As the title of the Bob Dylan album and song states, The Times They Are A-Changin' (367) Fortunately for administrators at postsecondary institutions, they have the ability to control most of the changes dealing with companion animals on campus. As discussed above, students with disabilities accompanied by service animals, as defined under federal or applicable state law, must be accommodated. (368) The recent ADA rulemaking that restricts the protection of the ADA to persons using service animals that are individually trained canines (and, with some limitations, miniature horses) serves to clarify the federal law on this issue.
The issue of emotional support animals or assistance animals under the FHA is a more challenging issue for administrators. (369) Even though an educational institution is not required to allow such animals under the ADA, given the recent activity by HUD and the DOJ applying the FHA to campus housing, administrators should implement a policy allowing for such animals. Students with documented disabilities who can benefit from an assistance 77animal (but may not require a service animal) should be given the opportunity to be treated as if they were in private housing. By adopting a policy now, an institution can avoid litigation and can consider its own environment and structures to determine what will work best for the institution and the students it serves.
The issue of allowing companion animals on campus requires administrators to weigh the costs and benefits. The costs--from possible animal welfare issues, an administrative time perspective, and other risks--appear to outweigh the benefits of general student well-being and providing an opportunity to distinguish one institution from other institutions from a student recruitment standard--at least as far as allowing animals in housing for most institutions. (370) If an institution determines that it wishes to allow animals in housing, partnering with a local rescue organization or service dog in training organization can alleviate some of the concerns over the care of the animals and possible abandonment issues and provide an excellent opportunity for students to serve their community. Administrators can consider the policies at the institutions that have granted students this privilege to determine the best structure for their campus.
Allowing regular animal-assisted activities on campus and encouraging service activities helping animals off campus also may provide the needed outlet for students who are unable to keep an animal during this busy period of their lives. By considering these issues in advance and implementing thoughtful policies, educational institutions can prevent problems with humans and companion animals and provide for a positive environment on campus for everyone.
(1.) Am. Pet Prods. Ass'n, 2011-2012 APPA National Pet Owners Survey 49 (2011) [hereinafter APPA] (reporting that ninety-four percent of people with dogs and ninety percent of people with cats agree that a benefit of owning a pet is companionship, love, company and affection). The APPA survey is a comprehensive survey on pet expenditure and ownership that takes place every two years. The methodology used by the APPA to create this data is similar to that used by the American Veterinary Medical Association. See, e.g., Am. Veterinary Med. Ass'n, U.S. Pet Ownership & Demographics Sourcebook 129-30 (2007) [hereinafter AVMA]. This data is derived from a survey of households and cannot be considered a definitive census of the pet population. Notwithstanding the foregoing, these two sources are widely used to estimate the pet population and information regarding pet owners in the United States. For purposes of this Article, it should be assumed that all numbers cited are estimated, even if not denoted as such.
(2.) APPA, supra note 1, at 2 (reporting that sixty-one percent of the U.S. population owned a pet in 1998, with the percentage ranging from sixty-one to sixty-three percent through the 2011-12 survey).
(3.) AVMA, supra note 1, at 5, 130.
(4.) Marc Bekoff, The Emotional Lives of Animals 19-20 (2007); see also Gail F. Melson, Why the Wild Things Are: Animals in the Lives of Children 17 (2001) (stating that "pets live in at least 75 percent of all American households with children").
(5.) Digest of Education Statistics: 2009, Nat'l Ctr. for Educ. Statistics, http://nces.ed.gov/programs/digest/d09/ (last visited Feb. 6, 2012) (estimating that college enrollment would be 19.6 million in the Fall of 2009 and that enrollment would continue to set new records through Fall 2018).
(6.) 20th Anniversary of Americans with Disabilities Act: July 26, Facts for Features (U.S. Census Bureau, D.C.) May 26, 2010, at 1, available at http://www.census.gov/newsroom/releases/pdf/cb10ff-13.pdf [hereinafter 20th Anniversary]. The total number of people in the United States with a disability is estimated at fifty-four million. Id.
(7.) Id. (stating that thirty-eight percent of adults sixty-five or older have disabilities).
(8.) Id. The estimate of females with a disability is 12.4 percent, compared with 11.7 percent of males with a disability. Id.
