Full Title Name:  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

Creighton University Law Review, “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” authored by Katherine R. Powers, which was published in Vol. 47, Issue 2 (2014), pp. 363-386, reprinted with permission. Copyright 8 1994 by Creighton University.

I. INTRODUCTION

For thousands of years, dogs have served as companions to their human counterparts.[FN 1] Undeniably, people and dogs have a long history together, and as that history continues, so does the expansion of *364 unique legal claims and questions relating to animals.[FN 2] A growing trend among universities across the country is to provide students with access to emotional support animals to alleviate anxiety and stress.[FN 3] However, the right of students to live with emotional support animals on campus has created an issue that intersects housing and disability law.[FN 4] The Fair Housing Act [FN 5] 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.[FN 6] In United States v. University of Nebraska at Kearney,[FN 7] 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.[FN 8] 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?[FN 9] The court answered that it does.[FN 10]

The decision in University of Nebraska at Kearney illustrates two legal concerns.[FN 11] First, the court's analysis under the traditional United States v. Hughes Memorial Home [FN 12] 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.[FN 13] Second, the decision magnifies how the conflicting standards for emotional *365 support animals under the Fair Housing Act and for service animals under the Americans with Disabilities Act [FN 14] have created a coverage gap for housing providers.[FN 15]

University administrators and housing providers must understand how the broadened scope of the Fair Housing Act affects their oversight and potential for liability.[FN 16] 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.[FN 17] On the other, the Department of Justice's deregulation *366 of standards for emotional support animals under the Fair Housing Act has created a coverage gap, leaving administrators relatively powerless.[FN 18] 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.[FN 19] 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.[FN 20]

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.[FN 21] This Article will first review the history of the FHA and how courts have interpreted what a dwelling is under the Act.[FN 22] Then, this Article will consider the broadening definition of dwelling and regulations pertaining to emotional support animals.[FN 23] 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.[FN 24] Finally, this Article will conclude by demonstrating the intersecting regulations in disability *367 and housing law have created a coverage gap, resulting in numerous consequences to housing administrators.[FN 25]

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.[FN 26] 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.[FN 27] In 1974, Congress amended the FHA by adding sex and religion to the list of protected classes.[FN 28] The FHA was again amended in 1988 to protect housing applicants and residents against discrimination on the basis of disability and familial status.[FN 29]

The language of the FHA outlaws discrimination relating to the occupancy, sale or lease of a dwelling.[FN 30] 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.[FN 31] However, the term residence is not defined by the statute.[FN 32] 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.[FN 33]

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 *368 as applied to non-traditional housing.[FN 34] In United States v. Hughes Memorial Home,[FN 35] 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.[FN 36] Hughes involved a racial discrimination allegation against the Hughes Memorial Home, a private, nonsectarian home for children in need.[FN 37] 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.[FN 38] Conversely, the court stated the FHA is not limited to those who sell, finance, or lease residential property.[FN 39] In determining whether the home should be covered by the FHA, the court considered the relationship between the child occupants and the dwelling.[FN 40] The students lived in residences provided by the school, and the average stay was four years.[FN 41] Moreover, the home itself refers to the children as residents.[FN 42] 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.[FN 43]

Citing the Hughes definition, the United States Court of Appeals for the Third Circuit, in United States v. Columbus Country Club,[FN 44] solidified the definition of residence under the FHA using the same two-factor test.[FN 45] The court addressed the issue of whether the owners of a community of summer homes, the Columbus Club, must comply with the FHA.[FN 46] The Columbus Club was an organization formed under the Knights of Columbus, a Catholic men's organization. [FN 47] The nonprofit organization leased bungalows to its members, who were obligated to remain in good standing with the Catholic Church.[FN 48] Dispute arose when the Columbus Club denied membership to a woman *369 because her husband was not a member of the Catholic Church.[FN 49] In its analysis, the court cited Hughes in determining if the FHA applied to the bungalows by critiquing the following factors: (1) whether members intended to return for a significant period; and (2) whether members perceived the spaces as a place to return.[FN 50] In its determination, the court made particular note of the fact that members spent about five months in the bungalows and nearly all members returned to the same bungalow annually.[FN 51] The court also noted that if the FHA was not applicable to seasonal summer homes, like the bungalows in this case, lessors could racially discriminate in the selling or renting of such homes.[FN 52]

C. Expanding the Definition of Dwelling to Non-Traditional Housing

In litigation regarding the coverage of the FHA, courts built on the factors Columbus Country Club's interpretation of the Hughes test in their decisions.[FN 53] In Hovsons, Inc. v. Township of Brick,[FN 54] the United States Court of Appeals for the Third Circuit applied Columbus Country Club's articulation of the two-part test, whether the residents lived there for a significant period of time and viewed the space as place to return to, to determine if a nursing home is a dwelling within the meaning of section 3602(b) of the FHA.[FN 55] Because the elderly residents lived in the facility as a home, the court held that the facility is a dwelling under the FHA.[FN 56] In Lakeside Resort Enterprises v. Board of Supervisors of Palmyra Township,[FN 57] the Third Circuit held a drug and alcohol facility was a dwelling under the FHA.[FN 58] In this case, the court cited the Columbus Country Club two-factor test to determine whether the facility was intended for occupancy for a significant period of time and whether the residents viewed the facility as a place to return.[FN 59] It reasoned that although the average stay was only 14.8 days, that time was still longer than a typical stay in a motel.[FN 60] Similarly, the court concluded the residents viewed the facility as a *370 place to return because of the way in which they treated their home.[FN 61] Because the residents hung pictures on the walls and brought visitors, and despite the fact they were not allowed off the grounds without permission or supervision, they treated the center like a home.[FN 62]

The United States Court of Appeals for the Eleventh Circuit built on the Third Circuit's Columbus Country Club test for residency in the FHA by adding new analytical factors when determining if a halfway house was qualified as a dwelling under the FHA.[FN 63] In Schwarz v. City of Treasure Island, the court used the Columbus Country Club test, but also decided the determinative factors relating to applicability of the FHA would be better analyzed on a spectrum.[FN 64] As part of its analysis, the court compared the difference between a hotel and a home as a determinative factor.[FN 65] The court analyzed the extent to which occupants treated their space like a home, asking whether they cooked, cleaned and did laundry, as well as the length in which residents intended to stay.[FN 66] In applying these principles to the living center in question, the court determined that because the residents of halfway homes stayed for over six weeks, ate meals together, and receiving mail, the two residency factors were met.[FN 67]

In a dispute whether a homeless shelter could make discriminatory choices as applied to its residents based on gender or familial housing, the United States Court of Appeals for the Ninth Circuit neglected to consider whether the FHA applied to a homeless shelter.[FN 68] In Community House, Inc. v. City of Boise, women and families sought an injunction against the defendants for their removal from the shelter, following a change in management that altered a community home's residential policy to men-only.[FN 69] The space in question where roughly seventy-five percent of its inhabitants were disabled, was a low-income, transitional housing unit that offered ten family apartment *371 units and thirty nine-single apartment units.[FN 70] The court rejected the defendants' argument that the men-only policy was a safety precaution to protect vulnerable women and children from an open sleeping environment, and was therefore nondiscriminatory.[FN 71] Further, the defendants asserted the change in policy was one of the reasons why emergency calls to the police department from the shelter had declined, and in fact, all five of the men only missions had in total less than one half of the number of police calls than the former Community House.[FN 72] The court disputed this statistic as it did not take into account the number of residents.[FN 73] The court had little trouble qualifying the space as a “dwelling” under the FHA because it the length of stay was longer than merely overnight and transient.[FN 74]

