Published by MARE, November 2015

Requests to permit access of so called “service animals” in places of public accommodation – restaurants, theaters, sporting events and public schools are on the rise. Places of public accommodation, including schools, are populated by increasing numbers of assistance animals. From monkeys to parrots to snakes, individuals are claiming the right to access public facilities and events with their “service animal.”

Just exactly what is a “service animal”? For years a service animal has been defined as a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.[1] Other animals and dogs that are not trained to perform tasks that mitigate the effects of a disability do not qualify as service animals.[2]

So, when confronted with a request for access or use of a service animal in the K-12 setting what can you do? While a public entity may not ask about the nature or extent of the individual’s disability, you are free to inquire whether the animal is necessary because of a disability and ask about the work or task(s) the animal has been trained to perform. You should not ask these questions when it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability (for example, when a dog is seen guiding a person with a visual impairment or pulling an individual’s wheelchair).[3] Nonetheless, in the K-12 setting, once the work or tasks the animal performs have been confirmed, because school-age children (including those with allergies or a fear of animals) do not have a choice about being on district property, restrictions on the use of service animals on school grounds may be appropriate. Students with disabilities are not entitled to bring service animals to school if the animal’s presence is not necessary for the student to receive free, appropriate public education (“FAPE)”.[4] However, school districts should be wary of excluding service animals outright without considering the specifics of the student’s situation. For instance, in Bakersfield (CA) City School District, 51 IDELR 142 (OCR 2008), the U.S. Dept. of Education, Office of Civil Rights (“OCR”) found that the school district violated Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 by excluding a student’s dog from school. OCR specifically noted that the school district failed to conduct an inquiry into whether the dog was an appropriately trained service animal, or whether the work or tasks it was ostensibly trained to perform addressed the student’s disability-related needs. Instead, the district unilaterally determined that the dog posed a health and safety risk to students and staff. According to OCR, even if the dog did not qualify as a service animal the school district should have considered whether the dog’s presence was necessary for the student to receive FAPE!

Once in the school setting who is responsible for the care and supervision of the service animal? Strictly speaking, the “handler” – the disabled individual or the person accompanying the disabled person, not the school district, is responsible for keeping the animal under control. According to the U.S. Dept. of Justice, the animal must be harnessed, leashed, or tethered while in public places and the animal should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quite place. Despite this clear statement, in the K-12 setting, the school district may need to provide some assistance to enable a particular student to handle his or her service animal, even if that animal is not required for the disabled student to receive a FAPE.[5] The DOJ has determined that a school district may be liable for disability discrimination if it prohibits a child from bringing a service animal to school, even if it has otherwise provided the student FAPE under the IDEA. Despite clear compliance with all IDEA requirements, the DOJ has found that a school district violates the ADA’s reasonable accommodations requirement when it refuses to allow a student to bring her service animal to school without an adult handler. In reaching this decision in this particular case, DOJ noted that the service dog was trained to go without food or water during school and the child could already control the animal with some help from her one-on-one aide, the dog’s presence without an adult handler did not fundamentally alter the nature of the district’s program. The DOJ specifically pointed out that, “[W]hether or not the IDEA’s requirements have been met does not determine whether a valid ADA claim would exist… Even if [the parent] conceded that [the district] fully satisfied its IDEA obligations … [she] could pursue claims under the ADA.”[6] Similarly, the United States District Court for the Southern District of Florida has held that ADA regulations stating that public entities are not responsible for the care and supervision of service animals did not justify a school district’s insistence on having a 6-year-old boy’s parent provide a handler for his service dog.[7]

Requests for access or use of a service animal in the K-12 setting should be handled on a case-by-case basis. If the student has an IEP or Section 504 Accommodation Plan, reconvene the IEP or 504 team. Have the team consider and determine if the student needs the animal to receive a FAPE. Remember, if the student in question disability involves vision, hearing, speech or communication impairments, the accommodation may be required under Title II of the ADA regardless of FAPE considerations. Whether or not necessary for FAPE, also determine whether access and use of the animal will fundamentally alter the nature of the school district’s programming. Finally, contact legal counsel for clarification and direction on how to proceed.

[1] 28 C.F.R. Part 35.104

[2] Id. Absent certain special limited circumstances, miniature horses are not included in the definition of service animal.

[3] 28 C.F.R. Part 35.136(f); In re: Student with a Disability, 114 LRP 32429 (OCR 04/02/14)

[4] Collier County Sch. Dist., 110 LRP 7471 (SEA FL 09/15/09); In re: Student with a Disability, 115 LRP 20747 (SEA NY 03/19/15);Bakersfield City Sch. Dist., 51 IDELR 142 (SEA CA 2008)

[5] July 1, 2015 U.S. Dept. of Justice FAQ on Service Animals and the ADA

[6] Gates-Chili Cent. Sch. Dist., 65 IDELR 152 (DOJ 2015).

[7] Alboniga ex rel. A.M. v. School Bd. of Broward County, Fla., 215 WL 541751 (D.C. S.D. Fla. 02/10/15)