Legal Question in Disability Law in Virginia

I am a student at a public university in Virginia. I have a recognized (by the school) disability requiring an approved Emotional Support Animal that lives on campus with me, in my dorm room. I have documentation from 3 certified mental health care providers, asserting that I have severe social phobia, crippling anxiety, and the need for an ESA.

The school has approved my ESA again for next year, but decided that they would not assign me a single-occupant room prior to housing selection - students are assigned a time slot by a lottery system, and select their room from the remaining spaces during that block. I made this request prior to the start of housing selection, as soon as I became aware that my current roommate had elected not to live on campus next year. The school stated that under the FHA, they were only entitled required to allow me to choose a dorm room, despite the no-pets rule, and that they were not required to grant me a single of any kind, despite documentation that I cannot live with a stranger.

So I went through the process, and the only single left - which I was forced to choose - was the smallest floor plan on campus. I have done the math, and by removing all the storage furniture - dresser and wardrobe (no closet) I can at most have 28sqft of floor space for the dog. If I raise the bed, there's not enough room for a ramp at a plausible angle for the dog to use to climb onto the bed, and one of her acts of support is to provide comfort during night-time panic attacks/night terrors, so it's necessary that she be able to get on the bed. Even with the bed lofted, and the remaining furniture of a desk and a single storage unit, there's only 43sqft for the dog, and she's no longer serving one of her primary purposes.

The dog is ~50lbs, 36" tall, 23" long. As far as a I'm aware, to humanely house a dog, you need at least 30sqft of floorspace. Which, again, I have only so long as I loft the bed, which defeats the dog's purpose, and lose the majority of my storage space (which is impractical for a college student with limited other options). I can't even loft the bed and fashion a ramp for the dog, because, according to the math, the ramp would need to be angled at a minimum of 38 degrees which is very steep, especially for an older dog, and is dangerous for her.

I spoke again to the school, and explained this situation further. They restated that they could not have assigned me a single because it wasn't required, and that now there's nothing they can do, because all the rooms have been filled. And while they'll put me on a waitlist for a larger single, I am at the bottom of that list, behind not only other students with disabilities, but able-bodied students and, potentially, and transfers without a residence.

They continue to maintain that they have fully accommodated my disability, and that I can't expect any more "special treatment" from them. However, I feel that they have given the appearance of accommodation, without any follow-through - they've allowed me to have the dog, but not allowed me to have a space in which to humanely house the dog. If I remain assigned to this room, I will not be able to bring my dog to school next year and, if that pattern holds, will suffer a severe break down, become suicidally depressed, and be forced to withdrawal in the middle of the semester, thus putting myself in danger, and losing thousands of dollars in tuition. It's as though the gave a student with a wheelchair a ramp entrance to their room, but the doorway was only a foot wide.

Have the really fulfilled their responsibilities under the law to accommodate a student with a disability, and provide fair housing under the FHA and animal rights laws which detail necessary accommodation?

Asked on 4/10/14, 5:51 pm

1 Answer from Attorneys

Stephen B. Pershing Stephen B. Pershing, Esq.

Hello there, and thanks for this level of detail! Few folks in this predicament would be able to set it down with such precision. You're putting on a clinic about how to take arms against a sea of troubles. Now let's see if by opposing, we can end them.

This will fall under Title II of the ADA. One of the most frequent disputes under the statute is the reasonableness of the accommodation provided. Title II doesn't require the school to give someone with a disability the exact accommodation she requests. The legal question isn't whether the school could have done more; a court will look just at whether what they offered was reasonable. So we have to show it wasn't--and also show that they could have done enough to accommodate you without undue disruption to their "program," which itself can be defined at different levels of generality.

I suspect the school has had problems of this sort before, where students with disabilities need accommodations (yup, sorry school, special treatment is exactly what it is) in dorm room selection. By not accommodating you before the process started, they made their problems ten times worse, because they settled the expectations of scores, maybe hundreds of other students that they would now have to disrupt. So we have to understand that going in.

But there may be other ways to fix this. These problems can be fun, if we think creatively, both inside and outside the box. We'd want to look at the setup carefully--what other rooms would adequately (even if less than ideally) accommodate you, what each of those accommodations would entail for the school, whether there are ways to make this room better (like paying for preferential storage of some kind), whether there's anyone in the world you could room with, whether there's a living arrangement off campus we could require them to pay to put you, which might be more congenial than a crowded dorm anyway, and so on.

There are also other questions, like federal and state education regulations and the availability of administrative remedies. Sometimes the school will insist that you follow an internal grievance process. Most schools have an ADA coordinator; if I were you I'd make an appointment with that person as soon as possible. If there's a formal hearing, you might want to have a lawyer there with you. But overall, and you knew I'd say this!, you definitely need a lawyer, not just a copy of the statute. What I've set down here is just a road map--no one would expect you to navigate it by yourself.

So, to costs of representation. The ADA provides for fee-shifting, meaning that when a person with a disability wins her case in court, the school has to pay her lawyer's fees (we file a motion after we win showing all the hours and tenths of hours and what they were spent on, the court slashes them to shreds, lol, and awards something). That means that fees can be made part of a settlement before suit is filed. What you'd like ideally is for a lawyer to take the case at no cost to you, but most lawyers will accept pure-fee-shifting cases only when they are clear winners, and this one isn't. Plus there can be expenses, chiefly the cost of taking depositions, that the client typically pays up front, and recovers from the defendant along with fees if she wins. That said, we might be able to work out a hybrid arrangement, a discounted hourly fee win or lose, that we could put toward any fee-shifting recovery if we do prevail, plus you would fund the expenses given that your able but impecunious lawyer (that would be me) could not.

I imagine we have a little time, but not much, depending on what we're going to ask them to do. E-mail me back, or call my office, and we can talk it over. The first step would be a formal consult, for which we charge $300 (not refundable, but it too would be part of the fees we seek from the school).

A word about me: I'm a former Va ACLU legal director and U.S. Justice Dept. civil rights lawyer with 25 years' litigation experience. I manage a small private practice in addition to teaching law. I am also a total mushmellow of a dog lover, and I completely get it about the value of an ESA. I will gladly help you if we can work out the terms. I'm rooting for you, whatever you decide. --Steve Pershing.

Stephen B. Pershing, Esq.

The Chavers Firm, LLC

1250 24th St., N.W., Ste. 300

Washington, D.C. 20037

(202) 467-8324

[email protected]

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Answered on 4/11/14, 6:37 am

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