Seeing eye dog? Welcome to school! But no emotional support kangaroos, please

Written by: Beth L. Sims, Esq.

News reports have described a passenger bringing a “comfort peacock” on a United Airlines flight in January 2018 and an “emotional support kangaroo” brought into a McDonald’s restaurant in Wisconsin during February 2015. Would your school district be legally obligated to accommodate a comfort peacock or an emotional support kangaroo? Should a student bring such an animal to school?

You will be relieved to know that the federal Americans with Disabilities Act (ADA) provides no protection for comfort or emotional support animals in schools. School districts are not required to permit animals unless they meet the definition of a “service animal.”

The ADA and its implementing regulations define a service animal as an animal that has been trained to perform work or tasks for the benefit of a person with a disability. A “person with a disability” is defined in another federal law, Section 504 of the Rehabilitation Act of 1973, as one who has a physical or mental impairment that substantially limits one or more of the major life activities of such individual.

Dogs are okay -and sometimes miniature horses

Generally, only a dog can serve as a service animal. A rodent, for instance, would not meet the definition of a service animal, notwithstanding a Frontier Airlines passenger’s effort in October 2018 to have her baby squirrel considered a service animal.

Federal regulations specifically state that non-canine animals generally cannot meet the definition of a service animal, regardless of whether they are wild or domestic, trained or untrained. Interestingly, there is an exception requiring public entities, including schools, to recognize a miniature horse as a service animal, if the miniature horse .has been individually trained to do work or perform tasks for the benefit of the individual with a disability AND if the miniature horse can be accommodated through a reasonable modification to existing policies, practices or procedures.

Imagine a student in your district comes to school with a bona fide service animal. It could be a miniature horse, but let’s assume it’s a dog. Can the school lawfully place any restrictions on where the student takes the dog?

Although the ADA requires that school districts permit service animals to accompany persons with disabilities anywhere that they are normally permitted to go, the U.S. Department of Justice has made clear that service animals can be prohibited where legitimate health and safety concerns may exist. For example, service animals may be restricted from going into swimming pools. (They must be permitted on the pool deck, however.) Service animals may also be restricted from areas that are reserved for persons with allergies to dogs (or horses).

Importantly, the work or tasks performed by a service animal in a school setting must be directly related to the individual’s disability, such as:

• 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 people or sounds.
• Providing non-violent protection or rescue work.
• Pulling a wheelchair.
• Assisting an individual during a seizure.
• Alerting individuals to the presence of allergens.
• Retrieving items such as medicine or the telephone.
• Providing physical support and assistance with balance and stability to individuals with mobility disabilities.
• Helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

Assistance, not companionship or comfort, must be the purpose

Suppose a student has a service animal that is qualified to perform such tasks but does not do so; the parent states that the animal merely provides emotional comfort or reassurance to the student. Or suppose the parent states that the dog provides physical security for the child, protecting him or her from crime. Is the school legally required to permit the dog to accompany the child?

No. Crime-deterrent effects of an animal’s presence are expressly excluded from the work, tasks or functions that must be recognized under the ADA. Also excluded is the provision of emotional support, well-being. comfort or companionship.

Simply put, an animal that functions as the equivalent to a household pet in a school setting does not meet the definition of a service animal under the ADA.

In other cases, students have service animals that assist them with major life functions. There are a number of different types of service dogs that are specifically trained to perform tasks for individuals with disabilities. These include a “psychiatric service d0g.” This type of service dog is trained to detect the onset of psychiatric episodes and to help lessen their effects. Services performed by these dogs may include reminding the individual to take medication, providing room searches or safety checks, turning on the lights, protecting disoriented individuals from harm, or disrupting self-mutilation.

Other forms of service animals include:

• SSigDog (Sensory Signal Dog). This type of service dog is specifically trained to assist a person with autism. These dogs he]p to alert the individual to distracting repetitive movements such as hand flapping.
• Seizure Response Dog. These dogs are trained to help people with seizure disorders by standing guard over the person during a seizure or by going for help. Some dogs can even predict seizures and warn the individual to sit down or to find a safe place.
• Signal Dog or Hearing Dog. This service dog is used by individuals who are deaf or who have significant hearing loss. The dog is trained to alert the person when a sound occurs, such as the ringing of an alarm.
• Seeing Eye Dog (or Guide Dog). This type of service dog is trained as a travel tool for individuals who are blind or who have visual impairments. The dog helps the individual to get around.

District cannot require a service animal to wear a vest

Neither law nor regulation requires service animals wear a vest, ID, tags or a specific harness. Nor may a school district create a policy that excludes animals on such bases.

In fact, school districts are allowed to ask only two questions to determine if an animal is a service animal, when it is not obvious what service the animal provides: ( 1) Is the animal needed because of a disability? and (2) What work or tasks, if any, has this animal been trained to perform?

Please note that school districts cannot require the student’s family to present any specific documentation, such as proof the animal has been certified, trained or licensed.

So, what can a school district do to ensure that service animals are maintained safely in its buildings and on its grounds?

• A service animal should be under the control of its handler (usually the student) at all times by voice control, signals or other means. In some cases, the district may require a harness, leash or other tether to be used.
• Service animals may be excluded or required to be removed only when (1) the animal is out of control and the animal’s handler does not take effective action to control it; or (2) the animal is not housebroken. Records and evidence relevant to such a decision will be of critical importance in the event of a subsequent legal challenge.

Practical issues, such as accommodating those with dog allergies or walking and feeding the animal, should be considered and addressed collaboratively by your school district’s Section 504 Coordinator and Section 504 team.

Before a service animal is introduced into the school environment, written and verbal communication with students, parents and staff can be extremely helpful to answer questions and address concerns. Such communications must be mindful of the privacy and confidentiality rights of the person in need of a service animal.

Any school district policies or procedures that restrict the presence of animals on school grounds, in buildings. or at school district functions should be reviewed in  consultation with your school district’s attorneys to ensure that your district’s practices and procedures relating to accommodating service animals are lawful.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Beth Sims of Shaw, Perelson, May & Lambert, L.L.P.