Fialka-Feldman v. Oakland University Board of Trustees

Filing 60

TRANSCRIPT of HEARING ON MOTIONS held on December 17, 2009. (Court Reporter/Transcriber: Nefertiti Jodi Matthews) (Number of Pages: 59) (Appeal Purposes) Redaction Request due 2/24/2010. Redacted Transcript Deadline set for 3/8/2010. Release of Transcript Restriction set for 5/4/2010. Transcript may be viewed at the court public terminal or purchased through WWW.TRANSCRIPTORDERS.COM before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Matthews, N)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

MICAH FIALKA-FELDMAN, Plaintiff, v. OAKLAND UNIVERSITY BOARD OF TRUSTEES, ET AL, Defendants. _____________________________/ HONORABLE PATRICK J. DUGGAN No. 08-14922

HEARING ON MOTIONS Detroit, Michigan -APPEARANCES: Chris E. Davis, Esq. MI Protection & Advocacy Serv. 29200 Vassar Blvd., #200 Livonia, Michigan 48152 Tel: [phone] [e-mail] On behalf of Plaintiff Robert A. Boonin, Esq. Butzel Long 350 S. Main Street, #300 Ann Arbor, Michigan 48104 Tel: [phone] [e-mail] On behalf of Defendants Thursday, December 17, 2009

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To Obtain A Certified Transcript, Contact: Nefertiti A. Matthews, Official Court Reporter Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 867 Detroit, Michigan 48226 www.transcriptorders.com · [e-mail] Proceedings recorded by mechanical stenography. Transcript produced by computer-aided transcription.

Hearing on Motions Thursday, December 17, 2009

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MOTIONS: Motion To Dismiss Disparate Impact Claim Argument By Mr. Boonin Response By Mr. Davis

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Motion For Summary Judgment Argument By Mr. Boonin Response By Mr. Davis Response By Mr. Boonin Response By Mr. Davis

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Certification of Reporter .......................59

08-14922; Feldman v. Oakland University, Et Al

Hearing on Motions Thursday, December 17, 2009

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Detroit, Michigan Thursday, December 17, 2009 2:45 p.m. -

Civil action number 08-14922,

Fialka-Feldman versus Oakland County Board of Trustees, Et Al. THE COURT: All right. Identify yourselves, for

the record, please. MR. DAVIS: Chris Davis, for the plaintiff, Your

Honor, from Michigan Protection Advocacy Service, on behalf of the plaintiff. MR. BOONIN: Robert Boonin, of Butzel Long, on

behalf of defendants. THE COURT: MR. BOONIN: THE COURT: MR. BOONIN: This is Defendant's Motion? Pardon me? This is Defendant's Motion. Cross motions, Your Honor, whichever

Whatever you want to handle it, I

Let's go with defendant's first and you

MOTION TO DISMISS DISPARATE IMPACT CLAIM ARGUMENT BY MR. BOONIN MR. BOONIN: Thank you, Your Honor, and good

08-14922; Feldman v. Oakland University, Et Al

Argument By Mr. Boonin Thursday/December 17, 2009

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afternoon. I do believe that the plaintiff has agreed to dismiss counts one and six regarding disparate impact. It's my understanding of their response, they did not respond directly to our motion on that. THE COURT: RESPONSE BY MR. DAVIS MR. DAVIS: That is correct. The disparate impact Hold on. You agree?

claims, we agree to default dismissal at this time. MOTION FOR SUMMARY JUDGMENT ARGUMENT BY MR. BOONIN MR. BOONIN: So, that's two out of six. I'll then

therefore focus on the remainder of the complaint. Your Honor, I know that you've studied the briefs. What this case is not about, this case is not about an accommodation of a handicap or a disability. This case is, instead, an attempt for the plaintiff to be allowed to live in the University's dorms, despite the fact that he does not meet the eligibility requirements to reside in those dorms. He wants a preference allowed to him over all other non-degree pursuing students because of his disability. He wants this Court to legislate that his

vision of inclusion is better public policy. He wants to fundamentally alter the nature and 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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purposes of the dorms provided by the University.

None

of these quests are permitted or authorized by the Fair Housing Act, by Section 504 or by the Americans with Disabilities Act. This is a case that boils down to his claims for accommodation and disparate treatment. Those claims

fail because he is not otherwise qualified with or without an accommodation. That's the extent of the

analysis that's required for this Court to grant our motion. Now, let's understand what's really involved here. Plaintiff is admitted to only one program at Oakland University, the OPTIONS Program. And that's a pilot

program for persons with cognitive impairments. There's no dispute about that. And there's no dispute that he's not been admitted into the regular academic program. There is absolutely

no dispute on those critical issues. THE COURT: regular program? MR. BOONIN: THE COURT: He never applied. Well, do you really believe he could Excuse me, why has he not been in the

participate in a regular program? MR. BOONIN: Well, we don't know that. One of the

OPTIONS, former OPTIONS participants did apply and did 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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get admitted.

But it's not necessarily because of

one's disability that they're not able to get in. There is essays that one has to write. that they have to take. There's tests

There are many, many

non-disabled people who are not eligible for admission at the University. THE COURT: What if his inability to get into the

regular program is because of his disability? MR. BOONIN: that conclusion. Well, we're going to have to lead to We know that he's not a student. And

presumably it is his disability that is an apparent for him to pursue it; but that does not conclusively mean that if he weren't disabled, that he would be in the University, we do not know that. The point is, though, he has never even applied to be in the University to try to compete on that platform. So, there's no dispute about the fact that

he's not been admitted to that program. Thus, his rights under the Fair Housing Act, under Section 504, and under the ADA, are only with regard to the right to the program to which he's been admitted, and that's the OPTIONS Program. There's no dispute the housing benefit, that the University provides for some people, is not a part of the OPTIONS Program. He's only entitled to the

