The University was dealt another blow in its battle over campus zoning last week when the U.S. Court of Appeals declined to review a March decision requiring GW to house a majority of students on campus. The defeat puts plans for a new business school on hold while the legal issues are resolved, University officials said.
The end of the case in the federal appeals court means that a second case in District court, which had been shelved pending a federal decision, has now begun.
The University has tried since 2001 to reverse a Board of Zoning Adjustment requirement that GW house 70 percent of its undergraduate population, including all freshmen and sophomores, in campus residence halls.
The school took a two-pronged approach to fighting the BZA restrictions.
In federal court, GW argued that the BZA unconstitutionally restricted the academic freedom of the University. A second challenge, currently in the District Court of Appeals, said the BZA zoning restrictions violate students’ rights under D.C. human rights laws.
GW successfully challenged the BZA ruling in U.S. District Court, but that ruling was overturned by a three-judge panel in the U.S. Court of Appeals in March. The court declined to consider the case before the full nine-member court, effectively upholding the March ruling.
When the court declined to rehear the case, the BZA ruling took effect. Since GW does not meet the housing requirements, the city will not approve future building permits, including the final permit for a planned new business school. The ruling will also prevent other zoning changes, including later Health and Wellness Center hours, which GW requested before the Zoning Commission in March.
In response, the University requested Friday that the D.C. Court of Appeals hold off enforcing the order, which officials say GW is close to fulfilling, to allow time to come into compliance. The request was denied.
University Senior Counsel Charles Barber said the University has now asked the BZA to stay the order. A decision on the stay is expected within three weeks, he said.
Barber said that if a stay is granted, the University will take the opportunity to challenge the order in the U.S. Supreme Court.
“I think that we would go forward with a case to the Supreme Court,” Barber said.
Barring a stay, the University’s only other legal avenue lies with the District courts.
“We agreed with the District Court not to litigate in the District until the federal case was resolved,” Barber said. “The main action now is with the D.C. Court of Appeals.”
The University filed briefs Wednesday in District court in what Barber called a “precedent-setting case.” Oral arguments are planned for June.
In addition to the University’s official position, the Student Association and the D.C. chapter of the American Civil Liberties union filed a joint amicus brief supporting the University’s position.
The brief said the BZA ruling “would unlawfully discriminate against the undergraduate students of the George Washington University in violation of established law and policy in the District of Columbia and would adversely affect the academic and housing opportunities of GW students.”
“In the federal court we were arguing the constitutionality of the BZA ruling,” Barber said. “In District court the challenge is based on the D.C. human rights laws.”
Barber said he was unaware of any case that has used the student clause in the human rights law to challenge zoning rules.
“If you look at the facts, it is obvious (students) are being screwed,” Robinson said, adding that no students have expressed dissent with the University position.
Robinson said supporting the University’s case is important.
“The University has a solid case, they just need to make that case clear to the students,” Robinson said.
The law shields students by outlawing discrimination based on sex, race and matriculation.
“The BZA violated the D.C. human rights act by discriminating against students because they are students,” Barber said.
