Jamie Axelrod, Northern Arizona University
I was excited when AHEAD asked if I would be willing to coordinate a new column to focus on summarizing Department of Education, Office for Civil Rights Letters (OCR) and court decisions. Many of you know I find these letters and rulings interesting. What I like most is following how OCR and the courts analyze the issues that come before them. I can then employ a similar style of analysis to different situations that are presented to me. Over time I discovered that this is not just a technical exercise. To the contrary, it has been a very practical way for me to facilitate good outcomes for students and support my institution’s mission.
For this first installment, I thought it would be good to highlight a letter on a topic we are all talking about but also use it as an opportunity to highlight common elements contained in most OCR letters. The topic is animals. More specifically, service animals and emotional support animals. The letter is OCR Complaint No. 03-18-2103 to Pennsylvania State University.
The first section of most OCR letters includes a statement of the allegations the complainant is making against the institution. In this case it was that Penn State had a policy about service animals which inquired about the nature and severity of a person’s disability as well as excluding service animals from specific areas of the University. The complainant also alleged that Penn State had a policy regarding emotional support animals which restricted them to University housing. The latter allegation is certainly something we are all looking for guidance on.
The next section of these letters contains a statement of the applicable legal standards that OCR enforces and is using to conduct its analysis. I reference this section of letters regularly. It is an excellent restatement of the basic requirements of Sec. 504 and the ADA. Sometimes, when I can’t recall specific wording from the regulations, I will open an OCR letter, and there it is. It also serves as a great reminder of our responsibility to ensure access for students. This letter references the non-discrimination requirements of both statutes as well as the specific requirements of Title II of the ADA in regards to service animals. It highlights that those requirements prohibit a public entity from enquiring about the nature and extent of an individual’s disability when it comes to service animals. It also restates the two permissible inquiries that public entities can make: 1) if the animal is required because of a disability, and 2) what work or task the animal has been trained to perform. It points out the limited circumstances under which a public entity can exclude a service animal.
OCR letters then move into “Findings of Fact.” This is the place where OCR will indicate what they found in relationship to the complainant’s allegations. In this section, the nuances of individual case-by-case circumstances are outlined, and, often, the specifics that really matter. While this case was fairly straightforward, there was an important wrinkle. OCR found that the University’s policy on service animals required individuals who wanted to use a service animal to engage in a “reasonable accommodation” process to determine the nature and extent of the person’s disability to decide if they could bring the service animal on campus. Here OCR’s guidance was straightforward. Pointing back to the legal standards, it indicated that this is not a permissible practice and that the institution is limited to the two outlined inquiries. OCR was quick to point out that Penn State was already in the process of reviewing this policy.
The most important piece of guidance was related to emotional support animals. This guidance about requests for animals is helpful. The letter also presents a reminder of the need to coordinate and understand all the “policies” or processes your institution uses. OCR clearly indicates that Penn State “does not have a policy on ESAs.” However, it found the following statement in the form for requesting an ESA in housing: “ESAs are limited to student housing and they are not allowed in places of public access.” OCR extrapolated from this sentence that Penn State did not consider requests for ESAs outside of housing. It is important to note that OCR did not comment on the processes for requesting an ESA in housing, presumably because it does not enforce those regulations. It did, however, take the opportunity to comment on the broader issue of requests to bring ESAs to other areas of campus. The guidance is clear and had not appeared openly in previous letters (in an earlier letter to Delaware Tech. it was redacted).
OCR would expect the University to engage in a reasonable process with a student, which would include reviewing ESA requests on a case-by-case basis, and reviewing accommodation requests as it would for other types of accommodations.
While OCR isn’t dictating what the outcomes should be in such a process, it is making clear that it believes colleges and universities must consider such requests similarly to other requests.
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