08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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benefits and the perks of the OPTIONS Program. The only aspect of the proposal for the OPTIONS that was approved by the dean and submitted to the Provost and processed by the University, was that there was -- a certain curriculum was going to be provided to the participants and a certain fee would be charged. There's nothing in the proposal that was approved. The

part of the proposal that was approved that discusses housing. Yet, the plaintiff seeks to have this benefit, which is not a part of the OPTIONS Program and which is not available to other non-degree pursuing students. For this reason, and this reason alone, his claims fail. None of the laws at issue here require the University to make available services not available to OPTIONS participants, it's as clear as that. This

includes housing, but it also includes other services to which he's not entitled. financial aid. employment. He's not entitled to

He's not entitled to student Use of

Use of the academic skill center.

the student technology center, those are just a few. Seeking a benefit of a program to which you're not admitted into is an admirable goal, perhaps, but it's not a legal requirement. 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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It reminds me of just what my daughter went through. Michigan. She was a student at the University of She went there for undergraduate school and She was not allowed to live in the

graduate school. law quad. program.

She was not a part of the law school The law quad is reserved for law students.

She was only entitled to live in the dorms to which students like her were permitted to live as part of her program. She can enjoy those programs to which she was

a part of. OPTIONS participants at this University are the same. They can only enjoy the benefits of the programs Housing is not available to

that they're a part of.

them, under the terms of their program, just as it's not available to most other non-degree pursuing people at the University. Plaintiff attempts to twist around this reality by saying that he's a student. There are certainly many

types of students at the University; but not all students are entitled to the same benefits. on the program that they're in. Housing, again, is reserved for those enrolled students who are pursuing degrees. That has been the It depends

practice at the University for so long as anyone can remember. The reason has been consistently presented

08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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throughout this case. As Vice President Snyder testified, and she is here today, housing is designed to facilitate a student's quest for a degree to make that happen. That's the purpose of housing. It's an intracal part

of the academic program to facilitate, to make the degree-seeking quest successful. The dorms do have special -THE COURT: Why might it not help in the academic,

attempted academic achievements of the OPTIONS Program? Why do they have to be seeking a degree for it to help, for the housing to help? MR. BOONIN: The focus of a housing program is to

work with the students that have the common denominator of seeking a degree. The focus of RA's, resident advisers, are trained to handle, are students who are dealing with, "How are they going to deal with the professor? How do they

deal with the fact they're not doing well in class? What kind of study aides are available to them to counsel them?" The dorms are not set up to deal with

people that don't have that common interest in mind. There are special dorms for freshmen, so that we can deal with the common issues unique to freshmen and to help them stay in school, be successful their 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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freshman year so that they become sophomores, juniors and seniors and finish that degree. dorms for business students. for nursing students. There are special

There are special dorms

There are special dorms for

honor students because it's all part of the fundamental part of the academic program to help them get a degree. If Mr. Fialka-Feldman were in the dorms, then we would have someone who does not have that common purpose. The RA's are not trained to deal with those

issues and does not have the common, even though he may wish to share that common purpose, in reality, he does not have the common motivation factors, "Am I going to graduate? Am I going to get a good grade? Am I going

to succeed in the Academic environment?" That's what the dorms are set up to do. the academic environment. OPTIONS students just don't have that. students don't have to get grades. don't carry a GPA. OPTIONS They're set up to support

OPTIONS students

OPTIONS students don't get credit The goal of that program is

for their participation.

totally different from the goal of the other academic program. THE COURT: Are you suggesting that an RA might

have difficulties dealing with an individual OPTIONS student? 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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MR. BOONIN:

Well, I'm saying the RA is not there

to deal with people who are not pursuing degrees. THE COURT: I understand that. But if someone

were placed there, don't you think the RA can deal with that in a just situation? MR. BOONIN: Well, I don't know. The RA certainly

is not trained to do that, to deal with any special needs. But we never get to that issue if the person is

not a student. The law does not require us to waive a rule for participation. It requires us to modify a rule, if But it's not the

it's necessary, for participation.

handicap that we're accommodating here, it's his non-student status that he's seeking for us to accommodate. The plaintiff is just not a part of the academic program. He doesn't get that GPA. He doesn't have the The exclusion is

common interest as I've already said.

not, the exclusion from the dorms is not because of the disability. The exclusion is only because he doesn't

have the degree-bearing commonality in place. We have plenty of disabled students in the dorms. We have plenty of disabled students in the University. We accommodate those, but they have to otherwise meet the criteria to be a student. Once you meet the

08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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criteria of being a student, then we have to accommodate it so that they can be successful in their student quest. But they still have to meet that

threshold, under the law, in order for them to be in the dorms. Plaintiff is just not in that category.

If he were admitted into the regular program, then the University would certainly accommodate whatever it needed to accommodate so that he could be successful. But first he'd have to meet that first criteria: has to be a student. He

If he's a student, then we have

an obligation to accommodate our programs to make it successful so long as it's a reasonable accommodation. Because he's not in the program, he can't maintain his claims of disparate treatment. He doesn't meet the

threshold of a prima facie case, in this case, for the stated reasons. pretext. And he also cannot overcome the

But again, I don't think the Court ever needs

to get that far in the analysis. A reasonable jury cannot find that he met the eligibility requirements for housing, even though it's not really, necessarily a jury issue under the Fair Housing Act, since that could be tried directly to the Court. But the Court need not reach the accommodation issue, which is the other issue. We have the disparate

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Argument by Mr. Boonin Thursday/December 17, 2009

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treatment and we have the accommodation issue.

