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New Jersey lawyer focusing on special education law and employment law

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Service Animals in the Schools

I don’t know about you, but I love reading positive stories about service animals that accompany children with special needs to school. Three recently published stories stand out: one is about a New Jersey gal with severe epilepsy who graduated from high school with her service dog; another is about a Wisconsin high schooler with a seeing-eye dog; and the third story is about a high school student in New York who is training a Seeing Eye dog for her senior project. In each of these stories, the schools welcomed the dogs with open arms.

Caption: Photo of kid in a wheelchair with a dog by his side

Not all stories are happy ones. Some school districts blatantly refuse to permit students to bring their service animal to school in violation of federal and state law. To ensure that no service animals are brought to school, some schools will deliberately ignore the law and demand a court order before taking action.  (Some bloggers have shared their perspectives about one case in particular here, there, and over yonder.)

Most recently, there was a news story about an autistic child starting pre-kindergarten special education classes who was met with resistance when the school would not allow the child to bring in his service dog. There’s a terrific and heated debate occurring at the Newsvine regarding whether children with autism should be permitted to bring a service dog to school. This debate clearly demonstrates that service animals for kids with autism  is a tricky issue because it may not be clear if the animal is a “service animal” or a “companion pet.” More on that below.

Fortunately, in many cases, the school administrators who refuse to permit service animals to school will lose because the Americans with Disabilities Act prohibits discrimination on the basis of disability and explicitly provides that service animals are permitted in places of public accommodations. The Americans with Disabilities Act provides that a school is a place of public accommodation. So, in all likelihood, where a school refuses to permit service animals in school, a judge will order the school to revise its policy to permit the service animal. One such case where the judge ordered the school to permit an autistic child’s service dog to school occurred just this summer.

Attorneys for the school districts typically have a few “stock” arguments to persuade judges from permitting children to bring in their service animals:

(1) It is a “safety” issue. We all agree that no one wants other students to be at risk of harm. However, one important requirement of service animals is good temperament. Clearly, if the animal has good temperament, has never been known to bite, has been trained to perform specific tasks over a period of time, and performs those tasks adequately, the “safety” issue is (in all likelihood) moot.

(2) At least one other child or teacher is allergic to the animal (e.g., dog dander). This is a very interesting argument, but I’ve never seen it successfully applied in school settings. This argument, however, has been used in business settings, and, to my knowledge, has always failed. In any event, assuming that there is a student with a documented allergy, there may be work-arounds.

(3) At least one other child or teacher is “terrified” of dogs. Like the allergy argument above, it’s an interesting argument, but again, I’ve not seen it successfully applied in either the educational or business setting.

(4) The school faculty has not been given training how to handle the animal. This is a poor argument that is really designed to delay or discourage service animals from attending school.

(5) The students will be distracted by the service animal. Didn’t any of your teachers have a fish tank in science class? Rabbits? Rodents? When students are exposed to anything interesting for the first time, there’s always going to be excitement. The novelty fades away over time. After a while, no one really notices. In any event, well trained service animals aren’t distracting at all. Furthermore, it’s a good opportunity for students to learn service dog etiquette, i.e., these are service animals, not companion pets, and one should not “pet,” feed, or play with an animal that is working.

(6) The animal is not a service animal, but a companion pet (or a therapy pet). This is a powerful argument if it is true. A service animal is one that has been trained to perform a specific task to mitigate a disability. This is different from a therapy/companion pet. Obviously, the burden would be on the parents and the child to show that the animal has been trained to perform specific tasks to mitigate the child’s disability. While there is no requirement that the animal be “certified,” there must be some evidence demonstrating that the animal does what it has been trained to do. The child’s disability can be described in the attorneys’ briefs and supplemented with medical and/or psychological reports. The service animal’s training and function can also be described in the attorney’s briefs. Additionally, a demonstration of how the service animal helps the child can be given in-person or recorded on video. The animal trainer may also testify on the child’s behalf.

So, what should a parent do when the school district refuses to permit the child to go to school with a service animal? First, engage in open dialogue and try to understand the school’s position. Perhaps a compromise can be worked out. If not, it may be necessary to consult an attorney to determine the next step.

For more information about organizations that train service animals, see Assistance Dogs International, Inc., the International Association of Assistance Dog Partners, or more generally, this website.

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    There are 11 comments. Add Yours.

    Jenifer —

    I am all for people with disablities having service animals. But everyone shoudl be aware that there are many of us with acute allergies to dogs, not just contact with the saliva and hair, but even being in the same room can trigger allergic reactions or asthmatic attacks etc. So, anyone allowing dogs, even on the basis of civil rights, should be aware that they may need to also work out these other situations, on a case by case basis. E.g., different classrooms, different doorways, different paths of access or whatever. The worst thing you can do is accuse the allergic person of “imagining things”, or saying “you are just afraid of dogs” or “you are just using that as a cover for discrimination.”

      Matthew Stoloff

      Jenifer,

      Thanks for your response. I agree that it’s important to be respectful of those who have allergic reactions to dogs (or any other type of animal). The reason why dog allergy generally won’t be a successful argument is because the symptoms of those who may be allergic to dogs are usually very minor and can be easily treated with antihistamines.

      However, as you pointed out, there are people who are severely allergic to dogs, and their symptoms are much more than just the occasional sneeze, cough, and red eyes. Most of us now know that President Obama’s daughter, Malia, is severely allergic to dogs, and that is the reason why the First Family purchased a Portuguese Water Dog. (By the way, I just found an interesting blog devoted to hairless breeds and dog allergies at Sweet Lucy’s. Definitely worth a look!) You raise a good point about engaging in a conversation, trying find common ground, and agreeing to a compromise. As you indicated, this needs to be done on a case by case basis because there are so many variables.

