for the reason that, while sight undoubtedly is an essential

requirement to drive a bus, Defendants have not shown that enrollment in a degreegranting program is an essential requirement to live in a campus dormitory.

The undisputed evidence undermines any assumption or conclusion reached by

Defendants that allowing Plaintiff to live in on-campus housing will interfere with the

housing program’s “purpose of moving student’s toward an academic degree.” The

evidence shows that Plaintiff contributes to the academic environment, has been praised

by professors “for his participation and for the positive effects he had on the classroom

environment,” that he is not disruptive in class and abides by classroom rules, and that he

participates in study groups where he works to understand the material and contributes to

the group’s efforts to understand the material. (Doc. 39, Exs. 15, 25, 26.) A fellow

student at the University, Heather Sterner, states in her affidavit in support of Plaintiff’s

motion that Plaintiff’s “level of participation and interest far exceeds that of most of his
20

peers,” that he is “always engaged and asking questions,” and “makes it clear to everyone

in class that he is clearly there to learn.” (Id., Ex. 26 ¶ 2.) There is an absence of

evidence to support Defendants’ assumption that Plaintiff’s presence in the dormitories

will change the academic environment or that he will be incapable of following housing

rules. This assessment instead appears to be grounded on prejudice, stereotypes and/or

unfounded fear. As a result, Defendants fail to carry their burden of demonstrating a

threat to the fundamental nature of the University’s housing program if Plaintiff’s request

for a reasonable accommodation is granted.

For these reasons, the Court concludes that waiving the University’s policy of

limiting on-campus housing to students enrolled in a degree-granting program is

necessary to avoid discrimination on the basis of Plaintiff’s disability and reasonable. 

Defendants violated § 504 of the Rehabilitation Act by failing to provide Plaintiff with

this requested accommodation. Plaintiff therefore is entitled to summary judgment with

respect to Count IV of his Second Amended Complaint.

B. Disparate Treatment

As set forth earlier, Plaintiff asserts disparate treatment discrimination claims

under § 504 of the Rehabilitation Act, Title II of the ADA, and the FHA. The three-part

burden shifting test established in McDonnell Douglas Corporation v. Green, 411 U.S.

792, 93 S. Ct. 1817 (1973), applies to these claims. Graoch Assoc. #33 v.

Louisville/Jefferson County, 508 F.3d 366, 371-72 (6th Cir. 2007) (FHA); Jones v. City of

Monroe, 341 F.3d at 477 (Rehabilitation Act and ADA).
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First, Plaintiff must demonstrate a prima facie case of discrimination by

establishing that (1) he has a disability; (2) he is “otherwise qualified;” and (3) he “is

being excluded from participation in, being denied the benefits of, or being subjected to

discrimination under the program solely because of [his] handicap.” Jones, 341 F.3d at

477 (emphasis added and citations omitted). A claim under the Rehabilitation Act also

requires a showing that the relevant program or activity is receiving Federal financial

assistance. Doherty, 862 F.2d at 573. As defined in the ADA, an “otherwise qualified”

individual is “an individual with a disability who, with or without reasonable

modifications to rules, policies, or practices . . . 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. As outlined in the preceding section, a similar

definition has developed in case law interpreting the “otherwise qualified” element of a

Rehabilitation Act claim.

If Plaintiff establishes a prima facie case of discrimination, Defendants must

articulate “some legitimate, nondiscriminatory reason” for the University’s decision to

reject his housing application. Plaintiff then must demonstrate that Defendants’ proffered

reason is pretextual. In this case, Plaintiff’s discrimination claims fail at the first step.

Plaintiff is not able to show that he was denied on-campus housing solely by

reason of his disability. The evidence demonstrates that the University followed a policy

of limiting on campus housing to students enrolled in degree-granting programs before

Plaintiff applied for a room in one of its dormitories. In the Court’s view, Mr. Wiggins’
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e-mails to Mr. Feldman after the University rejected Plaintiff’s application are the

strongest evidence of this. As Mr. Wiggins wrote, he spoke with university council and

learned that “it has been university practice for some time that the dorm facilities are

restricted to students who are pursuing a degree” and that “they have held to this firmly . .

