Fair Housing Act

In law school, there is a saying that a student goes in with common sense and comes out with common law. However, there is still room for common sense in the law. Today’s blog entry is actually a two-for-one: service dogs with respect to title II and title III, and essential eligibility requirements. As usual, the blog entry is divided into categories and they are: common sense comes to service dogs; common sense and essential eligibility requirements introduction; Coleman v. Zatechka facts; court’s reasoning as to why plaintiff was qualified/otherwise qualified; and takeaways. The reader is free to focus on any or all of the categories.

I

Common Sense Comes to Service Dogs

On Friday of last week, a group of people with the Association of Higher Education and Disability were in town to do training. I have been a member of that group for several years now. The group focuses on helping people in disability services at colleges and universities be the best they can be. At that meeting were: Paul Grossman, Esq., an attorney with over 40 years of experience with the Office of Civil Rights of the US Department of Education now retired from OCR and now on his own; Jamie Axelrod, current president of AHEAD and head of Disability Services for the University of Northern Arizona; L. Scott Lissner, past president of AHEAD and head of Disability Services for The Ohio State University; Mary Lee Vance, Interim Director of Disability Services at Orange Coast College and past board member of AHEAD. Naturally, we got on the topic of service dogs. The people around the table without exception took the position that follow-up questions are permitted when it comes to ascertaining whether a dog is a service animal under title II and title III of the ADA when the disability is not obvious. Since there is nothing in the regulations suggesting follow-up questions are allowed, the question became what reasoning supports such a view. The answer made a lot of sense. That is, title II and §504 of the Rehabilitation Act by case law require an interactive process. Accordingly, dismissing a dog out of hand when the answers are not clear means you are not engaging in the interactive process. So, narrowly focused follow-up questions make sure that the requested accommodation is being denied properly after engaging in the interactive process.

Also, from a preventive law point of view, this approach makes a great deal of sense. It shows the person with a disability that the entity is trying to work with the individual to respect their needs and at the same time comply with the law. So, if after the narrowly focused follow-up questions, the animal winds up being a service animal, then everyone wins. If after those questions, the animal is not a service animal, then you have justifiably denied the animal, and most people will walk away with the notion that they have been treated fairly even if it didn’t work out for them. Note, if it is an emotional support animal rather than a service animal, then it still may be possible to have that animal on campus under the Fair Housing Act and under §504 of the Rehabilitation Act.

Finally, there was some talk around the table as to whether §504 mandates allowing emotional support animals in places other than the dormitories. Apparently, the §504 regulators have intimated as much, though nothing formal exists. It is hard to believe with all the blowback with emotional support animals of late, anything formal to that effect would be coming online soon. I also don’t see how such a view is consistent with the title II and title III DOJ regulations.

II

Common Sense and Essential Eligibility Requirements Introduction

AHEAD also has some great listservs. On one of those, the question came up as to whether a person with a disability could insist on having a roommate in the same way as any other college student without a disability could have. When I saw that, I responded with this: 42 U.S.C. §12182(b)(1)(A)(ii) provides:

“It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”

III

Coleman v. Zatechka Facts

Another individual on the listserv posted Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993).

The plaintiff was a 21-year-old student attending the University of Nebraska Lincoln and had cerebral palsy. She needed a personal attendant to assist her with dressing, showering, and toileting. Since she wanted a roommate to get the most out of the college experience, she completed and submitted the residence housing contract application indicating that she wanted a double room in a certain dormitory and preferred a non-smoking roommate. When she requested a double room and did not specify a particular roommate, she expected that her name would be placed in the pool of roommate candidates, and then she would be randomly assigned a roommate by the University Nebraska Lincoln housing department per their usual procedure. The Residence Hall Handbook said that roommate assignments would not be made on the basis of handicap (remember, this was 1991). Finally, she was admitted to the University, and there was no dispute that since she completed and submitted the residence housing contract application requesting a double room, she met all the requirements necessary to be randomly assigned a roommate.

It turns out that University Nebraska Lincoln had a policy saying that students with disabilities or special medical considerations needing personal attendant service, nursing care, or trained animal assistance would not get a roommate absent a mutual room request. The policy was a blanket policy with no individualized inquiry made when a student with a disability requested a roommate. That is, no individualized inquiries were made with respect to the extent of the student’s disability, the dimension of any equipment necessitated by the disability, or the number, duration and nature of any necessary personal attendant visits.

The University then did all kinds of things to try and get someone to be the student’s roommate. None of them worked. The University also repeatedly told plaintiff that she was free to have a roommate, but that it would not require another student to be her roommate. So, plaintiff originally filed a complaint with the United States Department of Education Office of Civil Rights and then withdrew it in favor of filing the lawsuit.

