School District Must Allow Student to Handle her Service Dog with Assistance from Staff, Says the U.S. Department of Justice
by Jacqueline C. Lembeck, Esq.
McAndrews Law Offices, P.C.
This spring, the U.S. Department of Justice (“DOJ”) Civil Rights Division determined that a New York school district violated Title II of the Americans with Disabilities Act (“ADA”) when it would not allow staff to assist a student in handling her service dog at school. According to a letter dated April 13, 2015 from the Civil Rights Division, the student, a child with Angelman Syndrome, Autism, and Epilepsy, among other medical conditions, uses her service dog to increase her independence and mobility, prevent elopement, disrupt stimming, and detect and alert others to seizure activity. The student’s service dog significantly improved her quality of life and “effectively notified school staff of seizure activity on numerous occasions, enabling a nurse to administer emergency seizure medication early enough to prevent the seizure from progressing.” When the child suffered seizures at school, staff was instructed to use the command, “snuggle,” to have the dog press its body against the student.
However, the school district in question would not allow the service dog to accompany the child to school unless the parents provided a full-time handler to tether and untether the dog and issue commands to the dog. Thus, the parents expended more than $25,000.00 to ensure that their daughter could attend school with her service dog. The district specifically would not allow the 1:1 aide already provided for the student to also serve as the dog’s handler.
Title II of the Americans with Disabilities Act protects students with disabilities and provides that school districts, as public entities, may not deny students with disabilities the opportunity to participate in the aids, benefits, or services provided to other students. 28 C.F.R. 35.130(b)(1). Districts also cannot provide students with disabilities an aid, benefit, or service that is not as effective in affording equal opportunity. 28 C.F.R. 35.130(b)(1)(iii).
Under Title II, a school district must make reasonable modifications of its policies and procedures to allow students with disabilities to use service animals when necessary to avoid discrimination. Districts are not responsible for care or supervision of a service animal (e.g., its veterinary care, feeding, walking, and grooming) and all service animals must be under the control of the handler. However, the DOJ’s April 13, 2015 letter made clear that the New York school district was “in violation of [T]itle II by failing to reasonably modify its policies, practices, and procedures to permit [the student] to handle her Service Dog with assistance from staff” and that “the requested assistance to [the student] falls well within the range of support and assistance that school staff provides to young children day in and day out.” In other words, the dog’s minimal needs like tethering and untethering and issuing commands were within the range of support that the school district had to provide as a reasonable modification of its policies for the student with a disability.
Similarly, the Pennsylvania Human Relations Commission issued a finding of probable cause in April 2014, finding that a school district’s “denial of [a student’s request to use her] service dog in the school harmed the bond that needed to be established between the child and the dog.” The Commission determined that the school district’s denial was contrary to Section 5(i)(1) of the Pennsylvania Human Relations Act, 43 P.S. Section 955(a). The child, a student with Pervasive Developmental Disorder, Not Otherwise Specified, relied on her service dog to aid with manifestations of her disability, for example, by administering pressure therapy. Overall, these cases represent a growing awareness of the ways that service animals may aid students with disabilities and the modifications which may be necessary to ensure that those students are not subjected to discrimination.