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dormitory

Are fraternities subject to title III of the ADA?

April 7, 2015 by William Goren 8 Comments

This blog entry is divided into separate categories: introduction; the statutes; the case of the week; and takeaways. You probably will want to read all of it, but you still have the option to focus on any of the categories you like.

I
Introduction

Recently, I ran across this article, in my Google alerts. It shouldn’t surprise anyone that I have a Google alert set for Americans with Disabilities Act. Well, I wanted to find out if this was indeed the case. After checking with my colleague, Richard Hunt, who I consider to be a Fair Housing Act maven, and doing further research, I came to the conclusion that the article may or not be correct and here is why:

II
The Statutes

1. 42 U.S.C. § 3607 is the private club exception In the Fair Housing Act, but all it says is that a private club can limit housing to members.

2. 42 U.S.C. § 12187 is the private club exception for title III of the ADA. It states that title III of the ADA does not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 or to religious organizations or entity controlled by religious organizations, including places of worship. This means we have to go to the provisions of 42 U.S.C. § 2000-a(e) to see what that says.

3. 42 U.S.C. § 2000a(e) says that title two of the Civil Rights Act does not apply to a private club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to customers or patrons of an establishment within the scope of 42 U.S.C. § 2000a(b).

With respect to fraternities, an argument can be made that fraternities are open to the public. After all, both members of the fraternity and nonmembers of the fraternity will frequently visit fraternities. Second, a fraternity is providing lodging to a transient guest (see paragraph 4 immediately below).

4. 42 U.S.C. § 2000a(b)(1) covers any inn, hotel, motel, or other establishment providing lodging to transient guests other than an establishment located within a building containing not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence.

With respect to fraternities, the proprietor exception would not apply.

III
The Case of the Week

A
Facts

But you don’t have to take my word for it. The US Court of Appeals for the Third Circuit has spoken on this as far back as 2006 in Regents of the Mercersburg College v. Republic Franklin Insurance Company, 458 F.3d 159 (3d Cir. 2006). In this case, the insured operated a private secondary boarding school. A school building that contained dormitory housing was damaged by fire. The insured claim that an ordinance and a endorsement to its property insurance policy covered the costs to bring the building into compliance with the ADA.

B
Court’s Reasoning

In holding that the costs to bring the building into compliance with the ADA was covered by the policy, the court reasoned as follows:

1. Private school dormitories are transient lodging as defined by the ADA regulations.

2. Dormitories are part of boarding schools and therefore are places of education.

3. Appendix A to the ADA Accessibility Guidelines specifically includes dormitories.

4. Chapter 3 of the Appendix A to the ADA Accessibility Guidelines explicitly states that transient lodging includes a building or facility containing sleeping accommodations and also mentions dormitories.

5. Student housing is an integral part of the boarding school experience and therefore is one of the facilities, privileges, advantages, and accommodations of a place of education covered by title III of the ADA.

6. Places of education are subject to title III of the ADA.

7. A technical assistance letter from the Department of Justice dated May 2, 1994 takes the position that all aspects of a school’s student activities and of the educational experience are covered by title III of the ADA. This letter specifically references fraternity houses owned and operated By a University.

The court wound up remanding the case because whenever alterations are made, the path of travel regulations kick in. That means, conceivably the undamaged portions of the dormitory might need to undergo ADA renovations. As a matter contractual interpretation, the insurance company would not be liable for necessary renovations to undamaged areas of the dormitory.

IV
Takeaways:

1. With respect to public universities, as we have seen many times before in this blog, title II of the ADA applies to everything that a public entity does. Further, since places of education are involved, to satisfy the Rehabilitation Act all of the operations of the place of education must be accessible to persons with disabilities. Since just about all universities take federal funds, the Rehabilitation Act does come into play in just about all cases.

2. This same technical assistance letter is perhaps overstated by the Third Circuit. In this letter, the Department of Justice states that if the fraternity house is not owned or operated by the University and will not be owned or operated by it in the foreseeable future, the house may be exempt from ADA coverage even if the house otherwise fits into one of the categories of places of public accommodation because it would be exempt as a private club. The factors to consider in whether a private club is involved are:

A. Whether the club is highly selective in choosing members

most fraternities would be

B. Whether the club membership exercises a high degree of control over the establishment’s operations

This may be highly variable

C. Whether the organization has historically been intended to be a private club

probably yes

D. The degree to which the establishment is opened up to nonmembers

probably frequently

E. The purpose of the club’s existence

This one is interesting because a fraternity doesn’t really have the same reason for being as an exclusive country club does, though some of those reasons do exist.

F. The breadth of the club’s advertising for members

Fraternities probably focus on the college community but one would need to know all of the facts

G. Whether the club is nonprofit

H. The degree to which the club observes formalities

It would take research on my part to determine what formalities are being referred to. Corporate formalities? Formalities that make the fraternity setting stand apart?

