NY Attorney General Backs ACLU Lawsuit Charging Yeshiva University with Anti-Gay Housing Discrimination

FOR IMMEDIATE RELEASE

NEW YORK – The first lawsuit in the nation challenging anti-gay policies in university housing got a boost from the New York Attorney General, who filed a brief this week asking the state’s highest court to hear the American Civil Liberties Union’s lawsuit charging Yeshiva University with unlawful discrimination for banning lesbian and gay people from living in campus housing with their partners.

The ACLU’s Lesbian and Gay Rights Project is representing graduate students at Yeshiva’s Albert Einstein College of Medicine, who were denied shared housing with their same-sex partners because they cannot marry. Charging discrimination on the basis of sexual orientation and marital status, the ACLU is seeking to overturn the policy and recover unspecified damages for emotional distress and extra housing and commuting costs.

This week, the ACLU is asking the New York Court of Appeals in Albany to review a lower court decision that dismissed the case last spring. In that decision, the New York Supreme Court ruled that Yeshiva’s housing policy is not discriminatory because “it had the same impact on non-married, heterosexual students as it had on non-married homosexual students.” The ruling did not address the fact that lesbians and gay men cannot legally marry in New York or any other state.

“Today’s developments emphasize what we’ve said all along in this case – it simply denies reality to say that policies which favor married couples don’t discriminate against lesbian and gay couples,” said Michael Adams, Associate Director of the ACLU’s Lesbian and Gay Rights Project.

State Attorney General Eliott Spitzer’s brief faults the lower court’s decision and asks the Court of Appeals to hear the case because of the impact the ruling could have on his office’s ability to fight for civil rights for a range of people – including people of color, women and disabled people.

The state Attorney General’s involvement focuses primarily on a New York City law barring discrimination that has a “disparate impact,” or particular hardship, on groups protected by civil rights laws. “Yeshiva’s housing policy offers starkly different benefits to married, straight people than it does to gay and lesbian students,” Adams explained. “By completely eviscerating the notion of ‘disparate impact,’ the lower courts in this case have set a potentially dangerous precedent that could make it much more difficult to protect anyone from discrimination.”

Lesbian and gay students at the Albert Einstein College of Medicine are forced to choose between living with their partners or living on campus – which is not only more convenient, but considerably cheaper. Market-rate apartments in the campus area are about twice the rate of campus housing, which ranges from about $330 a month for a studio to $767 for a two-bedroom penthouse apartment.

Besides Yeshiva, both Columbia University and New York University offer housing to couples, and both universities include domestic (same-sex or heterosexual) partners.

Although comprehensive data do not exist, the ACLU estimates that, of colleges and universities that offer housing to couples, less than half include same-sex couples. While political and legal pressure has convinced many universities to adopt inclusive housing policies, the ACLU challenge against Yeshiva is the first in the country to reach a court.

In 1989, Einstein’s student/faculty senate passed a resolution asking for housing and other benefits for gay couples, but Yeshiva President Norman Lamm refused to approve the change. According to news reports, Rabbi Lamm has said that “under no circumstances can Judaism permit homosexuality to become respectable.”

Despite its origins as a religious school, Einstein, like all divisions of Yeshiva except its Rabbinical school, is today a secular institution open to students of all religions. Indeed, the school’s promotional materials include a statement that “the University does not discriminate on the basis of sex, religion, age, race, handicap, color or national origin.”

But the school’s policy restricts campus housing to students and their spouses and children, and states that “married couples, regardless of their position on the Waiting List, receive priority” for apartments, after providing “acceptable proof of marriage.”

The case is Levin v. Yeshiva University and the Albert Einstein College of Medicine. In addition to Adams, the ACLU legal team is headed by volunteer attorneys James D. Esseks and Karen Honeycutt, with the New York firm Vladeck, Waldman Elias & Engelhard.

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ACLU Fact Sheet: Relevant Anti-Discrimination Law

New York Executive Law § 296(5)(a):

It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of . . . a housing accommodation, . . . or any agent or employee thereof:

(1) To refuse to sell, rent, lease, or otherwise to deny to or withhold from any person or group of persons such a housing accommodation because of the race, creed, color, national origin, sex, age, disability, marital status, or familial status of such person or persons.

New York Executive Law § 296(2-a):

It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of publicly assisted housing accommodations . . .:

(a) To refuse to rent or lease or otherwise to deny to or withhold from any person or group of persons such housing accommodations because of the race, creed, color, national origin, sex, age, disability, marital status, or familial status of such person or persons.

New York Executive Law § 296(4):

It shall be an unlawful discriminatory practice for an educational corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law to deny the use of its facilities to any person otherwise qualified, by reason of his race, color, religion, disability, national origin, age or marital status.

New York Executive Law § 296(5)(a)(3):

To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for the purchase, rental or lease of such housing accommodation or to make any record or inquiry in connection with the prospective purchase, rental or lease of such a housing accommodation which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color, national origin, sex, age, disability, marital status, or familial status, or any intent to make any such limitation, specification, or discrimination.

New York City Administrative Code § 8-107(5):

Housing accommodations, land, commercial space and lending practices. (a) Housing accommodations. It shall be an unlawful discriminatory practice for the owner, lessor, lessee, sublessee, assignee, or managing agent of . . . a housing accommodation . . .:

(1) To refuse to sell, rent, lease, approve the sale, rental, or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived race, creed, color, national origin, gender, age, disability, sexual orientation, marital status or alienage or citizenship status of such person or persons, or because children are, may be, or would be residing with such person or persons.

New York City Administrative Code § 8-107(17):

Disparate Impact.

a. An unlawful discriminatory practice based upon disparate impact is established when:

(1) [a plaintiff] demonstrates that a policy or practice of a covered entity . . . results in a disparate impact to the detriment of any group protected by the provisions of this chapter; and

(2) the covered entity fails to plead and prove as an affirmative defense that each such policy or practice bears a significant relationship to a significant business objective of the covered entity or does not contribute to the disparate impact; . . . provided further, that a policy or practice . . . demonstrated to result in a disparate impact shall be unlawful where the [plaintiff] produces substantial evidence that an alternative policy or practice with less disparate impact is available to the covered entity and the covered entity fails to prove that such alternative policy or practice would not serve the covered entity as well.

New York Real Property Law § 235-f:

2. It shall be unlawful for a landlord to restrict occupancy of residential premises, by express lease terms or otherwise, to a tenant or tenants or to such tenants and immediate family. Any such restriction in a lease or rental agreement entered into or renewed before or after the effective date of this section shall be unenforceable as against public policy.

3. Any lease or rental agreement for residential premises entered into by one tenant shall be construed to permit occupancy by the tenant, immediate family of the tenant, one additional occupant, and dependent children of the occupant provided that the tenant or the tenant’s spouse occupies the premises as his primary residence.