[Georgia_ahead] FW: Request for a companion animal in the residence hall

[Bonnie Martin]

For those of you interested in this topic..here is a follow up from the
one sent yesterday where Michael goes into the legal "stuff".

Bonnie

 

________________________________

From: Disabled Student Services in Higher Education
<DSSHE-L at LISTSERV.BUFFALO.EDU> [mailto:Disabled Student Services in
Higher Education <DSSHE-L at LISTSERV.BUFFALO.EDU>] On Behalf Of Michael
MASINTER <masinter at NOVA.EDU>
Sent: Friday, September 14, 2007 10:02 AM
To: DSSHE-L at LISTSERV.BUFFALO.EDU
Subject: Re: Request for a companion animal in the residence hall

 

I keep a current file of all cases that appear in the legal reporting 
services regarding claims for accommodations related to emotional
support 
or companion animals, whether in housing under the Fair Housing Act, in 
the provision of government services under Title Two of the ADA, or in 
public accommodations under Title Three (I have not found any section
504 
cases). Although there are several HUD administrative law judge
decisions 
and one federal court decision in favor of claimants under the FHA, none
involved university or dormitory style housing; all involve condominium
/ 
cooperative / apartment complexes. Claimants have been largely 
unsuccessful in claims under the ADA. 

Some Fair Housing Act claimants have lost; some lose because the court 
concludes the act only requires accommodations for service animals;
others 
lose because the claimant cannot establish that the presence of the
animal 
was a necessary accommodation. Note that, as with ADA and section 504 
litigation, no accommodation is required unless the claimant 
satisfactorily establishes that he/she is a person with a handicap (the 
language of the Fair Housing Act). 

Fair Housing Act claims can begin with the filing of a lawsuit or with
the 
filing of an administrative complaint with HUD or a state or local fair 
housing agency; most begin with administrative complaints. If a claimant
files an administrative complaint, HUD or the local agency investigates 
and either issues a reasonable cause or no reasonable cause finding. If 
the investigator finds no reasonable cause to believe a discriminatory 
housing practice occurred, then the claimant has only one recourse 
available -- file a lawsuit despite the no cause finding. If on the
other 
hand HUD finds reasonable cause, then either HUD or DoJ will pursue the 
case on the behalf of the claimant; two routes for resolution are 
available -- HUD can bring the claim as a formal administrative
proceeding 
to be resolved by an administrative law judge in trial like
administrative 
proceedings, or DoJ can sue the housing provider in federal court.
Either 
party -- the claimant or the housing provider -- has the right to insist
on resolution through a lawsuit in federal court to preserve the right
to 
trial by jury, but if neither insists on a federal court lawsuit, then
HUD 
proceeds before an administrative law judge. 

Claimants appear to have a much greater chance of success in Fair
Housing 
Act claims when the parties opt for administrative rather than judicial 
resolution of the claim. I have some thoughts on why that may be so, but
they are just thoughts; there are too few cases from which to extract
hard 
conclusions. 

Until a federal appeals court decides a companion animal case, the law
is 
likely to remain unclear, and it probably matters which federal appeals 
court is the first court to decide such a case since they vary 
significantly in their makeup and philosophy. Were I a claimant, I would
want my case heard in the ninth or perhaps the second circuit; were I a 
housing provider, I would much prefer litigating in the more
conservative 
circuits, of which there are many. 

Finally, state law may provide greater rights than any federal 
antidiscrimination law, either because state law defines the covered
class 
of people more broadly or because the state law defines what is a 
reasonable accommodation or modification of policies more broadly. 


Michael R. Masinter 3305 College Avenue 
Professor of Law Fort Lauderdale, FL 33314 
Nova Southeastern University (954) 262-6151 (voice) 
Shepard Broad Law Center (954) 262-3835 (fax) 
masinter at nova.edu Chair, ACLU of Florida Legal Panel 

On Thu, 13 Sep 2007, Bobby Hiep Bui wrote: 