Conversely, the Ninth Circuit declined to reverse the United States District Court for the District of Idaho's holding that a homeless shelter was not a dwelling covered by the FHA.[FN 75] In Intermountain Fair Housing Council v. Boise Rescue Mission Ministries,[FN 76] the district court considered the following factors in determining whether a residence was a dwelling for occupants who: (1) stayed at a maximum seventeen nights; (2) were generally not allowed visitors; (3) were assigned a bed in a dormitory style room and not guaranteed the same bed each night; (4) were not allowed to personalize their bed area and (5) were required to leave the shelter during the daytime hours.[FN 77] On appeal, the Ninth Circuit affirmed the lower court but declined to dictate whether section 3604(b) of the FHA applied to the shelter in question because the operators fell within the Act's religious exemption.[FN 78]

While the applicability of the FHA to shelters may vary based on the extent of services provided, bed and breakfasts, hotels, and jails have all been determined to fail the factors of the Columbus Country Club test because they were not intended for use as a residence.[FN 79] In *372 Garcia v. Condarco,[FN 80] the United States District Court for the District of New Mexico concluded a city jail was not a dwelling for the purpose of the FHA.[FN 81] Using the Columbus Country Club test, the court concluded that the jail was not intended for use as a residence because the primary purpose of a jail was punishment.[FN 82] Occupants of a jail are subject to strict regulation and have no freedom or choice in their residence; they were ordered there.[FN 83] Thus, a jail's primary purpose directly conflicts with the policy of free choice in housing.[FN 84]

D. Applying the Dwelling Test to Educational Housing

In Franchi v. New Hampton School,85 the United States District Court for the District of New Hampshire determined that a dormitory for students could be considered a dwelling under the FHA.[FN 86] In the case, a student who suffered from an eating disorder sued the private boarding school she attended after the school dismissed her.[FN 87] Plaintiffs brought charges under the Americans with Disabilities Act (“ADA”) and the FHA, among others.[FN 88] The court stated the plaintiffs had not provided any evidence to persuade the court to turn from a handful of courts who had ruled that a dormitory is a dwelling under the Act.[FN 89] Rather, the defendants focused on the Department of Housing and Urban Development's definition of familial status, arguing it was intended to exclude private dormitories.[FN 90] The court disagreed, reasoning that the statutory definition for familial status can include a person under the age of eighteen protected.[FN 91] The defendants also argued that, because the ability to live in the housing was associated with the individual's entitlement to attend the educational institution, the FHA should not apply.[FN 92] However, the court recognized the school failed to make a valid argument against applying the FHA, in that by defining housing at educational institutions as dwellings, there is potential *373 interference with a school's educational mission.[FN 93] For instance, the categorization of dorm as a dwelling may force a single-sex boarding school to open its doors to members of the opposite sex.[FN 94]

The United States District Court for the Eastern District of Michigan held that a non-degree seeking student enrolled in a continuing learning program was entitled to on-campus housing.[FN 95] In Fialka-Feldman v. Oakland University Board of Trustees,[FN 96] a twenty-four year old claimed he was denied university housing and sued under the FHA and ADA.[FN 97] While the topic of the applicability of FHA was not considered, the defendants argued that allowing non-degree seeking students to live in housing would fundamentally alter the culture of on-campus housing and the academic nature of the housing program.[FN 98] The district court considered the notion that courts should defer to the judgment of an educational institution's academic decisions, but questioned its relation to housing.[FN 99] The court found this evidence unconvincing, noting that this request was not intended to alter the nature of the housing program, but instead to waive the policy for one student.[FN 100] In addition, the defendants failed to show that the enrollment of non-degree seeking students would harm the academic experience of degree-seeking students when cohabiting in the same dormitory.[FN 101]

The United States District Court for the District of Nebraska held an off-campus university apartment must comply with FHA laws.[FN 102] In United States v. University of Nebraska at Kearney,[FN 103] Brittany Hamilton, a University of Nebraska at Kearney student, was prohibited from living with her emotional support dog.[FN 104] Hamilton had requested accommodation from the university and provided information to show she suffered from anxiety and depression, but was denied because her dorm, an off-campus apartment style unit, had a no-pets policy. [FN 105] The university argued that its dormitories, including the *374 building of which Hamilton was a resident, should not be subject to the FHA because it is temporary and its primary purpose is to facilitate education.[FN 106]

The United States Court of Appeals for the Eighth Circuit had not considered how residence should be defined under the FHA.[FN 107] The district court applied the factors of the Hughes test.[FN 108] The court rejected the defendants' argument that dorms are temporary housing subject to enrollment in the university and by nature serves an educational purpose.[FN 109] The court reasoned that the temporary nature of a dormitory does not prevent it from qualifying as a dwelling; otherwise, any housing in which a resident at some point intends to leave could avoid the scope of Fair Housing.[FN 110] In further support of their conclusion, the court determined that the students viewed their dorms as places to return, as they brought their own furniture and clean and maintain their apartments.[FN 111] Because the court determined University of Nebraska at Kearney's residences, although temporary, fit under the meaning of the FHA, the court denied the university defendant's motion for summary judgment and concluded dorms qualify as dwellings under the meaning of the Act.[FN 112]

E. Distinguishing Disability Under the Fair Housing Act

Under the Fair Housing Act, handicap is defined as a physical or mental impairment that substantially limits a person's major life activities, paired with either a record or acknowledgment of the impairment.[FN 113] As defined in the statute, a physical or mental impairment is one which substantially limits one or more of a person's major life activities.[FN 114] Though the Act uses the term handicap, the term is interchangeable with disability.[FN 115] Further, the Americans with *375 Disabilities Act is modeled off the same definition of disability as in the FHA.[FN 116] In 2008, Congress passed the Americans with Disabilities Amendment Act (ADAA).[FN 117] Though the ADAA maintains the basic definition of disabled, the Act expanded the definition of major life activities by including many new categories, including learning, communicating, reading and working.[FN 118]

The Department of Justice's final rule on the regulations under the ADA defines a service animal as a dog that is individually trained to perform tasks or to do work for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.[FN 119] While the Department abstained from standardizing training requirements for these animals, the only species that qualifies as a service animal is a dog.[FN 120] Performing work for an individual with disabilities may include an animal that has the ability a person with a psychiatric disorder by sensing when the person is about to have an episode and responds by nudging, barking, or leading the individual away from the location inciting the episode.[FN 121] The Department specifically distinguished this type of service from a trained animal as opposed to an untrained emotional support animal whose presence can somehow affect a person's disability.[FN 122]

While the ADA provides regulations for service animals, the same standard does not apply under the FHA.[FN 123] The standards that apply to a service animal under the ADA are more stringent than the FHA standards.[FN 124] Unlike the ADA, the FHA does not define service animals *376 or limit the acceptability of animals providing physical and emotional assistance.[FN 125] Under the FHA, species other than dogs, with or without training, and animals that provide emotional support or therapy are recognized as acceptance assistance animals.[FN 126] The reasoning behind this distinction is that the FHA directs housing facilitators to provide equal accommodations for the disabled in order to afford equal opportunity to use and enjoy a dwelling.[FN 127] The only regulation the Department of Justice provided, under the FHA, states that the animal must be necessary to afford a disabled person equal opportunity for use and enjoyment of his or her dwelling.[FN 128] If that requirement is met, a housing facilitator must provide a reasonable accommodation for the animal, unless the facilitator can prove that doing so would impose an undue financial or administrative burden or significantly interfere with the purpose of that housing.[FN 129]

