UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

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 capacity, 

 Defendants. 

______________________________________/ 

Michigan Protection & Advocacy Service, Inc. BUTZEL LONG 

Chris E. Davis (P52159) By: Robert A. Boonin (P38172) 

Veena Rao (P52981) Regan K. Dahle (P53975) 

29200 Vassar Blvd., Suite 200 350 S. Main Street, Suite 300 

Livonia, MI 48152 Ann Arbor, MI 48104 

Phone: (248) 473-2990 (734) 995-3110 

Email: cdavis@mpas.org Email: boonin@butzel.com 

Attorneys for Plaintiff Attorneys for Defendant 

_____________________________________/ 

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF HIS MOTION FOR SUBSTITUTION 

OF DEFENDANT, SUMMARY JUDGMENT AND PERMANENT INJUNCTION
1. There Is Ample Evidence Of Defendant Snyder’s Discriminatory Intent And That 

The Proffered Reason For The Defendants’ Actions Is Mere Pretext1

Defendants’ claim they are treating plaintiff, Micah Fialka-Feldman, the same as other 

Continuing Education (CE) students. However, Micah and the other OPTIONS students are 

assigned student identification cards with a student identification numbers (also referred to as Gnumbers or Grizzly-numbers, presumably because of the OU’s mascot, the Golden Grizzlies); 

this according to Mr Maten is why Ms. Fisher sent out her e-mail of November 14, 2007. Maten

Dep., pp. 48-49. This means the OPTIONS students are the only students at OU with student 

identification cards and numbers and that are required by their program to take 12 credit hours 

who are denied access to on-campus housing.2

 The Defendants ignore the fact that by providing 

OPTIONS students with G-numbers it is an admission the OPTIONS students are “enrolled” 

students. 

The Defendants in their response brief make much ado about the case of Oxford House-C 

v. City of St. Louis, 843 F. Supp. 1556 (E.D. Mo. 1994), because it was reversed by the Eighth 

Circuit3

. Plaintiff only cited the case to show that “stereotypes, unfounded fears, misperceptions 

and archaic attitudes as well as simple prejudice” can be evidence of discriminatory intent. Id. It

 

1

 Plaintiff’s counsel filed his Motion on Monday, November 16, 2009, not December 1st, as claimed in Defendants’ 

Response Brief, Doc. Item # 43, p.2. This was timely because the court’s deadline fell on a Sunday, November 15, 

2009. When a deadline falls on a weekend day or a legal holiday a party has until the end of the following business 

day the court is open to file. Fed. R. Civ. P. 6. Relying on these court rules, Plaintiff’s counsel filed the motion on

November 16th. The Defendants have not been prejudiced in anyway by the one day delay, they had a full 21 days

to respond as allowed by local court rules, and we would ask the Court to proceed with hearing our motion and

deciding the matter on the merits of the actual claim.

2

 Defendants claim that ADA claims are limited to equal protection claims. However, disparate treatment claims

under the Americans with Disabilities Act, Title II, are by their very nature equal protection claims and the state can 

be sued pursuant to the ADA for damages. The Supreme Court held this to be a valid exercise of Congressional

authority in the abrogation of the states’ sovereign immunity. U.S. v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 

L.Ed.2d. 650 (2006)

3

 Which Plaintiff’s counsel noted when citing the case. See Plaintiff’s Motion Brief, Docket Item #39, p. 10.

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was not cited to show the level of discriminatory intent Plaintiff needs to show, as Defendants

implied. 

Plaintiff however did cite the cases of Larkin v. State of Mich. Dept. of Social Services,

89 F.3d 285, 289 (6th Cir.1996), and Tsombanidis v. West Hazen Fire Dept., 352 F.3d 565, 

579.(2nd Cir.2003) (case involving FHA and ADA claims) relying upon, Vill. of Arlington 

Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 50 L.Ed.2d 450 

(1977), both of which held that a plaintiff need only to show that a discriminatory intent was a 

motivating factor in the decision maker’s process in order to prove discriminatory intent.4

 

The fact remains that Vice President Snyder based her decision on discriminatory, 

outdated and wrong perceptions concerning persons with intellectual disabilities. Exhibits #1 & 

2. As a result, the OPTIONS students are the only OU students with student identification cards

and G-numbers who are summarily denied access to on-campus housing. 

Associate Dean Wiggin’s e-mail, Exhibit #3, provides proof that numerous OU officials 

consider Micah to be an “enrolled student.” Including staff persons in the Housing Department 

like Roxanne Fisher. It proves that the IPEDS definition was never a term-of-art, understood by 

OU officials and staff to mean metriculating students as Defendants claim. In fact, the Housing 

Department’s procedures manual, which outlines the process for housing applications, only

references verification of the student’s G-number. The manual does not require verification of 

the student’s placement in a particular program. Exhibit # 4. 

