Yes. Pursuant to the Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and the Americans with Disabilities Act (ADA) require that appropriate modifications be made to the educational environment for children with disabilities in order to provide a Free and Appropriate Public Education (FAPE) to a student. The use of a “service animal” by a student with a disability fits under this category.  The question is whether or not the particular dog fits within the definition of a “service animal.” Title III Regulation 28 CFR §36.104 defines a “service animal” as “any dog individually trained to do work or perform tasks for the benefit of an individual with a disability.”  Emotional support animals, comfort animals, and therapy dogs do not constitute animals providing work or tasks and are not service animals.  A school district, in accordance with district policy, may permit other animals to qualify as “service animals”.  A separate federal regulation already exists defining miniature horses as approved service animals, but schools must modify their policies to permit miniature horses and other animals to qualify as service animals.

The rules regarding the use of service dogs within public premises are well established. However, the rules with respect to the use of service animals within a school setting are less well settled. The U.S. Department of Education has not issued guidelines and/or policies on the subject, and there is no statute in Pennsylvania that provides necessary guidance. None the less, a school district is obligated to develop policies and procedures on such matters in compliance with IDEA, Section 504 and ADA. A school district may request verification of the need for a service animal and a description of the function (the work or task) the service animal is trained to perform in relation to the student’s disability.  It is recommended that the student’s IEP or Section 504 Service Agreement detail how the service animal will be handled and cared for during school.

A federal district court in Florida in February of 2015 found that a school board had failed to provide a severely disabled student with a reasonable accommodation under Title II and ADA of a service animal because the board’s policy did not allow service animals at school.  The school board had argued that the trained educators and support personnel at the school could provide the functions that the service animal would have provided.  However, the court likened the case to that of refusing a blind person the use of a service animal simply because a cane works fine, noting that the result would be absurd.

In September of 2015, the Department of Justice (DOJ) filed suit in federal court in New York alleging a school district engaged in disability discrimination under ADA because it refused to allow a medically fragile student’s service dog to accompany her to school without a handler, for which the parents were required to pay.  The DOJ is seeking a finding requiring the student be allowed to act as the handler for her dog with the assistance of school staff.

School District policy should include how teachers and administrators should handle the service animal during the day especially when the student is the handler.  As the law continues to develop in this area, a school district should review its policies and procedures and seek advice from the school solicitor.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.