Monday, January 4, 2016

Breaking New Ground: Emotional Support Animals in American Universities; Is it Time for a Change in Policy at Penn State?

(Pix © Larry Catá Backer 2016)


It would have been quite unremarkable for universities to ban all but a limited number of service dogs from campus only a few years ago. It would have been quite extraordinary for the university to permit animals otherwise. There was a constant tension between students who sought to sneak small pets into dorms, faculty who would bring pets to their offices, and bureaucrats waving policies grounded in their sense of risk assessment and safety (and more likely an easy sense of the limits of propriety).

It is with some interest, then, that these anti-animal policies have come face to face with an increasing sensitivity to the needs of accommodation of people--and to the growing understanding of the critical role of animals in human health and social functioning. But even in the face of these changes, universities have been reluctant to change their own policies, now deeply ingrained. And thus it is only through the threat of litigation--and by the government--that universities now appear to be bending their stubborn unwillingness to embrace new knowledge and apply it to their own operations.

The initial battleground was Kent State University. The object of interdiction were “emotional support dogs.” The field of battle was a courthouse where the issue of university intransigence would be tested against the constraints of federal civil rights law; a civil rights lawsuit was brought by the U.S. Justice Department alleging discrimination against students with psychological disabilities. The result was a settlement through which the university will agree to allow these service animals in student housing at Kent State University, which has settled a civil rights lawsuit brought by the U.S. Justice Department claiming the school discriminated against students with psychological disabilities.

This post includes a recent news account of the action. It then suggests how the Kent State settlement might be a useful basis for reconsidering  university rules on service animals, considering in this context the example of Penn State. 




Susan Svrluga
The Washington Post
January 4, 2015


“Emotional support dogs” will now be allowed in student housing at Kent State University, which has settled a civil rights lawsuit brought by the U.S. Justice Department claiming the school discriminated against students with psychological disabilities.

Banning pets for all students, the 2014 lawsuit alleged, could violate federal law prohibiting discrimination in housing.

Colleges across the country are grappling with this issue, as more students with mental illnesses are able to attend university, and as families are increasingly likely to ask for accommodations. But it’s complicated for school officials as they seek to help students with documented real need without making others uncomfortable.

“It’s a real balancing act,” said Allan Blattner, who hears a lot about this issue in his role as president of the executive board of the Association of College & University Housing Officers – International, and deals with it himself as director of housing and residential education at the University of North Carolina at Chapel Hill.

“What if there’s a roommate who has an allergy,” to the pet, he asked, “Who moves? If there’s damage from the animal —

“If it’s a cat, it’s one thing, but all kinds of different animals have been approved. Ferrets, miniature ponies — all kinds of things.”

There are often unforeseen, unintended consequences, he said, with something as simple as a 10th-floor room, loud music or tiny sinks complicating care for an animal. “Some of these residence halls are pretty tight quarters,” Blattner said.

But in recent years, he said, most colleges have moved toward accommodating not just “service animals” such as dogs that help guide blind people, but those intended to help people emotionally.

Sure, some people may question the need for some of these animals as they pop up in dorms, on planes or, as in this silly video from the New Yorker, at the Plaza Hotel, and see them as a ridiculous symbol of coddling and entitlement.

But advocates argue that specially trained animals are a relatively easy and common-sense way to calm and soothe someone diagnosed with anxiety, for example.

The former students who objected to Kent State’s policy could not be immediately reached for comment Monday afternoon.

The university would pay $100,000 to two former students who were not allowed to keep a dog in their university-owned apartment, $30,000 to a fair-housing organization that advocated for the students, and $15,000 to the U.S., if the settlement is approved in district court.

Eric Mansfield, a spokesperson for the university, said university officials believe the consent decree speaks for itself and they have no further comment.

“Today’s settlement reinforces the ongoing commitment of HUD and the Justice Department to ensuring that individuals with disabilities are granted the accommodations they need to perform daily life functions,” Gustavo Velasquez, the Department of Housing and Urban Development’s assistant secretary for fair housing and equal opportunity, said in a statement.

“This agreement will help many people who are working hard to earn their fair share of the American dream,” U.S. Attorney Steven M. Dettelbach of the Northern District of Ohio said in a statement.
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Universities generally permit service animals but only within traditionally defined roles and only to the extent that the animals are recognized as such through a narrow reading of federal law (e.g. University of Chicago policy).  Many of these policies are written in ways that are ambiguous enough to permit the broad exercise of discretion by administrative officials without much structure or guidance.  With such broad discretion, many universities may find themselves in the same position as Kent State, when a stubborn discretionary decision results in litigation. 

Consider Penn State's Policy AD 66 (adopted March 2010 as new policy) (set out below) which is fairly typical of this style of policy writing. It describes the scope and limitations of accommodation for service animals.  It is notable more for the constraining language of its accommodation than it is for the robustness of accommodation, and it vests the administrative machinery of the university with broad discretion. (Compare Oregon State University policy ("including a physical, sensory, psychiatric, intellectual, or other mental disability"); or the University of Illinois policy (closer to that of Penn State)) The machinery for the exercise of that discretion is found in the elaborate procedures built within the structures of petitions for accommodation (see, e.g., here). 

