Dogs in Dorms: How the United States v. University of Nebraska at Kearney Illustrates a Coverage Gap Created by the Intersection of Fair Housing and Disability Law

• Publication year: 2012

47 Creighton L. Rev. 363. DOGS IN DORMS: HOW THE UNITED STATES V. UNIVERSITY OF NEBRASKA AT KEARNEY ILLUSTRATES A COVERAGE GAP CREATED BY THE INTERSECTION OF FAIR HOUSING AND DISABILITY LAW

DOGS IN DORMS: HOW THE UNITED STATES V. UNIVERSITY OF NEBRASKA AT KEARNEY ILLUSTRATES A COVERAGE GAP CREATED BY THE INTERSECTION OF FAIR HOUSING AND DISABILITY LAW

Katherine R. Powers

I. INTRODUCTION ................................... 363

II. BACKGROUND .................................... 367

A. A BRIEF HISTORY OF THE FAIR HOUSING ACT ...... 367

B. DEVELOPING WHERE FAIR HOUSING LAWS APPLY: THE EARLY JUDICIAL INTERPRETATION OF RESIDENCE ...................................... 367

C. EXPANDING THE DEFINITION OF DWELLING TO NON-TRADITIONAL HOUSING ...................... 369

D. APPLYING THE DWELLING TEST TO EDUCATIONAL HOUSING ........................................ 372

E. DISTINGUISHING DISABILITY UNDER THE FAIR HOUSING ACT .................................... 374

III. ARGUMENT ....................................... 377

A. THE CURRENT TEST FOR RESIDENCE UNDER THE FHA SHOULD BE RE-FOCUSED .................... 377

1. The Hughes Test for Residence Is No Longer Necessary ............................ 377

2. Articulating a New Factor: Primary Purpose of Stay .............................. 380

B. THE APPLICATION OF THE FHA TO DORMS ILLUSTRATES THE PROBLEMATIC COVERAGE GAP IN DISABILITY AND HOUSING LAW ................. 381

1. Interpreting Regulations under the FHA: Coverage Gaps and Questions ................ 381

2. Will Specialized Housing be Interpreted as Discriminatory Under the FHA? ............. 384

IV. CONCLUSION ..................................... 385

I. INTRODUCTION

For thousands of years, dogs have served as companions to their human counterparts.(fn1) Undeniably, people and dogs have a long history together, and as that history continues, so does the expansion of unique legal claims and questions relating to animals.(fn2) A growing trend among universities across the country is to provide students with access to emotional support animals to alleviate anxiety and stress.(fn3) However, the right of students to live with emotional support animals on campus has created an issue that intersects housing and disability law.(fn4) The Fair Housing Act(fn5) requires that housing providers make reasonable accommodations to no-pets policies for people with disabilities to live with emotional support animals, regardless of the animal's training as a service animal.(fn6) In United States v. University of Nebraska at Kearney,(fn7) a student in the University of Nebraska school system was prohibited from living with her emotional therapy animal because her dormitory did not permit pets.(fn8) In this case, the United States District Court for the District of Nebraska answered a question that was before undetermined by any court: must a university, as a provider of housing for its students, comply with the standards set forth in the Fair Housing Act?(fn9) The court answered that it does.(fn10)

The decision in University of Nebraska at Kearney illustrates two legal concerns.(fn11) First, the court's analysis under the traditional United States v. Hughes Memorial Home(fn12) test to determine if a dormitory was a dwelling under the Fair Housing Act demonstrates why the factors should be revised and a new a factor proposed.(fn13) Second, the decision magnifies how the conflicting standards for emotional support animals under the Fair Housing Act and for service animals under the Americans with Disabilities Act(fn14) have created a coverage gap for housing providers.(fn15)

University administrators and housing providers must understand how the broadened scope of the Fair Housing Act affects their oversight and potential for liability.(fn16) On the one hand, increased rates of depression and anxiety among university populations indicates allowing emotional support assistance animals in university housing will positively impact students who suffer from these kinds of disabilities.(fn17) On the other, the Department of Justice's deregulation of standards for emotional support animals under the Fair Housing Act has created a coverage gap, leaving administrators relatively pow-erless.(fn18) Considering the decision from a statutory and judicial perspective, revising the Hughes test to consider a new factor would narrow the test and potentially relieve universities of Fair Housing Act obligations.(fn19) From a public policy perspective, at the very minimum, the Department of Urban Housing and Development should reconsider the standards for emotional support animals and issue further regulation to clarify where the Fair Housing Act standards will apply outside of the dormitory room.(fn20)

