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New York attorney General Eliot Spitzer last week asked the state’s highest court to review an appellate ruling upholding Yeshiva University’s policy denying gay and lesbian partners housing in apartments which are available to married students. The Attorney General’s Office said in its brief that the Appellate Division, 1st Department’s reading of the New York City Human Rights Law was so narrow that, if allowed to stand, it could endanger enforcement of antidiscrimination laws not only in the case of gay and lesbians, but for all other protected classes. Spitzer weighed in on the side of plaintiffs in Levin v. Yeshiva University, one of the first suits in the United States to challenge a university policy barring same-sex couples from student family housing. The Attorney General has requested recognition as amicus curiae from the New York Court of Appeals, which is considering whether to hear the appeal. The Attorney General argued that the 1st Department, in an unsigned opinion released in May, ignored the possibility that a facially neutral policy may still have a disparate impact on a protected class under the City Human Rights Law. The brief expresses concern that disparate impact claims could be undermined in future cases. “The decision of the court below … casts doubt on the full enforceability in New York’s state courts of these civil rights laws — city, state and federal,” the brief states. The First Department held that Yeshiva’s housing policy barring gay couples from married student housing did not violate the City Human Rights Law because it does not discriminate on the basis of marital status or sexual orientation. The decision was joined by Justices Eugene Nardelli, Peter Tom, Angela Mazzarelli, Richard W. Wallach and Richard T. Andrias. The plaintiffs were students at the Albert Einstein College of Medicine, which is a part of Yeshiva University. They were denied access to university-owned apartments, which rent at below-market rates, because they are not married to their partners. Both plaintiffs and their respective partners are registered with the City Clerk’s Office as domestic partners. The university, which is represented in the case by Mark A. Jacoby of Weil, Gotshal & Manges in New York, has successfully argued that the plaintiffs were not married and therefore not within the class of students to whom the university would rent apartments in family housing units. DISPARATE IMPACT There is, the 1st Department panel agreed, no disparate impact on gays and lesbians, since the policy applies in a like manner to unmarried heterosexual couples and homosexual couples. But lawyers for the plaintiffs, led by James D. Esseks of Vladeck, Waldman, Elias & Engelhard in New York, maintain that by introducing the concept of marriage into its housing code, the university creates a policy that treats its students unequally on the basis of sexual orientation. The Attorney General maintains that the 1st Department “disregarded the entirety of the City HRL’s disparate impact provision, failing to discuss, quote or cite any portion of it.” “The Appellate Division’s one-sentence analysis of the claim — stating that defendants’ policy ‘ha[s] the same impact as it ha[s] on non-married heterosexual students’ — misses the point,” the Attorney General wrote. “Unmarried heterosexual couples may obtain marriage licenses, which would qualify them for defendants’ family housing; to date, no lesbian or gay couple has obtained one.” The exclusion raises a “viable claim of disparate impact,” requiring the university to come up with a “significant business objective” to defend its validity under the Human Rights Law, the state’s brief said. The City Human Rights Law, moreover, was intended to provide stronger anti-discrimination protection than either the state Human Rights Law or Title VII of the federal Civil Rights Act, the Attorney General argued. By rejecting the disparate impact claim because of the facial neutrality of the policy, the brief states, the 1st Department has “effectively nullified” disparate impact claims under the City Human Rights Law, because all disparate impact claims presuppose a facially neutral policy. “This precedent could be invoked in both state and federal disparate impact cases, thereby undermining all such claims,” the brief states. Jacoby, Yeshiva’s attorney, declined to comment. NARROW CONTEXT In a brief opposing leave to appeal, Jacoby argued that the case fails to raise a novel question of broad public importance, “particularly because [the case involves] the relatively narrow and unique context of a college student housing policy.” Jacoby added that all students of the Albert Einstein College of Medicine have access to university housing, regardless of their marital status. “[The] student housing policy does not discriminate against [plaintiffs] on the basis of their marital status,” he wrote. The Attorney General’s brief was signed by Deputy Solicitor General Daniel Smirlock, and in addition to Spitzer, listed Solicitor General Preeta D. Bansal, Assistant Attorney General Andrew G. Celli, who heads the Civil Rights Bureau, Assistant Solicitor General Adam L. Aronson, and Assistant Attorney General Carrie H. Cohen.

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