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United States v. University of Neb. at Kearney

United States District Court, D. Nebraska

April 19, 2013


For United States of America, Plaintiff: Colleen M. Melody, U.S. DEPARTMENT OF JUSTICE - CIVIL RIGHTS DIVISION, Washington, DC; Laurie A. Kelly, U.S. ATTORNEY'S OFFICE - OMAHA, Omaha, NE; Mary J. Hahn, U.S. DEPARTMENT OF JUSTICE - CIVIL RIGHTS DIVISION, Housing and Civil Enforcement, Washington, DC.

For University of Nebraska at Kearney, Board of Regents of the University of Nebraska, David L. Brandt, Cheryl Bressington, Christy Horn, Gail Zeller, Defendants: Alison A. Basye, UNIVERSITY OF NEBRASKA, Lincoln, NE; Anthony D. Todero, Scott P. Moore, BAIRD, HOLM LAW FIRM, Omaha, NE.


John M. Gerrard, United States District Judge.

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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 anti-discrimination 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. [1] Filing 41 at 3, 5.

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There are a variety of available living arrangements, including the sort of on-campus dormitory-style residence halls most commonly associated with university housing, but also including suites, fraternities and sororities, and private apartments. Filing 41 at 5. During the 2010-11 academic year, UNK charged between $3,569 and $4,214 per semester for room and board. Filing 41 at 5.

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." [2] Filings 41 at 9; 49-1 at 20. University Heights contains one-bedroom and efficiency apartments that, like many commercial apartments, are unfurnished except for a stove and refrigerator. Filing 41 at 9. Students are responsible for bringing their own furniture and for cleaning and maintaining their apartments. Filing 41 at 9. Utilities are provided by UNK except for telephone and Internet access. Filing 49-1 at 37. Rent at University Heights as of July 1, 2010, was $390 per month for a one-bedroom apartment and $320 per month for an efficiency apartment. Filings 41 at 10; 44-2 at 5. Students living in University Heights are permitted to stay in their apartments during the summer semester (and, presumably, during other academic breaks) if they maintain a sufficient courseload or if they are registered to be full-time students for the following fall semester. Filing 49-1 at 34.

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

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40) are directed at the narrow issue of whether UNK's student housing facilities are " dwellings" covered by the FHA.


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 ...

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