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"Service Dogs In Public Schools: How Cave Closed One Door, But Opened Another" by Sarah Wieselthier

Service Dogs In Public Schools: How Cave Closed One Door, But Opened Another

by Sarah Wieselthier

Service dogs have the ability to provide a wide range of assistance to students with disabilities, ranging from vision impairments to hearing impairments, autism spectrum disorder, and seizure disorders. Often, public schools deny access to a student with a disability's service dog, reasoning that the service dog is not necessary for the student to receive an appropriate education in compliance with the Individuals with Disabilities Education Improvement Act (IDEA). See, e.g., Cave v. E. Meadow Union Free Sch. Dist., 480 F. Supp. 2d 610 (E.D.N.Y. 2007), aff'd, 514 F.3d 240 (2d Cir. 2008); Sullivan v. Valejo City Unif. Sch. Dist., 731 F. Supp. 947 (E.D. Cal. 1990).

Under the IDEA, every student with a disability recognized under the statute must be provided a free appropriate public education (FAPE). Individuals with Disabilities Education Improvement Act of 2004 (IDEA), 20 U.S.C. § 1412(a)(1)(A). The Supreme Court in Board of Education of Hendrick Hudson Central School District v. Rowley defined an "appropriate" education as one reasonably calculated to enable the student to receive an educational benefit. 458 U.S. 176, 206-07 (1982). The Supreme Court explicitly stated that a school district is not required to maximize the student's potential. Id. at 198.

However, the IDEA is not the only federal law providing protection to students with disabilities. Both Section 504 of the Rehabilitation Act (Section 504) and the Americans with Disabilities Act (ADA) provide students with disabilities certain rights that may obligate a school district to allow the service dog to be present in the school setting.

Federal Laws Applicable to Students with Disabilities

When students whose service dogs were denied access have sought redress in the courts, alleging a violation of their civil rights, they have been plagued by the tension between the IDEA and Section 504 and the ADA. Although neither Section 504 nor the ADA has exhaustion requirements, the IDEA requires that administrative remedies must be exhausted for any claim in which the relief sought would also be available under the IDEA. IDEA, 20 U.S.C. § 1415(l). This exhaustion requirement has been applied to lawsuits involving the use of service dogs, forcing students with disabilities to fight an up-hill battle, showing the school district that the service dog is necessary for them to receive a FAPE. See generally Sarah Wieselthier, Grooming Dogs for the Educational Setting: The "IDEIA" Behind Service Dogs in the Public Schools, 39 HOFSTRA L. REV. 757 (2011).

By reaching this conclusion, school districts and the courts that affirm their actions have effectively allowed the IDEA to trump the protections individuals with disabilities are afforded by Section 504 and the ADA. See Scott B. Mac Lagan, Note, Right of Access: How One Disability Law Disabled Another, 26 TOURO L. REV. 753, 757-58 (2010). However, the question remains whether, after exhausting administrative remedies under the IDEA, a student may be entitled to bring his or her service dog to school in order to access his or her special education program pursuant to Section 504 and/or the ADA.

Section 504 provides that "[n]o otherwise qualified individual with a disability . . . shall, solely, by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance." 29 U.S.C. § 794 (1973). Public schools are subject to Section 504 because they are recipients of federal assistance. A student with a disability is covered under Section 504 if he or she has a physical or mental impairment that substantially limits a major life activity, such as learning. Once a student is identified has having a disability, the school district is required to provide that student with accommodations that will give him or her a FAPE. 34 C.F.R. § 104.33(a) (2000). The definition of a FAPE under Section 504 differs from that under the IDEA. Under Section 504, an "appropriate" education means that a student with a disability is entitled to an education comparable to that provided to students without disabilities. Id. § 104.33(b). Thus, the school district must provide reasonable accommodations to the student.

Title III of the ADA addresses discrimination in places of public accommodation, which includes public schools. 42 U.S.C. § 12101(b)(1). Entities that are subject to the ADA must provide accommodations for an individual with a disability in any area open to the public. The language defining disability mirrors that of Section 504--Congress did this intentionally so that the ADA would be interpreted consistently with how courts apply Section 504. See ADA Amendments Act of 2008, Pub. L. No. 11-324, § 2(a)(3) (2008). The passage of the ADA Amendments Act explicitly requires ADA and Section 504 cases to be analyzed under the same body of law.