IV

Court’s Reasoning As to Why Plaintiff Was Qualified

1. The only academic requirement for participation in the roommate assignment program is admission to the University.
2. The only nonacademic criteria essential for participation in the roommate assignment program is submission of a completed residence hall contract application requesting a double room and not specifying a particular roommate.
3. The defenses raised by the University are subject to the ADA’s screen out provisions, which can be found at 28 C.F.R. §35.130(b)(8).
4. Defendant’s argument that plaintiff uses more than an equal amount of space in a double room than a student without a disability doesn’t wash because: 1) no individualized inquiry was conducted to determine the amount, size, or location of the equipment used by the plaintiff, rather the defendant simply made an assumption. The ADA prohibits using assumptions rather than facts and conclusions made from an individualized inquiry; 2) defendant’s challenged policy allowed students in wheelchairs to have roommates so long that they did not require attendant care or a trained animal. Accordingly, the wheelchair utilizing too much physical space argument simply doesn’t make any sense; and 3) the concern about the utilization of physical space is not a concern applied to students without disabilities. Accordingly, the equal amount of space is not necessary to the roommate assignment program and was not an essential eligibility requirement that a student must meet in order to be qualified to participate in the program.
5. Defendant’s argument that plaintiff cannot receive frequent daily visitors that might disrupt a roommate’s solitude doesn’t wash because: 1) plaintiff’s personal attendant visits are not unusually disruptive. Two of the three daily visits are relatively brief with a good portion of those visits involving the personal attendant and the plaintiff not even being in the dormitory room. Also, the daily visits are scheduled, predictable, and amount to nothing more than assisting plaintiff in the daily routine of dressing, showering, and toileting, which is something all roommate do. No medical care is provided during the visits and no evidence existed as to why the roommate could not remain in the room during the entire visit if she wished; 2) any such disruptions are common disruptions present in all roommate situations regardless of whether roommate has a disability. It isn’t unusual for roommate to awaken or retire at different times due to class schedules or personal preference. Further, the nature of dormitory living requires roommates needing to be tolerant of each other’s sleeping habits and accept the fact they are not always operating on identical schedules; 3) roommates regardless of disabilities are required to tolerate frequent visitors. That is, frequent daily visit do not uniformly disqualify students without disabilities from participation in the roommate assignment program and they should not disqualify a plaintiff with a disability from participation in the roommate assignment program; 4) plaintiff has some degree of flexibility as to when and where the attendant care visits take place. For example, she was willing to modify the times her personal attendant arrived so her roommate was less likely to be disturbed by the visit. Accordingly, disruption of solitude cannot properly be considered an essential eligibility requirement that a student must meet in order to participate in the roommate program.
6. If defendant’s essential eligibility requirements arguments were actually intended to screen out undesirable roommate candidates using too much space or having frequent daily visitors, one would expect to see those requirements apply to all students are asking for an assigned roommate, which is not the case. So, the additional requirements are not essential to the roommate assignment program. Instead, they are nothing more than an attempt to legitimize a policy of excluding students with disabilities from the roommate assignment program.
7. A blanket policy of excluding certain persons with disabilities from the roommate program violates both the Rehabilitation Act and the ADA.
8. While a school might have a policy allowing students with disabilities to live in single rooms because of being uncomfortable with an assigned room due to attendant care visits, nothing in the Rehabilitation Act or the ADA requires a plaintiff to accept such accommodations. Further, even where accommodations have been made, qualified individuals with disabilities have to be given the option to participate in regular programs if they choose. That is, separate program designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in integrated activities. See this case for example. That is, plaintiff cannot be required to accept such accommodation simply because they exist. Rather, she has to be given the option of participating in the regular roommate assignment program if she so desires.
9. Not requiring students without disabilities to room with students with disabilities fosters the very attitudes and stereotypes about persons with disabilities that the ADA is designed to eliminate. In other words, that policy lends support to the idea that students with disabilities are less desirable and that it is okay that others not be required to live with them, which then places less value on the human worth of individuals with disabilities because of their disabilities. It also violate the ADA’s purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
10. In footnote 15 of the opinion, the court noted that since the Rehabilitation Act applies to all operations of a college, university, or postsecondary institution, the University’s practice of randomly assigning roommate to students requesting double rooms was a program or activity within the meaning of the Rehabilitation Act.

V

Takeaways:

1. I am persuaded that narrow follow-up questions to whether an animal is a service animal are permissible. However, the questions have to be narrowly focused. It really isn’t all that different than requesting narrowly focused information to establish that an employee has a disability under title I of the ADA. The advantage of the narrowly focused approach is that it gives everyone the opportunity to definitively assess whether the animal is a service animal. It also makes it easier for businesses to properly assess whether the animal is a service animal as asking only those two questions without follow-up will not get you a lot of information. So, how would that play out in practice? Let’s say someone shows up with an animal and does not have an obvious disability. You ask the standard two questions. The person responds that, “the animal is necessary because of a disability and that the animal keeps him calm.” The reply to that question is a pass as to the first, but a fail as to the second. So, a follow-up question could be something like, “what work or task has the animal been trained to do that keeps you calm?” It doesn’t have to be that particular question, but the point is that the question is a narrowly focused follow-up question.
2. Coleman has been cited favorably over the years. What is refreshing about the decision, is that it uses a lot of common sense about the college environment to assess essential eligibility requirements.
3. Coleman also stresses the importance of paying attention to title II’s final implementing regulations screen out provisions.
4. Setting up a separate program for persons with disabilities may or may not run afoul of the screen out provisions. Even so, if a person wants to participate in the same program as students without disabilities, then that needs to happen unless you can show an undue burden or a fundamental alteration. I suppose you could try to show that the student is not qualified/otherwise qualified as the defendant’s tried to do in this case, but that isn’t going to be easy to accomplish. It also raises the importance of knowing what your essential eligibility requirements are and making sure they don’t unnecessarily screen out persons with disabilities. See this blog entry for example.
5. Graham Spanier was president of the University of Nebraska Lincoln at this time. He then moved on to Penn State…..
6. Blanket policies are never a good idea. See this blog entry for example.
7. The individualized inquiry is the heart of the ADA and the Rehabilitation Act.
8. Inclusion efforts must include persons with disabilities.
9. What about therapy animals? Are they service animals or emotional support animals? Well, it may be neither. However, for purposes of deciding whether the therapy animal can go anywhere a service animal can go, it would have to be determined whether it is a service animal. So, the answer is depends. Therapy animals do get training, but are they engaged in recognition and response? If so, then the therapy animal is a service animal. Also, remember that service dogs can be situational. For example, my dog is a service dog, but only in the house.