The United States Department for Housing and Urban Development (“HUD”) issued a memorandum to clarify the differences between service animals under the ADA and assistance animals under the FHA.[FN 130] The memorandum emphasized that both laws require reasonable accommodation when a person with a disability seeks to use an assistance animal in an environment where residents are prohibited from having pets.[FN 131] The Department also emphasized that assistance animals are not pets; they work or provide tasks for a person with a disability or provide emotional support alleviating one or more symptoms of a person's disability.[FN 132] However, for purposes of the FHA, assistance animals do not require individual training or certification as a service animal would under the ADA.[FN 133] Furthermore, the HUD specifically noted that, under the FHA, there should be no limitation regarding the size, breed, and weight.[FN 134] A pre-determination that an assistance animal would pose a direct threat of harm or *377 cause substantial property damage is impermissible.[FN 135] There must be no speculation of fear on the type of harm or damage an assistance animal may cause; the conditions and restrictions must be based on actual knowledge of such.[FN 136]

Additionally, the memorandum explained that if there were situations in which the ADA and the FHA may apply simultaneously, such as housing associated with a university, the housing provider should always apply the standards for service dogs under the ADA first.[FN 137] If the animal does standard for service animal under the ADA guidelines, it must be permitted to accompany the individual through all areas of the facility, provided it is not a threat to health or safety of others.[FN 138] If the animal does not meet the standard under the ADA, the housing evaluator must permit any reasonable accommodation request for emotional assistance animals under the ADA.[FN 139] The memorandum does not clarify, however, how an emotional assistance animal will be treated in areas of a university facility that include residences and areas that are normally understood as places of public accommodation.[FN 140]

III. ARGUMENT

A. The Current Test For Residence Under The FHA Should Be Re-Focused

1. The Hughes Test for Residence Is No Longer Necessary

In determining whether a space qualifies as a dwelling under the Fair Housing Act (“FHA”), courts have almost uniformly used or built from the Hughes141 two-factor test.142 As articulated by the United States Court of Appeals for the Third Circuit in United States v. Columbus Country Club,[FN 143] the Hughes Test involves a determination of whether: (1) the length of time spent in the place is significant and (2) *378 there is an intention to return to the place.[FN 144] The test is adequate to define clear applicable housing types under the act: homes in residential neighborhoods, condominiums and apartments would be obvious examples of the types of housing that would apply.[FN 145] However, the test does not apply as clearly or as effectively in evaluation of less traditional housing, such as motels, homeless shelters, transitional housing, and dormitories.[FN 146] As courts have dealt with these issues in litigation, relying on the ordinary definition of residence and interpreting it through the two factor test has not adequately answered whether these alternative housing structures should apply under the test, and some courts remain reluctant to address how they should apply in all situations.[FN 147]

 With the exception of homeless shelters, the only temporary housing types that have failed the significant period of time factor of the Hughes test are hotels and bed and breakfasts.[FN 148] All other temporary *379 housing, such as dormitories for students in school, seasonal homes for migrant workers, and vacation homes and bungalows, have been deemed to house residents long enough to survive the significant period of time factor.[FN 149] In comparison, when determining whether a homeless shelter is a dwelling under the FHA, rather than using the significant period of time test to push the shelters in the direction of coverage, courts relied on the contextual factors surrounding the home.[FN 150] In Lakeside Resort Enterprises, the United States Court of Appeals for the Third Circuit concluded a treatment facility qualified as a dwelling under the FHA when the average length of stay was only 14.8 days.[FN 151] In contrast, in Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, residents of a homeless shelter could stay a maximum of seventeen days, but the court qualify the shelter as a dwelling.[FN 152] In Intermountain, the court relied on contextual factors, determining the space was not residential because the guests were not guaranteed the same bed each night.[FN 153]

Some of the above contextual factors could be considered as part of the second factor in the Hughes test, the intention to return, has produced vague results.[FN 154] The intent to return element produces a confusing effect for courts to evaluate.[FN 155] How could a court determine whether a person visiting an overnight shelter had the “intent to return” to the shelter when a person is subject to strict rules and regulations regarding personal belongings and the cleanliness of their living *380 space?[FN 156] In the application to the University of Nebraska at Kearney, the defending university argued that students did not have an intent to return because each they were not guaranteed the same dorm every school year.[FN 157] The court rejected that argument, comparing it with any residential lease, which will inevitably end at some point in time.[FN 158]

Alternatively, some courts analyzed the intent to return on a spectrum based on the treatment of the occupant's space.[FN 159] For example, in Schwarz v. City of Treasure Island, the court determined that because the occupants of the residential treatment facility cooked and did their own laundry, they treated the space like a home.[FN 160]

2. Articulating a New Factor: Primary Purpose of Stay

While the two-factor test does advance characteristics of housing, another factor should be considered in determining if a dwelling is a residence: the purpose of stay.[FN 161] The court in Garcia v. Condarco[FN 162] determined that a jail does not qualify as a “dwelling” under the FHA.[FN 163] The court further opined that the primary purpose of a jail was to service as a public deterrent for future criminals.[FN 164] In its discussion, the court compared the purpose of the FHA with the purpose of a prison and determined that the purpose of the FHA is to provide freedom of housing, and that the purpose of the jail is the antithesis of just that: Restriction in housing that is not based in choice.[FN 165] After Garcia, courts rely on this analysis to distinguish the concept of dwelling from the concept of prison; however, but no court has articulated primary purpose of stay as an additional factor.[FN 166]

*381 If courts added the purpose of stay as an element, the test for significant period of time and intent to return would be further contextualized.[FN 167] With the supplementation of the Hughes factors, courts could more readily determine whether housing determination fits within the scope of the FHA.[FN 168] This is consistent with prior decisions. For example, in University of Nebraska at Kearney, the university argued the primary purpose for housing was to attend the university.[FN 169] Further, the university argued that before the student's enrollment in the university, the housing to the student would be unavailable.[FN 170] The university attempted to connect their case to Garcia by arguing the strict guidelines of university housing make it less residential, but the court was not pleased with its analogizing university student dormitories to a jail.[FN 171] What perhaps would have been more persuasive would have been to illustrate that the university is a housing provider second to its mission as an educator.[FN 172]

B. The Application of the FHA to Dorms Illustrates The Problematic Coverage Gap in Disability and Housing Law

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

The decision in United States v. University of Nebraska at Kearney[FN 173] decision has been discussed by university administrators, educational *382 commentators and the legal community alike.[FN 174] The primary concern with the application of the Fair Housing Act to university housing correlates to the Department of Justice's deregulation of emotional support animals.[FN 175] It emphasized that a service animal is not a pet; yet, there are important differences between animals that qualify as service animals under the ADA and animals that serve as assistant animals under the FHA.[FN 176] While under the ADA, service animals are limited to dogs, and in the correct context, miniature horses, the Department of Justice does not specify a breed that the support animals must be or require any training for legally acceptable support animals.[FN 177] HUD's reasoning in this decision is based on the idea that in the comfort of their own home, the disabled are entitled to accommodations that would allow them to use and enjoy their dwelling as they would but for their disability.[FN 178]

Scientific evidence supports the fact that for many people suffering with a mental or physical handicap, whether it is the presence of seizures or severe depression, an animal's therapeutic and active engagement with the person provides relief.[FN 179] Furthermore, research indicates more college students on campus suffer from anxiety and depression, and university health administrators often overlook these diagnoses.[FN 180] However, there is no standard for emotional support animals under the FHA.[FN 181] According to the Department of Housing and Urban Development (“HUD”), a university housing administrator has no authority to question the safety of the animal based on past experience with that breed, cannot question an animal's potential direct threat of safety to other students based on the breed, size, or weight of the animal alone, and must only rely on an animal's past *383 behavior, which have to come from the owner.[FN 182] From an administrative perspective, potential hazards affect public safety and the safety of other animal residents.[FN 183] From a public health perspective, administrators must confront the possible threats of allergic reactions, phobias, biting, cleanliness, and abuse and neglect of the animal.[FN 184] The University of Nebraska-Lincoln pet policy overview states that individuals with disabilities are at an increased risk of these hazards, including parasites, viruses, bacteria, and other viruses.[FN 185] The policy also notes the potential destructive nature of animals to university grounds, buildings and property.[FN 186]

