California law permits community college districts to maintain dormitories for their students. Like all other district operations, dormitory operations are subject to federal and state nondiscrimination laws, including a prohibition to discrimination on the basis of mental or physical disability. Colleges routinely address the presence of service animals under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act to undertake tasks for students with disabilities. However, they may be unaware that federal agencies also expect compliance with the Federal Housing Act (FHA) and its requirements related to emotional support animals that provide therapeutic benefits such as companionship.

LEGAL UPDATE

September 22, 2015

To: Superintendents/Presidents/Chancellors, Member Community College Districts

From: Mia N. Robertshaw, Assistant General Counsel

Virginia A. Riegel, Of Counsel

Subject: Dormitories and Federal Housing Act

Memo No. 12-2015

In April 2013, a federal trial judge issued his opinion in a case brought by the U.S. Department of Justice (DOJ) on behalf of a University of Nebraska student who had been diagnosed with depression and anxiety. The student requested the University permit her therapy dog to live with her. The University denied her request and also the request of a second student who asked to live with a therapy animal.

The DOJ maintained that therapy animals were an appropriate accommodation for a student with a disability under the FHA. The University claimed that the FHA did not cover student housing because the FHA applies to “dwellings,” and the University maintained that student housing did not constitute a “dwelling.”

The federal trial court concluded that university housing is a “dwelling” under the FHA and ruled against the University of Nebraska. (940 F.Supp.2d 974.) (D. Neb.2013.)

At around the same time in 2013, Grand Valley State University in Michigan settled the lawsuit of a student who challenged the University’s denial of her request to keep her guinea pig in her residence hall as an emotional support animal under the FHA. Although the University did not admit that it violated the FHA, it agreed to pay the student $40,000 to settle her challenge. (Source: HuffPost Education Group.)

Since the April 2013 ruling against the University of Nebraska, the parties have engaged in settlement discussions. On September 4, 2015, the Nebraska Federal District Court approved the parties’ settlement. (Consent Order: 4:11-CV-3209.)

The settlement requires the University to pay $140,000 to the two affected students and to “change its housing policy to allow persons with psychological disabilities to keep animals with them in university housing where such animals provide necessary therapeutic benefits to such students.” (Department of Justice: Justice News, September 3, 2015.) The settlement also requires prominent posting of the new policy statement, training for University personnel responsible for implementing reasonable accommodation requests related to student housing, and ongoing reporting by the University to DOJ of written complaints concerning reasonable accommodations in student housing.

The University must adopt a “reasonable accommodation” policy within 30 days of the Consent Order. We attach a copy of the Policy that is required by the Consent Order.

Based on the position of the federal government regarding the application of the FHA to college housing, a federal court determination of applicability, and student success in securing settlements, it is likely that colleges with student housing will receive more requests for animals that provide emotional support. Should you have a question concerning your policy regarding animals on campus or concerning a specific student request, please contact our office.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

Dormitories and Federal Housing Act (CCD)

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