The

Court need not reach the accommodation issue because he's not trying to meet the eligibility requirements, which is the standard in Zukle, he wants the eligibility requirements waived. reasonable accommodation. His accommodation request fails for a number of reasons. But perhaps the most obvious is that his That's not a

requests are not for an accommodation of his disability, it's only for a wavier, an accommodation of his student or non-student status. He's expressly To

asked the University to waive that requirement.

waive the requirement that he need to be one pursuing a degree. This case is really a repeat of what occurred in Schanz, in the Eastern District of Michigan; in Wilson, in the Tenth Circuit; and the Salute case in the Second Circuit. And all of these cases bluntly hold that such an accommodation is not required under the law. it was a disabled person who wanted certain creditworthiness rules to be waived by a landlord. The Court said that it was his economic status that he wanted to accommodate and not his disability. And that he was trying to transform his financial 08-14922; Feldman v. Oakland University, Et Al In Schanz

Argument by Mr. Boonin Thursday/December 17, 2009

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status into a handicap.

"Accommodations are required

if they are only needed due to the handicap", the Court held. If the accommodation would be needed absent, the That's what we

handicap, then it's not reasonable. have here.

In Wilson, the housing in each building was only made available to students, one for males and one for females. The Plaintiffs were not students and "Discrimination on the

therefore their claims failed.

basis of student versus non-student status--", the Court held, "--was not even actionable." In Salute, Salute versus Stafford Greens, the issue is whether a landlord had to allow Section Eight Housing, so that those who were poor, due to their handicaps, not able to go to school, due to your handicap, those who were poor, due to their handicaps, could have access to housing. The Court of Appeals held, at page 301, that the Fair Housing Act is to accommodate handicaps, not the alleviation of economic disadvantages which may be correlated with having handicaps. "The Fair Housing

Act does not elevate the rights of the handicapped poor over the rights of the non-handicapped poor", the Court said. Here the plaintiff is asking this Court to hold 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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that the Fair Housing Act is to alleviate plaintiff's student status. That's not accommodating a disability.

It's improper to ask this Court to elevate his rights, as a disabled, continued education student, over non-disabled continued education students. I think the Sixth Circuit explained this issue well in its decision just earlier this year in Sutton versus Piper. "Accommodation is an issue--", the Court

held," "--when the rule in question, if left unmodified, hurts handicapped people by reason, if there are any, rather than by virtue of what they have in common with other people, such as limited amount of money to spend on housing", which was the issue there. An owner only has to only lower the barriers to housing that are created by the disability itself. Here, it's Plaintiff's status of not being a degree-pursuing student that's blocking his request. Many people, who are not disabled, are not students pursuing a degree; therefore his claim should fail. This is also the lesson from the Supreme Court, the U.S. Supreme Court, Alexander versus Choate, which regarded the claim about the number of allowable days someone could stay in a hospital under a Medicaid Program. There the state capped the number of days to 14 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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days.

Rejecting the argument and allowing the State to

set the rule as to the maximum number of days someone could get, both handicapped and non-handicapped people. At 14 days the Court said, "Section 504 does not require the State to alter its definition of the benefit, simply to meet the reality that handicapped have greater medical needs. The rule leaves both

handicapped and non-handicapped people with identical access." That's the rule at Oakland University. Both

non-handicapped and non-students and handicapped non-students, are treated the same. Once you are a

student, if you are a handicap, then you are given the accommodation. So, in this case, Oakland "U" should not have to open its dorms to OPTIONS students simply because they can't meet the admission requirements. of the admission requirements. Oakland "U" is instead allowed to set the criteria for who lives in the dorms. And if one meets those That's a wavier

requirements, those criteria, then it must consider accommodations to make it possible for that person to live in the dorms. And as the Court held on Davis, a

grantee, such as the University, can always preserve the integrity of its program. 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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Therefore, plaintiff's request of this Court would really give him a privilege or a preference over non-disabled persons and that's not what the statute allows. None of these statutes allow that.

If he gets his way, then the dorms would have to be open to all students, whether they're pursing a degree or not. Anyone who wishes to claim that a

handicap prevents them from being a regular student and so on. If it were just his disability that was barring him from campus housing, then all other persons who were students at the University, who were not disabled, would be able to live in the dorms. THE COURT: MR. BOONIN: Why do you say that? Why?

If it were just his disability, if

the University's policy was to discriminate against the plaintiff, and that's the only reason we have the policy, then presumably all other continuing education students will be eligible to live in the dorms. being treated just like they are being treated. THE COURT: I'm not following you. If the Court He's

were to determine, in this situation, that this individual, that the University should be required to waive his policy to accommodate this disabled person, are you suggesting that might somehow open the 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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floodgates to non-disabled people coming in? MR. BOONIN: Well, that means any disabled person

could ask to go into the dorms and have the student requirement waived, when we have all the other people, who are not disabled, not able to go into the dorms. My point is is that if we were discriminating against just people with disabilities, people because of their disable status, then all these other people would be allowed to be in the dorms and they're not allowed to be in the dorms. THE COURT: You stated a few minutes ago, simply

because he can't meet the admission's requirement, do you dispute the fact that he can't meet the admission requirements because of the disability? MR. BOONIN: Your Honor, I understand that most

individuals with his disability would find that to be challenging. I do know that an OPTIONS participant did

leave the OPTIONS Program and was admitted into the University and if that person went to live in the dorms, then they can be accommodated if they need an accommodation to live in the dorms. I just don't know because it is a student status. We -- it's not just because of his disability that he's not there, it's because he's not a part of the academic program that he's not in-housing. 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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THE COURT:

Maybe he's not a part of the academic

program because of his disability. MR. BOONIN: But that elevates his disability

status, his student status to his disability status and that's not what the Courts say what we're supposed to do because there's a lot of people who are not eligible for that benefit. If you take it -- this is the in-spite-of argument under the regulations. You know, the 504 deals with They say, "If you take away We don't know that.

this in its explanation.

the disability, is he qualified?"

What is needed for him to be a student with an accommodation under those -- it says, "Will a person be able to meet the standards of the program?" He can't meet the standards of the program with an accommodation because the standard is that you be a student. And the law says we don't have to waive our

standards, we just have to make it possible for him to succeed in the program and he can't show that he can succeed in the program of being a student with or without an accommodation. THE COURT: Well, if it were clear to you and the

Court that the only reason he can't get in the regular program is because of his disability and you'll acknowledge that if he's in the regular program, he'd 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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be entitled to housing. MR. BOONIN: But the thing is, "An accommodation",

does not make him a student, and that's the question. The accommodation is not making him an eligible student where you're getting grades and all that. THE COURT: what? I understand that, but so what? So

If the Court were to order it to be waived for

this individual, how would that adversely affect the University's program to allow this one individual in? Based on, assuming I conclude there's a legitimate reason for it, how would that affect? MR. BOONIN: THE COURT: I'm sorry, based on what? Let's assume that I come to the

conclusion that his disability is a significant reason why he's not in the dorm, how would admitting him adversely affect the University? MR. BOONIN: Well, it would alter the nature of

that program because -THE COURT: MR. BOONIN: Because of one student? Well, again, it would be anyone with

a handicap who's not able to qualify to be a student would be allowed in. THE COURT: Not true. You know, we take And you'll have

handicapped individuals individually.

to admit that handicapped people are often given 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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preferences at work.

They're allowed to do this or

that that the other employees aren't, to accommodate their disability. MR. BOONIN: To be successful in that program, but

he's not in that program. THE COURT: Well, what's, "That program", that

you're talking about? MR. BOONIN: Well, the regular academic program

because he's only in the OPTIONS Program. THE COURT: And if I'm satisfied that he's not in

that is because of the disability, and if he were in that program, he would be in the housing, why wouldn't that lead to a conclusion that the disability is precluding him from getting the housing? MR. BOONIN: Well, that's just like the Court in

Schanz to say you, "Well, just because have your disability, you can't get a job that would meet the credit requirements", it elevates the disability -- the economic status to a disability status and that's not what the Court said you're supposed to do. The accommodation is supposed to make you successful in the program that you're trying to get into, not to waive those requirements. The HUD regulations talk about, you know, waiving the requirements of the, "No pet policies." Now, if a

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Argument by Mr. Boonin Thursday/December 17, 2009

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blind person, with a seeing-eye dog needs to live in that apartment, you must waive it because without that, the person can't live in there, but the person is otherwise qualified. The accommodation doesn't upset

the qualification requirements. If a person has a dog and they're deaf and unless the dog is a hearing dog, "Sorry, that's not related to your disability." for. Even Congress has recognized that housing is not an obligation for programs such as the OPTIONS Program. As stated in our brief, the recent amendments to the Higher Education Act provides grants to schools to pilot these kinds of programs. And that's what the OPTION Program is. brand new program. It's a pilot program. It's a That's what the HUD regulations call

And the

school is trying to undertake it.

Congress has said,

"You can have a pilot program and you may or may not have housing in that program." There's three ways that you can qualify for grants, having housing is one of the criteria. You can

do that or you can do two other things, but you do not have to have housing. In fact, you do not have to have a program that doesn't give -- that you could have a program that 08-14922; Feldman v. Oakland University, Et Al

Argument by Mr. Boonin Thursday/December 17, 2009

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would require the person to earn credit and to be admitted, you can do that. it. But Congress has said these types of programs, and this really fits it perfectly, these types of programs do not have to provide housing in order to qualify. If Congress is saying that it's optional to the University and it's up to the academic officials to determine what's appropriate in the academic program and they'll yield to that judgment, they just start giving them an incentive to try something out; then I don't think it would be proper for the plaintiffs to ask this Court to do something that Congress specifically says is within the school's discretion. So, what is he really asking for? He's not only They're very flexible about

asking that this Court change the housing rules, he's also asking this Court to change the OPTIONS Program by adding a housing component to that program. not a need to do so. so. There's

There's not a requirement to do

He can still enjoy all of the benefits of the

housing program -- of the OPTIONS Program, without housing. This Court should not redesign the housing program or the OPTIONS Program, but that's what he's asking this Court to do. For those reasons, we believe that

08-14922; Feldman v. Oakland University, Et Al

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Summary Judgment is appropriate. He's not qualified as a student. There's not a

reasonable accommodation that's available to them, under the law. And for those reasons, we believe we're

entitled to Summary Judgment. THE COURT: Response. RESPONSE BY MR. DAVIS MR. DAVIS: Thank you, Your Honor, both in Thank you.

response and also presenting our own Summary Judgment Motion, in this matter. First of all, I'd like to thank the Court for hearing this matter as quickly as it did. Micah's

final semester at Oakland University is going to start in January of this year and I want to thank the Court for hearing this matter as quickly as it did. I think the defense counsel has, kind of, muddled the analysis between the reasonable accommodation claim and the disparate treatment claims. Under reasonable accommodation analysis. First of

all, there is a cause for reasonable accommodation for failure to reasonably accommodate a person with a disability pursuant to Southeastern Community College versus Davis, a (1979) case by the Supreme Court. The cases relied upon by the defendant are 08-14922; Feldman v. Oakland University, Et Al

Response By Mr. Davis Thursday/December 17, 2009

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primarily Fair Housing cases, rather than reasonable accommodation -- or rather than Rehab Act cases, Your Honor. Under Southeastern Community College, there's a two-part test to determine whether it's a reasonable accommodation or not. And one of the requested

accommodations fundamentally alters the program or creates an undue burden on the program. Here, this accommodation request would not fundamentally alter the housing program, in this case. The housing program primarily is to provide housing for the students at the University. at the University. Their own advertisements emphasize the fact that the O.U. Program is to build relationships, home socialization skills. It's for the convenience of the And Micah is a student

students to develop independence, living-independent skills. The person making a transition from living at

home with their parents to being adults living on their own. These are the purposes behind the housing program. And there are certainly educational benefits to it also. But the primary purpose of a program will not be

altered by admitting Micah into this program. If this Court did an individualized analysis of 08-14922; Feldman v. Oakland University, Et Al

Response By Mr. Davis Thursday/December 17, 2009

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the situation, as is required by the Arline case and the Wong case that we cited in our brief, if the Court does an individualized analysis of the matter, the undisputed facts, in this case, show that Micah takes 12 credits a semester. He and his family pay tuition at the same rate as undergraduate students. He is willing and able to pay

all housing program fees or cafeteria plan fees. There's no request here to modify the economic nature of the cost. THE COURT: the housing? MR. DAVIS: housing. THE COURT: Supposing an individual contends that, There is a cost related to the I assume there is a cost related to

"I'm denied the housing part of it because I can't afford it. And the reason I can't afford it is because And I'll bring in an expert who will

I'm disabled.

say, 'But for his disability, he could earn sufficient funds to pay the cost of the housing. MR. DAVIS: I think in that situation, Your Honor,

if it could be shown and proof could be presented but for his disability, then I would believe the accommodation would be appropriate. I think part of the major problem in Schanz was 08-14922; Feldman v. Oakland University, Et Al

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that you couldn't show the connection between the disability and the economic hardship. And a good

example of this is actually the Fair Housing case that we cited in our brief. Ninth Circuit case. I'm drawing a blank. It was the case of -- it's a

It's M & B Associates versus -But I did cite it in my brief,

it's M & B Associates. In this case, the Court was able to show, it's a Ninth Circuit case. And it showed that this

individual, before he became disabled, had a perfect credit history. Once he became disabled, his credit

history went to pieces and he was denied admissions into housing. In that case the Court, Ninth Circuit found, I'm sorry if I said Sixth Circuit, it was the Ninth Circuit. The Court found that there was a clear

connection between the disability and the financial problems that this individual was having and a reasonable accommodation was legitimate in that circumstance. THE COURT: MR. DAVIS: What was the accommodation? That he would be allowed into housing,

I believe, with a co-signer and the credit score of his would be waived. THE COURT: They didn't say that he could come in

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at no cost because of his inability to earned money, did they? MR. DAVIS: No, that was not the circumstance. It

was the credit history.

He was having problems getting So, I would

credit history in that particular case.

say if there was a, "But for" situation, yes, an accommodation would be merited in that circumstance. Here, again, the undisputed facts of this case is that he is capable of paying the housing fees. not seeking any additional accommodations. He's

He's

capable of living on his own or with a roommate, if assigned a roommate, at the housing. We've submitted

an independent living assessment to support that, Your Honor. Instead of looking at an individual assessment, the defendant attempts to shift the analysis and look at what would happen if rules were waived for everybody in continuing education. First of all, I want to clear up one statement that's been made and that's that all continuing education students are barred from housing, that's not true. English as a Second Language students are

allowed into housing at Oakland University. Now, defendants contend that they have to be matriculating students at their other post-university; 08-14922; Feldman v. Oakland University, Et Al

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otherwise, they're not allowed in.

But we've shown,

through an affidavit of at least one former student at Oakland University, that she was not a matriculating student at any University when she was admitted into housing at Oakland University. education student. They've made numerous exceptions to this rule. They try to portray this as a bright-line rule but they've admitted in their own brief, and I point this out on page eight of my response brief, that this rule is not a bright-line rule, there's numerous exceptions to this rule. They allow in students from the English is a Second Language Program. They allow students in Hospital Programs. They She was a continuing

through Summer Camp Programs.

allow students from Cooley Law School there, who aren't even taking classes at Oakland University, but are taking classes at Cooley down the street. Now, they

may be matriculating students, but they are not even students of the University. They have reciprocity agreements with other Universities that allow students in there. Again, not

their own students, students at other Universities. And they also allow individuals in from journalism programs also. All of these are non-matriculating

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students -- I'm sorry, some of them are non-matriculating students. students of the University. Some of them are not even So, this is not a

bright-line rule as they are trying to portray it here. I also want to address the issue of the preference that they're alleging here. We are not seeking a

preference for Micah, he is seeking his place in line for housing. The testimony shown in the depositions, they traditionally have in the winter -- I'm sorry, in the fall term, they're usually full, with a waiting list. It's a first-come, first-serve situation. requesting his place in line. In the winter term, usually starting in January, they have extra space through attrition. They usually He's

use up the waiting list, plus they have extra space in housing. He's not being asked to jump ahead of anybody He needs

in line, he's asking for his place in line.

an accommodation that would allow him equal opportunity to access housing at Oakland University. Granted, it would be a different treatment, but it's not preferential treatment. A good example of

this is a case that we did not cite in our brief and that's, U.S. Airways, Incorporated versus Barnette, this is a Supreme Court case of (2002). The cite to it

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is 535 U.S. 391. That was a case that involved -- it was an 88 Title I case on reasonable accommodation where an individual with a disability was seeking, as an accommodation, to access another job, but he was denied that requested accommodation. The Supreme Court said, "There are going to be times--", every case is looked at individually and the specific facts, do an individualized assessment and, "--there are going to be times where preference is appropriate." They found, in this case, different

treatment is appropriate. But in this case, jumping him ahead of other persons in the seniority line was preferential treatment and they denied the accommodation request, finding it wasn't reasonable. Any accommodation does involve some different treatment, but that doesn't necessarily make it "preference treatment." "Preference is a practical That's a

advantage given to one over other persons."

common understanding of the word "Preference" from Dictionary.com that I looked at today. preference is. He is simply seeking his place in line by having this accommodation provided to him. Congress has That's what a

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recognized that accommodations are absolutely necessary, in many instances, in order to afford a person with a disability equal opportunity. And it furthers the national goal of any exclusion of persons with disabilities and their exclusion from the mainstream in society. And this is a national goal

that has been expressed by Congress consistently over 40 years of numerous acts of legislation. I also want to point to the fact they have suggested there may be some undue burden to the University if this accommodation is granted. The only way that any undue burden is alleged by defendants is when they compare the situation to completely waiving the rule and allowing all continuing education students in, then they might have to build housing then. But the case law, under the Rehab Act, clearly shows you do an individual assessment and you look at Micah and what his presence in this dorm would do and whether it would fundamentally alter the program. Now, is it possible that other students with disabilities may apply for this wavier as an accommodation? Yes. But in the OPTIONS Program This is not going to

there's only nine other students.

lead to an overwhelming of the University or a 08-14922; Feldman v. Oakland University, Et Al

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fundamental alteration of the program either. They have put forward suggesting, without any analysis, mere speculation about the fact that their presence would take away from the educational aspect of the program. They've never presented any evidence, and there's no evidence in the record, and this is undisputed, that Micah's presence would take away from that academic nature of the program, even if the Court were to find that housing was an academic program in and of itself. And that's why they tried to shift the burden away from individual analysis to this broader analysis. Finally, I'm going to move on to the disparate treatment claims. We've brought three disparate

treatment claims under the Rehabilitation Act of 1973, Title II of the Americans with Disability Act, as well as the Fair Housing Act. First of all, he is a student at the University. He is an admitted student into the OPTIONS Program, a program of the University. of a student. He's enrolled in classes, which he actively participants in. He studies. He pays tuition at the He takes He has all the attributes

same rate of other undergraduate students. quizes and tests.

He attends full time, taking 12 to

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15 credit hours per semester, depending on the semester. The other thing, they've admitted he's a student. They've issued him a student ID. They've issued him a

student number, which they call Grizzly numbers or "G" numbers. This is important because when looking at the

original contract of Micah or application/contract that Micah signed, it said, "He must be an enrolled student." Micah was treated differently from other students similarly situated. If you look at their own policies

and procedures, which we submitted in our reply brief, when they process these applications, they look at whether the student has a grizzly number. That's how

they verify whether he's an enrolled student or not. And he had a grizzly number. Yet, they do not check, I think it's important to point out, according to these policies and procedures, they do not check to see what program they're in, what degree they're seeking, what their grade point average is or whether they're even taking classes or not. These things are not verified or checked. He has a grizzly number, which would indicate that he's a student at the University. Micah's original

denial letter denied him because he wasn't a student 08-14922; Feldman v. Oakland University, Et Al

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and he wasn't enrolled for the winter. were factually wrong.

Both of which

So, he did meet the enrollment,

the requirements for admission under that contract for the '07/'08 school year. Now, the defendant -- the plaintiff must also show why was he treated differently. There must be a

discriminatory purpose behind it. In this case, the misperception expressed by the defendant, Vice President Snyder, these are statements to Howell, to Professor Howell. statements. These are undisputed

They've submitted no affidavits disputing

these statements where she said, "His inability to read--", which relates to his disability, she said that, "--these programs", referring to the OPTIONS program, "--always fail." She feared how other students would treat him. Rather than dealing with how other students might treat him, she feared how they might treat him as a reason to deny him access. She said that he could not care for himself, even though where that statement come or on what basis is, I do not know and it is not said. with an emergency situation. evidence provided. And it goes back to the misperceptions about the 08-14922; Feldman v. Oakland University, Et Al And he couldn't deal

Again, nowhere is this

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ability or inability of persons with disabilities. THE COURT: With respect to your disparate

treatment claim, it's my understanding that the Court have stated, and I quote, Jones v City of Monroe, 341 F.3d 477, that, "The plaintiff must demonstrate a prima facie case of discrimination by establishing, number one, he has a disability; two, that he's otherwise qualified; and three, that he is being excluded from participation in and being denied the benefits of or being subject to discrimination solely because of his handicap." You don't contend here that he's being discriminated against solely because of his handicap, do you? MR. DAVIS: I think it's uncontested. It's a

motivating factor.

And they've presented nothing that

would support their reason for turning -- for their different treatment of him. I mean, they've proffered a reason, but without any backing up of it or supporting it. more than just bring forth a reason. They have to do

It has to be -- a

reasonable conclusion has to be drawn from their facts or it has to be supported by some evidence. THE COURT: a student. 08-14922; Feldman v. Oakland University, Et Al Well, they denied him because he's not

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MR. DAVIS: THE COURT:

He is a student. I mean, a matriculating student. They

denied it because he doesn't fit their criteria for housing students, that's a legitimate reason, isn't it? Forget the handicap, for a moment. MR. DAVIS: THE COURT: Right. That would be legitimate. If some

other student, not handicap, say, "Boy, I'd like to live in that housing, very convenient to my work and other things", they'd have a right to deny him, wouldn't they? MR. DAVIS: If that was their rule in October or But that was not their rule

November of 2007, maybe. in October of 2007. application. THE COURT: MR. DAVIS:

That's not nowhere in their

Well, what's the rule now? The rule now that they put forward is

they must be a matriculating student, they must have a certain grade point average and they must carry a minimal number of credits, though the number is escaping me, at the moment. THE COURT: You're asking me now to enter an order And

compelling them, for the future, to admit him.

therefore don't you think I should apply their current criteria? 08-14922; Feldman v. Oakland University, Et Al

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MR. DAVIS:

Two reasons on that.

First of all, I

believe the reasonable accommodation would allow perspective relief, if the Court were to find that. THE COURT: accommodation. MR. DAVIS: Correct, Your Honor. I'm not on the reasonable

But under this, if we can show that this new rule is a mere pretext to cover up their discriminatory action, I would think that there would be problems with them being allowed to enforce that. THE COURT: MR. DAVIS: How are you going to show that? The way we would show that it's First of all, the Micah submitted

pretext is this, Your Honor.

closeness in time of what happened.

his application on November 1st, 2007 and they did not have a matriculating student requirement in there. On November 8th, Associate Dean Wiggins sent an email to the Plaintiff's father, as well as his counselor, Kim Dembrosky, as well as Lee VanAmberg, the head of the OPTIONS Program. And he says in that

email, and I've quoted it in the brief, "This very clearly demonstrates that this was a considered decision. resolved. That the question of enrolled credits was That the total number of CEU's--", which I'm

assuming is Continuing Education Units, "--showed that 08-14922; Feldman v. Oakland University, Et Al

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he was enrolled in classes and that Micah was a registered student." Seven days after that, on November 14th, Roxanne Fisher, from the Housing Department, sent an email saying, "You're all set." Now, defendants have tried

to portray this as saying, "Well, that meant we've got all the application materials." But if you look at that email, Your Honor, it's very detailed about, "If you use a microwave or not. What the sign-in date was. room assignment." If this was simply saying, "We got your application and we don't need any more material to process it", you would think that that email would say, "We've got your application. You're all set for that. Whether he would get his

We'll notify you of our decision." It wouldn't go into what things you can move into your dorm and what date you're to move in. was very specific. The email

And to see it as anything other

than an acceptance of his application, an approval of his application, would require a stretch of the imagination. Coming after the Wiggin's email, it showed that this was a considered decision because they also proffered the fact that or trying to allege that Ms. 08-14922; Feldman v. Oakland University, Et Al

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Fisher looked at the "G" number, approved him, and somehow accidently it slipped through. But the email

from Wiggins, seven days before Fisher's email show that this was a considered decision. countered that by any other evidence. Secondly -- or thirdly, Maten went and checked with Snyder regarding denying Micah's application. Snyder is the Vice President at the University, she certainly doesn't get involved in approving every single application that comes through the housing department. The fact that she was even involved in And they have not

this shows that he was being treated differently than other persons. Again, the Maten denial letter, no mention of matriculating student in the original denial letter. think it's very important to look at that fact. that's not in dispute. They changed the application in March of 2008. And in their own brief they said that it was supposed to be effective for the 2008/2009 school year. He was And I

denied in October of 2007, the winter, January of 2007. This means they were retroactively applying a new policy that wasn't even in effect yet to Micah's application, which was submitted almost a year earlier. I believe these things show that this is a 08-14922; Feldman v. Oakland University, Et Al

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made-up, after-the-fact reason that's being provided to cover the real reason that he was denied, which was because of his disability as is shown by the undisputed statements in the Howell affidavit that we submitted, Your Honor. I think we've shown that he was a qualified student for housing under the contract he signed in 2007/2008. We've shown that the reason he was turned We've shown that

down was because of his disability.

they've come back under the McDonnell Douglas burden shifting analysis they've proffered, on its face, appears to be a legitimate reason. And I believe that the timeline and the emails and the way things have happened show that this was a pretext to cover their actions. There's also one other

important point I wanted to make. Vice President Snyder met with Micah in May of 2008 and his parents in August of 2008. Both Vice In both

President Snyder and Defendant Lionel Maten.

those instances, they portrayed the March, 2008, as if that was Micah's -- the same application Micah signed. It wasn't. It had undergone extensive changes and

extensive rule changes and requirement changes. The fact that they were misrepresenting that fact in these meetings I think is further evidence of a 08-14922; Feldman v. Oakland University, Et Al

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pretext, Your Honor. Do you have any questions? THE COURT: MR. BOONIN: THE COURT: Any response? Yes, Your Honor. Before you start addressing, how do

you respond to brother counsel's statement that the University has made, quote, "Exceptions", unquote. That is, they've had non-matriculating students permitted to live in the housing? RESPONSE BY MR. BOONIN MR. BOONIN: Well, Your Honor, the identification

of this individual didn't come out until about a week ago. And you know the University has scoured its And it took

records and could not find any exceptions.

until last week for the plaintiff to come up with a name. But it's only one ESL student, an ESL student who was admitted full time into the University under an F-1 visa and who was pursuing a degree. And that's still

the common thread is that during the academic years, during the academic term, the only people that are in those dorms are people pursuing degrees. And there's no question that this was her intent and she was here under an F-1 visa. I do have the

documents and I said in my reply that I'll bring those 08-14922; Feldman v. Oakland University, Et Al

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documents.

I do have the documents that will show that And to be an F-1 visa,

she was here on an F-1 visa.

you must be full-time enrolled in a program that results in a degree, a certificate, or a diploma. THE COURT: He indicated that there are a number

of students, I thought he said, that were at other Universities -MR. BOONIN: Yes, that's true. People with

Cooley, there's a special contract and this has always been the policy at the University. They still have that common denominator that they're pursuing a degree. They're all there with the

same burden or responsibility or goal of, "Why are we here? We're here because we want to get a degree and And if you don't, by the way,

we want to succeed."

follow the rules, you're going to be kicked out of this University and you may lose your opportunity to get a degree. A continuing education student normally doesn't have that incentive. Doesn't have that ramification

should they violate a rule. THE COURT: after 2007? MR. BOONIN: Not with respect to the enrollment Did the University change its policy

status, Your Honor, that's absolutely a 08-14922; Feldman v. Oakland University, Et Al