The application of the FHA to educational housing illustrates a gap in coverage between housing and disability law.[FN 187] The regulations for service animals and therapy animals are overlapping and confusing because under the FHA, there are training qualifications for emotional assistance, while under the ADA, service dogs are trained and regulated.[FN 188] The overlapping and conflicting nature of these two statutes creates an institutional challenge, resulting in a coverage gap.[FN 189] Assistance animals under the FHA will not necessarily qualify as service animals under the ADA.[FN 190] Places of public access require accommodation for service animals, but not emotional support animals.[FN 191] For this reason, students using emotional support animals do not receive the same entitlement that a service animal does under the ADA if they try to bring their animal out of his or her residential *384 space.[FN 192] While their service animal is legal and welcomed in their rooms, administrators are not legally required to allow assistant animals in public places, which could include residential cafeterias, classrooms, or university grounds.[FN 193] Considering some of these places of public accommodation may actually be physically located in a residence hall or in a residence hall, the question of where these places of accommodation begin and end is unclear.[FN 194] For example, at the University of Nebraska-Lincoln, five out of the eleven dining services locations are physically located in residence halls.[FN 195] Legally, a restaurant or dining hall would be considered covered by the ADA and not the FHA.[FN 196] However, because these places are attached to residence halls, should they be included in the understanding of common areas of a residence?[FN 197] The same problem could occur with any public space attached to a residence that is used by more than just residents of the building.[FN 198]

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

Universities who provide single-sex housing or specialized housing on the basis of religion or familial status must evaluate their housing policies under the FHA.[FN 199] If coeducational institutions offer single-sex residence hall, it is unclear if the exclusion of one sex in *385 application for housing create liability under the FHA.[FN 200] Arguably, the application of the FHA will create more rights for students at the university.[FN 201] At the University of Nebraska-Lincoln, for example, students who are legally married in Nebraska or single custodial parents are eligible to live in the family-style dormitories.[FN 202] A person who is not a custodial parent or whose same-sex marriage is not recognized by Nebraska should now have the right to demand housing in family style dormitories at the University of Nebraska-Lincoln under the FHA.[FN 203] In addition, more public universities are providing housing based on religious affiliations.[FN 204] It is unclear the acceptance or denial of housing in this type of program interpreted as discrimination on the basis of religion and thus in violation of the FHA.[FN 205] Furthermore, the refusal to accommodate a student with religious-based housing application be recognized may be a right under the FHA[FN 206]

IV. CONCLUSION

In University of Nebraska at Kearney,[FN 207] the United States District Court for the District of Nebraska held that dormitories should qualify as dwellings under the Fair Housing Act (“FHA”).[FN 208] In light of judicial and regulatory precedent, the court applied the current *386 Hughes test to define dwellings to the facts at issue.[FN 209] However, the decision in University of Nebraska Kearney, the court's decision illustrates that the two-factor test for dwelling is perhaps in need of revision.[FN 210] With the exception of hotels, courts concluded every other nontraditional housing accommodation in question is subject to the FHA, thus creating overbroad coverage.[FN 211] In regard to residents using therapy animals, the decision in University of Nebraska at Kearney illustrates the gap in coverage between the housing and disability law that that leaves administrators in the area of the unknown.[FN 212]

Two options should be considered: First, courts could consider the purpose of stay as a relevant, additional factor to the United States v. Hughes Memorial Home[FN 213] test. Narrowing the applicability of dwelling under the FHA would solve the coverage gap problem in regard to university housing as it would return administrators back to the standard of the Americans with Disabilities Act. A regression, however, may be interpreted among students as harsh and unsupportive. Second, the Department of Housing and Urban Development should strengthen guidelines for emotional support animals and consider the implications of animals outside of residences in places like dining halls in dormitories. One thing, however, is certain: in light of University of Nebraska at Kearney, universities and any provider of institutional housing should consider making proactive moves by issuing guidelines and addressing the use of emotional support animals outside of residences. By incorporating proactive guidelines into individual housing procedures, administrators and residents alike will find balance in the intersection of policy and law.

Footnotes

[FN 1] How Dogs Evolved into Our Best Friends: Fresh Air, Both Online and Off, NPR (Nov. 8, 2011, 12:01 PM), http://www.npr.org/2011/11/08/142100653/how-dogs-evolved-into-our-best-friends.

[FN 2] How Dogs Evolved into Our Best Friends, supra note 1.

[FN 3] Allie Grasgreen, Pets or Therapy Animals?, Inside Higher Ed (Dec. 13, 2011), http://www.insidehighered.com/news/2011/12/13/lawsuit-over-therapy-dog-raises-questions-about-university-housing.

[FN 4] See infra note 14 and accompanying text.

[FN 5] 42 U.S.C. § 3601 (2014).

[FN 6] Compare 24 C.F.R. § 100.204 (1996) (declaring the refusal to accommodate rules or policies to handicapped person in use of a dwelling unlawful), and 24 C.F.R. § 100.201 (2008) (outlining which providers of housing must accommodate with the standards under the Fair Housing Act), with 28 C.F.R. § 35.104, App. A (2014). “[I]ndividuals with disabilities who have the legal right under the Fair Housing Act (FHAct) to use certain animals in their homes as a reasonable accommodation to their disabilities have assumed that their animals also qualify under the ADA. This is not necessarily the case ....” Id.

[FN 7] 940 F. Supp. 2d 974 (D. Neb. 2013).

[FN 8] United States v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 975 (D. Neb. 2013).

[FN 9] Univ. of Neb. at Kearney, 940 F. Supp. 2d at 975.

[FN 10] Id. at 981.

[FN 11] See infra notes 12-15.

[FN 12] 396 F. Supp. 544 (W.D. Va. 1975).

[FN 13] Compare United States v. Hughes Mem'l Home, 396 F. Supp. 544, 548-49 (W.D. Va. 1975) (articulating the test for dwelling to be determined by the length of time the resident spent in the space and if the resident viewed the space as a place to return), with Karen Wong, Comment, Narrowing the Definition of “Dwelling” Under the Fair Housing Act, 56 UCLA L. Rev. 1867 (2009) (arguing to narrow the definition of dwelling under the Fair Housing Act as applied to homeless shelters, tent cities and other nontraditional forms of housing by proposing a new factor to the test).

[FN 14] Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (1990).

[FN 15] Compare 24 C.F.R. § 100.201 (2008) (including dormitories in the definition of dwelling), with Memorandum from John Trasviña, Assistant Secretary for Fair Housing and Equal Opportunity, to HUD Regional and Field Office Directors of Public and Indian Housing (PIH); Housing; Community Planning and Development (CDP), Fair Housing and Equal Opportunity; and Regional Counsel; CPD, PIH and Housing Program Providers, U.S. Department of Housing and Urban Development, (Apr. 24, 2013). available at http:// www.fairhousingnc.org/wp-content/uploads/2013/05/HUD-FHEO-2013-01-Service-Animals-and-Assistance-Animals-PWD-in-Housing-and-HUD-funded-programs.pdf (instructing housing administrators that in situations, such as “housing associated with a university or other places of education,” providers of housing must meet both standards for accommodation under the Fair Housing Act and the service animal standards under the Americans with Disabilities Act, but failing to distinguish where housing begins or ends).

[FN 16] Mark Bauman, Denise L. Davidson, Michael C. Sachs, & Tegan Kotarski, Service, Comfort or Emotional Support? The Evolution of Disability Law and Campus Housing, 40 The Journal of College and University Student Housing, 150-153 (2013), available at http://www.nxtbook.com/nxtbooks/acuho/journal_ vol39no2/#/136 (discussing how recent challenges such as Univ. of Neb. at Kearney will affect housing administrators and universities and advocating administrators to address open-ended questions concerning accommodation and compliance proactively). See generally, e.g., Grasgreen, supra note 3 (discussing the lawsuit at the Univ. of Nebraska at Kearney and the potential implications for future accommodations); Joe Palazzolo, Dorms Must Accept ‘Emotional Support’ Dogs, HUD says, Wall Street Journal Law Blog (May 16, 2013), http://blogs.wsj.com/law/2013/05/16/dorms-must-accept-emotional-support-dogs-hud-says/ (explaining why universities have an obligation to allow for emotional support animals); Laura Rothstein, New Legal Questions About Disability Demand Colleges' Attention, The Chronicle of Higher Education (Aug. 5, 2013), http://chronicle.com/article/New-Legal-Questions-About/140787/ (highlighting the yet-unknown effects of the Univ. of Neb. Kearney decision for university administrators); Sara Lipka, Federal Case Over Banning a Student's Therapy Dog Illustrates Thicket of Disability Rules, THE Chronicle of Higher Education (Oct. 11, 2011), http://chronicle.com/article/Federal-Case-Over-Banning-a/129349/?sid=at&utm_source=at&utm_medium=en, (reviewing the problems with disabilities and housing laws).

[FN 17] See generally, Depression and College Students, The National Institute of Mental Health, http:// www.nimh.nih.gov/health/publications/depression-and-college-students/index.shtml (last accessed Jan. 23, 2014) (reporting that 30 percent of college students suffered from depression so severe it was difficult to function); Marla Paul, Universities Miss Chance to Identify Depressed Students, Northwestern University, Jan. 10, 2011, (http:// www.northwestern.edu/newscenter/stories/2011/01/depression-university-students.html (determining that one out of every four or five college students visiting a university health center for a routine cold is depressed, but most schools overlook the diagnosis); Alan Reifman, Ph.D., Serious Psychological Disorders in College Students, Psychology Today, Nov. 1, 2011 (discussing intervention and the best solutions for combating mental health for college students); Scott A. Ginder &Janice E. Kelly-Reid, Enrollment in Postsecondary Institutions, Fall 2012; Financial Statistics, Fiscal Year 2012; Graduation Rates, Selected Cohorts, 2004-09; and Employees in Postsecondary Institutions, Fall 2012, NATIONAL CENTER FOR EDUCATION STATISTICS, Dec. 2013, http:// nces.ed.gov/pubs2013/2013183.pdf. (providing that 18.2 million undergraduates and 2.9 million graduate students enrolled in post-secondary universities in the fall of 2012).

[FN 18] Compare 24 C.F.R. § 35.104 (stating that the definition of service animal excludes emotional support animals), with Trasviña, supra note 12, (noting that where the Fair Housing Act and the Americans with Disabilities Act overlap, administrators must comply with both standards, but failing to address where the scope of each law begins and ends in university housing).

[FN 19] See Wong, supra note 13, at 1888 (arguing for a narrowing of the definition of dwelling); United States v. Hughes Mem'l Home, 396 F. Supp. 544 (W.D. Va. 1975) (applying the ordinary meaning of the term residence to determine if the space in question was one in which a person spent a significant period of time and more than a temporary visit).

[FN 20] See Trasviña, supra note 15, at 1 (failing to specify where housing as part of a university begins or ends in relation to compliance with the Americans with Disabilities Act and the Fair Housing Act).

[FN 21] See infra notes 137-202 and accompanying text.

[FN 22] See infra notes 26-52 and accompanying text.

[FN 23] See infra notes 52-136 and accompanying text.

[FN 24] See infra notes 137-168 and accompanying text.

[FN 25] See infra notes 169-208 and accompanying text.

[FN 26] 42 U.S.C. § 3601.

[FN 27] Id. § 3604(a)-(b).

[FN 28] Nondiscrimination in Programs and Activities Receiving Assistance Under Title I of the Housing And Community Development Act Of 1974, 24 C.F.R. § 6.1 (2013). The purpose of the title was to incorporate sex and religion into the classes protected by the FHA, implementing provisions of 42 U.S.C. § 5309, known as the Housing and Community Development Act of 1974. Id.

[FN 29] Fair Housing Amendments Act of 1988, 24 C.F.R. 100.1 (2013).

[FN 30] 42 U.S.C. § 3604.

[FN 31] 42 U.S.C. § 3602(b).

[FN 32] See id. (failing to include the definition of residence).

[FN 33] Robert G. Schwemm, Housing Discrimination Law and Litigation § 9:2 (Thompson Reuters) (2013).

[FN 34] See United States v. Hughes Mem'l Home, 396 F. Supp. 544 (W.D. Va. 1975) (applying the ordinary meaning of the term residence).

[FN 35] 396 F. Supp. 544 (W.D. Va. 1975)

[FN 36] Hughes, 396 F. Supp. at 548-549.

[FN 37] Id. at 547.

[FN 38] Id. at 548.

[FN 39] Id. at 549. The court cited the applicable provision of 42 U.S.C. § 3604(a) of the FHA, which outlaws actions that may otherwise make it unlawful to “otherwise make unavailable or deny a dwelling to any person because of race, color, religion, or national origin.” Id.

[FN 40] Id. at 549.

[FN 41] Id. at 547.

[FN 42] Id. at 549.

[FN 43] Id.

[FN 44] 915 F.2d 877 (3d. Cir. 1990).

[FN 45] United States v. Columbus Country Club, 915 F.2d 877, 881 (3rd. Cir. 1990).

[FN 46] Columbus Country Club, 915 F.2d at 878-79.

[FN 47] Id. at 878-79.

[FN 48] Id. at 879.

[FN 49] Id. at 879-80.

[FN 50] Id. at 881.

[FN 51] Id.

[FN 52] Id.

[FN 53] See infra notes 54-58.

[FN 54] 89 F.3d 1096 (3rd Cir. 1996).

[FN 55] Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096, 1102 (3d Cir. 1996).

[FN 56] Hovsons, Inc., 89 F.3d at 1102. The residents “very often live there for the rest of their lives.” Id.

[FN 57] 455 F.3d 154 (3d Cir. 2006).

[FN 58] Lakeside Resort Enterprises, LP v. Board of Supervisors of Palmyra Twp., 455 F.3d 154, 158 (3d Cir. 2006).

[FN 59] Lakeside Resort Enterprises, 455 F.3d at 158.

[FN 60] Id. at 158.

[FN 61] Id. at 159-160.

[FN 62] Id. at 160.

[FN 63] See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008) (considering how the residents treated their home in determining dwelling). Id.

[FN 64] Schwarz, 544 F.3d at 1214.

[FN 65] Id. at 1214-1215. See also Patel v. Holley House Motels, 483 F. Supp. 374, 382 (S.D. Ala. 1979) (determining hotel is a public accommodation and not occupied, designed or intended for use as a residence; and therefore, not a “dwelling” under the FHA); Robinson v. 12 Lofts Realty, Inc. 610 F.2d 1032 (2d Cir. 1979) (reasoning a cooperative apartment building is intended for occupancy and clearly under the realm of the FHA); Stewart B. McKinny Foun., Inc. v. Town and Plan Zoning Com'n of Town of Fairfield, 790 F. Supp. 1197, 1221-1222 (D. Conn. 1992) (discussing why the court has no need to address whether a house to be occupied by a community of AIDS patients qualifies as a dwelling under the FHA).

[FN 66] Schwarz, 544 F.3d at 1214-15.

[FN 67] Id. at 1215.

[FN 68] Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1047-48 (9th Cir. 2006).

[FN 69] Cmty. House, Inc., 490 F.3d at 1045.

[FN 70] Id. at 1046.

[FN 71] Id. at 1051.

[FN 72] Id.

[FN 73] Id.

[FN 74] Cmty. House, Inc., 490 F.3d at 1046 n. 2.

[FN 75] Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 717 F. Supp. 2d 1101, 1111 (D. Idaho 2010).

[FN 76] 717 F. Supp. 2d 1101 (D. Idaho 2010).

[FN 77] Intermountain, 717 F. Supp. 2d at 1111-12.

[FN 78] Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 657 F.3d 988, 995 (9th Cir. 2011).

[FN 79] Compare Cmty. House, Inc., 490 F.3d at 1046 n. 2. (concluding the homeless shelter was a dwelling for the purpose of the FHA), and Intermountain, 717 F. Supp. at 1111 (holding a homeless shelter was not a dwelling for the purpose of the FHA), with Patel v. Holley House Motels, 483 F. Supp. 374, 381 (S.D. Ala. 1979) (a motel is a not a “dwelling” under the FHA), and Amazing Grace Bed & Breakfast v. Blackmun, CIV.A.09-0298-WS-N, 2009 WL 4730729, *4 (S.D. Ala. Nov. 30, 2009). (“As a matter of law, the bed and breakfast is not a ‘dwelling.”’) Id.

[FN 80] 114 F. Supp. 2d 1158 (D. N.M. 2000).

[FN 81] Garcia v. Condarco, 114 F. Supp. 2d 1158, 1162 (D. N.M. 2000).

[FN 82] Garcia, 114 F. Supp. 2d at 1162.

[FN 83] Id.

[FN 84] Id.

[FN 85] 656 F. Supp. 2d 252 (N.H. 2009).

[FN 86] Franchi v. New Hampton School, 656 F. Supp 2d 252, 260 (N.H. 2009).

[FN 87] Id. at 254, 256.

[FN 88] Franchi, 656 F. Supp. 2d at 256 (including Rehabilitation Act, Education Amendments Act, breach of contract, breach of fiduciary duty, and negligence claims).

[FN 89] Id.at 260.

[FN 90] Id.

[FN 91] Id.

[FN 92] Id. at 261.

[FN 93] Id.

[FN 94] Id.

[FN 95] Fialka-Feldman v. Oakland Univ. Bd. Of Trus., 678 F. Supp. 2d 576, 587-88 (E.D. Mich. 2009).

[FN 96] 678 F. Supp. 2d 576(E.D. Mich. 2009).

[FN 97] Fialka-Feldman, 678 F. Supp. 2d at 578-79.

[FN 98] Id. at 585.

[FN 99] Id. at 585-86. (citing Zukle v. Regents of University of California, that courts are ill-equipped to judge academic performance). 166 F.3d 1041, 1047 (9th Cir. 1999).

[FN 100] Fialka-Feldman, 678 F. Supp. 2d. at 586.

[FN 101] Id.

[FN 102] United States v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 983 (D. Neb. 2013).

[FN 103] 940 F. Supp. 2d 974 (D. Neb. 2013).

[FN 104] Id. at 975.

[FN 105] Id. at 977.

[FN 106] Id. at 980. See also Admission Requirements, Univ. of Neb. at Kearney, Kearney, http://www.unk.edu/undergraduate.aspx?Id.=1419 (last visited Jan. 24, 2014) (outlining the academic requirements necessary to maintain housing at the university); Terms and Conditions of 2013-2014 Housing Contract, Univ. of Neb. at Kearney, Kearney, http://www.unk.edu/offices/reslife/Future_ Terms_of_Housing_Contract/#Student_Responsiblity (last visited Jan. 24, 2014) (displaying the terms and conditions of university housing).

[FN 107] Id. at 977.

[FN 108] Id. (citing Schwarz v. City of Treasure Island 544 F.3d 1201, 1214 (11th Cir. 2008)); Lakeside Resort Enters., 455 F.3d at 157; Hughes Mem'l Home, 396 F. Supp. at 549).

[FN 109] Id. at 979-80.

[FN 110] Id. at 980.

[FN 111] Id. at 976, 979.

[FN 112] Id. at 982.

[FN 113] 42 U.S.C. § 3602(h).

[FN 114] Id.

[FN 115] U. S. Dep't of Hous. and Urban Dev. and the Dep't of Justice, Reasonable Accommodations under the Fair Housing Act, pg. 1., n.2,(May 17, 2004), http://www.hud.gov/offices/fheo/library/huddojstatement.pdf (citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (noting the “‘disability’ in the Americans with Disabilities Act is drawn almost verbatim ‘from the definition of ‘handicap’ contained in the Fair Housing Amendments Act of 1988.”')).

[FN 116] Department of Housing and Urban Development and the Department of Justice, supra, note 115.

[FN 117] Americans with Disabilities Amendment Act, 42 U.S.C. § 12101 (2008).

[FN 118] The ADA Amendments Act of 2008: Frequently Asked Questions, Office of Federal Contract Compliance Programs, http:// www.dol.gov/ofccp/regs/compliance/faqs/ADAfaqs.htm#Q4.

[FN 119] 28 C.F.R. § 35.104 App. A; Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56, 164, 192 (Sept. 10, 2010) (to be codified as 28 C.F.R. pt. 35) [hereinafter, Nondiscrimination].

[FN 120] Nondiscrimination, supra note 119, at 56,116.

[FN 121] Id. at 56, 193.

[FN 122] Id. at 56,194. “The proposed text in § 35.104 provided that ‘[a] nimals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or to promote emotional well-being are not service animals.”’ Id. (quoting Nondiscrimination on the Basis of Disability in State and Local Government Services, 73 Fed. Reg. 34,466, 34,504. (June 17, 2008) (to be codified at 28 C.F.R. part 35)).

[FN 123] Id.

[FN 124] See id. (stating that under the ADA, a service animal must be trained, while under the Fair Housing Act, animals do not have size or breed limitations and do not require any formal training).

[FN 125] Id.

[FN 126] Id. “In some cases, the right of an individual to have an animal under the FHAct may conflict with State or local laws that prohibit all individuals, with or without disabilities, from owning a particular species. However, in this circumstance, an individual who wishes to request a reasonable modification of the State or local law must do so under the FHAct, not the ADA.” Id.

[FN 127] Id. The lack of regulation of species applies so long as the animal does not pose a threat of direct harm. Id.

[FN 128] Id. at 56,195.

[FN 129] Id. at 56,194.

[FN 130] Trasviña, supra note 15, at 1.

[FN 131] Id. The stated purpose was to “explain(s) certain obligations of housing providers under the Fair Housing Act (FHAct), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with the Disabilities Act (ADA) with respect to animals that provide assistance to individuals with disabilities.” Id.

[FN 132] Id. at 2.

[FN 133] Id.

[FN 134] Id. at 3.

[FN 135] Id. (noting a determination that a service animal imposes a direct threat must be based on the specific animal's actual conduct.)

[FN 136] Id. Individualized assessments rely on “objective evidence about the specific animal's actual conduct - not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused. Id.

[FN 137] Id. at 4.

[FN 138] Id.

[FN 139] Id. at 2,4.

[FN 140] See id. at 1-4 (failing to include information on how an animal who does not meet the standard under the ADA will be reconciled in areas where residence is not clearly defined).

[FN 141] 196 F. Supp. 544(W.D. Va. 1975).

[FN 142] See Schwemm, supra note 33 (noting the Hughes Memorial definition of residence was an early and influential decision relating to determining the definition of residence under the FHA).

[FN 143] 915 F.2d 877 (3d Cir. 1990).

