As often stated on this blog, the Fair Housing Act was enacted to protect certain groups of people against discrimination in housing. The Act extends this protection to any dwelling. The term “dwelling” has been broadly construed by the courts and can include any place where a person resides. “Dwellings” under the Act has been held to include vacation homes, residential hotels, migrant housing, dormitories, nursing homes, group homes, and homeless shelters where persons reside for extended periods of time. Jails, motels and detention or correctional facilities do not qualify as dwellings under the Act, thus far. In an interesting housing case against the University of Nebraska at Kearney (UNK), the University argued that, university housing does not qualify as a dwelling under the Fair Housing Act and compare its student housing to a jail!
The U.S. Justice Department sued the university last year, saying it unlawfully denied former UNK student Brittany Hamilton the chance to keep her 4-pound miniature pinscher named Butch in her university-owned apartment a mile off campus. Her dog helps Brittany cope with depression and anxiety. The university's policy bans pets other than fish from its housing unless the student has a disability that requires a service animal or works as a hall director. The Justice Department lawsuit says Hamilton could not afford other housing options in or around Kearney and needed the dog to focus on her school work. The dog was prescribed to help her handle anxiety attacks that made it difficult to sleep and breathe.
The case hinged on whether university housing was a “dwelling.” The university argued that it was not, comparing university housing to a hotel, or, perhaps most unexpectedly, a jail. Neither is considered a dwelling under the Fair Housing Act. Scott Moore, an attorney who represents UNK, said many first-year students have to live in university housing, are assigned rooms and in some cases roommates, and have to follow certain rules and restrictions. He argued the purpose of university housing is educational, not to provide a residence.
However, the U.S. District Court rejected the argument that, because students live in an environment conducive to learning, it changes the nature of the place "from a residence to something akin to a correctional center." He noted, "While housing may have more rules than the average off-campus apartment, it is no more restrictive than many other places that people call home.” He said students who live in university housing eat meals, wash laundry, do schoolwork, socialize and sleep there, "just as people ordinarily do in the places they call home."
Judge Gerrard rejected Moore's argument that students are transient visitors who don't intend to stay long. "Simply put, students live in university housing for a significant time period and while they do, they treat it like home," Judge Gerrard wrote. Judge Gerrard ruled that a university-owned apartment complex is subject to the Fair Housing Act. UNK has stated that it is reviewing the ruling before making a decision about an appeal to the Eighth Circuit Court of Appeals.
The UNK decision does not only reinforce the rights of people living with disabilities to have equal access to housing as other people, but it also emphasizes the fact that the Fair Housing Act is broadly interpreted by the courts to protect against discrimination in housing.