February 20, 2013
To:
Vice President of Student Affairs, Oregon State University
From:
Tess Collins, Student Affairs Task Force, Oregon State University
Subject:
First-Year Student Live On-Campus Requirement
I. Introduction
Beginning Fall 2013, Oregon State University (OSU) will require all full-time, firstyear students to live on-campus. Oregon State University is a pubic 4-year land grant
institution that focuses on accessibility and providing an affordable education for the
people of Oregon. Research has shown that living in on-campus housing leads to higher
rates of engagement on campus, greater accessibility to campus resources, and higher
academic achievement (Kaplan & Lee, 2007). The OSU Housing website reports that
students that live in campus housing typically earn higher grades than those living offcampus and that each hall hosts tutors in writing and math each week, and workshops and
seminars focused on academic success frequently. The website also states that living oncampus leads to an increased sense of community, with a network of friends, resources,
and support from RA and RD right outside your door. Another perk is that there will be
no unexpected expenses to account for, as students know the total cost of room and board
upfront and generally pay in advance.
Though the benefits are clear, not all students will thrive in on-campus housing and
many will not desire to live on-campus. The new requirement will likely cause some
pushback and possibly even require legal action. Possible areas of concern include
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ensuring equal housing opportunities for all genders of students, adequate housing for
students requiring ADA accommodation at an equal cost to nondisabled student rooms,
financial concerns, and providing housing that accommodates student religious
preferences. The university will also be assuming a duty of care when requiring all firstyear students to live on campus and could face action as a result. This legal memorandum
explores relevant policies at Oregon State University. Federal laws and related case
examples will be cited in order to provide understanding of best practices.
Recommendations for resolving any issues that may arise next fall will be given in the
fourth section of this memo, followed by concluding statements and remaining questions.
II. Policy/Educational/Administrative Issues and Questions
Historically at OSU, first-year students have had the option to live on campus but
have not been required to do so. In fall 2013, all first-year, full-time students, within one
year of high school graduation whose primary residence is more than 30 miles from
Oregon State University will be required to live on campus in a University owned and
operated residence. Though there are many positive aspects of living on-campus for most
students, there are a few concerns as well. In this section I will describe potential issues
that may arise, including financial concerns of students, facility issues ensuring adequate
housing availability for students of all genders and ADA accessibility of housing options,
and ethical issues surrounding student’s religious beliefs in regards to housing. This
section will describe current policies in place at OSU that relate to these issues.
First-Year Experience Live On Policy: The current policy regarding the live-on policy
can be found in the Oregon Administrative Rules, Chapter 576, which states:
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As a component of the comprehensive First Year Experience (FYE) at Oregon
State University (OSU), full-time, first-year students who enroll at OSU within
one year of high school graduation regardless of class standing must live on
campus, in a University-owned and operated residence, for the full academic year
(Fall, Winter and Spring terms).
While participation in the First Year Experience (FYE), including the live-on component,
is an integral part of the first-year student’s education, OSU recognizes that exceptions to
the live-on requirement may be appropriate in certain circumstances. There are certain
exemptions to the live-on requirement that may be requested by petition. The approved
exceptions include: if the student is living with immediate family in a family situation
and within approximately 30 mile radius of the Corvallis campus of OSU, if the student
has a legal dependent that is living with the student, if the student is married or has a
domestic partner, or if the student has attended an institution of higher education as a
regularly enrolled student for at least two regular semesters or three regular quarters,
post high school graduation, excluding summer sessions (First Year Experience Live-On
Policy). Oregon State University Policy Against Discrimination: To comply with federal and
state laws Oregon State University has a discrimination policy that states, “Oregon State
University prohibits discrimination on the basis of age, color, disability, gender identity
or expression, national origin, race, religion, sex, sexual orientation, or veteran status in
any of its policies, procedures, or practices” (OSU Policy Against Discrimination). This
discrimination policy can be applied to all aspects of the live-on requirement as well as,
“an objective of Oregon State University is the creation and maintenance of a positive
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atmosphere of nondiscrimination in every phase and activity of university operations”
(OSU Policy Against Discrimination).
