Guidance from Dept. of Housing and Urban Development on Assistance Animals under ADA and Fair Housing Act

I'd previously written about a federal court decision ordering a university to permit a student to have a therapy animal (a dog) in university owned housing for emotional support (available here). The court determined that the student should be permitted to have the dog under the Fair Housing Act (FHA). Earlier this month, the U.S. Department of Housing and Urban Development issued guidance regarding assistive animals under the FHA, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. NACUA has link to the document available here. In relation to the use of animals for emotional assistance, the guidance states that a housing provider may ask for documentation from a mental health provider that the animal helps to alleviate the symptoms of a disability. According to the guidance, "[s]uch documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support." The document notes as well that some housing providers, including educational institutions, are subject to and must comply with multiple laws. It specifically discusses that an entity may not attempt to use the ADA's definition of a service animal to avoid complying with the requirements of the FHA and the use of such animals, including for emotional support. Institutions have some discretion to limit a request, such as denying an individual a request to have an animal that poses a direct threat to the health or safety of others that cannot be eliminated through a reasonable accommodation.

It's looking more and more like institutions are going to have to accommodate student requests for animals for emotional support. As I discussed in the previous post, I suspect that institutions are likely to face more requests for such service animals compared to similar requests for animals that provide physical assistance. Thus, as we approach the upcoming academic year, I'm guessing that institutions are going to be scrambling to various degrees to comply with requests for therapy animals as students begin to learn that they are permitted, with appropriate documentation, to have such animals for emotional support. 

Concealed Carry at Pennsylvania Universities On Hold...

As issues surrounding gun control continue to rage across the country, some Pennsylvania institutions find themselves in a holding pattern regarding policies related to guns on campus.  

As Allie Grassgreen notes in Insidehighered, the Pennsylvania legislature passed a law allowing concealed carry in public places, prompting the state university system to consider whether the blanket bans in place at numerous institutions would pass legal muster.  Five of fourteen institutions changed their policies to allow for concealed carry on campus (but not in buildings or at events)---however, the state system has placed any further policy changes on hold, pending the outcome of a review committee.  This leaves the five institutions that have already made the change to stand with the new policy allowing concealed carry in place.

Grassgreen's article provides an interesting overview of a searing issue in higher education.  In my own state, Mississippi, the Legislature passed a bill in 2011 specifically allowing for concealed carry permits on public educational campuses if the permit holder has taken a voluntary gun safety course taught by a certified instructor.  

This is an issue that continues to merit serious discourse and debate around the country, and states, institutions, and systems have embraced various positions as the legal and public policy debate pushes forward.  

The National Conference of State Legislatures has provided background, information, and resources here.

Joy Blanchard, private citizen

Undoubtedly many of you have been following the issues related to faculty and free speech at Florida Atlantic University. In one incident a professor was placed on leave [albeit for "his protection"] after facilitating a classroom exercise in which he asked students to stomp on a piece of paper with "JESUS" written on it. The governor got involved in the fray and faculty members and those who champion academic freedom quickly took up the cause. (Inside Higher Ed featured a wonderful op-ed piece by Cary Nelson, former president of the AAUP.)

Not even two weeks later, FAU formally reprimanded a tenured professor for posting in his blog controversial statements regarding the truthfulness of media reports on the Newtown school shootings. This decision hinged on the fact that James F. Tracy, associate professor of communications, listed and repeatedly referenced his affiliation with FAU on his blog.

Obviously, for many reasons, this concerned me. [Note the title of today's post!] Though Mr. Tracy's comments could be viewed as insensitive and rightfully would anger those impacted by that tragedy, an examination of free speech and academic freedom is always warranted in such a case. Naturally, my thoughts shifted to our old pal, Garcetti. and how this instance might play out in court.

The Garcetti case shook things up a bit when it came to public employee free speech and made those in academe nervous as to whether, per this landmark ruling, speech made in the course of one's academic employment (e.g., publications, comments made as expert or pundit, BLOGGER) would no longer be protected. The Garcetti decision did allude to a carve-out for academic freedom and that was utilized in the 4th Circuit's ruling in Adams v UNC-Wilmington (commented on by KB Melear in an earlier blog post). Jeff Sun also had an incredibly resourceful take on a situation out of Univ. of Toledo in which an HR administrator was disciplined for her speech advocating for LGBT benefits in direct contrast to the state policies she was hired to enforce. (That post also gives a great breakdown and comparison of the standards utilized in the triumvirate of public employee free speech cases: Pickering, Connick, and Garcetti.) Within the last week I stumbled on an unreported case from the 3rd Circuit decided in 2012 that relied heavily on the standards set forth in Garcetti in upholding the dismissal of a public school administrator speaking out on an issue of "public concern" (Hara v. Pa. Dept. of Educ., 492 Fed. Appx. 266).