 

4 Most courts applying the FHA, as amended by the FHAA, have analogized it to Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., which prohibits discrimination in employment. They 

have concluded that a plaintiff may establish a violation under the FHA by showing either: (1) that the 

defendants were motivated by an intent to discriminate against the handicapped (“discriminatory intent” 

or “disparate treatment”); or (2) that the defendant's otherwise neutral action has an unnecessarily

discriminatory effect (“disparate impact”). Larkin at 289. (Citations omitted) 

2
 Additionally, Director Maten had to ask Vice President Snyder whether Micah was 

eligible for housing. Maten Dep. at, pp.46-48. The Defendants claim Mr. Maten was only 

verifying that Micah was not enrolled in a degree granting program before rejecting his

application. But there was absolutely no reason for Mr. Maten to check Micah’s enrollment 

status. Micah on his application, in capital letters, wrote he was in the “OU TRANSITIONS -

OPTIONS” program and provided the OU staff his assigned G-number. Exhibit #5. It is clear 

Mr. Maten was confused because “enrolled student” was not a “term-of-art” and by the common 

everyday meaning and understanding of the words, Micah was an enrolled student with a Gnumber. By the fall of 2007, OPTIONS students were the only such full time students with a Gnumber who would be denied access to housing. It is clear that Mr. Maten was verifying with 

Snyder if she was sure that Micah’s application should be denied. Given these facts, it is the 

only explanation for his actions that makes any sense. It is also proof that “enrolled student” was 

not a term-of-art as Defendants claim. 

Contrary to what they claim, Defendants have allowed other CE students into housing, 

such as English-as-a-Second-Language (ESL) student. One ESL student, Deniz Cikis, was not

even a metriculating student when she was admitted into housing at OU. Exhibit #6. 

2. Plaintiff Needs The Requested Reasonable Accommodation In Order To Afford 

Him An Equal Opportunity For On-Campus Housing 

Defendants continue to rely upon the Fair Housing Case of, Schanz v. Village

Apartments, 998 F.Supp. 784 (E.D. Mich.1998). Defendants are asking this court to ignore 

numerous Supreme Court and Sixth Circuit decisions that are controlling in relation to Micah’s

reasonable accommodation request under the Rehabilitation Act of 1973. See. Plaintiff’s

Response Brief, Docket Item, # 42, pp. 4-7. This does not change the fact that the Defendants

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summarily rejected his accommodation request without any analysis as to whether it would

fundamentally alter the program or create an undue burden. Analyzing an accommodation 

request requires an individualized inquiry. Courts have acknowledged that when the

accommodation requests goes to the requirements of the program an “individual inquiry” is 

made into the necessity of the requirement which is being sought to be modified or waived.

School Board of Nassau County v. Arline, 480 U.S. 273, 287(1987), and 34 C.F.R. 104.3(l)(2)(3) 

. Micah is perfectly capable of living in the dorms.5

 He and the rest of the OPTIONS

students attend classes and their participation and involvement in no way lessens the academic

nature of the classes. In fact, they contribute to the academic nature of these programs. Exhibits 

#8, 9, 10. The Defendants unfounded assertions that the OPTIONS students would alter the 

academic nature of the housing program are completely meritless and have no basis in fact or

reality. It is astounding that Micah attends OU’s academic classes but is now being told that 

housing is too much of an academic program for him to be admitted. Defendants’ assertions are 

entirely devoid of any neutral, or non-discriminatory intent. 

Defendants’ meritless floodgate argument ignores that the Rehabilitation Act requires an 

“individual analysis” be done. See above. The preferential treatment argument Defendants raise

has been attempted and rejected numerous times even in FHA cases. See Giebeler v. M&B 

Assoc., 343 F.3d 1143 (9th Cir.2003); Smith &Lee Associates, Inc. v. City of Taylor, 102 F.3d 

781, 794-796 (6th Cir.1996), and City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 

S.Ct. 1776, 131 L.Ed.2d 801 (1995) Essentially, any accommodation request seeks something 

 

5 Defendants have not relied on their expert’s opinion in their briefs but they have submitted it to the court 

and can be expected to rely on it. In rebuttal, Plaintiff’s counsel has attached our own expert’s opinion,

which demonstrates the Plaintiff’s ability to live on campus and that, his presence would not be a 

fundamental alteration of the Housing Program. Exhibit #7.

