When Decisions Matter.

Attorney Baublitz Article Published in The Legal Intelligencer

Can I Bring My….Service Alligator to School?

Taylor M. Baublitz

            With the 2021-2022 school year fast approaching, school districts and their legal counsel all over the country are contemplating their “new normal” in the wake of the ongoing pandemic. Throughout the pandemic, K-12 students have likely experienced a whole host of emotions—fear, anger, sadness, numbness, or frustration. As we all know, COVID-19 has created many barriers for schools to overcome in meeting the needs of its students. Unfortunately, these barriers and challenges will continue as schools strive to ensure equity and support for students experiencing the lasting adverse physical and mental health effects of COVID-19.

To combat these feelings of fear, anger, sadness, numbness, and frustration, parents are making requests for service animals to accompany their children to school more than ever before. Some requests are for the student’s pet frog to join them in the classroom. Other requests relate to a student’s “service” rabbit to accompany them to school. Pennsylvania even has its own emotional support alligator named Wally, famously hauling from York County. This leaves many schools asking “so, what is considered a ‘service animal?’” Is it an emotionally mindful alligator? Is it a sweet and sensitive little frog in a mini terrarium?

According to the American with Disabilities Act (ADA), a service animal is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.” While the definition of “service animal” itself limits the type of animal to “dogs,” school solicitors should be aware that the United States Department of Justice (DOJ) amended the federal regulations to also include miniature horses, too. It is important to note that a service animal that has been trained to provide some tasks, but not tasks directly related to the person’s disability, does not qualify as a service animal.

While a service animal may be requested by parents in order to comfort their child during the school day, emotional support and “comfort” animals are excluded from the definition of “service animals” under the ADA Titles II and II, and are not entitled to be accommodated by school districts. Additionally, the provision of emotional support, well-being, comfort, or companionship does not constitute work or tasks for the purpose of the specific work or tasks a service animal is expected to perform in relation to an individual’s disability. Of course, schools want to accommodate their students (especially ones particularly affected by COVID-19) in practical ways to ensure a positive and effective learning environment. Interestingly, the Individuals with Disabilities Education Act (IDEA) and its associated regulations do not include any reference to service animals. Therefore, when a school district receives a request for a student to bring a service animal to school, the school, along with its counsel, must undertake each request on a case-by-case basis and pursuant to school district policy as well as federal law.

A common fear among school districts is whether they can really discern if a student is telling the truth relative to the specific tasks a service dog is able to perform. However, the reality is, a school district many never truly know if a student is being truthful. This is because only limited inquiries are allowed, and courts have been suspicious of too many inquiries into whether an animal is truly a service animal. In fact, the majority of courts have concluded that a service animal would not fundamentally alter the educational services provided by a school district. School district officials are only permitted to ask two (2) questions: (1) “is the dog a service animal required because of a disability?” and (2) “what work, or task has the dog been trained to perform?” Staff cannot inquire about the student’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task. This limitation can seem concerning for school district officials since there is virtually no anti-abuse mechanism to prevent an individual lying about their animal, but a service dog can perform and provide a myriad of functions that may not be obvious to everyone. Further, there is no requirement that service animals be required to wear a vest, patch, or special harness identifying them as a service animal.

Common service animal requests for some younger students also include the request for the school district to provide a “handler” for the service dog. Even so, a school district does not have a responsibility to financially provide for a service dog handler. Although, a letter provided by the DOJ in April 2015 stated that if a student needs “minimal assistance” with their service animal, a school district may have an obligation to provide a “reasonable modification” depending on the individual circumstances. These reasonable modifications could include, but are not limited to, providing assistance to a student with a disability in tethering/untethering the service animal, escorting a student with a disability through the school or campus as he or she is accompanied by a service animal, and assisting a student with a communication disability in issuing commands to the service dog. School districts should still establish the handling capacity of a student and determine whether a student and their dog can attend during the school day with or without the assistance that can be appropriate under the ADA. Then, an objectively defensible, fact-based determination whether any additional services that the student needs to control and maintain the service dog can be determined as reasonable modifications and not fundamental alterations to the school environment.

A school district has every right to deny a request for a service animal if the animal does not, in fact, qualify as a legitimate service animal. However, a school district will experience legal liability if it were to deny a student’s valid request for a service dog. It is possible a denial could rise to the level of an actionable claim under the ADA if it is viewed as discriminatory. If a school district has serious reservations or questions whether a service dog is appropriate under the specific circumstances, but does not have enough evidence for a denial, a recommended alternative (with moderate-level risk) is that the school district can agree to allow the service dog to accompany the student for a period of time, collect necessary data, and make a collective decision at a later date.

Ultimately, school districts need to consider how implementation of a service animal will fit into the school environment in a way that is safest for all students, including the student utilizing the animal. In particular, school districts should approach every request for a service animal in a manner that makes it evident it is aiming to assist the student to be as successful as possible with a service dog. At the end of the day, school districts should make assurances to families requesting service animals that it is of the utmost importance that each student have the tools to succeed in the school environment and also warrant that they are willing to facilitate a working relationship in order to come up with a quality and effective plan of action for all parties involved. This planning will also reduce the likelihood of any legal issues cropping up in the future.

Legal counsel should remind school clients to proceed under legal advice during a service animal engagement process. While the topic of service animals can seem daunting, the basic rules discussed above are a great first step in understanding the ADA’s regulations. Lastly, as the use of service animals increases as a result of the pandemic, we will all become more familiar with the contours of the law.

 

Reprinted with permission from the “August 11, 2021, edition of the “The Legal Intelligencer”© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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