Therapy Animals Coming to a Dorm Room Near You

Tim Burke & Kathleen Farro Ryan, Manley Burke, tburke@manleyburke.com & kryan@manleyburke.com

On January 4, 2016, the United States Attorney for the Northern District of Ohio announced the settlement of a lawsuit against Kent State University.¹  The suit challenged the University’s policy of not allowing students with psychological disabilities to keep emotional support animals in university-operated student housing.  According to the lawsuit filed in September of 2014, that policy violated the United States Fair Housing Act. The dispute grew out of a complaint by a Kent State student who sought to have a dog live with her and her husband in university housing.  Ironically, it was a university psychologist’s recommendation that the animal would help alleviate her anxiety, which caused the student to make that request.

In a September 8, 2014 article announcing the filing of the suit, the Cleveland Plain Dealer quoted the United States Housing and Urban Development Assistant Secretary Gustavo Velasquez for Fair Housing and Equal Opportunity as saying:

“Many people with disabilities rely on therapy animals to enhance their quality of life.  HUD and the Department of Justice will continue to work together to take action whenever the Nation’s Fair Housing Laws are violated.”²

Kent State had filed a motion to dismiss its employees who were individual defendants from the complaint arguing that “there was no controlling authority in the form of either U.S. Supreme Court or Sixth Circuit case law that establishes that the act applies to student housing.”

The trial court examined the language of the Fair Housing Act, particularly the definition of “dwelling.”  Finding that that apartments owned by the university fall squarely under the definition of “dwelling” the court found no merit in Kent State’s argument.  As the court pointed out, the act applies to all dwellings except those specifically exempted.  There is no exemption for “student housing” or “university-owned housing.”³

Ultimately the court, in denying Kent State’s motion to dismiss, found “that the plain language of the FHA renders it applicable to ‘student housing.’”

A year and a half later when the settlement was announced, the Justice Department issued a press release describing that the settlement requires the university to:

“Adopt a housing policy that will allow persons with psychological disabilities to keep animals with them in university housing when such animals provide necessary therapeutic benefits to such students and allowing the animal would not fundamentally alter the nature of the housing.”

The settlement also required the university to pay $100,000.00 to the two former students who were denied the right to keep the dog in their university-operated apartment; $30,000.00 to a fair housing organization that advocated on behalf of the students; and $15,000.00 to the United States.

In the January 4, 2016 Justice Department press release, Assistant Secretary Velasquez was quoted as saying:

“Providers of on-campus housing have the same obligation to comply with the Fair Housing Act as other Housing Providers.  Today’s settlement reinforces the ongoing commitment of HUD and the Justice Department to ensuring that individuals with disabilities are granted the accommodations they need to perform daily life functions.”

The result in this case is similar to the result reached in a case dealing with the University of Nebraska at Kearney a few years ago.⁴

Even prior to this settlement, Kent State did allow trained service animals, such as seeing-eye dogs which performed specific tasks for their owners, to live in university housing.  That accommodation was appropriate under the Americans with Disabilities Act.  The University, however, argued that a therapy animal, which requires no particular training to do anything, did not rise to that level.  But it was not under the Americans with Disabilities Act that the Justice Department had proceeded; rather, it was under the Fair Housing Act that the right to have therapy dogs was enforced.

While the Fair Housing Act permits a broader range of species to qualify as therapy animals than the Americans with Disabilities Act allows as service animals, there are limitations as to whether a reasonable accommodation is reasonable and justified under the Fair Housing Act.  These limitations are not pre-defined, but are instead determined based on a “highly fact-specific inquiry” that depends specifically on the disabilities of the individual, the ability of the animal to alleviate the effects of that disability, and the housing at issue.  The Sixth Circuit described the inquiry in a 2014 case, Hollis v. Chestnut Bend Homeowners Association,⁵ as an evaluation of “the burden the requested modification would impose on the defendant (and perhaps on the person or persons whom the defendant represents)…weighed against the benefits that would accrue to the plaintiff.”

While there has not yet been litigation dealing specifically with fraternity houses in either service animals under the Americans with Disabilities Act, or therapy animals under the Fair Housing Act, the comments by the Assistant Secretary and the results of both the Kent State litigation and the Nebraska litigation, ought to be considered when confronted with a request by a member to have a dog or other animal in a chapter house.  Each individual member’s request will differ and merit its own “fact-specific inquiry,” evaluated based upon the type of disability at issue, the manner and extent to which the animal can alleviate the disability, and the balancing of those benefits against the burden the presence of the animal will impose on the chapter house at issue.

When the University of Nebraska lawsuit was filed by the Justice Department, inside Higher Education’s article on December 13, 2011, quoted extensively from Jane E. Jarrow, a consultant in disabilities and higher education and the former Executive Director of AHEAD.  The article concludes quoting her as saying:

“I think that the sense is that we will see more and more animals showing up on campus, and that may be an unsupported fear.  Whether or not it will truly open the floodgates remains to be seen.  My guess is not.”⁶

It would appear that the Kent State settlement has at least opened those gates a little bit.  How wide that opening becomes remains to be seen.

Ms. Ryan, an associate at Manley Burke, recently prevailed in the U.S. 6^th Circuit Court of Appeals in a case challenging a local zoning ordinance which prohibits a mother from having a miniature horse to assist her multiply-handicapped daughter.  Anderson v. Blue Ash, 798 F.3d 338 (6^th Cir. 2015).

1 United States v. Kent State University, et al., No. 5:14-CV-1992-JRA, No. Dist. Of Ohio, Ea. Division, U.S. District Court.

2 “Kent State University Sued by U.S. Justice Department For not Allowing Student Who Suffered Panic Attacks to Have Dog in Her Room,” Cleveland Plain Dealer, Sept. 8, 2014.

3 U.S. v. Kent State University, et al., Order and Decision Denying Motion to Dismiss, No. 5:14-CV-1992, No. District, Ea. Division, U.S. District Court, Sept. 16, 2015.

4 U.S. v. University of Nebraska at Kearney, No. 4:11-CV-3209, District of Nebraska, Consent Order, Sept. 3, 2015.

5 Hollis v. Chestnut Bend Homeowners Ass’n., 760 F.3d 531 (6^th Cir. 2014).

6 “Pets or Therapy Animals,” Inside Higher Education, Dec. 13, 2011.