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that is not provided to persons without disabilities. The real issues are whether a requested 

accommodation unduly burdens the defendant or does it fundamentally alter the program, and 

whether it affords the person with a disability an equal opportunity for participation in the 

program. Given the nature of his disability, Micah’s only option for attending OU is the

OPTIONS program. The reasonable accommodation request, waiver of the degree requirement, 

would not fundamentally alter the Housing Program and would afford him equal opportunity to 

access the Housing Program the same as other students attending OU full time, who pay tuition 

and who are issued student cards and G-numbers. Without the accommodation, he and other 

OPTIONS students would be the only such students being denied access to the Housing 

Program. 

3. There Is A Substantial Public Interest That Favors The Court Issuing An 

Injunction In This Case If Plaintiff Prevails 

In the past forty-plus-years, the federal government has mandated that elementary and 

secondary schools open their doors to children with disabilities and provide inclusive and 

appropriate education to students with disabilities.6

 It is natural that many of these students with 

disabilities want to continue their education into a post-secondary education setting just as their 

 

6 Beginning in 1965 the federal government began providing states with financial resources to provide

public education to children with disabilities. Elementary and Secondary Education Act of 1965, Pub. L.

No. 89-10, 79 Stat. 27 (1965). The law however did not create a right to public education for children 

with disabilities. Then in 1975, Congress passed the Education for All Handicapped Children Act of 

1975. Pub. L. No. 94-142 (1975), increasing appropriations for the states but requiring a free, appropriate

public education. This law has received several major amendments and is now known as Individuals with 

Disabilities Education Act (IDEA) See. Individuals with Disabilities Education Improvement Act , Pub. 

L. No. 108-446, 118 Stat. 2647 (2004); Individuals with Disabilities Education Act Amendments for 

1997, Pub. L. No. 105-17, 111 Stat. 37 (1997); Education of the Handicapped Act Amendments of 1990,

Pub. L. No. 101-476, 104 Stat. 1103 (1990). For more information, see, Reflections On The New

Individuals With Disabilities Education Improvement Act, 58 FLLR 7 (2006) Mark C. Weber. See also

20 U.S.C. § 1400.

5
non-disabled peers are doing. Great progress has been made for persons with physical

disabilities but attitudes and opportunities for persons with intellectual disabilities have lagged. 

The Federal Government increasingly recognizes the value of greater opportunities for 

persons with disabilities in our society and in particular the importance of opportunities for and 

inclusion of persons with disabilities in post-secondary education. A recent report7

 by the U.S 

General Accountability Office recognizes the increased diversity of higher education in relation

to persons with disabilities and the how the Federal Government has facilitated and made this a

national priority with recent legislation: 

Research suggests that more students with disabilities are pursuing higher 

education than in years past, and recent legislative changes have the potential to 

increase the diversity and numbers of these students. More specifically, the

Higher Education Opportunity Act (HEOA) added new provisions to the Higher 

Education Act of 1965 (HEA) to support postsecondary students with disabilities; 

the Americans with Disabilities Amendments Act of 2008 (ADA Amendments 

Act) amended the Americans with Disabilities Act of 1990 (ADA) to provide 

broader coverage; and the Post-9/11 Veterans Educational Assistance Act of 2008 

(Post-9/11 GI Bill) expanded education benefits for members and veterans of the

military who served on or after September 11, 2001, many of whom may have 

acquired disabilities. (Footnotes omitted.) Exhibit #11, p. 1. 

Additionally, the HEOA makes Federal Pell Grants and other forms of financial 

assistance available to students with intellectual disabilities for the first time. 20 U.S.C. §1091(s). 

The U.S. Congress through its legislative action and statements has made a clear pronouncement 

of a national commitment and interest in ending the unnecessary exclusion of persons with 

disabilities from the American mainstream. It would therefore be in public’s interest that an

injunction be issued to enforce Micah’s rights. 

 

7 U.S General Accountability Office, Report to the Chairman, Committee on Education and Labor, House 

of Representatives: Higher Education and Disability: Education Needs a Coordinated Approach to

Improve Its Assistance to Schools in Supporting Students, (October 2009),

http://www.gao.gov/new.items/d1033.pdf

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CONCLUSION 

Based on the reasons stated above, Plaintiff respectfully requests this Honorable Court to 

grant his requests for summary judgment, substitution of party and issuance of an injunction. 

Plaintiff also requests Defendants’ Motion for summary judgment be denied. 

Respectfully submitted, 

Dated: December 14, 2009 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 

CERTIFICATE OF SERVICE

I hereby certify that on December 14, 2009, I electronically file the foregoing Plaintiff’s Reply 

Brief in Support of his Motion for Substitution of Defendant, Summary Judgment and Permanent 

Injunction with the Clerk of the Court using the ECF system which will send notification of such 

filing to the following: Robert A. Boonin. 

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 

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