[FN 144] See United States v. Columbus Country Club, 915 F.2d 877, 881 (3d Cir. 1990) (holding that the central inquiry was “whether the defendants' annual members intend to remain in the bungalows for any significant period of time and whether they view their bungalows as a place to return to.” See also, United States v. Hughes Mem'l Home, 396 F. Supp. 544, 549 (W.D. Va. 1975) (originally using the Webster's Third New International Dictionary).

[FN 145] See generally Michael A. Zizka, Timonty S. Hollister, Marcella Larsen & Patricia E. Curtin, State and Local Government Land Use Liability § 16:3 (Westlaw, 2013) (suggesting the lack of definition of residence leaves into question homeless shelters, jails, and nursing homes).

[FN 146] See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1046 (9th Cir. 2007) (declining to address whether the Fair Housing Act applies to all homeless shelters); Lakeside Resort Enters., L.P. v. Bd. of Supervisors of Palmyra Twp., 455 F.3d 154, 160 (3d Cir. 2006) (holding that a facility intended as drug treatment facility is a dwelling under the Fair Housing Act, because it was intended to house people for a significant amount of time, and testimony showed that people staying there treated it as their home); Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir. 2008) (disagreeing with the district court's decision that the stay of the residence was too short for the halfway houses to be a dwelling and remanding on another issue); Lauer Farms, Inc. v. Waushara Cnty. Bd. of Adjustment, 986 F. Supp. 544 (E.D. Wis. 1997) (determining that the Fair Housing Act should apply to a dwelling for which migrant workers is within the meaning of welling under the Act); United States v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 982 (D. Neb. 2013) (stating that University of Nebraska at Kearney's dorms should be considered dwellings).

[FN 147] Compare Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 979 (D. Neb. 2013) (illustrating the circular logic in the idea that intent to return should be measured by similarity to any residential stay), and Cohen v. Twp. of Cheltenham, Pa., 174 F. Supp. 2d 307, 323 (E.D. Pa. 2001) (rejecting defendant's argument that intent to return is measured on the basis of a finite lease in favor of a subjective test with the resident), with Franchi v. New Hampton Sch., 656 F. Supp. 2d 252, 260 (D.N.H. 2009) (failing to apply the Hughes test and merely qualifying dorms as residences because the statute extends beyond families).

[FN 148] Compare Schneider v. Cnty. of Will, State of Ill., 190 F. Supp. 2d 1082, 1087 (N.D. Ill. 2002)(stating that a bed and breakfast does not comport with the FHA definition of dwelling), and Amazing Grace Bed & Breakfast v. Blackmun, CIV.A.09-0298-WS-N, 2009 WL 4730729 (S.D. Ala. Nov. 30, 2009) (stating “[a]s a matter of law, the bed and breakfast is not a ‘dwelling”’), with Patel v. Holley House Motels, 483 F.Supp 374, 382 (S.D. Ala. 1979) (determining a hotel is a public accommodation and not occupied, designed or intended for use as a residence and therefore not a dwelling under the FHA).

[FN 149] See Univ. of Neb. at Kearney, 940 F. Supp. 2d at 979 (D. Neb. 2013) (stating students live in a dormitory for a significant period of time and treat it like a home when they do so), Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324, 1328 (D. Or. 1996) (reasoning that because the migrant workers stay for five months out of the year, the cabins are “far more than” a temporary place of sojourn), United States v. Columbus Country Club, 915 F.2d 877, 881 (3d. Cir. 1990) (determining that because the residents stayed in their bungalows for up to five months out of the year, they have met the significant period of time factor).

[FN 150] Compare Baxter v. City of Belleville, Ill., 720 F. Supp. 720, 731 (S.D. Ill. 1989) (determining that although the residents could be deemed transients, the facility may be considered a dwelling), with Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 655 F. Supp. 2d 1150, 1159 (D. Idaho 2009) adhered to as amended, 717 F. Supp. 2d 1101 (D. Idaho 2010) aff'd on other grounds, 657 F.3d 988 (9th Cir. 2011) (holding the particular homeless shelter is not a dwelling under the FHA because it is not intended for residency for a significant period of time).

[FN 151] Lakeside Resort Enters., 455 F.3d at 157.

[FN 152] Intermountain, 717 F. Supp. 2d at 1111 .

[FN 153] Id. at 1111.

[FN 154] See Wong, supra note 13, at 1889 (discussing the problematic nature of the FHA case law attempting to define its scope).

[FN 155] Contra Univ. of Neb. at Kearney, 940 F. Supp. 2d at 978 (in which the court justifies temporary housing as a resident because to hold otherwise would meant that a resident ceases to be a dwelling when one intends to not return to the residence).

[FN 156] See Intermountain, 717 F. Supp. 2d at 1111-12 (finding that restrictions such as limitations on the length of the stay, and other restrictions, demonstrate that it is not a permanent or temporary dwelling place to which one has an intention to return, despite guests subjective intent of returning to the shelter).

[FN 157] University of Neb. Kearney, 940 F. Supp. 2d at 978.

[FN 158] Id.

[FN 159] See Lakeside Resort Enterprises, 455 F.3d at 158-159 (determining that those who were staying there treated their facility like homes), Schwarz, 544 F.3d at 1214-1215 (noting that the more occupants treated their facility like a home the more likely it is to be a dwelling).

[FN 160] Schwarz, 544 F.3d at 1215.

[FN 161] See infra notes 1580165 and accompanying text.

[FN 162] 114 F. Supp. 2d 1158 (D. N.M. 2000).

[FN 163] Garcia v. Condarco, 114 F. Supp. 2d 1158, 1161 (D.N.M. 2000).

[FN 164] Garcia, 114 F. Supp. 2d at 1161.

[FN 165] Id.

[FN 166] See Univ. of Neb. at Kearney 940 F. Supp. 2d at 982 (distinguishing university students from prisoners); Lakeside Resort Enterprises, 455 F.3d at 158 (citing Garcia as an example of courts varying interpretations of dwellings); Schwarz, 544 F.3d at 1215 (using the example of a jail as a diverse piece of property which has not been found to have been a dwelling); Intermountain, 717 F. Supp. 2d at 1111 (utilizing the illustration of a jail as the diverse scope of rulings on dwellings); Garcia, 114 F. Supp. 2d at 1160. “Essential to the distinction between a home and a detention facility is purpose.” Id.

[FN 167] See Wong, supra note 13, at 1869.

[FN 168] See Schwarz, 533 F.3d at 1215 (suggesting the relevant factors in determining whether a space is a dwelling is related how the occupants treat their dwelling, in turn drawing the inference that the use of the dwelling by the occupants can be relating to the purpose of that dwelling).

[FN 169] Univ. of Neb. at Kearney, 940 F. Supp. 2d at 980 (reasoning the primary purpose of living in university housing is to attend the university, as evidenced by the requirement that a student must be enrolled in the university).

[FN 170] Id.

[FN 171] Id. at 979-80.

[FN 172] Compare Univ. of Neb. at Kearney, 940 F. Supp. 2d at 980 (stating, “[t]o begin with, while UNK is free to contend that university housing serves pedagogical ends, the primary way in which student housing furthers the educational mission of a college or university is by providing students with a place to live while they pursue their education.”), with 28 C.F.R. 35.104 App. A. (2014) (distinguishing university housing from other mission-based housing by noting that that university dormitories and residences are covered under the nondiscrimination title but “social service programs that combine residential housing with social services, such as a residential job training program” are not covered, but failing to provide a reason for distinguishing these types of housing).

[FN 173] 940 F. Supp.2d 974 (D. Neb. 2013).

[FN 174] See Palazzolo, supra, note 16 (discussing the impact of the Univ. of Neb. at Kearney's decision); See Rothstein, supra, note 16 (discussing the confusion regarding animal regulations between Titles II and III of the Americans with Disabilities Act).