Policy of Nondiscrimination on the Basis of Disability: The new live-on requirement
applies to all students, including those with disabilities. Depending on the number of
students requesting ADA residence halls, Oregon State University may need to provide
additional accommodations. Regarding housing, the nondiscrimination on the basis of
disability policy states:
Comparable and accessible on-campus housing and food service shall be
provided at the same cost to qualified students with disabilities as it is to students
without disabilities. A student with a disability may receive help from Housing
and Dining Services in the following areas: assessment of special disability
needs; recommendations for minor modifications and equipment for activities of
daily living; and resources to assist in identifying accessible off-campus housing.
Students who desire to live in University (on campus) housing should notify
Disability Access Services at least one month before their arrival on campus.
OSU Policy of Nondiscrimination on the Basis of Religion: Religious beliefs and
practices of some students may conflict with housing options available. Accommodations
may need to be provided in order to address student needs and provide a comfortable and
adequate home for these students. Specific concerns related to housing include ensuring
adequate prayer space, a place for abolution, and separate housing for men and women.
There is a policy in place at OSU of nondiscrimination on the basis of religion. This
policy states:
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With regards to religion, the University may not create an atmosphere, which in
anyway suggests it favors one religion over another, or religion over non-religion. As
a public university, it is equally important not to inhibit voluntary religious
expression. The University's obligation is to balance these two elements -- to refrain
from promoting and at the same time to refrain from inhibiting. This policy is
premised on respect for each individual's right to make personal choices regarding
the nature, if any, of his or her religious beliefs and practices. For many students at
OSU, there are a number of areas where the practice of their religion may result in a
request for accommodation. These areas may include but are not limited to the
following: prayer, dietary requirements, fasting, religious attire, ablution (e.g.
washing of hands, face & feet), participation in daily activities and curriculum, and
observation of major religious holy days and celebrations.
The rules go on to state that collaboration among students, the University and
religious communities is often needed in order to develop reasonable accommodations.
The UHDS will likely need to collaborate with the religious communities that are likely
to have students living on campus in order to provide appropriate housing and dining
options. It will also be the role of all staff members to ensure fairness and respect for the
diverse religious beliefs and practices in the residence halls.
Appeal Process: If student needs are not accommodated or if the live-on requirement is
deemed to be detrimental to a student’s academic and/or personal success they will be
able to go through an appeal process. The First Year Experience Live-on Policy has a
section that described the appeal process:
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In disputed cases, the final determination as to whether the exceptions apply to
particular students’ situations will be determined by a committee. Other exceptions
not discussed above will also be considered on a case-by-case basis through the
committee, with the committee’s decision as final. These case-by-case exceptions
include: if the student is not on-campus for a majority of their coursework, such that
living on campus is not consistent with their program objectives or if the university
approves a student’s request to live off campus as an accommodation for a qualifying
disability or a sincerely-held religious practice/belief that is not sufficiently
accommodated on-campus.
As the policy states, each student will have an opportunity to make an appeal to the
committee and state their case. Other areas of concern that have not been mentioned yet
include students who are not financially able to afford to live on campus and who would
require financial assistance. Adequate housing options for transgendered or LBGT
students must be considered as well as many may prefer to live in gender neutral housing.
III. Legal Issues
In order to delve deeper into a legal framework for our issues of housing issues
based on disability, gender, financial status, religious preference and duty to protect, I
have collected legal cases and several state statutes and examples of institutional policies
to provide background to inform our actions. These cases relate specifically to Title IX,
The Fourteenth Amendment, Section 504, and the Fair Housing Act.
Title IX:
Texas Women’s University v. Chayklintaste, 521 S. W.2d 949 (1975)
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In this case, a regulation at Texas Women’s University allowed male students but
not female students to live off campus. The regulation was challenged and found to be
unconstitutional based upon the fact that the university claimed to not have the space or
money to build housing for men. The court held that mere financial reasons could not
justify the discrimination and that the university was unconstitutionally discriminating
against its male student by not providing them with any housing facilities. The court also
said that the university was discriminating against female students by not permitting them
to live off campus. The university subsequently made housing available to males as well
and required both males and females to live on campus if they were under the age of
twenty-three.