Service Animals and Students with Disabilities

Service animals provide a wide range of benefits to individuals with disabilities that cannot be provided through other, more traditional means. For individuals with autism spectrum disorder, service dogs assist with impulsive running, pica, self-stimulation, self-harming, and mood swings, among many other issues associated with the disorder. Danny Schoenbaechler, Autism, Schools, and Service Animals: What Must and Should be Done, 39 J.L. & EDUC. 455, 460 (2010). For individuals with limb loss, a service dog can retrieve dropped items, turn light switches on and off, aid with dressing, and increase mobility and independence. Jennie Dapice, Service Dogs and People with Limb Loss, INMOTION, May/June 2007, at 26, 26. Service dogs are also able to detect a chemical change in an individual before he or she has a seizure, something humans cannot do. Michael Inbar, School Bars 12-year-old Epileptic Boy's Service Dog (Jan. 4, 2011, 10:11:22 AM), http://today.msnbc.com/id/40907000/ns/today-today-health/. Because of this ability, service dogs can alert others before a seizure occurs, lessen the duration of a seizure, and make sure the individual remains safe while unconscious. Id. Service dogs have also been shown to have significant positive psychological and social effects for individuals who use wheelchairs and to facilitate social acknowledgment for students with disabilities in the school setting. Karen Allen & Jim Blascovich, The Value of Service Dogs for People with Severe Ambulatory Disabilities: A Randomized Controlled Trial, J. AM. MED. ASS'N, Apr. 3, 1996, at 1001, 1001; Bonnie Mader et al., Social Acknowledgments for Children with Disabilities: Effects of Service Dogs, CHILD DEV., Dec. 1989, at 1529, 1533-34.

The regulations implementing the ADA provide a legal definition of a service animal: "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. . . ." Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial facilities, 75 Fed. Reg. 56,250, 56,250 (Sept. 15, 2010) (to be codified at 28 C.F.R. § 36.104). The definition was recently expanded to include an updated list of examples of the work or tasks performed by a service animal, ranging from assisting individuals who are blind with navigation to pulling a wheelchair, assisting an individual during a seizure, alerting about the presence of allergens, and preventing or interrupting impulse or destructive behaviors.

Despite the broad definition of a service animal and federal statutes protecting the rights of students with disabilities, schools often deny access to a student's service dog on the premise that the service dog is not necessary for the student to receive a FAPE under the IDEA. These students have generally been unsuccessful when litigating this matter as a violation of the student's rights under IDEA, Section 504, and the ADA. See, e.g., Cave, 480 F. Supp. 2d at 638-42.

Sullivan v. Vallejo City Unified School District was the first case in which a court addressed the issue of whether a school's denial of a service dog violated a student with a disability's civil rights secured by Section 504. 731 F. Supp. 947 (E.D. Cal. 1990). In Sullivan, a student with cerebral palsy, learning disabilities, and right-side deafness who used a wheelchair was not permitted to bring her trained service dog to school. Id. at 948. The service dog allowed the student to increase her mobility by using a wheelchair rather than a pair of crutches. Id. at 958. The school argued that the court lacked jurisdiction to adjudicate the student's Section 504 claim because administrative remedies were not exhausted pursuant to the Education of the Handicapped Act (a predecessor to the IDEA). Id. at 949.

The court rejected the school's argument, finding no connection between the student's Section 504 claim and the possibility that the student could achieve her objective of bringing her service dog to school through the IEP process pursuant to the Act. Id. at 951. The court emphasized that the student's claim was not whether the service dog is educationally necessary, but that the school discriminated against her because of her handicap by refusing her access if the service dog were to accompany her. Id. Despite the distinction, the court ordered the school to draft a new IEP pursuant to the IDEA, which allowed the student to be accompanied by her service dog. Id. at 962.

Courts revisiting the issue after Sullivan have declined to follow its holding and have denied access to the service dog. In Cave v. East Meadow Union Free School District, the school district denied access to the service dog used by a student with a hearing impairment. 480 F. Supp. 2d at 615. The service dog helped limit the effect of the student's disability by alerting him to sounds that he did not always hear. Id. at 619. Additionally, the student argued that it was necessary for him to be with the service dog on a continuous basis for the dog's training to be maintained. Id. at 621. The lawsuit sought a preliminary injunction based upon alleged violations of the ADA, Section 504, and several New York State statutes, but did not allege a violation of the IDEA. Id. at 616.

