JOHN M. GERRARD, District Judge.
The Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA), generally makes it unlawful to deny a "dwelling" to a person based on the person's handicap. See 42 U.S.C. § 3604(f). The question presented is whether student housing at the University of Nebraska-Kearney (UNK) is a "dwelling" within the meaning of the FHA. The Court concludes that it is, making the antidiscrimination provisions of the FHA applicable. Accordingly, the Court will deny the defendants' motion for summary judgment and grant the United States' motion.
The underlying dispute here involves a service animal. The United States, as plaintiff, is suing on behalf of Brittany Hamilton, who has been diagnosed with depression and anxiety. Filing 1 at 1, 3, 7. A therapy dog has been prescribed for Hamilton and is trained to respond to her anxiety attacks. Filing 1 at 7. After Hamilton enrolled to attend UNK for the fall semester in 2010, she signed a lease to live at University Heights, one of UNK's student housing facilities. Filing 1 at 7. But Hamilton's requests to live with her dog were denied, based on UNK's no-pets policy for student housing. Filing 1 at 4, 7. After a few weeks, Hamilton withdrew from her classes and moved out of University Heights. Filing 1 at 14.
UNK is a four-year university in the University of Nebraska system, and it provides student housing for approximately 2,280 students annually.
UNK students who are under the age of 19 on the first day of the semester are required to live in university housing, subject to limited exceptions. Filing 39 at 3. According to UNK, living in university housing promotes a student's educational experience. Filing 39 at 3. Students do not get to choose their own rooms; instead, students elect a building preference and UNK assigns them to a room. Filing 39 at 4. Most UNK students living on campus list a "permanent address" different from their campus address. Filing 39 at 4. Students living in university housing (except for students living in University Heights) must also purchase a meal plan. Filing 39 at 5. Most (but not all) university housing closes during academic breaks: Thanksgiving, winter, and spring. Filing 39 at 5. University Heights and another housing facility are open for students who remain during the summer semester, while other university housing facilities are used as lodging for camps and conferences UNK hosts. Filing 39 at 5.
The housing unit most particularly at issue here, University Heights, is located about a mile off campus. Filing 41 at 9. UNK describes it as "apartment-style living" for "families and single students above the age of 21 who are currently enrolled as full-time students at UNK."
The United States has brought the present case on Hamilton's behalf, alleging that UNK's conduct in denying Hamilton's request for an accommodation violated the FHA. Filing 1 at 1, 15-17. The defendants are UNK, the Board of Regents of the University of Nebraska, and various UNK officials (collectively, UNK). Filing 1 at 2-3. The present cross-motions for partial summary judgment (filings 37 and
Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Id.
Rule 56 also allows the Court to grant summary judgment as to some issues but not as to others. See Fed.R.Civ.P. 56(a). Upon doing so, the Court may "enter an order stating any material fact — including an item of damages or other relief — that is not genuinely in dispute," and thereby treat such a fact "as established in the case." Fed.R.Civ.P. 56(g). The cross-motions for summary judgment before the Court present only one issue: whether UNK's student housing facilities are "dwellings" within the meaning of the FHA.
The various antidiscrimination provisions of the FHA generally proscribe discrimination with respect to "a dwelling." "`Dwelling' means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families...."
"Residence" is not defined by the FHA. When a word is not defined by statute, a court normally construes it in accord with its ordinary or natural meaning. United States v. Lungers, 702 F.3d 1066, 1071 (8th Cir.2013) (citing Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)). Courts have held that the ordinary meaning of the word "residence," in this context, is "a temporary or permanent dwelling place, abode, or habitation to which one intends to return as distinguished from a place of temporary sojourn or transient visit." Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir.2008); Lakeside Resort Enters., 455 F.3d at 157; see also, e.g., Hughes Mem'l Home, 396 F.Supp. at 549.
Superficially, UNK's student housing (and particularly University Heights) appears to be residential: students living in those facilities eat their meals, wash their laundry, do their schoolwork, socialize, and sleep there, just as people ordinarily do in the places they call home. And that view finds support in caselaw: boarding schools, in particular, have been found to be "dwellings" within the meaning of the FHA. Franchi v. New Hampton Sch., 656 F.Supp.2d 252, 260 (D.N.H.2009); United States v. Mass. Indus. Fin. Agency, 910 F.Supp. 21, 26 n. 2 (D.Mass.1996); cf. Hughes Mem'l Home, 396 F.Supp. at 549 (children's home).
UNK argues that its students are "transient" visitors, and that they do not have an "intent to return" to university housing. Filing 39 at 9. UNK points out that most students leave university housing after their first year (when many are no longer required to live there), and that most on-campus students identify "permanent" addresses elsewhere.