This Article's focus is two-fold: it will examine the test used to determine the applicability of the Fair Housing Act to dwellings, and it will also discuss its effect on the legal coverage for emotional support animals.(fn21) This Article will first review the history of the FHA and how courts have interpreted what a dwelling is under the Act.(fn22) Then, this Article will consider the broadening definition of dwelling and regulations pertaining to emotional support animals.(fn23) After discussing the Background, this Article will then argue that the current judicial test for dwelling under the Fair Housing Act is futile and that courts should consider a new factor in the test.(fn24) Finally, this Article will conclude by demonstrating the intersecting regulations in disability and housing law have created a coverage gap, resulting in numerous consequences to housing administrators.(fn25)

II. BACKGROUND

A. A BRIEF HISTORY OF THE FAIR HOUSING ACT

On April 10, 1968, Congress passed Title VIII of the Civil Rights Act, commonly known as the Fair Housing Act ("FHA" or "the Act"), which declared that the policy of the United States is to provide fair housing.(fn26) Specifically, the FHA outlawed discrimination on the basis of race, color, or national origin when purchasing or leasing a home in both private and public housing.(fn27) In 1974, Congress amended the FHA by adding sex and religion to the list of protected classes.(fn28) The FHA was again amended in 1988 to protect housing applicants and residents against discrimination on the basis of disability and familial status.(fn29)

The language of the FHA outlaws discrimination relating to the occupancy, sale or lease of a dwelling.(fn30) The Act defines dwelling as a building or structure designed for occupancy as a residence by a family or single person, including vacant land offered for lease, sale, or for construction of such building or structure.(fn31) However, the term residence is not defined by the statute.(fn32) No doubt, traditional housing, such as single-family houses and apartments, is covered by the act as a residence, but many non-traditional residences, such as mobile home parks, trailers, cooperatives, time-share properties and condominiums are also covered by the definition of dwelling.(fn33)

B. DEVELOPING WHERE FAIR HOUSING LAWS APPLY: THE EARLY JUDICIAL INTERPRETATION OF RESIDENCE

In 1975, the United States District Court for the District of West Virginia became the first court to interpret residence under the FHA as applied to non-traditional housing.(fn34) In United States v. Hughes Memorial Home,(fn35) the court relied on the Webster's Third New International Dictionary to define residence as an either temporary or permanent place an occupant intends to return to, as distinguished from a place of only a transient visit or temporary sojourn.(fn36) Hughes involved a racial discrimination allegation against the Hughes Memorial Home, a private, nonsectarian home for children in need.(fn37) The defendants argued the FHA should not apply on two grounds: first, their homes were not residences, and second, they were not engaged in the sale or lease of a property.(fn38) Conversely, the court stated the FHA is not limited to those who sell, finance, or lease residential prop-erty.(fn39) In determining whether the home should be covered by the FHA, the court considered the relationship between the child occupants and the dwelling.(fn40) The students lived in residences provided by the school, and the average stay was four years.(fn41) Moreover, the home itself refers to the children as residents.(fn42) Reasoning these factors amounted to a residence that was far more than a place of temporary sojourn, the court determined the FHA applied to the home.(fn43)

Citing the Hughes definition, the United States Court of Appeals for the Third Circuit, in United States v. Columbus Country Club,(fn44) solidified the definition of residence under the FHA using the same two-factor test.(fn45) The court addressed the issue of whether the owners of a community of summer homes, the Columbus Club, must comply with the FHA.(fn46) The Columbus Club was an organization formed under the Knights of Columbus, a Catholic men's organization.(fn47) The nonprofit organization leased bungalows to its members, who were obligated to remain in good standing with the Catholic Church.(fn48) Dispute arose when the Columbus Club denied membership to a woman because her husband was not a member of the Catholic Church.(fn49) In its analysis, the court cited Hughes in determining if the FHA applied to the bungalows by critiquing the following factors: (1) whether members...