Article Detail

Service Animals in Schools: Recommendations for School Districts
Date: September 19th, 2011    Written by Natasha Shishov and Carol Melnick


Service animals can help people with a variety of disabilities such as hearing impairments, physical handicaps and sight impairments. Service animals often develop strong bonds with their owners, and a student with a disability may request the companionship of his or her service animal in school. However, a service animal may not be necessary for a student’s success in school, and reliance on the animal could interfere with the student’s ability to develop skills of independence. Also, the presence of the animal could trigger allergic reactions or anxiety among other students, some of whom may also have a disability and rights under law. Therefore, a student who requests the presence of a service animal in school presents a complicated issue that requires legal counsel.  

Rights of students with disabilities

The clearest guidance on whether a student with disabilities has a right to full- or part-time companionship of a service animal comes from a 2008 federal court decision that involved a Long Island school district, Cave v. East Meadow Union Free School District. The case focused on the rights of the student under three federal laws:

    1.   Section 504 of the Rehabilitation Act of 1973, which prohibits recipients of federal funds, such as a public school, from discriminating on the basis of a disability and states that all elementary and secondary schools must provide its disabled students with a free appropriate public education ("FAPE");

    2.   Title II of the Americans with Disabilities Act ("ADA"), which states that public entities, such as educational institutions, must "make reasonable modifications in its policies, practices, or procedures” when necessary in order to avoid discrimination on the basis of a student’s disability; and

    3.   The Individuals with Disabilities Education Act ("IDEA"), which requires that every public school, which receives federal funds, develop an individualized education plan ("IEP") tailored to the needs to the particular student.

Cave, a high school student, had an IEP in which the school provided several accommodations for a hearing impairment. These included a full-time one-on-one sign language interpreter, an FM transmitter and a student note-taker. Nonetheless, Cave requested that his service dog, Simba, accompany him in school. The district was concerned that the dog might trigger allergic reactions among others. In denying the request, the school district reasoned that because the student had full access to his education program, he did not need a service dog in order to receive FAPE. The student and his family commenced a legal action against the district alleging that it violated the ADA and the Rehabilitation Act.

The Cave family also alleged that the district had violated Section 296 of New York State Executive Law, which provides that it is unlawful "for any person engaged in any activity covered by this section to discriminate against a . . . hearing impaired person or a person with a disability on the basis of his or her use of a guide dog, hearing dog, or service dog.” The U.S. District Court for the Eastern District of New York concluded, and the Second Circuit affirmed, that since the school already provided reasonable accommodations, the student was receiving a FAPE. Moreover, the harmful allergic effects on others that may have occurred as a result of admitting the dog outweighed the potential benefits to the student. Based on the foregoing, the court concluded that the district was not required to admit the service dog.

The federal courts did not rule on Cave’s claims under New York State law as they determined that they lacked jurisdiction. The Cave family pursued those claims with the New York State Division of Human Rights, whose commissioner subsequently issued a ruling that the school district’s refusal to admit the service dog violated the state Executive Law. The state agency ordered the school board to modify its policies and practices, and the district responded by filing a lawsuit, East Meadow Union Free School District v. N.Y.S. Division of Human Rights, asserting that the Executive Law did not apply to public schools.

The text of the Executive Law does not refer to school districts but states that its provisions apply to an "education corporation or association which holds itself out to the public as a non-sectarian and exempt from taxation.”  Consistent with the view of the school district and New York State School Boards Association, a state appellate court found the Division of Human Rights was incorrect in assuming this provision applied to school districts. The Appellate Division of state Supreme Court, Second Department, noted that New York General Construction Law, which defines a "school district” as a "municipal corporation,” not an "education corporation.” It declared the commissioner’s order to be null.

It is worth noting that another state appellate court reached the opposite conclusion in a different case. In Ithaca City School District v. N.Y.S. Division of Human Rights, which was decided in 2011, the Appellate Division, Third Department, ruled that a school district was considered a "education corporation or association” within the meaning of Executive Law Section 296. It reasoned that if a "public school” was not included within the definition of "education corporation or association,” it would mean the Legislature, when enacting the Executive Law, intended to provide its protection against discrimination only to students who attend private schools. The court did not believe that to be the case. This ruling applies to school districts in the 38 counties supervised by the Third Department.

As of this writing, it is unclear whether a public school is bound by Executive Law Section 296. The question may ultimately be settled by the Court of Appeals, New York’s highest court.

Factors in case-by-case analysis

Deciding whether a service animal should be admitted to school is best decided on a case-by-case basis and with the help of legal counsel. The fundamental issues is whether the student will  receive FAPE if the service dog is not admitted. To determine this, the school district should consider the following factors:

    1.  the academic and behavioral functions the animal is trained to provide the student and the extent to which these functions can be provided by other means;
    2.  the animal’s impact upon the student’s ability to function successfully and independently;
    3.  the animal’s impact on the student’s behavior; and
    4.  the degree to which separation from the animal during the school day would impair the student’s transition to independent living skills.

 On the other hand, the school district must also consider the effects that the service animal will have on others, as well as the effects on the school environment as a whole. Specifically, school officials ought to consider the following factors:

    - Will the animal cause a fundamental alteration of the classroom or school environment?
    - Will the animal pose a direct health or safety threat that cannot be otherwise accommodated?
    - Does the animal do work or perform tasks or is the animal’s sole function therapeutic?
    - Is the student capable of caring for the dog properly while at it is at school?

When competing interests arise, the school district should attempt to come to a practical solution to accommodate the needs of all concerned.

Recommend conference procedures

In responding to requests for service animals, a school district should schedule a meeting with the student’s parent or parents and hold a Section 504 and/or Committee on Special Education meeting, as appropriate, to evaluate the request. The meeting will serve the purpose of determining whether the student’s current IEP is meeting the student’s needs and whether additional accommodations can be provided to ensure the student the student will receive FAPE without admitting the service dog. Additionally, at the meeting, the school district can inquire as to the tasks that the animal can perform and whether they are necessary in order for the student to receive a FAPE, whether the tasks the animal performed are for the benefit of the student, and whether the student would be denied the benefits of the school district’s services or programs if the service animal were excluded from school. Moreover, a school district can require parents to provide letters from health care providers or documents certifying proper vaccinations, proper training, and insurance covering any injury or damage to property caused by the animal.

Legal counsel should be involved to ensure that the district is in compliance with all relevant laws as officials determine the best answer to the service animal question.

This article originally appeared at http://www.nyssba.org/news/2011/09/16/on-board-online-september-19-2011/service-animals-in-schools-recommendations-for-school-districts/.
FIND AN ATTORNEY
  
-
or search by name...
NEWS & PUBLICATIONS

Hon. Jeffrey Lebowitz Appointed to the Character and Fitness Committee...



CONTACT US
300 Garden City Plaza, 5th Floor
Garden City, NY 11530
Tel: (516) 746-8000 | Fax: (516) 393-8282

56 Park Avenue,
Suffern, NY 10901
Tel: (845) 357-0036 | Fax: (845) 357-0297

info@jaspanllp.com