      Thank you again for your comments and for raising awareness.

    Elizabeth

    Concerning allergies – there are some very good anti-allergy products for reducing the allergenic profile of any dog. There are anti-allergy shampoos and wipes.

    Any allergy to an animal will involve exposure to fur, dander or saliva. There is no “allergy to animal in room” – it always involves an allergen-allergic response. There has to be something to “set if off.”

    While reduction in the allergen involved will help tremendously in the vast majority of cases, some people cannot even go into a room in which an animal has been. This is very rare. If the problem is this extreme, the allergic person should be under the care of a allergy specialist, and, possibly, receiving allergy injections.

    This should not be considered a reason to exclude the service dog of a person who requires the dog for specific services. In my case, I cannot bend over due to knee, hip and back problems associated with rheumatoid arthritis. Anything that I drop, I cannot pick up. I can’t count either on someone being present, or that someone being willing to help me. My Emmy is always happy to help me by picking up my cane, my cellphone, my keys or even pieces of paper I might drop. My fingers and hands are made clumsy by my rheumatoid arthritis, and I do drop things frequently.

    Children with autism can be calmed and helped to pay attention by a well-trained autism service dog. Not to mention the blind and hearing impaired. Interestingly, I haven’t heard of anyone objecting to a seeing-eye dog or a hearing-alert dog. It is the mobility service dog or the autism service dog that are the targets for those who object.

    I can only hope that information will be spread to the public and will be helpful in changing the perceptions of mobility and autism service dogs.

    Kathy Podgers

    For folks who suffer from allergies, and who are used to making others remove their pets to another room when they visit, it is difficult to understand why service animals, i.e., service dogs, cannot also be summarily excluded. Many believe that the very presence of the animal in the room will cause a “reaction” and the absence of the dog is the solution. What they refuse to understand is that it is the dander in the room, not the animal, that is the trigger.

    In all the years of using my service dog, and ‘working with” folks with allergies, I have met only one individual who had a severe allergy to “my” dog, even when my dog was not present. In other words, had an allergic reaction to the dander on my clothes, arms, hair, etc.

    Most people, even those who profess to have severe allergies that trigger asthma, do not have severe allergic reactions to the presence of a service dog in a large room, like a classroom. When I meet folks who complain of their allergies, we negotiate a seating arrangement that usually involves both of us moving our seats to make more space between us.

    For folks allergic to dog fur, or saliva, they must come in actual contact with it, not just be near it. If there is no touch, there will be no allergic reaction.

    Here in Cambridge, MA, a City Councillor is trying to have guide dogs banned from public meetings, claiming her allergy is a disability, yet dozens of folks who own both cats and dogs attend the very same public meetings. One must wonder what is really going on.

    Heather Gerquest

    The way I understand it, the fear or allergy to the service animal must be to the point of disabling. Obviously, a severe allergic reaction to a dog would be considered disabling since that would consist of airway restriction and the possibility of death. When either a phobia or allergy is the case, accommodations must be made for both the disabled person with the service animal and the person with the severe allergy or disabling phobia. However, it rarely reaches that point.

    The city councillor that is trying to ban guide dogs from public meetings seems to have some other issues.

    Lori —

    My 6 year old daughter has a severe allergy to dog dander that is classified as level 6 (life threatening). In her case exposure to dog dander causes sudden onset of an asthma attack. Her school is being pressured by a family to allow a service dog in her classroom to benefit a classmate with seizures. Why is the health of the disabled kid more important than the health of a “healthy” kid with a life threatening condition like asthma?? Any references to legal battles successfully won on the behalf of children with allergies would be greatly appreciated. Do I have to have my child classified as disabled?

      Shoshannah —

      I’m sorry that your daughter has such a severe reaction. However, it’s federal law that the dog be permitted by the school. NEITHER child’s life-threatening problems are more important than the other. I understand your concern for your daughter but what about the child with seizures. Those can be life-threatening too. I hope you are teaching your daughter to respect everyone, regardless of being “a disabled kid” or “a healthy kid”. You should look to find a compromise, not act spoiled and demand that your child get special treatment over the other child. That child has parents concerned for his/her safety too, hence the need for a seizure alert dog. I hope you have since been able to resolve the issue without being self-centered and discriminatory about it. The ideal situation would be one where both children can be accommodated without endangering the other.

    Angelo

    Dander travels for miles like pollen. If you go to a school with people that own dogs, cats etc, without an animal in the school, a level 6 would still be asthmatic. You drive though a neighborhood with dogs with the same result.

    There is no perfect solution. Education is the best defense. Taking away the service animal is the wrong answer; there is medicine for Allergies, but not for Disabilities.

    No battle has ever been won on the basis of Allergies, because Allergies are treatable. You can never eliminate dander from school simply by removing the animal.

    Ron —

    Although this page is slightly one sided… Still have no clear answer? What is the law?
    Two sisters, highly allergic to pet dander (proven). One child with service dog.
    Added hepa vac’s and air purifiers to classrooms and kept them in separate areas as much as possible.
    Now person with service dog wants full access to entire building because its the law.
    Who wins Child or Service Dog, just the facts not personal thoughts, please.
    Thanks, Ron

      Matthew Stoloff

      Ron,

      At this point, I am not aware of any published, federal cases involving service dogs where the person who suffers from dog dander wins. Although the right of service dogs in places of public accomodations is well established, it is not entirely clear how judges might balance competing interests between the service dogs in the schools and children who are severely allergic to dog dander. In the fact pattern as you’ve described it, the lawyers need to persuade the judge one way or the other — or, alternatively, the parties need to reach a compromise that benefits everyone. It is possible that there is a state case that offers more definitive answers; you may wish to contact an attorney in your state to evaluate your options.