The main point in this case is that a university cannot require students to live on
or off of campus simply for financial reasons nor discriminate between male and female
students. To comply with Title IX, Oregon State must provide amounts of housing for
female and male students proportionate to the number of housing applicants of each sex,
the quality and cost must be comparable, and housing policies must be the same.
The Fourteenth Amendment of the U.S. Constitution:
Prostrello v. University of South Dakota, 507 F.2d 775 (1974)
This case relates very closely to the Oregon State live-on requirement, as the
University of South Dakota had a regulation that required all single freshmen and
sophomores to live in university housing. Students found this to be unconstitutional
because it denied them equal protection under the Fourteenth Amendment and infringed
their constitutional rights of privacy and freedom of association. Though the university
admitted that one reason for the regulation was to maintain a certain level of residency
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occupancy to pay back construction costs, they stated that the main reason for the
regulation was to ensure that younger students would educationally benefit from the
experience in community living and the opportunities to interact with staff members. The
university also contended that students who lived on campus had easier access to study
facilities, films, and discussion groups.
The lower court ruled that the regulation violated the equal protection clause, but
the appellate court reversed the lower court’s decision. The court reasoned that even if
part of the reason for the regulation was financial, that there was no denial of equal
protection, as the university officials believed that the regulation contributed to the
younger students’ adjustment to college life. The court gave deference to school
authorities’ for formulating educational policies.
The Age Discrimination Act (34 C.F.R. Part 110):
Cooper v. Nix, 496 F.2d 1285 (1974)
In this case a institutional regulation required all unmarried full-time
undergraduate students, regardless of age and emancipation status to live on campus. The
regulation contained an exemption for students aged twenty-three and older. Brought to
the lower courts and the appeals court, neither could find any justification for the
distinction between twenty-one year-old student and twenty-three year-old students. The
lower court suggested that the school to change the regulation to students twenty-one and
old were not required to live on campus, butt he appeals court moved that the school not
automatically exempt all twenty-three year-olds. Thus the school was able to continue to
enforce the regulation, but only if it exempted students over the age of twenty-three on a
case-by-case basis. Oregon State has likely learned from some of their predecessors, as
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the current policy does not use explicit age distinctions in formulating the housing policy
therefore could not be found guilty of age discrimination.
Section 504 of the Rehabilitation Act (34 C.F.R. 104.45):
Fleming v. New York University, 865 F.ed 478 (1989)
This case regards a graduate student who used a wheelchair and claimed that the
university overcharged him for his dormitory room, a violation of Section 504. Fleming
requested single occupancy of a double room as an undergraduate and the university
charged him double the rate that a student sharing the double rate would have paid. After
intervention by the U.S. Office for Civil Rights, the university agreed to charge him 75%
of the rate for two students in the room. The student continued at the same university for
graduate school and requested to stay in the undergraduate housing at the same rate and
the university agreed. However, due to low occupancy rates in the graduate residence
hall, students occupying a double room were only charged a single rate. The student filed
a claim against the university that he was being discriminated against due to a disability,
but his claim was denied because he had never applied for graduate housing.
Barker v. Niles Bolton Assoc., 316 Fed. Appx. 933 (2009)
In this case a disabled university student and a disability advocate group filed a case
against a university apartment was not handicap-accessible. Courts found that defendant
designer had not violated the Fair Housing Act (FHA) but that defendant builder had
violated the FHA. Plaintiffs challenged the denial of motions for a new trial and for
judgment as a matter of law in their disability discrimination action under various laws.
Section 504 prohibits discrimination based on disabilities and institutions must
provide “comparable, convenient, and accessible” housing for students with disabilities at
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the same cost as nondisabled students. Oregon State will have to ensure that appropriate
housing options that are ADA accessible and at the same cost as non-ADA rooms are
available to first-year students with disabilities.