But more telling about the way that such discretion is meant to be exercised may be found at Penn State Policy Policy SY07 GOVERNING CONTROL OF ANIMALS ON UNIVERSITY PROPERTY. It's opening suggests the approach to accommodation in general and to animals in particular: "The presence of animals on University property has had, in many cases, an adverse effect on the normal functions of the University by causing bodily harm to individuals, unsanitary conditions in University buildings and facilities, and nuisances." An administrator reading this might not be berated for thinking that there is a suggestion here that their discretion ought to be exercised narrowly and against accommodation--especially for animals.  Indeed SY07 sets a fairly harsh no animals policy from which exceptions might have to appear exceptional. This though SY0/ makes clear that "The aforementioned shall not apply to service animals, to authorized research conducted by a University department, to the use of an animal to carry out functional responsibilities of a University department, or to an animal hospital or to a shelter designed and constructed to house animals. " But still, SY07 sets the tone that might well be relied on as a means of measuring the extent of necessary accommodation under AD66.  It might well suggest a narrow rather than a broad approach to service animals.  And that might well be conserved by the descriptive language of AD66 itself.  In light of the Kent State settlement, this approach might well deserve a second look--if not now than in the course of the inevitable litigation that might well follow.


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Policy AD66 SERVICE ANIMAL POLICY
Contents:
Purpose
Scope
Policy
Definition
When Service Animals May Be Removed or Prohibited In a Facility or Program
Requests for Accomodations
Students
Employees
Visitors
Requirements for Service Animals
Other Resources
Cross References
PURPOSE:

To establish guidelines for the proper use of service animals at University facilities.
SCOPE:

This policy applies to all facilities owned, leased and/or under the control of The Pennsylvania State University excluding Hershey Medical Center, the College of Medicine, and the Pennsylvania College of Technology.
POLICY:

It is the policy of the University that service animals assisting individuals with disabilities are generally permitted in all facilities and programs, except as described below.
DEFINITION:

“Service animal” is defined by the Americans with Disabilities Act, as amended (ADA), as any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to: guiding individuals with impaired vision; alerting individuals with impaired hearing to intruders or sounds; providing minimal protection or rescue work; pulling a wheelchair; or fetching dropped items. (28 Code of Federal Regulations (CFR) Part 36, Subpart A – General, 36.104 Definitions).

If they meet this definition, animals are considered service animals under the ADA, regardless of whether they have been licensed or certified by a state or local government.
WHEN SERVICE ANIMALS MAY BE REMOVED OR PROHIBITED FROM A FACILITY OR PROGRAM:

A service animal may be removed from a Penn State facility or program if the animal’s behavior or presence poses a direct threat to the health or safety of others. For example, a service animal that displays vicious behavior towards people may be excluded. Excessive barking in a classroom or during a program is an example of disruption.

Service animals may also be excluded in areas where the presence of a service animal fundamentally alters the nature of a program or activity, or is disruptive. Examples may include, but are not limited to: research labs, areas requiring protective clothing, food preparation areas, and animal research labs.

Questions related to the use of service animals on campus should be directed to the ADA Coordinator at 814-863-0471.
REQUESTS FOR ACCOMMODATIONS:
Students

Student requests for disability accommodations, including requests to have a service animal accompany a student on campus, in classrooms and in Penn State housing facilities, are determined by the Office for Disability Services (ODS), through the reasonable accommodation request and review process. Students can reach the Office of Disability Services at 814-863-0471, or visit the ODS Website.
Employees


Employee requests for reasonable accommodations, including requests to have a service animal at work, are handled through the ADA Coordinator within the Affirmative Action Office. Employees can view policy HR09, Reasonable Accommodations for University Employees, and may contact the Affirmative Action Office at 814-863-0471 voice and relay for information and assistance.
Visitors

Service animals accompanying individuals with disabilities are welcome in all areas of campus that are open to the public (except in situations determined to apply as stated in "When Service Animals May Be Removed or Prohibited," above). Specific questions related to the use of service animals on the Penn State campus by visitors can be directed to the ADA Coordinator via e-mail at AAO@psu.edu or by phone at 814-863-0471 voice and relay.
REQUIREMENTS FOR SERVICE ANIMALS:

Service animals must comply with all applicable Pennsylvania dog laws. Information related to licensing, ID tags, vaccinations, rabies and other requirements under Pennsylvania Dog Law can be found at: http://www.animallaw.info/statutes/stuspa3ps459_502.htm


Leash: Dogs and must be on a leash at all times, unless impracticable or unfeasible due to owner/keeper’s disability.

Under Control: The owner/keeper of a service animal must be in full control of the animal at all times. The care and supervision of a service animal is solely the responsibility of owner/keeper.

Cleanup Rule: The owner/keeper of a service animal must ensure cleaning up of any Penn State property the animal might soil.

Health: Animals to be housed in University Housing must have an annual clean bill of health from a licensed veterinarian.

Service Dogs in Training: Under Pennsylvania law, individuals with disabilities who use guide or support animals, or trainers of such animals, are entitled to equal opportunity in all aspects of employment and education, as well as equal access to and treatment in all public accommodations, and any housing accommodation or commercial property without discrimination. Violation of this law may result in an award of damages or other remedies pursuant to the Pennsylvania Human Relations Act. 43 P.S. § 953.
OTHER RESOURCES:

U.S. Department of Justice, Information about the Americans with Disabilities Act

Pennsylvania dog law citations:

Citation: PA ST 3 P.S. § 459-101 - 1205; PA ST 3 P.S. § 501, 531 - 532, 550 - 551; PA ST 34 Pa.C.S.A. § 2381 - 2386

Citation: 3 P.S. § 459-101 - 1205; 3 P.S. § 501, 531 - 532, 550 - 551; 34 Pa.C.S.A. § 2381 - 2386

Guidance on Service Animals in Public Places
CROSS REFERENCES:

Access and Disability Issues

HR09 - Reasonable Accommodation for University Employees

SY07 - Governing Control of Animals on University Property

1 comment:

  1. One of the best blog posts I've read! Thanks a ton for sharing this!
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