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Reasonable Accommodations? The Debate Over Service and Emotional Support Animals on College Campuses

January 8, 2014 Dr. Kim Grieve University of South Dakota

Service and emotional support animals have recently been a topic of conversation on college campuses, despite decades of controversy related to the interpretation of federal law. Amendments to the Americans with Disabilities Act (ADA) offer specific definitions of a service animal; however, the Fair Housing Act has generated further questions regarding the interpretation of permissible service animals under federal law. According to Lissner, the acceptance of emotional support animals on college campuses as a reasonable accommodation continues to be debated, even though the ADA has provided a tighter definition. A review of current working definitions, a brief policy summary, relevant cases, and a list of resources may prove beneficial to professionals working in higher education.

Prior to the September 2010 Department of Justice ruling, little distinction existed between the legal definition of a “service animal” and an “emotional support animal,” as indicated by the ADA. Amendments to Title II thereof state that a “service animal” is specifically any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. The work or tasks performed by a service animal must be directly related to the handler's disability. Provisions are also included in the ruling for the use of a miniature horse. Conversely, “emotional support animals” are defined in the Fair Housing Act (1988), in broader terms, as those animals that belong to a person who is emotionally or psychologically disabled.

The right of people with disabilities to keep emotional support animals is stated in Section 504 of the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, and Title II of the American with Disabilities Act. As emotional support and service animals are not “pets” in the conventional sense but rather considered assistive aids, akin to wheelchairs, federal policy requires that reasonable accommodation be considered to persons with disabilities an equal opportunity to use or enjoy a dwelling. There are currently no Federal restrictions on the species of an animal in an emotional support role.

These policies apply to any public or private higher education institution receiving federal financial support. As applied to campus housing, no qualified individual shall be kept from full participation in the institution’s programs or activities, including access to residence halls. The Fair Housing Act (1988) applies to virtually all forms of housing, whether for sale or rent, including residence halls.

According to the FHA, colleges and universities must make reasonable accommodations for persons with disabilities requiring service animals or emotional support animals. A noteworthy difference between the FHA and the ADA considers how service animals and emotional support animals are used in public settings compared with use in the home, i.e., providing mental and/or emotional support. The 1990 amendments to the ADA restrict the definition of a service animal, as mentioned above, and permit the use of a service animal in areas of public accommodation. This may entail modifications to institutional policy, practices, or procedures.

In United States v. University of Nebraska Kearney, wherein a student requested accommodation for the use of an emotional support animal, District Court Judge John M. Gerrard ruled that the university housing in question is considered a “dwelling” and is subject to the provisions of the FHA. Allegations were based not only on refusal to make reasonable accommodation but also on the nature and degree of inquiry into the student’s disability and need of the emotional support animal.

In Alejandro v. Palm Beach State College, District Judge Donald M. Middlebrooks ruled in favor of a student’s right to be accompanied on campus, in residence halls, and to classes by a psychiatric service dog, which was trained to respond to the onset of anxiety attacks the student experienced as a result of Post Traumatic Stress Disorder. The ruling stated that any potential harm or disruption caused by the presence of the service dog was minimal in comparison to the benefit experienced by the student, and, therefore, its presence was considered a reasonable accommodation.

Future cases, specifically those heard at a higher level, may augment the current understanding of reasonable accommodation, as well set precedence in distinguishing between service and emotional support animals, as well as address the relevance of the distinction. Basic working knowledge of the abovementioned federal laws and current institutional policy will inform implementation, which must be assessed on an individual basis. In order to maintain the dignity and privacy of people with disabilities who rely upon service and emotional support animals, specific guidelines exist and can be found in the resources below. Increasingly, healthcare providers and individuals with emotional or psychological disabilities are recognizing the merits of alternative assistive aids, emotional support animals among them.

 “Update on Accommodating Service and Assistance Animals on Campus: Making Heads or Tails of Federal Disability Law.” NACUA NOTES, Vol. 10, No. 6 (March 2012)

Lissner, L. Scott. “Staying out of the Dog House, Revisited:  A Commentary on U.S. Department of Housing and Urban Development v. University of Nebraska Kearney.” Association on Higher Education and Disability (May 2013).

Bazelon, David L. Right to Emotional Support Animals in “No Pet” Housing. Bazelon Center for Mental Health Law. [www.bazelon.org] Accessed December 18, 2013.