Free Exercise of Religion: US Constitution
Rader v. Johnston, 924 F. Supp. 1540 (1996)
In this case, an eighteen-year-old student at the University of Nebraska-Kearney
challenged the universities first-year student live-on policy. The policy had exemptions
for students who were 19, married, or living with their parents. Since the student did not
meet any of those conditions, he contended that living in a residence hall would hinder
the free exercise of his religion. He wanted to live with other students of similar faith in
Christian Student Fellowship facility (CSF) across the street. The university denied his
request, finding nothing in the residence hall environment that would hinder the student’s
practice of religion. The court cited a U.S. Supreme Court ruling in Church of the Lakumi
Babalu Aye v. City of Hileah, 508 U.S. 520 (1993) stating that the university routinely
excused over one-third of first year students from the live-on requirement for
nonreligious reasons, but had refused to extend exceptions for students who wanted to
live at the CSF for religious reasons. Therefore the court ruled that the university was
infringing on Rader’s free exercise rights.
Hack v. The President and Fellows of Yale College, 16 F. Supp. 2d 183 (1998)
This case involves the live-on requirement for all unmarried freshmen and
sophomore students under the age of twenty-two to live in campus housing at Yale. Four
Orthodox Jewish undergraduate students requested exemptions from the housing
requirements because all of Yale’s residence halls are co-ed and the students stated that
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their religion forbade them to live in a co-ed environment. The university refused to
exempt the students from the housing requirement and the students filed a lawsuit
claiming that he housing policy violated the U.S. Constitution by interfering with their
free exercise of religion and the Fair Housing Act. The court dismissed the claims on the
grounds that Yale is a private university and is not subject to constitutional restrictions.
The Fair Housing Act charge was also dismissed as Yale was not refusing to provide
them with housing, but they had been provided housing in which they refused to live.
New York State Roommate Law and New York City Human Rights Laws
Levin v. Yeshiva University, 691 N.Y.S. 2d 280 (1999)
In this case a same-sex couple wished to live in university housing that was
reserved for married students, their spouses, and children. They were told that a proof of
marriage was required in order to live together. The students were offered student
housing but were not allowed to live together. They argued they were in a long-term
committed relationship and that they had been discriminated against on the basis of
homosexuality. The New York State Roommate Law and New York Human Rights Law
were cited because the university regulations had a discriminatory impact upon them. The
trial court rejected all of the plaintiff’s claims citing a number of different case laws and
the students went on to the appellate court, which had the same verdict. The students
went on to the Supreme Court where it was found that the housing policy had a
disparately disproportionate impact on homosexuals, a potential violation of New York
City’s Human Rights Law.
Whitaker v. New York University, U.S. Dist. LEXIS 87619 (2012)
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In this case, the plaintiff was a student at NYU that wanted to live in on-campus housing
with her underage son. Whitaker was a part-time student and NYU does not provide
housing for part-time students. Plaintiff alleged that NYU discriminated against her on
account of her familial status, as NYU's housing policy prevents parents from living in
student dormitory housing with children who are not themselves full-time NYU students.
Whitaker’s motion for relief from judgment was denied.
Duty to Protect
Mullins v. Pine Manor College, 449 N.E.2d 331 (1983)
As colleges and universities consider mandatory live-on campus requirements,
they may wish to consider that this regulation may create a duty to protect students from
foreseeable harm, even if the housing is not university owned (Kaplan & Lee, 2007). In
the case of Mullins v. Pine Manor College, a first-year female student was abducted from
her dormitory room and raped in the college-dining hall. The courts found that the
security on campus was not adequate and the college was held liable.
Miller v. State, 478 N.Y.S.2d 829 (1984)
In this case, a female student was abducted from laundry room of residence hall and
taken through two unlocked doors to another residence hall where she was raped. Courts
held the college liable as had failed to keep dormitory doors locked.
Griffin v. Troy State University, 128 Fed. Appx. 739 (2005)
The Griffin family filed this suit after their 17-year-old daughter; Brandy Hobson was
murdered in her on-campus dormitory during her first semester at the school. The
Griffins alleged that by requiring students under the age of 19 to live on campus, TSU
assumed a duty to provide adequate security for its students. The Griffins asserted that by
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virtue of the on-campus living requirement, Defendants formed a "special relationship"
with their daughter and, thereafter, were deliberately indifferent to inadequate security
and control issues on the TSU campus.
