LINCOLN — A request by a Nebraska college student to keep a miniature therapy dog in her university apartment has unleashed the big dogs in federal court.
University of Nebraska at Kearney officials, who denied the student's request, recently asked a federal judge to dismiss a lawsuit brought by the U.S. Justice Department in Washington, D.C., and Omaha.
However, the Justice Department maintains its opinion that the university violated the U.S. Fair Housing Act. Under fair housing rules, UNK should accommodate students who need animals to help them cope with disabling mental illnesses, they argue.
A lawyer for UNK, meanwhile, said that while the question hasn't been “squarely” decided by the courts, Congress never intended the act to apply to college residences. If it had, dorm room segregation by gender would clearly violate the law.
“Concluding that UNK's student housing is a 'dwelling' under the (Fair Housing Act) would have grave consequences on colleges and universities,” Omaha lawyer Scott P. Moore stated in a brief filed recently in the case.
The university is asking U.S. District Judge John Gerrard to toss the Justice Department lawsuit. The suit, filed in 2011 in federal court in Lincoln, is scheduled for a June trial.
The case involves Brittany Hamilton, a student diagnosed with depression and anxiety disorder who enrolled at UNK in 2010. Hamilton asked to keep a 4-pound miniature pinscher named Butch in her apartment-style university housing, after the dog had been prescribed by her therapists to help cope with disabling anxiety attacks that made it difficult to sleep and breathe.
UNK's policy allows only fish in dorm rooms, but the university also accommodates trained service animals as required under the Americans with Disabilities Act. Because Hamilton's dog wasn't trained, they considered it a pet. Allowing it to stay would “open a can of worms” because they could then be required to allow other students to bring in pets, officials stated.
Hamilton's mother, however, said she trained the dog to put its paws on her daughter's shoulders while she was having an attack, which helped break the anxiety.
Hamilton, who said she could not afford off-campus housing, dropped out of UNK when she could no longer keep the dog. She then filed a complaint under the Fair Housing Act, and her case was taken on by the Justice Department.
The Fair Housing Act prohibits a landlord from banning emotional assistance animals when they are owned by tenants with a diagnosed mental illness, said George Achola, legal counsel with the Omaha Housing Authority. The animal request, however, must be within reason.
“If you are going to bring in a python, we are going to have a discussion,” he said Tuesday.
The dispute in the UNK case may turn on whether student housing meets the federal act's definition of “dwelling.” UNK lawyers argue that rather than a dwelling, dorm rooms and campus apartments are simply “transient lodging.” As evidence, they point out that the housing is closed during holidays and that 99 percent of students list other addresses as their homes.
In support of the position, UNK lawyers said university housing is specifically excluded under Nebraska's landlord-tenant law.
The Justice Department lawyers, however, pointed to UNK literature that encourages students to think of their residence halls as home. Many students supply their own furniture and decor to personalize the rooms or apartments.
The U.S. Department of Housing and Urban Development includes dormitories under its formal definition of dwellings, Justice Department lawyers argued.
“Any public entity ... including colleges and universities such as the University of Nebraska at Kearney, must comply with all laws to the effect of maximizing, not minimizing, the rights of people with disabilities,” said Mary Hahn, an attorney with the Justice Department, in a written brief.
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