I. Whether substantial membership fees are charged

Undoubtedly fees are charged, but whether they are substantial would take further research.

J. The degree to which the club receives public funding

This one is very interesting because if a public university is involved, the fraternity is in some way probably receiving public funds.

K. Whether the club was created or is being used to avoid compliance with a Civil Rights Act.

This one is also interesting because the Americans with Disabilities Act is a Civil Rights Act.

A question that arises is whether all of these factors must be satisfied or whether, like revenue ruling 87-41 (dealing with independent contractors), no one particular factor is dispositive, rather you have to look at it in the broad sense. Also, this technical assistance letter says that they are covered by title III to the extent they open up their establishment to the general public for purposes falling within one of the categories of places of public accommodation. So, if the fraternity host events open to persons other than fraternity members and their guests (in the context of a fraternity, I am not sure what the phrase, “and their guests” refers to), the fraternity must be accessible in their public areas during those events. The more often those public events occur, the higher the obligation to make the publicly use areas accessible. This also doesn’t answer the question considering the nature of fraternities. An argument can be created that with respect to fraternities, even the living quarters would be public areas or areas that the public frequently uses.

3. As we have discussed previously, it is now unclear as to just how persuasive interpretation of regulations, such as appendices, are going to be.

4. So how do you deal with this situation? First, is it a private university? Second, is the private university owning and operating the fraternity? Third, if not, is the fraternity a private club? Fourth, if the fraternity is a private club, have you gone through the criteria in this letter? (Don’t forget about applicable case law here as well). Fifth, if it is a public University, is the fraternity receiving federal funds. If so, the Rehabilitation Act would apply and so would accessibility obligations. If not, go back to the private club analysis. Finally, if it is a public University and even if the fraternity is not receiving federal funds, are the fraternities such an integral part of the educational experience that denying accessibility would mean not allowing a person with a disability to benefit from the privileges, advantages, and benefits of an education at that institution?

Lots to think about and that leads to…. make sure you have a knowledgeable attorney to help your sort these things out.

Filed Under: ADA, Final Federal Regulations, General, Guidances, Rehabilitation Act, Title II Tagged With: accessibility, ADA, ADAAG, Americans with Disabilities Act, Americans With Disabilities Act accessibility guidelines, Appendix A, colleges, dormitory, Educational experience, factors for determining a private club, fraternities, Private club, private universities, public universities, Regents of the Mercersburg college v. republic Franklin insurance, rehabilitation act, title II, title III, transient guests, universities

Service Dogs v. Emotional Support Animals

April 22, 2013 by William Goren 56 Comments

One of the confusing issues out there is the difference between a service dog, emotional support animal, and a therapy dog and why it matters. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104 (the sections of the federal regulation that apply to service animals for public entities and for places of public accommodations respectively), both define service animal in the same way. Under those regulations, a service animal is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104. The work or task performed by the service animal has to be directly related to the handler’s disability. Id. The regulations go on to give examples of what such work or tasks may include. According to the regulations, such work or tasks may include but is not limited to: assisting individuals who are blind or have low vision with navigation and other tasks; alerting individuals who are deaf or hard of hearing to the presence of people are sounds; providing nonviolent protection or rescue work; pulling a wheelchair; assisting an individual during a seizure; alerting an individual to the presence of allergens; retrieving items such as medicine or the telephone; providing physical support and assistance with balance and stability to individuals with mobility disabilities; and helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. Id. Very importantly, for purposes of this particular blog entry, the regulations go on to say that, “the crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Id. (emphasis added).

Before moving on further, a couple of points are in order. First, while not specifically listed in the definition of a service animal, in a separate section of the regulations, miniature horses get protection. See 28 C.F.R. § 35.136(i) and 28 C.F.R. § 36.302(c)(9) (the Department of Justice regulations pertaining to the inclusion of miniature horses with respect to title II and title III entities respectively). Second, this blog entry is specifically focused on the Americans With Disabilities Act and the Department of Justice regulations. Other laws out there, such as the fair housing act, have different statutory provisions and regulations that may also impact on the situation. Nevertheless, I do not address those here.

28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6) (the sections of the regulations that apply to the inquiry that may be made of service animal by public entities and places of public accommodations respectively), both limit the inquiries that can be made when someone shows up with an animal at the public entity or at the place of public accommodation. The inquiries they can make are whether the animal is required because of a disability and what work or task the animal has been trained to perform. 28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6). However, those inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability. Id.

So here’s the problem. Under the Americans with Disabilities Act, service dogs must be allowed into the place of public accommodation or into the public entity. However, dogs that are not working or providing a task, as the Department of Justice sees it, but are there to keep the person with a disability calm, are not protected by this regulation because those animals are providing emotional support, well-being, comfort, or companionship rather than are working or performing a task for the handler. The other problem is that the ADA is not the only law in play. For example, the Fair Housing Act and HUD’s interpretation of the FHA does allow for emotional support animals.