Other Applicable Law:
The case law described in this memo goes hand in hand with the Oregon Administrative
Rules (OAR) and campus common law. Applicable OARs and Oregon State University
Institutional Policies are included below.
Institutional Policies:
First-Year Experience Live On Policy (See Section II)
Oregon State University Policy Against Discrimination (See Section II)
Policy of Nondiscrimination on the Basis of Disability (See Section II)
OSU Policy of Nondiscrimination on the Basis of Religion (See Section II)
Student Family Housing, OAR 576-016-0000
This rule sets out eligibility requirements for university family housing. In order to be
eligible, an applicant must be a student at OSU, qualifying family members must live
with the student in the unit, and there is a maximum of four years eligibility for the
housing unit.
Student Living Groups, OAR 576-017-0005
Student Living Groups Policy states:
University policies and administrative rules, including the University Housing and
Dining Services Policy Guide, University Housing and Dining Services Room
and Dining Contract, and any applicable Student Conduct rules or policies, apply
to all residential students or residents who live in UHDS facilities, including
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residence halls, cooperative houses, or student family housing, regardless of the
length of that residency. All students who live in residence halls, cooperative
houses, or student family housing must be regularly enrolled students at Oregon
State University, or be residents under contractual agreement to reside in
University housing.
IV. Recommendations for Action
Based upon the aforementioned cases and laws, I have several recommendations for
the university as we more forward with the live-on requirement policy. These
recommendations include how to avoid discrimination cases based upon age, gender,
disability, and religious affiliation. I will also describe the duty to protect that the
university is assuming when requiring all first-year students to live on campus.
The language of the proposed live-on policy already accounts for several of the
concerns raised in the cases above. With the language not specifying a certain age, but
saying “within one year of high school graduation,” the university avoids the risk of
being charged with age discrimination. Similarly there is no differentiation between male
and female students that are required to live on-campus. The university will simply need
to ensure that there are an adequate number of residence hall rooms for both genders as
well as accounting for transgendered students. OSU currently offers a Gender Inclusive
Living Program in Halsell Hall. Gender Inclusive Living allows residents to room with
anyone of any gender identity or gender expression. This program is a big step in the
right direction toward providing an inclusive living environment for all students.
In regards to Section 504, my recommendation is that the university ensures that
every residence hall is ADA accessible and that there are a number of ADA accessible
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rooms in every building. As the student information forms and contracts are received, the
university will need to be sure to offer plenty of accessible rooms at a cost and quality
equal to the non-ADA rooms. Any price difference based upon single vs. double
occupancy should be communicated clearly and the option for a single room provided,
though at a higher cost. Students with severe disabilities that would prevent them from
benefitting from on-campus housing should be provided an opportunity for exemption
from the regulation.
Regarding cases involving the Free Exercise of Religion, Oregon State should make
every effort to provide housing that is adequate for students of all faiths. Perhaps a focus
group or comparative research on other institutions would be of benefit to ascertain what
the most common religious preferences are in regards to housing. I am aware that OSU
already offers housing that includes a prayer room and a space for foot bathing, but it
would be beneficial to learn what other additions could be made in order to create a fully
inclusive living environment for all of our potential students. The university is currently
considering allowing the Greek houses to count in the first-year live-on requirement,
some of which are religiously affiliated and could perhaps meet student’s needs more
adequately. Oregon State University offers residence halls such as Sackett Hall, which
are single gender only, which may be helpful in addressing religious preferences.
The First Year Experience Live-On policy is fairly explicit in stating the requirements
for students that are required to live on-campus and the exemptions as well. If the student
has family living within 30 miles of Corvallis, has a dependent, or is married or has a
domestic partner they will be granted an exemption. These exemptions will address
issues brought up in several of the cases under various state roommate laws.
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Finally, as OSU is requiring first-year students to live on-campus, we are taking on a
responsibility for these students safety. We have a duty to protect the students to the best
of our ability and to protect them from foreseeable or foreseen dangers. We must do our
best to hire an excellent group of staff members, including RAs, RDs, security guards,
and other supervisory staff. Additionally, we must be aware of potential dangers on
campus and warn students accordingly. Oregon State has in place a warning system in
which emails are sent out to students if a threat is reported or perceived on or near
campus. We must continue to be vigilant and our staff must be well trained in responding
to crises or threats on campus.
V. Conclusions/Implications/Questions
The proposed First Year Experience program with mandatory live-on campus
requirements for first-year students has the potential to improve student success and
retention rates. As OSU has a very diverse student population, it is crucial that we
consider the unique housing needs of our incoming first-year students. Consideration
given to equal housing for all gendered students, disability status, and religious
preferences will be beneficial to the institution in preventing potential lawsuits. While the
live-on policy will be beneficial for most students, some students will not be well suited
for or desire to live on-campus. This it why is very important that the appeal process is
clearly communicated to students and exemptions are considered on a case-by-case basis.
We must also acknowledge that by requiring students to live on campus that we
are assuming a duty of care for these students and must make every effort to ensure their
safety while on campus. Proper hiring and training of residence hall staff and security
guards will be helpful in avoiding and dealing with potential threats or incidents in
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campus housing. With proper preparation and planning, this policy has the potential to
create positive outcomes for our students, the university, and the community. My review
of cases has resulted in several unanswered questions that the administration should
discuss prior to the live-on policy going into effect next fall. I close with the following
questions:
a) What efforts is the university making to ensure that there will be adequate ADA
accessible housing for incoming students?
b) Has an adequate number of staff been hired and trained in order to efficiently
process the large influx of appeals that are likely to arrive this summer?
c) Will the university need to hire additional security forces and/or increase security
devices (ie. locks, cameras, gates) in order to properly fulfill our duty to protect
students living on campus?
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References
Greenberg, E. (1997). The Supreme Court Explained. New York: W.W. Norton &
Company.
Kaplin, W.A. & Lee, B.A. (2007). The Law of Higher Education. San Francisco: JosseyBass.
Table of Cases
Barker v. Niles Bolton Assoc., 316 Fed. Appx. 933 (2009)
Cooper v. Nix, 496 F.2d 1285 (5th Cir. 1974)
Fleming v. New York University, 865 F.ed 478 (2d Cir. 1989)
Griffin v. Troy State University, 128 Fed. Appx. 739 (2005)
Hack v. The President and Fellows of Yale College, 16 F. Supp. 2d 183 (D. Conn. 1998)
Levin v. Yeshiva University, 691 N.Y.S. 2d 280 (Sup. Ct. Y.Y. 1999)
Mullins v. Pine Manor College, 449 N.E.2d 331 (Mass. 1983)
Miller v. State, 478 N.Y.S.2d 829 (N.Y. App. Div. 1984)
Prostrello v. University of South Dakota, 507 F.2d 775 (8th Cir. 1974)
Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996)
Texas Women’s University v. Chayklintaste, 521 S. W.2d 949 (Tex. Civ. App. 1975)
Whitaker v. New York University, 2012 U.S. Dist. LEXIS 87619
University Policies
Oregon State University (2013). OSU Policy Against Discrimination. Accessed February
20, 2013 at http://oregonstate.edu/oei/discrimination-and-harassment-policies
Oregon State University (2013). First-Year Experience Live-on Policy. Assessed
February 20, 2013 at
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http://oregonstate.edu/main/sites/default/files/oregon_state_first_year_liveon_policy_jan_16_2013.pdf
Oregon State University (2002). Policy of Nondiscrimination of the Basis of Disability.
Assessed February 20, 2013 at http://oregonstate.edu/oei/policy-nondiscrimination-basisdisability
Oregon State University (2012). OSU Policy of Nondiscrimination on the Basis of
Religion. Assessed February 20, 2013 at
http://oregonstate.edu/oei//sites/default/files/religious_accommodations_for_student_poli
cy_05_17_2012_v2.pdf
Student Family Housing, OAR 576-016-0000
Student Living Groups, OAR 576-017-0005
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