ESAs on College Campuses: Is Student Housing Protected under the FHA?

 

Public universities are required to admit emotional support animals into student housing under the Fair Housing Act (FHA), according to a notice sent out by the U.S. Department of Housing and Urban Development (HUD) to its regional offices.

 

The FHA requires housing providers to make “reasonable accommodations” to afford people with disabilities “equal opportunity to use and enjoy a dwelling.” Much debate has stemmed from the question of whether university housing qualifies as a “dwelling” under the FHA. However, the HUD, which enforces the Act, claims it does.

 

The FHA defines a dwelling as “any building, structure, or portion thereof which is occupied as, or designed or intended for the occupancy as, a resident by one or more families.” In this case, a “family” includes a single individual.

 

Some court cases have found that a dwelling could also include less-than-permanent housing, including group homes, summer bungalows, and nursing homes. Other rulings, however, have held that certain short-term or transient facilities don’t constitute dwellings for FHA purposes, including motels.

To limit the ambiguity surrounding the word “dwelling,” the HUD expanded the definition to encompass a “dwelling unit.” As defined under HUD regulations, “dwelling unit means a single unit of residence for a family or one or more persons. Examples of dwelling units include… dormitory rooms and sleeping accommodations in [homeless] shelters.”

Court Cases

Not only do HUD regulations implementing the FHA expressly cover dormitory rooms, but the U.S. Department of Justice has come to the same conclusion.

 

In 2011 federal charges were brought against the University of Nebraska at Kearny for denying a former student with an anxiety disorder the right to keep her emotional support dog in university housing. The student relied on the dog to help her cope with anxiety attacks, and was forced to withdraw from the university without the dog’s presence. The settlement set out that the university violated the FHA and had to change its housing policy to allow students with psychological disabilities to live with comfort animals.

 

A similar lawsuit ensued at Kent State University in 2014, in which the university was sued by the federal government for refusing a request by a student to live with an assistance animal in university housing. The DOJ claimed that the school was violating the FHA by discriminating against students with psychological disabilities.

 

Although the notice put out by the HUD and the lawsuits won by the DOJ may not have the same binding force as regulation, it will guide the HUD in its enforcement of the Act.

 

Pressure on Universities

 

Universities across the nation are beginning to adjust their housing policies to accommodate ESAs. And it has become almost necessary for them to do so, since the demand for ESAs on college campuses has risen dramatically. Why? Because levels of anxiety, stress, and depression among college students are at an all-time high.

According to the 2014 National Survey of College Counseling Centers, college counseling directors have noted a 58 percent increase in clinical depression and 89 percent increase in anxiety disorders in students over the past five years.

 

While most universities have begun hosting therapy pets on campus during exam periods, many students desire or need the permanent presence of an ESA.

But not all universities are excited about having to accompany students’ furry companions. Having ESAs in dorms poses problems for both the university and other residents. The university can’t exclude animals based on breed, size or weight. Having to accommodate a cat or small dog is one thing, but a pig is another.

 

And since comfort animals don’t have to be trained, there is a greater possibility of the animal behaving disobediently. Behavior such as biting, barking loudly, or damaging property can become a nuisance, burden, or danger to other residents and the university. And what happens if other residents have allergies or phobias? Or an animal’s stench becomes overbearing? Or the student fails to properly clean up after the animal?

 

Doubts about whether the living conditions are suitable for the animal also arise. Dorms are small and frequently shared among several roommates. Does an animal have enough space to move around freely and stay healthy?

 

Despite these issues, the expansion of university housing policies and increasing demand for ESAs in dorms make it clear that animals on college campuses are here to stay.  

This means that college students are permitted to live with and use ESAs in campus housing granted there is documentation of a disability and the disability-related need for the animal. So long as the animal doesn’t pose a direct threat to the health and safety of others or damage the property, a student is protected under the FHA.