> Hi Howard 
> 
> Yes, I read up on HUD/the Fair Housing Act but the information is very
> vague. There does not seem to be case law pertaining to university 
> housing. I guess I want to see precedence. Am I missing something in
my 
> search? 
> 
> University Housing is a broad term, as it can be in the form of a
single 
> family home, shared apartment, traditional dormitories (shared rooms),
> etc. I can't imagine it be reasonable to have a cat in some of these 
> conditions. 
> 
> Also, at SVA housing is not a requirement for any student attending
the 
> institution. 
> 
> I would appreciate a phone conversation if you had the time. Thank
you. 
> 
> Bobby 
> 
> 
> 
> Howard Kallem wrote: 
> > Following up on Ruth Townsend's e-mail, George Mason recently went 
> > through this process. While there is no requirement under 504 or the
> > ADA to allow a "companion" or "emotional support" animal, HUD has 
> > taken the position that the Fair Housing Act -- applicable to 
> > university housing -- does require allowing them as an
accommodation. 
> > As Elizabeth suggests, you should certainly check with your legal 
> > counsel to confirm this. 
> > 
> > Howard Kallem 
> > Office of Equity and Diversity Services 
> > George Mason University 
> > 703 993 8730 
> > 
> > 
> > Worden, Elizabeth wrote: 
> >> Boy, Bobby, I would be very loathe to allow that one. After all, 
> >> what has the kitten been trained to do as a specific service to the
> >> student to counteract or ameliorate the PTSD and Depression? I
would 
> >> certainly want to check with my system attorney to find out exactly
> >> what the laws are about requiring consideration to "companion" 
> >> animals, but my guess would be that if the animal was not part and 
> >> parcel of the original agreement to take housing, and if the
housing 
> >> was not required for students (ie they are not required to live on 
> >> campus), that there would be no legal consequence that would ensue 
> >> were you to say no, no companion animals. After all, if you allow 
> >> this one, I can envision many students getting their doctors to
write 
> >> a note telling you how much better off they would be were they 
> >> allowed their own companion animal in the dorms... I can see it
now, 
> >> the lawsuits because the companion snake ate the companion mouse
then 
> >> was savaged by the companion cat who was bi 
> > tten by the companion dog who was eaten by the companion cougar.... 
> > at least your dorms would not be a dull place to live! Is it Friday 
> > yet? Good wishes, E :>) 
> >> 
> >> Elizabeth Worden, Ph.D., Director 
> >> Academic Support Center 
> >> Eastern Maine Community College 
> >> 354 Hogan Road 
> >> Bangor, ME 04401 
> >> phone: 207 974 4658 
> >> fax: 207 974 4888 
> >> website: www.emcc.edu/departments/asc/ 
> >> 
> >> 
> >> -----Original Message----- 
> >> From: Disabled Student Services in Higher Education 
> >> [mailto:DSSHE-L at LISTSERV.BUFFALO.EDU] On Behalf Of Bobby Hiep Bui 
> >> Sent: Wednesday, September 12, 2007 4:48 PM 
> >> To: DSSHE-L at LISTSERV.BUFFALO.EDU 
> >> Subject: Request for a companion animal in the residence hall 
> >> 
> >> Hello All 
> >> 
> >> We just received a request from a student with a severe case PTSD
and 
> >> Depression to bring her recently adopted kitten into the dorms. She
> >> currently lives in a singe room with its own bathroom. Her licensed
> >> mental health counselor wrote a letter stating that kitten reduces 
> >> her anxiety and is a necessary part of her treatment. He also
states 
> >> that she currently poses no danger to herself or others and is
stable 
> >> enough to continue her studies. We have "no pets" policy her at SVA
> >> and have never allowed for companion animals at our institution. 
> >> We suggested that the student move out of the dorms and find more 
> >> suitable housing. We offered to end her housing contract without 
> >> penalty. The student replied by saying she cannot afford to move. 
> >> 
> >> My question to the group is what has been your reasoning for
denying 
> >> a companion animal request? Do you tell the student that after 
> >> reviewing all her documentation that the request is unreasonable
and 
> >> therefore being denied? Are there legal ramifications? 
> >> 
> >> For those who have honored request for a companion animal in 
> >> residence halls. What factors lead you to make this decision? 
> >> 
> >> I have read through many documents and postings but most are
general 
> >> and not anecdotal. I looking for feedback regarding actual cases of
> >> honoring or denying requests for companion animals in the residence
> >> halls. 
> >> 
> >> Thank you ahead of time for assistance. 
> >> 
> >> Bobby Bui, MA 
> >> Disability Services Coordinator 
> >> School of Visual Arts 
> >> New York, NY 
> >>> 
> >> 
> >> This list is intended to serve as a forum for higher education 
> >> professionals involved in the delivery of services to students with
> >> disabilities in higher education. Any commercial posts or posts
that 
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> >> result in the poster being removed from the list. 
> >> 
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> >> 


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