By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
When the topic of service animals arises we generally think of the rights of the individual with a disability. It’s widely known that Title II of the American with Disabilities Act (“ADA”) establishes the right for persons with disabilities to utilize service animals. Title II requires public entities, including schools, to permit use of a dog or miniature horse to do work or perform tasks for the benefit of an individual with a physical, sensory, psychiatric, intellectual or other mental disability, provided that the animal is required because of the individual’s disability, under the control of the individual, and housebroken. Notably, the student is allowed to take the animal in all areas of the campus where the public is normally allowed to go and allowed to take the service animal on field trips and school sponsored extra-curricular activities. A fact that is less commonly known is that LEAs (school districts, charters schools and county offices of education) have rights and students have obligations when it comes to service animals.
Right of Determination
In establishing whether an animal is a service animal, while the LEA is not allowed to ask for documentation or proof of training, Title 28 Code of Federal Regulations (“C.F.R.”) Section 35.136 specifies that a public entity may ask (1) whether the animal is required because of a disability; and (2) what work or task the animal has been trained to perform in determining whether an animal is a service animal.
In determining if the service animal is necessary to provide the student equal access, the standard continues to be whether the animal’s presence (1) constitutes an undue hardship to the school or fundamentally alters the nature of the service, program, or activity; and (2) meets any pre-established, non-discriminatory safety requirements. LEAs cannot arbitrarily deny a request for a service animal, but must consider whether granting the request would cause a danger to the student, other students, or staff, or if the service animal’s presence would pose an undue burden on the LEA or require a fundamental alteration of the educational program.
Right to Exclude Service Animals
If the service animal’s presence causes such harm or undue hardship, or requires a fundamental alteration of the program, an LEA can deny the request and provide a suitable alternative accommodation. Generally speaking, it is only where (1) the animal is unprovoked and is out of control and the student does not or cannot take effective action to control it, or (2) the service animal is not housebroken that the LEA can ask for the animal to be removed. For miniature horses, the LEA is allowed to take into account two additional considerations: (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will compromise legitimate safety requirements necessary for safe operation of the school. Under those limited and specific circumstances, the LEA should consider alternative accommodations, strategies or services such as sensory breaks, aide support, DIS services, etc. Where a school properly excludes a service animal for one of the above reasons, it must give the student an opportunity to participate in the service, program, or activity without having the service animal on the premises.
Local Ordinances
Title 28 C.F.R. Section 35.136 does not allow local animal ordinances to impose greater requirements or conflicting requirements than those under the federal disability law. By way of example, LEAs cannot exclude a specific breed regardless of city or county codes that impose bans on specific breeds such as pit bulls. Further, Title 28 C.F.R. Section 35.136 does not allow for exclusions based on local animal ordinances that require animal registration or tags/markings indicating that the animal is a service dog.
Fear and Allergies
The Department of Justice (“DOJ”) has made it clear that allergies and other students or school staff’s genuine fear of dogs/miniature horses are not valid reasons for denying access to service animals. In those circumstances, the LEA is responsible for accommodating both the student/staff who is allergic or fearful of the service animal and a person who uses a service animal. According to the recommendations of the DOJ, the LEA should take steps such as assigning the individuals to different classrooms locations, separate lunch periods, etc.
Student’s Responsibility
Under the ADA, the student is required to provide for the care, supervision, and control of the animal. The service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices and only in that limited circumstance the student must maintain control of the animal through voice, signal, or other effective controls. Title 28 C.F.R. Section 35.136 makes clear that the LEA is not responsible for the care or supervision of a service animal. These items the “LEA is not responsible for” would include, but not be limited to, the provision of food or water, removal and proper disposal of excrement, and the physical care of the animal.
