In at least three recent lawsuits, post-secondary institutions have come under fire for failing to comply with provisions of the Fair Housing Act (FHA) that make it unlawful to deny housing based on a person’s handicap and that require institutions to accommodate “assistance animals.” What most institutions don’t realize yet is that the federal definition for an assistance animal is much broader than the definition for a service animal under the ADA.
(A service animal can only be a dog or, in some circumstances, a miniature horse. An assistance animal can be any type of animal and need not be specially trained.)
While colleges and universities do have a long history of accommodating service animals, the concept of accommodating assistance animals is relatively new. But though it’s new, failing to comply can still create legal risk for your institution.
Three Recent Cases
In three recent cases:
- Grand Valley State University initially denied a request from a student suffering from chronic depression to live with a guinea pig that served as her “emotional support animal”; the student sued GVSU, which settled for $40,000 in March 2013. Read more about the case here.
- A student at the University of Nebraska at Kearney was not permitted to bring her therapy dog to a campus-owned apartment, leading to a federal lawsuit and a ruling in which the court held that the Fair Housing Act applied to student housing. The Department of Justice and the university settled the lawsuit for $140,000 and other terms set forth in a September, 2015 consent decree.
- The U.S. Department of Justice also filed suit against Kent State University for allegedly refusing to provide accommodations to two students with disabilities who sought to live in university housing with animals that were not trained "service animals." The Department of Justice and the university settled the lawsuit in January, 2016 through a consent decree in which the university agreed to, among other things, pay $145,000.
In all of these cases, the institution in question fell back on traditional housing policies regarding pets. And in these cases, the institutions faced legal action for holding to that exclusion.
As our researchers at Academic Impressions note, “No one wants to pay $40,000 for a guinea pig.” It’s important to be aware of how the law has changed and to define a policy for how your offices of housing and disability services will handle requests to bring an assistance animal campus.
"In light of the recent lawsuits and the recent increase in Department of Education Office for Civil Rights investigations and enforcement actions, now is the time to review your institution’s compliance with the FHA."
Ellen Wetmore, higher education attorney
In the Absence of a Defined Policy
This compliance issue brings up a host of concerns for institutions, however – particularly as a diverse array of assistance animals may be involved:
- What if other students are allergic to the animal?
- What if the animal causes damage to the residence?
- What if the animal makes noise that disrupts other students?
- What if the assigned roommate doesn’t want to live with an animal?
- What does all of this mean for housing assignments and other housing policies?
- How will you handle communication with the immediate and campus-wide community?
- Who will review guidelines and expectations for animal care with the student?
- How much information does the residential facilities staff need?
It’s critical to think all of this through beforehand. While many campuses are working to develop polices now, some institutions, like Clemson University, have been working with a defined policy for some time now. As Kathy Bush Hobgood, Clemson's assistant vice president for student affairs, reflects, “A proactive and well-defined policy that lays out possible issues – as well as delineating responsibilities of both the campus and the student - is key.”