Hara, the superintendent of the Scranton State School for the Deaf, went public in an op-ed piece in the Scranton Times newspaper as being opposed to a plan to cut state funding for the school and to transfer control and ownership to a private non-profit. (I couldn't find that article online but did uncover a series of interviews posted on YouTube in which she expressed her opinions about the move.) After being suspended and reassigned, Hara resigned and filed suit alleging, among other things, that she was wrongfully demoted and retaliated against for what should have been protected speech. The district court granted summary judgment in favor of the state department of education and the appeals court upheld that.

Both sides did not dispute that her comments were made as a "private citizen" and that the issue at hand was one of public concern. The district court ruled against Hara in Connick-like fashion, stating that the "potential detriment to close working relationships and the Deparment's operations at SSSD significantly outweighed Hara's interest in free speech." The appeals court furthered that by focusing on the effect Hara's comments would have on "peronsal loyalty and confidence" with  her superiors at the Department of Education. She would be in charge of facilitating the transition of the school from state control to private ownership and her public speech not only underminded that policy goal but also put the project in jeopardy--as at the time of her article the plans had not been finalized.

Undoubtedly Garcetti will be tested several times over in the academic setting and I know many of us are anxiously awaiting those outcomes. Stay tuned.

Retaliation: A Reminder About Federal Laws

The US Department of Education’s Office of Civil Rights (OCR) issued a new Dear Colleague Letter.  It’s brief.  As a reminder to colleges and universities that receive federal financial assistance, the letter emphasizes that retaliatory actions onto individuals, who participate in civil rights claims, also violates federal law.  Reporting of discriminatory practices based on race, color, national origin, sex, disability, or age to school officials as well as making a complaint, testifying, or participating “in any manner in an OCR investigation or proceeding” are prohibited acts.  OCR notes that it’s never previously issued a document giving guidance on this matter, yet “a significant portion of the complaints filed with OCR in recent years have included retaliation claims.”  This letter places colleges and universities on notice to consider staff training, communications strategies, and public outreach efforts as actions demonstrating commitment and compliance to the laws. 

Court Determines Fair Housing Act Permits Student To Have Therapy Animal In Student Housing

A federal district court in Nebraska issued an order recently that directed the University of Nebraska at Kearney to permit a student to have a therapy dog in a university residence hall (NACUA has copy of the opinion available here). The federal government brought the action against the university, arguing that the institution was violating the Fair Housing Act by not allowing the student to have the therapy animal. The law makes it impermissible to deny an individual a dwelling on the basis of disability, and the court determined that student housing qualified as a dwelling for purposes of the law. While universities already have had to comply with standards related to service animals used for purposes of someone having a physical disability and protected under the ADA, some institutions have resisted permitting students to have therapy animals for mental health purposes.

As discussed in the opinion, the student in question suffers from depression, and a therapy animal had been prescribed to her to assist with her anxiety attacks. The university denied her request to have the dog with her in student housing based on its no-pets policy. While the university argued that the student housing did not constitute a dwelling for purpose of the Fair Housing Act, the court referred to multiple university publications that included such descriptions as "your home away from home" in referring to student housing. The court stated that it found it most important that evidence related to the student experience supported that student housing should be covered by the law.

The court also rejected the university's arguments that student housing should not constitute a dwelling under the act because the Department of Justice has for the Americans with Disabilities Act (ADA) classified educational housing as "transient lodging." The court stated that such a designation wasn't about determining a lower degree of accessibility under the ADA for educational housing. The court pointed out that under the ADA, educational housing, due to the transient designation, actually had to meet a higher threshold regarding accessibility than under the residential standards.

If other courts follow the lead of this court in interpreting the Fair Housing Act, we will likely see multiple institutions having to revamp their policies to permit therapy animals.