Instructive in that regard is a series of cases applying the FHA to housing provided for migrant farm workers. Like a university education, temporary farm labor is periodic and roughly seasonal, and like university students, migrant workers may or may not return to the same place season after season, year after year. But courts have consistently held that the quarters provided for those workers by their employers are "dwellings" within the meaning of the FHA. Lauer Farms, Inc. v. Waushara Cnty. Bd. of Adjust., 986 F.Supp. 544 (E.D.Wisc.1997); Hernandez v. Ever Fresh Co., 923 F.Supp. 1305 (D.Or. 1996); Villegas v. Sandy Farms, Inc., 929 F.Supp. 1324 (D.Or.1996). Workers' occupancy of such quarters is temporary, and they may only occupy them while engaged in their employment. But their "permanent residences are far removed from their places of employment ... and during the growing season [they] reside at the farm and nowhere else." Villegas, 929 F.Supp. at 1328.
Id. And there is no indication in the FHA that Congress intended to limit its coverage to year-round dwellings, because to do so would create a broad exception that would violate the letter and spirit of the FHA. Id. (citing United States v. Columbus Country Club, 915 F.2d 877, 881 (3d Cir.1990)). While the workers may have had other places to return to for the rest of the year, that does not mean that the migrant worker quarters were not also places to which they planned to return: "[t]o the contrary, they would have returned to those structures every night for four to five months."
Similarly, in finding that halfway houses for recovering substance abusers were "dwellings" within the meaning of the FHA, the Eleventh Circuit pointed out that while the patients were admittedly living there temporarily, their stays were far longer than that of the average hotel guest — 6 to 10 weeks, on average, and some as long as 5 months. Schwarz, 544 F.3d at 1215. And the halfway houses were more like homes "because they have common living areas, such as kitchens and living rooms, where residents can socialize like a family." Id. at 1215-16.
Id. at 1216; see also Lakeside Resort Enters., 455 F.3d at 159-60. The same can easily be said of university housing, particularly at University Heights. University Heights, in particular, resembles nothing more than an apartment building, which would clearly be covered by the FHA. See Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1036 (2d Cir.1979). Simply put, students live in university housing for a significant time period, and while they do, they treat it like home. See, Lakeside Resort Enters., 455 F.3d at 159-60; Cohen, 174 F.Supp.2d at 323.
UNK urges a different comparison. UNK points out that many first-year students are required to live in university housing. Filing 39 at 16. They are assigned rooms and perhaps roommates, and while they live there they are subject to more onerous rules and restrictions than are normally associated with residential housing. Filing 39 at 16. And UNK argues that the purpose of university housing is educational, rather than to provide a residence. Filing 39 at 16. Based on these facts, UNK makes the unflattering association between university housing and
To begin with, while UNK is free to contend that university housing serves pedagogical ends, the primary way in which student housing furthers the educational mission of a college or university is by providing students with a place to live while they pursue their education. Jail, on the other hand, does not exist so that prisoners have a place to stay while they participate in prison educational programs. As the Garcia court pointed out, a jail is not designed or intended for occupancy as a residence; "[r]ather, the primary purpose of a jail is to provide just punishment, adequate deterrence, protection of the public, and correctional treatment." 114 F.Supp.2d at 1161. And more importantly, the court in Garcia reasoned that the FHA's policy was to provide for fair housing, which depended on freedom of choicer — a purpose that has no application in the prison context. Id. at 1162. While UNK contends that some first-year students are assigned to university housing, they still choose to enroll at UNK, meaning that they have a freedom of choice that is quite unlike going to jail.
And even assuming that UNK uses the environment of university housing to further educational goals (and the Court sees no reason to doubt that), it does not change the character of the dwelling. It is not clear how many of the restrictions relied upon by UNK are imposed on students living in University Heights, as opposed to other university housing facilities. But more fundamentally, the Court rejects the argument that because students live in an environment conducive to the educational process, it changes the nature of the place where they live from a residence to something akin to a correctional center. See Conn. Hosp. v. City of New London, 129 F.Supp.2d 123, 132 (D.Conn.2001). The Conn. Hosp. court rejected a similar argument in finding that the group homes of a substance abuse treatment center were "dwellings" within the meaning of the FHA. See id. The defendants in that case argued that the highly structured nature of the residents' lives compelled a finding that the homes were no longer residential. Id. at 133. But the court found
Id. at 133-34. UNK's argument is based on a similar misapprehension: that rules make a place less "residential." While university housing may have more rules than the average off-campus apartment, it
The Court's conclusion is buttressed by the regulations promulgated by the Department of Housing and Urban Development (HUD) to implement the FHA. HUD has simply adopted the definition of "dwelling" set forth in the FHA. See 24 C.F.R. § 100.20. And HUD has not defined "residence." But as relevant to disability discrimination, HUD has defined "dwelling unit" as