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misrepresentation of what the University has done. That's not what any of the testimony supports. Certainly the language did change and the language did become clear. the same. If he used the 2007 contract application for housing today, he would still be denied because under the University's definition of what an enrolled student is, how the University interprets what the term "Enrolled" means, means that you have to be in a degree-granting program. always applied that rule. always applied that term. And they routinely change the application form. think it was three of the last five years the housing contract has changed in many ways. There were a half I And that's the way they've That's the way they've But the effect of that language is

of dozen other ways that the application form changed in 2008 as part of their standard process. it all the time. But the bottom line is that under either the original form or the new form, he still does not meet that enrollment requirement. I think the University is entitled to say, "When we use enrollment--", as long as they're consistent about it and there's no evidence that they're not 08-14922; Feldman v. Oakland University, Et Al They tweak

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consistent about it, "--when we use enrollment, that means you're pursuing a degree. You're a person that

we could count when we submit things to the federal government. We follow that as the guidance for what we

need, in this context, of enrollment." There's no evidence that we've treated people otherwise. In fact, the evidence is is that when a

disabled student applies and becomes enrolled, we do accommodate that person. THE COURT: question. All right. You've answered the

Now is your time for any rebuttal you want

to give based on brother counsel's argument? MR. BOONIN: Well, that was going to be one of the

points and I'm glad you brought that out because I think that enrollment often becomes a term of art. But

this isn't a contract case, this is, "What did we mean or what was our policy at the time?" And in terms of enrollment, we did not change that policy. We just are now requiring students to have a

higher level of commitment because it's part of the goal of the University to make being in the dorms a way to facilitate that degree. So, we want to make sure

people are taking a lot of credits in order to do it. Now, it was said that the plaintiff has all the attributes of a student. And I just disagree with

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that.

He doesn't have all the attributes of the

students. Yes, he does pay a fee. classes. And yes, he does attend

Some of those classes are special learning

skills classes that are not, you know, a part of the regular academic program. classes and attend them. classes and attend them. And then he can audit other And whatever he does in those And whatever he does in those

classes, whatever he arranges with the teacher, he doesn't have to do anything, he doesn't get a grade. But it doesn't have the attributes of being admitted into the University. Doesn't have the Doesn't have the

attribute of a grade point average.

attribute of earning credits and those are huge distinctions. The statement that having the "G" number

is indicia of student status is really an overstatement. Many people, and I do have an affidavit from the University, if the Court would allow me to present it. But many people at the University have grizzly numbers. The employees have grizzly numbers. grizzly number. The venders have

Donors have grizzly numbers and

students have grizzly numbers. The housing clerk used the grizzly number as her first check to see, "Are you real?" Are you connected,

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somehow, to the University.

The testimony is that that She

housing clerk doesn't make the final decision.

makes the preliminary decision, that's Roxanne Fisher. She made the preliminary decision that, "Yes, looks like your application is complete." And as she

stated in her affidavit, the body of that email, the information that she gives, she didn't set what the date is. She said, "You'll be learning later what your

rights are, what the obligations are, what your move-in date would be." But there was still more to be checked. And sure

enough, it got to the attention of the housing directer, Mr. Maten and he did not go to the Vice President Snyder for approval. approval set. rules? She was not in the

He wanted to know, "Did we change the

Are the OPTIONS participants now enrolled That would make a difference to him because

students?"

his contact with them would that they weren't, did that change? Or did the University change it's rule allowing non-enrolled students to be in there. You know, "Am I

still doing the right thing because I'm about to reject this application, but would that be right?" And she says, "Well, you know, the rule hasn't changed." And they checked and they found out that the

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OPTIONS students were still classified as continuing education students. So, that statement, I believe,

needed to be responded to and was inaccurate and not supported by the record. The fact there's nothing in the record that supports the claim that the grizzly numbers is the key to the dorms. It was just -- the deposition testimony

is is that that's what Roxanne Fischer did. Then we get to the statement of Dean Wiggins made in an email to plaintiff's father and to MORC. And if

you look at the email he's saying, "This is what I found out after talking to a secretary in the housing department." found out. But certainly the secretary of the Housing Department doesn't speak for what the housing policies are. And neither does Dean Wiggins speak for what the He can't set that. Well, that would be hearsay as to what he

Housing Department policies are.

He admitted that in his deposition, that's not his role. He was trying to facilitate this process for the

family, but he was unsuccessful. But his statements as to what the housing policies are no more significant than if the Secretary of Agriculture makes a statement as to what the Department of Defense's policy is in Iraq. It's just not the

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policy of the U.S. Government when that kind of statement is made. As to the individualized analysis. The Courts

have said that you only have to have individualize analysis if it's to accommodate a disability. still hadn't gotten to that. We don't have to And we

accommodate a disability because there's no accommodation that makes him a student. And he wants

to be a student without having the requirements of a the student. Now, if we had to bend the rule so that he had to take more tests or so that he could reapply or do something to accommodate a disability, so that he could meet the qualifications of being a student, we would have had to do that. If his disability made it impossible for him to live in the housing because he was blind or needed a wheelchair roll-in shower, we would have to accommodate that. But he's not asked for an accommodation of his

disability, he has asked us to waive his student status and that's inappropriate. We really don't know how the plaintiff would succeed if he were in housing. But he wasn't denied If he were a

the housing because of his disability.

student, we would have granted him the housing. 08-14922; Feldman v. Oakland University, Et Al

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That, I think, in and of itself shows that it's not his handicapped status or his disability status that is motivating the University, it's the student status that was motivating the University. Disabled students are constantly, often given generous accommodations because that's appropriate for them to succeed in the program. There is also a statement, and we touched on this, that were numerous exceptions, and one was the ESL student. That's one person we've been able to find in

decades of records. "A", if it were, if that person slipped in, I don't think there's no mistake, changes the fact that this is what our policies is and what our intentions are. But this person does, in reality, and again, I

can show the Court documents to this effect, was here on an F-1 visa. And if you're here on an F-1 visa, just so that you could see, if you look at the regulations under that, and that's 8 CFR 214.2, (F)(1) and (F)(6), that it says, "You must be enrolled full-time in a c