GW awaits Supreme Court decision

The U.S. Supreme Court will decide this month whether to hear GW’s case against a city housing order. The decision will end or breathe life into the University’s three-year battle to reverse a D.C. Board of Zoning Adjustment order intended to curb its growth in Foggy Bottom.

The order originally required the University to house 70 percent of its undergraduate student population – including all freshmen and sophomores – on campus or outside Foggy Bottom by August 2002. Construction of non-residential facilities was prohibited until GW complied with the order.

Last month, the D.C. Court of Appeals ruled that the BZA didn’t allow GW enough time to comply with the order, and gave the University until August 2006 to meet the 70 percent mark and provide an on-campus bed for every student that causes enrollment to exceed 8,000.

But GW has never accepted the BZA’s authority to mandate where it can house its students, and is asking the Supreme Court to find the BZA order unconstitutional.

“(There should be) constitutional limits on zoning power with respect to institutions of higher education,” said University Senior Counsel Charles Barber, adding that the BZA exceeded its authority when it enacted the order in February 2001.

“Universities occupy a special place under the law,” he said.

The Supreme Court hears only 80 to 90 of the thousands of cases submitted to it for review each year, leaving GW with a small chance that its appeal of a U.S. Court of Appeals decision will be scheduled for the court’s 2005-2006 docket.

“Once you lose in the U.S. Court of Appeals, you’ve basically lost,” said Walter Smith Jr., a constitutional lawyer who has argued in front of the Supreme Court. He said the court would only take a case if it considered the disputed issue to be “momentous.”

Barber defended GW’s decision to take its appeal to the nation’s highest court, and said students’ rights were at stake.

“We recognize that it’s a very long shot,” he said.

GW is arguing that institutions such as the BZA, a five-member panel that decides zoning disputes, should address the location and size of buildings and not who lives in them.

University Attorney Deborah Baum, who would represent GW if the court accepted the case, said the order is unconstitutional because it tries to reduce the number of students living in Foggy Bottom.

“The court has to work out the legitimacy of the stated purpose of the BZA action,” she said. “(The BZA’s) unlawful objective was arbitrary.”

Peter Lavallee, spokesman for the D.C. Corporation Counsel, which represents the District in court, said the city is trying to balance the needs of GW with needs of its neighbors in historic Foggy Bottom, who have seen blocks of their community converted into academic and residential facilities.

If the Supreme Court declines to hear the case, the University will have exhausted its legal options, bringing an end to three years of legal battles that has cost the University “a fair amount of money,” Barber said.

GW originally contested the BZA order in U.S. District Court in April 2001, claiming the housing requirement and restrictions on GW’s growth violated its first amendment right to academic freedom. A year later, the court overturned the housing requirement, calling it “arbitrary and capricious.”

In February, prompted by an appeal from the District, the U.S. Court of Appeals upheld the BZA order.

Using a two-track approach, GW asked the D.C. Court of Appeals, a local court, to rescind the order because it violated students’ rights under the D.C. Human Rights Act. The court, while rejecting the University’s argument, said GW has an extra three years to comply with the order.

Barber said the Ivory Towers, which will open to students in August 2004, and a planned F Street residence hall would help bring GW into compliance with the housing order by 2006.

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