In United States of America v. University of Nebraska at Kearney, et al., the United States District Court for the District of Nebraska granted partial summary judgment against the University of Nebraska at Kearny in a case brought by Department of Justice to enforce the Fair Housing Act. In a ruling that may impact all residential institutions of higher education, the Court determined that the Fair Housing Act applies to university-owned student housing.
Background
The Fair Housing Act, 42 U.S.C. § 3601 et seq. (FHA), makes it unlawful to deny a dwelling to a person based on the person’s “handicap.” Therefore, the FHA requires covered entities to accommodate a wide array of “assistance animals.” The term “assistance animal” is much broader than the definition of a “service animal” under the ADA. In addition to more traditional service animals (e.g., seeing eye dogs), assistance animals include animals that provide mental or emotional support to persons with disabilities.
Brittany Hamilton was a student at University of Nebraska at Kearney (UNK) who was prescribed a therapy dog for her depression and anxiety. (The dog did not meet the ADA definition of a service animal.) When Hamilton enrolled at UNK, she signed a lease to live in university-owned student housing. However, UNK, citing its no-pets policy, refused to let Hamilton’s therapy dog live with her. Shortly thereafter, Hamilton withdrew from her classes and moved out.
The United States sued UNK on behalf of Hamilton, alleging that, by refusing to allow Hamilton to use her therapy dog in university housing, UNK denied Hamilton an accommodation in violation of the FHA. The parties filed cross-motions for summary judgment on the issue of whether the FHA applies to UNK student housing. On April 19, 2013, the Court denied UNK’s motion, and granted the United States’ motion.
The Federal District Court’s Ruling
The Court’s ruling considered only the threshold issue of whether the student housing at UNK is a “dwelling” within the meaning of the FHA. UNK advanced two main arguments against the application of the FHA to student housing. First, UNK argued that the FHA should not apply because student housing is temporary. (The FHA does not apply to hotels or other lodging for transient guests.) The Court disagreed, observing that courts have applied the FHA in a wide variety of temporary housing contexts, including boarding schools, housing for migrant farm workers, and halfway houses. Similarly to student housing (and unlike a hotel), such places have common living areas, such as kitchens and living rooms, where residents can socialize like a family. “Simply put,” the Court reasoned, “students live in university housing for a significant time period, and while they do, they treat it like home.”
Second, UNK also argued that university housing should be exempt from the FHA because it is, for these limited purposes, comparable to jail, which has been held not to constitute a “dwelling”; UNK explained that university housing is mandatory for certain students, and that students living in university housing are assigned roommates and are subject to more rules and restrictions than are normally associated with residential housing. UNK further argued that the purpose of university housing is not primarily to provide a residence but, rather, is educational. The Court rejected UNK’s attempt to analogize the university housing context to incarceration, finding no basis for the conclusion that that UNK’s pedagogical goals should make it exempt from the FHA. The Court also noted that even more restrictive places, such as substance abuse treatment centers, have been held to constitute dwellings under the FHA.
UNK’s remaining legal and policy arguments were undermined by the fact that the Department of Housing and Urban Development (HUD) specifically uses “dormitory room” as an example of a “dwelling” in the FHA implementing regulations. See 24 C.F.R. § 100.201. As the agency responsible for administering the FHA, HUD’s interpretation of the statute was deemed entitled to deference, and the Court therefore deferred to HUD’s interpretation, holding that UNK’s student housing constituted a “dwelling” under the FHA.
In this case, the Court’s application of the FHA was simplified by the fact that Hamilton’s dwelling was located in apartment-style housing that is nearly indistinguishable from a regular residential apartment. However, the broad scope of the Court’s ruling – especially its deference to HUD’s definition of “dwelling” – leaves very little doubt that the Court would also apply the FHA to more traditional dormitories.
Next Steps for Institutions
This decision, while likely to be appealed, is also likely to be influential immediately because it addresses an open issue regarding ADA/accessibility compliance as to which there has been much confusion. In the wake of this decision, institutions of higher education will be asked to accommodate students who require an emotional support animal, regardless of any “no pets” policies; and there is good reason to believe that, in campus housing at least, they will need to do so. Under the FHA, a person may keep an assistance animal in his or her dwelling as a reasonable accommodation if: (1) the person has a disability; (2) the accommodation is necessary to afford a person with a disability an equal opportunity to use and enjoy the dwelling; and (3) there is a nexus between the disability and the function the animal provides.
This standard is significantly broader than comparable ADA provisions regarding service animals. To begin with, while the applicable ADA regulations only allow use of dogs and miniature horses as service animals, there are no such limitations under the FHA. In addition, the FHA allows only limited inquiries about the disability and the nexus between the disability and the need for the animal. Institutions may request documentation from a health care provider or social worker verifying the existence of the disability and the need for the animal, but they may violate the FHA by requiring voluminous documentation or by asking too many intrusive questions. Furthermore, the institution may not require the student to pay an extra fee or security deposit to keep the assistance animal. The student may, however, be charged for the cost of any damage caused by the animal.
It is worth noting that if the District Court’s interpretation is affirmed and the FHA is held applicable to university-owned student housing, institutions will face the extremely challenging problem of having different statutory schemes applicable to the same student (and same animal), depending upon where on campus a student wishes to use an assistance animal. For instance, the FHA will apply to use of assistance animals in residence halls; the ADA or Section 504, however, will apply to animals elsewhere on campus or in classrooms, and the standards for use of assistance animals under the ADA and Section 504 may differ significantly from FHA standards. Institutions need to be prepared to engage in appropriate interactive processes and resolve complicated requests in a manner that complies with any and all of the statutes applicable in the particular case.
Finally, we note that the District Court did not limit its holding to the assistance animal context. It is an open question whether, in the future, institutions may find themselves being asked to comply with all applicable provisions of the FHA and its implementing regulations with respect to residence halls and university-owned housing.
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