The Arc of History Bends Toward Emotional Support Peacocks
An Easy Case Illustrative of the Harder Ones -- Part of a Series: Some Aspects of the Successor Ideology
Back in 2019, a black man named Dana Holcomb sued American Airlines after being kicked off a flight. He had an allergic reaction after a white woman with an emotional support dog was seated next to him.
The facts of the case are then disputed. The airline alleges that the woman with the emotional support dog offered to switch seats with another passenger in the first class cabin where they were seated but that Holcomb refused (as he well might have, since an allergic reaction is not necessarily resolved by the dog moving a few seats away in the same cabin). Holcomb's own statement to the press claimed that no other passenger in the first-class cabin was willing to switch seats with the woman, which suggests that he would have been willing to accept that solution if someone had been willing to offer it. The airline's statement to the press alleges that the crew offered to reseat Holcomb in coach and refund the difference between the tickets, but that Holcomb became confrontational. The company claims that only after exhausting the available fixes did the crew remove the uncooperative customer from the flight, offering to rebook him on another or refund his ticket. Holcomb denies that he became confrontational.
Holcomb's lawyer insisted that the principle of selection must have been, consciously or unconsciously, the race of the parties to the dispute, making his client a victim of racial discrimination. The airline maintained that in fact the white women with the emotional support dog is a member of the relevant protected class under federal law here and that they were merely following the law when they allowed her claim to emotional support to trump his claim to travel free from allergens. The headlines in various national media outlets repeated his lawyer's characterization of the event as one in which an a black man was “Kicked Off A Flight 'So A Dog Could Fly First Class'
If Holcomb did become confrontational—and we don't know that he did—one can readily empathize. He must have felt the same perplexity that many have felt toward the relatively novel category of the "emotional support animal." Most people understand the legitimacy of the exemptions granted to seeing-eye dogs and other service animals specially trained to help the disabled live independently; the Americans with Disabilities Act compels an acceptance that largely already exists.
The emotional support animal (which receives no special training in providing emotional succor), and the underlying concept of "emotional disability" for which the animal is posited as a form of therapy by medical authorities, is another matter.
Until this year, the Air Carrier Access Act of 1986 prohibited discrimination on the basis of disability for air travel. This legislative mandate was then turned into a rule by the Department of Transportation that included protection of emotional disability, including the remedy prescribed by doctors, who designate "emotional support animals" as a category distinct from mere "pet." Large pets have to fly in the cargo hold and their owners must pay a fee. Emotional Support Animals fly for free on their owner's laps. (Small, unobtrusive dogs that fit into a bag small enough to fit comfortably under the seat fly with their owners for a fee .) The Fair Housing Act entitles owners of ESA's to live with their pets even in buildings that prohibit them. But profit-seeking entrepreneurs within the medical and legal industries have colluded with conscious abusers of the system seeking to exploit the law.
Writing in the New Yorker in 2014, Patricia Marx described how she obtained a letter from a clinical social worker attesting to her need for an emotional support snake:
"To prepare for the session, I concocted a harrowing backstory: When I was six, I fell into a pond and almost drowned. There was a snake in the water that I grabbed on to just before I was rescued by my father, and, ever since, I’d found comfort in scaly vertebrates."
She obtains her letter and registers her animal as an emotional support animal on a privately maintained online registry with no relationship to the US government and no legal standing or force and uses the letter and the registry to take her snake to dine at Balthazar and to watch a film at the Angelika.
As it happens, the Department of Transportation in December 2020 announced its revision to its rules to forbid emotional service animals on flights, consigning them to the cargo hold, classifying them as pets, and forcing their owners to pay pet travel fees. The move came after a year of lobbying by the airlines in the wake of other zany news stories such as the case of the emotional support peacock that was forbidden entry onto a flight and the 80-pound pig that defecated in the aisles. The airlines managed to turn public opinion through publicizing instance of "comfort turkeys, gliding possums, snakes, spiders, and more." Service animal and disability groups joined in the petition to preserve the integrity of their own claim to accommodation; widespread abuses of Emotional Service Animals was beginning to impinge on the consensus around service animals too, as people began to mistake the one for the other.
That we allowed the proliferation of emotional support animals in the first place tells us a lot about the evolving nature of the civil rights industry. A network of activists, judges, and legal academics created the conceptual basis for identifying new categories of injury, all deriving their ultimate power from the landmark legislation required to dismantle legalized segregation in America. A network of trial lawyers and medical entrepreneurs found a profitable niche in colluding with a growing number of Americans regarding themselves through the prism of victimhood that happens to confer legally protected status onto them. In the process, these networks constituted themselves as an interest group.
Over time, they grew powerful enough to cannibalize the very people for whose benefit the system was inaugurated in the first place: thus, Black Man Kicked Off Plane So That Dog Gets to Fly First Class.
That the airlines were able to generate sufficient public support for releasing their employees from this absurdity is an example of the system being able to deliberate and correct for absurdities. But there's no guarantee that the new rules will survive court challenge. A Forbes article from December 2020 quotes Prairie Conlon, a clinical manager for a company in the emotional support animal business, who promises legal action:
"How can they say that someone with a physical disability, or certain mental disabilities like PTSD, can have a service dog when they have a legitimate need for them, but someone who has been diagnosed by a clinician with a mental health disorder and has a legitimate need for them can’t have their animal with them anymore? That is textbook discrimination.”
On the one hand, this is an easy case. Pushing back on the self-serving melodrama of entitled white people wielding recently manufactured identities as "disabled folks" granted to them by credentialed charlatans is still possible. The airlines summoned up public support, petitioned the federal agencies that regulate them, and persuaded them to initiate a change that any sensible person should regard as self-evident.
On the other hand, the logic of Conlon’s legal argument is impeccable.
Courts and bureaucracies depend on the integrity of clinicians to define illness, who in turn derive their authority from the credentialing bodies that certify what counts as knowledge in our society. What happens if the knowledge-forming institutions themselves become captured by sectarian conceptions of rights and expansive notions of subjective injury whose existence can only be ascertained through self-reporting that it then becomes a dogma that none may dispute and all must affirm?
There are reasons to suspect that the pursuit of exemptions from the rules that civil rights law now confer has moved beyond mere conscious fraud toward actually reshaping the way people think about themselves. The Wall Street Journal reports on “a surge in the number of students who take their exams in low-distraction testing centers, are allowed to get up and walk around during class or bring a comfort animal to school, among other measures.” A poll of students taken at Pomona College in 2014 found that 5 percent of them identified as "disabled". That same poll administered in 2019 found that the figure had grown to 22 percent. A nearly fourfold increase in so brief a surely tracks the explosive growth of a culture of systemic advantage seeking; but it likely also indicates a changing perception of the self, a higher threshold of sensitivity to the vicissitudes of everyday life, and an overall normalization and valorization of the condition of disability. The children of Lake Woebegon were once all above average; they now all require their own IEP.
If a duly certified clinician determines that your childhood trauma gives you a right to do what others are constrained from doing, even if it imposes costs and burdens that others must bear, on what grounds does an airline, a federal agency, or a federal judge declare otherwise? If the trauma is severe enough, wouldn’t it be both an intolerable cruelty and a violation of civil rights law to deny the person what medical science has decreed that they need? Wouldn’t it, in fact, be tantamount to a form of literal violence?
Future installments will move on to the harder cases.