24 C.F.R. § 100.201 (emphasis supplied).
And HUD's interpretation of the FHA commands considerable deference. When Congress has delegated authority to an administrative agency to interpret and implement a federal statute, and the agency interpretation claiming deference was promulgated in the exercise of that authority, the Court gives the agency's interpretation deference pursuant to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Beeler v. Astrue, 651 F.3d 954, 959 (8th Cir.2011); see also Northskore Mining Co. v. Sec'y of Labor, 709 F.3d 706, 708 (8th Cir.2013). Under Chevron, the agency's view governs if it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Beeler, 651 F.3d at 959. The Court is guided by the maxim that where Congress has not directly spoken to the precise question at issue, it must sustain the agency's approach so long as it is based on a permissible construction of the statute. Northshore Mining, 709 F.3d at 708. HUD is the agency charged with administering the FHA, and its interpretation is entitled to deference here. See, Meyer v. Holley, 537 U.S. 280, 287-88, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003); Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 107, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979).
UNK tries to avoid the implications of § 100.201 in two ways. First, UNK argues that the regulation is ambiguous because it does not define "residence." Filing 39 at 21. UNK contends that while § 100.201 defines "dwelling unit," it does not "provide guidance as to whether a particular building or facility is a `dwelling.'" Filing 39 at 23. In general, that might be the case, but the specific use of the word "dormitory" makes it useful here. If a "dwelling unit" is a unit of residence, then a building containing a "dwelling unit" must be a building designed or intended, at least in part, for occupancy as a residence.
UNK offers a few other arguments it says suggest that university housing is not a "dwelling." First, UNK points out that university housing has been exempted from the Nebraska Uniform Residential Landlord and Tenant Act, Neb.Rev.Stat. § 76-1401 et seq. See Neb.Rev.Stat. § 76-1408(1) (excluding residence at an institution if incidental to educational service). Filing 39 at 19. But the Court is not persuaded that Nebraska's landlord-tenant law illuminates the meaning of a federal statute. And even if it did, it would cut the other way: the Nebraska Legislature would not have needed to specifically exclude educational institutions from the enactment's definition of "dwelling unit" if educational housing was not included in the general definition to begin with. See Neb.Rev.Stat. § 76-1410(3). The Nebraska statute does not help UNK.
Nor does the Americans with Disabilities Act (ADA). UNK points out that the Department of Justice (DOJ), in promulgating regulations implementing the ADA, decided that the standards applicable to newly constructed educational housing should be those for transient lodging, such as hotels, and not those for residential facilities. See Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed.Reg. 56,164, 56,215-16 (Sept. 15, 2010). This, UNK suggests, shows that college students are transients, not residents. Filing 39 at 25. But that oversimplifies the decision that the DOJ made.
Perhaps most importantly, the DOJ was not deciding whether the ADA applied at all — it was determining how the ADA should be applied. And in some respects, the ADA compliance standards for transient lodging are more onerous than those for residential facilities. For instance, multistory public buildings generally must have elevators, while residential facilities need not. 75 Fed.Reg. at 56,215. And transient lodging must have accessibility features immediately available, while residential facilities may in some instances have those features ready to install as needed. Id. But residential facilities require other features that transient lodgings
The point of all that is to demonstrate that the DOJ's decision was not to assign a heightened or lowered degree of accessibility — it was to determine what type, of accessibility was most appropriate for the use of the building. The DOJ used transient lodging as the base standard because it was concerned that the residential standards were insufficient to protect access to educational programs for students with disabilities. And even then, the DOJ added additional requirements for educational housing, such as the residential facilities standards related to turning spaces and kitchen work surfaces. Id. at 56,216. In the end, it suffices to say that the Court finds nothing in the DOJ's rulemaking process that provides any insight into how the Court should apply the well-established standards for determining whether something is a "dwelling" under the FHA.
Finally, UNK argues that Congress did not intend for educational housing to be a "dwelling" because that would alter how colleges and universities operate. Filing 39 at 28. For instance, segregating housing on the basis of gender might be affected. Filing 39 at 29. Essentially, UNK is exhibiting a parade of horribles that could purportedly ensue if UNK is subjected to the FHA.
The Court is not persuaded that UNK's predictions, in their particulars, are realistic. But even if they were, that would not permit the Court to misconstrue the word "dwelling" to avoid them. If the FHA can be read to exclude university housing, then that reading cannot depend on the understanding of the word "dwelling" that UNK urges on the Court. See Franchi, 656 F.Supp.2d at 261. If colleges and universities need to be exempted from the scope of the statutory language, they are free to ask Congress to amend the statute, or petition HUD to promulgate new regulations.
In the meantime, the Court must apply the statute as it is written and has been authoritatively construed by HUD. And based on the statute, UNK's student housing facilities are clearly "dwellings" within the meaning of the FHA. Therefore, UNK's motion for summary judgment on that point will be denied, and the United States' cross-motion will be granted.
IT IS ORDERED:
