Federal Case Over Banning a Student's Therapy Dog Illustrates Thicket of Disability Rules

October 11, 2011

For denying a student permission to live in campus housing with her therapy dog, the federal government has charged the University of Nebraska at Kearney and five of its administrators with violations of the Fair Housing Act.

The student, who is not named in a complaint filed by the U.S. Department of Housing and Urban Development late last month, enrolled at the university in August 2010 and registered with its disability-services office, disclosing two conditions: depression and anxiety. She requested that campus officials let her therapy animal, a four-pound miniature pinscher named Butch, live with her in the University Heights apartments. (University policy allows only fish, service animals, and hall directors' cats or dogs in campus housing.)

The student submitted a note from her nurse and signed a release for the campus counseling center to obtain her medical records, but, according to the complaint, administrators said she did not follow the university's psychological-documentation guidelines, which ask for a diagnosis; a treatment plan, including prescribed medication; a clinical summary of limitations; and a rationale for each requested accommodation.

After administrators denied the student's request, she suffered physical and emotional distress, including anxiety attacks, and ultimately withdrew from the university in October of 2010, the complaint says.

The Department of Housing and Urban Development determined that the university had discriminated against the student by requiring "detailed disability information that goes beyond what is needed to review a request for reasonable accommodation in housing."

Administrators violated the federal Fair Housing Act by "illegally inquiring into the nature and severity" of the student's disability as well as by "refusing to make a reasonable accommodation to modify their no-pet policy," the department said.

The university denies the allegations, said Curtis K. Carlson, vice chancellor for university relations. "It's a matter we will be challenging."

Service or Therapy Animals?

Colleges' decisions about whether to allow students' animals in dormitories have been complicated by recent changes in the legal definition of a service animal.

Last year the Department of Justice updated its guidance on what qualifies as a service animal under the Americans With Disabilities Act. The new rules include only dogs and miniature horses that are trained to perform tasks for the benefit of a disabled person; the guidelines specifically exclude so-called therapy animals whose mere presence provides emotional support.

Officials at the University of Nebraska at Kearney had considered the student's request assuming that they were governed by those rules, not by the Housing Department's, the complaint shows. The university's ADA compliance officer e-mailed a colleague: "This is not a service animal, but rather a pet."

Even so, the Fair Housing Act applies to campus housing at both public and private colleges, and it diverges from disability law with respect to animals. The Housing Department released a memo in February emphasizing individuals' rights to keep emotional-support animals that allow them "equal opportunity to use and enjoy a dwelling," so long as there is a relationship "between the individual's disability and the assistance the animal provides."

The legal status of students' service and therapy animals is shrouded in confusion, said Jane E. Jarrow, president of Disability Access Information and Support, an organization that helps colleges meet disability standards.

Under the Fair Housing Act, campus officials may respond to a student's request to live with a service or therapy animal by investigating the animal's role. But under the ADA, they may ask only two questions: if a service animal is required because of a disability, and what tasks it is trained to perform.

Colleges must carefully consider requests on a case-by-case basis, particularly for therapy animals, Ms. Jarrow said. "The issue becomes, Is there credible evidence that having the animal there is going to make a substantial difference for this student in terms of being able to function effectively?"

The Housing Department also recently pursued charges against Millikin University, in Decatur, Ill., after it allegedly refused to let a blind, epileptic student live in a dormitory with a service dog. There's no trend in complaints against colleges, a spokeswoman for the department said in an e-mail, but students are increasingly aware of their rights and "know that they apply to colleges and universities when it comes to living on campus."

The Nebraska case will now proceed to an administrative law judge or to federal court. If either rules for the student, the university and its administrators may have to pay a $16,000 fine for each violation of the housing law, as well as damages and legal fees to the student.