Ferrara Fiorenza P.C.
 

Requests for Use of Service Dogs in Schools Require Careful Consideration

The parents of a disabled student are requesting that your district permit their daughter to use a service dog at school.  You learn that you have students and staff members with serious allergies to dogs.  You are also concerned about whether the service dog might bite someone or pose sanitation problems.  What are your options? 

As discussed in detail below, under most circumstances a district will be required to permit the use of bona fide service dogs even if there are students/staff who are allergic to them.  If, on the other hand, a particular dog is out of control or not housebroken, and the district has documented these facts, the animal may be excluded. 

There are both federal and state laws that must be considered when confronted with a request to use a service dog at school. On the Federal side, schools must comply with the requirements of the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities Education Act (“IDEA”), and Section 504 of the Rehabilitation Act.  On the State side, schools must consider the potential impact of the New York State Human Rights Law. 

Of particular concern are the recently enacted amendments to the regulations implementing the ADA.  Effective March 15, 2011, a new section has been added to the regulations which expressly states that Title II entities, including public schools, “shall modify [their] policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” The regulations have also been amended to define “service animals” as dogs that are individually trained to do work or perform tasks for people with disabilities.  This definition excludes other animals as well as dogs that do not perform tasks directly related to the person’s disability or only provide comfort or emotional support. 

While you may have concerns over permitting a service dog in your schools, the new regulations limit the circumstances under which schools can exclude these animals.  Generally, service dogs cannot be barred from schools because of unsubstantiated health, sanitation, or safety concerns.  Moreover, the dogs may go anywhere pupils are permitted, including classrooms, hallways, and cafeterias.  For example, if a teacher or another student is allergic to dog dander, the U.S. Department of Justice (“DOJ”) suggests that he or she be placed in a different classroom than an individual using a service dog. 

In determining whether to permit or exclude a service dog, a school district is also limited as to the types of questions that can be asked of the individual making the request.  Pursuant to guidance issued by the DOJ, the only inquiries a school can make are: 1) whether the dog is a service animal required because of a disability, and 2) what work or task has the dog been trained to perform.  Consequently, if the dog is a bona fideservice animal that has been trained to recognize when the student’s disability is manifesting itself and to respond accordingly, the dog must be permitted to attend school with the child. 

There are, however, certain isolated circumstances under which a service animal may be excluded.  If the animal is out of control and the animal's handler does not take effective action to control it, or if the animal is not housebroken, the school need not allow it to accompany the student.  Additionally, a district would not have to make accommodations for a dog which provides only emotional support or comfort, as it does not meet the definition of a service animal.  Careful documentation should be made of these circumstances in order to be able to successfully defend against any potential ADA claims. 

As the foregoing discussion suggests, the ADA will generally require you to grant a parent’s request that his or her child be accompanied to school by a service dog.  However, where appropriate, such requests should be addressed by the Committee on Special Education as part of the child’s IEP process.  The importance of this point was made clear in Cave v. East Meadow Union Free School Dist.  In this particular federal case, the parents of an autistic child sued their son’s school district, alleging that the district violated the boy’s rights under the ADA by refusing to permit his service dog to attend school with him.  In resolving the dispute in favor of the District, the Second Circuit Court of Appeals found that the parents were, in fact, challenging the adequacy of their child’s IEP,  a violation of the IDEA.  The court ruled that because the parents did not follow the administrative procedures required by the IDEA to challenge the District’s decision, the case was dismissed. 

The lesson to be learned from the Cavecase is that while a district can require the student’s parents to exhaust their administrative remedies under the IDEA and Section 504, this will not insulate the district from a lawsuit alleging ADA violations for excluding a service dog once those administrative procedures have been followed. 

Additionally, parents may not be required to follow these procedures before suing the school district on a State law claim. New York’s Executive Law expressly prohibits discrimination on the basis of a handicapped individual’s use of a guide dog, hearing dog, or service dog.  There is, however, disagreement among New York State’s courts as to whether this law applies to school districts.  In November 2011, the New York Court of Appeals agreed to hear a case (Ithaca City School Dist. v. New York State Div. of Human Rights) which should decide the matter.  We will keep you informed as to the outcome of this case. 

In short, the issue of service animals in school implicates a number of complex state and federal statutes that are constantly evolving.  While it is clear that schools cannot summarily exclude these animals, any decision will necessarily require a careful analysis of the applicable laws, as well as the facts and circumstances involved.  

Should you require assistance in addressing these concerns or revising your existing policies to comply with the new ADA regulatory requirements, please contact our office.