BOUND AND UNBOUND BY LAW 1

Bound and Unbound by Law:

The Contentious Issue of Emotional Support Animals on Campus

Justin Conklin

Western Illinois University

Overview
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One in five adults in America suffers from some form of mental illness, according to the

National Alliance on Mental Illness (2016). Mental illness has become significantly more

present, particularly on college campuses, than it has been in past decades. The increasing

numbers are due to several reasons. Mental illness is losing its poor stigmatization over time;

thus more people are seeking help (Von Bergen, 2015; Kruisselbrink-Flatt, 2013). With the rise

of mental illness in student populations, colleges have been challenged with the issue of allowing

animals for the sole reason of companionship to reduce stress, depression, and/or anxiety,

otherwise known as “emotional support animals (ESA)”. While “traditional” service animals,

such as guide dogs to aid individuals with physical disabilities are accommodated on campuses,

the use of animals for psychiatric needs is a much more recent trend that imposes new

challenges. (Huss 2012).

While the idea of emotional support animals is relatively new, the positive influence

animals can have on humans is a well-seasoned concept. According to recent studies, animal

companionship not only benefits a vast array of people, it provides unique benefits to individuals

with mental and psychiatric disorders (Von Bergen, 2015). With ESAs gaining popularity, it is

becoming a highly contentious topic regarding the acceptance of ESAs on campus and the

possibility that students are taking advantage of the current laws. The issue becomes more

complex due to the fact that laws pertaining to ESAs are different from those supporting

disability service animals and institutions’ current policies are not equipped to effectively

address the new phenomenon (Erdman, 2018).

Literature Review & Legalities

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It is first necessary to recognize the distinct differences between service animals and

emotional support animals. The Department of Justice (DOJ) (2011) defines a service animal as

“any dog [some exceptions for a miniature horse] that is 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.” The DOJ is also explicit in stating “Dogs

whose sole function is to provide comfort or emotional support do not qualify as service animals

under the Americans with Disabilities Act (ADA).” DOJ defines ESAs as “typically dogs and

cats, but may include other animals of any species that provide support, well-being, comfort, aid,

or a calming influence through companionship, non-judgemental positive regard, affection, and a

focus in life simply by being close to their handler.” DOJ also recognizes that ESAs may have a

lack of training, therefore, they are virtually indistinguishable from the family pet. Despite not

falling under the umbrella of protections of the ADA, ESAs are covered by the Air Carrier

Access Act (1986) and the Fair Housing Act (1968). Due to a shift in the interpretation of the

Fair Housing Act, federal regulations are leaning in favor of allowing students to have ESAs on

campus. (Salminen & Gregory, 2018). The FHA prohibits discriminatory practices when

buying, selling, renting, or leasing dwellings that are either owned or funded at least in part by

the federal government. “Dwellings” has been interpreted now to include residence halls which

has shifted outcomes in recent court cases in favor of ESAs permissions.

In the case of Velzen v. Grand Valley State University (2012), Velzen was a new student

at Grand Valley State University (GVSU) who suffered from depression and stress-induced

cardiac arrhythmia. Velzen was prescribed a guinea pig as an ESA to help control her

symptoms. GVSU did not allow animals in residence halls and Velzen’s guinea pig was no

exception. This event resulted in Velzen suing the University. The court found that Velzen was
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entitled to both an injunction and damages because the university housing officials failed to

reasonably accommodate her disabilities. GSVU settled with the plaintiffs, paying $40,000 and

guaranteeing that Velzen could live on campus with her guinea pig (Salminen & Gregory, 2018).

In the case of Brittany Hamilton, who moved into an off-campus apartment building

owned by the University of Nebraska at Kearney (UNK), she was told she could not live with the

dog that had been prescribed as an ESA due to the building’s “no-pets” policy. According to

administrators, the student did not follow the university’s psychological-documentation

guidelines regarding the student’s treatment and prescribed medications, including “a list of

dosages and schedules for intake; the date of the student’s last visit with the doctor and a

schedule of regular visits; a list of any other doctors providing treatment; a clinical summary

indicating the substantial life activities impaired by the disability, the extent to which these

limitations would impact the academic or living environment in a postsecondary setting, and

clear evidence that the student’s symptoms are present in two or more settings; and an

explanation of how the student’s limitations affect the activities that are required in an academic

environment.” The lawsuit (United States v. University of Nebraska at Kearney, 2010) resulted

in the DOJ determining that the university had discriminated against the student by requiring

“detailed disability information that goes beyond what is needed to review a request for

reasonable accommodation in housing (Von Bergen, 2015).”

These court cases reveal the ongoing struggle with institutions trying to comply with the

numerous laws that coincide with student requests for exceptions to a school’s “no-pets” policy

as an accommodation for their mental disabilities.

Implications & Suggestions

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Since the U.S. Supreme Court has not yet set a precedent regarding ESAs on campuses,

university officials must remain conscious of the FHA requirements and how they are now

applying to university housing. According to Von Bergen (2015), in regards to ESA requests,

administrators need to consider why the student is requesting an exception to the college’s no

animals on campus policy. Officials also must be flexible with interpretation of language and

not be so hasty to dismiss requests using incorrect wording. Schools have been legally

reprimanded in the past for their lack of leniency with terminology usage. Administrators must

also consider if the accommodation request is reasonable. Requests can be denied if the animal

poses a threat to the health and safety of others if the animal would cause significant damage to

property that cannot be resolved by another reasonable accommodation. These determinations

can only be made by objective evidence that the specific animal’s (breed, size, and weight

limitations are not applicable to ESAs) conduct falls under those exceptions to accomodation

(Von Bergen, 2015). Previous cases show that some schools have found success with restricting

ESAs to domesticated species only, which could save universities from being forced to

accommodate more exotic requests (Huss, 2012). Von Bergen (2015) advises consolidating all

positions related to animals on campus into one office. This would create a consistency in

accomodation rulings and eliminate the lack of communication between the counseling center

and accommodation services, who currently both have influence in the approval of ESAs. The

recommendation that universities have specialized trainers on staff to teach students about the

university policies and their responsibilities regarding the animal. Students also can be

prohibited from leaving their ESA unattended or in the care of another student overnight.

Institutions can also require students to ensure their living spaces are kept odor-free and that the

animal remain healthy. Other possible short-term solutions are to make pet shampoo and flea
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collars easily available in the residence halls. St. Mary’s College of Maryland has even gone so

far as to designate washers and dryers specifically for ESAs to avoid issues with allergies

(Salminen & Gregory, 2018). Even though schools may be legally obligated to allow ESAs in

the residence halls, they are not bound by law in terms of allowing them in every part of campus.

ESAs can be restricted from dining halls, academic buildings, administrative buildings, and the

campus itself. This is a significant distinction from service animals, which, defined by the ADA,

are allowed access essentially anywhere with their handler (Von Bergen, 2015). Von Bergen

(2015) also advises that institutions should not ask for any overly intrusive documentation and

rather than focusing on determining if the student has a disability, focus on liability and if the

student would be discriminated against for failing to reasonably accommodate the student’s

request.

Some institutions’ such as Illinois State University (ISU) are struggling with the leniency

of their current policies in regards to ESAs, and despite their inclusion of handler

responsibilities, and requiring documentation of mental disabilities and service the animal

provides, the university is still facing an uphill battle with the disturbance and damages caused

by ESAs. Tammie Keney, Director of Student Access and Accommodation Services (SAAS) at

ISU stated that their current largest struggle is their large amount of approved accommodations

for ESAs. They have received multiple complaints regarding barking, smells, and even animal

urine in the residence halls. While they do have a “removal of assistance animal” procedure in

place, animals are only removed if there are multiple occurrences from the same subject. This

policy does not take into consideration that with the number of ESAs on campus, the amount of

“first offenses” can result in a significant amount of property damage and noise disturbances

without any actual removal of animals from residence. ISU also has a large amount of leniency
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with the animals being housebroken. There is no statement in the policy requiring house-

brokenness; only that the student is responsible for the clean-up of the waste. Despite the

complaints towards SAAS in regards to ESAs, they are bound by the policies and as long as the

student followed the accommodation procedures correctly, their hands are tied (Keney, 2018).

There are still serious concerns with the rising accessibility to the documentation required

for an animal to be considered an ESA. There is an industry of online companies that will

provide ESA certification for a fee. One company, the National Service Animal Registry, offers

a lifetime certification for an animal for $64.95 with just “3 quick steps”. Universities’

awareness of these registry providers has heightened and started circulating lists with the names

of the websites. The impact of this has yet to be seen (Von Bergen, 2015). Due to the amount of

legal bindings regarding service animals and emotional support animals, student affairs

professionals and campus officials are left with the intricacies of balancing attending to student

needs and the threats to the quality of campus living for third-party residents. For now, policies

will have to continue to adapt and remain flexible with current trends. Perhaps the issues with

schools and ESAs is a sign of larger implications towards many institutions’ tendencies of

reactivity rather than proactivity.

References

Erdman, P. (2018). Roles of Emotional Support Animals Examined. PsycEXTRA Dataset.

Retrieved November 25, 2018, from

https://www.apa.org/news/press/releases/2018/08/emotional-support-animals.aspx.

Fair Housing Act of 1968, § 801. (amended in 1988).

Huss, R. J. (2012). Canines on campus: Companion animals at postsecondary educational

institutions. Missouri Law Review, 77(2), 418-479.

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Keney, T. (2018, October 29). Personal interview.

Kruisselbrink-Flatt, A. (2013). A suffering generation: Six factors contributing to the mental

health crisis in North American higher education. College Quarterly, 17(1), 1-17.

National Alliance on Mental Illness. (2016a). Mental Health Facts: Children and Teens. retrieved

from http://www.nami.org/nami/ media/nami-media/infographics/Childrenmh-facts-

nami.pdf

Salminen, E., & Gregory, D. E. (2018). Animal Housing: Emotional Support Animals on

Campuses. The Journal of College and University Student Housing,44(3).

U.S. Department of Justice, Civil Rights Division. (2010). Disability rights section: Service

animals. Retrieved from http://www.ada.gov/service_animals_2010.htm

Von Bergen, C. W. (2015). emotional support animals, service animals, and pets on campus.

Administrative Issues Journal: Connecting Education, Practice, and Research, 5(1), 15-

34.