In January of 2016, Kent State University (KSU) was ordered to pay $100,000 to two former students to settle a civil rights lawsuit brought against the university by the U.S. Department of Justice.
The suit claimed the students were being discriminated against because the university did not allow them to have emotional support animals (ESA) where they were living. There was a “no pets” policy where the students involved in the lawsuit were living.
How could this happen? By federal law the university was required to permit an animal that had been identified as an Emotional Support Animal into university-owned housing.
Requirements for an ESA or Therapy Animal
There are some requirements one must meet to have this type of animal with you and to have the right to take it with you to other places. To capsulize a few points, federal law on emotional support animal(s) states:
• ESA status must be conferred by a physician “or other medical professional” who must confirm that the animal provides a benefit for the disabled or handicapped person. “Disabled” or “handicapped” is “broadly defined.”
• An emotional support animal is NOT a “service animal.” Different law applies to each. A service dog is trained to perform specific tasks and the IRS classifies a service dog as a “deductible medical expense.”
Under the Americans with Disabilities Act (ADA), you may ask a person with a service dog the following two questions:
1. Is the animal required because of a disability? AND/OR
2. What work or task has the animal been trained to perform?
• The individual with an ESA must meet the federal government’s definition of “disability” or “handicap” under the 1988 Fair Housing Act Amendments (FHAA), Section 3602(h).
That section (3602(h) of the FHAA) states that the disability (or handicap) must be a “physical or mental impairment that substantially limits a person’s “major life activities” such as “seeing, hearing, walking, breathing” as well as performing manual tasks such as caring for oneself, learning, speaking and reproducing. “Major life activities” also include bodily functions.
Test of Emotional Support Animals with Public
In the fall of October 2014, Patricia Marx, a contributor for the New Yorker magazine, wondered why she saw so many animals in public with people. Not just dogs and cats, but other animals. She researched her question and discovered that many of these people had emotional support animals, or therapy animals (or said they did when she asked them). She decided to attempt to take five different animals, including a snake, to various places in the city of New York and slightly beyond (on a train to Boston). She did not take more than one animal at a time.
These animals, in addition to the 30-inch snake named “Augustus”, were:
• a 26-pound turkey
• a 26-pound pig
• an alpaca
• and a relatively large turtle (fifteen pounds).
Did Ms. Marx have approval from the federal government to do this?
Yes, (sort of).
(Before this story goes any further, Marx claimed in her article that she never abused any of these animals in the process of collecting information for her story. All of the animals were quite visible to the public and she completed her “research” in about a week’s time—one ESA per day. All of the animals had owners—people Marx knew or acquaintances. Sometimes the owners accompanied her.)
What Happened in The Study
En route to her various destinations with the ESA animals, the New Yorker journalist met little resistance about the animals from her fellow human beings – passengers on the train and people walking on the sidewalks of Manhattan, etc.
Mostly, other people took pictures of the various animals with their cell phones and asked if the animals were “real.” One or two of the animals did not seem as though they were enjoying offering Ms. Marx emotional support. If that was the case, she returned that animal to their owner as quickly as she was able.
Marx tried to enter many public places, restaurants or retail establishments with each of the animals. With most of the animals, she “got on board” or inside with little argument.
Before she began, she, of course, studied ESA law (to some “degree”) and discovered that one should not take an emotional support animal into a public place without documentation that you have the right to do so. As stated earlier, and illustrated in Ms. Marx’ piece, this right has been broadly interpreted.
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Ms. Marx Got a Letter
Before she took the animals with her, Ms. Marx initially obtained a letter stating that she had a disability or handicap and was eligible to have an animal with her for “emotional support.” She admits that she “concocted” a story about her childhood and a snake that she could tell in case she was asked about one of the animals. But she never had to use her snake story to get a letter from a professional about her ESA status.
Marx went online and “Googled” . . .”emotional- support animal” or something to that effect, and immediately linked up with a “therapist” in California. She told the doctor she had “anxiety”—a mental health problem which, Marx stated in her article “was not that much of a stretch.” The therapist asked Marx a few questions about her “condition” (and she paid $140 by credit card).
The next day, via e-mail, the documentation concerning Ms. Marx’ emotional disability arrived in the form of a letter. She had the letter with her (which actually approved her for an ESA dog) as she traveled around New York to gather material for her story, entitled “Pets Allowed.”
Marx initially met with resistance from security officers and managers of some restaurants and museums she visited with her animals. Where there was no one checking customers or patrons, such as in a retail store or smaller museum, many people acted as though the animals were not present or treated the animal as they did Marx—a friendly hello, how are you doing today?, etc. Sometimes it depended what Marx was doing in public with her animal(s).
When she took the snake with her to look at a pair of shoes priced at $9,000 no one at the shoe store said much of anything (except to tell Marx that “Augustus,” a 30-inch Mexican milksnake with brilliant coloring, was “stunning.”).
Most of the official-types that greeted Marx when she arrived somewhere with an “emotional support turtle” or a “therapy pig” went to get someone else immediately– most often a superior. If the journalist were asked to prove it was an ESA, she presented the letter that she had obtained online approving her for a “dog.”
All five of the animals transported with Marx got “in” somewhere. She actually took one of them on a train ride from Hudson station to Niagara Falls (I am assuming Niagara Falls, N.Y.). That particular traveler was “Sorpressa,” the alpaca, who at four-and-one half feet tall was the animal that most of the official-types resisted (at first).
What Was the Point of Marx’ Story?
• It illustrated how easily you could “bend the law” on this issue or at least at that time (2014) and those places. In reality, not one the five animals is allowed in a New York public restaurant. It is against health department laws.
• It illustrated when maître d’s, head waiters, etc. “security” people in general are told about an actual law that seemingly applies to their establishment, they try to obey it. They try to find someone, usually a superior, who might know more about it than they do before making a final decision. At least in this very small study.
• Most of us desire to or at least care about the laws of our country. (OK, some don’t). We want to do the right thing. . . when we can discern what that is.
The Rest of The Story
Back in January, Kent State also had to pay $30,000 to the fair housing organization which advocated for the students, and a $15,000 fine to the federal government for the violation(s) itself. The ESA lawsuit at Kent State concerned a dog in a university-owned apartment that (previously) had a “no pet policy.”
Ms. Marx’s article discusses disabled people and how some ESA laws may be viewed as invalid or unfair to disabled or handicapped persons. There has been considerable effort to “declare war on fake assistance dogs.” A petition with 28,000 signatures was forwarded to the Department Of Justice requesting that it consider the issue. They wrote back, “We think the law is adequate.”
As Ms. Marx illustrated in her piece, an ESA does not have to be a dog or cat, although many are “dogs.” You can obtain ESA documentation if you have been “evaluated for and diagnosed with a mental health disorder as defined in the DSM-5.”
The DSM-5 is a voluminous government document describing mental health disorders of many, many types.
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