All of this leads to the following. First, if a public entity or a place of public accommodation is faced with the situation where a person shows up with a dog and wants to take it into the public entity or a place of public accommodation and it is not obvious that the dog is performing work or a task for the handler, the public entity or the place of public accommodation can make the inquiries noted above. However, since the inquiries are limited, making the inquiries may not be terribly helpful. For example, if the person with a disability is knowledgeable enough about the distinction between service dogs and emotional support, the person with a disability may very well phrase their response in terms of the dog performing work or a task even though the dog is in fact a dog providing emotional support and not a service dog. At that point in time, the public entity or place of public accommodation is in a very difficult position. In such a situation, will the public entity or place of public accommodation really pick up the phone and ask the appropriate person, preferably legal counsel, whether the response the person with a disability gave them was in fact a dog performing work? Maybe, such a person would; it is certainly not practical. All this does serve to state the need for training of personnel when dealing with these situations.

The other thing that all this does is set up a situation where a person may sue under laws that do allow for emotional support dogs and completely ignore the ADA. That is exactly what happened in United States v. University of Nebraska at Kearney, 2013 WL 1694603 (D. Neb. April 19, 2013). In that case, the Department of Justice brought suit on behalf of a person who enrolled at the University and wanted to stay in a dormitory with her therapy dog (the court refers to the dog as a therapy dog, but in actuality it may have been a service animal). The University denied the request. As a result, after a few weeks, the plaintiff withdrew from classes and moved out of the dormitory. The Department of Justice filed suit under the Fair Housing Act and sought summary judgment for the principle that the Fair Housing Act applied to the dormitory.

The University argued that a dormitory was not a dwelling under the Fair Housing Act since no residence was involved. However, the court was having none of it for several reasons. First, it noted that courts have said that the ordinary meaning of the word residence refers to a temporary or permanent dwelling place, abode, or habitation to which a person intends to return and is not a temporary sojourn or transient visit. In other words, the court said, a house, apartment, condominium or co-op that you reside in is a residence, but the hotel you stay in while you are on vacation is not.

Second, students in a dormitory do all the things that they would do as if they were in a place called home.

Third, while a temporary sojourn or transient visit would not be a residence, a resident can be temporary or permanent.

Fourth, a person lives in a dormitory in university housing for extended period of time that is very similar to many other residential living situations.

Fifth, courts have held that housing provided for migrant workers are residences within the meaning of the Fair Housing Act.

Sixth, the court noted that the particular place that the plaintiff’s particular dormitory was actually less seasonal than students in other university housing (the “dormitory,” was off-campus and more like apartments than they were traditional dormitories).

Seventh, the court said that the university making the analogy to a jail simply didn’t hold up because in the context of the university, freedom of choice as to where to live was involved, which is not the case with a jail, and that also just because they are residing in a dormitory as part of the educational process, does not fundamentally change the nature of the dormitory being a residence.

Eighth, the Department of Housing and Urban Development’s own regulations specifically talk about a dormitory being a dwelling and since those regulations were properly promulgated and consistent with the statute that the Department of Fair Housing and Urban Development was implementing, those regulations were persuasive.

I read that the University Nebraska Kearney was considering this opinion and deciding whether they should appeal. As this particular decision seems to be pretty strong in its reasoning even though it is a case of first impression, it will be interesting to see whether the University does in fact appeal.

To summarize: service dogs, therapy dogs (a dog that provides therapy for others and does not perform work or tasks for the handler), and emotional support animals (a dog that just by being there provides emotional support to its owner), are not the same thing. Also, it would be wise for a public entity and a place of public accommodation to conduct trainings so that staff members are aware of the difference between a service dog, a therapy dog, and an emotional support animal so they know how to handle situations when a dog shows up. Also, that training would need to discuss permissible inquiries and how to deal with the information gleaned from those inquiries. Finally, especially if you are responsible for dwellings as the term would be understood by the Fair Housing Act, don’t assume that you can do stand behind the service animal definition under the ADA. Other laws, such as the Fair Housing Act, and for now anyway, the Air Carrier Access Act, may go quite further than the ADA.

Filed Under: Final Federal Regulations, General, Title II, Title III Tagged With: 28 C.F.R. § 35.104, 28 C.F.R. § 35.136, 28 C.F.R. § 36.104, 28 C.F.R. § 36.302, ADA, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, Americans with Disabilities Act, apartments, Brittany Hamilton, Code of Federal Regulations, comfort, companionship, Department of Justice, dormitory, dwelling, emotional support, emotional support animal, fair housing act, FHA, house, HUD, inquiries, Miniature horses, place of public accommodation, public entity, regulations, residence, Service animal, service dog, therapy dog, title II, title III, United States v. University of Nebraska at Kearney, Well-being, working or task

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