A new student has just enrolled at your school and mom mentions that the child has a service animal. Your instinct might be to say “we can’t have a dog in the classroom” but hold that thought—what are rules regarding service animals in schools?
Both public and private schools are covered by the Americans with Disabilities Act (ADA). The ADA states that it is a violation of the law to refuse to make reasonable modifications in a public or private entity’s polices, practices, or procedures if such a refusal would exclude someone from receiving the benefits of the entity’s services. Therefore, generally, a public or private school must allow child with a disability to have a service animal on campus if the child needs the animal to be able to access all of the benefits, services, and privileges of being a student at that school.
So do you have to allow a cat on campus? I asked my friend from the Pharr Road Animal Hospital this question and the answer was: NO. Service animals are specifically defined as any dog or miniature horse that is individually trained to do work or perform tasks for the benefit of a person with a disability. There are no weight or size limitations for a service dog and a school cannot impose a blanket breed restriction for service dogs.
The range of tasks that a service animal can be trained to perform or help with is vast and includes, but is not limited to, the following examples:
- Assisting individuals who are blind or have low vision with navigation and other tasks.
- Alerting individuals who are deaf or hard of hearing to the presence of sound.
- Providing protection or rescue work.
- Pulling a wheelchair
- Providing support during ambulation (for balance and stability).
- Altering to the onset of a seizure and assisting during a seizure.
- Retrieving items.
- Helping a person with psychiatric or neurological disabilities by preventing or interrupting impulsive or destructive behavior. 28 C.F.R. § 35.104.
A pet or an emotional support animal that has not been trained to perform specific tasks is NOT a service animal. However, be aware that you cannot require a formal certification process for a service animal. Therefore, to demand that the service animal be a “licensed service animal” has no meaning (because there is no regulatory agency that licenses service animals) and is impermissible. You can only ask two questions about the service animal: 1) is the service animal required because of a disability; and 2) what work or task has the service animal been trained to perform. If the need for the service animal and the tasks the animal performs are obvious, then you cannot even ask these two questions.
When can you exclude a service animal? If the animal is out of control and the handler does not take effective action to control the animal or if it is not housebroken, you can exclude the animal. 28 C.R.F. § 35.136. Arizona law also states that a service animal can be excluded if the animal poses a direct threat to the health or safety of others; if it fundamentally alters the natural of the public place or the goods, services, or activities provided; or if it poses an undue burden. A.R.S. § 11-1024. However, be aware that “direct threat” is an individualized analysis and means a “significant risk to the health of safety of others” which cannot be eliminated by some other accommodation. A.R.S. § 11-1024(J)(1).
What do you do if there is another child in the class who has a severe allergy to dogs? You should consider whether the child’s allergies rise to the level of disability. If so, that child will also have rights under the ADA. Regardless, though, it is probably a good idea to move the child with the allergy to another class and ensure that the child will not have lunch or other activities around the service animal. If the allergy is not severe, but is bothersome, you could consider purchasing a special air filter to help minimize the dander in the air and keep the children in different areas of the classroom so that contact with the air around the service animal is minimized for the child with the allergy.
A school does not have to provide any care or supervision of a service animal. It is important to remember that service animals are working animals. They are not pets and should never be touched or addressed while working, except by their handler. This can be difficult in a school setting where many children may be excited to see a dog in class. Though not required by law or regulation, it might be a good idea to provide a short, age-appropriate information session to the children to teach them that they cannot touch or talk to the dog. Information about the disability of the handler should never be revealed by the school (a parent may come in and talk to the student’s class about the disability and the tasks performed by the animal if it is appropriate, but the school should not provide that information to students).
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact 480.461.5300, log on to udallshumway.com, or contact an attorney in your area.