The Cave court expressly rejected the holding of the Sullivan Court, stating, "[t]he fact that the Sullivan [C]ourt recognized that this relief implicated the plaintiff's IEP in a very direct manner reaffirms this [c]ourt's conclusion [that] this relief was available under the IDEA, and should have first been pursued according to the requirements of that statute." Id. at 638. It was further held that the student did not establish a clear likelihood of success on the merits of his Section 504 and ADA claims because the school already provided him with reasonable accommodations, allowing him to be successful in school. Id. at 641-42.

Cave Left Open the Door to a Meritorious Section 504 and ADA Claim

Although the Cave Court decided that the student did not need a service dog to receive a FAPE under the IDEA, it may not have closed the door for future Section 504 and ADA claims by other students with disabilities seeking to bring their service dogs to school. In Cave, it was held that the student's Section 504 and ADA claims failed because he was not discriminated against because of his disability since he was provided other reasonable accommodations within the provisions of both Acts. Cave, 480 F. Supp. at 640-41. However, the circumstances surrounding another student with a disability may lead to the conclusion that, although a service dog is not necessary for an appropriate education under the IDEA, it must be provided as an accommodation under Section 504 and the ADA for the student to receive an education comparable to his or her non-disabled peers.

To establish a prima facie case under either Section 504 or the ADA, the student must allege that: (1) he or she is disabled under the Act; (2) he or she is otherwise qualified; (3) he or she was denied benefits or services, or was otherwise subject to discrimination, solely because of his or her disability; and (4) the defendant school district receives federal assistance under Section 504 or is a public entity under the ADA. See Cave, 480 F. Supp. 2d at 640-41. If the student plaintiff is able to prove each of these four elements, the burden then shifts to the school district-defendant to refute the inference of discrimination. Id. In the case of a student with a disability who is denied access because of his or her service dog, the student would need to show: (1) that he or she has a physical or mental impairment that substantially limits one or more major life activity, such as learning; (2) he or she is otherwise qualified to receive accommodations under the Act; (3) he or she was denied use of a service dog in the school; and (4) that the school receives federal assistance or is a public entity, which is true for all public schools.

The school can rebut discrimination only by a showing that the accommodation of allowing the student to be accompanied by a service dog at school is unreasonable. This requires the school to show either that the presence of a service animal would fundamentally alter the nature of the school's ability to provide all of its students with an education or that health and safety would be jeopardized if an animal were present. Introducing a dog to the school environment has the potential to introduce disease, allergens, safety risks, and incidences of disruption; a school should be concerned with these and other potential problems when a request is made for a service dog to accompany a student to school. However, the federal regulations mandate that allegations of safety risks "must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities." 29 C.F.R. § 36.301(b).

Additionally, any alternatives that can alleviate the health and safety concerns associated with introducing a service animal into the school environment should be considered before a blanket exclusionary policy is implemented. As long as the service dog was trained by a reputable organization and is disease-free, the service dog's presence should not fundamentally alter the school environment or pose any health or safety dangers.


A service dog has the ability to substantially improve the quality of life for a student with a disability and provide them with the means to benefit from their education. Therefore, for some students who suffer from disabilities, having a service dog present in the classroom is essential for them to access the appropriate education that is required by the federal laws. Cave should not be viewed as closing the door to Section 504 and ADA causes of action for students who are denied the ability to bring their service dogs to school--the court left open the possibility for a student to show that, even if a service dog is unnecessary to receive an educational benefit under the IDEA, it is necessary to ensure fair educational opportunities under Section 504 and the ADA.

The IDEA's exhaustion requirement may affect the procedure for alleging Section 504 and ADA violations in the school setting, but it does not preclude Section 504 and ADA claims from being meritorious as long as administrative remedies are first exhausted under the IDEA. The rights students with disabilities are afforded under Section 504 and the ADA are distinct and must be considered when the student requests to bring his or her service animal to school.

Sarah Wieselthier is a third-year law student at the Maurice A. Deane School of Law at Hofstra University and a candidate to earn her J.D. in May 2012. Sarah serves as an Articles Editor for the Hofstra Law Review and is interested in pursuing a career in education law. For those interested in a more in-depth discussion of the use of service dogs by students with disabilities in public schools, see Sarah Wieselthier, Grooming Dogs for the Educational Setting: The "IDEIA" Behind Service Dogs in the Public Schools, 39 Hofstra L. Rev. 757 (2011), available at http://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v39n03_DD-3-Wieselthier-final.pdf.

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This page contains a single entry from the blog posted on November 23, 2011 11:49 AM.

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