[FN 175] See 28 C.F.R. § 35.104 (explaining why the standard for emotional support animals is less stringent than for service dogs under the ADA). See generally Rothstein, supra, note 16 (indicating that colleges face new challenges in light of the Fair Housing Act and its allowance for emotional support animals).

[FN 176] See Trasviña, supra, note 15, at 2 (noting that an emotional support animal is not necessarily a service animal).

[FN 177] Trasviña, supra note 15, at 2-3; See also, Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc., 778 F. Supp. 2d 1028, 1036 (D.N.D. 2011) (finding” [T]he FHA encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability.”)

[FN 178] Nondiscrimination, supra note 119, at 56,194.

[FN 179] Nondiscrimination, supra note 119, at 56,192. Whether trained or untrained, dogs can perform helpful tasks for a person's disability. Id.

[FN 180] Paul, supra, note 15.

[FN 181] Nondiscrimination, supra note 119, at 56,195.

[FN 182] See Trasviña, supra note 15, at 3 (instructing public housing administrators that they must not question the breed, size or weight of an assistance animal or the animal's potential threat).

[FN 183] See Rebecca J. Huss, Canines on Campus: Companion Animals at Postsecondary Educational Institutions, 77 Mo. L. Rev. 417, 471 (2012) (arguing allergies and phobias are legitimate concern of students and university facilitators).

[FN 184] Huss, supra note 183, at 471 (citing a Stephens College survey indicating students were resistant to welcome animals on campus over concerns of animals being too loud in dorms and students not picking up after their animals in common areas).

[FN 185] Pet Policy, Univ. of Nebraska-Lincoln, pg. 1, (Aug. 12, 2012) http://libraries.unl.edu/docs/policies/PetPolicy2012_08_13.pdf

[FN 186] Pet Policy, supra note 185.

[FN 187] Rothstein, supra, note 16.

[FN 188] Rothstein, supra, note 16.

[FN 189] Compare 24 C.F.R. § 100.204 (1996) (declaring the refusal to accommodate rules or policies to handicapped person in use of a dwelling unlawful), and 24 C.F.R. § 100.201 (2008) (outlining which providers of housing must accommodate with the standards under the Fair Housing Act), with Univ. of Neb. at Kearney, 940 F. Supp. 2d at 981(determining university dorms are dwellings covered by the Fair Housing Act but failing to address how this ruling will apply to places of public accommodation in dormitories), and Ellen Wetmore & Ellen M. Babbitt, Federal Court determines that the Fair Housing Act applies to University Housing, Lexology (Apr. 23, 2013), http:// www.lexology.com/library/detail.aspx?g=7129a57f-8be5-44be-9ef2-b3ffe0d0091a.

[FN 190] See Trasviña, supra note 15, at 2 (stating therapy animals who have been trained as service dogs will comply with the ADA guidelines).

[FN 191] Id. at n.2.

[FN 192] See Trasviña, supra note 15, at 1 (including dormitories and residences as spaces covered under the FHA but not under the ADA); Wetmore, supra note 183 (illustrating the different legal standards between the entitlement of dogs in dorms and classrooms).

[FN 193] Id. “For instance, the FHA will apply to use of assistance animals in residence halls; the ADA or Section 504, however, will apply to animals elsewhere on campus or in classrooms, and the standards for use of assistance animals under the ADA and Section 504 may differ significantly from FHA standards.” Id.

[FN 194] See Univ. Dining Service, Univ. of Nebraska-Lincoln http:// housing.unl.edu/dining/files/Dining_Hall_PDF.pdf (providing descriptions of dining services around campus, many of which are housed in Residential Halls).

[FN 195] Univ. Dining Service, supra note, 188.

[FN 196] Americans with Disabilities Act of 1990 § 12181(7)(B) (2008) (stating a restaurant is a place of public accommodation).

[FN 197] Compare Trasviña, supra note 15 (failing to demonstrate where the covered residences in universities will begin and end when dormitories also house restaurants, classrooms or other public facilities), with Univ. Dining Service, supra note 188 (demonstrating that almost half of the residences available at a Nebraska university also house cafeterias) and Wetmore, supra note 183 (questioning which spaces will be considered covered under the FHA in context of universities).

[FN 198] See Wetmore, supra note 189, (noting an “[i]t is an open question whether, in the future, institutions may find themselves being asked to comply with all applicable provisions of the FHA and its implementing regulations with respect to residence halls and university-owned housing”).

[FN 199] See 42 U.S.C. § 3604 (stating that the Fair Housing Act does not permit discrimination based on gender, residence halls or sections of housing only applicable to a single sex).

[FN 200] See Franchi v. New Hampton Sch., 656 F. Supp. 2d 252, 261 (D.N.H. 2009) (noting that by classifying dorms as dwellings under the FHA, single-sex boarding schools may be in jeopardy because of discrimination challenges on the basis of sex).

[FN 201] See infra notes 172-176.

[FN 202] Family Housing, Residence Halls, University of Nebraska-Lincoln, http://housing.unl.edu/residence-halls.

[FN 203] See generally Neb. Const. art. 1 § 29 (defining a marriage in Nebraska as between a man and woman). Compare 42 U.S.C. §3604 (a) (prohibiting discrimination against any person based on familial status), with Llaanos v. Estate of Coehol, 24 F. Supp. 2d 1052, 1057 (E.D. Cal. 1998) (stating familial discrimination under the FHA can be based on people with a particular familial status that are either preferred or dis-preferred for housing).

[FN 204] See Kim Severson, The Religious Dorm at the Public University, N.Y. Times, (Oct. 3, 2013), http://www.nytimes.com/2013/10/04/education/the-christian-dorm-at-the-public-university.html?_r=0 (arguing that there is a new wave of religious-themed housing at public universities).

[FN 205] Compare Univ. of Neb. at Kearney 940 F. Supp 2d. at 983 (determining that a dorm qualifies as a dwelling under the FHA, in turn implying university housing administrators must comply with the fair housing and anti-discrimination policies under the act), with 42 U.S.C. § 3604(a) (stating the FHA prohibits discrimination on the basis of religion).

[FN 206] See Severson, supra note 204 (noting constitutional scholars argue providing religious dorms, even if you include all faiths, at public universities constitute impermissible favoring of religion). If the FHA, which prohibits discrimination in housing on the basis of religion, now applies to universities, religious or faith-based dormitories now pose a liability. See 42 U.S.C. § 3604(a) (citing religion as a protected right under the FHA.

[FN 207] 940 F. Supp. 2d 974 (D. Neb. 2013).

[FN 208] United States v. Univ. of Neb. at Kearney, 940 F. Supp. 2d 974, 983(D. Neb. 2013).

[FN 209] See infra notes 141 and accompanying text.

[FN 210] See Univ. of Neb. at Kearney, 940 F. Supp. 2d at 983 (discussing other nontraditional dwellings and whether a dorm fits within that understanding).

[FN 211] See Wong, supra note 13, at 1888 (arguing the current judicial interpretation of the FHA has created overbroad coverage that was not intended by Congress).

[FN 212] Compare 24 C.F.R. § 35.104 (stating emotional support animals under the Fair Housing Act do necessarily qualify as service animals under the Americans with Disabilities Act), and Univ. of Neb. at Kearney, 940 F. Supp. 2d at 981 (determining university dorms must comply with the standards of the Fair Housing Act), with Trasviña, supra note 15 (noting that where the Fair Housing Act and the Americans with Disabilities Act overlap, administrators must comply with both standards, but failing to address where the scope of each law begins and ends in university housing).

[FN 213] 396 F. Supp. 544 (W.D. Va. 1975).