.” (Id.) Mr. Wiggins acknowledged that Ms. Snyder also had conveyed this policy to

him. Aside from overnight stays by high school students and one week or shorter stays

by summer camp or journalism program participants, Plaintiff presents no evidence of the

University waiving this rule. Changes made to the housing application– that the evidence

shows were contemplated before Plaintiff applied– do not establish that the rule was

enacted to discriminate against Plaintiff because of his handicap.

Because Plaintiff fails to demonstrate a prima facie case of disability

discrimination, the Court concludes that Defendants are entitled to summary judgment

with respect to his disparate treatment discrimination claims (Counts II, III, and V).

C. Permanent Injunction

In his Second Amended Complaint, Plaintiff seeks an injunction “ordering

Defendants to immediately provide on-campus dormitory housing for [him].” An

injunction is an available remedy for a violation of § 504 of the Rehabilitation Act. See

42 U.S.C. § 2000d-7. As set forth above, the Court concludes that Defendants have

violated the Act’s reasonable accommodation requirement.

Plaintiff will suffer irreparable harm absent an injunction because he will be

denied equal access to campus housing solely by reason of his disability. The Court also
6

Plaintiff indicates that the upcoming semester (which begins in January and ends

in May 2010) is his last semester at the University.

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finds that there is no adequate remedy at law and therefore a remedy in equity is

warranted. Damages cannot satisfy what Plaintiff has lost as a result of Defendants’

failure to grant his request for a reasonable accommodation– the opportunity to live in the

University’s on-campus housing. The only remedy is to grant him a waiver of the

housing policy requiring residents to be enrolled in a degree-granting program.

Balancing the equities between the parties, the Court finds that Plaintiff will suffer

harm absent an injunction whereas the University will suffer little or no harm. 

Defendants assert that “Plaintiff completely misstates and oversimplifies the effect a

favorable ruling for Plaintiff would have on OU allowing nine OPTIONS students to live

in the dorms.” (Doc. 43 at 19-20.) Actually it is Defendants who misstate and overexaggerate the effect of a ruling for Plaintiff when they assert that such a ruling would

require the University to make its on-campus housing available for all continuingeducation students. (Id.) In fact, as indicated earlier, the Court only is finding that

Plaintiff must be allowed to live in the dorms. In light of the evidence discussed above,

and because spaces are available in the University’s on-campus housing, the Court cannot

find any harm to the University as a result of such a ruling. In comparison, Plaintiff will

suffer substantial harm if an injunction is not issued because his opportunity to live in oncampus housing soon will be lost.6

Lastly, the public interest is served by the enforcement of federal statutes barring
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disability discrimination and guaranteeing that disabled individuals are provided equal

access to programs receiving Federal financial assistance.

The elements necessary for a permanent injunction to issue therefore have been

satisfied. The Court is granting Plaintiff’s request for an injunction ordering Defendants

to provide on-campus housing for him during his final semester at the University.

IV. Conclusion

Based on the above, the Court holds that Plaintiff is entitled to summary judgment

with respect to his failure to accommodate claim brought under § 504 of the

Rehabilitation Act. Plaintiff also is entitled to relief in the form of a permanent

injunction. Defendants, however, are entitled to summary judgment with respect to

Plaintiff’s remaining claims.

Accordingly,

IT IS ORDERED, that Defendants’ Motion for Summary Judgment is

GRANTED IN PART AND DENIED IN PART in that summary judgment is granted

to Defendants with respect to Counts I-III, V, and VI of Plaintiff’s Second Amended

Complaint;

IT IS FURTHER ORDERED, that Plaintiff’s Motion for Substitution of

Defendant, Summary Judgment and Permanent Injunction is GRANTED IN PART

AND DENIED IN PART in that his motion for substitution of defendant is DENIED,

his motion for summary judgment is GRANTED IN PART AND DENIED IN PART in

that summary judgment is granted as to Count IV of his Second Amended Complaint, and
25

his request for a permanent injunction is GRANTED;

IT IS FURTHER ORDERED, that Defendants are ordered to provide on-campus

housing for Plaintiff during the upcoming semester (beginning in January 2010).

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Chris E. Davis, Esq.

Veena Rao, Esq.

Robert A. Boonin, Esq.

Regan K. Dahle, Esq.