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Emotional support animals on campus
A change is occurring at many university campuses across the country. Over the last few years, students have been requesting, with increasing frequency, permission from campus authorities to bring an emotional support animal to live in their residence hall or university owned apartment. Such requests have included dogs, guinea pigs, iguanas and snakes. For students who have emotional difficulties or anxieties, the benefits of having an assistance animal are real, and so are the challenges for universities.
Many universities have enforced longstanding “no pet” policies in campus housing with the possible exception of tropical fish. Housing officials often have concerns animals may damage rooms and apartments, trigger allergies or phobias of other students, escape and multiply, or bite someone. However, these policies may not be in alignment with the needs of some students to have an emotional support animal in their living space.
There are two important legal questions that universities must consider. The first is whether the Fair Housing Act (FHA) applies to campus housing, and an equally important question is whether the Rehabilitation Act of 1973 provides students the accommodation of having an emotional support animal on campus. If the answer to the first question is yes, then the living space issue is resolved because the Federal Department of Housing and Urban Development has stated that reasonable accommodation requests may include emotional support animals.1 If the answer to the second question is yes, then entities subject to the Rehabilitation Act may see requests for emotional support animals in the workplace and common areas.
University and college students are able to seek reasonable accommodations for their disability under section 504 of the Rehabilitation Act of 1973 (Rehab Act).2 The Rehab Act, which prohibits acts of discrimination by programs that receive federal financial assistance, aligns in many ways with a more well-known disability law, the Americans with Disabilities Act (ADA), which prohibits discrimination by a public entity.3 However, as it pertains to emotional support animals, there appears to be some daylight between these two laws which creates some uncertainty.
The ADA is clear enough in that it requires public entities to immediately accommodate persons who utilize trained service animals.4 Under the ADA, “[s]ervice animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.”5 There are only two exceptions that permit a public entity to refuse to accept a service dog: (1) when the animal is out of control and the handler cannot control it, or (2) the animal is not housebroken.6
The ADA expressly excludes all animals other than dogs (and miniature horses) from the definition of service animals. If it did not, society would be left to deal with very serious and complicated questions. For example, if a boa constrictor served as a service animal under the ADA, places of public accommodation—restaurants, theaters, trains, etc.—must permit the animal to accompany its owner. The ADA exceptions may not be useful because some animals do not appear unruly or dangerous at first glance.
Unlike the ADA, the Rehab Act does not define service animal and does not address the possibility that students may need emotional support animals. The Rehab Act does clearly state that students with disabilities cannot be excluded from any program or activity that receives federal financial assistance.7 The Rehab Act further states that campus housing must be accessible to students and cannot result in discriminatory treatment based on a disability.8 Accordingly, because a failure to provide reasonable accommodations can support a claim of discriminatory treatment, and because the Rehab Act does not address or exclude emotional support animals, it is possible that a student is entitled to this accommodation assuming the request is reasonable. At least one court has held that a student may be able to state a failure to accommodate claim under the Rehab Act, even though the claim could not be made under the ADA.9
If the Rehab Act is broader than the ADA in this instance, students may be able to request the use of an emotional support animal in both their living space and other spaces on campus, including spaces where an ADA defined service animal is permitted. This would include public spaces and the classroom. Each request would be independently assessed so it is unlikely that every classroom would become a menagerie of exotic animals, but with the increasing number of students making such requests, it is timely for state and federal legislators to address the issue of emotional support animals in more detail.
In drafting the Rehab Act, Congress likely did not consider emotional support animals as a potential disability accommodation, and new regulations could serve to identify whether such animals are permitted as an accommodation. If a university must accommodate animals in residence halls, it would be helpful to have a list of permitted animals or additional parameters regarding the suitability of a particular animal. Without this help, universities must assess animals that have been prescribed by a physician or counselor on a case by case basis to determine whether to permit the accommodation. Assuming that a university has discretion to permit or deny exotic animals, trying to determine whether an iguana is too big for a small residence hall room can create inconsistent results and unnecessary turmoil and delay for the student. As seen below, under the Fair Housing Act, a housing provider is likely limited in its assessment regarding the suitability of emotional support animals.
Another important piece of this puzzle is the Department of Housing and Urban Development (HUD) and its application of the FHA to university campuses. The FHA applies to dwellings which includes accommodations that are transitory in nature such as migrant farmworker housing, and while the FHA does not specifically include university housing in its definition of a dwelling, at least one court has ruled that campus housing does fall under the purview of HUD and the FHA.10 In addition, HUD has firmly posited that campus housing is subject to its authority.11 Consequently, HUD’s definition of assistance animal likely determines whether students can have emotional support animals in their residence hall rooms.
When a housing provider is presented with a request for an emotional support animal accommodation, it can consider whether the specific animal, not the breed or variety, is a direct threat to the safety of others, and it can consider whether the specific animal is a threat to cause substantial damage to the property of others.12 However, the housing provider must base its determination on actual evidence and not speculation.13 Presumably, this means that bad behavior must occur and be observed before a denial can be made. In addition, it is noteworthy that the HUD notice states that there are no size or weight limits on assistance animals.14 It is also noteworthy that residence hall rooms are generally not very large.
Consistent with a notice issued to its field offices in 2013, HUD has issued charges of discrimination against universities and against individual employees of those campuses who have refused to permit emotional support animals.15 The effect of HUD’s enforcement activities has had a substantial impact on campus decision-makers tasked with accommodating students with disabilities while they also try to balance the impact of such requests on the campus community.
While requests for emotional support animals on campuses are not new, the frequency and variety of these requests has been growing over the last several years. Universities are generally very welcoming of students with disabilities, and campuses are trying to navigate this complex issue without the benefit of clear legal guidelines. Having more clearly defined rules would also be very helpful for a young student contemplating leaving home for the first time who wonders whether her hamster, cat, or other beloved and helpful animal will be going with her to college or staying home.