(9.) U.S. Gov't Accountability Office, GAO-10-33, Higher Education and Disability: Education Needs a Coordinated Approach to Improve Its Assistance to Schools in Supporting Students 8 (2009) [hereinafter Education Needs a Coordinated Approach]. The percentage of persons with disabilities who had a bachelor's degree or higher is only thirteen percent compared with thirty-one percent of persons with no disability. 20th Anniversary, supra note 6.
(10.) See Tiffany Huggard-Lee, Service Animals: Too Much of a Good Thing?, Day in Washington (Feb. 13, 2010), http://dayinwashington.com/?p=494.
(11.) Ed James, Veterinary Teaching Hospital Fee Structure for Disabled Clients Partnered with Guide, Hearing, and Service Dogs, Int'l Ass'n of Assistance Dog Partners, http://www.iaadp.org/vthfee.html (last visited Aug. 8, 2011) (estimating that there are 30,000 disabled individuals working with guide, hearing, and service dogs). But see Nora Wenthold & Teresa A. Savage, Ethical Issues with Service Animals, 14 Topics in Stroke Rehabilitation 68, 68 (2007) (estimating there are 17,000 assistance dogs working in the U.S.). There is a project to try to more accurately estimate the number of service animals in use, but at this time it is on hold due to a lack of funding. See Service Dog Census Project, http://www.censusproject. org/#1 (last visited, Aug. 8, 2011).
(12.) Rebecca J. Huss, Canines in the Classroom: Service Animals in Primary and Secondary Educational Institutions, 4 J. Animal L. & Ethics 2 (2010) (manuscript at 1-2) [hereinafter Huss, Classroom], available at papers.ssrn.com/sol3/papers. cfm?abstract_id=1586029 (discussing the increasing number of service animals partnered with children in an article focusing on service animals in primary and secondary education).
(13.) See Education Needs a Coordinated Approach, supra note 9, at 30-31.
(14.) Issues relating to faculty and staff members with service animals are beyond the scope of this Article, as that topic deals with service animals in employment situations.
(15.) The purpose of this Article is to provide an analysis of the federal laws students likely will raise wanting to bring animals onto campus and into campus housing. The various remedies and defenses to the federal laws discussed infra notes 18111 and accompanying text are beyond the scope of this Article. Given recent activity in the area, the author would caution the reader to consider issues such as the applicability of the Eleventh Amendment that provides that private individuals may not sue non-consenting states in federal court. Ivan E. Bodensteiner & Rosalie Berger Levinson, 2 St. & Local Gov't Civ. Rights Liability [section] 2:21 (2d ed. 2011) (discussing defenses under the ADA and the Fourteenth Amendment); see also Diane Heckman, The Impact of the Eleventh Amendment on the Civil Rights of Disabled Educational Employees, Students and Student-Athletes, 227 Educ. L. Rep. 19 (2008) (discussing the applicability of the Eleventh Amendment in connection with cases involving the ADA and Rehabilitation Act).
One commentator has asserted that "higher education agencies have increasingly begun to raise the immunity defense in disability discrimination cases," with some courts barring the claims based on immunity and others allowing the claims to move forward. Laura Rothstein & Julia Rothstein, Disabilities and the Law [section] 3:27 (4th ed. 2009) (discussing procedural and remedial issues under section 504 of the Rehabilitation Act and the ADA); see also Heckman, supra, at 37-41 (discussing the waiver of immunity by states that accept federal funds pursuant to the Rehabilitation Act and stating that although "the majority position is that public universities may be sued, it is not unanimous" (footnote omitted)). There has not been a Supreme Court decision relating to state immunity under the FHA. Kuchmas v. Towson Univ., No. RDB 06-3281, 2007 WL 2694186, at *8 (D. Md. Sept. 10, 2007). As a recent case involving a postsecondary institution stated, "the text of the FHA lacks any clear statements of Congress's intent to abrogate states' immunity under the Eleventh Amendment" and held that the Eleventh Amendment would bar the private suit against the university under the FHA. Id. (recognizing that the Supreme Court has not ruled on the issue but citing to multiple cases within and outside the circuit that found that states could assert immunity under the Eleventh Amendment in FHA actions). The Towson University case is discussed infra note 69. See also Robert G. Schwemm, Housing Discrimination Law and Litigation [section] 12B:6 n.9 (2011) (discussing that few FHA cases against state agencies, state officials, and states have been reported and the case law finding that states have successfully asserted immunity in these...